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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  C


The idea that representation should reflect the prevailing material interests in a society is as old as the idea of the representation of the land, even though it may not have been customarily presented in such terms. The idea that the prevailing interests are those of commerce and industry and that representation should therefore be predominantly of those interests is as recent as the growth of commerce and industry in modern times. Along with this latter development came the doctrines of individualism.

Here it was that ideas of representation, originating in the same process of grandiose social change, split in twain. It was far easier to maintain an unchallengeable doctrine of representation when the man and his land were, for many legal purposes, indistinguishable. His characteristics were social, that is," artificial"; he had a status with relation to society that was more important than his petty being. But when the same man began moving about in the world, his social characteristics followed him along with whatever rights he may have possessed. What would be the political perquisites of his new species of property, much of it mobile? In relation to his old status, he was almost a carpetbagger. He had to fight the remnants of the old society to insure the safety of his transient belongings. When it came to representing himself before the changing society, in what capacity should he present himself: as the possessor of property or as an individual?

Ample justification was presented for both sides of the case. The safety and growth of property demanded that it he represented before all else. The philosophy of individualism which developed with the individual's new social and physical movement protected his property as well as his individuality against kings, nobles, and the Church. But it also gave him a solitary personality possessed of natural rights which would not be broken into either by the old ruling classes or by property discriminations. The dilemma, in so far as it concerned the suffrage, is expressed very well by Tom Paine: "When a broodmare shall fortunately produce a foal or a mule, that, by being worth the sum in question [the property qualification], shall convey to the owner the right of whom does the origin of such a right exist? Is it in the man, or in the mule?"[43]

Not unexpectedly, the two diverging ideas of representation, the individual theory and the property-interest theory, found their chief support respectively among those with little property and those with much. Yet the very confusion among historical ideas of representation indicates the error of relying solely on the ownership distinction for the construction of a theory of representation. For example, the most noticeable feature of the Puritan idea of representation is the prominent position of conscience. To ignore that in an attempt to reduce religion to an aspect of the struggle for property may produce an overwhelming generalization which denies unrealistically the fact of multiple social causation. It may sometimes be of greater utility in ordering the historical data to approach the basic division of modern representative theory with a psychological rather than an economic theory.

With these scruples in mind, we may consider those ideas of representation which came to be characteristic of the commercial classes in America. They are the most vocal ideas during the period of preparation for the revolution, during the revolution, and during the period of the drafting of the American Constitution.[44] They built at first, unwittingly, a state of mind in the people that could easily be turned against the ideas themselves after the war. Accordingly, after the war, they had to move on to a new synthesis, which took expression in the Federal Convention.[45] Just as there is little to be found in the ideas of the direct democrats and of the Puritan conservatives that required a permanent attachment to Britain for their preservation, so were the ideas of representation of the rising middle classes independent of a permanent connection with Britain.

Despite the fact that the House of Lords was still a power in the British government, that House received little attention in the colonial discussions. The colonists had conveniently forgotten what was unattainable in the mother country. Like the idea of the direct democrats, the commercialist theory was essentially individualistic, deriving from opposition to the actions of an uncontrollable mercantile state. The owners of the small and new industries of America similarly disliked interference with their search for markets and resented the subsidized competition of British manufacturers.[46]

Furthermore, the steady growth in the power and experience of provincial representative bodies gave a sense of self-sufficiency to the colonists.[47] There was already a "sacred ego" of the colony, a confidence in its ability to take care of itself, with or without the help of the British government. The Colonial legislatures already conceived of themselves as possessed of a positive legislative capacity removed from the ancient English idea of Parliament as an agency for wresting concessions from the Crown. They had learned well the lessons of the seventeenth century revolutions, as well as those to be obtained from the Bill of Rights. Legislatures, they had come to realize, could govern. The royal representatives met increasingly recalcitrant assemblies and sometimes protested, as did the governor of Virginia, against allegedly "mobish candidates" who

"...have so little shame, as publicly to declare that if, in Assembly, anything should be proposed which they judged might be disagreeable to their constituents, they would oppose it, though they knew in their conscience, it would be for the good of the country."[48]

With the expressive function of the British government diminished by the elements of distance and the growing differentiation between the species of Englishmen, the colonists might well feel that all that they wanted in the way of representation could be accomplished then and there in America. Certainly, on the administrative side, the home government had little to offer. The colonists objected not only to the transported criminals; they resented equally the administrative officials of the Crown who had received colonial jobs as political favors and who sought principally to accumulate enough wealth for an easy retirement in England.[49]

Political representation might possibly have been arranged in a form satisfactory to the colonists save for certain conditions. First, the predominance of the landed and aristocratic influence in the English Parliament was still too great for the bourgeois tastes of many colonists. Second, the corrupt system of representation, justified at home by a host of leaders, could not be rationalized to fit the explicit interests of the colonists. Third, geographic distance and difficulties of communication made any scheme of colonial representation seem impracticable even to sincere conciliators. Fourth, the American moneyed classes were in no position to compete for seats in the Commons with the great corporations, the aristocrats, and the English plutocracy; they lacked sufficient funds and sufficient experience in political manipulation.

From time to time, various plans to represent the colonies were proposed. None had a chance of success because too much lay at stake in the prevailing representative system in England. Few English leaders thought to modify that system simply to serve the needs of relatively unimportant colonies. But the plan of a person such as Adam Smith deserves consideration. The man who pictured best the economic viewpoint of the rising capitalist classes could well predict what might please them politically. Unlike Edmund Burke, whose idea on the representation of the colonies, given earlier, was clear but defeatist, and unlike Grenville and many others who thought of representation only as virtual representation, Adam Smith in his Essay on Colonies expresses his feeling that real representation could be achieved by allowing American constituencies to send members to Parliament in the manner of any English constituency.

It is not starling to discover that Smith identifies the necessity for representation with the possession of property. The accretion of wealth brings with it the accretion of representative power. Smith could do little about the state of representation then existing in England, but new representation of the colonies should be "in proportion to the produce of American taxation." He would even have the seat of the Empire moved to America if ever America should pay more taxes than the mother country.

Representation, then, is merely a device which can be used to register economic change. It is a shorthand for dealing with large numbers, a formula for reducing the great society to manipulative terms. Without the device of representation, Smith declared, the Roman Republic could not, and did not, survive the great increase in the number of its citizens.

The objective of British policy, he states, is to tax the American colonies with or without the consent of their assemblies. "Should the Parliament of Great ever fully established in the right of taxing the colonies, even independent of the consent of their own assemblies, the importance of those assemblies would from that moment be at an end, and with it, that of all the leading men of British America." Inasmuch as the matter had reached the stage of a general conspiracy against England, it was necessary to divide the colonies.

"If to each colony, which should detach itself from the general confederacy, Great Britain should allow such a number of representatives as suited the proportion of what it contributed to the public revenue of the empire, in consequence of its being subjected to the same taxes, and in compensation admitted to the same freedom of trade with its fellow subjects at home; the number of representatives to be augmented as the proportion of its contributions might afterwards augment; a new method of acquiring importance, a new and more dazzling object of ambition would be presented to the leading men of each colony...Almost every individual of the governing party in America, fills, at present, in his own fancy a station superior, not only to what he had ever filled before, but to what he had ever expected to fill; and unless some new object of ambition is presented either to him or to his leaders, if he has the ordinary spirit of a man, he will die in defense of that station."

There is, in these last lines, another side of Adam Smith, a side which, though it is working generally along the lines of economic determinism, nevertheless allows of the importance of the social prestige of political power. Smith begins by offering a purely economic solution to the problem of representation of colonial interest, but then he relies for the effectiveness of his scheme on the desires of men to attain status and prestige in government. To put the inconsistency a little more exactly, he gives representation to wealth alone and then seems to assume that the representatives chosen by the newly recognized interests will not necessarily be interested in wealth, but primarily in the prestige of their new positions. Unfortunately, his treatment of representation, confined to six pages of the Essay (76-81), is too limited to pursue the mater to a final conclusion. His primary emphasis on wealth, however, is quite clear.

What Adam Smith had expressed was, in its fundamentals, the position on representation held by American economic liberals. The growing difference between the populists and the owning groups in the colonies was overreached and overshadowed by the growing indifference between the American owning groups and the British government. Perhaps the most piercing of all resistance slogans was "No taxation without representation," or as Patrick Henry declared it," Taxation without representation is tyranny."[50] The historical justification of the slogan was admitted to a large extent by the partisans on both sides of the ocean. The medieval version was Quod omnes tangit, ab omnibus approbetur (Whatever affects all ought to be approved by all). It is a doctrine of consent which was first used in English history by the clergy in defending their freedom from arbitrary assessments of the Crown.[51] It is a means of achieving representation by erecting a theoretical barrier to nonconforming acts. It means just what Locke stated in his Second Essay on Government, except that it is now given a specific situation in which to work.

Monopolies, unfair competition, repressive legislation - all such conditions were burdening the colonial middle classes, but the issue of taxation was the one on which the sharpest attention could be fixed and for which historical evidence would be most favorable to the colonies. The basic issue came from the conviction of the colonists that their occupations and their property should be controlled by themselves only. James Otis, in his pamphlet The Rights of the British Colonies Asserted and Proved, wrote that no supreme power such as Parliament could "take from any man any part of his property, without his consent in person, or by representation." [52]

His view and that of most commercialist theory are similar in two respects: first, representation is almost purely a matter of the specific protection and encouragement of property, with no attempt to universalize the theory into representation of the whole people or of the whole nation. And second, representation is a direct relationship of principal and agent, forbidding any mumbo-jumbo of "independence" and "judgment." Open espousal of the first consideration was fully permissible, inasmuch as the opposing side on the issue had now become an external foe, and American Tories, it so happened, were also likely to be influenced by those same arguments openly expressed.

Regarding the second consideration, we should point out how the demand for direct representation by a group is again working toward populist ends with which it is hardly in sympathy. Like the Puritan's covenant theory, the commercial class's delegate theory would always be in danger of being hoist by its own petard. It remained for the Constitutional Convention to rescue the colonial commercial class from its dilemma by redefining representation away from the delegate theory toward a more complex balance-of-interests theory.

The English theory of representation which the colonists most violently opposed was that of virtual representation, which has been described in the previous chapter. The English opponents of the colonial aspirations for self-governments and self-taxation admitted in theory that all British subjects should be represented in Parliament, or in the Commons if they were not nobles. But representation, they declared, was not a matter of elections, suffrage, or even geography. It was simply a matter of being English. George Grenville, whose bureaucratic efficiency would have been a blessing to English administration under ordinary conditions, would not compromise his directives to appease the colonies. Instead, he insisted that they were already well-represented:

"All British subjects... are virtually represented in Parliament; for every member of Parliament sits in the House, not as a representative of his own constituents, but as one of that august Assembly by which all the Commons of England are represented... The colonies and all British subjects whatever, have an equal share in the general representation of the Commons of Great Britain, and are bound by the consent of the majority of that House, whether their own particular representatives consented to or opposed the measures there taken, or whether they had or had not particular representatives there."[53]

To an attack on this theory Daniel Dulany devoted a notable treatise called "Considerations on the Propriety of Imposing Taxes in the British Colonies for the Purpose of Raising Revenue by Act of Parliament" (1765).[54] The treatise affords an opportunity to see how the commercial interests might meet different problems of representation. Dulany does not, first of all, insist on the legal enforceability of instructions, but he leaves the path clear for an insistence on instructions under real circumstances.

"It would, now, be an unfashionable Doctrine, whatever the ancient Opinion might be, to affirm that the Constituent can bind his Representative by Instructions; but though the obligatory Force of these Instructions is not insisted upon, yet their persuasive Influence, in most Cases may be; for a Representative, who should act against the explicit Recommendations of his Constituents, would most deservedly forfeit their Regard and all Pretension to their future Confidence." His view of instructions is thus somewhat stronger than that of Sidney, and almost opposed to that of Burke.

There were those who claimed that the colonists had no right of representation without residing in England, but Dulany points out that the charters of the colonies gave settlers the full rights of English subjects. Such rights, he insists, included the common-law right of exemption from all taxation imposed without the colonists' consent. There were others who claimed that the charters emanated from the royal prerogative and the colonies were therefore only creatures of the King, to be taxed at will. But Dulany states that the charter was a contract with the Crown, entered upon only with the proviso that "their privileges as English Subjects, should be effectually secured to Themselves, and transmitted to their Posterity."

He asserts that he has searched in many places for a proper definition of virtual representation and has found the proponents of the idea most ambiguous. He finally decides on one he believes more specific than most:

"All landed property, not Freehold, and all Monied Property, are excluded. The Merchants of London, the Proprietors of the Public Funds, the inhabitants of Leeds, Halifax, Birmingham, and Manchester, and that great Corporation of the East India Company, none of them chuse their Representatives, and the Colonies being exactly in their Situation, are represented in the Same Manner."

In reply to this description of the representative condition of the colonies, Dulany points out that the interests of the English disfranchised groups are the same as those of the enfranchised, who are their neighbors, with similar interests and similar properties, That is not the case with the colonies.

"The Electors, who are inseparably connected in their Interests with the Non-Electors, may be justly deemed to be the Representatives of the Non-Electors, at the same time They exercise their personal privilege in their Right of Election, and the Members chosen, therefore, the Representatives of both. This is the only rational explanation of the Expression, virtual representation."

At this juncture, a critic might stop for a moment to examine an implied contradiction. Has Dulany stated a preference for "rational" virtual representation or merely stated that a mistaken policy has a logic of its own which here is being violated? If the first, then he must revise his doctrine of instructions. However, such a revision was out of keeping with the immediate requirement of the colonial commercial class for representation they could control. It is more likely that Dulany foresaw more than he could presently admit. Virtual representation could be not only a rational thing but an advantageous condition. Reform of representation by giving the vote to greater numbers of people is not necessary. Representation may be simply a sampling of the interests of the community. It matters not at all if a large part of the population is without direct controls over the representative system, so long as other parts of the population, with interests and desires similar to their own, have the power to choose and direct representatives.[55] Virtual representation of that sort would be harmless and legal, he feels.

The immediate future of commercial theories of representation lies in these passages. Temporarily, they must retain the idea of a close delegate relationship between representative and constituent. But as soon as the foreign problem is solved, there must occur a definition of the interests of the country, and these interests must be represented with little reference to individualistic theories of representation. When the revolution established the idea of non-virtual representation in America, commercial theorists had to devise new arrangements for accomplishing the fact of virtual representation.

Dulany goes on to pursue other elements in the arguments of the opponents of colonial representation. Some of these opponents claimed that the colonies were no more than simple corporations, and that the legal powers granted them did not extend beyond those of, for example, the London Common Council. To this attempt to restrict the scope within which colonial representation may operate, Dulany objects strenuously:

"The Colonies have a compleat and adequate legislative Authority, and are not only represented in their Assemblies, but in no other manner.... The power described in the Provincial Charters is to make Laws, and in the exercise of that Power, the Colonies are bounded by no other Limitations than what results from their Subordination to and Dependence upon Great Britain."

Such subordination does not include taxation without representation, although it does include observance and acquiescence to the regulations on foreign trade which Parliament may see fit to impose.[56]

To the ideas of Dulany must be added those of John Adams, who, during this period, in common with other political leaders, went to extraordinary lengths to prove the British constitution a completely democratic document. Adams asserted in 1776 that the British government rested on natural and Divine law and that "All men are born equal."[57] He pictured representation in this early revolutionary phase as a result of the inconvenience of operating the government en masse. "The people choose attorneys to vote for them in the great council of the nation, reserving always the fundamentals of the government, reserving also a right to give their attorneys instructions how to vote, and a right at certain, stated intervals of choosing a-new; discarding an old attorney and choosing a wiser and better."

His ideas in this earlier period, in contrast to his later more carefully stated political theory, were a mixture of populism and aristocracy.[58] Still, at this early date, it is significant that, although he held to instructions, he did not advocate universal suffrage but, rather, advocated a property qualification. Although he wanted annual elections, he also wanted bicameralism. He recognized that representation was to be found in all political office - in the juries, the judges, the King, and the senate; he felt that such representation could be controlled better with neither excessive popular dictation nor excessive arbitrariness of authorities. Never very much of a direct democrat - whatever his view on instructions, his rationalist bias for equal election districts, and his belief that representation requires "an exact portrait in miniature of the people at large" -- he saw more clearly than others of his class the advantage of ordering representation according to interests in the very beginning; otherwise, the forces of populism would inhabit the representative structure first, and would have to be evicted later by the well-to-do.

His theory of bicameralism - two chambers reflecting the two major divisions of society into rich and poor, each checking the other - contrasted sharply with the direct democratic theory. The latter considered representation as unitary, derived from collecting the opinions of the whole constituent body as individuals and reflecting them impartially in the government, this being the trend in America until now. Adams' theory introduced a classification at the base of the constituency; structures ought then to be provided to perpetuate the classification in the government. The origins of the collective and unitary viewpoint are to be found in medieval representation in England, [59] but they are especially apparent in the Levellers, the English Radicals, and the prevalent democratic and commercial thought during the Revolution in America. The Adams idea is suggested by the traditional aristocratic institutions of the English government, and by certain hints in the ideas of representation possessed by men like Burke, Montesquieu, and Harrington; it is reinforced by the reaction to the Revolutionary appeals to natural rights and individualism. It was too uncompromising; aristocratic tendencies in America had to work more deviously. Bicameralism would succeed, but rich and poor would not sit apart

Before the end of the agitation over representation had been reached, the demand for representation of the Colonies was subdued by increasingly stronger denial that any scheme of representation would be feasible. In September of 1765 the Massachusetts House of Representatives instructed its delegates to the Stamp Act Congress that they were not to urge any plan of representing the colonies, inasmuch as any proposals would be attended by great difficulties. The initiative had meanwhile been seized by the southern colonies of Virginia and South Carolina. At the same Congress, a resolution was presented (by South Carolina, most probably) to the effect that the people of the colonies were not and could not be represented in the House of Commons. This resolution was adopted.[60]

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