The Northwest Ordinance: A Background

Territory established at the end of the Revolutionary War

While the Constitutional Convention was drawing up the Constitution, the Continental Congress was preparing an extremely important, even foundational, document of its own --  the  Northwest Ordinance.   It was the Northwest Ordinance that laid the foundation for the admission of new states, making it an extremely important piece of legislation.  Indeed, it is often treated as something in between the Constitution and ordinary legislation.  Yet it is almost forgotten in history books today (at least, my US history books never so much as mentioned it).

Rival claims by US States

It is generally known that the treaty that ended the Revolutionary War gave the new United States all the territory from the Atlantic to the Mississippi, and that only the land east of the Appalachians had been organized into states.

Not so well remembered is that the existing states had competing claims for the western lands.  But, as the neighboring map shows, the borders in the western territories were often unclear, with rival states laying claim to the same land.  It also shows that some states (mostly the mid-Atlantic states) did not have claims to western land and (unsurprisingly) resented the states that did.

The uncertain borders were a fruitful field for disputes.  It was not that anyone feared rival states going to war over disputed land.  The Articles of Confederation had procedures for resolving such disputes.  But different states could very well sell the same land to different people, leading to conflict between rival claimants that could not possibly be resolved without injustice to one or more parties.  Massachusetts and Connecticut claimed land that was non-contiguous with the states and could hardly be viable.  Virginia, by contrast, claimed land as far north and the Great Lakes.  Technically, this land would be contiguous with Virginia, but its immense size naturally made the other states resentful.  Furthermore, the sale of western land was a major source of revenue.  States without this resource resented states with it, and everyone resented Virginia.

It was Thomas Jefferson who came up with the way out of this dilemma.  Virginia would cede its disputed land to the federal government (then established under the Articles of Confederation), in exchange for an agreement to admit the ceded lands as states on an equal basis with existing ones. Pause for moment to consider the extraordinary statesmanship of such a proposal.  How oven has any government agreed to part with such an immense territorial claim?  Scarcely less remarkable is the willingness of existing states to see their power diluted by adding new ones.  But it was this agreement that made possible the extraordinary achievement of the Constitutional Convention, the establishment of popular government over an unprecedented territory, and the creation of an extensive country with no "metropolis" and no "periphery," no part dominating another, but all participating as equal states.

The process began with the Land Ordinance of 1784.  I will proceed with it over my next few posts.

Constitution as a Transition Between Old and New Democracy

It is pointless criticizing the Constitution for not establishing a full-scale new democracy when there was no serious call for a full-scale new democracy as we know it today.  Certainly, new democratic ideas were in circulation, and in a few people, most notably James Wilson, they were starting to take shape into an alternative to old democracy. 

But most people felt less an urgent need for a full-fledged new democracy than alarm at the Constitution’s threat to old democracy.  And, indeed, it defied old democratic principles at almost every turn – no annual elections, a mere sixty-five Representatives for a nation of three million people, a six-year term for the Senate, a strong executive without a council, partial eligibility of legislators to executive office, and no bill of rights.  Only two partial vestiges of old democracy remained.  All money bills had to originate in the House, keeping the power of the purse in the hands of the people, but this power was made largely meaningless because the Senate could change money bills.  Election of Senators by state legislatures could be considered an old democratic feature, because state legislatures could more easily instruct and control representatives than the people as a whole, but this, too, was made meaningless by their six-year terms, which allowed them to defy state legislatures with impunity.

Instead of seeing the Constitution as a rejection of old democracy, as its contemporary opponents did, or as a failure to achieve true new democracy, as some people do now, I believe we should see it as an important document in the transition from old democracy to new.   If the Constitution failed in several new democratic aspects, consider all the new democratic elements that it had.

The House was to be elected by the people directly (unlike the Continental Congress under the Articles) and, although there was no national guaranty of the vote, it was placed on the broadest basis that existed in the states.  Seats in the House were to be apportioned by population only, not by wealth (although the three-fifths rule was problematic), and to be reapportioned every ten years to ensure that it remained proportional to population.  Although the Constitution says the number of Representatives shall not exceed one for every 30,000 inhabitants, it never specifies that each Congressional district must have equal population.  Nonetheless, it seems to have been generally assumed that each district would, in fact, have equal population. 

Under the original plan, the House was supposed to represent the people and the Senate the states.  If this does not appeal to today’s new democratic sensibilities, keep in mind that in many states at the time, the lower house represented the people and the upper house represented wealth, and many delegates to the Convention, including such democrats as George Mason, expected the U.S. Senate to play a similar role.  Representation of wealth plays no part in the Constitution (with the possible exception of the three-fifths rule).   Given the practice of instructing representatives that was common at the time, it is even possible that the delegates foresaw that presidential electors would be pledged to particular candidates, bringing presidential elections closer to the people than it would appear at first sight.  But most remarkable of all, there were no property or religious restrictions on federal office holders (nor restrictions of race or sex either), only restrictions of age and citizenship.  Of all states, only Pennsylvania completely eliminated property restrictions on office, and only Virginia, New York and (probably) Rhode Island did not have religious restrictions. 

In the years following the adoption of the Constitution, new democracy grew and old democracy slowly withered away.  We are taught to remember and honor the rise of new democracy – the end of restrictions on the vote, popular election of presidential electors and later Senators, the proliferation of elective state and local offices, the end of representation by wealth, the secret ballot and the adoption in many states of initiative and referendum.  We do not hear so much about the decline of old democracy – the end of annual elections, the ever-growing ratio of representation between representatives and voters, the end of instruction of representatives, the strengthening of executives, and our loss of fear of standing armies.  Certainly, the federal Constitution has proven to be amenable to new democratic reform, and our old democratic fears have long since been forgotten.

My object in this paper has not been to idealize old democracy (although perhaps I may be accused of it).  Whatever its other merits, old democracy has one irredeemable flaw – it is completely impractical in a society like ours today.  In a society of our scale, it is simply not possible for the voters to assemble to instruct their representatives.  When the great majority of the population is no longer self-employed, the risk of economic coercion in  any system of open voting is all too real.  Representation in a society as large as ours cannot possibly be in the sort of ratio considered necessary at the time the Constitution was adopted.  And to forego standing armies in today’s world would be nothing short of insanity.  But if my intention is not to idealize old democracy.  It is call into question any oversimplified assumptions about what democracy can be, and to discourage any smug assumptions of simple progress, or the belief that our history has been anything so simple as the story of democracy ever increasing.

Having completed the series on the Constitutional Convention, I plan to give this blog a break for a while.  When I return, it will be to discuss the controversy surrounding the adoption of the Constitution.

Criticisms of the Constitution as Undemocratic

People these days who criticize the Constitution, as originally drafted, as undemocratic do so on new democratic terms.  The undemocratic features of the Constitution as originally drafted are (1) it left in place existing state restrictions on the vote; (2) Senators were elected by state legislatures instead of the people; and (3) the President is elected by the Electoral College instead of the people directly, and at the time presidential electors were generally chosen by state legislatures. 

Yet these are not the arguments people made against the Constitution during the ratification debates.  When opponents of the Constitution criticized it as undemocratic, it was invariably on old democratic grounds.  People criticized the House of Representatives for have a two-year instead of a one-year term, for not being large enough to adequately represent the people, and for allowing Congress to regulate elections (many people feared that Congress would order elections to be held in some inaccessible place to prevent voters from attending) but not for retaining existing state restrictions on the vote.  People criticized the lack of an executive council and said that the President was too powerful or (surprisingly and more often) not powerful enough, but the Electoral College was a very minor source of controversy.  As for the Senate, people criticized its six-year terms, its small numbers, its ability to alter money bills, its equal representation by states (in large states), its role in appointments and treaties, and its role as a court of impeachments.  Election of Senators by the state legislatures was not controversial.  After all, under the Articles of Confederation, all representatives were elected by state legislatures.  Election of the Senate in the same manner merely continued a familiar custom.

In fact, James Wilson, who we have seen was the foremost new democrat at the Convention, made a famous speech in favor of the constitution in which he presented these as important arguments in favor of the Constitution.  Clearly, he said, the central government  could not be intended to destroy state governments if state legislatures set voting qualifications for the House, elect Senators and decide how presidential electors are to be chosen.  These three features show that the new system could not survive without states.*

The Federalist Papers are also revealing, going on the assumption that what they argue most strenuously is a good indication of what was most controversial at the time.  In the section on the House, they devote two essays to defending two-year terms, three essays to defendant Congress’ authority to regulate elections , three essays to arguing that the House is large enough to be safe to liberty and one paragraph to discussing voting qualifications.  Likewise, out of the five essays on the Senate, the election of Senators by state legislatures is dismissed in one short paragraph as “probably the most congenial with public opinion.”  As for the Electoral College,  Hamilton calls it, “almost the only part of the system, of any consequence, which has escaped without severe criticism or which has received the slightest mark of approbation from its opponents”

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*Wilson's speech was reprinted and circulated throughout the states and became the single best known document in favor of the Constitution.  As the earliest major Federalist argument, it effectively became the Federalist playbook that other arguments in favor of the Constitution followed.  The Federalist Papers in many places are simply an expansion on Wilson's arguments and would probably have seemed like a mere recitation of well-worn talking points by Anti-Federalist contemporaries.

Was There a Correlation Between Delegates' Support for Centralization and Democracy?

So, back to the original thesis I proposed, was there any correlation between a delegate’s position on centralization and his position on democracy?  Once one distinguishes between old and new democracy, the question becomes more complicated, but the answer becomes simpler.

First and most obvious, the two extreme nationalists, Alexander Hamilton and George Read, were also among the top advocates of mixed government.  Moderate nationalists also included some mixed government men, notably Gouverneur Morris, Rufus King and, arguably, Charles Pinckney.  But they also included the leading new democrats – James Wilson, James Madison, Nathaniel Gorham and, yes, Edmund Randolph and George Mason.  

Indeed, some nationalistic positions were inherently new democratic.  All nationalists except Charles Pinckney supported popular election of the House, and most favored representation by population.  Granted, some of them (Hamilton, Morris, King) held these positions for nationalistic, rather than democratic reasons, to limit state power, but the effect was democratic whatever the intention.  Significantly, of all these nationalists, only Randolph and Mason took the core old democratic position that legislators should be absolutely ineligible to executive office.  Also significantly, it was these two nationalists, who had significant old democratic as well new democratic views, who refused to sign the Constitution in its final form, partly for old democratic reasons and partly out of concern for state sovereignty.  Randolph worried that Congress’s power to spend money for the “general welfare” and make all laws “necessary and proper” to carry out its other powers were too broad, while Mason reverted to an outright state sovereignty man during the ratification debates.  But neither raised any new democratic objections, such as that state restrictions of the vote remained, or that the President and Senate were not directly elected.

On the other hand, moderates on centralization like Elbridge Gerry and Hugh Williamson and compromisers like Roger Sherman and Benjamin Franklin tended to be old democrats.  Franklin, though he favored the new democratic positions of opposing property restrictions on the vote or office holding, was clearly an old democrat in his distrust of the executive and wish for the power of the purse strings (and, ideally, all power) to be in the hands of the lower house.  Oliver Ellsworth, John Dickinson and the South Carolina moderates do not classify as clearly.  Yet on the core old democratic issue of ineligibility to office, all but Dickinson favored an absolute ineligibility of legislators to executive office. (Dickinson did not weigh in).

As for advocates of state sovereignty, they generally said little on the subject of how the federal government should be organized, being more interested in limiting its power than in structural details.  When they did take a position on the structure of the federal government, it was not necessarily a democratic one.  Luther Martin (Maryland) wanted judges to be chosen by the Senate instead of the executive and favored a ceiling on the size of a peacetime army.  These are both old democratic positions, but in both cases he was more interested in limiting the power of the central government than in democratizing it.  He opposed the new democratic principles of direct popular election of the House or representation by population as threats to the powers of states.  Similarly, William Patterson (New Jersey) in order to maintain state sovereignty was willing to go against not only the new democratic principles of popular election of the House and representation by population, but also the old democratic principle of a numerous legislature:  

With proper powers Congs [i.e., the old Continental Congress] will act with more energy & wisdom than the proposed Nat’l Legislature; being fewer in number, and more secreted & refined by the mode of election.

One might expect advocates of state sovereignty to favor the old democratic principle of short terms for both houses to keep the national legislature under the control of the states, but even this does not appear to have been the case.  It was the New England states of Massachusetts and Connecticut who took the lead in calling for annual terms for the House and less than seven years for the Senate; New York, New Jersey and Delaware all voted for a three-year term for the House, while New York split on a seven-year term for the Senate with New Jersey and Delaware in favor.  

The New Jersey Plan was old democratic in favoring a weak, plural national executive elected by the national legislature.  Overall, advocates of state sovereignty favored limiting the direct agency of the people in the federal government.  They probably did not see that as undemocratic.  Most likely, they saw the central government as so large and remote as to be inherently beyond the people’s control and believed that giving people direct agency in it would simply create a false appearance of democracy.  Real democracy would be best served by limiting the power of this remote government and keeping it at the more manageable state level.  It would be safer to keep agency in the hands of the states than the people, because states would be better able than the people to keep the central government under control.

The Inscrutable South Carolina: Somewhere Between Old Democracy and Mixed Government

If the South Carolina delegation scores low on new democracy, it scores low on old democracy as well, though never endorsing anything like mixed government.  Consider its position on old democracy issues:

Intermediate length terms:  Recall that old democracy set great stock in annual elections, while true advocates of mixed government wanted a Senate that served for life, or at least a very long term and a long term for the executive. South Carolina fit somewhere in between.  South Carolina’s electoral system worked on a two-year cycle so, not too surprisingly, the South Carolinians wanted to synchronize national elections to their cycle.  Rutledge favored a two-year term for the House, and South Carolina joined with New England in opposing a three-year term.  General Pinckney favored a four-year term for the Senate as opposed to a six-year term, fearing that Senators serving a six-year term would settle in at the capital and become alienated from their constituents. None of the other South Carolinians spoke up on the subject, but South Carolina did vote against nine, seven, six  and five year terms.  Charles Pinckney favored a seven-year term for the executive or, alternately, six years with a prohibition on consecutive terms.  Rutledge favored a single seven-year term.  Butler was less clear what the executive term should be, but he opposed too-frequent elections because it was inconvenient for the distant states to send electors often.

No need to restrict money bills to the House:  South Carolina required all money bills to originate in the lower house.  This apparently caused problems because all four South Carolinians opposed requiring money bills to originate in the lower house.  Both Charles Pinckney considered the matter
of no importance.  General Pinckney said South Carolina’s restriction of money bills to the lower house had led to serious disputes between the houses and was often evaded.  Rutledge likewise said the South Carolina restriction was constantly “dividing & heating” the houses and was evaded by the Senate demanding certain changes in order to approve a bill.  Butler saw no need to forbid the Senate from originating money bills, since they were not a House of Lords.

Ambivalence about the executive:  Recall that old democracy views the executive with deep suspicion, while mixed government wants to make the President a sort of limited monarch.  Here, too, South Carolina took an intermediate view.  Three of the four South Carolinians spoke out for a single executive.  Charles Pinckney seconded Wilson’s original motion for a single executive and renewed the motion the next day, though he said the executive should not have the power of war and peace or he would become a monarch.  Rutledge said much the same, and that a single executive would feel the greatest "responsibility."   Butler said that the members of a plural executive would constantly be quarreling and that this would be particularly harmful in military matters. 

Otherwise, it was on executive power that the South Carolina delegates disagreed most.  Charles Pinckney seconded Morris’s motion for an advisory council, but believed the council should not be able to bind the President, or it would either obstruct him or shelter him.  The executive should exercise his veto alone, without joining the department heads or the judges.  He favored a two-thirds, rather than three-quarters vote to override an executive veto. He opposed making the President impeachable by the legislature, saying that making the executive impeachable by the legislature would destroy his independence and would not be necessary if his power could be limited enough. He favored legislative appointment of judges and the treasurer and ambassadors, with sole executive appointment of all other officials.  At the end of the Convention, Charles Pinckney said he was signing the Constitution even though he disapproved of the "contemptible weakness and dependence" of the executive.  

The others said less on the subject.  Rutledge opposed including judges in the executive veto.  He opposed absolute executive appointment of judges as monarchical but favored executive appointment of the treasurer.  Butler considered opposed an absolute executive veto as too much power in danger of abuse and thought the executive should suspend, rather than veto, bad laws.  He would allow the Senate to make treaties of peace without the consent of the President to prevent the President from trying prolong a war in order to aggrandize his own power.  On the other hand, advocated giving the executive the sole power to decide when to go to war, a decision that shocked Elbridge Gerry.  General Pinckney said almost nothing on the subject, except that he favored executive appointment of the treasurer.

Moderate views or opposition to legislative eligibility to executive office:  I would consider this the core, defining issue of old democracy.  The South Carolina delegation generally either favored the restriction or had moderate views. Charles Pinckney did not think legislators should be ineligible to office.  The representatives who had the people’s confidence should not be treated as suspect.  He hoped the legislature would attract talent and become a training ground for future officials.  In order prevent corruption, he proposed to make legislators ineligible to offices they create or increase in pay or requiring them to resign from the legislature upon being appointed.  Rutledge, on the other hand, wanted the national legislature to be ineligible to executive office to keep them “as pure as possible” and prevent corruption.  Butler wanted legislators to be ineligible to office to avoid the corruption that had "ruined" the British government.  Ineligibility only to offices the legislature creates or increases in pay was not sufficient.  General Pinckney did not address the issue.

Bill of Rights:  Charles Pinckney was one of the leading advocates of guarantying the rights of individuals.  He moved for what amounted to a bill of rights, calling for protecting freedom of the press, requiring legislative approval of all troops and strict civilian control of the military, no quartering of troops in people’s houses and no religious tests for office.  He also moved to forbid the suspension of habeas corpus except in emergencies and for only twelve months, to prohibit religious tests for office, to preserve freedom of the press and to guaranty jury trial in civil cases.  General Pinckney also approved of forbidding religious tests for office holding.  Rutledge wanted to declare the writ of habeas corpus inviolable, saying that he could not conceived that suspension would ever be necessary at the same time in all the states. 

Looking over this list of positions, I am inclined to say that the South Carolina delegation's ideology is best described as somewhere between old democracy and mixed government, generally rejecting new democracy.

The Inscrutable South Carolina: Not New Democrats, but Opposed Restrictions on the Vote

South Carolina had four delegates who played a major role in the Convention,  Pierce Butler, Charles Pinckney (Mr. Pinckney), Charles Cotesworth Pinckney (General Pickney) and John Rutledge.  No other state had so many delegates play a major role.  These four had views similar enough to form an ideological pattern.  It rates low on the democratic scale, either by old democratic or new democratic standards, but does not favor the features of a mixed government either.  I have not been able to identify their pattern.  Anyone else’s input in identifying this ideology is welcome. 

The main features supported by the South Carolina delegates were as follows:

Election by legislatures:  Charles Cotesworth Pinckney believed that the people of South Carolina were too rural and scattered to assemble in one place for elections and wanted the House to be elected by the state legislatures or at least leave that open as an option.  Butler considered election by the people "impracticable."  Charles Pinckney considered the people less fit judges than state legislatures.  Rutledge believed representatives chosen by the state legislatures would be more "refined" than ones chosen by the people and more likely to correspond with the sense of the whole community.  Charles Pinckney came out for election of the Senate by state legislatures on similar grounds.  Similarly, most of them favored legislative election of the executive.  Charles Pinckney thought the people would be too easily misled to choose as President and that the large states would always prevail, whereas the legislature would take care to choose someone who would do a good job in executing their laws.  He opposed the Electoral College compared to election of the executive by the legislature.  Rutledge favored election of the executive by the national legislature with only one term allowed.  Butler disagreed; he though election of the executive by the legislature would lead to intrigue and foreign influence and election by the people would be too complex and unwieldy.  He favored electors chosen by state legislatures.

Opposition to property restrictions on the vote:  If this support for election by legislatures does not seem very new democratic, the South Carolina delegation was new democratic in at least one detail -- it opposed property restrictions on the vote.  Butler opposed restricting the vote to freeholders, saying that restrictions on the vote could lead to a "rank aristocracy" like Holland.  Rutledge considered restraining the vote to freeholders "very unadvised" and said it would create divisions among the people and opposition to the Constitution.  Apparently at least one of the Pinckneys agreed, because South Carolina joined every state except Delaware in voting down the proposal.

Property restrictions on office holding:  But if the South Carolina delegates opposed property restrictions on the vote, they favored such restrictions on holding office.  Charles Pinckney seconded  Mason’s motion for the Committee of Detail to set property and citizenship qualifications on the legislature and moved for it to set property qualifications for the executive and judiciary as well, although he though excluding public debtors was going to far.  When, instead, the Committee simply allowed Congress to set its own property qualifications, Charles Pinckney was not satisfied and moved to have specific property restrictions included in the Constitution.  Although he disclaimed wanting any “undue aristocratic influence” and was willing to leave the specific amount open to debate, but he personally favored requiring the President to own $100,000 worth of property clear of debt, federal judges $50,000 and “in like proportion for the members of the Nat’l Legislature.”  The proposal was overwhelmingly rejected.  Rutledge seconded the proposal.  General Pinckney move that Senators, as representatives of the nation's wealth, not be paid in order to ensure that they were rich.  Rutledge served on the Committee of Detail that allowed Congress to set its own property restrictions and explained that the Committee had been unable to come up with property qualifications because they feared that too high qualifications would be unpopular and too low qualifications would be “nugatory.”  He also moved to have the President not receive pay, presumably to ensure that he was rich.  Butler did not address property restrictions on office holding, but he favored requiring a long residency in the United States for naturalized immigrants to hold office, although he was himself an immigrant (from Ireland).

Representation by wealth:  Perhaps part of the reason the South Carolina delegates favored strict property requirements on office holders was that they favored representation by wealth.  Butler and Rutledge wanted representation in the House to be by quotas of contribution, since money was power.  Butler also wanted the Senate to be apportioned by wealth.  “He contended strenuously that property was the only just measure of representation.  This was the great object of Govern’t: the great cause of war; the great means of carrying it on.”   Likewise, Rutledge stated that, “Property was certainly the principal object of Society.”  General Pinckney argued for an established rule of wealth  to be used in apportioning representation and believed that the South should have representation beyond its numbers because of its wealth.  The only exception was Charles Pinckney, who seconded  a proposal to base representation on all free and three-fifths of all slave population.  Yet, not too surprisingly, he later changed his mind and asked that all slaves be included in representation on the grounds that slaves were a source of wealth.

Distrust of the west:  This is a less strongly marked tendency, but it is closely linked to representation by wealth.  Rutledge in particular feared that making representation proportional to population would subject the Atlantic to the western states.  Butler also called for a "balance" between old and new states, which appeared to mean that the Western states should have less representation than their numbers because they had less wealth and would contribute less tax revenue.

Some of Each: Oliver Ellsworth

Much the same can be said of Oliver Ellsworth of Connecticut.  Ellsworth was, with Dickinson, one of the leading advocates of the Great Compromise.  Like Dickinson, he combined elements of old democracy, new democracy, and mixed government.  But he did not combine them in the same way as Dickinson.  In fact, his positions on many other issues were almost diametrically opposed to Dickinson’s, showing that one could favor elements of all three systems in very different combinations.  

Unlike Dickinson, Ellsworth opposed restricting the vote to freeholders.  Some of his arguments were simply on the grounds of expediency, such as that people who could vote for state legislatures would resist being denied the vote in federal elections, and that the states were the best judges, but he went further than anyone else on arguing against restrictions on the merits, “Ought not every man who pays a tax, to vote for the representative who is to levy & dispose of his money?” He also favored a one-year term for the House, not so much on the merits as because, “The people were fond of frequent elections and might safely be indulged in one branch of the legislature.”  Thus Ellsworth favored one old and one new democratic principle for the House, but he opposed one of each as well – he opposed enlarging the house, saying that thought most state legislatures were too large and he apparently favored representation by wealth, moving to have representation by all free population and three-fifths of the slaves “until some other rule that shall more accurately ascertain the wealth of the several States can be devised.”  On the other hand, he immediately afterward withdrew his motion and seconded a motion for representation by population with periodic reapportionment, since wealth was impractical to measure.  

On the old democratic side, he apparently favored making legislators ineligible to executive office.  Against old democracy, he did not regard giving the House sole authority to initiate money bills as of any importance.  And his views on qualifications to office are decidedly confusing.  He preferred giving Congress the power to set property qualifications for members to having property qualifications set in the Constitution, saying that it would be too difficult to have find a uniform qualification for all states.  Such as power was “not unexceptionable,” but not dangerous.  Allowing Congress to set qualifications for voters would be more dangerous.  He opposed requiring fourteen years’ citizenship for Senators, favored requiring one year residency in the state represented and opposed disqualifying public debtors from office.*

 Ellsworth took primarily a small state view on election of the executive, favoring electors chosen by state legislatures, with one elector to each 100,000 of a state’s population up to 300,000.  Alternately, he would make the executive elective by the national legislature for a first term and reelected by electors to guaranty his independence.  In any event, he opposed election by the people directly 
because the large states would always win.  He definitely showed some of an old democrat’s distrust of the executive.  He considered a veto, even qualified veto by a single executive dangerous and favored joining the judges to the veto to give greater “wisdom & firmness.”  He also favored having the Senate, rather than the executive, appoint judges since they would be less “open to caresses & intrigues.”  Merely allowing the Senate to reject executive appointments would give the executive the effective power of appointment.  He also favored a council for the President, to consist of the President of the Senate, Chief Justice, and head of the departments of finance, war, foreign affairs, domestic affairs and marine, to advise but not conclude him.

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*That last view, however, may be not so much a new democratic view as the general view of the commercial elite.  All importing merchants were public debtors because they imported merchandise in too large a volume to pay the import taxes all at once.  They would therefore pay a portion of the tax and sign a pledge promising to pay the balance as they sold the goods.

Some of Each: John Dickinson

A few delegates occupy a position somewhere between old and new democracy, favoring features of each about equally, and a few mixed government features as well.

John Dickinson (Delaware):  In his first speech at the Convention, Dickinson said:

A limited monarchy he considered as one of the best Governments in the world. It was not certain that the same blessings were derivable from any other form. It was certain that equal blessings had never yet been derived from the republican form. A limited Monarchy however was out of the question. The spirit of the times – the state of our affairs, forbade the experiment if it were desireable.

 Despite his admiration for limited monarchy, Dickinson seems to have accepted that it was out of the question and showed no actual disposition to institute it.  In particular, he believed that the United States lacked an essential ingredient for a limited monarchy – a nobility. 

With regard to the House of Representatives, he considered it essential that it be elected by the people directly and believed that representation should be apportioned by actual tax revenues, rather than by either population or wealth.  Given that the main source of revenue at the time was taxes on imports and exports, this is a surprising position for a delegate from a state without a major port, but he considered such apportionment a useful incentive for states to pay their tax quotas.  He considered the United States too large for annual elections and favored a three-year term for the House, with one third of all members up for election every year.  With regard to the Senate, he wanted it to have some of the functions of a House of Lords, although he did not go as far in making it “aristocratic” as the more extreme advocates of mixed government.  As we have seen, he was the first to propose giving each state an equal voice in the Senate in exchange for proportional representation in the House.  Senators should be elected by state legislatures, both to give states sufficient agency in the central government and to pass Senators through a “refining” process to make them “consist of the most distinguished characters, distinguished for their rank in life and their weight of property,” similar to a House of Lords.   Although he said Senators needed a long terms to guaranty their independence from the state legislatures, although he defined “permanency” as merely a three, five or seven year term.  While many others thought a small Senate would give it greater coolness, Dickinson favored “80 and twice 80” members to balance to lower house.  Only the House should be able to originate money bills because the people should only be taxed by their immediate representatives, and because experience had confirmed the wisdom of such a policy.

Having decided that monarchy was out of the question, Dickinson made no attempt to make the President a monarch; a “firm” executive was not compatible with a republic.  He favored election of the President by the people as the “best and purest source.”  To overcome the difficulty in achieving a majority for any one candidate, he proposed to have the people of each state choose a candidate and either the national legislature or special electors choose among the candidates.  He wanted the executive to be removable by the national legislature upon the request of the majority of states, to have a formal council of advisors, and to wield his veto alone instead of in conjunction with the judiciary, so the people would know who was making the veto and could hold him responsible.

He favored the same odd combination of property restrictions on the vote and lack of property restrictions on office holding that Madison did.  With regard to property restrictions on office holding, “He doubted the policy of interweaving into a Republican constitution a veneration of wealth.  He had always understood that a veneration for poverty & virtue, were the objects of republican encouragement.”  Property requirements would exclude a man of merit who was not rich.  “The best defence (sic.) lay in the freeholders who were to elect the legislature.  Whilst this Source should remain pure, the public interest would be safe.”  But he made it clear that freeholders were “the best guardians of liberty” and only they should vote “as a necessary defence (sic.) agst the dangerous influence of those multitudes without property & without principle with which our Country like all others, will in time abound.”   

In short, Dickinson does not classify easily.  He favors old democratic, new democratic and mixed government features in about equal shares.

Mixed Old and New Democrats: Benjamin Franklin

Benjamin Franklin did not express his opinion on as many positions as Randolph or Mason, but to the extent that he did, he also showed some openness to both old and new democracy.  In one regard at least, Franklin was the most radical old democrat present; at least theoretically he saw no  need for an upper house in the legislature. However, since no one else in the Convention supported his position, Franklin did not press the point.  Franklin was second only to Sherman in his distrust of the executive.  He shared
Randolph’s fear that a single executive as the “foetus” of a monarchy, ever trying to accumulate more power.  He also opposed an executive veto, fearing that the executive would be constantly abusing his veto to extort more money and power, until accumulated all the prerogatives of the British monarch and could have his way by bribes without having to use his veto.  He would agree to allow the executive to suspend, rather than veto, objectionable laws.  He also favored joining a council to the executive in making appointments fearing that “caprice, the intrigues of favorites & mistresses & c” would have sway Presidents, just as they swayed kings.  He also said, only half-jokingly, that it was favorable to executive to be impeachable because if the executive betrays the people’s trust, if he cannot be impeached, the only way to get rid of him was by assassination!  Although he did not directly address the issue of ineligibility to office, he certainly appeared to favor it, saying that it was the prospect of office that made the British government so “tempestuous” and, as we have seen, feared the executive influence that would arise from that sort of patronage.  It was apparently Franklin who first proposed  to link giving each state equal representation in the Senate to giving the House the sole authority to originate money bills and made it clear that these two proposals to be dependent on each other.  As he explained, “It was a maxim that those who feel, can bust judge.  This would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people.” Franklin’s only position that was not old democratic was that he proposed having one representative to every 40,000 people, which many others believed was inadequate.

 Franklin also supported new democracy in the sense of opposing property restrictions, either on the vote or on office holding.  If Madison did not seem to recognize that the propertyless nonetheless had legitimate interests they needed to protect, Franklin did.  In England, he said, after denying the vote to the propertyless, Parliament subjected them to “peculiar labors and hardships.”  Above all, restricting the vote to freeholders would “depress the virtue & public spirit of our common people.” Likewise, property restrictions on office holding would also “debase the spirit of the common people.”

If honesty was often the companion of wealth and poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property.  Some of the greatest rogues he had ever acquainted with, were the richest rogues.  

He likewise opposed requiring a long period of citizenship for Senators as “illiberal” and hostile to friends in Europe and to potential immigrants.  He also made one at least potentially radical new democratic proposal for choosing judges.  Instead of giving their appointment to the executive or legislature, why not adopt the method used in Scotland, where judges were elected by the lawyers, who always chose the best lawyer around in order to eliminate a rival and divide his practice among themselves!  It is not clear how serious he was in this proposal, but it at least leaves the door open to semi-popular election of judges.  On the other hand, Franklin did not take the new democratic position on representation.  As we have seen, he proposed that each state have an equal number of representatives, to vote as individuals, with each state to have an equal vote on matters regarding the sovereignty of states and votes on money to be proportional to each state’s contribution.  Franklin apparently did not understand just how important a matter of principle representation by population was to new democrats.

Benjamin Franklin, alone among the delegates, occasionally had seemingly utopian or visionary ideas of government.  He urged that the chief executive not receive a salary, saying that to the Presidency an office of both honor and profit would be too tempting to the greedy.  Even if only a modest salary were set at first, there would always be reasons to increase it, and eventually the President would use the wealth of the office to set himself up as a monarch.  Surely there were men who would be willing to serve out of pure public spirit and not for money.  Franklin did not seem to recognize that denying a salary to the President would be just as effective as setting actual property restrictions in limiting the office to the rich.  He also seconded a motion by Charles Cotesworth Pinckney not to pay Senators, even though General Pinckney made clear that this was to ensure Senators would be rich, something Franklin presumably did not favor.  His proposal, discussed in the section on centralization, of financing the federal government by voluntary contributions from the states also seems visionary and was not taken seriously by any of the other delegates.

Mixed Old and New Democrats: George Mason

George Mason’s views were similar to his fellow Virginias'.  His fame as a democrat no doubt owes much to his eloquence in arguing for popular election of the House:

[The House] was to be the grand depository of the democratic principle  of the Govt.  It was, so to speak, to be our House of Commons – It ought to know & sympathize with every part of different parts of the whole republic . . .  He admitted that we had been too democratic but was afraid we sd incautiously run into the opposite extreme.  We ought to attend to the rights of every class of the people.

The people will be represented; they ought therefore to choose the Representatives.  The requisites in actual representation are that the Rep. Should sympathize with their constituents; shd think as they think, & feel as they feel . . . Much he sd had been alledged agst deomocratic elections. . . . But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature.

Although the primary author of the Virginia constitution whose property restrictions on the vote Jefferson found so undemocratic, Mason opposed restricting the vote to freeholders, saying that the vote should go to anyone with “evidence of attachment to & permanent common interest with Society.”  “Does no other kind of property but land evidence a common interest in the proprietor?  Does nothing besides property mark a permanent attachment.”  

 Like all Virginians, Mason championed the western states.  He favored representation by population, saying that it was a good enough measure of wealth for “every substantial purpose,” which removed any reason for denying full representation to the Western states because they would not be able to make equal contributions to the treasury.  Since representation was to be by population and the north had the majority of the population, he would agree they had the right to preponderate.  But they should not preponderate if they were not longer in the majority.  Since it would obviously not be in the interest of current majority to become the legislative minority, periodic reapportionment should be required or it would never happen.  Mason made it clear that he expected the South to increase in population faster than the north.  His principles, therefore, are certainly democratic, but there is a certain measure of self-interest to them.  As for the western states:

Ought we to sacrifice what we know to be right in itself, lest it should  prove favorable to States which are not yet in existence.  If the Western States are to be admitted into the Union, as they arise, they must, he wd repeat, be treated as equals and subjected to no degrading discriminations. They will have the same pride & other passions which we have, and will either not unite with us or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethren.

Mason was not so new democratic on the issue of qualifications to office.  He was the one who proposed a minimum age of 25 for the House, favored requiring seven, rather than three years’ citizenship for Representatives and fourteen years’ citizenship for Senators, saying that he would have barred immigrants from the Senate altogether, if so many immigrants had not distinguished themselves during the Revolution, nor did he see any reason to make an exception for immigrants currently naturalized by the states.  But more disturbing from today’s perspective were his views on property qualifications:

One important object in constituting the Senate was to secure the rights of property.  To give them weight & firmness for the purpose, a considerable duration in office was thought necessary.  But a longer term than 6 years, would be of no avail in this respect, if need person should be appointed.  He suggested therefore the propriety of annexing to the office a qualification of property.

He later moved for setting qualifications in landed property for the national legislature and disqualifying public debtors and persons with unsettled accounts.  As we have seen, Madison opposed this requirement as unjust to the urban population, and, we shall see, the altogether undemocratic Gouverneur Morris resisted the ban on public debtors and persons with unsettled accounts as barring importing all merchants from office, since merchants regularly posted bond for the tax on the goods they imported and only gradually paid it off as they sold their goods.  He therefore considered Mason’s proposed qualifications “a scheme of the landed agst the monied interest.”  Morris was probably right; Mason probably was trying to promote rural over urban interest.  He probably did not consider this undemocratic, be merely a protecting of the majority of farmers against a merchant aristocracy.

As for old democracy, Mason, like Randolph, was an old democrat on all issues except length of terms.  He favored doubling the House from 65 members to 130, considering 65 members to be too small in absolute numbers and too small to know local interests and have the confidence of the people.   Even 130 members was almost too few.  He favored allowing only the House to originate money bills because only they were “immediate representatives” of the people, because the Senate’s long terms and small numbers made it too “aristocratic” and because the Senate represented the states instead of the people.  He also strongly favored making legislators ineligible to executive office in order to prevent the sort of corruption so prevalent in England, which he regarded as creating an aristocracy, sarcastically commenting that “In the present state of American morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition.”  Mason also feared a standing army.  It was he who first proposed to give the federal government the authority to regulate the militia in order to strengthen it and proposed that this section be preceded with the words, “And that the liberties of the people may be better secured against the danger of standing armies in time of peace.”  He also called for a bill of rights, although he also believed that the prohibition on ex post facto laws should apply only to criminal and not civil cases.

            Mason also had an old democrat’s general distrust of the executive.  He favored election of the executive by the national legislature rather than by the people, believing that the people would not know enough about eminent characters outside of their own state and that a designing conspiracy could control the election.  Indeed, “[I]t would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man.”  He originally opposed the creation of a single executive and later came out in favor of a privy council for the President, chosen by the Senate, with two members for the New England, two from the Mid Atlantic, and two from the Southern states.  This counsel, and not the Senate, should assist the President in making appointment.  “[I]n rejecting a Council to the President we were about to try an experiment on which the most despotic Governments had never ventured.  The Grand Signor [Turkish sultan] himself had his Divan.”  He firmly favored making the President impeachable, since no man should be above justice and believed that “maladministration” or at least “high crimes & misdemeanors” should be impeachable, as well as bribery or treason.  He opposed executive appointment of judges as potentially giving the President an improper influence over the judiciary, favored legislative appointment of the treasurer since money belongs to the people and the legislature, as the peoples’ representative, should appoint the keepers of it and opposed allowing the President to pardon treason.  He was of mixed opinions about the executive veto.  Originally he opposed the executive veto, especially in the hands of a single executive, fearing the executive would abuse his veto to extort greater power, until he had the same influence through appointments as the British monarch and would become, in effect, a monarch in all but name.  On the other hand, he favored joining the judiciary with the executive veto to give the executive “confidence” to use his veto, which he believed should be used not only to prevent legislative encroachments on executive power, but to strike down bad laws in general.  He also believed that only two-thirds, not three-quarters of the legislature should be needed to override a veto.

            Mason was less old democratic on length of terms.  He favored a two-year term for the House, saying that one year was inconvenient for states more distant from the capital and two years would synchronize with South Carolina’s electoral cycle.  He did not specify what term he favored for the Senate, but made clear that he favored the relatively long (six-year) term, although he thought it made it dangerous for the Senate to originate money bills.  He also favored two, rather than three Senators from each state to keep the Senate from being too numerous, and, as we have seen, believed that the Senate should secure property and should therefore have property requirements for office.  He favored a seven-year term "at least" for the President with no re-eligibility to ensure his independence from the legislature, although he emphatically opposed an executive for “good behavior” as prelude to a monarchy.

            Mason ultimately refused to sign the Constitution.  Unlike Gerry or Randolph, he did not list his reasons during the Convention.  After the Convention, however, he published a list of his objections that he had apparently written down during the Convention:

            (1)        No bill of rights

            (2)        Insufficient representation in the House (although he considered the last-minute change in ratio of representation from 40,000 to 1 to 30,000 to 1 a significant improvement)

            (3)        The Senate’s power to alter money bills

            (4)        The Senate’s role in appointments and other powers he considered executive

            (5)        The federal judiciary will tend to absorb all state judiciaries and make law too remote, tedious and expensive

            (6)        The absence of a council for the President

            (7)        The Vice President as President of the Senate gives the executive legislative powers

            (8)        The President’s power to pardon treason

            (9)        Making treaties supreme law of the land without requiring concurrence of the House

            (10)      Permitting commercial regulations by a simple majority

            (11)      The power of Congress to make all laws “necessary and proper”

            (12)      No protection for freedom of the press or against standing armies
            (13)      States may not tax their own exports

            (14)      Protection of slave importation

            (15)      Prohibition on ex post facto laws applies to civil as well as criminal laws.

As with Edmund Randolph, some of these objections are to the extent of federal powers, some are attempts to uphold Virginia’s specific interests, and some are old democratic.  Like Randolph, he did not object to the Constitution on new democratic grounds.

Mixed Old and New Democrats: Edmund Randolph

Some of the delegates showed considerable openness to both old and new democracy.  Significantly, these especially included Virginians, who were particularly devoted to the new democratic principles of admitting Western states on an equal basis and regular reapportionment to match shifts in population.

Edmund Randolph favored popular election of the House of Representatives, partly because only by making them popularly elected could they be trusted with increased power, and partly because having them elected by state legislatures reduced them to mere ambassadors with no will of their own.  As seen before, he also wanted representation to be proportional to population and firmly resisted giving each state equal representation in the Senate.  He was the foremost advocate of requiring regular reapportionment of the House to match shifts in population, perhaps because he was conscious of the injustice of his native Virginia’s system of representation by counties.  It was Randolph who first proposed requiring reapportionment to be regulated by a periodic census instead of leaving it to the discretion of the nation legislature, originally proposing to require reapportionment by population and wealth, but then changing to agree the rule of representation to all free inhabitants and three-fifths of all slaves.  He favored requiring periodic reapportionment for the same reason that he opposed equality in the Senate:

If equality between great & small States be inadmissible, because in that case unequal numbers of Constituents wd be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of America should hereafter have less representation, than a smaller & less populous district.  If a fair representation of the people be not secured, the injustice of the Gov’t will shake to its foundations.

Reapportionment could not be left to the discretion of the legislature, or they would always be looking for excuses to postpone alterations to keep power in the hands of those who possessed it.  Setting a strict rule of reapportionment was also the best way to prevent new states from using some other crisis to force a reapportionment.  He also opposed allowing reapportionment by wealth instead of population (with the three-fifths rule) for fear the legislature would set a rule of wealth that would serve the advantage of the people who controlled the legislature.  Randolph also wanted to admit the western states on an equal basis, saying that Congress had pledged faith to admit them on an equal basis, and they neither will nor should accept any other.  Randolph was also generally open to immigrants holding office, favoring seven or at most nine years citizenship rather than fourteen years for membership in the Senate and four, rather than seven, years’ citizenship to serve in the House.  A longer term of citizenship would violate the government’s faith to immigrants. 

Randolph favored many old democratic principles as well.  He considered giving the House sole authority to originate money bills important enough to make it a condition of giving each state equal representation in the Senate.  If the Senate were to be proportional to population, he said, he would not insist on this condition, but giving the House sole authority to originate money bills was a condition of giving states equal representation in the Senate.  Besides, the plan would be more acceptable to the people if the “aristocratic” Senate were denied the power of the purse.  He would also deny the Senate authority to alter or amend money bills.  In response to objections that many economic regulations also involved money, he proposed to give the House sole authority to originate money bills for the purpose of raising revenue.  He believed the people would see the Senate as an aristocracy and the President as little less than a monarch and therefore take alarm if anyone except their immediate representative could originate money bills. The Senate was also more likely to be corrupt or unduly influenced by the executive.  He also wanted to make legislators ineligible to non-military office, for fear of corruption or influence and seconded a motion to preface federal authority to regulate the militia with the words, “And, that the liberties of the people may be better secured against the danger of standing armies in time of peace.”

He favored election of the executive by the legislature and particularly thought it dangerously "aristocratic" to allow the Senate to break deadlocks in the Electoral College. Randolph also had an old democrat’s distrust of the executive.  He originally even wanted a three-man executive, considering a single executive as an embryonic monarchy (the “foetus” of a monarchy were his words.  He believed the people were adverse to the very semblance of a monarchy and would never give a single executive their confidence, and that “felt an opposition to it that he believed he should continue to feel as long as he lived.”  In fact, he appears to have gotten past his opposition to a single executive and even to have supported an executive veto as preventing large states from combining against the small ones.  Although he favored election of the executive by the legislature, Randolph believed that the executive should be eligible for only one term to ensure his independence and particularly to ensure that he would be firm enough to use his veto.  He even favored allowing the President to veto “every order, resolution or vote” to prevent evading his veto. On the other hand, he originally favored appointment of judges by the Senate instead of the executive (later changing his mind to favor appointment by the executive with the advice and consent of the Senate) and opposed allowing the President to pardon treason.

Edmund Randolph’s main rejection of old democracy was in his not sharing the New England fetish with very frequent elections; his main rejection of democracy in general was his view of the Senate.  He was ambivalent about the term of the House, ultimately coming out in favor of a two-year term.  Annual elections were “a source of mischief” in the states, but only because there were not enough other restraints on popular intemperance.  His only reason ultimately for favoring a longer term was one-year terms were inconvenient in so large a country.  His feelings about the Senate were less mixed.  He favored a seven-year term:

The democratic licentiousness of the State Legislatures proved the necessity the necessity of a firm Senate.  The object of this 2^nd branch is to control the democratic branch of the Nat’l Legislature.  If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it.  The Senate of Maryland constituted on like principles had scarcely been able to stem the popular torrent.

He also believed that the Senate should be much smaller than the House to protect it from the “passionate proceedings to which numerous assemblies are liable” and check the “turbulence and follies of democracy.”  Nor did he see any danger in having state executives appoint temporary replacements if a Senate seat unexpectedly fell vacant.  He did oppose Gouverneur Morris’ proposal for a Senate for life appointed by the executive, saying that it could never co-exist with a popular branch.

In the end, as stated before, Randolph refused to sign the Constitution, saying that offering the Constitution on an all-or-nothing basis would be too controversial and might lead to “confusion” and “anarchy & civil convulsions.”  The reasons* Randolph gave for opposing the Constitution were:

(1)        The Senate as a court for trying impeachment of the executive

(2)        The smallness of the House of Representatives

(3)        The lack of limitation on a standing army

(4)        The vague authorization of Congress to make “necessary and proper” laws

(5)        The authority of Congress to pass navigation acts by a simple majority

(6)        The authority of the federal government to intervene in state rebellions upon the application of the state executive as well as the legislature

(7)        The need for a more definite boundary between the general and state legislatures and judiciaries

(8)        The unqualified power of the President to pardon treason

(9)        Congress’s power to set its own pay.

Many of the objections, particularly the smallness of the House, the lack of limitations on standing army, and the President’s unlimited authority to pardon treason are old democratic objections.  Some are objections to the extent of federal power and some are southern (particularly Virginian).  None are new democratic.

Finally, it should be noted that although Randolph refused to sign the Constitution, he later reversed himself again and came out in favor of it at the Virginia ratifying convention.

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*He also listed as reasons the authority of Congress to tax exports and the need for a ¾ majority to override executive vetoes when he would have preferred 2/3.  These two objectionable provisions were changed.