December 1957 | Volume 9, Issue 1
In exploring the highways and byways of American politics, I have been drawn to the conclusion that there is more real conservation of ancient English institutions in the rich geological strata of American politics—at the state and county level, perhaps, even more than at the federal level—than there is in England itself. Americans come to Britain to see the roots of their political system in the past and find much to inspire them in symbols and relics and ritual and medieval mummery of one sort or another. But to see many historic British institutions working more robustly than they have worked in Britain for years and to rediscover the type of political conflict which characterized so much of British history, Englishmen should go to the New World. Many of the more bewildering and irritating features of American politics—the separation of powers between President and Congress, the odd two-party system which usually fails to polarize opinions—would be far less mysterious to Englishmen if they knew rather more than most of them do about their own political history.
Let me illustrate what 1 mean by a few concrete examples of institutions of sound English vintage, dead or moribund in England but of great practical importance in the United States. Here are three: the sheriff, the grand jury, the conference committees of Congress.
The sheriff and his posse—the old posse comitatus of the statute books—played a central role in Anglo-Saxon, medieval, Tudor, and Stuart local government and in western cowboy films. Connoisseurs of these will retail the sheriff and his specially sworn-in deputies, who charge frenziedly in the wake of the bad men, until, on the verge of overtaking them, they are obliged to pull up short on the county boundary. Sherilfs—high sherills and undersheriffs-do retain some vestigial powers in England; but they have nothing like the important position they used to have and which they still have in American counties. In many of the more decentralized American states “the government” for all practical purposes means the sheriff and the probate judge, both of whom are locally elected politicians. This helps to explain the extreme hostility in heavily Negro-populated counties in the South to letting the Negroes have the vote in any substantial numbers. Every state—even Mississippi —has a white majority over the whole state, but the rates are unevenly spread, and in several of the southern states votes for Negroes would probably mean in many counties Negro sheriffs and Negro judges.
In full line with medieval tradition the American sheriff is Irecjuentlv not only the law enforcement officer, but he is tax assessor and jailer into the bargain. In all these functions he and his deputies must somewhat respect the force of local opinion. When I was last in Wisconsin a deputy sheriff was sacked in the county I was visiting: first, because he had fed margarine to the prisoners—and Wisconsin is a great butter-producing state—ami only secondly because state officials wanted to see the prisoners, and the deputy sheriff took two hours to find the key.
A second example, and perhaps a more striking one, of an old English institution thriving in the New World is the grand jury, dead and buried in England by the Administration of Justice (Miscellaneous Provisions) Act, 1933, and dying on the vine for some time before. This is the old jury of presentment, with origins stretching back to the Henrician reforms of the twelfth century, and even beyond: the group of neighbors specially empaneled to tell of mysterious crimes, hold special inquiries, and indict suspected persons—still the main form of indictment in the United States. The American grand jury meets in private, has powers of subpoena over persons and papers. It has greatly expanded its authority to probe, when so charged by a judge, suspicious patterns of behavior that, when scrutiny is borne down on them, may yield indictments.
My third example is the conference committees of Congress. America is the only democratic country in the world in which the upper house has not lost strength in relation to the lower. Congress lias two houses of equal power—if anything the Senate is more powerful than the House of Representatives—in each of which legislation can be initiated. When different measures on the same subject pass the Senate and the House they have to be reconciled; the final wording which goes up for the President’s signature is hammered out, often after a great deal of hard bargaining, by managers who are appointed from each of the houses and who meet together in secret session. This is ancient British procedure. The legislation of the House of Lords and the House of Commons used to be reconciled in this way; but this process has died out in England because of the declining power of the House of Lords.
These three instances of English history in American institutions stand out, but there are many other illustrations of my thesis, particularly at the state and local level. There is lee-paying, a central feature of medieval justice. I was fascinated to discover that in Illinois and a few other states the justices of the peace, who are elected politicians, take a commission percentage on the fines they impose; these are the old fruits of justice about which early law books waxed witty. And the sheriff’s is, in the majority of cases, a lee-paid job. He gets a lee every time he assesses property, conveys a prisoner from jail to the courtroom, and so on. Out of this income lie has to meet expenses—maintenance of the jail, hiring deputy sheriffs and assessors—and he usually ends up with a handsome profit. One rather battered professional politician in a middle western county told me during the 1951 election that his nomination by his party lor the office of sheriff was the reward for a lifetime of political drudgery, “shaking hands and ringing doorbells,” and that if elected he would clear a profit of $30,000 a year for four years.
All up and down America one comes across local government officials whose titles and duties or absence of them have more meaning to a medievalist than to a student of modern British government; though I do not want to overstate the case and imply that in the preservative American air none of these ancient offices ever expires of inanition. There was an election in April of last year, lor example, in a county in Florida in which there were two candidates for the office of constable; one promised that if elected he would find some functions lor the office, the other that if elected he would do absolutely nothing at all. The second candidate won—hands down.
The rotten borough, a far-off historical joke in England, does not seem so distant when one comes across the Atlantic. Perhaps there is no complete American equivalent to Old Sarum whose lour voters were the butt of every attack on the franchise system in England before the reforms of 1832. But there is one “inhabited town” of forty people which sends a representative to the legislature of Vermont. And a study of the apportionment of state legislatures in general will make the English political historian feel much more at home than in present-day England, with its constituencies scrupulously bounded by an impartial commission according to the arithmetic of population.
Moreover, the states tend to preserve that old-fashioned preference for coun, try over city opinion for which the Duke of Wellington fought so rugged a rear-guard action in the last years of the unreformed Parliament. Before 1832 the two knights who were returned from each English county, no matter what its population, had infinitely more prestige in Westminster than the mere burgesses from the boroughs, whose numbers were artificially kept low. Borough members would resign from the House in order to contest a county seat that fell vacant. How very English, of pre-Reform Bill vintage, was the spirit of the recent remark by Senator Raymond Gillespie, of the Iowa state senate, who explained his opposition to reapportionment by saying: “I think the people in the rural areas think straighten We’re more like plain Americans. We’re not dominated by labor and radicals.”
As for the judicial branch of government it is not merely the grand jury that keeps British tradition alive. Until 1947 there was a perfect specimen on American soil of the old English court system, refined through the Middle Ages, whose dilatory glories were so piously tended by Lord Eldonand whoseobfuscations were chronicled in Dickens’ Bleak House . This was in New Jersey, which had the most backward judicial system of all the states and since the new constitution of 1947 now has the most advanced. A member of the constitutional convention which wrought the changes told me that he and his colleagues had to be briefed by medieval historians about the existing structure because it was too ancient and complicated to be understood by the judges themselves. Although New Jersey’s judiciary is now streamlined, as the British courts have been for nearly a century, parts of the old English system can still be found in many other states. One can find, as one cannot now in England, separate chancery courts for handling cases in equity. And the use of feudal law in land cases is much more likely to be encountered in an American state than in “the old country.” In England practically all remaining feudal law was abolished in 1925 at the instance of a famous lord chancellor who, while at Oxford, had sworn to do away with “the rule in Shelley’s case” when his inability to remember it had cost him a coveted academic distinction.
The Supreme Court itself, in some ways the most un-English of American institutions, is yet in a sense a lineal descendant of the Curia Regis , It continues the medieval conception of legislation, that of interpreting an existing canon of laws and procedures in the light of a changing society. There was no inevitability about England’s choice of the route of the absolute sovereignty of Parliament. Even though the Tudors had developed the principle rather far—with statutes for everything from the establishment of the king at the head of the Church to the boiling of the Bishop of Rochester’s cook—it was still possible for Lord Chief Justice Coke, in the reign of James I, to claim that the great principles of common law overrode inconsistent legislation. While England did not take up Coke’s cue, America did, and on Coke’s interpretation of English constitutional history (which was often faulty as to scholarship) America is in the main line.
The American system of patronage is in the finest and best-pedigreed English tradition, now largely extinct in the land of its origin. The Americans make great use of high-sounding or humble-sounding sinecures as a means of providing public incomes or pensions to dependents for men without whose fulltime party activity the political organizations would never keep going. The method will be familiar to students of feudal serjeanties [lands granted under obligations of various personal services to a king or lord] and of eighteenth-century English politics. Readers of Edwin O’Connor’s novel, The Last Hurrah , about the declining days of a big city boss, will remember that provision is even made for the maintenance in some unexacting office of a court jester—the equivalent, one must suppose, of that twelfth-century Rolland who was given a manor by the king in serjeanty, for which, once a year at the king’s feast, “ debuet facere unum saltum, et siffletum et unum bumbulum ”—he must make a jump, a whistle, and a vulgar noise.
Many of the old, picturesque, political sinecures were done away with in England at the very end of the eighteenth century by Edmund Burke and his movement for economical reform. It is a curious thing that, on a visit to Chicago about three years ago, I came across what was termed an economical reform group in the Chicago City Council, one of the most anomaly-ridden bodies in America. Members of this group, headed by Alderman Robert E. Merriam, were challenging items that turned up year after year in the city budget. There was the famous case of the 28 chauffeurs of gas meter readers. The inquisitive reformers asked why gas meter readers could not drive their own cars. They were told that heavy slabs sometimes had to be moved in order to read the meter and a second man was needed, ft was pointed out that nearly all the chauffeurs were women. The explanation given was that the chauffeurs were often the wives of the readers and the wives in fact read while the readers moved slabs. It was pointed out that most of the women chauffeurs were widows. It emerged in fact that they were nearly all elderly party officials or widows or dependents of officials; none of them actually drove the cars; they hired drivers at a much smaller fee than they were paid themselves to do the job. This is purest medieval serjeanty. The result of the efforts of the economical reform group was that the council, heavily dominated by party officials, raised the salaries of gas meter readers’ chauffeurs.
Political patronage in America and the character of party politics are in fact much what they were in England for by far the greater part of English parliamentary history. It is only in the last hundred years or so that English institutions, unprotected by written constitutions, have changed in revolutionary fashion. Take, for example, the letter from Representative Wright Patman of Texas to one of his constituents, published by the Reporter magazine not so long ago: a long recital of all the favors Mr. Patman had done for this man and the jobs he had secured for him and his relatives, ending with a bitter complaint about the political ingratitude with which this assiduity had been rewarded. Change a few names and this could have come straight from the files of that indefatigable eighteenth-century borough-monger, the Duke of Newcastle.
When British students come to study the eighteenth century they have to undergo a prolonged period of intellectual brainwashing—what might be called Namierizing ∗After Sir Lewis Namier, eminent modern historian ot the eighteenth century.—which purges their minds of any residual idea that the term “party” as used then had any resemblance to the closely knit, coherent, and disciplined structures of England today. Americans hardly require such a preliminary process. For party politics in America greatly resembles the eighteenth-century variety. There is a passage in John Brooke’s new book on the Chatham administration, in which he sets out to invest the eighteenth-century term “party” with some kind of meaning. For the most part he falls back on rivalry over local issues within a county as the reason for sharp elections; the sum total of these results, each in itself having relatively little to do with national affairs, being reflected in the composition of Parliament. The same could be said of Congress. Just as there was no “government party” with a firm majority in the eighteenth-century Parliament—and neither is there in Congress—so there was no precisely definable opposition. There was a prejudice in eighteenth-century Westminster against a “formed opposition” against the Crown, although opposition on particular issues was normal and regular: so in Congress there is no leader of the opposition. The Democratic National Committee, the merest shadow of a national party leadership, attempted, first in 1955, and again during this year, to present a formal front, an alternative leadership to the President. But the Democratic leaders in Congress brushed off the idea as undesirable; they would deal with the President’s proposals on their merits, one by one, as they came up.
Although in some ways America is becoming more of a unitary state, it is still, where party organization is concerned, a loose confederation of states. The really important political leadership is located not in Washington but in the parties of each state; the national parties have to be born anew once every four years, when they meet for a week in national convention to select presidential candidates. It is no accident that it was an American scholar, Professor Wallace Notestein, who made the seminal discovery about the nature of the relationship between the Crown and Parliament under James I which has revolutionized the study of sixteenth- and seven teeth-century political conflicts. Americans are familiar, as Englishmen now are not, with an executive having to deal at arm’s length with a legislature, having to get its majorities by manipulating numerous overlapping factions, with the aid of spokesmen who have not themselves drawn up official policy and who may or may not be particularly able or willing to present the Crown’s case (or, in America, the President’s case) in the most attractive possible light.
In my opinion, after covering Congress for three years, the only really adequate way to report it is in the fashion in which Sir Lewis Namier and his colleagues have been reconstructing eighteenth-century parliaments—to discuss the moves not in terms of parties and fixed groups but in terms of personal and factional shifts and connections, with constant reference to the individual member’s state and local political base. This, alas, cannot be done thoroughly by a single correspondent; but it is curious that even in American newspapers the treatment of politics is insufficiently Namierized, moves being treated as if in Congress there were firm parties or groups in the modern European fashion, with use of such phrases as “with a vote cutting right across normal party lines,” as if it were usual to have a vote on party lines, whereas in fact it is the rarest of exceptions.
When the Americans formed their Constitution they tried to capture in a written document the essence of the British way of doing things, modified by safeguards and reforms advocated by British radicals since the days of the civil war [between Crown and Parliament]. The Americans did not make a bad job of it, but they locked into the system age-old conflicts which Britons have since resolved by a combination of cabinet government, party discipline, and parliamentary sovereignty. King against Barons, King against Parliament, and now President against Congress: these are conflicts that ace inescapable under a system based on the principle of the separation of powers. There are two special characteristics of such a system: first, that the big conflicts are basically insoluble within the existing framework, since the logical extension of victory either by the executive or by the legislature would be the extinction of its rival as an equal branch of government; and, second, that many of the ordinarily political conflicts of the day, major and relatively trivial, become charged with constitutional significance, so that arguments of substance rapidly shift into arguments of constitutional and legal principle.
This is why conflicts between Crown and Parliament used to be so prolonged and bitter—compromise of a particular matter, perhaps not difficult on its merits, might by acting as a precedent tilt the whole balance of the system permanently to the Crown’s disfavor. James I was perfectly correct, in his pedagogical way, in his listing of the royal prerogatives, but by writing them down and deducing a theoretical system of royal right from them he imperiled every privilege of Parliament. The same dilemma prevails under the American system, since although the Constitution helps to police the battle it does not avoid it. Thus, the President conducts foreign policy, while Congress has the right to declare war and to vote money; but foreign policy might lead to war. And not only war but foreign policy itself, in these days of multi-billion-dollar foreign aid, requires money, and it may even, as the debate on the Eisenhower Doctrine illustrates, require a conditional declaration of war.
But it does not require matters of this moment to set senators off referring sententiously to “a grave constitutional issue” or savoring the oft-repeated tag, “This is a government of laws, not of men.” Many times I have sat at the press table in a committee room of Congress listening to an apparently straightforward investigation only to find it veering off suddenly into a phase of the unending struggle between executive and legislature. It is then that I feel a new sense of reality breathed into English constitutional conflicts of an earlier age.