The extent to which the attendees to the Philadelphia Convention seemed to have solidified around a fairly durable consensus by September 7th 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 18th
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.
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