Conceived in Liberty (227 page)

The separation of the executive and the legislature in England and other countries of the day was not the result of a competing philosophical view
of government, but of the history of these institutions. The executive power had been vested as a result of previous conquests in the oligarchic rule of a monarch and his aides, a rule which the monarch always strove to be as absolute and unchecked as the “traffic” could bear. In Great Britain, Parliament became the legislature as a result of an effort by part of the public to exercise a checkrein upon the king. Contrary to mythmakers on the English constitution, the democratic wing of royal government was not the embodiment of reasoned philosophic principle, of “checks and balances” or “separation of powers”; the democratic wing established itself in a pragmatic struggle to limit the power of the royal government. Originally, democracy was not so much a
means
of governmental rule as it was a means for the popular
checking
of government. Parliament did not begin as a way to rule; it began as a means of telling the king that if he did not redress grievances and lower his exactions and demands, the representatives of the public would not consent to paying taxes to the crown. Democracy, in short, originated as a libertarian weapon against the State rather than as itself a form of state. Later it became a form of government, but the former function still prevailed in eighteenth century England, for even though Parliament shared part of the governmental rule, it also tried at times to check its old nemesis, the crown.

In the eighteenth century, however, it was America that had taken over the original libertarian role of democratic representation once played by the early institution of Parliament. The main function of the colonial assemblies was to check as much as possible the power of the royal bureaucracy. The assemblies were the arm of the public that combatted and kept vigilance over the growth of royal executive power. One effective means to this end was keeping control of executive salaries firmly and day to day in an assembly’s hands. Then when royal government was swept away, the spontaneous local and provincial revolutionary bodies, freely and frequently elected and thereby subject to popular check, took over governmental functions, deposing the old oligarchy. As was true of so many aspects of the American Revolution, this was truly a revolutionary act for liberty and democracy, and at one unspectacular stroke it profoundly changed American political institutions. Not only was royal rule liquidated, but so too for the time being was the bureaucratic oligarchy.

Not only was the executive oligarchy swept away by the act of revolution, but so too were the councils, the royally appointed upper houses of the legislatures which had also served as executive aids to the royal governors. The representative part of the legislature automatically came to the fore as provincial congresses or assemblies, and equally naturally as unicameral legislative bodies. The glorification of separation of powers and bicameral legislatures by such Tory-minded theorists as Montesquieu was
a method of keeping democracy in severely narrow bounds and preserving the dominance of arbitrary oligarchic rule.

In recent years, neoconservative writers have sharply contrasted liberty and democracy, and have loudly protested any identification between them. Their case rests on two broad grounds:
philosophically,
because liberty refers to
what
government
should do,
while democracy refers to
who
should rule in the government; and empirically, because the main threat to liberty has allegedly been “totalitarian democracy.” But historically, for the late eighteenth and for earlier centuries (waiving later centuries at this point) democracy and liberty were conjoined; democracy was precisely the major instrument by which the libertarian revolution exerted pressure upon the tyranny of the ruling castes. The threat—or rather the reality—of continuing invasion of liberty came from the state apparatus and its privileged ruling castes. The popular democratic upsurge against this prevailing “old order” was the concrete form necessarily taken by the libertarian idea; the preeminent libertarian task was to end the dictation to and exploitation of the people by the rulers of the State apparati. In England, as everywhere, the State began in conquest, and a democratic upsurge was the clearly indicated path by which the people could pursue libertarian goals.

In addition to these historical reasons for democracy and liberty to go hand in hand, there is the further philosophic point that any
direct popular
thrust for tyranny is bound to be fleeting and episodic. Even as ugly a happening as the democratic lynch-mob is necessarily erratic and shortlived. For one thing, the mass of the people generally have neither the time nor the interest to engage in continuing organized expressions of power or plunder. The average man is too busy at the tasks of everyday life to be even concerned about, much less active in, such matters. Hence the much deplored phenomenon of political “apathy.” Only in revolutions does such mass interest in political affairs arise, and this is one of the main reasons why revolutions—disturbing as they are to regular routine —are so difficult to launch. Threats to liberty, therefore, will tend to come not from the formless and remote masses, but from “professionals,” people directly and fully concerned day in and day out in political affairs— from an oligarchy, either government bureaucrats or those who can persuade or manipulate those bureaucrats to grant them special privilege and pelf, the “ruling classes.”

The natural though not perfectly invariant conjunction of liberty and democracy was well understood by the radical wing—the “Left”—of the American revolutionaries, and hence their continuing concern to maintain governmental forms as close to popular democracy as possible. Hence too their constant vigilance against any recrudescence of executive oligarchy
after the royal forms were swept away at the beginning of the Revolution.

Each American province, then, quickly found itself after Lexington and Concord with a new revolutionary governmental structure, consisting of a provincial unicameral legislature and town and county governments and committees of safety. To adopt a formal constitutional frame would be an important step toward proclaimed independence.

As spontaneous creatures of local committees of rebels, the new revolutionary assemblies were remarkably democratic in the sense of participation by the great bulk of the non-Tory population. Every one of the thirteen colonies had had freehold (landed) or personal property qualifications for voting in provincial and town elections, although five colonies allowed a minimum of personal property as an alternative, and in New York and Virginia long-term tenants were included as freeholders. Historians formerly believed that this colonial suffrage was severely undemocratic, disenfranchising most of the adult male population. Recent researches reveal the fallacy of this gloomy view, indicating that the average proportion of eligible adult males in the colonies ranged from 50 to 75 percent.
*
It should be recognized, however, that this situation was far from idyllic, and that one-quarter to one-half of white adult males of the American colonies were disfranchised; including the slaves drags down the percentage of eligible voters still further, and even the few free Negroes were barred from voting in the four southern colonies. At the end of the colonial period, eligible voters constituted 90 percent of adult white males in New Hampshire (higher in local town elections); approximately 75–80 percent in Massachusetts, Rhode Island, and Connecticut; over 80 percent in North and South Carolina; and generally over 70 percent in Georgia. In contrast to these high percentages, eligibility in New York and New Jersey ranged from 50 to 75 percent. In the lowest strata were Virginia, whose eligibility was approximately 50 percent, and Pennsylvania and Maryland, where it ranged from 35 to over 50 percent.

*
For the most balanced and judicious presentation of this suffrage revisionism see Chilton Williamson,
American Suffrage from Property to Democracy, 1760–1860
(Princeton: Princeton University Press, 1960), chapters 1–6.

After Lexington and Concord the separate provincial bodies faced two broad sets of decisions. One was external—whether or not to push for American independence from Great Britain. The other was internal— whether to keep the highly democratic nature of the new revolutionary bodies or to revert to an oligarchic regime resembling the colonial era. The problem of adopting a formal constitution was both internal and highly relevant to the question of American independence.

New England, in the forefront of American radical sentiment, pioneered the first self-made provincial constitution. Massachusetts asked the Continental Congress’ advice on what sort of governmental form to adopt, and on June 9, 1775, Congress simply told Massachusetts to aim at preserving the old pre-Coercive Act Massachusetts Charter.

A few months later, in mid-October, New Hampshire asked for advice on a new government. The powerful Governor Wentworth and other royally favored oligarchs had fled, and New Hampshire was being ruled by a makeshift committee of safety and by local town committees. While New Hampshire was asking for advice, the British burning of Falmouth, Maine, on October 16, enraged the colonists, and Congress advised New Hampshire on November 3 to establish a new government to operate for the duration of the conflict. This change of advice was the reflection of a change in composition of the congressional committee answering the request; archconservatives Thomas Johnson, John Jay, and James Wilson had been replaced by radicals John Adams, Samuel Ward, and Roger Sherman. (Despite the radical advice to New Hampshire to form a new government, however, reconciliation with Britain and resumption of the
precrisis status quo were still held up as the ultimate ideal.)

In eager response, New Hampshire called a constitutional convention, which met at Exeter in December to form a new government. Violently objecting to this revolutionary step were freeholders from the ports of Dover and Portsmouth, who denounced the new constitution as a virtual declaration of independence from Britain. The Exeter convention followed on the heels of November elections that had swept away all freehold qualifications for voting and decreed that all resident taxpayers might vote. This important step toward democracy was not gained without a struggle, however, as at first the New Hampshire Provincial Congress had decided only to lower freehold qualifications for voting from ownership of property valued at fifty pounds to ownership of property worth twenty. It was forced to reconsider and abandon freehold restrictions by strong public pressure. Thus New Hampshire became the first province to put into practice one of the leading suffrage goals of the radical forces: voting rights for all taxpayers with no property restrictions, and admission of all militiamen and soldiers into the ranks of eligible voters.

A somewhat more important step taken by the Provincial Congress was to reform representation in its lower house, the assembly. New Hampshire apportionment was plagued not only by the inherent obsolescence of democratic representation; it had been further hobbled by the deliberate policy of the crown and the royal governor to repress the voice of the western frontier towns. Only 36 of the 155 towns in New Hampshire had been allowed to send delegates to the assembly; and even among these larger towns, delegate allocation was way out of balance. Thus, such of the larger westerly towns as Concord, Ispping, and Londonderry had no representation. In calling the late 1775 elections, the provincial congress rearranged the representation, but amidst the corrections were numerous new inequities and
over
representations of the new towns in the century-old manner of Massachusetts.

The new New Hampshire constitution was adopted by the congress on January 5, making it the first constitution enacted in and by an American colony. The major political power in the colony was thenceforth to be wielded by the elected House of Representatives; there was also to be an upper house, or Council, which was to be elected in such proportions as to weight it in favor of the eastern seaboard towns. The constitution was vague, but implied no property qualifications for voting, although there were property requirements for election to the legislature.

The new constitution fully satisfied few New Hampshiremen. It was attacked from the right by those who objected to any form of government that made reconciliation with Britain unlikely. It was attacked from the left by those who complained of the patently insufficient degree of democracy. Thus, sixteen far-western towns protested to the House, demanding better
representation and the abolition of property qualifications for holding political office and the Council’s veto on actions of the House of Representatives. They also urged a bill of rights to guarantee the rights of the individual. The powers of the upper house did have a sinister aspect, since they resembled all too closely the powers of the old royal executive. Thus the town of Chesterfield, in extreme western New Hampshire, charged that the new government threatened “to settle down upon the dregs of monarchical and aristocratical tyranny, in imitation of their late British oppressor.” Or, as the sixteen far-western towns trenchantly put it: “It is a thousand pities, that when we are engaged in a bloody contest, merely to oppose arbitrary power without us, we should have occasion to contend against the same within ourselves.... We are determined not to spend our blood and treasure, in defending against the chains and fetters... abroad, in order to purchase... the like kind of our own manufacturing....” The western towns repeatedly stressed the revolutionary fact that they were at that point in a state of nature, and that by their natural right, they should form a constitutional convention.

Leading the popular agitation in the west was Hanover, in extreme northwest Grafton County, the seat of newly established Dartmouth College, the only institution of higher learning in the province. Dartmouth had been founded and Grafton County settled by New Light Congregationalists from revolutionary eastern Connecticut. Fresh from “separatist” struggles against established churches, the men from Connecticut were acutely alive to infringements upon their liberties or rights. Dartmouth College and its president, the Reverend Eleazer Wheelock, led the protest movement, which was popularly dubbed the “College Party.” In fact, the protest of the far-western towns had been adopted at Dartmouth College Hall, and authorship of the protest was attributed to the son-in-law of Wheelock, Dartmouth’s Professor Bezaleel Woodward.