Steps in the development of American democracy

Contents

CHAPTER PAGE

Introduction 5

Preface 7

Preface

The purpose of these lectures is not to present the history of American democracy in full and symmetrical outline. If one should enter upon that task, he would find himself writing at length the history of the United States. My purpose is simply to recount a few salient experiences which helped to make America what it is — for experiences create character. And I wish also to describe certain basic doctrines and beliefs, some of which may have had their day, while others have not yet reached fulfillment. Especially I have not attempted to discuss fully and elaborately the problems of democracy as they arose in the generation after the Civil War, but only to show how those problems, in certain essential particulars, centered in the task of regulating the use of property and adjusting the old ideas of personal liberty to the new needs of the social and in-

8 PREFACE

dustrial order. The problems of democracy have grown thick and fast in the last decade ; and these too I have not sought to discuss in any detail, contenting myself with describing the implications of democracy as we now may and should see democracy after a century and more of development and after a war waged for its maintenance and upbuilding.

The lectures were given to the students of Wesleyan University in the spring of 1919. I hope they were of some service and that in printed form they will have some slight value in making clear a few leading facts and principles in American history and politics.

A. C. McL.

University of Chicago.

WESLEYAN UNIVERSITY

GEORGE SLOCUM BENNETT FOUNDATION

LECTURES

For the Promotion of a Better Understanding of National Problems and of a More Perfect Realization of the Responsibilities of Citizenship.

FIRST SERIES— 1918-1919

Chapter I Emergence Of Principles In The Colonial Period

It is difficult to begin a course of lectures on American democracy because one does not know where to find a beginning. Wherever he may start in his recital, he is conscious that, before the particular period chosen, forces were at work that account for later conditions. American democracy is, of course, intimately connected with the long effort of Englishmen, even before America was settled, to combat tyrannical or absolute government. I will not, however, allow myself to comment on those origins, but will take up the story with just a word about the transference of English representative institutions to America in the early seventeenth century. The setting up of a representative body in the wilds of Virginia in 1619, that first step in the recognition of the colonists as human beings who were entitled to some

word in the management of themselves, is a salient fact in the history of the British empire, as well as the beginning of American democracy. It is of immense significance as the beginning of a policy of colonial self-government, and thus the beginning not only of the American democratic system but of that far-flung British empire, that union of free commonwealths which, with all its lack of symmetry and legalistic form, is the greatest political structure in the world.

We should notice, however, that this representative assembly was not established by direction of the British government. It was called by the mandate of a corporation, a great mercantile company, similar to other large corporations which were in those days reaching out for the commerce of the world. The use which England has made of the corporation as an agency for colonization and commerce is so extensive that one can hardly overemphasize it ; but I am not speaking here of the influence of the corporation charter on the constitutional forms of the colonies, but of the act of the corporation, itself resident in London, in calling an assembly of representatives in Virginia. The

Virginia Company, composed of many prominent men, was divided into two parties : one the progressive and the Hberal, the other the conservative and the rigid. The liberals had more in mind than making money from a commercial venture. Some of them were profoundly interested in the very theory of government and so taken up with the pivotal problems of politics that they could not think of Virginia as only a tobacco plantation or a producer of dividends. Though the differences of opinion in this corporation are more evident a year or two after the decision to give to the colonists an assembly of representatives, we can see that at least as early as 1618 the divergent tendencies of the two elements were at work. On the one side was Sir Thomas Smythe, a leading big business man, interested in the various large commercial enterprises of the time. On the other side was a group of young idealists, the leader Sir Edward Sandys. The Smythe faction said that Sandys and his followers were "men of discourse and contemplation and not of reason and judgment."

"Of discourse and contemplation" — mere talkers and thinkers, not active men of business with sound, hard sense. How often have these words been used to describe idealists who were prepared to take a bold step forward and a steady look onward into the future! Sandys was a disciple of Richard Hooker, whom I venture to call the founder of that school of political theory which gained tremendous vigor in seventeenthcentury England and was finally embodied in the institutions of the United States. It is a strange and dramatic fact that the man intent upon planting in the wilds of Virginia this first seed from which American constitutionalism sprang, should have actually had in his mind the distinct theories which, as the decades went by, were gathered up in our fundamental law, and that he should have consciously held the very ideals for which Virginians and other Americans fought a century and a half later. ^

^ I know, of course, that Hooker's theories were not entirely like those that developed in the seventeenth century, but the fundamental fact remains that his statement of the origin of government in consent was of tremendous im-'

It is a source of consuming interest and pleasure to hunt out expressions and purposes of political justice and to discover visions of right amid the controversies and more deliberate discussions of a corporation dealing with tobacco and Indians and trade and land grants. Of Sandys it was said that "no man in the world carried a more malitious heart to the government of a monarchic," and that he himself declared "that if our God from heaven did constitute and direct a forme of Government, it was that of Geneva." He belonged, in other words, to that body of believers in the fundamental rights of man who were to become stronger as the century waxed older, were to wage war against the Stuarts, and were finally, at the end of the century, to depose James II because he had broken the original compact between king and people. If he were a real and consistent idealist, Sandys could not portance in the years to come. I know too that Hooker did not invent this theory, for it was of hoary antiquity when he wrote his Ecclesiastical Polity. But it was he who said, "Laws they are not, therefore, which public approbation hath not made so."

very well refrain from seeking to promote in Virginia his own ideas of political right. For even in Parhament as early as 1614 he had boldly announced the principles of his philosophy. I call attention to these principles not as merely incidental but as an expression of fundamental pohtical theory by one whom we may justly call the first American statesman — an American statesman, though he never lived in America, because he was the founder of representative government in the New World and the propounder of the elements of American political theory. In a speech in Parliament in 1614 he used these words — condensed, of course in the report: "No successive king, but first elected. — Election double, of Person, and Care; but both come in by Consent of the People, and with reciprocal conditions between King and People. — That King, by Conquest, may also (when Power) be expelled." An expansion of this speech would become a treatise upon the origin of government. Of that we shall have more to say hereafter ; but we can see here a denial of the intrinsic or inherent authority of the monarch, an assertion of the origin of kinglypower in contract, a declaration of the consent of the gOTcrned, an announcement that there were people, and that care for them was the condition of continuing authority, and, lastly, a denial of the principle of passive obedience; for the king that ruled by force and not by right and that did not care for his people could be expelled.

Contenting ourselves with this word of reference to Sandys and the group of liberals who founded representative government in Virginia, let us turn to the early history of the northern colonies. Here, again, we are looking for principles and ideas and not merely for events in the ordinary sense, and I shall select only one or two of these ideas as the most significant. No one can understand the history of New England without some knowledge of church history, and especially the history of the Separatists. In the reign of Elizabeth a few obscure men, amid many concerned with problems of ecclesiastical order, affirmed that a small number of individuals coming together could constitute a church. This belief is to us so self-evident that it does not appeal to us as more than a dreary commonplace; and yet it is of great moment: a few simple men could found an institution which men had been wont to think of as an institution of vast power and august majesty; it was almost as if they had said that two or three gathered together can form an empire.

The church, as those men conceived it, was an association of individuals; and the individual, free before God and under God, having his own immediate relationship with the divine sovereign authority, could voluntarily join with others and form the church. Those two elementary thoughts I wish most strongly to emphasize, for they will be found running through American history, showing themselves in unexpected places. There is such a thing as an individual, a separate self-determining being; and several individuals, hitherto quite separate and independent, can by covenant and agreement constitute a new entity, a new thing. The creation of something which possessed real character, authority and duty, by the voluntary consent of hitherto detached elements, constitutes one main pillar of early American democratic theory.

If we had time to study in detail the early history of Massachusetts and Connecticut, we should discover many illustrations of the two fundamental ideas that I have just mentioned. Men's minds turned to contract, promise, consent, as the bases of church organization; and naturally they conceived governmental authority of all kinds as arising in this way. From time immemorial men have inquired — ^thinking men — ^how it came about that one man or one set of men have the right to order others to do or not to do. Naturally, the men of New England believed that authority sprang from the entrance of men into the social relation and from contract which they voluntarily made. We find views of political relationship, of ecclesiastical polity and of theology itself, embodying the notion that contract was the source of binding authority. Even if God did not obtain His supreme authority from the consent of men. He, the supreme authority, was Himself in a contractual relationship with man and was bound by His own promises. Thomas Hooker, the founder of Connecticut, said: "Among such who by no impression of nature, no rule of providence or appointment from God or reason have power over each other; there must of necessity be a mutual engagement each of the other, by their free consent, before by any rule of God they have any right or power, or can exercise either, each toward the other. This appears in all covenants betwixt Prince and People, Husband and Wife, Master and Servant, and most palpable is the expression of all this in all confederations and corporations. . . . They should first freely ingage in such covenants, and then be careful to fulfil such duties."

John Cotton declared: "It is evident by the light of nature, that all civill Relations are founded in Covenant. For to pass by natural Relations between Parents and Children, and violent Relations between Conquerors and Captives, there is no other way given whereby a people sui juris free from naturall and compulsory engagements, can be united or combined to-gether into one visible body to stand by mutuall Relation, fellow members of the same body but only by mutuall covenant; as appeareth between husband and wife in the family. Magistrate and subjects in the Commonwealth, fellowcitizens in the same cities."

To illustrate at all adequately the expression of these fundamental theories in early New England would carry us far beyond the time at our disposal. Let us content ourselves now with one other elementary belief, and then we shall be able to move on to later times when these theories showed themselves in the struggle of a nation for self-government. This elementary belief was belief in the existence of fundamental law. This conception of unchanging and unchangeable right, this belief that there were certain fixed immutable principles, can be seen in various phases of political thought in England especially in the seventeenth century. On its purely political side, this thought was arrayed against the claim or the pretension to absolute and arbitrary authority in government. In its origin it is doubtless associated with the belief in the unchanging and unvarying law of God which must be superior to any law of man. Thoroughly arbitrary government, one unlimited in its power and authority, was, thought the English hberals of the seventeenth century, a government disregarding principles of right superior to all human authority. Both sides — those defending the unlimited power of monarchical sovereignty and those denying the rightful existence of such authority — really took refuge in the supremacy of divine will; for one side asserted the divine right of kings and held up the King as the possessor of authority obtained from on high, while the other side set forth the reality of divine law — natural law — ^binding on all human government and limiting the authority of the monarch himself. Naturally, the New England settlers, the offshoots of English liberalism and Puritanism, believed in the unchanging authority of divine or natural law. A study of the intensely interesting years of Massachusetts' history in the first fifteen years after the founding of Boston discloses, in the little primitive settlements, currents and counter currents that are curiously indicative of the old antagonism between classes and of the desire of the plain people to bind government in such a way that certain rights and privileges should not be endangered. "The deputies," said Governor Winthrop, "having conceived great danger to our state, in regard that our magistrates, for want of positive laws, in many cases, might proceed according to their discretions, it was agreed that some men should be appointed to frame a body of grounds of laws, in resemblance to a Magna Charta, which, being allowed by some of the ministers and the general court, should be received for fundamental laws." This movement, which arose, be it noticed, out of suspicion of unchecked government, resulted in the establishment of the famous Body of Liberties — a code of fundamental laws, based itself on the Bible, on the principles of English liberty, and on the reason and judgment of its framers.

I would not assert that democracy in any full sense existed in Massachusetts — possibly not even in Plymouth. The early history of the Boston colony discloses clearly a sharp contrast between principles of aristocracy and a considerable amount of democratic theory in the sense that government ought not to be wholly in the hands of superior beings. The movement from the Bay towns to the Connecticut Valley may have been, as Charles Francis Adams says, only the natural swarming of a people who, seeing the fertility of the charming Connecticut valley, had a "hankering mind after it." But there certainly were diametric differences of opinion between Hooker, the founder of Connecticut, and Winthrop, the leader of the Bay colony. "Matters of counsel and judicature," said Winthrop, ought not to be referred to the main body of the people; "the best part is always the least, and of that best part, the wiser part is always the lesser." Hooker, on the other hand, declared: "In matters of greater consequence, which concern the common good, a general council, chosen by all, to transact businesses which concern all, I conceive, under favour, most suitable to rule and most safe for the relief of the whole." John Cotton — the ecclesiastical rival of Hooker — on the other hand had announced, "Democracy I do not conceive that God did ordain as a fit government either for church or commonwealth."

We have thus taken a hasty glance at a few incidents in early colonial history and seen the announcement or the appearance of a few primal ideas, which in one way or another underlie American democracy. I am not prepared to say that they are the supporting theories of our present-day democracy even as a form of government or as a body of political theory; but what we know as democracy actually began with the emergence of principles which justified the right of the individual under government, with the assertion that men set up governments and that governments should be restrained by some fixed law ; and, for our purpose of perhaps even greater consequence, was the doctrine that men by contract associated themselves into political society. Without mentioning the thought and strivings of the seventeenth century, one could have no background and no perspective for understanding the principles of later democracy, and I have given this hasty exposition to banish the impression that the theories of the American Revolution and of the earlynational period had no ancestry, but sprang full-armed from the brains of the statesmen and pamphleteers of the later eighteenth century. It is well always to remember that the cleavage of the British race took place in the seventeenth century, and, while after the end of that century we find no great outpouring of political theory and it is difficult to trace from written utterance the line of growth, American political principles were those of the century of Pym and Milton and Harrington and Locke and John Lilburne and countless other liberal, revolutionary, and radical leaders who strove for the recognition of man's fundamental rights under government.

Of course mere political theory unattached to the practical and immediate problems of life cannot be very effective. Political philosophy grows out of political and social needs, and is often a result rather than a cause of social action ; but the writings of the seventeenth century — ^real political pamphlets — portray political purpose. And no one could venture to say that the cogent expression of a theory, even if unattainable in its full force, has no effect in building up opinion, stimulating action and giving direction and coherence to a movement or a tendency. Such beyond question was the effect of the writings of the pamphleteers, poets, and philosophers of the seventeenth century. I must not omit, however, all mention of the fact that the Americans not only illustrated in actuality the organization of political and ecclesiastical order, but, living as they did free in considerable measure from the repressive burdens and traditions of the Old World, were able to feel more strongly than the people of Europe the worth and the right of the individual man. Through the first half of the eighteenth century the development of the American colonists in the practices of self-government gave them a basis for the philosophy with which they approached the problems of the American Revolution.

Chapter II The Theories Of The Revo- Lution; The Formation Of State Constitutions

The period of the American Revolution, from the viewpoint of American pohtical development, may be said to begin with the outbreak of the Old French War and with the attempted organization of the colonies, that they might bear their fair and proportionate share in the defense and maintenance of the empire ; it ends with the formal establishment of the American "empire" in the Constitution of the United States — a generation of discussion, agreement, and disagreement, a discussion in which men were thinking as well as talking and writing, and in which certain definite behef s, the products of thought and talk, found lodgment in basic institutions and in the announcement of certain elemental principles of political ethics. The period ought not to be called the Revolutionary era, but the creative era of American history. The period is too often divided into two parts, necessitating a division of treatment of cardinal tendencies; the first part (1760-1783) is treated as if the sole object of study was to explain the war; the study of the later period (1783-1789) deals with the discontent and confusion of reconstruction from which came the Federal Constitution. As a matter of fact, through that whole generation men were engaged in the development of ideas which were finally embodied in the State and national constitutions. The discussions and the perplexities of that generation were concerned with three different problems, which were not always closely distinguished one from the other.

The first problem was that of trade and commerce and general economic well-being. The second was that of the authority of government over men : did government have unrestrained authority, or was it limited by the necessity of preserving the life, property, and liberty of the people? The third was that of finding a suitable structure of empire — at first, the structure of the British imperial system, later the structure or what should be the structure of the American pohtical system as a whole. In other words, this third problem involved in its later phase the task of working out a system of political organization for the United States, for the combination of republics which had been colonies and had emerged into self-governing commonwealths. Of these problems I shall not discuss the first in any detail. I do not doubt the influence of economic forces in history, the continuing effect of imperial and state financial needs, the unremitting pressure of commercial rivalries between merchants and among nations and States. I do not doubt that in the American Revolution pecuniary advantage often underlay political demands, and that dread of pecuniary loss helped to fashion parties and coteries and especially to create or strengthen conservative and reactionary tendencies. I do not question that wealth, or what then passed for wealth, and poverty, or what then was thought to be poverty, furnished grounds of difference between political elements and accounted for diflFerent political theories. No one can question the unintermittent conflict of interest between classes of society, or at least between grades of economic well-being. But I shall not attempt for the present to discuss these antagonisms or variations of interest, for we may well employ our time chiefly in considering the thought of the time that came to be embodied in actual working institutions of government. For even if we accept the belief — ^which I certainly do not — ^that the cause of all movement and all striving is economic discontent or the play of economic force, we may still be permitted to direct our attention to the legal formulation of demands, to the appearance of political formulae and principles, to the embodiment of those principles in institutions and actual political practices. There is at the present time, in my judgment, altogether too much of a tendency among historians to attribute motives solely to economic conditions. Though the old-fashioned treatment of the Revolution was misleading because of its failure to assess and weigh properly all kinds of economic antitheses, the fact remains that different principles of government were arrayed against each other; and it is quite wrong to imagine that men are not wiUing to sacrifice material gain for liberty and for the sense that they are not subject to the will of others.

Of course, as far as purely political argument went, it was directed by the Americans against the authority of Parliament in one or more particulars; they argued either that Parliament did not possess the right of taxation because that right belonged to the colonies, as constituent parts of the empire, or because, on general principles of human and British liberty, a body in which they were not represented had no right to taxation. These two lines of argument were not conflicting but mutually supporting. Let us notice here, however, that one of these lines of argument, based on the practices of the old empire, led finally to the establishment of the Constitution of the United States. The argument that the colonies as colonies, as constituent parts of the empire, had an indefeasible share of authority, the actual legal right to govern themselves in the matter of taxation and internal police, was an assertion that the British empire was not a simple centralized empire but one in which powers of government were distributed. As men by their conscious thoughts and open discussion at least assist in creating social and political order, it may properly be claimed that this method of protest against centralized authority in the empire helped to bring in the federal state/ It took a generation of experience, some experimenting, and a good deal of actual discussion and contemplation, before the frame and form of what I venture

^ The federal state, a system of organization now adopted in many parts of the world, was first put in working order when the Constitution of the United States was adopted. If we view such a state as one characterized by the classification of powers (or authorities) and the deposit of certain powers in certain places, that classification and the theory underlying it grew out of the practices of the old British empire. I mean by "powers" such things as the power to manage the post office, the power to regulate interstate and foreign commerce, the power to handle foreign affairs, all of which belong to the central government, while local commerce, the maintenance of local order, and a thousand other things are in the hands of the 'parts of the system. This whole subject is dealt with in my article on the "Background of American Federalism" in America and Britain. (N. Y. 1919.)

to call imperial organization was properly worked out and the Constitution of the United States adopted.

This may appear to you to have nothing to do with the developments of American democracy. But it must be looked upon as an achievement of a free people ; moreover, a suitable and viable scheme, whereby things essentially national could be managed by a national government while things essentially local could be handled by the State governments, was an absolute requisite for the stability of democratic institutions, as democracy was then developed ; it was necessary for the upbuilding of the spirit and essence of a wider democracy of continent-wide sympathies and loyalties. Furthermore, we are strangely likely to forget in these modern days that local self-government has always been considered a necessary part of democratic government. If in these days of continent-wide nationalism we lose sight of that fact, it should not be forgotten in considering the history of democracy. The participation of people in their own immediate government may still, possibly, be considered an essential quality of the democratic state.

The argument of the Revolution, as we have said, was directed against the authority of Parliamentary government, and, while much was said about the privileges of the colonies as political entities, a considerable part of the discussion concerned the rights of individual men and British citizens. Democracy as it developed in America was long involved in the task of finding suitable restraints upon government and asserting the right to be free from objectionable governmental control. Revolutionary debates began with protests against certain kinds of governmental activity, and for decades men discussed the need of having a limited and checked government if they would be free. James Otis's famous speech on the Writs of Assistance (1761) announced the privileges of British subjects, denied that an act of Parliament distinctly contrary to principles of British liberty was law, and declared that an act contrary to natural equity would be held void by the courts. Little as we know about Otis's statements, we can find in them

( 1 ) the belief that Britain had a constitution sufficiently plain to limit the authority of Parliament; (2) that there was such a thing as natural right beyond the touch of the most august legislative body in the world ; and (3) that an act violating natural justice was simply not a law at all.

If Otis's assertions had been quite unique or a mere oratorical pronouncement, they would not merit extended examination or comment ; but, as a matter of fact, they exemphfy various fundamentals of Revolutionary thought which were made over into American institutions of government and constituted in considerable measure the fundamentals of American democracy. ) We may notice, therefore, the idea of a constitution, belonging of course to Britain, protecting Enghshmen everywhere, something more real, tangible, and effective than the actual constitution such as the people of England then had or do have. The thing most nearly new, though here too, as I have said, Otis thought he found basis for it in British jurisprudence, was that a law contrary to natural law, that is, a law contrary to the fundamental law underlying all free government, was not law at all. He did not say that an act violating the Constitution was unjust or unwise or in violation of precedent; it was not law at all. The principles of natural justice were, moreover, beyond the reach of government.