British and American Foundings of Parliamentary Science, 1774–1801

Peter J. Aschenbrenner

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317172178
• Edition: 1
• Topic: Storia
• Subtopic: Storia dell'Europa rinascimentale

Upon declaring independence from Britain in July 1776, the United States Congress urgently needed to establish its credentials as a legitimate government that could credibly challenge the claims of the British Crown. In large measure this legitimacy rested upon setting in place the procedural and legal structures upon which all claims of governmental authority rest. In this book, Aschenbrenner explores the ways in which the nascent United States rapidly built up a system of parliamentary procedure that borrowed heavily from the British government it sought to replace. In particular, he looks at how, over the course of twenty-five years, Thomas Jefferson drew upon the writings of the Chief Clerk of the British Parliament, John Hatsell, to frame and codify American parliamentary procedures. Published in 1801, Jefferson's Manual of Parliamentary Practice for the Use of the Senate of the United States presents rules, instances, citations and commentary as modern readers would expect them to appear, quoting Hatsell and other British authorities numerous times. If the two nations suffered any unpleasant relations in the First War for American Independence - Aschenbrenner concludes - one would be hard pressed to detect it from Jefferson's Manual. Indeed, direct comparison of the House of Commons and the Continental Congress shows remarkable similarities between the ambitions of the two institutions as they both struggled to adapt their political processes to meet the changing national and international circumstances of the late-eighteenth century.

1 ‘Orders indispensably necessary’

‘Every gent. was acquainted with the usage of the house’

In its second day’s work, the Continental Congress debated whether to adopt ‘rules of conduct to be observed in … determining questions’ that came before the Congress. On 6 September 1774 James Duane (NY) moved that ‘a Committee should be appointed to consider Rules for the Conduct of the Congress and report them’. John Rutledge the Elder (SC) opposed the motion: the ‘usage of the House of Commons woud be adopted in our Debates’, he declared, ‘and that as every Gent. was acquainted with that usage, it woud be a Waste of Time to appoint a Committee on that Subject’.¹

John Adams noted the episode in his diary. ‘I then arose and asked Leave of the President to request of the Gentleman from New York, an Explanation, and that he would point out some particular Regulations which he had in his Mind’. As to its ‘Method of voting’, Duane asked, should Congress ballot ‘by Colonies, or by the Poll, or by Interests’?² The same day (6 September 1774) Congress adopted a short inventory of procedures; these duly appeared in its official journal of proceedings. The four rules provided:

1. 1 Resolved, That in determining questions in the Congress, each Colony or Province shall have one Vote.
2. 2 Resolved, That no person shall speak more than twice on the same point, without the leave of the Congress.
3. 3 Resolved, That no question shall be determined the day on which it is agitated and debated, if any one of the Colonies desire the determination to be postponed to another day.
4. 4 Resolved, That the doors be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honour, to keep the proceedings secret, until the majority shall direct them to be made public.³

Rules 2 through 4 supplied guidance suitable for any legislative or deliberative body in the eighteenth century. However, Rule 1 allocated to ‘each Colony or Province … one Vote’. If ‘every Gent. was acquainted with [the] usage of the House of Commons’, American delegates would have known that balloting in Westminster proceeded under the rule of member equality. Members of the House of Commons enjoyed equal voice and vote with their colleagues. Tellers in Commons did not count Boroughs and Counties in divisions on questions. John Hatsell quoted the former Speaker of the House of Commons Arthur Onslow, his personal mentor, to this effect: ‘every Member is equally a Representative of the whole’. This was ‘the constant notion and language of Parliament’.⁴

After adopting the Declaration of Independence at the Pennsylvania State House, a date traditionally assigned to 4 July 1776, Congress appointed a committee to draft another set of procedural rules for its proceedings. Thomas Jefferson noted the following contributions he made following his appointment to the ‘Committee to Draw Up Rules of Procedure for Congress’. These were sketchy stuff.

No person to walk while question putting.
Every person to sit while not speaking.
Orders of day at 12 o’clock.
Amendments first proposed to be first put.⁵

Congress adopted 12 procedures on 16 July 1776.⁶ Over the useful life of the Continental Congress (1774–89), that assembly adopted and discarded three sets of rules, each one incrementally more polished, elaborate and serviceable, before settling on a fourth and final set of procedural rules in 1781. These rules endured for the remaining life of the Continental Congress. The Journal of the Continental Congress records the final sitting of the body as taking place – in a tavern – on 2 March 1789.⁷

‘An easy communication will be a great advantage’

The stop-and-start pattern by which Congress guided national government through both primitive and provisional phases (1774–89) may be contrasted with progress made in the House of Commons. In 1766 Parliament founded ‘The Company of Proprietors of the Navigation from the Trent to the Mersey’. 6 Geo. 3 c. 96, Section I. The Act of Parliament encompassed 64 pages. The text was subdivided into 103 sections; the Act ran over 30,000 words. This was nearly the length of Jefferson’s Manual of Parliamentary Practice. The canal built from the Trent to the Mersey represented a significant deployment of industrial technology. The project established one link in a series of canals that, under the name Grand Trunk Canals, promoters designed for the purpose of connecting major cities on the Irish and North Seas into a single transportation network.⁸

To gain favourable attention to their project, the Trent-to-Mersey promoters circulated a pamphlet titled ‘Facts and Reasons Tending to shew, that the Proposed Canal, from the Trent to the Mersey ought not to terminate in Northwich or Burton’. The text boasted of the economic viability of the Trent-to-Mersey canal. This ‘Plan hath been well digested, and hath not wanted public Notoriety’. Easy Communication

between the Two great Port Towns of Hull and Liverpool, which will be of great Advantage, not only to the Trade carried on to and from the said Two Ports, but … will also tend to the improvement of the adjacent Lands, the Relief of the Poor, and the Preservation of the Publick Roads; and moreover be of great Public Utility.⁹

The Act of Parliament founding the Company defined the legal relationship between the Company and its future shareholders; the Act named these 88 men and 11 women (including Mary Mattock, Ann Abbott, Ann Sneyd, Honora Byrd, Sarah Nixon and others). These prospective shareholders ‘are and shall be united into a Company’, to carry on the business enterprise for which they sought a charter. Sections I – V. The Act accordingly chartered and endowed the Company with ‘Succession … perpetual’. The Act also declared its intent ‘to indemnify said Company of Proprietors’ (and the 99 named in the Act), along with ‘their successors and assigns, and Servants, Agent and Workmen’ for ‘what they or any of them shall do by virtue of the Powers hereby granted’. Section I.

Joint stock companies inhale and exhale money. To aid the Company in achieving financial solvency, Parliament wrote a critical path for capital infusion. Parliament authorised the Company, in ‘General Meeting assembled’, to make capital calls. Company shareholders were then obliged to ‘contribute … a competent Sum of Money for making and compleating the said Navigable Cut or Canal’. Sections XXI – XXV. Sufficiently capitalised, the Company would be required to put its affairs in order before it did business. Parliament ordained such arrangements in Sections XXVI through XXXVIII, fashioning what modern readers will recognise as a mini-code of corporation law. These provisions framed rights and duties of the Company’s shareholders, on the one hand, and its managers, on the other hand. The Act of Parliament endowed the Company with its rights, duties and personality, thereby breathing life into the Company as the child-agent of its shareholders.

In another feature of the Act, Parliament addressed future claims for takings and damages which might be brought in the event that ‘Differences may arise’ between the Company and a landowner. Parliament created a private adjudication system and, rather neatly, interlaced these arrangements into the existing county-based system of justice in which sheriffs and coroners served as the principal officers. Sections VI – XIII. Section VI of the Act named 788 residents of the counties of Derby, Stafford and Chester, any seven of whom ‘are hereby impowered … with the Consent of the Parties concerned, to determine and adjust … what Sum or Sums of Money shall be paid by the said Proprietors’. Modern readers will not find any ready analogue to Section VI. If a utility company lays an underground cable through my backyard without benefit of a previously recorded easement, it would not occur to me to round up seven of my neighbours to hear my case in trespass against the company.

In Section VI Parliament also detailed the procedures by which judgments entered against the Company (arising out of such claims) were to be funded and satisfied. County Sheriffs and Coroners were authorised to ‘impanell, summon and return’ juries of ‘Twenty-four sufficient and indifferent Men’, otherwise qualified to Westminster standards. The Act anticipated some difficulty on this point. Sheriffs and Coroners were vested with the power to conscript ‘other honest and indifferent Men of the Standers-by’ or anyone else who might be ‘speedily procured, to attend that Service’. These jury trials served, Commons declared, as a landowner’s sole remedy for taking or damages claims against the Company. This immunity also attached to the necessary survey work preliminary to construction. Sections I and II.

In breathing life into the Company, Commons took the opportunity to showcase its considerable talent for procedure-writing. The power of the modern nation-state over the real property and improvements of its inhabitants was channelled to protect the Company’s net worth. Procedures substituting for suits proceeding through King’s Bench conferred tangible economic benefits on the canal as a private entity. This reduced the capital investment required to render the Company’s proposed canal system a money-making enterprise. I refer to these promoters of improvement projects as stakeholders in the legislative process which their petitions initiated.

Based on Commons’ past practices promoters assumed that members of the House would treat their petition according to fixed pathways. Up-front costs were at risk if Commons treated this project casually, failed to give it any consideration at all or gave the project rough-handling through overly favourable attention to counter-petitions. When Parliament founded the Trent-to-Mersey Company, it also provided that this founding would occur, precisely, at ‘their First General Assembly or Meeting’ – date and place specified – ‘to be held by Direction of this Act’. Section XXVI. Before this general meeting, the Company had previously come into a virtual state of existence as a child-agent of Parliament.¹⁰

The promoters opened their advertisement with the phrase ‘In the Course of human affairs’, an expression not without resonance in British and American political history. This optimism evidenced their confidence that their petition would receive fair play in Commons.

In the Course of human affairs and during the gradual Improvement of the Arts of Life, small Things are constantly yielding to greater, bad to good, and good to better, in Proportion as human Genius expands, and enriches the World with its Discovering; and it is the unavoidable Effect of every new Improvement, in Sciences or in Arts, to diminish the Value of less perfect Systems, and Works of inferior Utility.¹¹

This theme caught the spirit and temper of the early industrial age. Erasmus Darwin found the future entirely predictable and to his taste. Lines from The Botanic Garden, A Poem (1791) forecast

Soon shall thy arm, unconquer’d Steam! afar
Drag the slow barge, or driv...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction: ‘a manufacturer making tools to work with’
• 1 ‘Orders indispensably necessary’
• 2 ‘This John Milton deserves hanging’
• 3 ‘The eternal rules of justice and reason ought to be a law’
• 4 ‘I have begun a sketch’
• 5 ‘The average price of peace and war’
• 6 ‘The tactics of political assemblies form the science’
• 7 ‘This beautiful political order’
• Appendix A: citing Bentham’s Essay on Political Tactics
• Appendix B: the Parliamentary Model and the Standard Model (excerpts)
• Index