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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  A


The colonial system of elections and suffrage would probably be more familiar to an Englishman of the fifteenth century than to one of the time of colonial settlement.[4] We have mentioned before the flexibility of the ancient English representative system in the House of Commons - its ability to work into existing social and economic patterns, and its service to the nation both when the yeomanry was powerful and after the enclosures and international trade had broken down the yeoman influence. The institutions of elections and the conditions of suffrage were taken over in the early colonies largely from the system which theoretically prevailed in England.

Conditions in the colonies - the absence of nobility, general freeholding, and a small population - were such that the ancient English structures could be implemented. Formal representation received a good deal of the substance it had in England before the great period of political and economic change beginning in the fifteenth century. That is to say that the New England burgess was more often a burgess than an officer of a large closed corporation. A yeoman, a freeholder, was really a small independent farmer who worked his own land and was not under continual pressure from the great landlords. Little wonder, therefore, that John Locke's scheme of representation in his "Constitution for the Carolinas" failed. He provided for a parliament to be composed of the large landed proprietors or their proxies, the nobility, and the freeholders through their biennially elected representatives. All these individuals were to sit in unicameral assembly and to possess one vote each. But under conditions in Carolina the propagation of the nobility was too difficult, and the freeholders would soon have dominated the assembly completely through force of numbers. Therefore, although Locke thought his scheme represented the new conditions following the Restoration, and the Carolina authorities were pressed for its enactment and use from 1670 to 1698, it was unenforced and bypassed. [5]

On the whole, however, the colonial representative systems were modeled after the English law. A typical case of the transfer of English election law to the new areas is the New York Charter of Liberties and Privileges of 1683 which states "that every freeholder within this provence, and every freeman in any corporation shall have his free choice and vote in the electing of representative, without any manner of constraint or imposition, and that in all elections the Majority of voices shall carry it, and by freeholders is understood every one who is so understood according to the Laws of England."[6] Since the charters that formed a basis for most colonization gave the colonists the full rights of English subjects, a transference of qualifications was to be expected.

Still, it is possible to comment on certain practices which were not customary in England, even though legal. In Maryland, for example, under the law of 1638, the freemen who elected deputies or burgesses were required "to agree upon a Certain Contribution for the defraying of the Charges which Such Burgesses Shall Sustain by the repairing to the assembly."[7] Residence, a qualification for suffrage and office that had atrophied in English usage, was generally insisted upon in the colonies.[8] Elections for the provincial assemblies were generally annual.[9] A large number of offices, including sometimes the chief executive, were elective. In Massachusetts, the governor was elected for a time after 1632 by the whole body of freemen from among the eighteen elective assistants or magistrates.[10]

Massachusetts also accepted the theory and practice of instructions to representatives. Boston, in 1661, instructed its delegates to the assembly, and there were many similar cases before the Constitution of 1780 reaffirmed the right of the electors to instruct their delegates. Capable and aggressive leaders did not regard the practice as humiliating, and men like John Adams and Samuel Adams defended instructions.[11] A final modification of English Practice may be included. In New Jersey, under the Royal government, any member of the assembly who received an office profit from the crown or the Governor vacated his seat.[12]

In the realm of suffrage requirements, there were early modifications of the English law. While in England the 40 shilling freehold law of 1430 was continuously in effect, in the colonies property was not required as a qualification for county electors except perhaps in Connecticut.[13] A letter from Charles II in 1662 seems to have been the basis for increasing the pressure on the colonies to subject their residents to the same qualifications of real property as those existing in England. Before the end of the seventeenth century, most of the colonies had a land requirement, generally the 40 shilling freehold, which had some degree of meaning.[14]

In some colonies, the country franchise was extended not only to freeholders but also to those possessing personal property of a moderate value.[15] This significant inroad into the control of representation by the landed interests was not effected without diverse protests. At roughly the same time that Swift was defending the landed interests in Parliamentary representation, a group of former proprietors of New Jersey, in the following words, protested an act of the Governor allowing a money qualification for electors of representatives to the assembly:

"For certainly those persons are fittest to be intrusted with choosing and being legislators who have a fixed valuable and permanent interest in Lands, and must stand and fall with their country; but money is an uncertain interest and if it be admitted a qualification equal to Land, an assembly may be packed of Strangers and Beggars who will have little regard to the Good of the Country from whence they can remove at Pleasure and may oppress the landed Man with heavy taxes." [16]

The objectionable qualification remained, however.

If we confine ourselves, therefore, to those measures which differed in emphasis from English practice, we would still be able to find them of some significance. Residence requirements, constituency payments, frequent elections, elections of many officers, the doctrine of instructions, the banning of place-holding by representatives, and the decline in the prestige of the real-property qualification for the vote are all manifestations of what we earlier called the "direct democracy" idea. These practices all tended to reduce the representatives to the delegate status, forcing the public servant to voice accurately and under pain of imminent defeat at the polls the sentiment of the majority of the constituency. And along with the individualistic delegate theory went the loosening of suffrage requirements generally and the raising of the value of personal in relation to real property.

New practices peculiar to the American colonies were also developing, and these again were in the direction of the individualist, atomistic ideas of rational democracy. They were the use of the ballot in contrast to viva voce voting, the practice of proxy or absentee voting, a more formalized system of nominating candidates for office, and the beginnings of an initiative and referendum which were part of or additional to the practice of direct legislation in the town meting.[17] Perhaps there might also be included certain laws providing for compulsory voting. They were found in Virginia, Maryland, Massachusetts, Delaware, Rhode Island, and Plymouth, and were probably related to transportation hardships.

The origins of the ballot in America are somewhat obscure; the two principal theories hold, first, that it was a device already practiced and known in corporation procedure and, second, that it was a procedure that the Pilgrims picked up during their decade in Holland before immigrating to America.[18] It originated in American usage at Salem in 1629. On the other hand, the appearance of the ballot in the Jerseys and Pennsylvania is probably ascribable to Harrington's Oceana, in which he set up an ideal system of balloting, using balls. Delaware followed the Pennsylvania system.

Voting by proxy (a violation of charter provisions requiring elections by Freemen in general assembly) is significant for the theory of representation in that it shows the early development among New England governments of the inconveniences of direct government. Thus, in 1635-6, the Massachusetts General Court ordered that certain towns should possess "Libertie to stay soe many of their freemen att home for the safety of their towne as they judge needful, and that said freemen that are appoyncted by the towne to stay att home shall have liberty for this court to send voices by pxy."[19] The crowded conditions of the general meetings and the need to continue the necessary farm work are given elsewhere as reasons for similar laws.[20]

In Connecticut as early as 1638 and in Massachusetts as early as 1631, there were beginnings of a system of nominations beyond the mere submission of names of candidates at election time. The former colony required towns to nominate candidates for the magistracy, and the General Court was empowered to add other names. Thus, although the method was changed several times, in essence a second election for nominations was set up. Massachusetts allowed each voter to vote for his candidate to the assistantships, and those candidates with the highest total vote were declared nominated and eligible for election at the election Court. [[21]

Rhode Island, very early in its history, began the practice of the initiative and referendum. After the Charter of 1644 was granted to Providence and the other towns of Rhode Island, the towns met in convention (1647), with each town represented by a committee. These committees could exercise the power of freemen on every matter except that of election of officers. If a town wished a law of a general nature, it informed the other towns of its proposal and then introduced the law at the following session of the General Court. If the bill were approved by the majority of town deputies, it became a temporary law, but its final sanction depended on its ratification by the whole electorate gathered in general assembly.

In addition, the general court could propose a law which, when sent back to the towns for popular ratification, and after such ratification was reported back to the general court with a favorable majority from the towns, would stand as a law until the next general assembly. Later changes in the laws of initiative and referendum provided that an act passed by the general court of deputies should go to the towns and have the force of law unless within a specified time a majority of the voters in a majority of the towns voted against it. Finally, in 1660, a majority of inhabitants, rather than a majority of towns, was sufficient to nullify a law.[22]

Thus, both in the treatment tendered the transported English representative devices and in the novelties introduced into their representative system by the colonists themselves, we have a trend out of the English organic theories, out of the English theory of virtual representation, towards a synthesis more akin to that of the Levellers and the later English Radicals. It has often been the fashion to emphasize the theocratic sides of Puritanism in New England. But these concrete tendencies towards Direct Democracy owe a debt to the individualistic connotations of Puritanism as well as to the conditions of colonial life. As Tawney declared: "There was in Puritanism an element which was conservative and traditionalist, and an element which was revolutionary: a collectivism which grasped at an iron discipline, and an individualism which spurned the savorless mess of human ordinances; a sober prudence which would garner the fruits of this world, and a divine recklessness which would make all things new."[23]

Men like Roger Williams were closely akin to this "divine recklessness." A radical Independent turned Leveller, Williams brought to the colonies a full-blown idea of direct democracy formed of the programs which Lilburne and Overton were espousing in England.[24] The social contract was to him not a historical and irrevocable deed as with Burke, nor a rare resort as with Locke or Hobbes, but a continual, essential element in all government. Governments are but "Derivatives and Agents immediately derived and employed as eyes and hands and instruments."[25] The supreme power lies at the "Bar of the People or Common-Weal, where all may personally meet, as in some Commonweales of small number, or in greater by their Representatives." The state may not diminish the natural power and freedom of the people. Nor may the state enter the souls of men to question and persecute their motives, for the civil magistrate has power over only the bodies and goods of men.[26] And just as Lilburne delivered attacks from his Tower prison against the Presbyterian Parliament, so also did Roger Williams, banished to Rhode Island, declaim against all attempts to limit "the natural freedom" of the people.

Williams was more fortunate than Lilburne, however, for he could work out his theories of the relations between rulers and ruled in his newly chartered experiment, Rhode Island. There, the elected officials of the government swore an oath engaging themselves to their position while those who elected them "contracted" to obey them: "We the inhabitants of the Province of Providence Plantations being here orderly met, and having by free vote chosen you to public office and officers for the true administration of justice and the execution thereof throughout the whole Colonie, do hereby engage ourselves to the utmost of our power to support and uphold you in your faithful performance thereof."[27] Thus, in every election the social contract was renewed, and neither religious nor property requirement prevented men from engaging in the contract.

To the direct democratic tendencies which were found in New England must be added the demands for more equal representation by the settlers of the growing frontier regions.[28] These regions were becoming more and more differentiated from the coastal territories, which were dominated to a large extent by the landed and commercial groups. The frontier now felt the pressures of the Indians, the British and French traders, and also the discriminations of the large planters against the small. Their needs were tied up with their lack of representation. In 1764, for example, the people of the western counties of Pennsylvania petitioned for solution of problems which had beset them for generations, protesting against the "appeasement" of the Indians and connecting that mistaken policy with the disproportionate representation of the eastern counties over the western.[29]

This discrimination brought the beginnings of the populism of the frontier. In the west the idea of the natural rights of man followed the isolated, mobile, and often government-less pioneers. The idea of democracy as a close personal relationship, unhampered by traditional or legal structures, between a man and the officials who govern, spread over the new lands, and its influence on ideas of representation increased steadily throughout the nineteenth century.

Representation as conceived by the merchants, large planters, and shippers of the eastern seaboard was only superficially akin in practice to the idea possessed by the new western regions. Inequalities of the franchise and failure to redistrict were defended by assemblies which represented the eastern counties; at the same time those very assemblies were most truculent in demanding that there be no taxation without representation in the British Empire, that popular consent be the basis of all government, and that all men be regarded as created free and equal.

Colonial ideas of representation in the eighteenth century were thus working on two levels: first, the level of Colony against England; and second, the level of the assembly as then constructed versus the unrepresented elements of the population. Fortunately for the success of the Revolution, the face value of the slogans and appeals was acceptable to both the propertied and the populist groups. But when the war was over, a difference soon became apparent between those who shouted most loudly against "taxation without representation" and those who claimed most heartily the "natural rights of man."[30]

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