Old Democrats: Roger Sherman of Connecticu

Roger Sherman (who Madison sometimes spells "Sharman") was another leading old democrat, although not so completely across-the-board as Gerry, and also more open to at least some new democratic ideas, especially with regard to the western states.  

He opened by opposing one important new democratic principle; he wanted election to the House of Representative to be by state legislatures instead of by the people, with the comment, “The people . . . immediately should have as little to do as may be about the Government.  They want [lack] information and are constantly liable to be misled.”   His concern was not just distrust of the people, but fear for the future of states, which he believed would be weakened if not allowed to participate in the new government.  He also favored election of the Senate by state legislatures.  At the same time, he acted as an old democrat, calling for the House to serve annual terms, since “Representatives ought to return home and mix with the people.  By remaining at the seat of Gov’t they would acquire habits of the place which might differ from those of their Constituents.”  Given that it was also around the same time that Sherman was arguing that there was no need for “another” branch of the legislature, to be elected by the people, it is clear that there was nothing contradictory or paradoxical in Sherman’s position.  He favored a one-house legislature, elected to one-year terms by the state legislatures, with each state having an equal vote, in other words, he wanted to keep the same system as the articles of Confederation.  Yet, just as Sherman was one of the leading proponents of the Great Compromise, he also acceeded to popular election of the House and two-year terms so readily as to leave one wondering if he was showing statesmanship or spinelessness.

Sherman also opposed long terms for the Senate, regarding either seven years or nine as too long, although he would agree to four, five or six years.  It was in response to a proposal for a nine-year term that Sherman made his comment that, “Frequent elections are necessary to preserve the good behavior of rulers,” and adding that if rulers behaved well, they would be reelected and the government would be stable.  Connecticut was stable, and look how frequent elections were there!   He favored making members of the national legislature ineligible to executive offices as a source of corruption and undue executive influence.  He also showed at least some distrust of standing armies, with the comment that “He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace.”  Yet he considered it safe to limit military appropriations to two years instead of one, since a legislature serving two-year terms might only meet every two years.  At the same time he considered “frequent” meetings of the legislature essential to liberty, presumably to keep the executive from becoming too powerful.

But above all else, Sherman showed himself an old democrat in his fear of executive power.  He went further than any other delegate in wishing to subordinate the executive to the legislature:  

MR. SHERMAN was for the appointment by the Legislature, and for making him [the chief executive] absolutely dependent on that body, as it ws the will  of that which was to be executed.  An independence of the Executive on the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing.*

Nor did Sherman originally even see the reason to specify how many members the chief executive should have.  Since the executive was “nothing more than an institution for carrying out the will of the Legislature,” the legislature should have the discretion to decide how many members there would be.  When James Wilson pointed out that all states had a single executive, Sherman agreed that a single executive was, after all, the proper choice, but that, just as every state had an executive council, and the national executive should have a council as well.  He favored a three-year term for the executive, with indefinite re-eligibility and giving the legislature authority to remove the executive at will.  He strongly opposed an executive for “good behavior,” saying that being reeligible was the best guaranty of the executive’s good behavior.  Significantly, almost everyone else at the Convention believed that if the executive were to be elected by the legislature, then he should be ineligible to a second term to ensure his independence from the legislature.  Although Sherman gave as his reason for making the President reeligible that we should not get rid of the best man for the job.  It seems likely that Sherman wanted to make the President reeligible in order to destroy his independence from the legislature.  He also opposed or at least a absolute veto.  “No one man could be found so far above all the rest in wisdom.”  He also opposed involving judges in the veto and opposed requiring the President to sign “every order, resolution or vote” except for votes to spend money.  He definitely preferred a two-third vote to a three-quarters to override a veto:

[T]he States would not like to see so small a minority and the President, prevailing over the general voice.  In making laws regard should be had to the sense of the people, who are to be bound by them, and it was  more probable that a single man should mistake or betray this sense then the Legislature. 

Sherman also wanted the legislature, not the executive to appoint judges, feared allowing the President to appoint military officers lest he use them to create a military dictatorship, and favored requiring the consent of the Senate for the President to issue pardons, as well as having the legislature instead of the executive appoint the treasurer.

            Unlike Gerry, however, Sherman did not support all old democratic principles.  He saw no need to increase the size of the House, preferring 50 to 65 members.  He also saw no need to prohibit the Senate from originating money bills, saying that the Senate was not a House of Lords, and that the Connecticut Senate to originate money bills without harm.  He saw no need for a bill of rights, regarding the state bills of rights as sufficient, no need to guaranty freedom of the press, since the power of Congress did not reach the press, and no need to forbid religious tests for office holding. 

            Sherman had mixed opinions on new democracy.  As we have seen, he opposed popular election of the House, Senate, or President.  He also opposed making currently naturalized foreigners eligible to federal offices, saying that it was the states, not the federal government, that had offered them citizenship.  On the other hand, he held a new democratic opinion toward the western states.  To the suggestion that the western states should not be represented on the same scale as the Atlantic states, Sherman said that the number of people was the proper basis for representation, and that if representation was to be by wealth, it would be measured by population.  Sherman favored treating the western states as equals at least in part because he believed they would never have more population than the Atlantic states or, if they did, it was too far in the future to consider.  But he also said that they were preparing a Constitution for posterity, who were as likely to live in the west as the old states and should therefore not be discriminated against.  Originally, Sherman opposed requiring Congress to make periodic reapportionments to match population shifts, but after listening to the arguments of the Virginians, he agreed that specific rules needed to be laid down.  This was a statesmanlike position for a New Englander to take, considering that they expected their region to be the loser from it.

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*This was very much a minority view.  The general view followed Montesquieu, that separation of powers was essential for liberty, and that combining executive and legislative powers was tyranny.

Old Democracy: The Baffling Elbridge Gerry

The strongest supporter of old democracy at the Constitutional Convention, and the strongest opponent of new democracy was Elbridge Gerry.  This combination is baffling if one does not understand the distinction. To understand Gerry’s position, imagine yourself in a convention drawing up a new constitution for a state or, better yet, an independent country.  Naturally you would arrive convinced of the need for universal suffrage, direct elections to major offices, representation by population and the other new democratic principles we consider essential to liberty.  Imagine further that other delegates started proposing old democratic features in the constitution – very short terms, annual elections for at least the lower house of the legislature, numerous representation pushed as far as it could be born, and a weak executive bound by a council not of his own choosing.  You would consider such proposals folly.  Add to them (in independent country) a proposal to forego standing armies and be defended by a citizen’s militia with officer elected by the rank and file and you would probably consider it madness.  You might take a somewhat undemocratic tone in opposing these features.  If the other delegates agreed that these features were dangerous combined with new democratic features, but proposed that they could be more easily born if the constitution adopted property restrictions on the vote and office holding, had the executive and perhaps the upper house elected by the legislature, and had one house of the legislature apportioned by wealth instead of population, you would denounce the system as a plutocracy and intolerable threat to liberty.   Gerry might be considered the reverse of such viewpoint.

 Gerry arrived from Massachusetts, which had just experienced Shays’ rebellion, an uprising by farmers facing dispossession from debts and taxes.  The experience had clearly shaken Gerry’s confidence in the common people and democracy.  He explained his position clearly.

The evils we experience flow from the excess of democracy.  The people do not want virtue, but are the dupes of pretended patriots. In Masst it had been daily confirmed by experience that they are daily misled into the most baneful measures and opinions . . . He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levilling (sic.) spirit.  

Gerry’s statement that he was still a republican was no mere empty declaration, as it would turn out, but it was not immediately apparently.  He opposed popular election to the House of Representatives, wanting them to be nominated by the people with the final decision made by the state legislatures.  He also opposed the lifting of property restriction on the vote.  In England, he said, the people would lose their liberty from the smallness of their suffrage; in America the danger was from too broad a suffrage.  (Massachusetts required 60 pounds property to vote; the highest requirement in the country).  In the Massachusetts legislature, he said, “Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point agst men who are superior to such artifices.”    Likewise, he opposed popular election of the Senate, saying that among the people the landed interest (i.e., farmers) formed the majority and would oppress the commercial interest (merchants) unless election went through a “refining” process in the state legislatures.  And he feared having the Constitution ratified by conventions instead of legislatures, apparently regarding the process as too new democratic, saying that the people of Massachusetts had “the wildest ideas of government in the world” such abolishing the state senate and having a unicameral legislature.

 In all these opinions, he showed himself opposed to democracy, but specifically to new democracy.  When old democracy began to come under attack, he took quite a different tone.  When a three-year term was proposed for the House of Representatives, Gerry called for annual elections as the only defense against tyranny.  The people of New England, he said, would never give up annual elections, knowing that in England elections had been moved from every three years to every seven.  “He was as much agst a triennial House as agst a hereditary Executive.”  Gerry’s sudden switch from opposing popular elections to proclaiming himself the champion of the people is enough to give some people whiplash.  And, indeed, from then on Gerry begins sounding more and more like a democrat, but specifically like an old democrat.

 He continued to oppose new democratic positions.  He regarded popular election of the President as “the worst mode,” saying that popularly elected governors who did their duty, like Governor Bowdoin of Massachusetts, who suppressed Shays’ Rebellion, would be turned out for it.  He favored excluding public debtors and pensioners from office, on the grounds that “[I]f property be one object of Government, provisions for securing it cannot be improper”and would exclude all immigrants from office.  He also opposed admitting the Western states on an equal basis, but favored guarantying a permanent majority to the original 13 states or the Western states would oppress commerce.  On the subject of property representation, he had mixed opinions, at one point opposing property representation because it would include slaves, another time saying that both population and wealth should be included in representation.

On the whole, however, once Gerry called for annual elections, his overall tone was as an old democrat championing and showing confidence in the common people.  He opposed a long term for the Senate, saying that no more than one person in a thousand would tolerate any approach to monarchy.  (Presumably he did not include himself as the one in a thousand).  He even said that, although the majority will violate justice when it is in their interest, he did not think there was any such temptation here, and that he believed there was a sufficient sense of justice and virtue.  A far cry from his earlier statement that the people were “daily led into the most baleful measures”!  He also favored enlarging the House of Representatives because the people are “accustomed to & fond of a numerous representation, and will consider their rights better secured by it.” This was an opinion he shared, saying that liberty was not as safe in the hands of eight to a hundred men taken from the whole continent as in the hands of two or three hundred from a single state.  He also opposed allowing the Senate to originate money bills because the House was more immediately the representatives of the people and the people should control the purse strings.  He also had an old democrat’s distrust of standing armies, which he considered dangerous in times of peace (as well as thinking the people were jealous on the subject) and called for a ceiling to the size of army that the United States could keep up in time of peace, personally favoring two or three thousand troops, although he would keep an open mind on the number.  At a bare minimum, he wanted to restrict all military appropriations to one year, instead of the two years the Constitution ultimately allowed.   Gerry was also one of the few members of the Convention to favor a bill of rights.  He began by calling for a prohibition on bills of attainder (bills finding a person guilty of a crime without a trial) and ex post facto laws (laws punishing acts before the law was passed), saying that Congress was dangerous because of its few members.  He also proposed a bill of rights, a guarantee of freedom of the press and especially a guarantee of trial by jury in civil cases (it was already guarantied in all criminal cases). 

The one regard in which Gerry was not a complete old democrat was his eagerness to keep the executive independent of the legislature.  He opposed election of the executive by the legislature (or by the people), favoring election by the state executives.  If the legislature did choose the executive, Gerry would guarantee his independence by giving him a single, very long term of ten, fifteen or even twenty years.  He also favored a single, instead of triple executive, saying that a three-man panel would be like “a general with three heads.”    

            On the other hand, he generally wanted to limit executive power.  The President should be impeachable.  “[T]he maxim should never be adopted here that the chief magistrate could do no wrong.”  He also seconded a motion making “maladministration” as well as bribery or treason grounds for impeachment.  He agreed to an executive veto, but believed that its purpose was for the executive to protect his office, not to allow him to veto bad laws in general. He opposed including judges in the veto for fear it would make the veto too strong and preferred to allow 2/3 of the legislature, rather than ¾ to overrule the veto.  He also favored having the Senate, rather than the executive, appoint judges and was shocked at a proposal to allow the President to declare war alone.   And he favored making legislators ineligible to executive office to prevent executive influence over the legislature by patronage.  Indeed, the prospect horrified him and inspired him to say, “If men will not serve in the Legislature without the prospect of such offices, our situation is deplorable indeed.  If our best Citizens are actuated by such mercenary views, we had better chuse (sic.) a single despot at once.”  At this point, he even said that whatever evils existed in our current government were the fault of those in office, not the people.  Gerry apparently had more confidence in the people than his original remarks seemed to indicate.

 As the Convention abandoned one old democratic principle after another, Gerry became more and more alarmed by it.  At one point, he denounced the Senate as “as compleat (sic.) aristocracy as ever was framed.”  The aristocratic feature of the Senate was not that it was elected by state legislatures instead of the people directly which, as we have seen, Gerry favored.  No one at the time was likely to be alarmed by that feature; after all, the Continental Congress were also elected by state legislatures.  The traits of the Senate that Gerry objected to were the ways in which it differed from the Continental  Congress.  The Senate served six years and the Continental Congress served one; the Senate could not be recalled and the Continental Congress could; each state could have only two Senators while states could have up to seven representatives in the old Congress; and in the old Continental Congress major issues required the concurrence of nine states, while in the Senate a quorum was fourteen, so a mere eight* members could prevail.  “Is it to be presumed that the people will ever agree to such a system?”  Presumably Gerry is saluting the people’s wisdom here.  He also warned, “The People  who have been so lately in arms agst G.B. for their liberties, will not easily give them up.”  

            Gerry ultimately refused to sign the Constitution, citing as his reasons:

            (1)        The duration and reeligibility of the Senate;

            (2)        The power of the House to conceal their journals;

            (3)        The power of Congress over their places of election;

            (4)        The unlimited power of Congress over their pay;

            (5)        Insufficient representation for Massachusetts;

            (6)        Slave representation;

            (7)        Under the power over commerce, monopolies could be established;

            (8)        The Vice President as president of the Senate, which he considered to violate the separation of powers.

But these were minor objections; his biggest objections were Congress’s authority to make all laws “necessary and proper,” its authority to raise money and armies without limit, and to provide for civil trials without juries.  These are all old democratic objections.  Gerry sounded even more democratic when he publicly told the Massachusetts legislature of his reasons for refusing to sign; he gave as his reasons inadequate provision for representation of the people (presumably meaning too few representatives), no security for the right of election (presumably referring to Congress’ authority to regulate its own elections), some powers of the Legislature are ambiguous and some dangerous, too much power to the executive, oppressiveness of the judicial system (perhaps the absence of a guaranty of a jury trial in civil cases?), treaties that can be made by two-thirds of a quorum of the Senate, and the absence of a bill of rights.

            Yet there was also a strong tone of distrust in the people remaining.  His constant invocation of popular opinion may not just have been saluting the people’s wisdom, but also fearing their displeasure.  He warned that in Massachusetts there were two parties, on devoted to democracy “the worst of all political evils” and one in the opposite extreme and feared that controversy over the Constitution could lead to civil war.

            Gerry is a puzzling figure today if one assumes the delegates were debating merely the degree and not the definition of democracy.  His tone of concern for the people’s liberty seems totally at odds with his fear of popular elections.  But if one keeps in mind the distinction between old and new democracy, Gerry makes perfect sense.  It was because Gerry was so staunch an old democrat that he felt threatened by any increase in new democracy.  Or, perhaps more accurately, because Gerry considered old democratic institutions necessary to preserve liberty, yet had been frightened by Shays’ Rebellion and convinced that democracy could be taken too far, that he constantly tried to limit it by resisting new democracy. 

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*Since there were originally 13 states, the total Senate membership would have been 26.  A quorum for doing business was declared to be a majority, which for a 26-member body would be 14.  A majority of the quorum was eight (8), so in theory, a mere eight Senators could pass binding legislation.

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.

Mixed Government: Alexander Hamilton

Of all the advocates of mixed government, Alexander Hamilton presented the most systematic program.  As we have seen, Hamilton presented a systematic program for extreme centralization.  That same proposal was also a system of true mixed government on as near as possible to the British system.  As Hamilton knew very well, his views were extreme and likely to be rejected by the others.  “In his private opinion he had no scruple in declaring . . . that the British Gov’t was the best in the world: and he doubted very much whether any thing short of it would do in America.”  State senates, even the Maryland Senate that served for five years and was chosen by an electoral college instead of the people directly, were too weak to stand against the popular branches of the state legislatures.  He favored something more like the House of Lords. 

Having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barriers agst every pernicious innovation, whether attempted on the part of the Crown or of the Commons. 

Nor was he much impressed with state governors:

As to the Executive, it seemed to be admitted that no good one could be established on Republican principles.  Was not this giving up the merits of the question: for can there be a good Gov’t without a good Executive.*

What Hamilton proposed was as near an approximation of the British system of a King, Lords and Commons as could be done without hereditary offices.  The lower house would be elected by the people to three year terms, the upper house would be chosen by electors chosen by the people and serve for good behavior, and the chief executive would be chosen by electors and also serve for good behavior.  “Good behavior” meant for life, unless impeached; he would allow impeachment for misconduct.  The executive would have an absolute veto, absolute power of appointment of the heads of the departments of war, finance and foreign affairs, and the authority to pardon all crimes except treason.  The Senate would have to approve all other appointments and all pardons for treason and would have the authority to declare war and approve treaties. 

Furthermore, Hamilton not only favored an executive and Senate for life, just like in Great Britain, he also defended the British practice of executive influence in the legislature by offering offices to legislators, widely seen as a form of corruption.  He defended “influence,” defined as “a dispensation of those regular honors & emoluments, which produce an attachment to the Gov’t” as an alternative to government by force.  Likewise, he opposed making members of the national legislature ineligible to executive office, saying that influence by the crown through dispensation of offices was not corruption, but “an essential part of the weight which maintained the equilibrium of the Constitution.”  He thus went on record, not only as defending the British system of government, but what were widely seen as the worst corruptions and abuses in the system.

Yet there is another side of Hamilton’s vision of mixed government that needs to be pointed out.  Hamilton favored true mixed government.  This meant that although he wanted the President to be as near as possible to a monarch and the Senate to be as near as possible to House of Lords, he also believed that the lower house should be genuinely democratic.  As he put it, “Give all power to the many, they will oppress the few.  Give all power to the few, they will oppress the many.  Both therefore ought to have power, that each may defend itself agst the other.”  Interestingly, his conceptions of democracy were almost entirely new democratic. 

Hamilton was a firm supporter of direct popular election of the House; when General Pinckney proposed allowing each state to choose how to elect its own Representatives as an attempt to transfer the election from the people to the state legislature.  (Admittedly, this was probably more an expression of nationalism that democracy; Hamilton wanted to limit the power of states).  He was also a strong advocate of representation by population in both houses.  He moved for representation by free population rather than quotas a contribution and favored representation on the same principle in the Senate.  It was in opposition to giving each state equal representation in the Senate that Hamilton made his democratic pronouncement, “[A]s states or a collection of individual me which ought we to respect most, the rights of the people composing them, or the artificial beings resulting from the composition” and argued that it was no loss of liberty for each citizen of Delaware to have an equal vote to a citizen of Pennsylvania.  Giving equal representation to states of unequal population “shocks too much the ideas of Justice, and every human feeling.”  Hamilton was absent when the delegates debated who should be allowed to vote.  He did make a short speech on suffrage, saying that different states had different standards, some states allowing it where others did not, some having different qualifications to vote for different branches of the legislature and all disqualifying some people altogether because they lacked sufficient property.  Hamilton’s point is not altogether clear, but he appears to have been accepting each state’s right to set its own voting qualification.  As we have seen, this was the new democratic position at the Convention; the undemocratic position being to set federal restrictions on the vote.  Hamilton was also absent during debates on property qualifications for office, but he took the “liberal” position on immigrants.  Himself an immigrant from the Caribbean, he opposed requiring any number of years’ citizenship to hold office; citizenship should be sufficient since Congress could set any number of years’ residence to qualify for citizenship. 

Hamilton took a decidedly un-old democratic position on the term of the House; he favored three years, saying that “there ought to be neither too much nor too little dependence, on the popular spirit,” and that if elections were too frequent people lost interest in them.  On the other hand, he supported at least one old democratic principle; he favored enlarging the House from 65 members “with great earnestness and anxiety” or the popular branch of the government would be on so narrow a scale as to be dangerous to liberty.  He also appeared to believe that enlarging the House would prevent improper combinations between the President and Senate.

Hamilton was absent from the Convention between June 29 and August 13.  During that time, he developed his plan in greater detail, which, although he did not discuss in the Convention, he did privately show to Madison.  His more detailed version of the plan added a number of democratic features, old and new.  Realizing that his proposal to give the national legislature authority to pass “all laws whatsoever,” he included at least a partial bill of rights in his plan.  Since his Senate would serve for life and be almost a House of Lords, he gave the lower house sole authority to initiate money bills.  He would assign 100 members to the House and 40 to the Senate (both of which would reassure people who feared too small a legislature) and have both apportioned by population.  No property qualifications to office were specified.  Most significantly, however, were the qualifications he proposed for voting.  He would allow all free males over 21 to vote for the House, with no requirements for race, property or even taxpaying, a broader suffrage than even Pennsylvania.  He would require land ownership to vote for Senatorial electors and fairly stiff property requirements to vote for Presidential electors.**  His lower house, in other words, is elected by universal manhood suffrage, proportional to population, large enough to be on a broad base, and with sole authority to originate money bills.  Yet it might not seem as democratic to his contemporaries as it does to us because of that old bugaboo, three-year terms.

Hamilton is generally considered an opponent of democracy and, as we have seen, this reputation is largely accurate.  But this reputation is, perhaps, exaggerated by his opponents who opposed not only his aristocratic outlook, but also his nationalism, and assumed that every increase in centralization could only mean oppression.  Hamilton, on the other hand, recognized the creative and, yes, democratic possibilities of an increase in centralization.

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*Compare this with Hamilton’s comment for public consumption in Federalist Paper No. 70.. “There is an idea which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since the can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading character in the definition of good government.” Compare also to John Lansing's quote from his own notes, "It is admitted that you cannot have a good executive upon a democratic plan."

**Hamilton: Writing, Copyright 1993 by Literary Classics of the United States, Inc., New York, New York, pp. 1062-1063.

Guess Who Favored a Federal Expansion in Suffrage (Hint: This is a Trick Question)

Here I must acknowledge a debt to Alexander Keyssar's The Right to Vote, a history the right to vote and its restrictions throughout our country's history.  On page 23 he discusses the right to vote as it came up during the Constitutional Convention.  Gouverneur Morris proposed to limit the vote to freeholders.  In this he met strong opposition from many delegates who said that non-freeholders were allowed to vote in many state elections and would be angered at being denied a vote in federal elections.  The proposal was defeated and instead the rule was set that whoever could vote in the least restrictive elections in a state could also vote for the House of Representatives.  In other words, the federal government would restrict the vote no further than the states.  At the same time, Keyssar points out, no one proposed a suffrage broader than the states.

Keyssar attributes this outcome to the absence of some of the revolution's most democratic leaders such as Thomas Jefferson, Samuel Adams, Patrick Henry, and Thomas Paine.  We can make short work of Jefferson and Henry.  Both men were southern slave holders.  They feared federal power in general, and a federal expansion of the vote in particular lest it give greater power to black people (slave or free).  So much for the Virginians.  Samuel Adams would have had no such fear, but he shared the basic Anti-Federalist viewpoint that all expansion of federal power was inherently oppressive.  He thus seems like an unlikely candidate to press for a federal broadening of the suffrage.  That leaves Thomas Paine as one of those rare leaders of the day who was both a nationalist and a democrat, favoring both a stronger and a more democratic federal government.  He also came out against the Constitution.  (Cannot find link, alas!)  However, his main objections were to a single executive and a six-year Senate.  If he had any objections to the Constitution leaving in place existing restrictions on the vote, he did not say so.

The only other real democratic nationalist of the day was present at the Convention.  I refer, of course, to Benjamin Franklin.  Franklin opposed the restriction of the vote to freeholders and appears to have been the only one at the Convention to recognize that non-property holders nonetheless had legitimate interests and needed the means to protect them.  But not even Franklin who, in addition to being a democratic nationalist, showed a utopian tendency lacking in any other delegate, never proposed a federally-mandated expansion in suffrage.

Reading over Bernard Bailyn's collection of some 2000 pages of debate on ratification,* not once does anyone propose anything so radical as a federal expansion in the right to vote, although the issue was a hotly contested one at the state level.  Yet, although I have not seen any evidence that anyone proposed anything so radical in public debate, at least one person appears to have privately favored such a thing -- ALEXANDER HAMILTON!

The next post will explore how so odd a result could have come about.

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*The largest compilation of debate on the Constitution runs to some 50,000 pages, making Bailyn's collection a mere 4% of what is extant.  However, the same talking points get repeated often enough to give the impression that it accurately shows the mainstream views at the time, and a few oddball ones as well.