American Heroes

by Edmund S. Morgan

  Closely linked to the requirement that the representative be attached to a locality was a need that he be perceived as a subject of government. In order to represent other subjects he had to be himself a subject. The Massachusetts assistants, though annually elected and bound by the laws they enforced, were perceived as rulers, not ruled, just as the king and his appointed council, though bounded by law, were rulers, not ruled. King and council, governor and assistants, were there to exercise authority over the whole society, representatives were there to give the consent of their particular counties or towns or districts to what the rulers did. As we shall see, the distinction began to blur very early, but it remained an essential ingredient in the fiction of representation and in the way people thought about government. In Massachusetts the Reverend John Cotton, who was by no means simpleminded, thought that a political system that confounded rulers and ruled—that is, a democracy—was a contradiction in terms. “If the people be governors,” he asked, “who shall be governed?” And in his view and John Winthrop’s the representatives of the people, the deputies whom the various towns sent to the Massachusetts General Court after 1634, were subjects, mere substitutes for the people who chose them. Like the first representatives whom the king summoned to Parliament, they assembled in order to bind their local constituents to obey the laws and pay the taxes agreed upon at the center. The very act of consent identified them as subjects, and the consent they gave was the consent of the particular localities that they represented.

  If representatives had been, or had remained, mere subjects—if they had been merely the agents of their constituents, empowered only to consent for other subjects to measures propounded by the authority of a government of which they were not strictly speaking a part—then the fiction of representation would have been a much simpler and more plausible matter than it has ever in fact been. It is possible that in England the House of Commons continued for some time after its inauguration to be considered in the way that its members so often pretended to consider it, as a gathering of mere subjects, representing various communities of subjects throughout the land. But the representatives very quickly began to act like something more than mere subjects. Not content to give or withhold consent to measures presented to them by the king and his council, they concocted measures of their own, presenting them as petitions to the king, but nevertheless in effect making governmental policy, making laws. Already by 1530 laws were regularly enacted “by authority” of Parliament.

  The representatives who sat in the Commons in the seventeenth century, still protesting that they were mere subjects, for a time in the 1640s assumed all powers of government to themselves. And after the restoration of the monarchy in 1660 there was no longer even the pretense that representatives were mere subjects. They were subjects, yes, but not mere subjects. If there was any doubt, the Revolution of 1688 resolved it.

  Similarly, in the colonies, representative assemblies took the initiative in government almost from the beginning. In Maryland the free men and their proxies, even before representation was fully developed, did not wait for Lord Baltimore or his governor to present them with laws for passage: they made their own and presented them to him. In Massachusetts, once the General Court resumed legislative authority in 1634, there was no doubt that the representatives would share in that authority. But they went further. The General Court was the supreme judicial authority of the colony. Winthrop insisted that the deputies sent by the towns not share in this authority, because they were mere subjects; but the deputies demanded the right to sit in judgment on judicial matters, and they got their way. In Virginia the authority to make laws lay in the Virginia Company, resident in London, but the company called a representative assembly in the colony in 1619, and that assembly presented the company with a series of laws, which, with the company’s approval, became the first laws enacted by a representative assembly in America.

  As soon as representatives began to make laws and policy for the larger society to which their communities belonged, they did not cease to be subjects but they ceased to be mere subjects. By the same token, though they did not cease to be the agents of local communities, they ceased to be merely that. The laws they made were to bind not only their own communities but the whole realm, the whole nation, the whole society. In making policy for the larger body, they had to think in different terms from the needs and desires of their localities; sharing regal authority, they had to think regally, to think for the nation rather than the neighborhood. The well-being of the whole society might be different from that of any one part or even from that of the sum of all the parts. Insofar as they assumed authority and directed their attention to whatever they perceived as the welfare of the whole, representatives necessarily lost something of their character as subjects and as local agents and took on the trappings of a national aristocracy or ruling class.

  Logically this meant a transformation in the meaning of representation, but chronologically, historically, it was not so much a transformation as a paradox or conflict present in representation from the beginning or almost from the beginning. It is quite likely that the persons selected by a community to represent it in Parliament were from the outset those who could command the assent of that community by virtue of their own local power and prestige. It is not impossible that the first representatives to the House of Commons were self-selected, without benefit of an election, as in effect a large percentage of members came to be or still were in the eighteenth century. And the local character of borough representatives in the Commons was already vitiated by the fourteenth century when nonresident country gentry began to buy and bully their way into possession of borough seats, elbowing out local but lesser dignitaries. A statute of 1413 required that a representative be a resident of the borough that chose him, but the lawyers in the House of Commons quickly interpreted this to mean that he need not be a resident of the borough that chose him.

  As representatives assumed the mantle of authority, they stretched the fiction of representation to justify the attenuation of their ties to local constituencies. It may be counted as a step in this direction when they began, as early as the fourteenth century, to argue that they collectively represented the whole realm and could give the consent of every Englishman to what they did in Parliament. The English Parliament had never contained representatives from every town or village community. Though every county sent representatives, only selected boroughs were required or allowed to do so. But Sir Thomas Smith was able to state as a truism in 1583 that “everie Englishman is entended to bee there [in Parliament] present…. And the consent of the Parliament is taken for everie mans consent.”

  From this premise it was possible to argue, though it might require an unusual logic, that each representative could and must speak and act, not for the local community that chose him, but for all the people of the realm. Sir Edward Coke, who was good at this kind of logic, may have been the first to state the idea in so many words. “Though one be chosen for one particular County or Borough,” he said, “yet when he is returned and set in Parliament, he serveth for the whole Realm, for the end of his coming thither, as in the writ of his election appeareth, is generall.” From the fiction that one man may stand in the place of a whole community and bind that community by his actions, Coke had extrapolated the more extended fiction that one man may stand for the entire people of a country, most of whom have had no hand in designating him for that purpose. The classic statement of this notion was to come in the next century, when Edmund Burke explained to the electors of Bristol why he owed them nothing but the courtesy of listening to their wishes before acting as he thought best for the whole country. But already in Coke’s formulation we are very close to the point where representation becomes representative government. At the time when Coke wrote, whatever authority representatives could claim over other subjects presumably came from the king. But it was only a short step from representing the whole people to deriving authority from them.

  When English
men took that step in the 1640s, they did not affirm the sovereignty of each county or borough. It did not even occur to them to think that way. They were replacing the authority of the king, and the king had been ruler of all England. It was not a question of particular counties or boroughs declaring their independence from his rule any more than it was particular towns or counties in his American colonies that declared independence in 1776. There would have been no logical barrier to thinking of the people of every village as a sovereign body, but that is not what happened. The people whose sovereignty was proclaimed were the whole people of the country or colony, far too numerous a group to deliberate or act as a body. It was their representatives who claimed for them the authority that only a representative body could exercise. The sovereignty of the people was not said to reside in the particular constituencies that chose the representatives, it resided in the people at large and reached the representatives without the people at large doing anything to confer it. Again, there would have been no logical barrier to having the people confer authority by a nationwide election at large of any number of men to serve as rulers, but that is not what happened. What happened is that representatives elected by particular counties and towns assumed powers of government over a whole country and claimed that their powers came from the sovereign people as a whole.

  It would perhaps not be too much to say that representatives invented the sovereignty of the people in order to claim it for themselves, in order to justify not the resistance of their constituents but their own resistance to a formerly sovereign king. The sovereignty of the people was an instrument by which representatives raised themselves to the maximum distance above the particular set of people who chose them. In the name of the people they became all-powerful in government, shedding as much as possible the local, subject character that made them representatives.

  As much as possible. The English Revolution actually went awry when the Long Parliament (1640–49) became too long, when the representatives declined to return to their constituents for reelection or rejection. The representative’s national authority cannot be magnified to the point of eliminating his identity as a local subject without at the same time destroying the fiction of representation and putting an end to representative government. The conflict cannot be eliminated; it has to be muted and contained. One element may be emphasized over the other at different times and places, and the history of representative government may be read as a dialectical process in which one element rises or falls at the expense of the other. But if either is wholly missing, representative government either ceases to be government or ceases to be representative. When the local, subject character of the representative is emphasized too much, it becomes difficult to perceive him as a proper repository of the national authority with which the sovereign people have supposedly invested him. When his national function as ruler of the whole people is emphasized, he may lose credibility as the spokesman of other subjects in his local community. The fiction of representation has to sustain a continual strain from opposite directions.

  The dimensions of the conflict have not always been apparent even to those engaged in it, but we may perceive it in operation at an early stage in the English republican theorist Algernon Sidney’s explanation of the representative’s national authority. “It is not,” Sidney argued in the early 1680s,

  for Kent or Sussex, Lewis or Maidstone, but for the whole nation, that the members chosen in those places are sent to serve in Parliament; and though it be fit for them as friends and neighbours (so far as may be) to hearken to the opinions of the electors, for the information of their judgments,…yet they are not strictly and properly obliged to give account of their actions to any, unless the whole body of the nation for which they serve, and who are equally concerned in their resolutions, could be assembled. This being impracticable, the only punishment to which they are subject, if they betray their trust, is scorn, infamy, hatred, and an assurance of being rejected, when they shall again seek the same honour.

  Sidney here takes pains to distinguish the representative’s obligations to the whole nation from his obligations to the electors who choose him as their agent. Yet he relies on the electors to remove him if he betrays his trust. What trust? The trust reposed in him by Kent or Sussex, by Lewis or Maidstone? No, the trust reposed in him by the whole body of the nation, which cannot be assembled for removing him—and by the same token was never assembled for entrusting him in the first place. If he betrays the trust so mysteriously placed in him, he is supposed to be subject to scorn, infamy, and hatred. But whose? Is it not likely that the man who wins scorn, infamy, and hatred from the rest of the nation may win praise, fame, and love in Kent or Sussex, in Lewis or Maidstone? And conversely the man who is faithful to his trust for the nation may win scorn, infamy, and hatred in Kent or Sussex, Lewis or Maidstone.

  Sidney was not troubled by this contingency and would probably have responded to it, as he did to other objections, that while a representative assembly was not infallible, nevertheless “a house of commons composed of those who are best esteemed by their neighbours in all the towns and counties of England” would at least be less “subject to error or corruption than such a man, woman, or child as happens to be next in blood to the last king.” In the worst possible case, in other words, a group of men popularly chosen, however strong their local attachments and whatever their weaknesses, are a safer repository of power than a hereditary king.

  Because representative government rests on conflicting fictions, or on a single fiction with glaring internal contradictions, it has often required such left-handed defenses. It is a pis aller, better than the alternatives. But Sidney’s ignoring of the possible conflict between local and national interests is a reminder that representative government, in order to work, in order to mute the conflict within the fiction, requires that the different communities represented be able and willing most of the time and on most issues to perceive their own local interests as being involved in, if not identical with, the interests of the larger society.

  That perception was more easily sustained while the authority of government was derived from the king than when the representative body professed to derive it from the people at large. When authority came from the king, government was palpably something other, a force against which representatives protected their constituents or to whose actions they effectively bound themselves and their constituents. Representatives, like those they represented, could be thought of as acted upon rather than as actors.

  Moreover, that authority itself was less likely to be swayed by any combination of local interests. A king might become a tyrant, pursuing his own interests rather than those of his subjects. But he was not as likely as the majority in a representative assembly to place the interests of particular parts of his realm above the interests of others or of the whole. Because the monarch was less likely to be geographically partial, there was less need than in popular governments for every community to have its own representatives to protect its special interests against those of other communities. Protection was needed, rather, against the more general danger of arbitrary government by the monarch, and this could be furnished by one set of representative subjects as effectively as by another.

  Before representatives took over full command of government, there was accordingly little agitation by excluded communities for inclusion in the representative body. The great expansion of representation in Parliament in the sixteenth century came not because of demands by formerly excluded communities but because the rising and expanding gentry wanted seats in the House of Commons. Many of Parliament’s so-called rotten boroughs were rotten at their creation, incorporated only to give some aspiring gentleman a seat. Similarly the expansion of the electorate in the seventeenth century was not the product of a demand by the unenfranchised. It was in part an accident of inflation, which reduced the value of the property qualification for voting (established in 1430) and in part the result of contests for seats, in which an ambitiou
s candidate brought unqualified voters to the polls and then succeeded in having their votes legitimized by Parliament. In other words, while authority was derived from the king, the expansion both of the suffrage and of representation in Parliament came from the top down, through the desire of members of an elite class for a share in the king’s authority. In the colonies, where the king’s authority was diluted by distance and representatives were correspondingly more powerful (in fact if not in theory), there was somewhat more concern about extending representation equitably. But even here, in Pennsylvania and in the southern colonies, where representation was most inequitable, there seems to have been little concern about the matter until shortly before the Revolution.

  When the king’s authority was removed, as it was in England during the Commonwealth period (1649–60) and in America after 1776, the conflict of local interests with the sovereignty of the people at large became much more evident. In a Parliament where representatives chosen by a handful of voters had total authority over communities that could not vote at all, there were immediate demands for a more rational and equitable way of exercising the newfound sovereignty of the people. And a rational plan of parliamentary representation in England was in fact adopted in the Commonwealth period, only to be abandoned for nearly another two centuries after the restoration of the monarchy in 1660. And in the independent American states after 1776 the apportionment of representation became a major concern, because particular communities and regions feared that without adequate representation they would not be adequately protected from their sovereign compatriots.

  In this transformation, government remained, as it had to, something other, something external to the local community; but that something was no longer a king. It was now the representative body itself, or at least the representatives of other localities, acting rather than acted upon, exercising an authority derived from a people who could not exercise it themselves. With the authority of representatives thus magnified, it became all the more important to each community that its particular representatives retain a local identity and outlook and all the more important to every community to have representatives. Thus, just when representatives assumed larger responsibilities and larger authority, they were brought under greater local pressures to retain their local, subject character.