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 18th 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 17th and 18th 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 18th 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 13th 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 17th
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 18th 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 16th century and the 17th
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 18th 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 21st
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 17th 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 17th and 18th
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.
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