Observations on the New Constitution, and on the Federal and State Conventions, Part VIII: Character

            Accepting that Mercy Otis Warren was in every measurable way the equal of her male counterparts, in terms of the quality and substance of her written commentary, it remains to determine where on the spectrum of American Revolutionary politics she might best be located. The works of Adams, Hamilton, and Jefferson, among others, have provided generations of scholars with insight into the philosophical and partisan leanings of these giants of the Founding Generation. Warren having possessed, if Observations is any indication, as keen a mind and as sharp a pen as any of them, it stands to reason that a thorough reading of that same work ought to yield a reasonable approximation of what sort of political being she was; a measure of her character, as it were. Aside from all of the specific concerns she expressed in Observations about the nature and origins of the proposed constitution, which have already been discussed at length, there remains a great deal to be gleaned from that document about how Warren identified herself, her sympathies, and her personal philosophy.

            Indeed, a search of Observations for certain key words, phrases, and ideas provides a fairly clear indication of what faction among the Revolutionary Generation, if any, Mercy Otis Warren belonged to. Accordingly, several characteristics embodied within the selfsame text suggest themselves as evidence of Warren falling within what might best be referred to as the classical Whig tradition. These include her evident regard for transparency in government, her revulsion of standing armies, her distaste for monarchy, and her reverence for republican ideals like self-sacrifice, the rotation of offices, and the primacy of public service. Bearing in mind her already-established affinity for Anti-Federalism, Warren might therefore best be described as more a Jeffersonian than a Hamiltonian; a person for whom centralised power was almost always corrosive to the best intentions of those in authority. The text of Observations would seem to amply bear this out, in the general sense – being an essay intended to defeat the adoption of a centralised federal government – as well as the specific.

            Warren’s ardent belief in the need for transparency in government – referring to a high degree of openness, ease of communication, or accountability – is made clear by arguments she deployed in sections one, two, twelve, and eighteen of Observations. Evidently she viewed both the proposed constitution itself, as well as the manner in which it was created, as being purposefully obscure in a way that would otherwise deny the American people the fullest expression of their natural rights. Of the former she stated, in section one, that the new federal charter represented, “A most complicated system of government; marked on the one side with the dark, secret and profound intrigues, of the statesman, long practised in the purlieus of despotism [.]” To her mind, rather than benefit the average American citizen who was suffering in the 1780s under the burden of crushing debt or a lack of viable markets for their produce or manufactures, the proposed constitution had been designed to aid the security and enrichment of only those most skilled in the arts of intrigue and subterfuge.

There would appear, in this expression of distaste for politically-motivated subterfuge, a note of similarity with the English Country Party distaste for the bowing, scraping, and scheming of the opposing Court Party. Country Party Whigs like Lord Bolingbroke had decried the shift of power away from the House of Commons and into the hands of the Prime Minister that occurred in the late 17^th and early 18^th centuries at the hands of men like Robert Walpole. This occurrence was not dissimilar to the shift of authority that Warren, and indeed many of the Anti-Federalists, claimed to perceive in the proposed constitution, in that it threatened to weaken the states and empower the federal government. If the financiers and government ministers of early 18^th century Britain had constituted a Court Party, mutually reinforcing each other’s ambitions while monopolizing power for themselves, it might have accordingly seemed to critics of the new federal charter like Warren that the Framers and their merchant allies hoped to constitute an American counterpart upon the adoption of a more centralized, and therefore more amendable, form of government.

Warren likewise appeared to detect a degree of intrigue, and an accordant lack of transparency, in the manner by which the proposed constitution was submitted to the states for ratification. As aforementioned, the document in question, once a final draft was agreed upon by the Framers, was submitted to the thirteen states for ratification by specifically-called conventions. By the time Warren sat to pen Observations, the convention called by the government of her home state, Massachusetts, had already met and voted to approve the proposed constitution (187-168). This represented the closest result then witnessed (Rhode Island would later vote to ratify, 34-32), and in such a narrow margin of victory Warren evidently perceived a degree of manipulation and corruption unbecoming of a supposedly free people. “By the chicanery, intrigue, and false colouring,” she wrote in section eighteen,

Of those who plume themselves, more on their education than their political, patriotic, or private virtues -- the imbecility of some, and the duplicity of others, a majority of the Convention of Massachusetts have been flattered with the ideas of amendments, when it will be too late to complain [.]

Doubtless Warren hoped that whatever flaws the proposed constitution possessed, and whatever criticisms people like her brought forth, would be openly and exhaustively discussed during the ratifications debates with the understanding that the process would not move forward until all major concerns were reasonably satisfied. Surely this would have constituted an open and accessible process, whereby men of good conscience could air their grievances and expect to be given a fair hearing. What Warren perceived in the actual proceedings, however, was evidently quite the opposite. “Political, patriotic, or private virtues” did not rule the day, but were rather defeated by “chicanery, intrigue, and false colouring.” Rather than hold fast to the need for amendments before ratification, opponents of the Constitution were somehow charmed into agreeing to pursue them after ratification. What other explanation could there be for this abrupt about face than a resort to trickery?

            There is no evidence presently accessible to suggest that corruption was behind the ratification of the Constitution by the Massachusetts convention. Nor, it should be added, is it completely beyond imagining that money, favors, or threats were exchanged during the proceedings. Ultimately, the validity of Warren’s suspicion is immaterial. What matters in the present context is that her expression of concern and disdain indicated a desire on her part for the public affairs of her country to be carried out in an honest, open, and transparent manner. Perhaps her mistrust of the Massachusetts result was due mainly to it running contrary to her own desire; perhaps if the convention had voted to reject the proposed constitution by a similarly close margin she would not have perceived the presence of a conspiracy. There can, in truth, be no way of knowing. That being the case, it is necessary to take the author of Observations at her word. Opposed to the proposed constitution itself though she undeniably was, the nature of certain of Warren’s written criticisms indicate that she was eager to promote, beyond what she felt about the document under consideration, transparency in the manner by which it was being publicly evaluated.

            That being said, Warren also levelled more specific criticisms at the Constitution and the system of government it outlined. These too provide insight into her political and philosophical sensibilities. Section two of Observations contains such a complaint, which, because of its brevity, will be excerpted here in full. “There is no security in the proffered system,” Warren wrote, speaking of the proposed federal government,

Either for the rights of conscience or the liberty of the Press: Despotism usually while it is gaining ground, will suffer men to think, say, or write what they please; but when it is established, if it is thought necessary to subserve the purposes of arbitrary power, the most unjust restrictions may take place in the first instance, and an imprimator on the Press in the next, may silence the complaints, and forbid the most decent remonstrances of an injured and oppressed people.

Two fairly reasonable conclusions may be gleaned from this passage. The first is quite general; because she expressed alarm that the rights of conscience and free expression were not expressly protected by the proposed constitution, it’s exceedingly likely that Warren supported the inclusion of a bill of rights. The absence of such a fundamental protection of individual rights was a common complaint among the Anti-Federalists, and many of the amendments that were proposed during the ratification process sought to remedy the apparent defect. Freedom of religion, freedom of expression, and freedom of the press were no doubt high on the list of rights to be protected, and accordingly are all guaranteed by the First Amendment to the United States Constitution that was adopted, along with the rest of the Bill of Rights, in December, 1791.

            The second conclusion to be drawn from the above-quoted extract is more specific than the first, and has to do with the 18^th-century American conception of press freedom, as distinct from an orthodox British conception of the same. Public discontent aimed at the enforcement of censorship was admittedly widespread in contemporary Britain, particularly in the 17^th century, but government responses tended to be slow in coming. Accordingly, many liberal reformers took up the cause of press freedom, most notably poet John Milton (1608-1674) and philosopher John Locke (1632-1704). Milton’s Areopagitica (1644) was a particularly eloquent and impassioned defence of freedom of expression that was published during the tumult of the English Civil War. It has since proven highly influential, though it fell on deaf ears at the time of its publication. Locke made greater headway in the 1690s when he successfully swayed a parliamentary committee to abandon the renewal of the Licensing Act of 1662, though he seemed at the time more concerned with the effect it would have on the regulation of copyright than the promotion of widespread press freedom. The resulting conclusion of government-regulated newspaper licensing in 1695 (before which all publications required government approval) did allow for a much greater degree of press freedom, even into the 1770s the Crown continued to bring libel suits against publishers or authors whose work was considered to be seditious. This institutional rigidity doubtless contributed to the general lack of formal legal protections within the English (and later British) common law for freedom of expression in its various forms. The Bill of Rights of 1689, an extremely important influence on the Declaration of Independence and the American Bill of Rights, provides an interesting example of the same. Though said charter guarantees an individual right to bear arms and a right to petition the government for a redress of grievances, it contains no protections for a broad freedom of speech or freedom of the press. Speech within parliamentary debate was declared free from impeachment or questioning, but the general population received no such security.

In light of the many ways that English history, politics, philosophy, and law are known to have influenced the opinions and actions of the American Founders, it would seem, on the surface, far from improbable that they would have experienced similar conditions in the colonies, and in turn would have developed similar opinions about the place of free speech and a free press in their public discourse. Warren, however, was clearly in favor of a free press, holding it as the proper forum for, “The most decent remonstrances of an injured and oppressed people,” and therefore a likely target for aspiring despots. How this came to be concerns both the particular kinds of English philosophy that the colonial American elites were drawn to, as well as the influence of certain specifically American paradigms. Areopagitica and the political discourse of John Locke, along with a great swath of English radical literature like Cato’s Letters, found a receptive audience among the educated classes in colonial America in the 17^th and 18^th centuries. The sense of protest inherent in the work of these great liberal advocates no doubt helped condition the way many literate Americans regarded the role of public discourse, government, and the press. The result was a somewhat more tenuous and combative relationship between the colonial governments who attempted to enforce censorship and the publishers and editors who attempted to defy it. The libel trial of John Peter Zenger (1697-1746) provides a particularly illustrative example of this often confrontational dynamic.

            German by birth, Zenger migrated to New York with his family in 1710 and found work as an apprentice to printer William Bradford (1663-1752). In 1725 he became a commercial printer in his own right, and in the 1730s began publishing The New-York Weekly Journal. In 1733, Zenger became embroiled in a highly public confrontation with William Cosby (1690-1736), newly-appointed governor of the Province of New York. After publishing a series of articles highly critical of some of Cosby’s actions (wrangling with the Executive Council over his salary, replacing the head of the New York Supreme Court with someone more favorable, etc.), Zenger was charged with libel by the colonial government and subsequently brought to trial in 1735. Amidst widespread pubic fervor over the case, Zenger’s lawyers defended his decision to publish the offending material on the grounds that nothing that was proven to be truthful could be considered defamation. The jury ultimately found in Zenger’s favor, and though subsequent governors attempted to reassert press censorship up through the 1770s, the connection between literary truth and liberty of the press became firmly lodged in the American public consciousness.

            A further expression of this concept can be found in yet another printed affirmation of individual rights, in this case the Virginia Declaration of Rights that accompanied that state’s first constitution in 1776. Drafted by Virginia lawyer and legislator George Mason (1725-1792), the document affirmed a great many prerogatives, both as they pertained to the community at large as well as to individual citizens. These included, among others, a proscription against excessive bail, excessive fines, and cruel and unusual punishment (a direct lift from the Bill of Rights of 1689), a guarantee of the right of trial by jury, and a prohibition against the hereditary possession of public offices. Of particular interest is section twelve, which declared, “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” Within the colonial American context, and certainly within the British, this clear affirmation of press freedom represented a major break with precedent. In spite of public agitation to the contrary, no government in the Anglo-American world to that point had ever endorsed such an open-ended assurance of free expression. Admittedly, the Virginia Declaration of Rights likely represented the high tide of American revolutionary liberalism. Subsequent events, including the successful ratification of the Constitution, would prove that a sufficient portion of the American population was amenable to some restrictions on the exercise of their rights in the name of security and stability. That being said, the convictions that motivated the Declaration’s drafting and approval were in part sustained in subsequent years by a vocal subset of Americans who continued to be highly suspicious of centralized authority, at times to the point of paranoia, and highly active in the protection and promotion of the rights and privileges won during the recent conflict with Britain. Mercy Otis Warren was undoubtedly a member of this political and philosophical community, and argued accordingly in her 1788 Observations.

            Besides making explicit calls for administrative and political transparency, and arguing strongly in favor of freedom of the press, Warren also made clear her personal ideology by stating in Observations her unequivocal disdain for the idea of a standing army. As opposed to a militia, which is theoretically composed of ordinary citizens called to serve during times of crisis, a standing army is a professional military force that serves during peace as well as war. While this may sound, in an era when few countries do not possess some kind of permanent military establishment, like a rather innocuous proposition, Warren found the implications of an army always at the beck and call of a central government extremely distressing. “Freedom revolts at the idea,” she wrote in section six,

When the Divan, or the Despot, may draw out his dragoons to suppress the murmurs of a few, who may yet cherish those sublime principles which call forth the exertions, and lead to the best improvements of the human mind. It is hoped that this country may yet be governed by milder methods than are usually displayed beneath the bannerets of military law.

What seemed to concern Warren, if this passage is any indication, was the power that placing a permanent military at the command of a relatively small group of people (like a government) represented, and in turn the temptation to abuse that power for personal or political gain. A militia was not nearly so threatening because, customarily, its existence as a military force was dependent on the will of the political community it served. If not called to arms by the appropriate legislative authority, Parliament or the various colonial legislatures in the Anglo-American tradition, such a militia represented a minimal threat to said community. Accordingly, the manner in which it might be put to use, say, influencing the outcome of an election or silencing public dissent, was limited by its very nature.

A standing army was an altogether different, and far more threatening, beast in the eyes of many Americans who had become accustomed to the exclusive use of militias because it essentially possessed a life of its own. Once called into existence, it persisted, constantly trained and constantly armed, and yet always at the command of a body (like a government) whose everyday concerns were mainly political. And to what end? What could possibly be the purpose of keeping a force of men in arms when they have no enemy to fight? What mischief might they resort to, to occupy their time and justify their existence? Worse yet, what mischief might they be put to, by those who commanded their allegiance? Suppressing “the murmurs of a few” was a likely start, and the end of it might only be guessed at. Warren attempted as much, further on in section six of Observations. “At the rescript of the Monarch,” she wrote, a standing army,

May either be employed to extort the enormous sums that will be necessary to support the civil list – to maintain the regalia of power – and the splendour of the most useless part of the community, or they may be sent into foreign countries for the fulfilment of treaties, stipulated by the President and two-thirds of the Senate.

This additional passage further indicates the ends to which Warren feared a standing military, in a specifically American context, might be deployed. Particularly telling is her association of military power, taxation, and the pomp and circumstance that often accompanies expressions of arbitrary authority. By tying the existence of a standing army to the maintenance of the “regalia of power” and the “splendour of the most useless part of the community,” Warren emphasized the capriciousness a military establishment might be forced to serve, and the resulting danger such an entity posed to the community at large.

            This was a mentality very common within the political culture of Revolutionary America. The late war with Britain had frequently been characterized as a crusade against arbitrary power, unrepresentative taxation, and European-style militarism. The United States was, by comparison with its enemy, a very humble nation (materially and economically), highly concerned with the rights of its citizens, and highly disdainful of traditional hierarchies. It stands to reason, therefore, that upon the achievement of victory in 1783 there were those in America who sought to turn their newly-empowered sense of righteousness inward in an effort to purge the nation of any lingering monarchical aspects and thereafter prevent backsliding. Standing armies were a perennial bogeyman put to use in these efforts. Critics of Britain had summoned the spectre of military oppression during the colonial period, particularly after incidents like the 1770 Boston Massacre, and American Whigs (or Anti-Federalists, as the case may be) carried on the rhetorical and philosophical tradition through the 1780s between the end of the Revolutionary War and the adoption of the United States Constitution. Doubtless they felt able to hold forth on the dangers of unchecked militarism because, though the United States had itself just emerged from a costly war in which it had made use of a traditionally-trained and organized fighting force, the Continental Army was unlike its European counterparts, and certainly differed from what Americans had experienced of the British Army.

            Whereas sizeable numbers of British soldiers had been stationed in the American colonies during the 1760s and 1770s in spite of the fact that the last declared war had ended in 1763, the life of the Continental Army was essentially coterminous with the length of the Revolutionary War. Born in 1775 out of a desire to defend the rights and liberties which Congress believed the British government was actively encroaching upon, the force was funded and supplied by the various states – accompanied, as George Washington and Alexander Hamilton attested, by much wrangling and hand-wringing – for the duration of the war, and in 1783 was demobilized and reduced to little more than a token garrison force. In this sense, the Continental Army behaved much more like a militia than a permanent military establishment. That Washington resigned his commission as commander-in-chief in December, 1783 was no doubt symbolic of this fact for many of his contemporaries; America’s great general, a man who in Europe would jealously guard his rank and the status attached to it, relinquished his position on his own initiative. Given the significance of this gesture alone, and what it said about the nation that the United States hoped to become, it is thus not hard to understand why people like Mercy Otis Warren balked at even the slightest nod in the direction of approval for a permanent military establishment in the text of the proposed constitution. The United States was not a nation that sought martial glory, or attempted to enforce a preferred outcome on other nations by its overwhelming military might. No doubt it seemed to Warren and her contemporaries that it fell to them to prevent it from becoming such.

            Of course, American antipathy for the concept of a permanent military during times of peace had deeper roots than the history of the Continental Army and the selflessness of George Washington might suggest. In addition to the suspicion with which Enlightenment thought regarded unchecked militarism, drawing upon the history of Ancient Rome and the role that the Roman Legion played in the transition from republic to empire, there were also specifically British precedents for disdaining or fearing standing armies that no doubt influenced American philosophy and political thought. The 17^th century, perhaps the most turbulent and most influential period in British history, witnessed the attempts of two monarchs to consolidate their power in the form of military establishments, either by circumventing the authority of Parliament to call men to military service (Charles I), or by creating standing armies during times of peace as a guard against domestic instability (James II). Charles attempted the former during the opening phase of English Civil War (1642-1651) when he set about using the antiquated Commissions of Array in an attempt to expand his military following. Without going into too much detail, the Commissions were a means by which a monarch could raise an armed force on his own authority without the approval of Parliament. Charles resorted to issuing Commissions of Array in 1642, centuries after they had ceased to be commonplace, in response to the efforts of Parliament to cut off his ability to control the county militias by taking away his customary appointment of the Lord Lieutenants (who raised and commended the individual militias). Though the Commissions failed to greatly affect the military disposition of Charles’ forces, they did represent something of a propaganda victory for the Parliamentarians. By attempting to unilaterally and arbitrarily assert his authority to call to arms a large military force in order to do battle with the elected representatives of the realm, Charles ostensibly confirmed the veracity of the Parliament’s accusations that he was little better than a tyrant.

Charles’ son, James II, became similarly associated with the threat of military tyranny when he attempted to create and enlarge a standing army over the course of his brief reign (1685-1689). In fairness to James, his time on the throne was particularly contentious, and his reaction to instability was largely a matter of self-preservation. The converted Catholic ruler of a kingdom dominated by a firmly entrenched Anglican hierarchy, he faced rebellions in England (led by nephew James Scott, Duke of Monmouth) and Scotland (led by Archibald Campbell, Earl of Argyll) soon after attaining the throne, and was ultimately deposed by a third rebellion (led by Dutch Prince William of Orange) in 1688. His desire to seek the protection of a standing army that answered to his command alone is therefore understandable. That being said, the antipathy that James’ efforts generated doubtless contributed to his ouster during the Glorious Revolution of 1688, and proved strong enough to guarantee the inclusion of an appropriate clause in the aforementioned Bill of Rights of 1689. Said document specifically mandated, in defiance to the efforts of King James, that no standing army would be permitted to exist in England during a time of peace without the express consent of Parliament. By the dawn of the 18^th century it had thus been effectively and unequivocally determined that peacetime armies were not justified by the traditions, laws, or history of England, and that the creation of military forces was the exclusive responsibility of the elected legislature.   

            It would be a gross generalization to conclude that because most of the members of the Founding Generation were of British descent that they were all therefore heavily influenced by British history, philosophy, literature, or law. Several among their number where of Dutch or French extraction, and a great many more expressed a strong affinity for the work of French philosophers like Gabriel Bonnot de Mably or Charles-Louis de Secondat, better known as the Baron de Montesquieu. That being said, it is an observable, demonstrable fact that many of the Founders did draw inspiration and example from the history of Britain, and in particular from the work of some of the country’s more radical social and philosophical reformers. It’s entirely possible that Mercy Otis Warren possessed no personal knowledge of the attempts of Charles I and James II to increase the power and autonomy of the monarchy by skirting Parliamentary authority. It seems, however, far less likely given the content of Observations that she was unfamiliar with the work of authors and essayists like Thomas Hobbes, John Milton, and John Locke who had championed the rights of the people, and Parliament, over the prerogatives of the Crown during Britain’s chaotic 17^th century. In spite of their at-times limited popularity at home, these men, and other like them, went on to wield an outsized influence with the 18^th-century Anglo-American colonial elite. Combined with the post-Glorious Revolution reverence for “the rights of Englishmen” that seems to have permeated British culture by the era of the American Revolution, the ideas that these reformers put forward helped to produce an American political culture that was inordinately suspicious of centralized authority and the many mechanism by which it exerted itself. Standing armies were chief among these mechanisms to be feared; British history and radical philosophy attested to the fact, and the experience of the Revolutionary War doubtless sharpened many Americans’ sense of mistrust towards any who supported the creation of a military establishment in the United States.