“When the legislative and executive powers (says Montesquieu) are united in the same person or in the same body of magistrates, there can be no liberty.”

I'M REALLY BUSY TODAY so I will leave you with several things.  First in print

First is the first letter from Centennial,  one of the antifederalists expressing his skepticism of John Adams' clearly failed theory of three balanced branches of power. * Which Centennial (generally believed to be Samuel Bryan, these days) pointed out was unbalanced by the anti-democratic, quasi-executive and so far more powerful Senate, more powerful  than the House or Representatives which it was supposed to be co-equal with under Adams' asserted balancing act.   It gets a few things somewhat wrong but I think Centennial proves to have been far more realistic and correct than Adams, Madison, Wilson or any of the federalists were in their assertions.   I will point out that though the worry he expressed was for "liberty" that loss of liberty was to be achieved through the anti-egalitarian features of the Constitution, which he correctly pointed out was written by and on behalf of the very wealthy at the expense of the common People, especially the rural People who were successfully blocked from having an effective voice in the matter in most of the states.   Here is  one of the most important parts of Centennial 1 that debunks the theory of balanced powers.

I am fearful that the principles of government inculcated in Mr. [John] Adams’ treatise [Defence of the Constitutions of Government of the United States of America], and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.

I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams’ sine qua non of a good government is three balancing powers; whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He asserts that the administrators of every government, will ever be actuated by views of private interest and ambition, to the prejudice of the public good; that therefore the only effectual method to secure the rights of the people and promote their welfare, is to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government. He indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? Not a day — for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equality of power and distinction of interests in the three orders of government, they exist but in name. The only operative and efficient check upon the conduct of administration, is the sense of the people at large.

Suppose a government could be formed and supported on such principles, would it answer the great purposes of civil society? If the administrators of every government are actuated by views of private interest and ambition, how is the welfare and happiness of the community to be the result of such jarring adverse interests?

Therefore, as different orders in government will not produce the good of the whole, we must recur to other principles. I believe it will be found that the form of government, which holds those entrusted with power in the greatest responsibility to their constituents, the best calculated for freemen. A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided. In such a government the people are the sovereign and their sense or opinion is the criterion of every public measure. For when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin. The highest responsibility is to be attained in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on. If you complicate the plan by various orders, the people will be perplexed and divided in their sentiment about the source of abuses or misconduct; some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility. For then, whenever the people feel a grievance, they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people.

Having premised this much, I shall now proceed to the examination of the proposed plan of government, an I trust, shall make it appear to the meanest capacity, that it has none of the essential requisites of a free government; that it is neither founded on those balancing restraining powers, recommended by Mr. Adams and attempted in the British constitution, or possessed of that responsibility to its constituents, which, in my opinion, is the only effectual security for the liberties and happiness of the people. But on the contrary, that it is a most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed….

Thus we see, the house of representatives are on the part of the people to balance the senate, who I suppose will be composed of the better sort, the well born, etc. The number of the representatives (being only one for every 30,000 inhabitants) appears to be too few, either to communicate the requisite information of the wants, local circumstances and sentiments of so extensive an empire, or to prevent corruption and undue influence, in the exercise of such great powers; the term for which they are to be chosen, too long to preserve a due dependence and accountability to their constituents; and the mode and places of their election not sufficiently ascertained, for as Congress have the control over both, they may govern the choice, by ordering the representatives of a whole State, to be elected in one place, and that too may be the most inconvenient.

The senate, the great efficient body in this plan of government, is constituted on the most unequal principles. The smallest State in the Union has equal weight with the great States of Virginia, Massachusetts, or Pennsylvania. The senate, besides its legislative functions, has a very considerable share in the executive; none of the principal appointments to office can be made without its advice and consent. The term and mode of its appointment will lead to permanency. The members are chosen for six years, the mode is under the control of Congress, and as there is no exclusion by rotation, they may be continued for life, which, from their extensive means of influence, would follow of course. The President, who would be a mere pageant of State, unless he coincides with the views of the senate, would either become the bead of the aristocratic junto in that body, or its minion; besides, their influence being the most predominant, could the best secure his re-election to office. And from his power of granting pardons, he might screen from punishment the most treasonable attempts on the liberties of the people, when instigated by the senate….

Mr. [James] Wilson asserts that never was charge made with less reason, than that which predicts the institution of a baneful aristocracy in the federal Senate.’ In my first number, I stated that this body would be a very unequal representation of the several States, that the members being appointed for the long term of six years, and there being no exclusion by rotation, they might be continued for life, which would follow of course from their extensive means of influence, and that possessing a considerable share in the executive as well as the legislative, it would become a permanent aristocracy, and swallow up the other orders in the government.

hat these fears are not imaginary, a knowledge of the history of other nations, where the powers of government have been injudiciously placed, will fully demonstrate. Mr. Wilson says, “the senate branches into two characters; the one legislative and the other executive. In its legislative character it can effect no purpose, without the co-operation of the house of representatives, and in its executive character it can accomplish no object without the concurrence of the president. Thus fettered, I do not know any act which the senate can of itself perform, and such dependence necessarily precludes every idea of influence and superiority.” This I confess is very specious, but experience demonstrates that checks in government, unless accompanied with adequate power and independently placed, prove merely nominal, and will be inoperative. Is it probable, that the President of the United States, limited as he is in power, and dependent on the will of the senate, in appointments to office, will either have the firmness or inclination to exercise his prerogative of a conditional control upon the proceedings of that body, however injurious they may be to the public welfare? It will be his interest to coincide with the views of the senate, and thus become the head of the aristocratic junto. The king of England is a constituent part in the legislature, but although an hereditary monarch, in possession of the whole executive power, including the unrestrained appointment to offices, and an immense revenue, enjoys but in name the prerogative of a negative upon the parliament. Even the king of England, circumstanced as he is, has not dared to exercise it for near a century past. The check of the house of representatives upon the senate will likewise be rendered nugatory for want of due weight in the democratic branch, and from their constitution they may become so independent of the people as to be indifferent of its interests. Nay, as Congress would have the control over the mode and place of their election, by ordering the representatives of a whole state to be elected at one place, and that too the most inconvenient, the ruling powers may govern the choice, and thus the house of representatives may be composed of the creatures of the senate. Still the semblance of checks may remain, but without operation.

This mixture of the legislative and executive moreover highly tends to corruption. The chief improvement in government, in modern times, has been the complete separation of the great distinctions of power; placing the legislative in different hands from those which hold the executive; and again severing the judicial part from the ordinary administrative. “When the legislative and executive powers (says Montesquieu) are united in the same person or in the same body of magistrates, there can be no liberty.”

I will also recommend this chapter from Charles A. Beard's An Economic Interpretation of the Constitution of the United States for what it shows about the lying of John Marshall (and virtually every federalist, especially James Wilson) about the Constitution ever having been an expression of "the people as a whole."  

Marshall's Analysis Of The Conflict

It must not be thought that this antagonism of economic interests which, in the language of controversy, frequently took on the form of a war between "aristocracy" and "democracy" was observed only by partisans whose views were distorted by the heat of battle. On the contrary, it was understood by the keenest thinkers-in fact, one may say that the more profound the wisdom of the observer, the clearer was his comprehension of the issues at stake. Next to Madison, whose concept of the Constitution-making process has already been fully discussed,[5] John Marshall probably understood best the nature of the new instrument, the social forces which produced it, and the great objects it was designed to accomplish. In speaking from the bench, as Chief Justice, he used, of course, the language of jurisprudence and spoke of the Constitution as a creation of the whole people.[6] But as a historian of great acumen, in which capacity he was not hampered by the traditional language of the bench and bar, Marshall sketched with unerring hand the economic conflict which led to the adoption of the Constitution, and impressed itself upon the nature of that instrument. In his masterly Life of Washington, he sets forth this conflict in unmistakable terms:

1. In the first place, the mercantile interest was sorely tried under the Articles of Confederation. There "was a general discontent with the course of trade. It had commenced with the native merchants of the north who found themselves incapable of contending in their own ports with foreigners; and was soon communicated to others. The gazettes of Boston contained some very animated and angry addresses which produced resolutions for the government of the citizens of that town, applications to their state legislature, a petition to congress, and a circular letter to the merchants of the several sea ports throughout the United States. ...The merchants of the city of Philadelphia presented a memorial to the legislature of that state, in which, after lamenting it as a fundamental defect in the constitution that full and entire power over the commerce of the United States had not been originally vested in Congress ...they prayed that the legislature would endeavour to procure from Congress a recommendation to the several states to vest in that body the necessary powers over the commerce of the United States." [7]

2. The public creditors had lost faith in the old government. "That the debt of the United States should have greatly depreciated will excite no surprise when it is recollected that the government of the Union possessed no funds, and without the assent of jealous and independent sovereigns could acquire none to pay the accruing interest; but the depreciation of the debt due from those states, which made an annual and adequate provision for the interest, can be ascribed only to a want of confidence in the governments which were controlled by no fixed principles; and it is therefore not entirely unworthy of attention. In many of those states which had repelled every attempt to introduce into circulation a depreciated medium of commerce or to defeat the annual provision of funds for the payment of the interest, the debt sunk in value to ten, five, and even less than four shillings in the pound. However unexceptionable might be the conduct of the existing legislature, the hazard from those which were to follow was too great to be encountered without an immense premium."

3. A profound division ensued throughout the United States based on different views of the rights of property. "At length," continues Marshall, "two great parties were formed in every state which were distinctly marked and which pursued distinct objects with systematic arrange- ment. The one struggled with unabated zeal for the exact observance of public and private engagements. By those belonging to it, the faith of a nation or of a private man was deemed a sacred pledge, the violation of which was equally forbidden by the principles of moral justice and of sound policy. The distresses of individuals were, they thought, to be alleviated only by industry and frugality, not by a relaxation of the laws or by a sacrifice of the rights of others. They were consequently the uniform friends of a regular administration of justice, and of a vigorous course of taxation which would enable the state to comply with its engagements. By a natural association of ideas, they were also, with very few exceptions, in favor of enlarging the powers of the federal government. . . .

"The other party marked out for themselves a more indulgent course. Viewing with extreme tenderness the case of the debtor, their efforts were unceasingly directed to his relief. To exact a faithful compliance with contracts was, in their opinion, a harsh measure which the people would not bear. They were uniformly in favor of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and of remitting taxes. The same course of opinion led them to resist every attempt to transfer from their own hands into those of congress powers which by others were deemed essential to the preservation of the union. In many of these states, the party last mentioned constituted a decided majority of the people, and in all of them it was very powerful. The emission of paper money, the delay of legal proceedings, and the suspension of the collection of taxes were the fruits of their rule wherever they were completely predominant. ...Throughout the union, a contest between these parties was periodically revived; and the public mind was perpetually agitated with hopes and fears on subjects which essentially affected the fortunes of a considerable proportion of society."

4. Finally, so sharp was this division into two parties on the lines of divergent views of property rights, that the Constitution, far from proceeding from "the whole people," barely escaped defeat altogether.' So positive is this statement by the great Chief Justice and so decidedly does it contradict his juristic theory of the nature of the supreme law that the two should be studied together. For this reason, the two views enunciated by Marshall are printed in parallel columns: [ Here on blogger they are one below the other]

"So balanced were the parties in some of them [the states] that even after the subject had been discussed for a considerable time, the fate of the constitution could scarcely be conjectured; and so small in many instances, was the majority in its favor, as to afford strong ground for the opinion that, had the influence of character been removed, the intrinsic merits of the instrument would not have secured its adoption. Indeed it is scarcely to be doubted that in some of the adopting states a majority of the people were in the opposition. In all of them, the numerous amendments which were proposed demonstrate the reluctance with which the new government was accepted; and that a dread of dismemberment, not an approbation of the particular system under consideration, had induced an acquiescence in it. . . . North Carolina and Rhode Island did not at first accept the constitution, and New York was apparently dragged into it by a repugnance to being excluded from the confederacy." Marshall, in his Life of Washington, written in 1804-07.

"The government [of the United States] proceeds directly from the people; it is 'ordained and established' in the name of the people; and it is declared to be ordained 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty' to themselves and to their posterity. ... The government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a government of the people. In form and substance it emanates from them. Its powers are granted by them and are to be exercised directly on them and for their benefit. ...It is the government of all; its powers are delegated by all; it represents all, and acts for all. Marshall, in McCulloch vs. Maryland (4 Wheaton, 316), in 1819.

* I'll remind you that the other day I noted that John Adams, late in his life, said that his appointment of John Marshall as the Chief Justice of the Supreme Court was his greatest gift to the American people,  that same John Marshall who, as Beard proved in his own words, was a liar in his Supreme Court declarations,  contradicted by his own words in his biography of Washington.  He was also a slave holder who always ruled in favor of slave holders, slave hunters and even a pirate who illegally imported kidnapped Americans in to the country to be sold into slavery against the explicit law of the United States as the Constitution, itself, allowed the Congress to pass when the appalling two decades of commerce in kidnapped Africans and others was allowed to go on under the "liberty" loving Constitution.   

By that time Adams should have recognized that his guy, Marshall had already even more seriously tipped the balance of powers into the judiciary by the Marbury ruling,  something that others of the time and after noted over and over again, especially in the wake of its first important use by the Taney court in issuing the infamous Dred Scott decision. 

The short term fashion of lauding John Adams in and about the 1990s -due to several hacks who wrote the hagiographic bios that set it off - is clearly dishonest.  He was not that much better than the slave holders and financiers with whom he made common cause in the 1780s.   He was not notably good at imagining up a democratic republic that provided equal justice under the law, nor do I believe that he ever wanted one.  He was a stinking Federalist, after all, one who sought to keep power after the Federalists clearly lost the support of the Country - his party never regained power,  though Marshall and the others on the Supreme Court extended it anti-democratically long after that point as Roberts and his fascists will long after Trump has died and gone to hell and Vance is out of power.