American Heroes

by Edmund S. Morgan

  It may be worth asking, then, how the great political structure of his vision would have differed from what Americans actually got and now have in place. Franklin never set out a plan for his ideal state, as he never got around to writing his treatise on the art of virtue. But we know that his model for the United States, besides abolishing slavery, would have given the separate states no power as states in the national government. There would have been no president with the powers that office now carries. Even with slavery still established in the South, southern states would not have had the extra power that the three-fifths clause of the Constitution gave them, and the people of the small states today would not have the extra power that the Senate and the electoral college give them.

  From a few letters to friends we know that Franklin would have given far fewer privileges to private property and especially to large accumulations of property than the Constitution and the courts have accorded them. He regarded property as “the Creature of publick Convention” and believed that the public should therefore, through its governing bodies, have the power “of limiting the Quantity and the Uses of it.” This was a long-standing belief with him. As early as 1750 he had given his opinion “that what we have above what we can use, is not properly ours, tho’ we possess it.” He was probably the author of a provision of the Pennsylvania constitution of 1776 limiting the accumulation of property, a provision that did not survive in the final document, as his proposals for the United States Constitution did not survive discussion in the Convention. His great political structure would have embodied a much more egalitarian society than the United States has ever seen. But Franklin did get as much as was pragmatically possible. The result has prevailed through many challenges. His vision remains unfulfilled, itself a challenge to Americans who still search for a better world.

  —2005

  CHAPTER FIFTEEN

  The Founding Fathers’ Problem: Representation

  Nothing is more surprising to those, who consider human affairs with a philosophical eye, than to see the easiness with which the many are governed by the few; and to observe the implicite submission with which men resign their own sentiments and passions to those of their rulers. When we enquire by what means this wonder is brought about, we shall find, that as Force is always on the side of the governed, the governors have nothing to support them but opinion. ’Tis therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular.

  —DAVID HUME, “Of the First Principles of Government”

  I

  WE MAY PERHAPS question today whether force is always on the side of the governed—or even whether it always has been—but by and large Hume’s observation commands assent. All government rests on the consent, however obtained, of the governed. And over the long run mere force, even when it is entirely at the disposal of the governing few, is not a sufficient basis for inducing consent. Human beings have to be persuaded, if only to maintain a semblance of self-respect. They have to have opinions to sustain their consent.

  The few who govern take care to nourish those opinions; and that is no easy task, for the opinions needed to make the many submit to the few are often at variance with observable fact. The success of government thus requires the acceptance of fictions, requires the willing suspension of disbelief, requires us to believe that the emperor is clothed even though we can see that he is not. And, to reorder Hume’s dictum, the maxim extends to the most free and most popular governments as well as to the most despotic and most military. The popular governments of England and the United States rest on fictions as much as do the governments of Russia and China.

  Government requires make-believe. Make believe that the king is divine or that he can do no wrong, make believe that the voice of the people is the voice of God. Make believe that the people have a voice or that the representatives of the people are the people. Make believe that governors are the servants of the people. Make believe that all men are equal, or make believe that they are not.

  The political world of make-believe mingles with the real world in strange ways, for the make-believe world often molds the real one. In order to serve its purpose, whatever that purpose may be, a fiction must bear some resemblance to fact. If it strays too far from fact, the willing suspension of disbelief collapses. And because fictions are necessary, because we cannot live without them, we often take pains to prevent their collapse by moving the facts to fit them, by making our world conform more closely to what we want it to be. When the fiction takes command and reshapes reality, we are apt to call it, quite appropriately, reform or reformation.

  Although fictions enable the few to govern the many, it is not only the many who are constrained by them. In the strange commingling of political make-believe and reality, the governing few, no less than the governed many, may find themselves limited—we may even say reformed—by the fictions on which their authority depends.

  It would be possible to illustrate this point from the history of almost any people at any time. I think one could show, for example, that the exaltation of kingship in the fiction of the divine right of kings—and I presume it will be admitted that this was a fiction—could be used as a means of popular control over the king’s government. Anyone reading the parliamentary debates of the early Stuart period will find the members of the House of Commons seemingly beside themselves with enthusiasm for the claim of James I to be God’s lieutenant. In speech after speech they would outdo one another in expounding the wisdom, perfection, and omnipotence of that pretentious monarch, abasing themselves so abjectly that one begins to wonder what they were up to. What they were up to, it quickly becomes apparent, was attributing to the king a godlike character that they could then ask him to live up to. They did not say, “The king is wise and good; therefore let us do what he wants.” Instead, they said, “The king is wise and good; therefore it stands to reason that he must want what we want.” The king’s perfection and divinity became a lever by which his subjects could direct and control him.

  In popular governments—governments wherein authority derives from the people rather than from God—the fictions that enable the few to govern the many exalt, not the governors, but the people governed. And just as the exaltation of the king could be a means of controlling him, so the exaltation of the people can be a means of controlling them. Popular government is a much more complicated matter than kingly government and requires more complex fictions to sustain it. It requires us to believe, or act as if we believe, that the people, as a people, can make decisions and perform actions apart from their government, that they can authorize individuals to act in their name and can also limit, instruct, or otherwise control those individuals. To endow the people with these fictional powers was a delicate matter for those who first undertook it, because it had to be done without encouraging the simpleminded to mistake fiction for fact. A too plausible, too persuasive argument for popular authority might result in what was always deplored as “confusion”—that is, for the people (or rather some fraction of them) to take direct action in matters that were best left to their superiors. The men who first promoted popular government did not think they were striving for a government by the many over the many. They had strong ideas about who should govern, and they did not, to begin with at least, propose to meddle with the structure of the societies in which they themselves commanded positions near the top. In locating the source of authority in the people, they thought to locate its exercise in themselves. They intended to speak for a sovereign but silent people, as the king had hitherto spoken for a sovereign but silent God.

  Their opponents—royalists and loyalists—were quick to point out the probable consequences of deriving authority from the people, namely, that men in the lowest ranks of society might break silence and accept the invitation that seemed to be extended to them. The loyalists and royalists turned out to be right; as time went on, more and more of the advocates
of popular sovereignty faced the fact and actually came to welcome and even to seek the extension of popular participation in governmental processes. The history of popular government is a history of the successive efforts of different generations to bring the facts into closer conformity with the fiction, efforts that have transformed the very structure of society. But in the early stages of popular government the problem was to gain credence for the fiction without upsetting the patterns of deference, without upsetting the settled opinions of rank and degree that gave stability to society and that enabled the few to command the many not merely in acts of government but in all the transactions of daily life. This is the problem we can observe in the establishment of popular government in eighteenth-century England and America, the problem of reconciling the fictional sovereignty of the people with an actual hierarchical social order.

  It is doubtless stretching things a little—indulging in a historical fiction, perhaps—to give the name “popular” to the government either of England or of its colonies in the eighteenth century. But both had a popular element, or one at least that claimed to represent the people and that already played a dominant role in government: the House of Commons in England and the representative assemblies in the colonies. After 1776, when all government in America was presumed to rest on the people, the change from royal to popular authority came about, in effect, as it later did in England (and had done briefly in the 1640s), by representative assemblies taking full command. Popular government in both England and America has been representative government, and representation is the principal fiction by which the larger fiction of popular sovereignty has been itself sustained.

  II

  Representation began in England as a mode of ensuring consent to the king’s government. The king summoned representatives from counties and boroughs to come to his Parliament armed with powers of attorney to bind their constituents to whatever taxes or laws they agreed to. The power of attorney had to be complete, a blank check, so that the representative could not plead that he had to go back and consult his constituents. His consent, given in Parliament, had to be as much theirs as if they had come in person. “As if.” Representation from the beginning was a fiction. If the representative consented, his constituents had to make believe that they had done so.

  The way in which any group of subjects was first persuaded to pretend that one of them could substitute for all of them is not altogether clear. It is possible that originally a representative could consent only in the name of individuals who specifically empowered him and that those who did not, even though in the same community, were not bound by his actions. We can observe such a situation in the first representative assemblies gathered in the colony of Maryland in the 1630s. The royal charter to Lord Baltimore gave him power to govern Maryland as he saw fit, including the power to make laws, but it also required him to obtain the consent of the free men (liberorum hominorum) to whatever laws he made. Baltimore delegated his authority to a governor, and in the first year after the arrival of the settlers the governor apparently summoned the free men to get their consent, as prescribed, to a number of laws. We have no records for this assembly or of how many persons attended it. But for the next assembly, in 1638, the records show that some free men attended in person while others delegated representatives, each of whom was entitled to his own vote and also to all the votes of those who had selected him as their representative. He did not represent anyone who had not specifically and individually empowered him; and a man could even change his mind, revoke the assignment of his vote, and attend in person. Thus we find in the records on the second day of the meeting: “Came John Langford of the Ile of Kent gentleman…who had given a voice in the choice of Robert Philpott, gentleman, to be one of the Burgesses for the freemen of that Iland; and desired to revoke his voice and to be personally present in the Assembly; and was admitted.” One could also transfer one’s proxy, as it was called, from one man to another after the session began. Thus “Richard Lusthead desired to revoke his proxie [given to Richard Gannett] and was admitted and made Robert Clark his proxie.” The records imply that elections of representatives were held in particular neighborhoods, but those who voted against the winner were not bound to recognize him as their representative. Thus Cuthbert Fenwick came to the assembly and “claimed a voice as not assenting to the election of St. Mary’s burgesses and was admitted.”

  The result was a politically bizarre situation: within the assembly some men had only their own vote, while others had the votes of all their proxies in addition to their own. On one occasion an aspiring politician named Giles Brent had enough proxies to constitute a majority of the assembly all by himself. In the 1640s the assembly was gradually reduced to a strictly representative body, with each community in the colony choosing, by majority rule, a representative who would stand for the whole community, including the minority of free men who had voted against him. And he would cast a single vote in the assembly, regardless of the size of the community he represented.

  It is not certain that the original development of the fiction of representation in England followed this pattern. What seems clear is that when representatives ceased to be mere proxies for individuals, whether in England or in America, they represented distinct, geographically defined communities. In England they represented counties or boroughs. In Maryland and Virginia they represented plantations or hundreds or counties, in New England they represented towns, in the Carolinas parishes. It was possible to stretch the fiction of one man standing for another or for several others to the point where he stood for a whole local community. But, in England and America at least, the community was always geographically defined. It was the Isle of Kent or the borough of St. Mary’s; it was Shropshire or Staffordshire, Norwich or Bristol; it was never the worshipful company of grocers or cordwainers, never the tobacco farmers’ union or the association of shipowners. In the eighteenth and nineteenth centuries the fiction of representation was sometimes explained and defended as a means by which all the different economic or social “interests” in a country had a voice in its government, but representation in England and America has never in fact been based on anything but geographically defined communities.

  This local geographical definition seems to have been essential to the credibility of the fiction. Once again the early history of an American colony illustrates the point. The colony of Massachusetts was founded by a trading company, the Massachusetts Bay Company, in which the stockholders, designated as “freemen,” were empowered to meet four times a year in a “General Court,” to make laws for the company and for its colony, and to elect the officials of the company, i.e., a governor and eighteen “assistants.” The company was given power, like Lord Baltimore in Maryland, to govern the colony as it saw fit, but was not required to obtain the consent of the free men of the colony for its laws. The majority of the company, gathered in England, determined in 1629 to transfer the meeting place of the company to the colony itself, and once there the small number of freemen (stockholders) who had made the voyage opened their ranks to all orthodox male Puritan church members. They accompanied this move, however, with a transfer of legislative authority to the elected governor and assistants.

  Now, the charter did not authorize such a delegation of the freemen’s legislative power. Neither did it offer to ordinary settlers who were not freemen, that is, who were not company members, any right to be consulted about the laws that the company might make. But in 1632, when the assistants, acting in their newly assigned legislative capacity, levied a tax, the people in Watertown refused to pay it, on the ground that the government did not have authority “to make laws or raise taxations without the people.” Governor John Winthrop explained to them that the assistants were like a parliament, that they were elected by the freemen and therefore could do the things that Parliament did in England.

  This seems to have satisfied the people of Watertown for the moment, but in truth the assistants were not like a parliament, for they were
elected at large and did not represent particular districts or towns. Apparently this fact was quickly recognized, for two months later Winthrop recorded, “Every town chose two men to be at the next court, to advise with the governour and assistants about the raising of a public stock, so as what they should agree upon should bind all.” Two years later the freemen of the towns revoked the legislative power of the assistants and insisted that all laws be made in the General Court, which was now to include representatives (“deputies”) elected by the freemen of each town. Non-freemen still did not share in the election, just as the majority of Englishmen were excluded from voting for members of Parliament, but this defect seems not to have affected the viability of the fiction. What was needed was not that every man, woman, and child share in the choice of a representative but that the choice be perceived as that of a geographical community. A representative had to represent the people of a particular place; he ceased to represent when he lost his local identification. A representative assembly had to be assembled. It had to be composed from the parts of the whole. The fiction would collapse if it was stretched to have all representatives chosen by all voters, even in so small a society as Massachusetts Bay in the 1630s. The local character of representation was present at the beginning in England as well as in England’s colonies, and it has remained to this day essential to the credibility of the fiction.