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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part B  


Already we have perceived indications of three kinds of ideas of representation. There is, first, the idea of strict, legal agency which prevailed with respect to Parliament until the fifteenth century in England. Second, there is the idea of virtual representation, which probably had its inception in the idea of the growth of the state as a form of corporation and which, if not restricted, can serve as well to justify despotism as to characterize an idealistic performance of duty. There is third, the idea of representation as fiction without substance, a concealment of the raw facts of the elite control. Each moves down the years with its impedimenta of strictures and claims.

Of the three general conceptions of representation, that which had greatest stress and development in the colonies proceeded from the idea of strict delegation of powers. Its first complete presentation in public discussion occurred during the Commonwealth period, when its chief proponents were the Levellers, one of the groups of radical Puritans. Although prominent in English life for only a short period, and drawn principally from the rank and file of the New Model Army, the Levellers left a lasting mark on English and American Political theory. They were feared and hated by the Presbyterian Parliament, which possessed power through their force of arms, for their fierce, religious democracy did not stop short of castigating King, parliament, or army leaders. The time came when Cromwell, increasingly intolerant of their demands and pressed by a Parliament which more and more desired the security of monarchy against "anarchists," used martial discipline against their activities in the army, but they had already found time and opportunity to state their case before the English people. The last years of the Commonwealth and the Dictatorship were not of their making, nor was the Restoration friendly toward their ideas; and in England it was not until another century passed that the Radicals took up Leveller ideas of representation. However, their influence was felt by Harrington, Sidney, and Locke. Most strikingly, their ideas found a home in certain of the American colonies where political leaders such as William Penn and Roger William gave them voice.

The Levellers had no faith in Kings or Lords, nor significantly, in the House of Commons as then constituted. In the Leveller Manifestoes, collected by Don M. Wolfe, this and many of the points to follow are illustrated. The faith of the Levellers lay in the people by the laws of reason and nature. "In nature and reason, there is none above, or over another, against mutual consent and agreement."[24] They believed that man is rational and that the law of reason is inviolable by representative of any sort.[25] The power of Parliament is consequently null against the will of the people.[26]

Therefore, the only true representation is a relationship of delegation, tight control, and ready recall. "We are your Principals and you our agents," asserts Lilburne to the Presbyterian Parliament which is holding him prisoner in the Tower.

"Wee are well assured, yet cannot forget, that the cause of our choosing you to be Parliament-men, was to deliver us from all kind of Bondage, and to preserve the Commonwealth in Peace and Happinesse: For effecting whereof, we possessed you with the same Power that was in our selves, to have done the same; For we might justly have done it our selves without you, if we had thought it convenient; choosing you (as Persons whom wee thought fitly quallified, and Faithfull), for avoiding some inconveniences." [27]

If this statement is compared with that of Sir Thomas Smith cited previously, it is apparent that the relation between representatives and represented was construed by Lilburne in a manner more precise, although the relation, by its very precision, lacks realism. He believed, however, that the emphasis on agency must be made in order to prevent usurpation of power. For the first time, English political thinkers were feeling the biting edge of Parliamentary oligarchy, and they felt that devices must be made into law if the true representation of the people was to be ensured.

Property was declared to be a natural right, but this was emphasized to defend themselves from accusations of "anarchism" and "lawlessness" and to prevent their being associated with the Diggers, a communistic sect, rather than to establish their vested interests. In the Petition of September II, 1648, the Levellers demanded of the Commons at one and the same time "That you would bound yourselves and all future Parliaments from abolishing Propriety, levelling mens Estates, or making all things common," and "That you would have laid open all late Inclosures of Fens, and other Commons, or have enclosed them only or chiefly to the benefit of the poor.[28]" Demands against monopoly, excises, imprisonment for debt, and so forth, evidence that the Levellers were truly the voice of economic liberalism, of small enterprise and the small farmer. Walwyn wrote that he was not a communist and "that he wished only those reforms that would allow every one who labored in so plentiful a land as England to earn a comfortable subsistence."[29]

"By naturall birth," wrote Overton in "An Arrow Against All Tyrants," all men are equally and alike borne to like propriety, liberty and freedom... every man by nature being a King, Priest and Prophet in his own natural circuits and compasses."[30]

Out of the laws of nature come the rationality of man and the social compact, made by equal men who are socially inclined and well-disposed towards one another.[31] Since reason is the true quality of men, no other qualification for the vote is necessary. The franchise becomes for the first time a natural right, rather than a right attached to land or to property. The demand for universal manhood suffrage, voiced in the First Agreement of the People, and defended with vigor by Gainsborough in the debates with Breton and Cromwell, was modified to some extent in the Agreement of 1648 by requirement of occupational independency. Probably the later modifications followed attacks against the Levellers for being "subversive" of the social order. But again in the third Agreement of 1649 we find that Parliament is to be chief authority of England and is to consist of four hundred representatives "in the choice of whom (according to natural right) all men of the age of one and twenty years and upwards (not being servants, or receiving alms, or having served the late King in Arms or voluntary Contributions) shall have their voices."[32]

The second Agreement contains a detailed mathematical subdivision of the nation for the purposes of representation, and delegates are to be chosen on the basis of population.[33]

No representative holding a paid office of the state can be eligible to retain his seat, nor may "Lawyers, those vermin and caterpillars ... the chief bane of this poor Nation," practice law while sitting as delegates.[34]

Elections are to be efficiently administered to avoid the corrupt practices which had disfranchised and discommoded so many electors in the past and made elections in most cases a farce. Details of administration were prescribed.

Parties are considered as factions fighting over spoils, and there is no conception of the party system which later grew up. Such factionalism is to be avoided by forbidding office-holders to be Members of Parliament. The management of the affairs of state are to be placed in the hands of a "Council of State" which will hold office for the duration of the single parliament. The House of Lords, of course, is nowhere provided for. No town is to have a public official imposed on it, but will have freedom to elect all of 'its administrative officials.[35]

The third Agreement provides for annual elections of parliament and annual elections of all local officials.[36] Nor may a member of parliament succeed himself. In fact, a type of recall is recommended whereby elected County Commissioners may hear an impeachment and bring representatives to trial for excesses of power.[37] Justices of the peace are to be elected and Parliament is not to constitute a court. Furthermore, in view of the Levellers' experience as soldiers, officers are to be elected by the voters of the localities raising the troops.[38] Parish ministers, too, are to be popularly elected, [39] and, in at least one pamphlet, complete toleration of Dissenters and Papists alike was demanded, a concession that neither Milton nor the other Independent leaders would have admitted.[40]

It is obvious that the Levellers had no intention of trusting much power to the courts. Their hatred of lawyers and of the complicated ritual of the law is evident in many places. They removed the creation of the courts from Parliament, which in itself was enough to diminish the prestige of the courts, and then proceeded to lay down a number of limitations on the supreme authority of Parliament itself.[41] Many of these limitations were aimed at specific abuses of the Presbyterian Parliament, that "Conspiracy... of lawless, unlimited and unbounded men..."[42]

Unhappily for the cause of the Levellers, they were an artificial class which could not organize on any permanent basis outside the ranks of the army. The enclosures had already destroyed a large number of the yeomen farmers who might have sustained the reformers. The "sturdy beggars," whose interests concerned the Levellers too, were in no state to furnish support to a political movement. Thus, when the Levellers were finally repressed within the army itself, their proposals became diffused and cloudy, no longer representing the interests of a particular class. We find their ideas in Harrington, Sidney, and Locke, but greatly modified. For the next clear statement of them, we must wait for some of the American revolutionaries, the late eighteenth-century English Radicals, and the French Revolution. We shall refer to their general idea of democracy as "direct democracy," and their idea of representation as "direct representation," keeping in mind that direct democrats typically believe that representation is only a device "for avoiding some inconveniences."

James Harrington resembles the Levellers in so far as he advocated in his Oceana (1656) uniform suffrage and apportionment laws, the use of government power to break down the monopoly of the land by a few, rotation in office, and election by secret ballot, to mention a few Leveller principles. On the other hand, his division of the power in society into the forces of property and intellect made him important to those American Federalists who were seeking to understand the position of property in the state. They seem no to have been convinced, however, that his election provisions were quite the way to perpetuate the pre-eminence of property. Furthermore, Harrington was still thinking in medieval terms, of a society of established, albeit equal, orders, with the equality in land as the basis for the "balance" which was to support the state.[44] His city governments were to be based on gilds.[45]

The gild idea, like the landed-interest idea, was destined to fail because of the Industrial Revolution. The late medieval gilds in England were never all-powerful in local affairs. They were tight unions of tradesmen and artisans with powers to set wages, prices, and periods of apprenticeship. In a few cases certain gilds were given representation on town councils or given judicial authority to enforce trade customs. But they were always subordinate to the laws of the kingdom and the ordinances of the towns, and generally, their political power came from their character as pressure groups. In Harrington's time, they did not offer a real threat to unitary authority, as they had been declining in influence for a century. Changed economic conditions rather than the government (which favored gilds) rendered them impotent.[46]

Locke dropped Harrington's medieval orders and worked instead on the imposing new concept of the majority principle. If he was wholly or in large part responsible for the Constitutions of the Carolinas (and most agree that he was), his resemblance to Harrington is enhanced, for the estates were prominent in the projected representative system. The constitutions seem to reflect an idea of a religiously tolerant but late-feudal society, with a predisposition to favor landed wealth.[47]

But Locke's Second Essay on Civil Government (1689) was concerned principally with the right of revolution (already accomplished) and the right of property (never to be assailed). Both are in the nature of the original human condition and the social contract which binds men together. Having established that no sovereignty is superior to those two principles of government, Locke contributed a great deal to the doctrine of consent and to the security of the propertied classes, but little to the political process under which ideas of representation are formulated. For to remove from political debate those two issues is to cut the heart out of the controversy over representation to an extent almost rivaling the work of Hobbes. Representation then consists of the maintenance of government in accord with the fundamentals of human nature -- consent (to be tested only by revolution) and property (to be maintained by parliamentarism). The representative is no more than the executor of the power of the collectivity. No more than the "joint power of every member of the society" is given up to the legislator.[49]

But there is a different Locke and it is well that he did not treat representation in detail. His theory of social contract would involve him in difficulties, for it implies a competency to the majority which cannot be mechanically subordinated to his precious values.[50] Not only can Locke's majority be construed to have a power and scope far beyond that ordinarily ascribed to it, but other ideas of representation, Leveller in spirit, are manifest. Thus he sternly inhibits the arbitrary executive practice of delaying or preventing the assemblage of the legislature according to its whim. Such executive prerogative is a convenience, not an evidence of executive superiority over the legislature. Although it would be preferable for the assembly to meet regularly at intervals neither too short not too long, the occasional need for emergency prorogations might justify assignment of the calling to the executive.[51]

Locke proposes another function of the executive, one which the English legislature found incompatible with its privileges, as did the later American legislature until the Congressional Apportionment Act of 1930. In the face of a lamentable inequality of representation and in the absence of legislative action to remedy the condition, the executive may disregard custom in favor of reason and decree a just representation. For "whatsoever shall be done manifestly for the good of the people, and establishing the government upon its true foundations is, and always will be, just prerogative."[52]

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