‘Though this trick might succeed in this particular case’

Suitable allowances must be made for the adolescent state of American parliamentary competence, as it went about cobbling together its legisla­tive machinery. Until August 1777, for example, Congress did not require recorded roll-call votes on the issues it settled.

‘Orders indispensably necessary’ 21 under Constitution II- ordered these journals published in 1818.³9 Without such recorded votes, delegates could not warrant to posterity that official action had been taken in the regular course of business or that the minimum number of states was present through their respective delegations. Likewise, official journals were needed to record that the relevant quorum require­ments had been observed and that Congress had met the majority action threshold that applied to the subject matter at issue.

This ramshackle state of affairs did not go unnoticed. ‘The American Congress, during the war of independence’, Jeremy Bentham observed in his Essay on Political Tactics, ‘was accustomed, if I am not deceived, to rep­resent all its resolutions as unanimous’. Bentham did not baulk his chance to sneer: ‘This trick might succeed in this particular case... Its enemies saw in this precaution the necessity of hiding a habitual discord. This assembly, in other respects so wise, chose rather to expose itself to this suspicion, than to allow the degrees of dissent to the measures which it took, to be known’.⁴⁰ Bentham was too generous to the rebels. Congress could not satisfy prevail­ing international standards for verification of its official action. In other words, without a record of its roll-call votes, Congress could not warranty its acts and proceedings. Matters improved on 2 August 1777, when Con­gress resolved

That all proceedings and all questions agitated and determined by Con­gress, be entered on the journal, and that the yeas or nays of each mem­ber, if required by any State, be taken on every question as stated and determined by the house.⁴¹

This action opened the floodgates.

Constitution I, known under the title Articles of Confederation, appeared in the format most attractive to readers in the late 1770s. The Roman or outline format subdivided topics under headings; these headings gathered logically arranged prescriptions, that is, prescriptions gathered by function. Subheadings marked the appearance of prescriptions offering a narrower focus. Here the signals ‘article’ and ‘section’ served as visual cues. Preambles were a la mode; this was where the aspirational made its home.

A list of prescriptions may be regarded as an inventory. In the study inter­val, 1774-1801, an abbreviated version regularly appeared. I term these 22 ‘Orders indispensably necessary’ mini-codes. Typically four to 40 rules might fill out a mini-code. In con­trast, constitutions - another format for an inventory of prescriptions - ran three to four thousand words. Upon entering print culture, inventories of prescriptions were offered to the public as bourgeois works of art. That is, composers of inventories contoured these works to win public appreciation for the legislative machinery whose gears and levers they operated. Stand­alone codes - taken as dense and comprehensive inventories addressing sev­eral related subject matter areas - would not make their appearance until the nineteenth century.

The mini-code’s packaging assured the reader that the inventory embed­ded logics worth study. The presentation also warranted that law-makers had been hard at work, hammering out semi-regimented language through successive discrete event states. These states marked off the assembly’s prog­ress through alternative word choices before the final text was resolved to the satisfaction of a majority of members.

The accomplishment Constitution I represented can be measured by the linguistic legacy passed forward from its 13 articles and 3,453 words. Con­gress used 771 unique words in Constitution I, casting out redundancies. It was approved 15 November 1777. Constitution II - approved 17 Sep­tember 1787 - employed 4,321 words - before correcting and completing efforts through the presidential election of 1804 brought this inventory up to 5,224 words. Constitution II used 829 unique words; in this count dupli­cates were likewise disregarded. Of the 771 unique words in Constitution I, 407 of these words were recycled forward into Constitution II.⁴² The writ­ers of both inventories used debates as an opportunity to refine employment of a finite vocabulary of words according to choices preferred among logi­cally possible arrangements.

The harsh realities of operating a legislative body tested divisions of labor that political necessity brought forward. John Adams’s experience as a one- man Ministry of Defence serves as an example. Nine months transpired after Lexington and Concord (19 April 1775) before Congress appointed a committee to study ‘the propriety of founding a war office’ and ‘the power with which the said office should be vested’.⁴³ Another five months elapsed before Congress established its first ‘Board of War and Ordnance’.⁴⁴ As 1776 ended, Congress appointed yet another committee to ‘prepare a plan for the better conducting of the executive business of congress’. After several false starts, the Committee went to work on 17 October 1777.⁴⁵

In the interval June 1776 through November 1777, if Adams’s recol­lections are credited, Adams ran the Continental Army as a one-man War Office.⁴⁶ The scope of the challenge Adams faced may be measured by the number of committees to which Congress delegated tasks.

‘Orders indispensably necessary’ 23 of legislators-as-administrators after the fashion prevailing in the House of Commons.

Adams recorded his irritation at the time wasted answering questions his colleagues posed to him when Congress was in session.

The duties of this board kept me in continual employment, not to say drudgery, from the 12th of June 1776, till the 11th of November 1777, when I left Congress forever. Not only my mornings and evenings were filled up with the crowd of business before this board, but a great part of my time in Congress was engaged in making, explaining, and justify­ing our reports and proceedings.⁴⁸

Most committees in the United States were ‘seldom given authority to do more than inquire, devise ways and means, and report’. This remitted the heavy lifting of executing policy to John Adams and other one-man opera- tions.⁴9 These ad hoc arrangements permit a comparison of the parliamen­tary fates of Frederick Lord North and Adams. Like Adams, North served as legislator-administrator. The Treasury Lord’s burden was to fight his min­istry’s corner: ‘I have been from the beginning of the session to this moment constantly answering questions, six, seven, eight or nine times. If a question is asked twenty times, am I obliged to answer it every time?’⁵⁰

The American experiment with legislator-administrators came to an end when delegates at the federal convention (25 May to 17 September 1787) wrote incompatibility clauses into Constitution II. Article I, Section 6, Clause 2, for example, prohibited dual office-holding: ‘no Person holding any Office under the United States, shall be a Member of either House dur­ing his Continuance in Office’. In crafting this text, the federal convention accepted that Congress could not - on the fly - reliably distinguish legisla­tors who might serve as government ministers from those lawmakers who were not to engage in such day-to-day labour. Constitution II grounded its incompatibility arrangements in the experience which the Continental Congress served up for the delegates’ consideration. It is worth underlining that the Continental Congress did not reject its experiment with legislator­administrators as too British.