The Legislative and Executive Power

Thomas Paine’s Answer to
Four Questions on the Legislative and Executive Powers. (1791)
Translated from the MS. by Condorcet.[1]

I HAVE received from my friend M——a note containing the four following propositions on which you are kind enough to desire my opinion. I shall not take up your valuable time with compliments and apologies, but as a man who looks upon himself as a member of the great human family.

On reading the four questions put to T. Paine, one perceives the intention of soliciting, and the hope of obtaining for them, an affirmative answer. The inquirer took care to let the stern Republican understand that should his opinion perchance coincide with that hope, he might expect the gratitude that a work so conducive to the freedom of the human race would deserve. But interested and eager as I am for its happiness wherever it is found on the face of the earth, and working as a brother and associate with you and all those who are contributing to its felicity, I will lay before you, as briefly as I can, the reflexions that your questions have suggested. In the first place I must warn you that I shall not stop to consider whether our opinions agree in every particular; but in the assurance that our end is one and the same, I shall limit myself to discussing with you the means of attaining it.

First you agree that the basis of the French constitution is good; then you ask whether it is not defective on several points, and

  1. Whether the legislative and executive powers are not so unequally balanced that there is cause to fear lest the former should encroach upon the latter?
  2. Whether the executive power is not too weak to insure obedience to the law and to secure the respect and confidence of the people?
  3. Whether it is not to be feared that the legislative body consisting of one single chamber will be carried away by its own impetuosity and lack self-restraint?
  4. Whether the organization of the system of administration is not too complicated and of a kind to make anarchy lasting?

I shall first impart to you a few reflexions on these questions considered separately. I shall next add some remarks that embrace them all. Finally, without examining whether the French constitution is defective and could be improved by being added to, or curtailed, I will lay before you some easy means of modifying it without disturbing the order of government should experience show the necessity of such modifications.

With regard to your opening declaration that the basis of the constitution is good, this basis being no other than the rights of man, it rests on truths so well demonstrated that they can no longer be a subject of discussion—I will merely quote and apply to those who dispute them the well-known saying: The fool hath said in his heart there is no God.

First Question.

Are not the legislative and executive powers too unequally balanced, and is there not cause to fear that the former will encroach upon the latter?

If we consider the legislative and executive powers as emanating from a common source, the nation, and as a distribution of the national power aiming at the general good, it will be difficult to perceive any motive why the one should encroach upon the other, or to conceive any advantage to be derived by either from the success of such an undertaking. But if, on the contrary, we look upon these two powers as having a different origin and struggling against each other, the one for the rights of the nation, and the other for rights that are not those of the nation, your question is no longer the same, and the fear it formulates is no longer fear of evil, but fear for the public safety.

As your terms do not show under which of these two aspects it should be considered, and as it is difficult to discuss separately a question which is directly dependent on a preceding one, I will use to its full extent the liberty which the vagueness of the proposition allows me and put down a few remarks as they suggest themselves to my mind. I shall thus carry the problem to the point of solution rather than solve it myself.

Nations suffer so universally from the fatal custom of being ill governed, and the human soul “cribbed, cabined and confined” through so many centuries, is so unaccustomed to light, that it may be doubted whether the faculty of distinguishing prismatic hues is as yet fully developed within it.

If we rid our ideas of all superfluous words, and consider them in their natural bareness and simplicity, we perceive (as in the very forms of the proposition) only two main divisions of the powers that constitute government: the power of making laws, and that of causing them to be carried out or administered. Thus all that pertains to government naturally falls under one or the other of these primary divisions.

We have, I think, generally a more precise and fuller conception of the nature of the legislative power than of the executive. By the first, we merely mean the delegated power of making laws in conformity with the basis and principles of the constitution. For, without this conformity, the legislative power would only be despotic power disguised under another name.

But, when we examine the executive power in the vague sense generally given to that term, we have not so precise or so clear an idea of it as we have of the legislative power. This idea seems to carry with it some admixture of arbitrary power, with the inevitable result of creating suspicion rather than confidence. Consequently, until these powers shall have been defined with equal precision, it is difficult to treat of the propositions that relate to them.

But, if any mutual invasion of these two powers be possible, it is as possible on the part of the one as of the other; and in this alternative, I should deem that nation safer where an elected legislative body should possess itself of the executive, than where a non-elected executive should assume the power of making laws.

Independently of these considerations, I own that I do not see how a government can with any exactness be compared to a pair of scales. What is there to balance? A balance suggests the idea of opposition. This figure of speech is, I think, borrowed from England, where circumstances had, at first, given it some appropriateness. The English government being a tyranny founded on the Norman Conquest, the nation has constantly sought a counterpoise to what it could not remove.

With the Norman Conquest, aristocracy came in, and the nation had to struggle against a host of obstacles. The weight of the nation was then in the scale against the ruling powers. It is what has since been called the national interest to distinguish it from the interest of The Court.

But the metaphor of a pair of scales is inconceivable in a country where all the powers of government have a common origin. In this case, the idea of two extremities in opposition to each other disappears, and we see only one edifice where union and harmony are the order of the day.


I pass on to the second question, namely “Whether the executive power is not too weak to insure obedience to the law and to secure the respect and confidence of the people? ”When there is a fundamental objection to the first proposition, this objection reappears necessarily in all the propositions that are derived from that first one, and here I ask again, What is the executive power? If, by this expression, is meant the power of carrying out the laws, these words refer naturally to every tribunal and court of justice whose business it is to enforce the law, since the last recourse is to them, wherever it is violated. The legislature is particularly interested in maintaining the power of the executive, considered from this point of view; for if the enforcement of the law is weakened, the laws themselves, and those who made them, will be weakened in proportion. But, if it should be admitted that the executive is no longer able to enforce obedience to the laws and secure the respect and obedience of the people, a great question presents itself, namely, what is the cause of this incapacity?

This question leads us to consider the term executive power, as referring, not to the immediate carrying out of the laws, but as designating a medium or centre through which they must pass to reach the point of execution. And this brings our thoughts to bear on that part of the constitution called the monarchy.

The original and direct meaning of the word “monarch” is absolute power concentrated in one man. This meaning is always the same and suffers no other interpretation. It must be admitted that the constitution, although sublime in its principles, offers here a contradiction between ideas and terms, and as such a contradiction ever brings suspicion in its train, let us examine to what extent suspicion leads, in its turn, to non-execution of the law.

If a remembrance of the nature and extent of monarchical power in old days, and the idea that is attached to those terms, continue to be identified with that of executive power, every scheme likely to strengthen the latter will only tend to increase suspicion and diminish confidence.

If there were a law of Nature, or a decree of the Almighty, made known to men, by which He had determined that all the successive holders of the same power should be endowed with the same heart, and that heart never deceived, suspicions, fears, and alarms would be appeased. But when we see Nature act as if she were determined to disown the monarchical system, producing monarchs as diverse in character as in person, making one wicked, the other stupid, a third mad, and another all these things at once, will it be possible, so long as reason remains a faculty of man, for him to give the least credence to this hereditary absurdity?

If the French should scorn reflexion as long as the English have done, their lethargic indifference might look like happiness, and their thoughtlessness like confidence; but confidence, to be lasting, must be an edifice raised by time on the foundation of reason.


I pass on to the third question: Is there not cause to fear that the legislative body, composed of a single chamber, may be carried away by its own impetuosity and lack self-restraint?

This question may be considered under so many aspects, each of which is open to so many arguments, that it seems as yet hardly susceptible of a positive answer. I will nevertheless give you my ideas on this point.

A Constitution, in defining the limits of power, together with the principles which the legislature is bound to obey, has already provided a most powerful and trustworthy check upon any abuse of power.

If, for instance, a law were proposed in one of the legislatures of America, like that passed in the English Parliament (at the beginning of the reign of George I.), to prolong the duration of these Parliaments, such a law could never pass, because the constitution is opposed to it and says: “Thus far shall ye go and no farther.”

But, although all the restrictions to power under its various forms should be provided for by the constitution itself, much will always have to be left to the prudence and discretion of the different legislative bodies.

However much skill is displayed in combining the various powers of a constitution, if you establish two chambers you cannot calculate beforehand, with any certainty, the degree of restraint they will exercise upon each other. They may have an understanding not to use that power of mutual restraint, either for good or for evil; but a check provided by the constitution will have a certain and beneficial effect.

As to my private opinion, I should prefer for the reasons I shall unfold; that the legislature should be divided in two sections at the beginning of a debate, to its being always one body, or to its forming two separate bodies.

It seems to me that in this matter of the division of the legislative body, reason is not so much to be taken into consideration, as the passions of men. For, whenever the object is to convince or to persuade, the influence of these passions should be turned to account.

Wherever the legislative body consists of one single chamber, it runs the risk of coming to rash decisions; whereas division offers one chance more for collected judgement. There is no doubt that discussion sheds light, and that a superior man may sometimes derive benefit from the ideas of a person less enlightened than himself. But, if he means to carry out these ideas, it is best he should himself take but little part in the debate. I suppose therefore that the legislative body consists of 100 persons: instead of opening the debate in one assembly, divide the chamber into two equal sections that shall deal with some question, not at the same time, but successively. By this means, one section would listen to the arguments of the other, and when each separately should have closed the debate, it might be renewed and the vote put in the general assembly. I think therefore it might be possible to hit on some scheme preferable to one chamber, as at present established, and free from the drawbacks that result from two chambers, some of which I shall proceed to state.

In the first place, it is illogical that one division of the legislature should have the power of coming to a final decision on any one question while this question is still under discussion by another body and consequently still open to new lights.

Secondly, it is possible and constantly happens that when the votes of each chamber are taken separately, the minority governs the majority in a way both shocking and ridiculous.

Let us suppose, for instance, that the two chambers are composed of 50 members each. If unanimity exists in the one, and the other be divided in the proportion of 26 votes against 24—then 26 shall carry it against 74, that is, one-fourth of the votes and one over, shall govern the other three-fourths. If the chambers are in the proportion of 60 to 40, 70 to 30, or 80 to 20, the evil is greater still, for then eleven votes can carry it against 89, if these eleven votes are at the same time in opposition to the nine of their own, and to the totality of the other chamber.

But if the legislative body be only divided in order to facilitate debate and not for the purpose of carrying resolutions, all the advantages of separate discussion result from this division without the drawbacks of two chambers.

As to the two chambers which constitute the Parliament of England, they seem absolutely fused into one, and as legislative bodies to have no special character of their own. In all respects they take that of the Premier of the day, whatever it be, and whatever the epoch of his premiership. He touches them with his soporific wand, and at once they fall into the sleep of subserviency.

If we consider the individual merit of those who compose these two chambers, we shall see that the one whose very name (House of Lords[2] is an outrage on nature, has been very justly deprived of talent and virtues by nature herself. Pitiable though the representation of England is, the Commons are in a virile state compared to the Lords. That wretched assembly is so little considered and appears so puerile, that the people never ask what it is about. It also comes most under ministerial influence. In the debate on war with Russia, the minister had a majority of over 90 in the Lords, whilst in the other chamber, which is twice as numerous, he had only a majority of 63. Chesterfield, a member of that assembly, and one of those who knew it best, had nicknamed it “the Hospital for Incurables.”

I am little inclined to admit the idea of two chambers with an arbitrary and reciprocal veto. Nothing in the principle of good representation shows that the one may be wiser than the other, and thus to intrust power where wisdom cannot be given to use it is as much to run a risk as to take a precaution.

All human institutions having been improved since their origin, we must believe that the representative system will be improved too and this hope is all the better established that this system is among our institutions one of those which have met with the greatest number of obstacles and have had the best chance of being perfected.


I pass on to the fourth question—Whether the organization of the administrative system is not too complicated and of such a nature as to perpetuate anarchy?

A great advance has been made in the science of government (especially where the state is of considerable extent) by the institution of a system which puts each part of a country in a position to govern all its private affairs. Not only is private and public business simplified thereby, but the waste of time and the expense consequent upon administration from a distance are avoided, as well as the mistakes that such a system of jurisdiction entails.

Although the general utility of the institution referred to above is evident, a particular knowledge of local circumstances is necessary to judge of its details. I own I do not possess this particular knowledge, my purpose being rather to elucidate general principles of government; for, if these be good, the application of them to particular cases, will be good also. The science of government being still in its infancy I am satisfied with hoping that no system will be established likely to prevent us from profiting by the lessons of experience.

In spite of the study which has been made of the science of government, of its principles, its operations, and its manifold results, the following question has not yet been sufficiently examined, nor has enough light been thrown upon it: How small a measure of government is necessary to civilized man?

I cannot now go thoroughly into this question. To do so would be to exceed the limits I have prescribed to myself. Moreover, it is being considered in a work of mine now in course of composition. But I am very decided in the opinion that the sum of necessary government is much less than is generally thought, and that we are not yet rid of the habit of excessive government.

If I ask any one to what extent he thinks himself in need of being governed, he gives me to understand that in his case “a little would be enough”; and I receive the same answer from every one. But if, reversing the question, I ask the same man what amount of government he deems necessary for another, he answers: “a great deal.” As that other person decides the question in the same way for everybody else, the result of all these answers is excess of government. I conclude therefore that the amount really necessary is to be found between these two extremes. It is, namely, a little more than each wants for himself and a good deal less than he thinks necessary for others. Excess of government only tends to incite to and to create crimes which else had never existed.

The wretched traffic of former governments was in a great measure upheld by the care they took to throw everywhere seeds of division, and to encourage the growth of suspicion, not only from nation to nation, but also from man to man. Such a traffic can only perpetuate itself by destroying the very principles of society, and we are still suffering from the effects of that rotten system. We must therefore consider that the moral condition of man must needs change, and that under better principles of government, he will cease to be the suspicious creature he inevitably was under former systems. Already, as nations come nearer to adopting the principles of civilized government, the human mind acquires a new faculty. The people of England and those of France are no longer what they were two years ago with respect to each other, and the same principles that actuate the bulk of these nations will prevail in the private relations of each. But the moral changes which obtain between nations, or between individuals, although very rapid in their operation when they lead to evil, are very slow when they lead to good. It is easy enough to prompt suspicion, but difficult to eradicate it. Force cannot kill it: it must be undermined silently, and it will crumble away without noise.

If we consider the situation of France under the old regime, we see a government founded on suspicion, consequently on spies and eaves-droppers, whose business it was to report everything to the police. Every social circle was accustomed to suspect one or other of its members; confidence, except as a word, did not exist. The master suspected his servants, neighbours suspected each other, government suspected them all, and all suspected government. Therefore, we should rather wonder at the new regime being able to obtain the degree of confidence it does enjoy, than lament its not obtaining more. So much must needs be forgotten in this respect, that I wish the nation had no memory for the past.

I now come to the last part of my letter—to the consideration of the best means of perfecting the constitution (should experience show the necessity of it) without interrupting the course of government. The best way to do so would be to insert in the constitution a clause by which the method of these improvements would be determined. As opinion is divided on this point, I shall make it the object of a special discussion. So far, France has been without a Constitution: not only is she now on the eve of establishing one, but of electing a legislative assembly. In this condition of things, it is more than ever necessary to distinguish between the situation of the nation, when delegating power to form a constitution, and its situation afterwards, when obliged to delegate its authority to a legislative body, organized in accordance with that constitution. The constitution itself, and the laws, are two things essentially distinct from the power of framing laws to meet special circumstances, in accordance with the principles of that constitution. If the primal authority to form a constitution were to come down as an inheritance to every legislative body in succession, it is clear there would no longer be such a thing as a constitution; and legislation having become arbitrary, as in England, it would without difficulty set up any government it liked. The present National Assembly, or to speak more exactly and to distinguish it from ordinary legislatures, the National Assembly of the Convention, has been obliged by stress of circumstance to take the place of a legislature, at the same time that it was framing a constitution. It was called upon to destroy, to construct, and to provide for immediate needs, whilst completing the new edifice. The mass of business was enormous and its attention was called for on every side at the same time. Without mentioning the special business which occupied the Assembly, its labours, in order to frame a constitution, come under two heads: what it has destroyed, what it has built up. With respect to the first head, it could not err; for the old edifice rested on an evil foundation, that is on usurped power.

After thus simplifying the question, it remains only to examine the second head, namely what has been set up in lieu of the old edifice.

The foundations, on which the new rests are undisputably good, and that alone is sufficient compensation for all the nation has suffered. But have the old materials been used too sparingly, or with too free a hand, in the new building? Do all the parts present an exact symmetry? Is this symmetry greater or less than experience shows to be necessary? These are points on which experience itself can alone pronounce. All the wisdom of the present moment must limit itself to putting no obstacles in the way of the improvement that time may bring.

Meanwhile the world is perfectly agreed on two points: the boldness of the undertaking, and the perseverance displayed in carrying it out. It is natural that zeal, together with the fear of a return of bad government, should have induced the men to whom the power of framing a constitution had been delegated, to establish permanently what is only relatively good, instead of risking a return of former evils. But since this final settlement prevents what is good from becoming better, the wisdom of such a measure is at least doubtful. The degree of enlightenment attained by a nation, or more generally by the world, is one of the points to be considered. Reason is beginning to throw such strong daylight upon all political questions that we should boldly and magnanimously repulse every sort of fear lest man should sink back in the black night of ignorance; and since, in all countries whatever, the interest of the greatest number makes for good rather than for evil, these different causes working together will bring the science of government to a degree of perfection of which we can, as yet, form no idea. We should not therefore hinder its progress. While it would not be wise in us to fetter ourselves, with respect to posterity it would be usurpation. Man has no authority over posterity—if he had, our rights would long since have been lost. Pride inclines us too much to cast our eyes toward the future, when considering this question; whereas, the best way of doing so, would be to reflect on the past, and see to what state we should be reduced, had our ancestors succeeded in putting upon us with any show of legitimacy, the yoke we are trying to impose upon our descendants. We should not have been able to do what we are doing at the present moment. It is not enough that man should have the enjoyment of his rights. The exercise of these rights must be secured to him by the principles of social order.

The best we can do for our children in the matter of government, is to bequeath to them freedom together with good examples. What is worthy of imitation will necessarily be imitated. The intrinsic merit of our institutions, and not the checks we might put upon posterity, will determine it to imitate these institutions. When a man bequeaths an inheritance, he does not impose upon his heirs the obligation to accept it; such a condition would be absolutely null and void. The inheritance will be accepted if it is worth anything, and refused if it be valueless. Can it be otherwise with respect to government? The rights of man are the rights of all generations. We should not let anxiety for their welfare carry us to the pitch of doubting their capacity. They might be wiser than we are. Let us not therefore be so blind as to usurp a power to which we have no right.

The means of amending itself is a very important part of the constitution. It is perhaps impossible to combine in one institution principles, opinions and practice, in such a way that time shall bring no alterations and show no drawbacks. The best way to obviate such an increase of these drawbacks as might discourage attempts at reform or provoke revolutions, is to provide means of correcting them as they arise. Such a constitution may be called a perpetual constitution, but no other deserves that name. The constitution of Pennsylvania, established 1776 by the convention of which Benjamin Franklin was president, contained a statute to the effect that at the end of seven years (a term of years supposed to extend beyond the duration of the war) a new convention should be elected to revise the constitution, to compare it with public opinion and to propose such additions or retrenchments as might be deemed useful or necessary. But the proposed amendments were to be the object of public attention for a considerable time before being either rejected or confirmed. This clause was altered in a subsequent convention, and the right of the nation to alter or perfect the constitution whenever she should deem it necessary was substituted for it.

For my part I think that a periodical exercise of that right is preferable to the above general declaration; for, at the same time that the periodic exercise of their power does not destroy the everlasting right, it provides frequent opportunities of using it and thus helps to keep government within the principles of the constitution.

The federal government, or that which embraces the whole of the United States, framed by the convention of 1787, under the Presidency of General Washington, to-day President of Congress, also contains a clause which admits of every future improvement; but to bring these about recourse must be had to the authority of the people, and to those very means by which the constitution itself was framed. Whilst establishing a good government, it is necessary to provide means to keep it so.

This precaution is in fact so necessary that a constitution would be incomplete without it. Experience having shown us how very difficult it is to carry out reforms, it is to the real advantage of posterity that we should devise beforehand means for their accomplishment.

A constitution which contains a clause giving facilities for its amendment, is protected against all opposition; for the hopes that may desire improvements, or what they look upon as such, will operate to bring them the means which the constitution furnishes and by doing so, will carry on its authority. This measure has another advantage. It defines precisely wherein consists the crime of high treason against the constitution itself—to seek to alter any part of it by other means than those it furnishes (means equally within reach of all citizens) is a clear definition of those terms and serves to impress, not merely on individuals, but on the holders of power also, a wholesome fear lest they should prove guilty of high treason. The authority to frame a constitution does not necessarily imply the authority to establish it: it must first be proposed and then approved before the power to establish it can exist. It is thus the matter has been settled in America. But, in spite of different methods of action having been followed in that country and in France, results in both have shown a good deal of similarity. The American Convention did not allow any part of its labours to appear until it was completed, when it published the whole and gave public opinion time to sanction it before putting it into execution. The French National Assembly, on the contrary, has published its work as it proceeded with it, beginning with the declaration of rights. Both methods therefore are alike in one particular, namely in appealing to the public approbation, and either system may be equally good.

It is not necessary, in order to add a precautionary clause, to examine whether the constitution is so perfect as to be under no need, or even susceptibility, of improvement. This clause extends to any alteration the constitution may require in the future, and to what we cannot even foresee, I do not believe that the men now living have produced every possible thought on government, and the Abbe Raynal has just proved to us that ancient errors have not yet died of old age.

When the general principles of a constitution are sound, the minor reforms which experience may demand are so easy to bring about that the nation will never be tempted to let abuses accumulate. It seems to me good policy to fix the date for the first revision of the constitution to seven years hence; for before those years are over, its advantages and defects will have had time to make themselves known. We should remark also that some of the most important articles of the constitution have not been the result of reflexion, but of special circumstances; such, for instance, is the decree on the right of peace and war. As, on the other hand, it is not to be supposed that the space of two years (the time which the Assembly took to frame the constitution) has been sufficient to produce every possible circumstance, it is well, on the supposition of necessary additions or amendments, that the first period of revision should not be deferred to a too distant date. It is not impossible—nay, it is even probable—that the whole system of government in Europe will change, that the ferocious use of war,—that truly barbarous cause of wretchedness, poverty and taxation,—will yield to pacific means of putting an end to quarrels among nations. Government is now being revolutionized from West to East by a movement more rapid than the impulse it formerly received from East to West. I wish the National Assembly may be bold enough to propose a Convention elected by the different peoples of Europe for the general welfare of that portion of the world. Freedom for ourselves is merely happiness: it becomes virtue when we seek to enable others to enjoy it.

A journey has prevented my finishing sooner this letter, begun more than five weeks ago. Since that time, circumstances have changed in France, owing to the flight and arrestation of Louis XVI. Every successive event incites man to reason. He proceeds from idea to idea, from thought to thought, without perceiving the immense progress he is making. Those who believe that France has reached the end of its political knowledge, will soon find themselves, not only mistaken, but left behind, unless they themselves advance at the same rate. Every day brings forth something new. The mind, after having fought kings as individuals, must look upon them as part of a system of government, and conclude that what is called monarchy is only a superstition and a political fraud, unworthy of an enlightened people. It is with monarchy as with all those things which depend on some slavish habit of mind.

Could we draw a circle round a man, and say to him: You cannot get out of this, for beyond is an abyss ready to swallow you up—he will remain there as long as the terror of the impression endures. But if, by a happy chance, he sets one foot outside the magic circle, the other will not be slow to follow.

Thomas Paine.

[1] This newly discovered document is given here though it was written after Part I. of Rights of Man; and it is given entire, though it anticipates, and nearly in the same language, one or two passages in Part II. of that work. The slight differences, and the connection in which the passages were originally written, are of historical interest. Although the exact date of the composition is not given, the internal evidence proves it to have been begun in April or May, 1791, Paine being then in Paris, and finished in July of the same year. A translation of Part I. of Rights of Man appeared in Paris in May, and it will be seen that he was already well advanced on Part II. to which he alludes as in preparation. This paper, plainly not written for publication, was elicited by questions put to Paine, probably by Condorcet, perhaps by Lafayette, concerning the Constitution just submitted by the National Assembly. In the following year it was translated by Condorcet, and printed in the Chronique du Mois, May, June, July, 1792. The original manuscript has not been discovered, and I am indebted to my friend Miss Fritsch for a careful translation of the work which has before never appeared in English, or in any collection of Paine’s Writings.—Editor. (Moncure Conway /pma)

[2] Lord means Master.—Author.

[3] Declaration of the Volunteers of Belfast.—Author.