Exactly how the War of the Spanish Succession concluded, and what ultimately became of the Duke of Marlborough, are matters for another discussion entirely. The moment of greatest significance in the tale has finally been arrived at, as far as the topic at hand is concerned, and the import of Mr. Butler’s cited allusion can at last be discussed in full. The example which the gentleman from South Carolina cited in favor of granting the Senate a distinct check upon the President’s authority to make treaties, recall, were the so-called, “Artifices of the Duke of Marlbro’ to prolong the war of which he had the management.” The war in question, it has by now been made clear, was the War of the Spanish Succession, and the “artifices,” such as they were, were the duke’s supposed efforts to foil the negotiation of a treaty of peace circa 1711. Marlborough, of course, was not the chief executive of the contemporary British state, and accordingly did not possess any formal authority within the realm of diplomacy. In this sense, he would not seem to compare all that closely to a President whose powers were set to extend into both the diplomatic and military spheres. He was, to be sure, the commander-in-chief of Her Majesty’s Forces during the period in question, thus placing him at least partially on the same level as the American chief executive, but he possessed no rights or powers when it came to the negotiation of peace. He might have tried, as his enemies alleged, to spoil the relevant proceedings either personally or by his actions on the battlefield, but it was not required of him in the least to add his stamp to the final result. The Crown’s negotiators were solely responsible for hashing out the terms and Parliament was responsible for either approving them or not.
Rather than look just to Marlborough himself in an effort to understand what it was Butler was driving at, therefore, one must instead direct their attention to the essential nature of his position. While the duke was not himself the chief executive of the British government at that time, his role as the appointed commander-in-chief made him an extension of she who was. Queen Anne was not about to lead troops into battle in the Netherlands – not simply because she was a woman, mind you, but because contemporary European monarchs tended not to do such things – and so she delegated the task to John Churchill, Earl of Marlborough. Parliamentary approval was not required for this appointment, nor could Parliament force the post to be reassigned. The Crown had sole power to command the armed forces, and sole power, if it wished, to choose a proxy in its stead. Marlborough was that proxy, and so enjoyed an enviable – if at times somewhat tenuous – position within the hierarchy of the contemporary British state. He could not, as aforementioned, initiate, guide, approve, or dismiss any efforts undertaken to negotiate the terms of peace. Nor was it his exclusive responsibility to present any such draft agreements for the evaluation of Parliament. But while this arrangement would seem to have placed a clear limit upon Marlborough’s authority within the military sphere – permitting Parliament, as it did, to end the conflict over which the duke was formally responsible – the fact that Marlborough served at the pleasure of the Crown rather complicated the whole idea of Parliament acting as a check upon the authority of the royal executive.
At some point, as discussed above, during the later stages of the War of the Spanish Succession, the Tory government led by Robert Harley determined that the continued service of the Duke of Marlborough in the role of commander-in-chief was inimical to their intention to secure a negotiated peace with France. The man was a patriot, to be sure, and an exceptionally able tactician and strategist, but his priorities, from the perspective of the Tories, were deeply misplaced. Not only did he remain inclined towards pursuing the conflict’s original objective of preventing the ascension of a French prince to the Spanish throne – placing him, along with the contemporary Whigs, in the “No Peace Without Spain” camp – but the relationships which he had forged among the command structure of the Grand Alliance – with Queen Anne’s heir, George, Elector of Hanover, chief among them – made him unwilling to abandon his allies in the midst of a conflict that was just then reaching its decisive phase. The duke, in short, would simply have to go, and for preference before he succeeded in potentially spoiling the peace. Under the terms of his appointment, however, Marlborough could not be removed from his post by Parliament. Indeed, no authority could dismiss him but the queen herself. As long as she remained of the opinion that the duke should stay where he was, Marlborough would stay where he was, free to exercise all the powers of the office of commander-in-chief. And so, since the Tories could not force his removal any more than they could force the queen’s, it fell to them to instead convince Her Majesty that the man’s services were no longer needed.
Harley, as aforementioned, did succeed in this effort, and Marlborough was removed from his post in December of 1711. But while the peace that the Tories had so desperately sought was eventually enacted with the sealing of the Treaty of Utrecht, the fact that Queen Anne could have refused to cooperate with her Tory ministers would seem to embody the core concern later expressed by Pierce Butler in 1787. Parliament may have been free to debate and to approve of any treaty which its members felt best served the national interest, but if the Duke of Marlborough was determined to scuttle the whole enterprise, there did not seem to be any way of stopping him. Only the queen could give him orders, and only the queen could dismiss him from office. And if the queen decided, for whatever reason, that the duke was too valuable as a soldier to simply remove, Harley and his fellow ministers would seem to be possessed of little recourse. They could, conceivably, have attempted to remove Her Majesty. Britain had witnessed such overthrows before, with the most recent having occurred less than twenty years prior. But this would have constituted a rather extreme course of action, and one which might easily have sparked an inexcusably destructive civil war. No, the plain truth of it was that the Tories were pretty well stuck. Either Anne agreed to remove her commander-in-chief or she refused. And if she refused, Marlborough would do as he willed, sinking the peace, dragging out the war with France, or quite possibly bringing about a catastrophic defeat for Great Britain.
Now, to be fair, the government described by the proposed constitution was not set to much resemble that of early 18th century Great Britain. The United States of America would not have a crowned sovereign at its head, unelected by the people and virtually uncontrollable by their representatives. The office of chief executive and commander-in-chief were to be held by the same person, and that person was to be chosen by a poll of the population at large. But while this kind of arrangement would seem to represent a tremendous improvement upon the particularly monarchic aspects of the British model of government, there might still have been some danger inherent in how certain specific powers were assigned. Under the terms of the draft which the assembled delegates had compiled as of September 7th, for example, the President was to be possessed of absolute command over the nation’s armed forces as well as sole authority over the negotiation of treaties. Such treaties, it was true, were required to be submitted to the Senate for approval, but unless or until they were, the Senate was powerless to act. And in some ways, this presented an even more troubling power dynamic than had been the case during the time of Marlborough and Queen Anne. Parliament, during the War of the Spanish Succession, could at least conduct negotiations and debate and approve a treaty of peace without any need to defer to the office of commander-in-chief. As such a treaty was bound to drastically and suddenly curtail the scope of the authority of the officer in question, this made more than a little sense. And while it was true that someone like Marlborough could have used what power he still possessed in an to attempt to prod his nation’s enemies into voiding the negotiated peace, Parliament – in the event that the queen refused to remove her favorite general – could still have tried to put the treaty to a vote in the hopes that its passage came in time enough to pull the war out from under the erstwhile duke’s feet. Hardly an ideal solution, to be sure, but quite possibly an essential one.
Under the terms of the aforementioned draft constitution, however, no such opportunity would have been afforded to Congress. Because the commander-in-chief of the arms forces was also to fill the role of chief decider of foreign policy, and because no treaty could even be considered by Congress unless it had been referred to that body by this selfsame executive officer, there would seem to have been no “safety valve” in place by which a legislative branch might attempt to reign in an ambitious President. A President, therefore, who was intent on using his powers as commander-in-chief during a time of war to transform his temporary position into a permanent one would evidently have to do little more to prevent a sudden loss of authority than simply refuse to submit any draft treaties to the scrutiny of Congress. Congress itself, of course, would retain the ability to actually declare war, which point Nathaniel Gorham had made during the discussion now being considered. But how much of a safeguard, really, would this be against a chief executive whose determination was equal to their cunning? Might not a President committed to becoming a perpetual monarch in all but name achieve a declaration of war via the manipulation, blackmail, or bribery of members of Congress? Was it not similarly conceivable that they might attempt to use their admittedly significant powers within the military and foreign policy spheres to maneuver a majority in Congress into declaring war of its own members’ accord? And what then? Even if the plot were revealed to them after the fact, how might the membership of Congress reign in the powers of a President during a time of war when the ability to end said war lay primarily in the hands of that selfsame President?
There was impeachment, of course, which power lay beyond the government of Robert Harley during the events of the war with France. The Duke of Marlborough was not impeachable, or at least could not be removed via impeachment, and so remained outside the control of Parliament at that time. But a President, according to the draft constitution, was always subject to being charged with certain crimes by Congress and, upon conviction for those crimes, being removed from office by the Senate. Might not a Congress, having been confronted with a warmongering, power-mad President, thus exercise their constitutional right to impeach and remove them? Well, yes, to be sure, they could. But one rather wonders at how an impeachment would play out in the court of public opinion at a time when the nation is in the midst of a state of war. How easily might a canny President paint the actions of Congress as an act of unjust persecution? Or as a betrayal, even, while the country struggles under the cruel yoke of a foreign conflict? Indeed, such an attempt by Congress to justifiably remove an otherwise dangerous individual from a position of unparalleled power might potentially play directly into that same individual’s hands. “Congress is in the pay of the enemy,” they might claim. “Martial law must be declared and its membership must be arrested.” And while such an action might appear extreme in the sober light of peace, it bears remembering how often war has been used to justify the most egregious breaches of personal liberty and the law. Provided that the general population is maintained in a perpetual state of fear – punctuated, as necessary, by bouts of fervent patriotism – one rather shudders to think what an ambitious President might thus accomplish.
All of this necessarily leads back to the cited allusion which Mr. Butler had attempted to make and the position in whose service he was seeking to make it. The Duke of Marlborough, as aforementioned, was a very ambitious man and an intelligent one. And while his dedication to his country was never really in question, he was nevertheless prepared to throw his weight around when he felt it necessary to the course of his career. He betrayed his king and longtime patron, James II, for example, when he felt the winds of fortune had shifted against the House of Stuart in December of 1688, maintained contact with this same individual in order to exert leverage upon his new sovereign, William III, over the course of the 1690s, and had no qualms about manipulating certain of his allies during the War of the Spanish Succession in order to achieve the end result which he felt was most desirable. By 1711, the man was among the most powerful in all of Europe, sitting at the head of a victorious allied army and possessed of the confidence of half the monarchs of the Continent. But for all his power, and the many things he could do with it, he served at the pleasure of a single individual. This fact, Pierce Butler doubtless intended to impress upon his fellow delegates, made him, in some ways, an exceptionally terrifying figure. Parliament, to be sure, could approve a treaty of peace without his say so, but it was between the general and his royal patron whether they would actually get the chance. The United States of America was set to avoid such an outcome in part, specifically by ensuring that the commander-in-chief of the nation’s armed forces was subject both to periodic election and to removal from office in the interim. But what if this selfsame commander-in-chief used their authority in the foreign policy sphere – granted to them separately and evidently without reference to their authority in the military sphere – to cultivate a continuous state of war during which their already ample powers would be expanded even further? Would this not make them even more dangerous than the Duke of Marlborough? Would this not reduce the United States government to something even less secure than that of aristocratic Great Britain?
Mr. Butler seemed inclined to answer these questions in the affirmative, leastwise if his various assertions are any indication. And his solution, as previously discussed, was to grant a jot of extra authority to the Senate. In most cases, he agreed with his colleague James Madison, it was perfectly acceptable to allow the President to take the lead in terms of foreign policy, with draft treaties thus secured to be submitted to the approval of the Senate. But during wartime, when the authority of the President was to be substantially augmented in their role as commander-in-chief, Butler also felt it prudent to permit Congress to move independently to secure a treaty of peace. To wait for the President to offer such a treaty to Congress, he affirmed by way of historical allusion, would have been tantamount to allowing a general of great success and renown to decide for themselves when to dispense with their power and prestige. The recent actions of the Dutch Stadtholder had shown this to be a foolhardy arrangement at best. And while the British parliamentary system had proved itself, during the events of the War of the Spanish Succession, to be somewhat more capable than the Dutch Republic at dealing with otherwise unchecked military authority, the actions of the Harley ministry vis-à-vis the Duke of Marlborough nevertheless demonstrated that even the resilient British model stood to benefit from additional safeguards. The carving out of a grant of power to the Senate which might have allowed its members to bring an end to a state of war in the face of an uncooperative President was exactly that, albeit adjusted to fit the specific American context.
Under the terms of the arrangement for which Pierce Butler was advocating, an American executive might still have attempted to use their powers as commander-in-chief to pursue some manner of self-aggrandizing objective, no doubt, but they would not have been able to do so indefinitely. By allowing the Senate, upon consideration, to pursue and to approve of a treaty of peace on its own authority, Congress would accordingly gain the ability to curtail the most wide-ranging powers of a warmongering President. Granted – and depending on the situation – the Senate might still conceivably end up in a kind of race with the chief executive to see whether its members could end the state of war before the President made it impossible for them to do so, but even a failed effort would not necessarily have been in vain. Having shown themselves to be peace-minded, and having made clear the intentions of the commander-in-chief, the assembled Representatives and Senators would doubtless have found it much easier to convince their constituents that impeachment and removal was necessary. In this sense, an exclusive Senate vote on treaties of peace would form part of that body’s larger responsibility to keep the office of President in check. If the upper house of Congress was to be trusted with the ability to potentially convict and remove a chief executive from office, should it not also have been granted the power to curtail the abuse of executive authority? If its members were to be granted the right to punish the commission of certain “high crimes and misdemeanors,” mightn’t they have been additionally tasked with preventing these kinds of abuses from occurring in the first place? Even if they failed, they’d be in a better position to hold the offender to account. Having witnessed, firsthand, the unjust actions of a President intent on holding on to their expanded war powers, they would surely be both willing to expedite their removal and quite capable of doing the same.
Notwithstanding the strength of Butler’s cited allusions – which were, between them, both very recent and very familiar – not everyone agreed with his and Madison’s take. Elbridge Gerry, for one, held that, “In treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties.” Presumably, what he intended by this was that the President – being the representative of the whole population rather than any particular constituency – should have been included in any treaty discussions that touched on matters as sensitive and far-reaching as those often encompassed by a treaty of peace. Under the terms of such agreements, he argued accordingly, “The dearest interests will be at stake, as the fisheries, territory &c. […] there is more danger to the extremities of the Continent, of being sacrificed, than on any other occasion.” Based on these specific examples, one might fairly assume that Mr. Gerry viewed the President as more likely to guard the rights of some of the smaller states, or those with specific economic concerns, or those which bordered the frontier, than would the Senate in isolation. North Carolina’s Hugh Williamson also objected to Madison’s proposal, though in much simpler terms than Gerry. All that he said by way of response was that, “Treaties of peace should be guarded at least by requiring the same concurrence as in other Treaties.” One supposes, lacking evidence to the contrary, that what he meant by this was that commerce no more important than the settling of an international conflict. If the approval of the President was to be required for the passage of a treaty concerned with the former, it made more sense than not for it to be required for one concerned instead with the latter.
In the end, when Madison’s proposal was finally put to a vote, the less involved arguments of Gerry and Williamson seemed to win out. Of the eleven delegations that submitted a vote, eight were against the motion and only three – Maryland, South Carolina, and Georgia – were in favor. Mr. Butler, it seemed, managed to carry his fellow South Carolinians along with him, but Mr. Madison had failed to do the same when it came to his fellow Virginians. The result, of course, was that the Senate’s treaty powers would remain as they were. Evidently, while the assembled delegates were inclined to allow for some legislative oversight in the arena of foreign policy – much as that which was possessed by the contemporary British Parliament – they were not necessarily inclined to allow the President to be cut out entirely. Chalk it up to suspicion of the Senate, perhaps, or possibly a surfeit of trust in the office of commander-in-chief. Maybe it was as Gerry had argued; that the President, by the very nature of their office, would be more inclined to pay heed to the needs of marginal communities than would a chamber where such priorities were bound to gain very little traction. Or perhaps it was Mr. Morris who hit the nail on the head. If the President, he observed, was to be, “The general Guardian of the National interests [,]” than it made little sense to exclude them from proceedings of the highest consequence for the American people. Either the office of President could be trusted, in essence, or it couldn’t. That the delegations in attendance voted against allowing the Senate to circumvent the President’s authority in the context of treaties of peace would seem to indicate that they were generally of the former opinion. That, or they held the Senate to be even less worthy of public confidence.
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