The Purpose and Powers of the Senate, Part X: Principled Complication or Unnecessary Creation, contd.

    The extent to which the attendees to the Philadelphia Convention seemed to have solidified around a fairly durable consensus by September 7^th was shown to be the case for a second time during that day’s discussion when George Mason yet again attempted to sell his colleagues on the wisdom of establishing a federal privy council. The assembled delegates, at that point, had moved on to other subjects, but Mason was so adamant as to request a momentary digression. “In rejecting a Council to the President [,]” he insisted, the United States was,

About to try an experiment on which the most despotic Governments had never ventured. The Grand Signor himself has his Divan. He [thus] moved to postpone the consideration of the clause [at hand] in order to take up the following [:] “That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State, for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate.”

The reference to the “Grand Signor” and his “Divan” were new, in fairness, though far from unexpected. Such invocations of the Ottoman Sultan and his supposedly barbaric government were exceptionally common in the political discourse of the 18^th century Anglosphere, being a reflection of both contemporary Christian attitudes towards Muslims and the Orientalist characterization of all things “Eastern” as brutal and uncivilized. The substance of the proposal itself, however, was almost completely unchanged from that which Mason had previously introduced. Granted, he was now evidently amenable to allowing either the Senate or the House to appoint the relevant councilors rather than just the former and was also willing to tolerate a rotation of every three years in office rather than every two. But these were minor changes, in fact, and did nothing to alter the core concept that Mason was offering.

    This may not have amounted to much of a disadvantage, however. As was the case in the last instance, the concept of a federal privy council received its share of individual support even this second time around. James Wilson, for example, once again made it clear to all and sundry that he, “Approved of a Council in preference to making the Senate a party to appointmts.” He was joined in this by Delaware’s John Dickinson – principal author, it bears noting, of the Articles of Confederation – who argued that, “It wd. be a singular thing if the measures of the Executive were not to undergo some previous discussion before the President [,]” by the aforementioned James Madison, who was simply noted as being, “In favor of the instruction to the Committee proposed by Col. Mason [,]” and by no less august a personage than one Benjamin Franklin. Having but recently returned from the last of his lengthy sojourns in Europe spent in the service of his country, Franklin was a figure of particular respect and admiration among the majority of his fellow Americans, though the comments which he offered over the length of the Philadelphia Convention were both few and often oblique. In this case, however, he made himself substantially clear when he avowed that his fellow delegates appeared,

Too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience shewed that caprice, the intrigues of favorites & mistresses, &c were nevertheless the means most prevalent in monarchies. Among instanced of abuse in such modes of appointment, he mentioned the many bad Governors appointed in G.B. for the Colonies. He thought a Council would not only be a check on a bad President but be a relief to a good one.

    With all due respect to Franklin, this did not represent the most incisive of observations. His attempt to draw attention to the bare essentials of the debate at hand – i.e. whether a group of people were more or less trustworthy than a single person – was a worthy one, certainly, and his observation that successive British executives had chosen otherwise unqualified individuals to govern the various Thirteen Colonies was also substantially borne out by the facts. But his comparison, by way of support for a privy council, of the colonial governors appointed by the British Crown and the various judges, ambassadors, and ministers to be appointed by a theoretical American executive was more than slightly strained. At no point – as far as the assembled delegates were concerned – would the President of the United States be expected to personally appoint the administrators of restive colonial possessions located a great distance from the seat of federal authority. On the contrary, all that it would fall into their power to do – accordingly to the then-current draft of the proposed constitution – was nominate ministers, ambassadors, and judges and then deliver their commissions upon confirmation by the Senate. Not only would this place the President of the United States under a far greater degree of oversight than the contemporary British monarch, but the relevant offices to be filled were of a different character altogether.

    It was troubling, to be sure, that the Crown then held the unchallenged right to appoint whomever it wished to positions of unparalleled civil and military authority in Britain’s various overseas possessions. But what was a federal judge, an executive minister, or an ambassador compared to the governor of a colony? How much harm could any of these officers do compared to a colonial executive? Add to this equation the fact that all executive nominations under the proposed constitution were to be subject to Senate confirmation and the example of the British Crown’s various colonial administrators would seem to become less and less relevant. Was Franklin wrong when he sought to assert that “A Council would not only be a check on a bad President but be a relief to a good one [?]” Absolutely not. In practice, in fact, he might have been shown to be quite correct. But it would nonetheless have been straining credulity to imagine that failing to append such a body to the office of President would have resulted in executive appointments of the same quality and character as those previously made in America on the authority of the British Crown. The two situations were simply too different to warrant a particularly useful comparison.

    Interestingly, given his involvement in previous conversations on exactly this subject, Gouverneur Morris chose this particular moment to bring to light something which, in spite of its relevance to the subject at hand, he for some reason previously opted to withhold. The gentleman from New York, recall, had been a member of the Committee of Twelve whose efforts in early July had led to the eventual acceptance of both the Connecticut Compromise and the Three-Fifths Compromise. And as Mason had just suggested that this same committee should take up the proposition of creating a “Council of State” for the purpose of assisting the President in making appointments, Morris took the opportunity to explain to his colleague from Virginia that what he was asking for had in fact already occurred. “The question of a Council [,]” he thus affirmed, “Was considered in the Committee, where it was judged that the Presidt. by persuading his Council, to concur in his wrong measures, would acquire their protection for them.” Once again, it seems strange that Morris waited to deliver this particular piece of information until the second time that Mason attempted to promote the idea of a federal privy council. Presumably it would have served his argument against the notion just as well had he brought it up sooner. Perhaps, the meetings of the Committee having taken place some two months prior, he had forgotten the relevant details in the intervening weeks and was only spurred to remember by Mason’s reference to that selfsame body. The “why,” of course, would seem to matter very little. Of greater importance, under the circumstances, was the “what” of Morris’s assertion. He claimed, based on the Committee’s deliberations, that a Council of State was bound to be too vulnerable to corruption. And, upon consideration, there would seem to be something to this argument. 

    Reflect, for a moment, upon certain specifics of Mason’s proposal. What he was endeavoring to promote was the creation of a privy council comprised of six members, with two each coming from one of the three regions of the country. The appointment of these councilors, it was true, would be the responsibility either of the Senate or the House, thus arguably placing them outside the direct influence of the President. But there being only six of them, compared to at least double that number in the Senate, would nevertheless seem to leave said council in a rather vulnerable position. Granting that a particularly resourceful President might conceivably find a way to gain the cooperation of the seven or eight Senators he would need in order to see his every nomination summarily approved, obtaining the same degree of collaboration from only four of six councilors would seem a far more likely occurrence. Possessed of the power to nominate ambassadors, executive ministers, and federal judges, the ability of the President to supply the rewards and inducements necessary to secure the connivance of such a small number of people would indeed appear to be rather a given. Family members might be elevated to positions of high authority, or federal judgeships accompanied by lifetime tenures might be promised upon retirement to those who agree to supply their vote when called upon. A new councilor, recently appointed by Congress, might object to these practices upon first being made aware of them, but how long might their shock and outrage actually last? Faced with the prizes that they might win by their cooperation, how steadfast could anyone in such a situation realistically be? And while it was true that such behavior might conceivably arouse suspicion, his council, as Morris said, would serve to provide the President sufficient cover by their collaboration that his various nominations could quite feasibly go unquestioned.

    In the end, unlike in the first instance, Mason’s second attempt to propose the creation of a privy council did result in a vote. But the final tally hardly represented some kind of triumphant, unexpected upset. Of the eleven delegations that voted – one from each of the thirteen states minus Rhode Island and New York – only three voted in favor. And was Pennsylvania among them, home of James Wilson and Benjamin Franklin? And Mason’s Virginia? And Dickinson’s Delaware? On all counts, no. Maryland voted in favor, and South Carolina, and Georgia. The concept of a federal privy council, as discussed at some length previously, did absolutely enjoy its share of support among the Convention attendees. The endorsements of Franklin and Wilson alone – among the most popular, respected, and well-read individuals there present – was arguably no small measure of the strength of the idea itself. But the vehement conviction of a few prominent individuals was evidently not enough to shift the assembled delegates from the path upon which they had gradually set themselves. Few of them, it was true, seemed to think that the notion of a privy council was a bad one out of hand. What they were convinced of, however, was that allowing the Senate to approve of appointments would serve the same purpose just as well. And since the latter option would not require the creation of an entirely new organ of government, it accordingly seemed to win out as the more practical of the two outcomes.

    That such a conversation occurred, and that it resolved itself as it did, would in some ways seem to epitomize the essential character of the Philadelphia Convention. There were, of course, many different currents at play over the course of the event in question, with the delegates sorting themselves into different camps depending on the nature of the discussion at hand. But one of the principal dynamics which seemed to cut across divisions between small states and large states, supporters of centralization and decentralization, was that between principle and pragmatism. So many conversations, that is to say, seemed to boil down to a discussion of what seemed rational on the one hand and what made empirical sense on the other. George Mason, recall, prefaced his attempt to reintroduce the concept of a federal privy council by claiming that even, “The most despotic Governments had never ventured” to exist without some kind of advisory body appended to the office of the executive. “The Grand Signor himself had his Divan,” he accordingly emphasized. And when Benjamin Franklin sought to endorse the resulting proposal, he did so in part by attempting to remind his fellow delegates that an executive with the power to make appointments on their own authority – in the person of successive British monarchs – had been responsible for the elevation of some of the worst executive magistrates that the American colonists had ever suffered. What these men where saying, more than that they were particularly certain that allowing an American executive to operate without a privy council would result in despotism and tyranny, is that they didn’t like how the notion made them feel.

    Mason, by his own admission, was disturbed by the idea that the United States of America might become possessed of government with less apparent regard for the abuse of executive power than that of the Ottoman Empire. And Franklin, taking his own observations as evidence, was concerned that an otherwise unfettered executive might end up making the same kind of self-serving appointments which the British Crown had so famously done during the period of its authority over the former Thirteen Colonies. It wasn’t that they were in possession of any proof that the absence of a federal privy council would result in despotism, tyranny, or corruption, per se. Rather, it seemed to be through a process of logical inference by which they came to conclude that governments which lacked such institutional checks on executive authority were inherently prone to become overwhelmed by the same. If the United States placed even less stock in the notion of restraining executive authority than the Ottomans, Mason appeared to conclude, then it was inevitable that the American republic should be doomed to an even more catastrophic state of tyranny. And if the American executive was allowed to make appointments with no more oversight than the British monarch, Franklin likewise seemed to infer, then what might possibly stop the former from making appointments according to the same self-serving instincts as the latter? In terms of hard evidence, there wasn’t much to say for these conclusions. But in regard to certain basic philosophical and moral principles, they were entirely consistent with the aims of the American revolutionary project. The last thing that the Framers had set out to do, after all, was create a government less secure from abuse than that of the “barbaric” and tyrannical Turk, or which in any way resembled that of their former British colonial overlords.

    On the other side of the conversation, of course, was the case for empiricism and pragmatism. Gouverneur Morris, when he decided to give voice to his objections to Mason’s cited privy council proposal, did so mainly by way of reference to certain practical considerations rather than questions of principle or philosophy. Responding to James Wilson’s aforementioned assertion that, “There can be no good Executive without a responsible appointment of officers to execute” and that, “Responsibility is in a manner destroyed by such an agency of the Senate [,]” Morris very simply observed that, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” What Wilson was arguing in favor of was change for the sake of principle. The idea that the President should bear anything less than total responsibility for federal appointments did not align with his conception of how government ought to function in relation to the governed, to the extent that he advocated for the creation of a federal council of state. And what Morris was arguing for was the preservation of a very tolerable status quo. The assembled delegates had thus far already agreed to both the creation of a Senate in which every state was represented equally and to granting that selfsame body the right to advise and consent to executive appointments. As this arrangement appeared likely to both meet the requirements which certain delegates had spelled out – namely, for some combination of “responsibility” and “security” – and keep the expanded federal government relatively compact, Morris believed it to be the best possible solution.

    Wilson’s argument against granting the Senate a role in the process of appointments, while not wholly invalid, was based mainly on certain pre-established principles. He believed, speaking philosophically, that it was essential for a government possessed of the trust of those it governed to locate the power of appointing its officers in the hands of as few people as possible. Multiply the number of individuals capable of contributing to the relevant decisions, he asserted, and one was likewise bound to both multiply opportunities for corruption and make it harder for the people at large to seek amends for potential abuses. This was not an argument based in fact, of course, for the government in question – nor any like it – had yet to be established. The essence of Morris’s argument, on the other hand, was principally an empirical one. He believed, regardless of how it might have flown in the face of the applicable political theory, that the Senate could conceivably provide its advice and consent to executive appointments without giving rise to corruption and tyranny. Such an arrangement had never been tried before, to be sure, and granting the same power to a privy council appended to the executive branch might have resulted in the same outcome. But Morris did not think these were reasons enough to justify the creation of yet another organ of federal power. Since there was no evidence on hand to suggest categorically that the Senate could not be trusted to take part in the process of appointments, and since granting said responsibility to the Senate would be by far the simplest and most practical measure which the assembled delegates could adopt, it followed accordingly – to Morris, at least, and to those who agreed with him – that this is what ought to be done.

    This same dynamic can be seen in the juxtaposition of Mason’s core proposal for a federal privy council and the objection to the same which was offered by the Massachusetts delegate Rufus King. Among the reasons which Mason offered as to why he felt some kind of executive council was necessary were assertions that allowing the Senate to sit indefinitely would be dangerous, that it would be unwise to blend together the legislative and executive branches, and that the Senate was too large and unwieldy to be granted the responsibility of investigating the character of executive nominees. And as was the case with Wilson’s observations on the very same subject, these arguments were not really based in observable fact. No one could say for certain whether allowing the Senate to sit indefinitely really would present a danger to the integrity of the American republic, nor that allowing the Senate to advise and consent to appointments would lead to it sitting indefinitely to begin with. What Mason was doing, of course, was speaking from principle. Allowing the Senate to have a voice in the federal appointment process did not square with his established convictions and he spoke out against the notion accordingly.

    Angus King, on the other hand, seemed to be arguing from a place of pragmatism. It wasn’t that he thought a council of state a wholly inadmissible method of securing federal appointments. Rather, it was that he believed that Mason’s objections to the allowing the Senate to take on the role to be substantially overstated. He observed, for instance, that the a federal privy council was likely to suffer from the same inconveniences as might the Senate if placed in the same position, that it was conceivable to prevent the Senate from sitting indefinitely by only referring certain key appointments to its advice and consent, and that the creation of, “A new Corps which must increase the expence as well as the influence of the Government” was in any case unwise unless absolutely necessary. He was in possession of no more evidence to back up his claims than Mason was, of course, but then what he was suggesting was considerably less drastic. Rather than attempt to anticipate a problem based on the application of certain fundamental principles and then propose the creation of yet another federal institution as a necessary counterweight, all that King – or Morris, for that matter – was suggesting was that the assembled delegates simply proceed with the frame of government they had so far worked out and wait to see if further changes became necessary once its various mechanisms had been put to the test. Mason, at long last, might have been proven right, in the event that the Senate’s power over appointments became a source of friction and discontent. But as there was no way of knowing whether this would prove to be the case or not, it seemed to delegates like King and Morris wisest to keep things as uncomplicated and streamlined as possible rather than try to design solutions for problems that might not ever actually crop up.

    None of this, to be clear, is to say that one method of argument was necessarily superior to the other. There were times, over the course of the Philadelphia Convention, when arguments in favor of principle unequivocally won the day. And there were other times, just as definitively, that the forces of pragmatism accumulated the greatest share of support. The final result often depended on context, or experience, or simply the charisma of the speaker, but in hardly any instance was the argument inherently weighted to one side or the other. And the result, in large part, speaks to this back and forth. The Constitution, in its various aspects, is both a principled and a practical document. Sometimes its authors were adamantly in agreement that the simplest way forward would stray too far from their fundamental convictions. And sometimes they were willing to comprise certain basic belief with the intention of creating a government that was as flexible and durable as it was likely to inspire public confidence. Neither one of these impulses could accordingly be said to characterize either the Philadelphia Convention as a whole or any given discussion which took place therein. Rather, it was the interplay which defined both the event itself and its final product; the back and forth, push and pull between what the assembled delegates believed to be right and what they suspected would ultimately serve their desired purposes.

The Purpose and Powers of the Senate, Part IX: Principled Complication or Unnecessary Creation

    By the time that the attendees of the Philadelphia Convention finally returned to a discussion of the specific powers of the upper house of Congress on September 7^th, 1787, two exceptionally important agreements had definitively been sealed. The aforementioned Connecticut Compromise, which had been submitted by the Committee of Twelve to the Committee of the Whole on July 5^th, had finally be ratified, thus cementing the allocation of Senate seats on an equal basis per state. And in the process, a second agreement – the so-called “Three-Fifths Compromise” – had also been settled, the effect of which was to count enslaved peoples at a ratio of three-fifths of one whole person for the purpose of allocating seats in the House of Representatives. Having thus effectively “closed the book” on the structure and composition of the newly enhanced and expanded Congress, the delegates were accordingly freer than they had been previously to delve into the exact details of certain responsibilities thereof. Specifically, now that it was clear what form the Senate was going to take, they returned their attention to discussing what purpose they felt said body ought to serve. First on the docket, unsurprisingly, was the topic of appointments.

    The first comment offered upon this particular subject since the previous discussion had come to a close on July 21^st actually arose in the midst of an exchange concerning the nature and powers of the office of Vice President. While endeavoring to explain to his colleagues why allowing the heir apparent of the President to preside over the Senate as that body’s chief officer was fundamentally unacceptable, Virginia’s George Mason evidently could not stop himself from additionally expressing, “His dislike of any reference whatever of the power to make appointments to either branch of the Legislature.” This was not to say that, like certain of his colleagues, he preferred to vest such a power in the hands of the proposed chief executive, however. On the contrary, “He was averse to vest so dangerous a power in the President alone.” Rather, he envisioned the appointing authority sitting more or less between the two. “A privy Council of six members to the president should be established [,]” he thus explained,

To be chosen for six years by the Senate, two out of the Eastern two out of the middle, and two out of the Southern quarters of the Union, & to go out in rotation two every second year; the concurrence of the Senate to be required only in the appointment of Ambassadors, and in making treaties, which are more of a legislative nature.

It was rather a complex arrangement compared to simply granting the relevant power to the Senate, particularly as in involved creating an entirely new organ of government whose composition would in turn depend on determining precisely which states fell under the categories of “eastern,” “middle,” and “southern.” That being said, it was one which Mason believed would serve to alleviate several potential problems at once. For one thing, he asserted, the existence of such a council, “Would prevent the constant sitting of the Senate which he thought dangerous, as well as keep the departments separate & distinct. It would also [,]” in Mason’s opinion, “Save the expence of constant sessions of the Senate” and entirely avoid saddling such an unwieldly body with such a subtle responsibility as investigating the character of certain specific individuals.

    Part of what makes this proposal of Mason’s so intriguing in retrospect is how late in the life of the Philadelphia Convention he sought to introduce it. Granting that it had taken until early September for the assembled delegates to finally agree on the basic composition of the Senate, the whole affair would end up being concluded in slightly more than a week from that moment. The delegates had called their first meeting to order in the middle of May and had been discussing the nature and powers of the Senate since at least the end of June. After all that time, having seen a consensus slowly and painfully form around the general framework of government with which posterity has since become familiar, the fact that Mason still thought it possible to propose the addition of a wholly new institution which would effectively straddle the legislative and executive branches would seem tantamount to inexplicable. Why should he have thought it possible, given how much time his colleagues had spent either proposing grants of power to the Senate or the Executive or else picking apart the proposals put forward by others, that after finally coming to something approaching a consensus on the matter, they should have been inclined to upend the whole lot and instead throw they weight being this privy council idea? As the relevant discussions had made clear, bestowing any kind of responsibility upon an organ of government, however well-intentioned, was bound to have consequences in other quarters that needed to be carefully considered. Why, then, at the far end of all this considering, should the assembled delegates have gone along with Mason in slotting in yet another organ of government into what was otherwise a painstakingly balanced administrative framework?

    In fairness to Mason, his proposal was not wholly without precedent. A number of states had granted appointment powers at the executive level to some manner of council or committee. Maryland was one, with appointment power vested in a council elected by a joint ballot of the legislature and responsible for approving the executive nomination of, “The Chancellor, and all Judges and Justices, the Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government [.]” New York was another, with a specific Council of Appointment – being comprised of the Governor and one senator from each of the state’s four districts – holding the power to fill executive offices, judicial offices, mayorships, clerkships, and military commissions. And Massachusetts was yet a third, with a Governor’s Council appointed by a joint ballot of the legislature and responsible, along with the Governor, for appointing, “All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, and registers of probate [.]” Nathanial Gorham, being a native of the Bay State, had even cited this latter example during the relevant discussions on July 18^th as a method which the national government might have done well to follow. In the moment, Mr. Mason had not offered much in the way of either agreement or dismissal, save to observe that there seemed to be, “Insuperable objections […] agst. referring the appointment to the Executive.” Evidently, the additional time had succeeded in bringing him around. 

    It remained to be seen, of course, just what the character of Mason’s “privy council” would turn out to be. Its composition would doubtless end up reflecting that of the Senate, creating a kind of thrice-divorced representation of the American people. The people would elect the state legislatures, the state legislatures would choose the Senators, and the Senators would appoint the councilors. How this would affect the nature and quality of the council’s final appointments, it would be difficult to say, though it would seem likely that those who found themselves tapped for council membership would be of a similar socio-economic class as their electors in the Senate. These men would then be likely in turn to make the same kinds of appointments as the Senate might do itself. But while this outcome would make it seem as though the creation of a privy council would accomplish very little, Mason made his rationale quite clear alongside his proposal. The primary benefits of his desired apparatus, he explained, were that it would “Prevent the constant sitting of the Senate […] keep the departments separate & distinct […] save the expence of constant sessions of the Senate [,]” and provide for a viable alternative to the “unwieldiness” of the same. To be sure, creating an entirely new organ of government whose existence was bound to have a significant effect on the operation of the proposed constitution just so that the Senate might be saved having to hold a few extra sessions every handful of years represented a rather drastic means of achieving these objectives. But it may have been that Mason was exceptionally fixated upon the Senate and the powers that it had so far been granted.

    By his own admission, Mr. Mason thought that allowing the Senate to sit constantly was “dangerous,” believed it important to keep the various branches of the proposed government separate, was keen to keep expenses down, and felt that the Senate was not well-suited to evaluate individual strengths and weaknesses. In turn, based on these statements, one may fairly conclude that Mason harbored a number of basic concerns as to the nature and operation of the proposed upper house of Congress. He felt the Senate powerful enough – perhaps too powerful – without allowing it to sit in perpetuity. He disliked the idea of the upper house gaining influence either over or within other branch branches of the national government. He was at least somewhat concerned about the financial well-being of the new administration. And he believed that the appointment process should be as efficient as possible, with minimal opportunity for drawn out discussions among potentially dozens of individuals whose professional objectives extended well beyond filling judgeships. The creation of a distinct and separate privy council could have addressed these concerns, novel though the idea may have been on its face. The only question was whether Mason was in time enough to convince his colleagues or if their opinions had more or less solidified around leaving appointments to the discretion of the Senate.

    In the immediate, at least, Mr. Mason appeared to be in luck. The aforementioned James Wilson gave voice to similar concerns, going so far as to explicitly endorse Mason’s stated proposal. The gentleman from Pennsylvania, it seemed, did not like the idea of, “Blending a branch of the Legislature with the Executive.” Likewise, he felt that, “Good laws are of no effect without a good Executive; and there can be no good executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate.” On the former charge, Wilson was very much in agreement with Mason; neither man seemed particularly amenable to the idea of granting the Senate any authority over or within the executive sphere. Evidently, they both valued a government in which the authority of each constituent branch was carefully balanced – thus preventing any one of them from accumulating too much power – to one which functioned as simply and efficiently as possible. And as to the latter charge, Wilson was chiefly repeating what had previously been argued by his friend and ally Madison. Namely, that “responsibility” was an essential component of any successful mechanism of appointments. Placing the Senate at the center of such a process, they felt, would have made it impossible for the American people to hold the national government to account in the event that certain political appointees proved to be inept, corrupt, or otherwise unsuitable.

    Granting that there might be a record of how each appointment vote was conducted in the journal of the Senate, this could hardly be said to represent much of a promise of accountability. Besides the fact that any Senator who had voted on the record to approve of a bad appointment could quite reasonably claim that they had simply taken the word of their trusted colleagues, there was also the distinct possibility that a Senator might lead the charge to secure a corrupt appointment before then retiring from public life to live off the spoils of their bargain. How were the American people supposed to punish someone who was no longer in office? For that matter, how were they supposed to prove that one Senator in particular was responsible for securing a bad appointment in exchange for personal favors? Being unable to answer these kinds of questions is surely what drove the like of Messrs. Wilson and Madison to argue vehemently against vesting appointments strictly in the hands of the Senate. An executive, to be sure, might also exchange patronage for personal favors, but at least if this patronage was principally theirs to dole out, the American people would be left with no cause to question whom among their public servants was guilty of abusing their trust. And as the nature of their accountability became known to successive executives, they might learn to make their appointments with greater care and consideration.

    But while these specific concerns did lead Mr. Wilson to explicitly endorse Mr. Mason’s aforementioned proposal, he did so with one rather significant caveat in mind. Wilson, it was recorded, “Would prefer the council proposed by Col. Mason,” to any possible alternative, but only, “Provided its advice should not be made mandatory on the President.” Without knowing precisely what it was the gentleman from Pennsylvania was intending, one’s natural impulse upon reading this would seem to be one of confusion. If, as Wilson would have it, the council’s advice was not, “Made mandatory on the President [,]” then what purpose was this body supposed to serve? As Mason had avowed before he laid out his plan originally, one of the reasons he preferred to establish a privy council was that, “He was averse to vest so dangerous a power [as making appointments] in the President alone.” Why, then, should Wilson have claimed to endorse Mason’s plan if he also felt that the President should have been able to ignore the council’s advice? If the President could ignore their council without any fear of punishment, why should any holder of that office ever deign to appoint anyone besides those of their own choosing? Mason’s stated intention was to split the difference between allowing the unwieldy Senate and the untrustworthy executive to each make appointments. Wilson’s stated caveat would have completely voided this objective. Granted, this was quite in keeping with Wilson’s comments of July 18^th – namely, that he would have preferred an appointment strictly by the executive and supported the creation of a privy council only if the former could not be obtained – but it nevertheless strikes one as exceptionally odd and contradictory for him to have endorsed Mr. Mason’s proposal and attempted to invalidate it in the same breath.

    As the conversation proceeded, various other delegates offered either their support or their disdain for Mason’s cited proposal. New York’s Gouverneur Morris, for one, sought to counter Wilson’s identification of the Senate with a lack of responsibility by closely echoing an assertion that had previously been made by the latter’s ally Madison during the discussions of the July 18^th. During that earlier conversation, the gentleman from Virginia had asserted that allowing federal judges to be appointed by the executive with the concurrence of the Senate, “Would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination [.]” Almost two months later, Morris made the same basic argument when he said – speaking to Mason’s aforementioned proposal – that, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” Plainly, his purpose was to indicate to both Wilson and Mason that the creation of a privy council with responsibility for appointments was quite simply unnecessary. Madison had already made the argument that the Senate and the Executive could safely handle the matter between them, and Morris saw no reason why this should have ceased to be the case in the interim.

    The next substantial comment was delivered by one Rufs King, a delegate from Massachusetts who had otherwise been silent on the topic of the Senate until this moment. His attitude, it seemed, was much like that of Morris’s, specifically in that he endeavored to throw water on Mason’s aforementioned plan. It was his opinion, he began accordingly,

That most of the inconveniences charged on the Senate are incident to a Council of Advice. He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong. [And he was also] of opinion that the people would be alarmed at an unnecessary creation of a new Corps which must increase the expence as well as influence of the Government.

King’s criticism, it seemed, were aimed mostly at Mr. Mason, endeavoring as they did to call into question the specific rationale behind his cited proposal. Mason, recall, had affirmed as justification for his plan to create a privy council that it would be dangerous to allow the Senate to sit constantly – as it must have done in order to attend to its power over appointments – and that it was also, inherently, “Too unwieldy & expensive for appointing officers, especially the smallest [.]” King evidently sought to counter these exact points when he argued in response that the Senate would actually not be forced to sit constantly, in no small part because it would not be expected to appoint every officer under commission to the federal government. The, “Higher officers of the departments [,]” to be sure, would require Senate confirmation, but these higher officers would then see to filling all the offices below their own. Bearing in mind, then, that the Senate could reasonably be trusted to attend to the relevant responsibility without creating more problems than were solved, the real question to be considered was whether it was strictly prudent that it do so. King, for his part, answered in the affirmative, though in a somewhat roundabout way.

    It wasn’t that King believed Mason’s privy council to be inadequate to the task it was designed to complete. Nor was it, based on his assertions, that he felt the Senate better suited to the same task in any particular sense. Rather, what gave him pause was what the creation of an entirely new organ of government likely portended for the acceptance of the scheme as a whole. “The people [,]” he said, “Would be alarmed at an unnecessary creation of a new Corps which must increase the expence as well as influence of the Government.” A pricy council of the type that Mason proposed might indeed have been able to help make federal appointments in a way that was effective, efficient, and relatively resistant to corruption. But would the performance of such an entity so far exceed that of the Senate as to justify potentially alienating the American people by creating yet another organ of government to whose dictates they must be beholden? King did not think so. As far as he was concerned, provided that the Senate’s authority over appointments was confined to a relatively small corps of officers, it made more sense to allow an institution upon whose necessity he and his fellow delegates had already agreed to take up certain new responsibilities than create yet another institution just for that purpose. Difficult as it would surely prove to convince the American people of the safety and utility of an expanded federal government, it made a certain amount of sense to keep said government as streamlined as was practicable. If the creation of a privy council wasn’t absolutely essential, in short, King was of the concerted opinion that it would be best left out.

    Tellingly, when a vote was finally held at the conclusion of this discussion, the specific motion that was considered appeared to reflect the arguments put forward by the likes of King and Morris more than those of Wilson or Mason. Rather than speak to the creation of a privy council appended to, but distinct from, either the executive or legislative branches, the question placed before the assembled delegates was instead whether or not the President, “Shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and Consuls) [and] Judges of the Supreme Court.” The result? Perhaps unsurprisingly, given that Mason’s proposal was not even granted a vote, Madison recorded the result using the Latin abbreviation “nem: con.” That is, nemine contradicente: literally, “no one objected.” To be sure, the assembled delegates, to a man, did not think the notion of a privy council entirely without merit. Nathaniel Gorham had spoken in praise of just such an arrangement on July 18^th, while James Wilson had offered George Mason’s relevant proposal his endorsement – albeit conditionally – during the discussion of September 7^th. Even those who objected to the notion did not disclaim it out of hand. Gouverneur Morris had simply opined that the Senate would serve just as well, and Rufus King never once attempted to assert that a council of appointment would fail to fulfil its stated purpose. Rather, it just seemed that the argument in its favor wasn’t convincing enough. Yes, a privy council could surely attend to federal appointments in a safe and effective manner, but did it need to? Was such an institution really necessary, or could the Senate reasonably see to the relevant responsibilities without also further expanding the scope and scale of the federal government? Having, by the beginning of September, travelled a great distance towards establishing the final form of the proposed constitution – amidst countless proposals, and debates, and bargains, and votes – the assembled delegates seemed to have lost their taste for further radical innovation. Those who were still interested in making significant changes to the document’s core framework – like Mason, for example – would certainly be given their chance to hold the floor and speak their piece, but they would do so in defiance of an increasingly solid consensus.