America's Political Inventors

The Lost Art of Legislation

George W. Liebmann

• Publisher: I.B. Tauris
• Year: 2017
• Print ISBN:
  9781788311243
• Edition: 1
• eBook ISBN:
  9781786723017
• Topic: Politics & International Relations
• Subtopic: Political Biographies
• Index: Politics & International Relations

Recent American political developments, including the election of Donald Trump, reveal profound disquiet with the highly centralized political regime based on discretionary allocation of funds and powers to interest groups that has developed since the creation of emergency institutions after America's entry into World War I. This book demonstrates the effectiveness in American history of measures conceived in a different spirit, addressing the population at large, rather than particular interest groups, relying on citizen and local initiative, and founded not on the distribution of frequently unearned benefits and powers but on reciprocal contributions and obligations. George W. Liebmann discusses John Winthrop and his foundation of New England towns; John Locke and the creation of Southern plantations; Thomas Jefferson and his scheme for the organization of Northwestern townships and American territories and states; Joseph Pulitzer and the origins of municipal home rule; John Wesley Powell and the creation of reclamation districts; Hugh Hammond Bennett and the fostering of soil conservation districts; and Byron Hanke and the development of residential community associations. The book concludes with a number of public policy proposals relating to housing, urban renewal, care of the elderly, immigration and youth unemployment conceived in the same spirit. Liebmann brings to light little-known facts concerning the growth of practices and institutions that Americans take for granted. His book will be of interest to students of biography, history and government.

1

John Locke and Southern Plantations

The character of today’s Southern local government owes something to its colonial heritage. Although several American constitutions carried with them the influence of great political theorists, including Jefferson, Madison and James Wilson, few realize that Southern government, at its inception, also owes something to one of the greatest of political theorists, John Locke. Locke’s Fundamental Constitutions of Carolina (1669) will not be found in most collections of his works, though the manuscript is written in his own hand; he was 37 years old and secretary to Sir Anthony Ashley Cooper, third Earl of Shaftesbury,¹ and many later writers prefer to assume that its text is not chargeable to him.² Both Locke’s career and some of the Lockean themes in the Fundamental Constitutions make this conclusion questionable. Moreover, a letter from Sir Peter Colleton to Locke written in October 1673 refers to “that excellent forme of government in the composure of which you had so great a hand.”³ Daniel Defoe, in his remonstrance on behalf of the Carolina dissenters, published in 1705 as “Party-Tyranny,” referred to:

those Constitutions I know have obtained upon the World to be the contrivance of the Old Earl of S[haftes]bury; but I think I have very good authority to assure the World Mr. Lock[e]‌ had the Right of Parentage to the former […] [T]hey hustled the Infant Government into the World without Leading-strings, and turned it loose before it could stand alone.⁴

Letters to Locke by Nicolas Toinard and Henri Justel refer to “vos constitutions” and “vos loix,” and it has been shown that Locke was involved with the affairs of Carolina almost constantly from 1668 until his death in 1704.⁵ By 1763, Voltaire had declared: “behold Carolina, of which the wise Locke was the legislator.”⁶

1. John Locke, 1632–1704 (Library of Congress)

In 1720, A Collection of Several Pieces of Mr. John Locke was published in London with the Constitution of Carolina the first.⁷ The prefatory letter by a Mr. (Pierre) Des Meizeaux related:

You have here the Constitution printed from Mr. Locke’s copy, wherein are several amendments made with his own hand. He had presented it as a work of his to one of his friends, who was pleased to communicate it to me.

Des Meizeaux, a Huguenot refugee from the Edict of Nantes, was an associate of Locke’s patron Lord Shaftesbury. The first edition was published only 16 years after Locke’s death in 1704.

2. Title page of John Locke, Two Treatises of Government (London, 1690) (Library of Congress)

It is a distinct understatement for one writer to say that Locke was “the author with his master in a way not yet fully worked out of the notorious Constitutions of Carolina.”⁸ For, according to Neal Wood,

Locke was involved in the scheme as Secretary of the Lords Proprietary in 1668–75 and he later performed the same function for the Council for Trade and Plantations under Shaftesbury’s presidency. Most important, from 1696 to 1700 Locke was a commissioner of the Board of Trade, an advisory and policy-making body that became the architect of England’s mercantile imperialism. In all these positions he participated in the framing of domestic as well as colonial agrarian policy.⁹

Locke’s biographer Maurice Cranston observes:

Minutes in Locke’s hand show that he attended regularly in his capacity as secretary the meetings of the Lords Proprietors of Carolina until June 1675. The Lords Proprietors, who had powers to grant titles of nobility, bestowed on him in April 1671 the rank of landgrave in the aristocracy of Carolina—the title to be his and his heirs’ forever. At the same time they gave him four thousand “barona” or estates of land in the colony. As the aristocracy of Carolina never materialized, the title was an insubstantial one and even the land appears to have yielded no rent.¹⁰

It is said that this was “contrary to the King’s Charter which stated that only inhabitants and not individuals living in England could be given such status.”¹¹ The declaration of the proprietors of April 4, 1671, declaring him landgrave by its terms, was given because of “his great prudence, learning and industry, both in settling the form of government and in planning colonies on the Ashley River.”¹²

Cranston cites a “notebook Locke kept in 1672 [which] contains a great number of entries on the subject of Carolina.”¹³ As noted by Barbara Arneil, “Cranston destroys the attempts of Victorian biographers to make Locke a political innocent in all of Shaftesbury’s intrigues.”¹⁴ Locke became a merchant adventurer, investing £200 in an enterprise in the Bahamas (which had been ceded to the Lords Proprietors of Carolina in 1670) and sold his stock at a profit;¹⁵ he also invested £600 in the Royal African Company in 1674–5.¹⁶ He was said by Cranston (and later by Mary Ann Glendon) to consider that “a life of action was a necessary part of the life of reason […] a man could not discover truth by sitting still and thinking but only by personal experience of life.”¹⁷ Although the Fundamental Constitutions may be “the ugly duckling of Lockean scholarship,” his responsibility for and annotations on them have been noted by a number of scholars; the only provision from which he explicitly noted his dissent was Article XCVI of the first printed version declaring the Anglican church to be the official religion.¹⁸

Both Locke and Shaftesbury believed in the economic benefits of religious toleration. Both spent time in Holland, which epitomized the commercial benefits of toleration. Shaftesbury was said to be “the complete progressive capitalist in politics; he might almost have been invented by Marx.”¹⁹ The Fundamental Constitutions reflected “interest in moving the rich—that is, those who had money and the ability to plant—to the new world in order to ensure the success of the plantation.”²⁰ The land grants and aristocratic titles were thus not as much at variance with Locke’s conception of natural rights in property subdued by labor as might be supposed. Locke was hostile to free appropriation of frontier lands, deploring the failure of Virginia to settle colonists in towns.²¹ “Labour, rather than occupation, would begin property. And those who tilled, enclosed, and cultivated the soil would be its owners. England superseded the right of occupation by the Amerindians by virtue of their specific form of labour.”²² He was an opponent of idleness and beggary as they produced “relaxation of discipline and the corruption of manners, virtue and industry.”²³ His views on beggary and idleness closely resembled those giving rise to the laws of settlement and to the Poor Law Amendment Act of 1835.

Locke, however,

adhered to an ontological distinction drawn between the Amerindian as “natural” pre-Christian man who, with the fullness of time would be transformed from his natural state into civil Christian man, and the African black who was somehow less than human. In other words, the latter could be enslaved while the former could not.²⁴

He was never explicit about this. His “just war” theory, which upheld the temporary enslavement of Native Americans, could not extend to African-Americans, whose slavery was hereditary and extended to their families and was not founded on conquest.²⁵ This lacuna did not go unnoticed: “how is it that we hear the loudest yelps for liberty among the drivers of negroes?”, Samuel Johnson asked,²⁶ while Jeremy Bentham summarized Locke’s thought as: “Property the only object of care to government. Persons possessing it alone to be represented. West Indies the meridian for these principles of the liberty-champion.”²⁷ Jeremy Waldron refers to the problem as “a contradiction which exists only by virtue of our own late twentieth or early twenty-first century ideas about the political integrity of an intellectual life.”²⁸

The proprietors’ charter gave them wide powers, with three restrictions. They were required to recognize the “liberties, franchises and privileges of Englishmen,” to uphold freedom of conscience, and to subject taxes to the “approbation of freemen.”²⁹ It also declared: “You are to order the people to plant towns.”³⁰

The Constitutions did not assail but reinforced the institution of slavery, with its later resonance. Article CX referred to a freeman’s “absolute power over his negro slaves.” The reference to “power” was added in Locke’s own hand; there is no “mistaking either his tacit commitment to this brutal provision or to the hold the master-slave relationship had over his political imagination.”³¹ This was to be unaffected by religious principles, a paradoxical outcome of Locke’s belief in religious toleration. Article CVII provided: “Religion ought to alter nothing in any man’s civil state or right.” Articles CVII and XCVII recognized the right of slaves to choose their religion without the threat of expulsion or ill-treatment but without affecting “that civil dominion his master has over him.” One was a freeman according to Article XCV if one acknowledged “a God and that God is publicly and solemnly worshipped.” “Any seven or more persons, agreeing in any religion, shall constitute a church or profession,” so that “Jews, heathens and other dissenters from the purity of Christian religion may not be scared and kept at a distance from it” (Art. XCVII). “No person of any other church or profession shall disturb or molest any religious assembly” (Art. CII). “No person whatsoever shall disturb, molest or persecute another for his speculative opinions in religion, or his way of worship” (Art. CIX). Provision was made for affirmations as well as oaths (Art. C). Naturalization required only subscription to the Fundamental Constitutions (Art. CXVIII). It is alleged that the single provision added by Shaftesbury was the provision for establishment of the Anglican church in Article XCVI. In planning the future of the colony, Article XLII preferred “numbers of men […] to largeness of dominions.” The purpose of the government, per the preamble, was that it be “made most agreeable to the monarchy, under which we live, and of which this province is part.” The preamble therefore denies the right of revolution. Slavery was unconvincingly legitimized on the basis of slaves’ status as “captives taken in a just war” (Art. LXXXV), in which “by his fault [he] forfeited his life, by some act that deserves death” (Art. XXIII). Slavery is “the state of war continued, between a lawful conqueror and a captive.”

The Constitutions resembled New England town constitutions in being a covenant requiring freemen to accept its contents in writing before the registrar of a precinct (Art. CXVII), including a commitment to maintain the established form of government. There is a restriction on the right of emigration in Article CXXI that appears to qualify Locke’s compact or consent theory,³² though its last clause is ambiguous:

He, that has once, by actual agreement […] give...

Table of contents

• Cover
• Endorsement
• Series Information
• Title Page
• Copyright Page
• Contents
• List of Illustrations
• Introduction
• 1 John Locke and Southern Plantations
• 2 John Winthrop and the New England Town
• 3 Thomas Jefferson and the Midwestern Township
• 4 Albert Gallatin and Municipal Enterprise
• 5 William Leggett and the General Incorporation Laws
• 6 Justin Morrill and Land Grant Colleges
• 7 John Wesley Powell and Western Public Lands
• 8 Joseph Pulitzer and Municipal Home Rule
• 9 Hugh Hammond Bennett and Soil Conservation Districts
• 10 Byron Hanke and the Residential Community Association
• Conclusion: The Way Forward
• Notes
• Bibliography