John Francis Mercer: A Very Strange Delegate

Though a minor participant in the Convention, John Francis Mercer is an interesting example of extreme cynicism, exceeding Gouverneur Morris.  He did not arrive until August 6, long after most of the important decisions had been made.  He opposed popular election of the House, saying “The people can not know & judge of the character of the Candidates.  The worst possible choices will be made.”  He was open to popular election of the House if the people had “guidance,” such have having candidates nominated by state legislatures.  If this seems undemocratic to us, contemporaries would be even more shocked by his comments on ineligibility to office:

It is a first principle in political science, that wherever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied & complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability & uncertainty to their other evils. -- Goverm’ts can only be maintained by force or influence. The Executive has not force, deprive him of influence by rendering the members of the Legislature ineligible to Executive offices, and he will become a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder. . . . Nothing else can protect the people agst those speculating Legislatures which are now plundering them throughout the U. States.*

John Francis Mercer

Yet Mercer ended up opposing the Constitution as an intolerable threat to liberty.  He was even the only member of the Convention to declare himself in favor of paper money, the position of a radical populist! 

And quite contrary to most radical populists of his day, Mercer favored executive over legislative power in general.  This was less because of enthusiasm for the executive than fear of the legislature. He favored giving the Supreme Court in addition to the President a veto on acts of Congress, giving the executive the sole power of making treaties, and having the executive, not the legislature, appoint a treasurer.  All in all, Mercer’s views were too eccentric to be of much significance.

The incongruity between Mercer’s cynicism about aristocracy and his radical populism on paper money led me to do more research on his opinions.  His Anti-Federalist Writings allow us a clearer insight into his views, which are very strange, indeed.  He was apparently a rare dissenter from the overwhelming consensus in favor of a democratic representative republic.  Central to Mercer’s ideology was a deep hatred of elective, representative legislatures, which are, of course, the very foundation of our system of government.  To overcome the evils of representative government required an executive for life, exempt from impeachment, and a Senate for life.  However, he opposed the British system, regarding these offices as despotic if they ever became hereditary.  This clearly places him on the side of mixed government.  On the other hand, he favored the old democratic practice of binding legislators by strict instructions and recalling anyone who did not obey.

His ideal system of government was direct democracy on the Swiss model, a system everyone agreed was impossible on a scale so large as the United States.  To get around the difficulty Mercer proposed breaking the United States into sub-jurisdictions small enough to rule by direct democracy.  When laws were needed on a national level, he proposed limiting the legislature to suggesting a law and submitting it to referendum (with the vote limited to free holders).**  It is not entirely clear whether Mercer actually considered such a system feasible.  (He himself called it an “illusion”).   Mercer is interesting, not so much for meeting any of the categories of delegates, as for expressing ideas far outside of the mainstream.

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*To this the horrified old democrat Elbridge Gerry said that if we were to have a government of plunder, we might as well stick to a single despot so there would be only one plunder.  Many people today, I suspect, would sadly nod along.

**The term referendum had not been coined at the time, of course, but what he described is immistakable;

But the laws which pass the legislature before they become binding, should be referred to the different counties and cities — printed reasons drawn by committees, might if necessary, accompany each, together with an annual estimate of public wants and a detail of the expenditures of the former sums granted. Let these laws then be submitted to the free deliberation of the freeholders of the counties and cities — the numbers of the yeas and nays be taken on each by the presiding magistrate, and transmitted to the executive, who may then upon comparing the returns from the several counties and corporations, declare what laws are the will of the people. On the appearance of any sudden danger the two houses or indeed a majority of one house, might invest the Executive with that authority, exigency might require for the safety of the republic, until remedy should be provided by law.

Minor Advocates of Mixed Government: George Read and Rufus King

George Read’s role was much smaller than Hamilton’s or Morris’s. He was, however, the only delegate to declare himself in favor of Hamilton’s plan and advocate adopting it (Morris was absent at the time).  It appears that it was the “mixed” nature of Hamilton’s plan as well as its extreme nationalism that appealed to Read.  Independently of Hamilton or Morris, he proposed that the Senate be appointed by the executive out of candidates nominated by state legislatures, a proposal he knew would be controversial.  He also favored a Senate for life and, when no one was interested, proposed nine years as the longest term that could be obtained.  He also favored an absolute executive veto and wanted the executive, not the legislature to appoint the treasurer.  He first favored and was later indifferent to limiting money bills to the House. He opposed “shackling” the legislature too much in requiring reapportionment (a proposal that, not coincidentally, would not favor Delaware).  He did favor one old democratic proposal, to double the size of the 65-member House.  He gave as reasons for enlarging the House that Delaware would only have one representative who might be absent and deprive that state of a vote, that 65 was too small a number to possess the people’s confidence, and that he hoped the national government would have greater objects of legislation and would therefore require a more numerous representation.

Rufus King (Massachusetts):  Rufus King did not go as far as these others in supporting mixed government, but he leaned in that direction.  This particularly applied to his ideas of executive power:

He [the executive] ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised 

The judiciary was impeachable because judges otherwise held their offices for life.  If the executive held power for only a limited term he should not be impeachable lest be too far subordinated to the legislature and become too weak.  If serving for a limited term, his good behavior would periodically be tested.  When the Convention debated the term of the executive if elected by the legislature, various delegates proposed long terms without reeligibility to ensure his independence.  King first spoke on behalf of reeligibility, then proposed, “Twenty years.  This is the medium life of princes.”  Madison believed that King was being ironic and mocking the other proposals, but given what he said on a previous occasion about an executive for life, he may well have been serious.  Certainly, he opposed too short a term.  He opposed joining the judiciary to the executive veto, saying that placing the veto in one man made him more “responsible” and opposed joining a counsel to the President for making appointments on similar grounds, although he apparently favored having the Senate concur in executive appointments.  On the other hand, he favored having the legislature, rather than the executive, appoint the Treasurer, mostly because people would resist executive appointment.

King also opposed making legislators ineligible to executive office as “refining” too much and giving the executive an excuse for bad appointments, since he could always say the best man for the job was a member of the legislature and therefore ineligible.  Besides, all the corrupt effects of eligibility would remain if friends and relatives of legislators could be appointed.  As an alternative, he proposed to make legislators ineligible to offices they create or increase in pay.  (This was the measure ultimately adopted).  He also opposed representation by population on the grounds that numbers were a poor measure of wealth and, even if they were at present a measure of wealth, they might not remain a good measure in the future.  Since property was “the primary object of Society,” it should be included in representation.  He did oppose using actual tax revenue as the basis for representation as unfair to non-importing states, certainly an honorable position for a delegate from Massachusetts and New York, two major importing states.

King appears to have been the only delegate who did not favor any old democratic principles.  He d voted for a three-year term for the House, the only New Englander to do so and a seven-year term for the Senate, one of only two New Englanders to do so.  We have already seen his views on executive power and ineligibility to office.  On only two points could he be said to have taken slightly old democratic positions, he favored legislative appointment of the treasurer and he favored reducing the maximum ratio of representation from 40,000:1 to 30,000:1.

He showed slightly more openness toward new democracy.  He favored popular election of the House of Representatives since state legislatures would choose men subservient to their own views.  He leaned toward popular election of the executive, largely to make him eligible for reelection, but also because “the people at large would chuse wisely.”  However, he doubted that there would be a majority for any candidate, so he preferred special electors.  He also joined with Gouverneur Morris in wanting the Senate, not the House, to break deadlocks in the Electoral College to ensure “high mounted” government.  He also opposed requiring land ownership as a requirement for office, not so much out of democratic principles as to protect the “monied” (merchant) interest.  As we have already seen, King favored representation by wealth instead of population.  He opposed admitting western states on an equal basis and believed it "impolitic" that Congress had already promised to admit much of the west on an equal basis.  Nor did he favor requiring periodic reapportionment of representatives.  He denied wanting to “retain any unjust advantage whatever in one part of the Republic,” but said the Congress could be trusted to reapportion, or the states being denied fair representation would threaten to separate.

Mixed Government: Gouverneur Morris, the cynic

Gouverneur Morris played a larger part in the Convention than Hamilton.  Like Hamilton, he may be considered an advocate of mixed government insofar as he favored semi-monarchical executive and a Senate as near as possible to the House of Lords, but, unlike Hamilton, he showed no interest in making sure the House was genuinely democratic.  He also expressed himself in cynical terms Hamilton never used.  While Hamilton, as we have seen, argued for an aristocratic Senate by saying that the few and the many should have a veto over each other to prevent either from oppressing the other, Morris said:

[The Senate] must have great personal property, it must have the aristocratic spirit; it must love to lord it thro’ pride, pride is indeed the great principle that actuates both the poor & the rich.  It is this principle which in the former resists, in the latter abuses authority. . . . If the 2^nd branch is to be dependent, we are better off without it.  To make it independent, it should be for life.  It will then do wrong, it will be said.  He believed so: He hoped so.  The Rich will strive to establish their dominion & enslave the rest.  They always did.  They always will.  The proper security agst them is to form a separate interest.  The two forces will then controul each other. . . . [To persuade state officer holders to support the Constitution] [L]oaves & fishes must bribe the Demagogues.  They must be made to expect higher offices under the general than the State Gov’t.  A Senate for life will be a noble bait. 

Morris’s specific proposals for the Senate were a great deal more aristocratic than Hamilton’s.  Like Hamilton, he favored a Senate for life.  Unlike Hamilton, he would have them appointed by the executive.  Furthermore, while Hamilton favored making the Senate, like the house, come from districts based on population, Morris pointed out that if they served for life, Senators would probably move several times and could not truly be said to represent anywhere.  He also said Senators should not be paid to ensure they were rich.

Morris’s views on the executive are interesting and somewhat contradictory.  He sounds almost democratic on the subject at times.  On the new democratic side, he favored popular election of the President.  “If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.”   To fears that the people of large states would combine to elect one of their own, he replied that legislators from large states could combine, but election by the people made such conspiracies impossible.  Nor were the people too uninformed to choose their own President; they would be uninformed of what happened in a legislative conclave, but they were not uninformed of the most illustrious characters in the country  
Morris’s real goal, however, was not the new democratic objective of popular election of the President, but the very un-old democratic objective of strengthening the executive by protecting him as much as possible from the legislature.  That became apparently when someone ironically proposed an executive for life.  Morris supported the motion, saying that he had only advocated popular election of the executive because he though an executive for life would not go over.  “He was indifferent how the Executive should be chosen, provided he held his place by this tenure.” When that proposal was defeated, he went to the opposite (and old democratic) extreme of proposing a two-year term for the executive, with election by the people and indefinite reeligibility.  At the time, he opposed even making the executive impeachable, lest it give the legislature too much power over the executive.  The very short term was to make it possible to get rid of an executive who misbehaved without making him impeachable.  At first he argued against making the President impeachable, saying that it should be sufficient to impeach his co-conspirators, but after being reminded of some of the worse betrayals by executives in other countries, he changed his mind.  But above all, he opposed limiting the President to a single term.  An executive eligible to only one term would destroy the motive to behave well; it would lead to instability of measures and destroy the President’s incentive to protect his office and encourage him to court favor with the legislature in hopes of joining them.  But above all, he feared that denying the executive the possibility of being legally returned to office would encourage him to seek power illegally, including by military force.

Not too surprisingly, Morris also favored a strong executive.  He favored an absolute executive veto as necessary to protect the executive from encroachments by the legislature, particularly the popular branch and, when that was rejected, preferred requiring a three-quarters to a two-thirds vote to overrule the veto.  Similarly, he favored executive appointment of judges and the treasurer and executive pardon of treason.  He did propose an executive council, consisting of the Chief Justice of the Supreme Court and the department heads, but these would be appointed by the President and serve during his pleasure and would have the power to advise the President only and not to bind him.  A council with the authority to bind the President would merely serve as a shield to allow him to escape blame for misconduct.  He opposed making legislators ineligible to executive office, arguing that the executive could exercise influence anyhow by appointing friends or relatives of legislators to office, but also hinting that appointments to office were an appropriate form of executive influence.  On the whole Morris disagreed with the old democratic view that the legislature was most nearly the voice of the people and the executive was dangerous; he saw the greatest danger as legislative tyranny and the executive as the representative of the people as the whole.  “It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, agst Legislative tyranny.”  Furthermore, unlike Hamilton, Morris did not consider himself a monarch.  “This Magistrate [the President] is not the King but the prime-Minister.  The people are the King.” 

If Morris differed from Hamilton in not considering himself a monarchist, he also differed from Hamilton in not seeing any need for measures to ensure that the lower house was genuinely democratic.  Presumably he would say the lower house’s democratic tendencies would be so overwhelming that there was no need to preserve them, but only to restrain them.  Nonetheless, his vision of the lower house is not a democratic one.  He was not present during debates on whether the House would be chosen by the people or the state legislatures, although given Morris’s distrust of state power, he would presumably have favored the people.  Nor was he present when the term of the House was chosen.

He was present when the Convention debates qualifications for voting and was the first to propose restricting the vote to freeholders:

Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them.  We should not confine our attention to the present moment.  The time is not distant when this Country will abound the mechanic & manufacturers who will receive their bread from their employers.  Will they be the impregnable barrier agst aristocracy? . . . The man who does not give his vote freely is not represented.  It is the man who dictates the vote.  Children do not vote.  Why? Because they want prudence, because they have no will of their own.  The ignorant & dependent can be as little trusted with the public interest.

He wanted property to be at least taken into account in apportionment of representation:

Life & liberty were generally said to be of more value, than property.  An accurate view would nevertheless prove that property was the main object of Society.  The savage State was more favorable to liberty than the Civilized; and sufficiently so to life.  It was preferred by all men who had not acquired a taste for property; it was only for the sake of property which could only be secured by the restraints of regular Government.

On the other hand,, if representation by property was to favor the South, property “ought to have its weight, but not all the weight.”  Nor did he see any reason to restrict money bills to the lower house .  He also opposed giving equal representation to the West or requiring periodic reapportionments.  Western states would not know the “public interest” and would try impose wars and burdens on the Atlantic states.  Westerners would not be “enlightened,” would be “adverse to the best measures” and try to ruin the Atlantic states.  “The Busy haunts of men not the remote wilderness, was the proper school of political Talents.”  As for requiring periodic reapportionments, if the mode were to be fixed, he believed it would put to much restraint on the legislature; if unfixed, new states might take advantage of some crisis and block vital legislation until Congress made a reapportionment in their favor.  As for the danger that Congress might not reapportion, he said with a presumably straight face, he thought this was very unlikely unless there was some important reason not to reapportion and besides, surely Congress could be trusted to do their duty, if bound by their oaths and honor. (In response, Madison said it was strange to hear one so cynical show such a sudden faith in human nature exactly when it was in his interest to do so).

Morris was slightly new democratic in opposing Mason’s proposal for requirements of landed property for office holders and an exclusion of public debtors and people with unsettled accounts. 

If qualifications are proper, he wd prefer to see them in the electors rather than the elected. . . . It was a precept of great antiquity that we should not be righteous overmuch.  He thought we ought to be equally on our guard agst being wise overmuch.  

But this was not so much a democratic fear as a fear that the provision would discriminate against merchants, who owned little land and regularly posted bond for import taxes and, as a result, were regularly public debtors or had unsettled public accounts.  He favored 14 years’ citizenship for Senators, not altogether trusting immigrants and 7 years for Representatives, although he would make an exception for any immigrant currently nationalized, as the states had pledged their faith to such immigrants.

Morris showed some openness to a bill of rights, favoring a prohibition on bills of attainder, a guarantee of habeas corpus except in emergencies, a specific definition of treason, and a ban on religious tests for office.  On the whole, however, he was the least democratic of the delegates, considerably less democratic than Hamilton. 

A revealing episode showing the difference between Morris and Hamilton occurred when the Committee of Remaining Matters, which included Morris, proposed the Electoral College to choose the President.  The Committee consisted of one member from each state, which naturally gave the advantage to the small states.  Two representatives of large states on the Committee, Gouverneur Morris and Rufus King, favored a “high mounted” government (Madison’s words) and therefore agreed with the small state representatives to have the Senate break ties in the Electoral College.  This led to great cries of alarm that if the Senate could choose the President, it would become too powerful and become an aristocracy.  Old democrat Hugh Williamson, new democrat James Wilson, old and new democrats Edmund Randolph and George Mason, and the eternally moderate John Dickinson all took alarm. Morris defended the Senate’s role in choosing a President.  Hamilton, on the other hand, joined the alarm.  “Here then is a mutual connection & influence, that will perpetuate the President, and aggrandize both him & the Senate.”  He proposed, instead, to allow whoever had the most electoral votes be declared the winner.  Granted, this might have been a proposal for an even more “high mounted” government, by keeping the legislature out the election altogether, but he did express fears at another time of an improper combination between the President and Senate.  Incidentally, Roger Sherman, as usual, provided the compromise.  The House, instead of the Senate, would break electoral deadlocks (this comforted people who feared an aristocracy), but they would vote by states (this reassured small states).*
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*This provision has only been used twice, in 1801 to decide between Thomas Jefferson and Aaron Burr and in 1825, to decide between four candidates.  (John Quincy Adams, who had the second most votes was chosen over Andrew Jackson, who had the most).  It proved to be a disastrously bad system both time, leading to deadlocks, delays, and corrupt bargains.  Some people believe the Supreme Court decided Bush v. Gore in part to spare the country a repeat performance.