The Purpose and Powers of the Senate, Part IV: the Minority of the Opulent

    By the time that the Philadelphia Convention got around to the topic of what purpose an upper house of Congress might serve and what powers it ought to wield, a great many decisions had already been made that would shape large portions of the relevant discussion. The most significant of these was undoubtedly the one which resulted in Congress being bicameral rather than unicameral, thus establishing the structural basis of the Senate’s very existence. Prior to this decision – since memorialized as the sealing of the so-called “Connecticut Compromise” – the assembled delegates had spent the better part of two months debating back and forth upon the merits of different schemes of elected representation without a consensus seeming likely to emerge.

    The representatives of the larger states – like Massachusetts, Virginia, and New York – were resolutely in favor of apportioning seats in Congress according to a thorough survey of population. The states with the largest number of residents would receive the most delegates and the states with the smallest number would receive the fewest, thus distributing legislative authority exactly in proportion to how widely the resulting statutes would be felt therein. If a tax were to be levied on some manner of consumer good, for example, it made all the sense in the world for the states containing the greatest number of people liable to pay said tax to have the greatest share of influence over how it was to be laid. The delegates that had been sent to Philadelphia by the smaller states – like Rhode Island, Georgia, New Hampshire, and Delaware – were naturally resistant to any such proposal, particularly as it would have more or less doomed them to near-total irrelevancy in the context of national affairs. Instead, they favored something like a continuation of the system described by the Articles of Confederation. Under the auspices of this selfsame document, each of the states was entitled to send as many as seven delegates to Congress – chosen by whatever means they desired – and each state delegation was entitled to a single vote. This represented a far more reasonable distribution of power, the representatives of the small states vehemently urged, in no small part because it acknowledged the fundamental equality of the states as legal entities. The likes of Virginia and New Hampshire were undoubtedly very different – in turns of climate, resources, and culture as well as population – but these differences by no means entitled one to claim a superior position over the other.     

    The two proposals which at length came to embody these dueling perspectives were the Virginia Plan, drafted by one James Madison (1751-1836), and the New Jersey Plan, authored by William Paterson (1745-1806). Under the terms of the former, the lower house of Congress was to be apportioned according to the populations of the various states while the upper house was to be filled by way of a ballot conducted in the lower house. Nominations for seats in the upper house were to be supplied by the states to be represented therein and the two houses were to elect a national executive by way of a joint ballot. The delegates sent to Philadelphia by the large states, as aforementioned, were generally quite pleased with this arrangement, specifically as it would serve to prevent their delegations in Congress from being outvoted by those who represented much smaller populations. But as the delegates from the small states understandably disliked the notion that their accustomed power was to be taken away, they quickly aligned themselves behind the counterproposal cited above. Not only did they hold it to be manifestly improper for population to be the only measure of legislative authority, but certain of them also held the shift from voting as states in Congress to voting as individual members to be too radical a departure from the procedures of the existing confederal government. As the aforementioned William Paterson accordingly noted at the time, “We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other. We must follow the people; the people will not follow us.”

    Notwithstanding the seeming incompatibility of these plans, other aspects of the relevant debate did move forward. Though Paterson’s New Jersey Plan did envision a unicameral legislature very much of a kind with how Congress operated under the Articles of Confederation, most of the delegates nevertheless showed themselves to be increasingly amenable to the idea of a bicameral national legislature. The British Parliament, after all, had an upper as well as a lower house, and so too – with the exception of Pennsylvania – did the legislatures of all thirteen states. And as long as there was going to be an upper house, a consensus also slowly began to form around the idea that its members ought somehow to represent a different class of people than were likely to fill the proposed lower house. Many delegates had grown disenchanted with the rank populism that had characterized post-Revolutionary politics in a number of the states and were accordingly eager for some means of restraining what was sure to be the similarly “democratic” character of the proposed national legislature. Ultimately, of course, the development of these ideas into concrete proposals could only go so far without the assembled delegates at some point establishing on what basis their new Congress was to be built and to function. Members of the Connecticut delegation had offered words of compromise as early as June 11^th – during which debate Roger Sherman (1721-1793) notably observed that,

As the States would remain possessed of certain individual rights, each State ought to be able to protect itself: otherwise a few large States will rule the rest. The House of Lords in England […] had certain particular rights under the Constitution, and hence they have an equal vote with the House of Commons that they may be able to defend their rights.

While, in the moment, this remark did little to ameliorate what had become the defining disagreement of the Philadelphia Convention thus far, it did set the stage for the breakthrough that was to come. For it was after not too much longer that the assembled delegates came to the common conclusion that the question of apportionment could no longer be set aside.

    As would often prove the case when the delegates were keen on finally settling a particularly thorny question, a committee was formed comprised of one member from every delegation and given the task of reconciling the competing interests of the large states and the small states. This body, meeting for the first time while the larger Convention was in recess for the observance of July 4^th, then swiftly moved to adopt almost exactly the kind of compromise proposal that Roger Sherman and his colleagues had been advocating for the better part of a month. Congress, the twelve committee members decided, was to be divided into an upper and lower house, with the former apportioned by population and the latter apportioned equally. Both houses would have the power to originate legislation, but – by way of a concession to the large states – only the lower house would have the power to propose bills for the levying of taxes. But while this seemed to strike an ideal balance between the interests of the two competing parties, the committee’s report was not immediately adopted by the Convention when it next met on July 5^th. Having been presented with some means of surmounting what had to that point been the largest single obstacle in their path, the assembled delegates naturally sought out and immediately fixated upon the next-most controversial question imaginable. Namely, they began to argue about how the lower house was to be apportioned. By population, they all agreed; but by what ratio, and to what extent?

    The disagreement at hand was uncomplicated, if fundamental. The delegates from states in which slavery remained economically essential – located mainly in the South – declared it only right and proper that the enslaved peoples residing therein be counted towards the apportionment of their seats in the lower house of Congress. The delegates from states in which slavery had been abolished or sentenced to eventual extinction – located mainly in the North – conversely asserted that it made no more sense to count enslaved peoples among the state’s populations than it did to apportion representatives for every cow, oxen, or draft horse. From the Northern perspective, the slaveowners seemed to want to treat their human property like farms animals when it benefitted them economically and like full citizens when it benefited them politically. And from the Southern perspective, slaves represented far too much in terms of their economic potential – and, in turn, the South’s economic capacity – not to be counted on the same basis as people who were free. At the heart of these dueling arguments, of course, was the essential calculus of political power. Under the scheme then being floated by the assembled delegates, the Northern, non-slave states would enjoy a larger representation in the lower house of Congress than the Southern, slaveholding states in the event that the proposed constitution was adopted. Not only that, but the rate at which the free population of the Northern states was growing compared to that of the Southern states seemed likely to ensure that this would remain the case for the foreseeable future. Unwilling to thus resign themselves to a perpetually inferior position within the national legislative sphere, the Southern delegates accordingly deployed all manner of argument possible in an attempt to convince their Northern counterparts to allow for the inclusion of their fast-growing slave populations in any scheme of legislative apportionment.

    While the aforementioned Southern delegates did not manage to achieve their desired end as they had originally stated it – with enslaved peoples treated as equal to free peoples for the purpose of Congressional apportionment – their core argument did receive some degree of recognition. Slaves would not be counted as equal to free residents for the purposes of apportionment but would rather have their numbers recorded at a ratio of three-fifths. As this same arrangement would apply to federal taxation as well as representation, the two sides appeared to arrive a mutually beneficial compromise. That is, in exchange for the Southern states agreeing to take on the tax burden of people whom they otherwise treated little differently from livestock, the Northern states permitted the inflation of their counterparts’ representation in Congress. Having thus settled upon a mechanism of apportionment – circa July 12^th, when a motion by a South Carolina delegate to return to counting enslaved peoples as equal to free peoples was handily defeated by a vote of the full Convention – the conversation shifted back once more to the proposal previously submitted by the aforementioned Committee of Twelve. When, after a few additional days of debate, the full Convention voted to approve the same – circa July 16^th – a handful of last-minute modifications were then proposed and approved and the question was finally as of July 23^rd. Congress would be bicameral, with a proportional lower house and an equal upper house. The members of the upper house would be assigned two per every state, and they would be entitled to vote individually rather than by delegation.

    The mechanisms of representation and election were but one piece of the puzzle, of course. Certainly, it was exceedingly significant that the Convention had finally agreed upon how their new vision of Congress was to be structured. Several major obstacles had been successfully overcome, and the revised national government which the assembled delegates had set themselves to designing was at long last beginning to take on a definite shape. But there remained, all the same, a great many unanswered questions as to how certain of the institutions whose outlines the delegates had succeeded in sketching would actually function in practice. The Senate, for example, while now fairly clearly defined as being the upper house of Congress whose members were distributed equally among the states, had yet to be granted many specific powers or responsibilities. Per the compromise proposal authored by the Committee of Twelve and ultimately adopted by the full Convention, it would refrain from proposing any new taxes or appropriations, but this could hardly have represented the full magnitude of the Framer’s intentions. State upper houses and executive councils, alike with their colonial counterparts, had possessed and exercised far more responsibilities than just acting as a second debating chamber with the relevant legislative assembly. It therefore stood to reason that the assembled delegates had similar plans in mind for the national upper house upon whose existence they had just lately settled.

    In point of fact, conversations to exactly this effect had been happening in some manner since before it was entirely certain what form the new Congress would take. As early as June 26^th, for example – one week before the formation of the Committee of Twelve – James Madison remarked upon what he perceived to be ideal purpose of an upper house in the midst of an oration on the oft-precarious nature of republican government. Mainly, he said – as recorded in Robert Yates’ Notes of the Secret Debates of the Federal Convention and Madison’s own Notes of the Debates of the Federal Convention – such a body ought to act as the primary representation of the nation’s landed interests. It may not have seemed a necessary thing at the present moment, when landed wealth was relatively widespread and those unlanded individuals who could vote were few in number, but this was bound to change in time. At length, Madison asked of his fellow delegates,

When we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government?

Tellingly, Madison’s next allusion was to the nation whose politics and culture were bound to exert the largest single influence upon the character of American government. “In England,” he said,

At this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other.

    Plainly, though the exact form of the Senate had not yet been established, Madison had already determined for himself what role it ought to play under the auspices of the proposed constitution. For preference, he explained, it should be a fundamentally conservative body, both in that it ought to possess, “Permanency and stability” in and of itself and in the sense that its members should represent the unchanging, immovable property of the nation. In part, this was so that the Senate might serve to “check and balance” the influence of the more democratic impulses that were bound to characterize the lower house of Congress. Runaway populism was a common feature of the various state assemblies over the course of the 1780s, and one for which Madison maintained a distinct distaste. It was also, however, something of a practical matter. Just as the British House of Lords represented the interests of the kingdom’s various landed estates, so might the American Senate act as the mouthpiece and the guardian of the landed interests of the American republic. Remove the House of Lords, Madison observed, and Parliament might see its way clear to seizing the properties of the landed magnates and redistributing them to those whom it finds to be in need. Absent a similar degree of legislative oversight, might not the same thing happen in America? Why should American landowners be more vulnerable to having their property rights violated than their British counterparts? Why shouldn’t they have an institution within the national government responsive to their particular interests and needs? Madison’s answer, of course, was that they should, and that the Senate ought to be that institution.

    The question at hand, for the record, which prompted these comments was whether or not the members of the upper house of Congress ought to sit for terms of nine years. Madison, as evidenced by his arguments in favor of making the Senate as stable and unchanging as possible, was obviously in favor. “The longer they continue in office [,]” he said of the prospective Senators, the better will the, “Minority of the opulent” be protected against the majority. Madison’s close ally during the Philadelphia Convention, James Wilson, was of much the same opinion himself, though his stated reasoning was less explicitly classist. Specifically, while he agreed with Madison that the Senate ought to be as stable as possible, Wilson showed himself to be particularly concerned with the foreign policy interests of the proposed national government. “Every nation [,]” he said, “Attends to its foreign intercourse-to support its commerce-to prevent foreign contempt, and to make war and peace.” And as it seemed to him that, “The Senate will probably be the depository of the powers concerning [,]” these selfsame objects, “It ought therefore to be made respectable in the eyes of foreign nations.” Doubtless, Wilson was reflecting upon some of the principal deficiencies of the existing national government when he made this observation. Under the terms of the Articles of Confederation, the foreign policy of the United States was the responsibility of Congress, either by way of its appointed Foreign Minister or through its own inherent power to draft and approve treaties. But while the latter mechanism granted every state an equal say when negotiating with foreign powers, the inability of Congress to impose its will upon the states – in terms of treaty obligations no less than taxes – meant that even those agreements which Congress managed to ratify were only ever theoretically enforceable. The nascent American republic’s reputation on the world stage had unsurprisingly suffered as a result, making it that much harder for the young nation to secure foreign loans, alliances, or treaties of amity and commerce.

    Wilson’s solution to this problem, at least in part, was evidently to vest the newly constituted upper house of Congress with both a substantial degree of responsibility within the sphere of foreign affairs and the requisite substance and gravitas to inspire respect both abroad and at home. “The true reason [,]” he argued accordingly,

Why G. Britain has not yet listened to a commercial treaty with us has been, because she has no confidence in the stability or efficacy of our Government. 9 years with a rotation, will provide these desirable qualities; and give our Govt. an advantage in this respect over Monarchy itself.

Granted, unlike Madison, Wilson did not tie the Senate’s usefulness to the social class of its prospective members. It was the, “9 years with a rotation” which he cited explicitly as allowing the body in question to fulfill its assigned responsibilities. But he also used terms like “respectable” and “dignified” to describe the character which he felt that the Senate ought to possess. And while these may not seem like particularly loaded terms now, they had a distinctly socio-economic connotation in the context in which Wilson deployed them. The man may not have been the scion of a wealthy landed family like certain of his Southern colleagues, but he had been the recipient of a very impressive education in his native Scotland, replete with an in-depth study of classical languages and a thorough exposure to the history and literature of Greek and Roman antiquity. This may not have placed Wilson in the same economic sphere as his adopted homeland’s equivalent of the British landed aristocracy, but it certainly would have located him in much the same social sphere. His conception of “respectability” and “dignity,” in short, would have been much the same as those of his friend and colleague Madison. A working man would not have qualified, however neatly and thoughtfully he comported himself. Nor would a yeoman farmer possessed of little enough land that he had to work it with his own two hands. No, the respectable and the dignified would have been gentlemen like himself, possessed of education and culture, refined and worldly. How else were they supposed to fulfill his stated foreign policy responsibilities? Whom else would foreign envoys deign to treat with but those whom they could hold in the same social regard as themselves? Wilson may not have said as much, but the implication of his words was there. The Senate needed to be dignified, he said, and in so doing aligned himself with a particular socio-economic interest.

    Virginia’s George Mason, during these same discussions, made this same case again perhaps most explicitly of all. Evidently in accord with the aforementioned Madison, Mason proposed that his colleagues take up the question of whether property ought to be a qualifier for election to the Senate. The question of duration had by this point already been settled, with only three states voting in favor of a nine-year term in office and all but four voting in favor of a six-year term. All the same, it appeared to the esteemed Virginian that something more was yet required. “One important object in constituting the Senate [,]” he accordingly observed,

Was to secure the rights of property. To give them weight & firmness for this purpose, a considerable duration in office was thought necessary. But a longer term than 6 years, would be of no avail in his respect, if needy persons should be appointed. He suggested therefore the propriety of annexing to the office a qualification of property.

It is interesting that Madison made no such suggestion, rather merely noting the purpose which he thought the Senate ought to fulfill. But then here was Mason, attempting to turn his colleague’s rumination into policy, specifically by barring those with insufficient property from serving. The question did not get very far, being voted down almost immediately, but this was by only a slim margin, six noes to five ayes. And it also wasn’t the first time on that particular day when someone among the delegates made a similar suggestion. On a separate question, at an earlier point in the proceedings, one Charles Cotesworth Pinkney had given voice to a very similar kind of sentiment.

    The question to which Pinkney’s commentary was directed had to do with how the Senate might possibly be funded. Specifically, the delegates were debating whether or not Senators ought to receive a stipend for their service and from where the funding for said stipends might come. Pinkney was among the first to respond to this inquiry, and his conception of the issue seemed to place him very much in a league with the likes of Madison, Mason, and – to a lesser extent – Wilson. It was his opinion, it seemed, “That no Salary should be allowed […] As this branch was meant to represent the wealth of the Country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service.” This was not a property qualification, specifically, and so was different from the mechanism which Mason would go on to suggest, but it would seem to have sprung from much the same line of thought. Madison had suggested earlier in the day that the Senate ought to serve as both the mouthpiece and the guardian of landed wealth in America. And then Mason suggested later in the day that the best way to ensure that “needy persons” weren’t appointed to the Senate was to attach some form of property qualification to the office itself. Pinkney’s proposal, while more definite than the one and less explicit than the other, nevertheless spoke to the same kinds of socio-cultural assumptions. All three men seemed to be fairly certain as to the function which they believed that the Senate should perform. It was to represent the interests of property – “the wealth of the Country,” as it were – be possessed of dignity and respect, inspire admiration abroad, and promote stability at home. Perhaps its members should have been screened based on their possessions. Perhaps they should simply have been made to donate their efforts absent any kind of recompense. But in any case, no matter how its membership was specifically defined, the Senate was to represent a particular kind of American possessed of a particular kind of perspective and interests. And while it would seem likely that not every delegate to the Philadelphia Convention shared this opinion, it is telling that the like of Madison, Mason, Wilson, and Pinkney did. Pinkney was one of the most prominent members of one of the most prominent families in South Carolina, while Wilson, Mason, and Madison were scholars par excellence. Their voices, in short, would have carried tremendous weight among their colleagues, and between them seemed to represent the most cogent vision of what the Senate should have been at this early stage in the relevant discussion.

    Granted, the composition and the character of the prospective upper house was not the only topic of discussion during this preliminary outing. A fair bit of time was also spent speculating upon the nature of the web of relationships which would necessarily come to exist between the Senate, the national government, the states, and the American people. The trigger for this line of thinking was the aforementioned probe into whether and how the Senate might potentially be funded. Pinkney, as cited above, argued that any funding at all was undesirable, specifically as it would serve to invite those other than the wealthy to serve. But while Benjamin Franklin voiced his agreement with this assertion – specifically as it seemed likely to stave off popular accusations that the Philadelphia Convention delegates were simply designing sinecures for themselves – the motion went down to defeat, six to four, when it was ultimately put to a vote. The debate that followed gave voice to some of the reasons for this defeat, all the while also shining a light on certain latent concerns. Oliver Ellsworth, for example, shortly rose to argue that individual Senators ought to be paid by the states they represented. In part, he said, this would serve to furnish the national government with a certain amount of domestic confidence. After all, if the states were made to help fund a thing, they’d be more inclined to see it succeed than if they were otherwise uninvested. And as far as the viability of the Senate was concerned, making the states financially responsible would serve this end as well. If the Senate was to be the only body in which the states would enjoy a direct representation, they would naturally go to no small lengths to ensure that their delegates were paid promptly for their service and were in attendance as often as possible. As federal stipends would not seem to accomplish these ends, Ellsworth was accordingly disinclined to endorse them.

    James Madison, meanwhile, was vehemently in favor of Senators being paid out of the national treasury as opposed to the state treasuries. The latter procedure, he argued, would have represented,

A departure from a fundamental principle, and [subversive of] the end intended by allowing the Senate a duration of 6 years. They would if this motion should be agreed to, hold their places during pleasure; during the pleasure of the State Legislatures.

To be sure, this notion would have pleased no small number of Madison’s colleagues then present. As Ellsworth had just made manifest, some of the states would have much preferred the Senators assigned to represent them in Congress serve at their pleasure rather than the pleasure of the national government and viewed control over their salaries as an ideal means to accomplish the same. But this was not at all in keeping with what Madison had presently envisioned. To this thinking, the essential purpose of the Senate was to act as, “A firm, wise and impartial body,” which, “Might not only give stability to the Genl. Govt. in its operations on individuals, but hold an even balance among different States.” Ellsworth’s motion, he continued, “Would make the Senate like Congress, the mere Agents & Advocates of State interests & views, instead of being the impartial umpires & Guardians of justice and general Good.” Evidently, while the conversation at hand was still ostensibly about how a certain department of a new national government might be funded, Madison had his sights set on something of much broader significance. What concerned him, it seemed – and Ellsworth as well – was not so much how certain things were to be paid for under the administrative framework he was working to hash out, but what these financial relationships would imply about that selfsame framework’s essential purpose.

    Ellsworth, though he spoke only briefly, nevertheless made it clear that he viewed the national upper house which he and his colleagues were actively discussing as fundamentally a mechanism by which the states would be permitted to make their interests known. It accordingly followed that Senators should be paid from the treasuries of the states that appointed them. Not only would this promote a real sense of investment on the part of the various state governments in the very concept of a strengthened central government, but it would allow the states to very directly dictate a significant portion of the national agenda. What this seemed to amount to, on Ellsworth’s part, was a belief in the creation of a space within the national political sphere into which the states would be able insert themselves with more or less free reign. As far as Madison was concerned, however, this would do little more than, “Make the Senate like Congress [under the Articles], there mere Agents & Advocates of State interests & views [.]” The Virginian, as he went on to explain, hoped for far more from any attempt to substantially modify the national compact. He had no interest in giving the states yet another space in which to throttle each other over petty disagreements. Rather – in keeping with his generally centralizing outlook at the time – he believed that the Senate should serve a much grander purpose on behalf of the American people as a whole. Far from simply echoing state interests and state concerns within the halls of Congress, Madison believed that the Senate ought to act as, “A firm, wise and impartial body,” organized along state lines but fundamentally separate and distinct from the same. It should be a mechanism of stability, he asserted, not disagreement; an instrument of balance, he avowed, not parochialism. Senators should be, “Impartial umpires & Guardians of justice and general good [,]” he was convinced, and they would never be able to serve this glorious end if they were the creatures of the states that certain of his colleagues wished them to be.

    It was early yet, of course, to be making such grand declarations. Indeed, it wasn’t entirely clear yet whether there was going to be an upper house at all under the terms of whatever document the assembled delegates managed eventually to compile. Different draft plans were still competing for support, no manner of consensus had yet been forged on the subject of legislative representation, and there was more than time enough for the whole project to go up in smoke. But for all that, clearly, some among the delegates had given the matter a fair deal of thought. It might not have been clear whether the reformed version of the Continental Congress would contain anything like a conventional upper house, but the likes of James Madison, and George Mason, and James Wilson, and Charles C. Pinkney were already sure enough of what the thing ought to look like. Their vision was still coming into focus, of course, and was sorely lacking in certain finer details. But they already possessed, between them, a fairly cogent understanding of the what the Senate’s essential character ought to be. Respectable, they said. And dignified. And stable. And impartial. A bastion of wealth. The mouthpiece of the propertied interests. Certain of their colleagues did not agree with this assessment, particularly as it appeared to cut against the interests of the states. But to a far greater degree than the advocates of state influence within the Senate, the proponents of certain class interests were very much in possession of the initiative.                             

The Purpose and Powers of the Senate, Part III: Re-framing the Conversation

    Notwithstanding the affirmation of the previous entry in this series – namely that the British House of Lords and the various colonial executive councils each played a role in shaping the assumptions of the architects of the United States Senate – the Framers also doubtless brought to bear their various personal experiences with the upper houses of their respective states. The Articles of Confederation, of course, made no provision for a national upper house, thus leaving it up to the Framers to craft one out of whole cloth if they decided that their new national government was in need of the same. But by the time that the Philadelphia Convention was first convened in May of 1787, the states had been operating under their own constitutions for the better part of a decade and most of the resulting governments included some form of upper house. And when one also recalls that many of the people who we now refer to as the Framers of the United States Constitution also previously helped to draft their respective state constitutions, it would seem worth considering the extent to which these men’s ideas about upper houses – having previously been shaped by their upbringings in the Anglo-American world – were refined and given form by the constitutional arrangements ultimately adopted by their home states. The House of Lords was one thing, and the colonial governments another – neither of which these men could have controlled – but the fact that many of them had helped to craft the upper house of the state in which they lived surely conditioned how they viewed the very concept itself. Specifically, it must have seemed to each man that his state was the only one that had got the whole idea of an upper house right and that the government of the United States would benefit from following suit. Bearing all of this in mind, some of the upper houses of the various states – circa 1787, of course – would seem to warrant examination.

    Consider, to that end, what the frame of government in force in Massachusetts at the end of the 1780s had to say about the responsibilities previously exercise by the colonial executive council. The Massachusetts Executive Council, recall, had been both the upper house of the colonial assembly and a kind of executive advisory committee intended to assist the Crown-appointed governor. Its members were elected – on the consent of the governor – by the lower house of the General Court, were not intended to represent any established geographical districts, and tended to be drawn from only the most influential and the most loyal elements of contemporary colonial society. But while the constitution which the people of Massachusetts chose to ratify in October of 1780 preserved virtually all of these responsibilities – and even retained the nomenclature of “Executive Council” for the state’s primary gubernatorial advisory committee – it also split off the Council’s legislative responsibilities and created a separate Massachusetts Senate whose sole and exclusive purpose was to make law as a part of the General Court. With offices like Treasurer and Attorney General now being popularly elected, responsibility for executive appointments was also taken away from the Council, though it retained its established rights in terms of judicial offices and state magistrates. And whereas the colonial-era Executive Council had been distinctly non-geographical, both its direct successor and the new Massachusetts Senate were to represent specifically defined districts. Both Senators and Councilors were to be popularly elected and both Senators and Councilors were to serve for set terms in office.  

    Evidently, as these alterations would seem to suggest, the framers of the Massachusetts Constitution took some amount of issue with the way things had previously been done. Rather than rely on the Governor and the lower house of the General Court to nominate and ratify a series of councilors based on nothing more than their respective influence, popularity, or loyalty, they evidently concluded that it made better sense to tie individual council seats to specific geographic districts and to allow the people residing in those districts to fill them by way of popular election. Not only did this represent a democratization of the resulting institution, but it also demonstrated the extent to which the framers of the new Massachusetts Constitution favored tangible qualifications over intangible ones. It was no longer enough, they seemed to believe, for a person to claim a council seat based on their status as a property owner or their preeminence in a particular professional sphere. Rather, in keeping with the general trend among the American political classes of the era towards rationalization and standardization, the Governor’s chief advisors were to speak on behalf of the particular communities whose votes they had won. In addition, seemingly dissatisfied with the mixing of legislative and executive responsibilities – and the resulting conflicts of interest – which the colonial version of the Executive Council in large part represented, the authors of the Massachusetts Constitution also made a point of splitting off the Council’s existing legislative duties and incorporating them into a distinct and separate Massachusetts Senate. While the result was a more complex arrangement of institutions than had previously been the case – with a Governor, an Executive Council, a bicameral legislature, and a series of state courts – said arrangement was also a good deal more rational. With fewer overlapping responsibilities and more clearly separated spheres of influence, the organs of the newly minted government of Massachusetts were less likely to become embroiled in internal conflicts over jurisdiction and more likely to serve the people of that state to the fullest extent possible.

    The political elites in Virginia followed broadly similar logic to that of their brethren in Massachusetts when they set themselves to the task of drafting their own state’s first constitution some four years earlier in 1776. As was the case in the Bay State, Virginia’s existing colonial executive council was essentially to be split into its legislative and executive functions. The former, by which the council acted as the upper house of Virginia’s legislature, were to be reconstituted in the form of a distinct and separate Senate, the members of which were to be popularly elected to four-year terms to represent a series of geographic districts. Like the colonial council, the Virginia Senate could propose or amend any and all types of legislation, money bills being the exception. And unlike the colonial council, the Virginia Senate would possess no judicial responsibilities whatsoever. The colonial council’s executive functions, meanwhile, were to be transferred to a reconstituted Council of State, “Consisting of eight members, [to] be chosen, by joint ballot of both Houses of Assembly, either from their own members or the people at large [.]” But while in Massachusetts the similarly-described Executive Council maintained its colonial predecessor’s authority over judicial appointments, the Virginia Council of State was stripped of essentially all of the power that it had previously held. “The two Houses of Assembly,” read the new constitution,

Shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney-General, to be commissioned by the Governor, and continue in office during good behaviour.

All that this left to the members of the Council was the right to advise the Governor – but not to provide their consent – in the performance of his duties while commanding the state militia or making recess appointments to any of the posts cited above.

    Bearing all of these changes in mind, it would seem as though the framers of Virginia’s first independent constitution approached the upper house of their existing colonial government in much the same spirit of rationalization as would their counterparts in the Bay State. The fact that they also decided to create a separate legislative body to take over the Council of State’s legislative duties, for example, appears to speak to a similar desire on their part to eliminate potential sources of conflict between the various branches of the state government by more clearly delineating the spheres of influence within. The fact that they also took away the colonial council’s judicial responsibilities and instead vested them in a Supreme Court of Appeals likewise appears to indicate their rationalizing intentions. That the framers of the new Virginia Constitution seemed to approach the task of refashioning their state’s government with a similar set of objectives in mind to those of their compatriots in Massachusetts, however, should not be permitted to obscure the fact that the end results which the two groups achieved were at times markedly different. Whereas the Massachusetts Executive Council – suitably restructured – still looked to maintain some degree of executive authority, for example, the Virginia Council of State was reduced to little more than an advisory body with no binding power to speak of. In part, of course, this due to the two groups’ differing treatments of executive power.

    In Massachusetts, the framers of the state’s new constitution seemed to believe that a governor and an executive council, if handled properly, could still be trusted to exercise certain meaningful responsibilities. In Virginia, conversely, the framers of that state’s new constitution transferred almost all of the responsibilities that had belonged to the former colonial governor over to the reconstituted legislative assembly, leaving very little for the new state governor to do and even less for the aforementioned Council. Granting that this was not all that surprising given the mistrust of executive authority which the events of the Revolution had inculcated amongst the contemporary American political elite, it is noteworthy all the same the extent to which this outlook also impacted American attitudes towards the concept of an upper house. While neither the colonial upper houses nor the British House of Lords had been particular sources of enmity during the events which culminated in the formal break between Britain and the Thirteen Colonies, the fact that the colonial executive councils tended to exercise power either through or at the behest of the relevant colonial governors meant that weakening the latter necessarily involved weakening the former as well.

    As should by now come as no surprise whatsoever, the framers of Pennsylvania’s first independent constitution – circa 1776 – went farthest of all in following this trend to its logical conclusion. Or perhaps, depending on how you look at the thing, they went all the way in the opposite direction. On the one hand, it might be said that the new constitution merged the office of governor with the existing Provincial Council, in the process creating a directory-style executive wherein no one member exercised exclusive authority. On the other hand, however, one might also reasonably claim that said constitution simply eliminated the Provincial Council and turned the office of governor into a collective body of executives. By way of its responsibility over the appointment and commissioning of, “Judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people [,]” the new Supreme Executive Council was nearer in its function and responsibilities to the old colonial governor. But it also closely mirrored the old Provincial Council in terms of how it was structured and constituted. Its members were to be elected on a county-by-county basis for a term three years, with a period of four years required to elapse before they could stand for re-election. It is also worth noting that Pennsylvania’s new constitution created a second committee-style body known as the Council of Censors, the purpose of which was,

To enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution: They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed.

Pursuant to these objectives, the text went on to say, the Council of Censors, “Shall have power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution.” The Censors were to be chosen in pairs by every city and county in Pennsylvania and were to serve for a term not exceeding seven years.

    An noted above, Pennsylvania’s implementation of the executive council concept in its first constitution represented a significance departure from the trend which most of its sister-states had followed or would follow. Rather than shift most of what had previously been thought of as exclusively executive responsibilities from the office of governor and its attendant council to a popularly-elected legislature – as had been the case in Virginia – or continue the practice of dividing executive authority between a singular governor and either an elected or appointed committee – as would be the case in Massachusetts – the framers of Pennsylvania’s first independent constitution instead consolidated all executive power in the hands of an elected, representative committee while reserving some quasi-judicial functions for a second body responsible for constitutional oversight. That these alterations were accompanied by the wholesale elimination of the office of governor – as it had previously existed, at least – was very much in keeping with the aforementioned sense of disdain with which most of the contemporary American political classes had come to regard traditional executives. But the creation of council-style executive or judicial bodies – in the form of the Supreme Executive Council and the Council of Censors, respectively – represented a wholly novel rearticulation of the pre-exiting colonial power structure. Evidently, the framers of Pennsylvania’s first constitution were still attached to the idea that executive decisions were best made with the formal input of elected representatives of the state’s various geographic communities. Indeed, compared to the terms of the previous colonial charter, Pennsylvania’s new constitution doubled down on the idea that executive authority ought to be a collective endeavor, and that whereas legislation was best left to a proportional representation of the whole number of citizens therein, the execution of the laws and the appointment of judicial and executive officials rightfully belonged to a direct representation of the state’s existing communities. 

    Naturally, the variations on the existing colonial model of executive council which Massachusetts, Virginia, and Pennsylvania respectively adopted as part of the first independent constitutions were not the only forms which the former Thirteen Colonies chose to embrace. These three were among the largest states, of course, and the most wealthy and influential. And each of them, owing to their wildly divergent colonial origins, arguably represented very different cultural approaches to concepts like political hierarchy and executive power. But there were certainly other approaches implemented in the other colonies-cum-states. The new Maryland Constitution, for example, described a council very much like that of Massachusetts – its five members to be chosen by a joint ballot of the bicameral state assembly – but whose authority over appointments extended beyond just court officials to include, “The Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government [.]” New York’s first constitution, meanwhile, created two such bodies which variously combined executive, legislative, and judicial prerogatives. One of them, to be comprised of, “The chancellor, and the judges of the supreme court, or any two of them, together with the governor,” was, “To revise all bills about to be passed into laws by the legislature [.]” This body, which could return bills it found to be “improper” to the state senate for reconsideration, was to be known as the Council of Revision. The other, which included among its members the Governor as chair and one Senator from each of the upper house’s four electoral districts, conversely saw to the appointment of, among other offices, the State Comptroller, the Secretary of State, the Attorney General, the Surveyor General, the Chancellor, the justices of the New York Supreme Court, sheriffs, district attorneys, all other judges, city and county clerks, mayors, and all military officers under state jurisdiction. This body, known as the Council of Appointments, was to meet every year, with its Senator-members appointed in preparation for the same.  

    Notwithstanding these alternately major or minor adaptations of their colonial-era executive councils – and the different combinations in which they sorted and mixed executive, judicial, and legislative authority – there do seem to have been some basic trends to which the framers of most of the various state constitutions were broadly determined to adhere. Just about every state, it seems, felt that certain executive prerogatives were best exercised by representatives of the various communities therein. This marked a departure from the practice of the executive councils during the colonial era but arguably moved the state councils closer in structure to the makeup of the House of Lords. The Lords, after all, in addition to functioning as the representative institution of a particular class within British society, also arguably served the purpose of providing the landed estates of the Kingdom of Great Britain with a voice in the nation’s legislative processes. And while not all of the state constitutions mirrored this arrangement particularly closely, most of them did seem to agree that geography – and, to some extent, history – were factors which ought to be woven into the logic and the practice of government. While Virginia’s Council of State was a pale shadow of its colonial predecessor – in terms of its authority and responsibilities – the Virginia Senate was required to partake in a joint ballot with the House for the commissioning of Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, the Secretary, and the Attorney-General. Massachusetts, in the form of an executive council, similarly created an elected and geographically structured body for the purpose of appointing judicial officials. Pennsylvania took this farther still by choosing to elect to people from every city and county to an executive council whose members then voted amongst themselves on who to appoint to what. And then there was New York, which required its upper house, elected geographically, to partake in the geographic appointment of a subgroup of senators to cooperate with the popularly elected Governor in the appointment of a wide and vast array of state, county, and even municipal officers. The system adopted by Virginia was demonstrably quite a simple one, and that which was described in New York’s constitution particularly complex. For their differences in form, however, they performed a broadly similar function. That is, they created systems of government wherein geography as well as population played a significant role in the formation of public policy.

    Or perhaps more specifically, it was that all of the framers of the various state constitutions seemed to have arrived at a broad consensus that certain ostensibly executive functions ought to be placed in the hands of collective bodies whose members represented communities rather than the people at large. To some extent, this kind of thinking was a holdover from the colonial era. As previously discussed, most of the colonies were possessed of some manner of executive council which functioned as a combination of legislative upper house and gubernatorial advisory committee. What the framers of the various state constitutions did, in terms of adapting these existing structures and institutions, was both democratize and rationalize them. Appointed councilors were made elected, terms limits were introduced, geographic qualifications were set, and responsibilities were moved around in such a way as reflected the political culture of the jurisdiction in question. Aristocratic Virginia placed significant stress on landed wealth while de-emphasizing the accustomed preeminence of the executive branch of its government. Conservative Massachusetts maintained the basic structure of its colonial-era government while altering the composition and responsibilities of its various constituent institutions. And radically democratic Pennsylvania, in a bit of an optimistic fervor, merged the office of governor with its former advisory council and created a second quasi-judicial body to hold the rest of its government to account. In every case, its bears noting, some role was set aside for geographic as well as popular representation. And whenever responsibility for certain duties was to be shared away from the traditional executive and granted to another body, the geographic representatives were invariably those so chosen.

The Purpose and Powers of the Senate, Part II: The Lordly Ones

    Before delving into the specific discussions that took place during the Philadelphia Convention (1787) whose ultimate product was the United States Senate, it would first seem to bear examining certain of the philosophical assumptions that the Framers brought to the debates. If one is to understand why the men who authored the Constitution felt it necessary to craft an upper house possessed of certain specific prerogatives, after all, one should really start by examining some of the comparable institutions which existed within the 18^th century Anglo-American political tradition. Most of the Thirteen Colonies, for example, possessed legislative assemblies with an appointed upper house, the existence of which doubtless helped to condition how the various individual Framers thought about political power and its connection to social prestige. Just so, existing at that same time either alongside or above the colonial assemblies – depending on who was asked and when – was the British Parliament itself, possessed of a hereditary upper house as well as an elected lower one. None of the colonial governments contained anything all that similar to the British House of Lords, of course, particularly in terms of the latter’s composition and responsibilities. But it is obvious enough, when one compares the basic frameworks of the various colonial administrations with that of the government of Great Britain, that the inhabitants of 17^th and 18^th century British America were broadly intent on recreating as much of the British style of government as they possibly could manage. America might not have been home to a landed aristocracy on the same order as was contemporary Britain, but the American colonists – or perhaps just the political classes therein – nevertheless seemed to hold to certain aristocratic assumptions about authority and who should wield it. Since the Framers, to a man, had been raised and educated either within the British political sphere itself or in an American facsimile thereof, it would accordingly seem to bear discussing the nature of both the 18^th century British House of Lords as well as its various colonial American counterparts.

    As it existed in the 1770s and 1780s, of course, the House of Lords was substantially more powerful that it would later become. Indeed, with the exception of the period preceding and immediately following the events of the English Civil War (1642-1651), the House of Lords was by far the more powerful of the two chambers of Parliament from the time of its creation sometime in the 13^th century until the beginning of its gradual diminution in the early 1830s. Prime Ministers during this period often came from the Lords – the last “commoner” to hold the office as of the 1770s was George Grenville (1712-1770) between 1763 and 1765 – and the body possessed a number of responsibilities which have since been stripped away. With the exception of “money bills” that levied taxes – responsibility for which had been informally vested in the Commons by the end of the 17^th century – the Lords could both originate and reject any species of legislation. On more than one occasion, this latter prerogative nearly led to the dismissal of highly consequential matters of policy, with perhaps the most notable example being the Treaty of Utrecht (1713). Negotiated in an attempt to settle the costly War of the Spanish Succession (1701-1714), the treaty was opposed by the vehemently ani-French Whigs who then controlled the upper house of Parliament for what they perceived as its undue leniency towards the soon-to-be-defeated Kingdom of France. The newly-elected government of Tory leader Robert Harley (1661-1724) reacted to this potential scuttling of its desired peace initiative by coming to an agreement with Queen Anne (1665-1714) – who was of like mind that the war had gone on long enough – to create a dozen new Tory peers so as to overwhelm the recalcitrant Whigs. But while the ploy succeeded, setting the pattern for future confrontations between the Commons and the Lords, both the authority and the right of the upper house to reject legislation would remain fundamentally unquestioned for almost two centuries further.

    The other major power still claimed by the House of Lords in the 18^th century – that of hearing cases at law – in many ways spoke to its earliest origins as an outgrowth of the English Royal Court. Following the Norman Conquest of 1066, the kings of the House of Normandy established a system of administration known as the curia regis. A kind of council comprised of the king’s officers of state, high clerics, and the landed magnates of the realm, the curia regis essentially served as the king’s government, hearing petitions, dispensing justice, levying taxes, and fielding diplomatic entreaties, all as the situation required. Over time and in response to any number of factors, the curia began to fracture and evolve into a number of more specialized institutions, among them the Exchequer, the Courts of Chancery, the Privy Council, and the Cabinet. One of these institutions, of course, was Parliament, formed out of the larger version of the curia which included both members of the landed gentry and representatives of the various borough and counties. But while the upper house of this new, more specialized body no longer laid claim to all of the responsibilities that had fallen to the curia, it did maintain certain of the judicial functions that had previously belonged to its predecessor. Specifically, as the various lower courts were established to hear cases that belonged to increasingly specialized branches of English and British law, the House of Lords adopted the role of the Kingdom’s court of last resort.

    The exact nature of this responsibility was one that developed over time. Initially, within the context of its functional authority as the highest court in the land, the Lords would accept submissions from petitioners, vote on whether to reject them or hear them, and then send those that they accepted to be considered by a specially formed committee. Over time, this committee gained the ability to accept or reject petitions on its own authority while the actual number of submissions fluctuated significantly. Between the beginnings of the 16^th century and the 17^th century, the number of cases heard by the Lords declined precipitously, only to then increase once more beginning in the 1620s. By the end of the 1660s, as a result of a dispute between the Lords and the Commons over the limits of the latter’s judicial jurisdiction, the Lords finally lost the ability to hear submissions directly and instead adopted the practice of taking cases strictly on appeal. While further conflicts between Parliament’s upper and lower houses over the nature of the former’s judicial responsibilities would continue to take place over the century that followed, this nevertheless marked the final major alteration thereto until at least the 1870s. The union of Scotland and England into the Kingdom of Great Britain in 1707 for a time seemed as though it might create a gap in the Lord’s jurisdiction by disallowing it from hearing cases previously decided in the established Scottish courts, but by as soon as 1708 this had been resolved in the Lords’ favor. It was accordingly the case, by the middle of the 18^th century, that the House of Lords functioned as the final appellate court for the whole of Great Britain and was thus capable of ruling finally and decisively upon virtually any subject encompassed by British law.

    From the perspective of the 21^st century, of course, the notion that an assortment of otherwise unqualified aristocrats might possess the authority to deliver a final ruling upon any matter of law is apt to be cause for confusion. How were these men supposed to come to a decision if they were not required to be versed in the law? And from what source did they derive the essential right – unelected as they were – to decide upon cases effecting potentially millions of people? For at least a partial answer to these questions, one might reasonably turn to Thomas Hobbes (1588-1679), the English philosopher and polymath who famously articulated an early example of the “social contract” theory of politics in his 1651 treatise, Leviathan. Published in the aftermath of the English Civil War, Leviathan strongly reflected Hobbes’s royalist leanings and his firm belief in absolute monarchy by seeking to articulate a logical justification for the same that had little to do with claims of “divine right.” The rationale underpinning the judicial authority of the House of Lords was not particularly significant to the resulting thesis, to be sure, but Hobbes nevertheless did give voice to certain of his observations on that subject. He opined, for example, in Chapter XXVII of Part II, that while 

The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence.

In spite of their seeming incapacity to properly hear the cases brought before them, however, Hobbes nevertheless considered the Lords no less adequate to rule upon matters of law or equity than a were jury of common men. One did not need to be great scholar of the law to capably interpret it, he explained, for those who are responsible for making a final ruling need only be made aware of the facts of the case as supplied by the witnesses and the facts of the law as supplied by the advocates. “In the ordinary trialls of Right,” he thus explained,

Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of.

    Hobbes not only believed that the Lords were competent to hear and rule upon cases at law, of course. He also held that it was right for them to do so. The reason for this, in essence, was that landed peerage of the Kingdom of England – and later that of the Kingdom of Great Britain – occupied a unique legal sphere fundamentally separate from that of the common subjects of the same. The aristocracy, along with the Crown, were the principal holders of property across the length and breadth of the kingdom. In consequence, while petitions which exclusively involved the persons or property of commoners could reasonably be heard within the confines of local, civil courts wherein the deciding juries were composed of commoners in turn, any petition whose resolution was bound to touch upon or otherwise affect the property or prerogatives of the landed peerage was required to be heard by the appropriate class of adjudicators. Only then, Hobbes explained in Chapter XXIII of Part II, “Having his own Judges, there could be nothing alledged by the party, why the sentence should not be final [.] It would have been improper to dispense justice otherwise, to allow commoners to rule upon persons who were manifestly not their peers. And since nearly every law which was approved by the House of Commons was bound to exert some manner of effect upon either the persons or the property of the landed peerage of the kingdom, it made perfect sense that the Lords should possess the final word on all such matters whatsoever.   

    Naturally, this constitutes a fairly classist reading of the nature of law and equity wherein the notion of “peer” – in terms of one who is fit to stand in judgement of another – has been substantially warped to encompass broader material considerations. A commoner, in Hobbes’s estimation, could never be the peer of an earl or a viscount, if for no other reason than their interests were bound to be vastly unalike. Indeed, a viscount might be said to exist as something more than just a particularly wealthy individual, for they do not own their estate in the same way that a wealthy commoner might claim to do. On the contrary, the property whose use they enjoy is something which exists separately from either their use of it or their family claim to it. Politically speaking, it forms a part of the administrative organization of the larger kingdom itself, and in the event that a viscount dies without heirs, their title and their lands will accordingly revert back to the Crown. The Crown might decide to grant that same title again, and it might remain with the lineage in question for centuries thereafter, but it will still always revert back upon extinction. All of this would seem to place aristocratic property and aristocratic personages in something broadly overlapping both public and private categories of law. The House of Lords might thus be said to represent as much the interests of a particular class of people as the interests of the landed estates of which the kingdom is comprised. They are the trustees of the Crown, in a sense, and while it stands to reason that their legislative authority should be exercised in lieu of the Crown, their judicial authority embodies something more like a mix between the public interests of their estates and their own private interests – and rights – as individuals.

    Bearing in mind the influence that such an arrangement of interest was bound to exert upon the assumptions and priorities of the Framers of the Constitution – the lot of them being students of Britain’s contemporary political culture – it also warrants examining the various ways in which the governments of the Thirteen Colonies sought to replicate, reject, or otherwise address the same policy areas that the House of Lords claimed for itself. While there were no landed titles in British America representing grants of favor by the Crown, there were those families whose wealth, extent of property, and social pretensions placed them in the same relative social category as the aristocracy of contemporary Britain. And there was also, within almost all of the colonial governments, some kind of hybridized administrative body which formed a bridge between the legislative prerogatives of the relevant colonial assembly and the executive prerogatives of the relevant colonial governor. But while the scions of these various pseudo-aristocratic families did often hold a monopoly on the membership of these colonial upper houses, the resulting socio-political arrangement was not quite an exact mirror of that of the contemporary House of Lords. For one thing, the membership of the colonial “executive councils” was never formally hereditary, its members instead either elected by the colonial lower house or appointed by the Crown on the advice of the governor. And for another, while some of the executive councils did possess judicial responsibilities comparable to those of the British House of Lords, most of them were confined to the legislative and executive spheres.

    Consider, by way of example, the Executive Council of the Province of Massachusetts Bay. By the terms of the Massachusetts Charter of 1691, the Executive Council was to serve as the upper house of the colony’s legislature – the Massachusetts General Court – and as an advisory body to the Crown-appointed governor. Its members – some twenty-eight in number – were to be elected by the lower house of the aforesaid General Court, and their responsibilities were to encompass legislation, judicial and administrative appointments, and, in the event that neither a governor nor lieutenant-governor were available, providing for the administration of the colony as a whole. Prior to the enactment of the 1691 charter, the previous “Council of Assistants” also acted as the colony’s highest court of appeal, but this responsibility was removed when Massachusetts Bay became a Crown Colony at the end of the 17^th century. Election to the Executive Council was neither for life nor for a set term; its members rather served “at the pleasure” of the governor. And while landed interests were certainly representing within the Council, the body itself was not tied to any particular estates or jurisdictions. Rather, as it suited the needs of the Crown and its chosen governor, the composition of the Council reflected a mixture of patronage and powerful interests. Granted, the Crown did not have a hand in filling Council seats directly, but it could nevertheless be assured by the fact that it did choose the governor that those who outwardly favored the Crown’s prerogatives would be well-represented therein. In consequence, while the Massachusetts Executive Council almost certainly encompassed a more varied set of perspectives than was present in the contemporary House of Lords – chiefly those of lawyers and merchants – they were nevertheless united by a common sense of affinity with the Sovereign.

    The equivalent institution within the colonial government of Virginia functioned and was structured along very similar lines. The Virginia Council of State was comprised of twelve members who were likewise seated quite irrespective of geography and who were also possessed of both legislative and executive responsibilities. But whereas the members of the Massachusetts Executive Council were elected – pending the consent of the governor – by the lower house of the colonial legislature, the Virginia Council of State was filled strictly by royal appointment. Said appointments were not made by the Crown in isolation, of course; the governor customarily supplied the necessary recommendations. But since the governor was likewise an appointee of the Sovereign, the Council of State was almost exclusively a mechanism of legally sanctioned royal patronage. Membership was accordingly conditioned by both loyalty and wealth. The latter, of course, was the price one paid in exchange for official preferment, while the former functioned as both a symbol of one’s fitness and a guarantee of faithful service. A well-heeled planter, after all, could devote more time to their official duties than an up-and-coming lawyer whose practice demanded a goodly portion of their attention. And since the Virginia Council of State also mimicked the House of Lords by serving as the court of last resort for all cases before the colonial bar, it also made sense for those most invested in colonial society to make the final determination in all matters of colonial law. More than was the case in Massachusetts, therefore, the executive council of the Province of Virginia functioned as the chief organ of the landed interests of that colony.

    While the governing charter of the Province of Pennsylvania – circa 1701 – also made provision for an institutional body with both legislative and executive powers, it rather unsurprisingly deviated from what was otherwise the British American norm. Unlike most of its counterparts in the other colonies, for example, the Pennsylvania Provincial Council was both popularly elected and geographically structured. Every county in Pennsylvania was to send three members to sit on the council, amounting to no less than eighteen and no more than seventy-two in total, and every councilor was to serve for a period of three years. Also, whereas it was the norm in most colonies for the executive council to possess legislative authority in equal measure to the elected colonial assembly, this ceased to be the case in Pennsylvania after 1701. While an earlier charter – enacted in 1683 – stated that,

The Governor and provincial Council shall have the power of preparing and proposing to the Assembly, hereafter mentioned, all bills, which they shall see needful, and that shall, at any time, be past into laws, within the said province and territories thereof [,]

The Frame of Government adopted in 1701 – at the end of a lengthy period of strife between colonial proprietor William Penn (1644-1718) and the inhabitants of the colony he had founded in 1682 – made no mentioned whatsoever of any legislative authority which the Provincial Council might claim to wield. That body, in consequence, entirely ceased to function as the upper house of the colonial assembly and instead restricted its activities to creating and filling judicial offices, providing advice to the governor, and administering the colony whenever its chief executive was absent. The Provincial Council, in consequence, might be said to represent the most significance deviation from the model embodied by the contemporary House of Lords. It possessed neither legislative nor judicial responsibilities and functioned more like an appendage of the colony’s executive branch than a conventional upper house. And yet, in spite of its comparatively unusual set of prerogatives, the Provincial Council was one of the only institutions of its kind in the colonies that mimicked the House of Lords in terms of the latter’s geographic structure. Councilors were not the rulers of Pennsylvania’s landed estates, to be sure, but they nonetheless shared with their aristocratic opposite numbers a strong sense of regionalism in terms of the counties they represented.

    Granting that a great many things transpired between the beginnings of the American Revolution in the 1760s and 1770s and the creation of the United States Senate during the Philadelphia Convention of 1787 that most assuredly changed how the Framers felt about the very concept of an upper house, it nevertheless warrants examining some of the related assumptions with which these men were raised and educated. They may not have possessed as direct a relationship with the British House of Lords as might have been the case had they been born and lived in Britain proper, but many of the philosophical underpinnings of that selfsame body had been substantially replicated within the various colonial governments that had been established in British America over the course of the 17^th and 18^th centuries. The Virginia Council of State was not populated exclusively by landed, hereditary aristocrats – formally speaking, at any rate – but it did function as the chief organ of the propertied class within the context of the government of colonial Virginia. Just so, while the Massachusetts Executive Council was an elected body whose members served at pleasure rather than for life, it did still possess the same legislative function as the House of Lords by permitting those individuals most closely affiliated with the Crown to exercise some degree of influence over the making of law. And while the Pennsylvania Provincial Council represented counties rather than semi-private landed estates, it still likely served the purpose of placing – and teaching Pennsylvanians to place – geography and regionalism next to population as one of the key elements of any legitimate framework of government. The Framers would bring to bear concepts and ideas which had little to do with their specific lived experiences, of course, when they gathered in Philadelphia in the spring of 1787 and set to work designing a national government to replace the Articles of Confederation. In some cases, in fact, they would pointedly reject the assumptions represented by House of Lords and its various colonial equivalents. But those assumption would still remain an essential aspect of the discussion in question, and the end product – i.e., the US Senate – would accordingly, in some fashion or another, bear their indelible stamp.