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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  C


The propagandists of the American Revolution fall sharply into the class of those who saw in the Revolution an assertion of the rights of individuals against government and the class that saw in the Revolution a limited revolution centered around the principles of economic liberalism.[60] The first class developed its ideas of representation along the lines of pure democracy, with an extension of complete political liberty and political control to the vast number of the people.

Among those who may be considered its advocates, in whole or part, during the Constitutional Period, were Benjamin Franklin, Samuel Adams, Thomas Paine, Thomas Jefferson, and James Wilson. They carry the direct representation idea from the colonies to its triumph in the early nineteenth century.

Benjamin Franklin can hardly be said to have possessed a consistent theory of representation, though he might be called the father of integrated federalism. In his Albany Plan of colonial union (1754), he argued radically that colonial representation should be "proportional to the contribution of wealth and other goods to the common cause." [61] In 1787, still the radical, he urged that representation be based on universal suffrage of freemen, excluding "minors, servants, and others, who are liable to undue influence."

In the Convention at Philadelphia, he expressed his admiration of the role which the non-owning classes had played during the war; he felt they were entitled to vote. He pointed out that American seamen possessed a morale superior to that of the British sailors because the common people were better treated in America. He made the telling historical argument that after the British Parliament had passed a law restricting the right of suffrage in the shires to 40-shilling freeholders, one of its first acts was a law which authorized the justices to fix the price of labor and therefore to compel any non-elector or small freeholder to labor at an unjust price for the larger freeholder.[62]

His approach to political problems was rarely dogmatic, and his attitude toward society was that of a man of industry, rationality, efficiency, and resourcefulness. His ingenuity, not only mechanical but political as well, produced novelties such as the unicameral legislature of Pennsylvania.[64] Franklin's cosmopolitanism is well known. He was a world emissary of American, homespun egalitarianism. With these experiences, he could not delude himself into believing that the representative was an instructed agent.

Franklin would have preferred a better-organized British Empire to a breaking-up of sovereignty into fragments. His opposition to the Empire was a practical one: he believed that the British government was too corrupt to bridge the gap which was inevitably opening up. His own experience as a colonial agent made him fully aware of the large responsibilities devolving upon one who was supposed to be the mere mouthpiece of colonial interests in London. "It would be better," he declared," if every member of Congress ... were to consider himself rather as a representative of the whole, than as the Agent for the interests of the particular State."[65] Still he thought that virtual representation was not only wrong, but inapplicable to the colonies. That a large part of the English people should be deprived of the right to select representatives was an injustice, he felt, and one injustice does not sanction another.[66]

When the debate in the Convention waxed furious over the method of representing the states, Franklin made a proposal to compromise the difficulties that resembled one voiced by Samuel Chase of Maryland in the debate over the Articles of Confederation.[67] The legislatures of the states should choose and send to the Second Chamber (already accepted in principle) an equal number of delegates. Then, in all matters which concerned the sovereignty of the state, the authority of the state over its citizens, or the Federal authority within the jurisdictions of the state, the states should have equal suffrage. In all matters concerning salaries of Federal officers, taxation, and appropriations, the "states shall have suffrage in proportion to the sums which their respective states do actually contribute to the treasury."[68]

Again, when it came time to discuss the judiciary, Franklin suggested that the delegates consider the procedure adopted in Scotland, where the attorneys who were practicing within the jurisdiction of the court selected the judges.[69] These examples are sufficient to indicate both the flexibility of Franklin's mind, even at an advanced age, and the potentialities, as yet unexplored, for new representative arrangements.

Samuel Adams, with Tom Paine the foremost of Colonial propagandists and agitators, took various tacks to arrive at his objective of colonial independence. He used the Locke argument that property is a right that cannot be alienated without the consent of the owner. He used the theory, also discussed by Dulany, that the American charters were compacts. Thirdly, he argued that the Constitution of England itself was based on the natural rights of subjects, and that the English Parliament could not violate these natural rights. Of the three ideas, it can be seen that only the first is an argument that does not lead to a considerable faith in democracy. Adams made no pretense of hiding the role of the people in his scheme of government. He had great faith in the direct democracy of the town meeting, then of some importance to the government of New England. Man did not go into government to subordinate himself, Adams wrote, but "rather for the sake of restoring equality."[70] He attacks the principle of keeping the people from enjoying liberty because of a fear that they might abuse it. He was suspicious of the Constitution for its tendency to remove government further from its source in the people.

Paine went further than Samuel Adams in placing property in a role subordinate to the other aspects of man's life. "Personal Property is an effect of society."[71] It is therefore subject to a goodly measure of control for the public interest. In this, he agreed with Franklin.

In attacking the direct-tax qualification for suffrage in the French Constitution of 1793, which he otherwise regarded as "the best organized system the human mind has yet produced," Paine declared that the connection of tax and the vote was unfortunate.

"The dignity of suffrage is thus lowered; and, in placing it in the scale with an inferior thing, the enthusiasm that right is capable of inspiring is diminished. It is impossible to find any equivalent counterpoise for the right of suffrage, because it is alone worthy to be its own basis, and cannot thrive as a graft, or an appendage." [72]

He is in complete accord with the English Radicals in their attitude towards monarchy, the French Revolution, and the idea of virtual representation.[73] Like Roger Williams, Paine accepted the social compact as a continuous affair; it was subject to revision at any time at the expense of any existing vested interest, provided only that the majority of the people so decreed. Government was the agent of the mass of the people, not its principal. Paine manifests the close relation of the theory of natural rights to the representative ideas of the direct democrats. The compact cannot be anything else than a formalization for the purposes of society of the natural rights of man.[74]

Thomas Jefferson, perhaps more clearly than any American of his

generation, expressed the ideal of the direct democrat.[75] That he could write the Declaration of Independence in 1776, remain continuously a power in the new republic, and then serve two terms as a popular President is proof not only of his genius but of the widespread acceptance of the doctrines of mass democracy which were condemned in England during the same time and which had no place close to the seat of power before the time of Jefferson. He was a summation of the Enlightenment that preceded the Industrial Revolution. "That form of government is best which provides most effectually for a natural aristocracy selected for the possession of virtues and talents." [76] The drastic land reforms abolishing entail and primogeniture which Jefferson pushed in Virginia, and which were enacted elsewhere as well, were methods of accomplishing social selection of the natural aristocracy.

The natural rights of man, he stated in the Declaration of Independence, are "life, liberty, and the pursuit of happiness." He would not, however, deny that property is a natural right, for it "is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings."[77]

Jefferson's definition of "Republic" comes from his optimistic view of human nature, and his strong feeling for the solidifying community. It is a complete statement of how the direct democrat arrives at his idea of representation.

Were I to assign to this term a precise and definite idea, I would say, purely and simply, it means a government by its citizens in mass, acting directly and personally, according to rules established by the majority; and that every other government is more or less republican, in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens. Such a government is evidently restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township.

All other republican governments should be measured by this yardstick of the ideal republic Their structures will reveal how republican they are.

The first shade from this pure element, which like that of pure vital air, cannot sustain life of itself, would be where the powers of the government, being divided, should be exercised each by representatives chosen either pro hac vice, or for such short terms as should render secure the duty of expressing the will of their constituents. This I should consider as the nearest approach to a pure republic, which is practicable on a large scale of county or population. And we have examples of it in some of our State constitutions, which, if not poisoned by priest-craft, would prove its excellence over all mixtures with other elements; and, with only equal doses of poison, would still be the best.

Other shades of republicanism may be found in other forms of government, where the executive, judiciary, and legislative functions, and the different branches of the latter, are chosen by the people more or less directly, for longer terms of years, or for life, or made hereditary; or where there are mixtures of authorities, some dependent on, and others independent of the people. The further the departure from direct and constant control by the citizens, the less has the government of the ingredient of republicanism ...

Subjected to this test, the government of Virginia exhibits serious failings.

The purest republican feature in the government of our own state, is the House of Representatives. The Senate is equally so the first year, less the second, and so on. The Executives still less, because not chosen by the people directly. The Judiciary seriously anti-republican, because for life; and the national arm wielded, as you observe, by military leaders, irresponsible but to themselves. Add to this the vicious constitution of our county courts ... self-appointed, self-continued, holding their authorities for life, and with an impossibility of breaking in on the perpetual succession of any faction once possessed of the bench.... And add, also, that one half of our brethren who fight and pay taxes, are excluded, like Helots, from the rights of representation, as if society were instituted for the soil, and not for the men inhabiting it; or one half of these could dispose of the rights and the will of the other half, without their consent. [78]

This significant passage shows how Jefferson builds his theoretical structure of government from his basic image or ideal. Step by step, mechanically, a scale for measuring all forms of government is provided. It is the incarnation of the direct-representation idea of the Levellers. In 1819, a letter to Governor William King of Maine emphasizes his great faith in the mathematical structuring of representation along egalitarian, individualistic lines. He found a proposed constitution of Maine "marked with wisdom in every point, except that of representation. " Here a grave error had been made by allowing each town, regardless of its size, a seat in the legislature. "Equal representation," he declared," is so fundamental a principle in a true republic that no prejudices can justify its violation because the prejudices themselves cannot be justified."

Jefferson believed that the franchise ought to be general. Neither Negro nor female suffrage had achieved a position in public discussion which might demand his reconsideration of the problem. He admitted the honest conviction on the part of some that voters not possessed of property would be subject to undue influence, but thought that the danger of bribery would be less great by making "the number of voters too great for any means of purchase." Furthermore, he doubted that men's honesty increased with their riches.[80]

His abundant faith in majority rule was counterbalanced by a tender sense of the rights of minorities. He wrote that"

"The first principle of republicanism is, that the lex-majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote, as sacred as if unanimous, is the first of all lessons in importance, yet the last which is thoroughly learnt." [81]

On the other hand, in his First Inaugural Address, he defended the rights of a minority in these terms: "All too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."[82] The missing factor, the permanent barrier to injustice, would not be the Constitution. For Jefferson believed that the Constitution was an enactment of only one generation of men and that each generation had the right to change it to suit the majority will. Rather, the barrier to injustice would be found in the natural rights of men. "Nothing then is unchangeable, but the inherent and unalienable rights of man."

James Wilson, one of the leading members of the Constitutional Convention, signer of the Declaration of Independence and a member of the Congress under the Articles of Confederation, almost rivaled Thomas Jefferson in his affection for the common people. He viewed human nature benignly and, though his statements, as befitted an eminent jurist, were always conditioned by a mildly compromising air, he nevertheless partook heartily of the Jeffersonian beliefs in progress, education, and trust in the judgment of the multitude of men.[84]

Wilson thought that both branches of the national legislature should be chosen by the people, but was not prepared with a specific proposition. He suggested the "mode of chusing the Senate of N.York to wit of uniting several election districts, for one branch, in chusing members for the other branch, as a good model." Furthermore, he wanted a popularly elected single executive to serve a short term of three years.[86] The legislatures should meet annually.

A few days later, he was back to his point, arguing against Pinckney and Gerry. "The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively."[88] And again he declared: "The Doctrine of Representation is this -- first the representative ought to speak the Language of his Constituents, and secondly, that his language or vote shd have the same influence as though the Constituents gave it."[89]

During the Convention, proportional representation was a term used to describe representation by population or other quantitative means, rather than by sovereign units or states. Wilson naturally held to proportional representation, stating for his first position that "as all authority was derived from the people, equal numbers of people ought to have an equal no. of representatives, and different numbers of people different numbers of representatives." [90] He did not attack the principle of wealth so much as he declared it unnecessary in considering proportional representation. Wealth is measured by population.[91] His real position was this:

" ... he could not agree that property was the sole or the primary object of Governt. & Society. The cultivation & improvement of the human mind was the most noble object. With respect to this object, as well as to other personal rights, numbers were surely the natural & precise measure of Representation." [92]

As for the argument that States are sovereign and therefore equal, he did not admit its force in relation to proportional representation based on population. "So each man is naturally a sovereign over himself, and all men are therefore naturally equal." The suffrage ought to be as extended as far as possible, with a view toward extracting from men their full potentialities; its limits of extension are "the considerations of safety and order."[93] In general," the true principles of liberty require, that every citizen, whose circumstances do not render him necessarily dependent on the will of another, should posses a vote in electing those, by whose conduct his property, his reputation, his liberty, and his life, may be all most materially affected."[94] This closely parallels the words of Blackstone in the Commentaries against granting the suffrage to indigents and dependents.[95]

Dependence, according to such a statement, allows some liberty in respect to property requirements. In a period of growing democratic sentiment, it was a better way to justify the property qualification than to announce outright either that property denoted superior virtue or that the suffrage existed only to protect property. It is another indication that the slogan "no taxation without representation" was moribund; the weakness of that slogan had been indicated by Gerry and Morris in the Convention.

Nevertheless, Wilson's vagueness should not be construed as indicating aristocratic tendencies. In several places, his belief in man's rationality and trustworthiness shines through his political analysis. He regards the vote in a manner much like that of John Stuart Mill. The right of suffrage "is an abundant source of the most rational, the most improving, and the most endearing connection among the citizens."

In the Convention, the question of a conflict in judgment between himself and his constituents occurred to him. Pressed to reconcile his personal judgment with the idea of representation as a mere substitute for the people acting collectively, he reasoned thus:

"He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Penna, had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section."[96]

It is characteristic of Wilson's conciliatory and even temper that he did not join the ranks of the revolutionaries until the eve of the Revolution, but that he then retained his convictions throughout the period of conservatism which followed the Revolution. In his pamphlet on "The Legislative Authority of Parliament" (1774), he argued that it was the privilege of the people to consent to taxation; however, significantly, he regarded power over the purse strings not as an end in itself but as a means of obtaining all the other privileges of British subjects.

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