The Purpose and Powers of the Senate, Part XII: War and Peace contd.

     The Patriottentijd, or “Time of the Patriots” – to begin a long but hopefully interesting explanation – was essentially the product of three interconnected factors or trends which happened to exert an increasingly profound collective effect upon the fortunes and the prospects of the Dutch Republic as the 1770s gave way to the 1780s. On the one hand, the Dutch economy had entered a period of stagnation at the beginning of the 18^th century following a sustained period of growth and financial dominance over the course of the 1600s. Industry declined, the banking sector became dominant, and while incomes remained statistically stable, the actual gap between the richest and the poorest citizens widened considerably. At the same time, as the economic influence of the Dutch Republic declined, the middle classes in particular began to lose faith in the efficacy of the nation’s political systems. Whereas merchants and artisans has formerly been able to exert considerable influence within the country’s hierarchy of local, provincial, and national councils, the monopolization of influence within a static upper class of bankers and patricians which accompanied the aforementioned period of economic stagnation essentially cut off the middle strata from any hope of social or political advancement. Finally, as these two trends combined over the course of the 1750s and 1760s to produce an acute sense of disenfranchisement and frustration among a significant portion of the Dutch population, the emergence of an organized rebellion in distant British America set in motion a series of events which would bring the Republic of the Seven United Netherlands to the brink of civil war and, arguably, beyond.

    While, at its outset, the American Revolutionary War and the publication of the Declaration of Independence elicited little more than dismissive scorn from the leadership of the contemporary Dutch Republic – with Stadtholder William V memorably referring to the document in question as a, “Parody of the proclamation issued by our forefathers against king Philip II” – the chief officials of a number of the nation’s major merchants cities soon enough become deeply interested in the prospect of securing trade ties with the newly-proclaimed United States. The Dutch West India Company and its shareholders had long been frustrated by British attempts to monopolize all commerce to and from the Thirteen Colonies, and the emergence – and continued existence – of an independent American republic appeared to them a prime opportunity to corner this previously inaccessible market. Trade talks soon began, often behind the backs of the Stadtholder and his ministers, which led to the arrival of American emissaries, the extension of loans, and eventually to formal Dutch recognition of American independence. But while this all seemed to promise, in the long term, a significant financial return, the immediate effect, naturally, was yet another war between Britain and the Netherlands.

    In this instance, however, unlike in the two previous Anglo-Dutch Wars which had taken place in the 17^th century, the Dutch fared very poorly notwithstanding the strength of their navy. Citing “unreadiness” as the general state of the fleet, Dutch naval commanders consistently declined to do much of anything besides maintain their vessels in port. Britain’s Royal Navy, as a result, was able to attack Dutch vessels seemingly at will, and at length succeeded in establishing a total blockade of Dutch waters. The only major engagement, fought at Dogger Bank off the east coast of England in August of 1781, marked a strategic victory for the British and brought the competence of the Dutch navy further into question. Later, when the States-General – the republic’s national legislature – negotiated an agreement with the French to participate in a joint naval action requiring the repositioning of Dutch warships to a naval port in northern France, the force’s reputation suffered a further decline when the admiral responsible refused to follow his orders, citing “unreadiness” once again and a general distaste for cooperating with French authorities. As he was formally his nation’s commander-in-chief, Stadtholder William V shouldered the blame for all of these setbacks, further undermining the reigning regime in the eyes of the Dutch population.

    As all of this was occurring, the Declaration of Independence which William V had so casually scorned gradually began to exert a very significant effect upon the popular imagination of the Dutch middle classes. Lawyers, merchants, publishers, and journalists began to drift towards the conclusion that the American Revolution was indeed a close echo of their own forebears’ struggle for independence against the Kingdom of Spain and that it accordingly constituted something of a moral duty for the people of the Dutch Republic to offer their assistance to those of its American counterpart. Not only did this shift in public opinion make it much easier for the likes of American envoy John Adams to obtain the diplomatic and financial support which Congress had sent him to procure, but it also began to affect how many Dutch people viewed their nation, its system of government, and the prospect of institutional reform. Previous attempts at re-enfranchising the nation’s middle strata had, for a number of reasons, met with failure and reactionary entrenchment, but the idealism that the American Revolution self-consciously embodied – and the efforts of people like Adams and his middle-class allies to promote a sense of Dutch/American collegiality – seemed to lend a new spark to the cause of political liberalization. Pamphlets endorsing reform began to be published in large numbers, the most influential of which was Aan het Volk van Nederland – “To the People of the Netherlands” – by the radical aristocrat Joan Derk, Baron van der Capellen, and the so-called “Patriot” movement began to take shape.         

    The thing that the reformist Patriots focused on in the immediate – as opposed to the reactionary “Orangists,” who broadly supported the continued domination of the Stadtholders of the House of Orange – was the rejuvenation of their republic’s system of local militias. These paramilitary formations, or schutterij, had played an integral role in the opening stages of the Dutch Revolt (1566-1648) by helping to fight off early attacks by troops loyal to the Spanish Crown, the result of which was that the schutterij became an integral element of the Dutch Republic’s founding mythology and a cornerstone of its political culture. And as these city militias were dominated by members of the middle strata of Dutch society – being those able to afford their own arms and supplies – and as their officers were customarily elected by the membership at large, the character of the schutterij tended to be less patrician than the municipal councils while still exerting significant influence upon municipal affairs. But while the image of the urban militia continued to occupy a special place in the popular imagination of the citizens of the Dutch Republic well into the 18^th century, their practical significance had steadily waned since some time in the middle of the 17^th century. At the hands of the regenten – being the pseudo-hereditary patrician class who came to dominate the administration of the republic’s major urban centers – the militias were brought under the direct control of the municipal councils, their elected officers were replaced with appointed local favorites, and what were once military organizations became little more than sporting clubs. In the eyes of the aforementioned Patriots, this process of decline was emblematic of the waning fortunes of the Dutch Republic itself, and they accordingly adopted the project of revivifying the local militias as emblematic of their desire to breath new life into the nation as a whole.

    Efforts to this end commenced in 1783, when various Patriot organizations began to form their own militias entirely independent of the much-reduced schutterij. Characterized as private organizations which were open – unlike the city militias – to members of any religious denomination, the vrijcorpsen, or “free corps,” resurrected the practice of electing their own officers and took to drilling themselves regularly and often very publicly. In some cases, the result was simply that certain municipalities now had two militia formations, one public and one private. In other cases, however, the vrijcorpsen were able to absorb the existing schutterij and effectively take their place within the local political hierarchy. Often enough, the regenten were pleased to allow this to happen, jealous as they were of the power which the Stadtholder had come to wield over the militias in the various cities. But in time it became clear, as the Patriot militias gained more and more influence, that the revitalization of the schutterij was only the beginning of what was to come. Having succeeded in inserting themselves into the political framework of a number of municipalities, the members of the vrijcorpsen accordingly started to agitate for further, more radical reform. Meetings were thus held, beginning in 1784, between representatives of the new militias drawn from across the Dutch Republic. And the end result of these gatherings, among other things, was the drafting of manifestos and compacts by which the gathered members pledged themselves to both the mutual defense of their constituent organizations and the restructuring of the nation’s political institutions.

    Publicized with the aid of Patriot-controlled newspapers, these declarations went on to form the core demands of a series of vrijcorpsen-led movements whose stated aim was to encourage the nation’s major centers of power to disregard much of the customary authority wielded by the Stadtholder and then to adopt new provincial charters based on democratic principles. In Utrecht in 1785, this took the form of a lengthy confrontation between the regenten-dominated city council and the Patriot-led vrijcorpsen whereby negotiations gave way to a series of armed demonstrations and threatened revolts, the final result of which – after more than a year of agitation – was the creation of an elected city government dominated by members of the local middle class. A similar series of events played out in Amsterdam the following spring, with Patriot and Orangist militias and magistrates trading threats of violence and attempting to negotiate with each other and the Stadtholder until finally the former group managed to rally sufficient popular support to have the conservative members of the city council removed. The governments of many other cities gradually followed suit, with the “liberation” of Delft in particular granting the Patriots access to the nation’s largest store of arms and gunpowder, and by 1787 there seemed to be no stopping their movement on its forward trajectory. One by one, the provinces were giving way. All that remained was to confront the Stadtholder himself.

    This confrontation finally occurred – not at all unlike the American Revolutionary War – at the end of a long and tense period of military maneuvering. Confrontations between groups of Orangist and Patriot civilians beginning in the summer of 1785 first led to calls for intervention on the part of the Stadtholder, which then led to a great deal of military repositioning on the part of both the Patriots and the Orangists. At length, when the Orangist-controlled assembly in the province of Gelderland asked the Stadtholder to dispatch troops in response to Patriot efforts to fortify the various municipalities that they controlled there, the force dispatched from Nijmegen proceeded to sack the cities of Hattem and Elburg. The Patriots, duly incensed, demanded that the government of the province of Holland remove William V from command of those portions of the republic’s mercenary States Army which they were then actively financing. When the members of the provincial assembly agreed to do so in July of 1786, the number of troops at the Stadtholder’s disposal was approximately cut in half. Uncomforted, the Patriots who controlled the city of Utrecht then began to fortify their own positions in fear of an attack by what remained of the States Army under William V, the result of which – following the deployment of government troops to a vital strategic location in the area – was the so-called Battle of Jutphaas (May 8^th, 1787), the first and arguably only major engagement between Patriot and Orangist military forces. The Patriots emerged from this skirmish victorious, the Stadtholder’s wife, Wilhelmina of Prussia (1751-1820) was then detained the following month while attempting to return from Guelders to the Hague, and William V was forced to acknowledge the fact that he could no longer hope to preserve his reign with the military forces at his disposal.

    The events that would follow in September and October of 1787, while collectively constituting the abrupt resolution of the Patriottentijd, are unfortunately outside the purview of this present examination. Pierce Butler, in referencing the late behavior of the Stadtholder in mid-September of 1787, could not have known what was to come in the days and weeks ahead. What he did know, however, assuming that the news he received was accurate, was that William V had already behaved quite alarmingly towards his own people. The Stadtholder, to be sure, was not what one might call a tyrant in the classical sense. By all accounts a diffident and indecisive leader, he often hesitated when challenged and could hardly have been described as a latter-day Julius Caesar. That being said, he did make at least one very fateful decision over the course of the events described above. As his authority as Stadtholder was steadily eroded by the successful efforts of the Patriots to reform the governments of the various provinces along broadly democratic lines, William V gradually seemed to arrive at the conclusion that the use of military force was going to be necessary if he were to preserve his position as the head of state of the Dutch Republic. The provinces themselves, under the Dutch federal model, were nominally free to govern themselves as they saw fit, to adopt new constitutions, and to form or to recognize whatever militia formations they deemed necessary. The Stadtholder’s authority in these areas was mostly customary. Indeed, one of the few organs of state over which William V could claim formal authority was the States Army, of which he was Captain-General. When the Orangists who controlled the government of Gelderland requested the Stadtholder’s assistance against what they perceived to be the mounting Patriot threat, William was accordingly within his legal rights to deploy the forces under his command to the affected cities. But while William’s authority over the States Army was not in question at the time, the wisdom of his response and of the behavior of the forces under his command were both severely lacking.

    Seemingly out of fear for what further vacillation might cost him, William V allowed the troops under his command which he ordered to the relief of the Orangists in Gelderland to effectively have their way with the cities of Hattem and Elburg. There was little physical violence involved, it bears mentioning, as the Patriots who initially held the cities offered little resistance when the States Army arrived. Nevertheless, both communities suffered significant looting as well as the purported desecration of their local places of worship. Then, when the Patriots who were at that time in control of the province of Holland succeeded in removing the forces which they were responsible for funding from the Stadtholder’s command, William’s response was to strike out once more with what remained of his forces. A detachment was sent to Vreeswijk in Utrecht to counter a gathering of Patriot militias there and in short order the two forces – some might say inevitably – came to blows. The resulting engagement – commonly known, as aforementioned, as the Battle of Jutphaas – while not a particularly large or costly one, did nonetheless result in its share of casualties. Men were killed, including two of the leaders of the Patriot militias, and all because the Stadtholder could not stand the thought of losing his position. The blame, of course, lay primarily with William himself. Legally justified though he may have been to command the States Army in whatever fashion he wished, nothing could have possibly excused his decision to turn the forces intended to protect the people of the Dutch Republic against some disagreeable contingent of the citizens of the same. That being said, if one were to accept the fact that men like the Stadtholder will essentially always exist – men who, once granted power, will do anything to keep it – the issue at hand becomes institutional rather than personal. The problem, in essence, was not that William acted selfishly, but that the government of the Dutch Republic had no formal checks in place to counter the emergence of a particularly selfish Captain-General.

    This, no doubt, is what Mr. Butler was hoping to communicate. The Dutch Republic and the American republic were very different in many ways. They shared a common origin, it was true, in rebellion against European imperialism, but their respective political cultures and institutions had very little in common. That being said, the two had arguably become bound together over the course of the preceding decades by a kind of reciprocal relationship of amity and inspiration. The Founders of the United States, for example, during the early stages of the American Revolution in the middle and late 1770 , often directly cited  the positive example which they felt the Dutch Republic embodied as the product of a successful republican revolt against an ostensibly overpowering European empire. Likewise, certain of the delegates who attended the Philadelphia Convention in the late 1780s argued in favor of a central government on the Dutch model, particularly in regard to the powers of the nation’s chief executive. And while, as aforementioned, certain authorities in the Dutch Republic looked upon these acclamations with disdain, American notions of liberty and justice nevertheless began to exert a power influence on the Dutch middle classes over the course of the 1780s. While it did still remain true at the time that Mr. Butler was speaking that the chief executive described in the text of the proposed constitution would not much resemble the Stadtholder – whose office, as of the late 1740s, had formally become hereditary – it would still accordingly have felt to many of those in attendance in Philadelphia that the fates of the two republics were somehow tied together. What happened in one of them, to that end, might have seemed prophetic upon the destiny of the other, with failures and successes serving as object lessons which it would not have been wise to ignore.

    Pierce Butler’s admonition, therefore, was that his colleagues pay due heed to the institutional failures recently witness by the inhabitants of the Dutch Republic. Under their system of government – which was historically strongly federal but which had become increasingly centralized under the House of Orange – the office of Stadtholder was mostly customary and ad hoc. Indeed, one of the only spheres over which its authority was grounded in something more than tradition was that of the nation’s combined military forces. And while it was true that previous struggles between the provinces and the House of Orange had taken on a military dimension, no substantial reforms had been made that might have placed limits upon the authority of the Stadtholder over the States Army. The result, as a spontaneous popular movement whose basic principles were antithetical to the concept of hereditary and deeply centralized executive authority gained increasing momentum over the course of the 1780s, was that while the provinces were legally entitled to undertake whatever internal reforms they desired, the Stadtholder remained in full control of the nation’s military apparatus. Under these kinds of circumstances, why should anyone have expected William V to do anything other than seek to preserve his authority? If the power to stymie the Patriot movement yet remained at his disposal, for what possible reason might he have chosen to stay his hand? The efforts of his forebears had placed great power in the Stadtholder’s hands, and he was not about to lose that power if there was something he could do to preserve it.

    This, to be sure, was what Mr. Butler was worried might occur if he and his fellow delegates did not attend to their responsibilities with care. Granted – and as Nathaniel Gorham noted explicitly – while the President of the United States would also fill the role of Commander-in-Chief of the nation’s armed forces, the power to declare war would rest solely with Congress, thus seeming to limit the amount of mischief in which the former might indulge. But was this an entirely sufficient check upon the American chief executive? Might not a given President be tempted, especially during a state of war, to make use of their military authority for the purpose of either augmenting or preserving their position? Imagine a scenario in which a war is declared by Congress, it proceeds very poorly, the sitting President takes most of the blame, and disgruntled citizens begin to agitate for his removal. As the Commander-in-Chief, the President in question might then come to the conclusion that said agitators represent a threat to his continuation in office and direct the military to quell the aforementioned dissent. And now imagine that the dissenters resist, take the President’s actions as cause for further agitation, and begin to organize themselves into paramilitary formations. To what extent ought the President be permitted to direct the military to make war upon these dissenters, and to what extent should his powers in this sphere be curtailed? As the supreme authority over the nation’s military forces, his ability to direct the deployment of troops as he sees fit would seem to be amply justified by the law. And during a state of war, when the integrity and security of the nation as a whole is theoretically at stake, shouldn’t the President be given even more leeway than usual?

    Mr. Butler, for his part, answered very much in the negative. As recent events in the Netherlands had very clearly shown, it was not wise to trust an executive with virtually limitless military power. Such a grant, to be sure, made sense in certain contexts. A single individual could doubtless respond to a sudden foreign invasion much faster than could an assembly of equals over whom no one person could claim supremacy. But it also stood to reason that a single individual was more likely to abuse their military authority than a collective body whose members each professed different intentions and ambitions. The Dutch Stadtholder had shown the wisdom of this latter axiom in a particularly dramatic fashion when he turned the authority which had been granted him in good faith against some portion of the people that he was otherwise bound to protect. His formal duty, as the Dutch Republic’s head of state, was not to preserve the integrity of his own position, but rather to see to the safety of the citizens thereof. And while it was true that the Stadtholder was an aristocrat to the core, and that the Dutch Republic as a whole was no stranger to authoritarian leadership, it would have been the height of foolishness to imagine an American chief executive to be immune to the same kinds of temptations to which William V fell prey. A President, thus empowered, might not necessarily abuse their authority. Chosen specifically for the signal virtues which they possessed, they might reasonably be trusted not to seek after opportunities to further strengthen their position. But what if they were not so virtuous? What if they only played at virtue so as to successfully ascend to the pinnacle of political power? What if they turned the military, which was theirs to command by law, against all those who would challenge the indefinite continuation of their reign? The United States, Pierce Butler reasoned, should not leave itself vulnerable to such an outcome, and it was the events of the Patriottentijd that helped to make this quite clear.

The Purpose and Powers of the Senate, Part XI: War and Peace

     In addition to the subject of executive appointments, the attendees of the Philadelphia Convention also spent a goodly portion of the session of September 7^th, 1787 discussing the propriety of requiring the approval of the Senate for the final ratification of international treaties. Among the various responsibilities which had been provisionally granted to said body, treaty ratification was potentially among the thorniest, in no small part because it appeared to combine the prerogatives of the executive and legislative branches. Foreign policy, under the auspices of the proposed constitution, was to be the particular responsibility of the American republic’s chief executive, both in terms of the nomination of ambassadors or special envoys and in the context of actual diplomatic negotiations. But as treaties, of whatever type, were also described in the text of the proposed constitution as carrying the full force of law, it made a certain amount of sense for their terms to be subject to legislative approval. The President, after all, could not be permitted to alter or abridge the terms of domestic law on his own recognizance, particularly if his efforts were the product of close cooperation with a foreign power. But while looping Congress into the treaty-making process accordingly made a certain amount of both practical and philosophical sense, it was not necessarily clear – at least not at the outset of the relevant discussions – just how such an arrangement might best be accomplished. The Senate was an early favorite in terms of which branch of the national legislature was best suited to the responsibilities in question, owing, no doubt, to its intended status as the representative chamber of the wealthy and connected. But was this first impulse necessarily the right one? Were there drawbacks to allowing indirectly elected Senators to singlehandedly approve of legally binding treaties? Were there ways to ameliorate some of the drawbacks inherent to the Senate, or was it perhaps the better part of wisdom to re-examine the whole idea?

    James Wilson was the first delegate to raise this particular subject during the discussion of September 7^th. The day’s conversation had previously been focused on the nature of the Senate’s appointment powers, and this was indeed the avenue to which it would return. But for a moment, before being diverted, Wilson gave voice to certain concerns. Specifically, the assembled delegates having for the moment opted to take up the clause of the proposed constitution which stated that, “The President by & with the advice and consent of the Senate shall have the power to make Treaties &c [,]” the gentleman from Pennsylvania, “Moved to add, after the word ‘Senate’ the words, ‘and the House of Representatives.’” His rationale, as he thereafter went on to explain it, was simple enough. “As treaties [,]” he said,

Are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this […] so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter.

In keeping with his position on the question of executive appointments, Wilson seemed to be speaking mainly from a place of principle when he made this assertion. Secrecy, he admitted, was often an important element in the successful negotiation of international treaties, and it would have been difficult to argue that the expansive and changeable House of Representatives would be better able to keep its proceedings secret than the much smaller and more stable Senate. The former was bound to attract a more energetic sort than the latter, and the security of certain sensitive negotiations may well have suffered if the larger of the two was made party to the discussions in question. All that being said, Wilson nevertheless endorsed the inclusion of the House along with the Senate in the ratification of binding treaties. As aforementioned, such documents were to possess, “The operation of laws,” and he evidently found it inconceivable that the more representative chamber of Congress should have been excluded from any process that produced them. The result may have been inconvenient – taking the form, perhaps, of the occasional breach of secrecy – but to Wilson’s thinking it was an acceptable trade-off given what was at stake.

    During this brief dip into the subject of treaty ratification amidst the larger discussion of executive appointments, the only other delegate who was recorded as having spoken was Connecticut’s Roger Sherman. And while his observation on the matter at hand was a relatively brief one, it was also characteristically astute. “The only question that could be made [,]” he said, “Was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secresy in the case of treaties forbade a reference of them to the whole legislature.” But while this comment might seem on the surface like little more than a straightforward rebuttal of Wilson’s cited reflection – in as much as Wilson thought secrecy less important and Sherman thought it more important – it in fact cut to the heart of the issue then under discussion. Wilson’s position, in essence, was that the treaty-making power which he and his fellow delegates were preparing to bestow upon the national government came too near to being a species of legislation for it to fall only partly within the purview of the United States Congress. If treaties thus negotiated were indeed to possess the full force of law, it then stood to reason that the body responsible for making law for the United States should have been granted full power and responsibility to examine the same and vote its approval or rejection. This was a reasonable enough position, of course, but one which Mr. Sherman seemed to think only served to obscure the real issue at hand. While Mr. Wilson had claimed, as justification for granting the House equal responsibility for treaties with the Senate, that if treaties were to, “Have the operation of laws, they ought to have the sanction of laws also [,]” – i.e., that if treaties were going to be treated like every other federal law then they should be approved by Congress like every other federal law – what he really meant to say was that he didn’t trust the Senate to see to this task alone.

    Such a belief, as far as Roger Sherman was concerned, was quite unfounded. And while he did not explain his reasoning, per se, his base assertion was nevertheless a sound one. The assembled delegates, recall, had already provisionally agreed to allow the Senate to approve of treaties on its own recognizance without any reference to the House of Representatives. Wilson objected to this procedure, on the general grounds that things that behaved like laws should be treated like laws, but he did not go into very much detail as to why. Why, in his mind, could the Senate not attend to the ratification of treaties on its own authority? Why, given the aforementioned need for secrecy, did this not represent an acceptable compromise between requiring the approval of both chambers of Congress and allowing the executive to make treaties on their own? The answer, as near as Sherman could figure it, was that Wilson simply didn’t trust the Senate. He hadn’t said as much, of course, but what other answer could there be? He didn’t trust the Senate in the same way that he trusted both chambers of Congress together and was willing to sacrifice the needs of secrecy to satisfy his own peace of mind. Sherman, as noted above, disagreed with his position. And though he did not explain from where he derived his trust in the upper house, it was nevertheless very shrewd of him to identify this selfsame sense of institutional faith as the crux of the issue at hand. Between asking the Senate to ratify treaties alone and asking both chambers of Congress to do so together, the former course was inarguably the more practical of the two. It stood to reason, then, that the only question worth answering was whether one trusted the Senate or one held them under suspicion.

    Without being able to say, precisely, how each of the assembled delegates ultimately felt compelled to respond, the result of the vote which was held shortly thereafter on Wilson’s motion would seem to serve as evidence for a fairly definitive general consensus. Wilson’s proposal having been seconded by his countryman Thomas Fitzsimmons, the final tally was ten states opposed and only one state in favor. The only delegation that voted to adopt the motion, perhaps unsurprisingly, was Wilson’s own Pennsylvania. Most of the attendees to the Philadelphia Convention, it seemed, had come around to the idea that vesting the upper house of Congress with certain unique responsibilities was both a safe and useful course of action. And while they would continue to debate precisely how and under what circumstances these responsibilities were to be exercised, they no longer appeared interested in questioning whether the Senate could be trusted or whether its members were in need of institutional restraint. On the contrary, rather than seek to restrain the Senate, most of the delegates seemed increasingly to be of the opinion that a sufficiently empowered Senate might act as a useful restraint upon the nation’s chief executive. They too, quite possibly, did not trust the Senate implicitly – being, as it was, a self-consciously aristocratic body. But they almost certainly reserved their deepest suspicions for the office that was most obviously ripe for abuse. A council of notables, after all, might well conspire to defraud the people, but a canny executive could do so without requiring any knowing assistance at all.

    This exact sentiment, in point of fact, formed the basis of a further discussion of the Senate’s treaty-making power which took place some time later during that same session of September 7^th. Having returned to, and partly settled, the matter of the upper chamber’s appointment power, the assembled delegates turned they attention once more to the Senate’s presumptive role in the ratification and enforcement of international agreements. At this point in the course of the Convention, the draft text of the proposed constitution declared that, “The President by and with the advice and consent of the Senate shall have power to make Treaties […] But no treaty shall be made without the consent of two thirds of the members present [.]” Wilson’s attempt to grant the lower chamber equal authority to that of the upper chamber had, as aforementioned, been voted down by an overwhelming majority, but this had evidently done little to dampen the vehemence of that selfsame gentleman’s concerns. Indeed, upon having the relevant draft text read back to him, Mr. Wilson promptly rose to declare that he, “Thought it objectionable to require the concurrence of 2/3 which puts it in the power of a minority to controul the will of a majority.” Rufus King then proceeded to voice his concurrence, “Remarking that as the Executive was here joined in the business, there was a check which did not exist in Congress where the concurrence of 2/3 was required.” Evidently, as far as these two gentlemen were concerned, powerful Senate minorities were to be feared and avoided no less so than a corrupt executive.

    There was something to this branch of argument, of course, particularly in the context of an equally apportioned Senate. The entire purpose of the upper house, pursuant to the terms of the Connecticut Compromise, was to allow every state to hold the same degree of authority regardless of the size of their respective populations. Small states like Connecticut, for example, would be on an equal footing with large states like New York, thus forcing such large states to seek compromise in order to achieve their desired outcomes. But in the event that the Senate was granted a unique and particularly sweeping power – like, say, the right to advise and consent to executive appointments or to ratify or reject international treaties – this measure, whose intention was to grant the small states some sense of security and confidence, might in turn produce a situation in which the principle of majority rule became meaningless. Consider, to that end, a fairly straightforward scenario. The Senate, pursuant to its established responsibilities, is tasked with either approving or rejecting a treaty of amity and trade between the United States and a foreign power. The President, pursuant to his own authority in this sphere, has worked long and hard with his envoys and their foreign counterparts to secure what they all feel to be a mutually beneficial agreement, and the document in question has now been submitted for Senate appraisal. Of the twenty-six Senators then seated, the approval of eighteen is required before the treaty can be considered ratified. A debate ensures, speeches are given, points are raised, and a final vote is eventually held. Seventeen Senators, representing all of the largest states and a number of the smaller ones, vote in favor. The remaining nine, representing, say, the smaller New England states nearest the border with Canada, votes against. The motion is thus defeated; the treaty is not adopted.

    Granting that this is a purely hypothetical scenario wholly lacking in detail or context, the circumstances which might produce it are not all that difficult to imagine. If the agreement in question was between the United States and the Kingdom of Spain, for example, with the aim of opening up trade between the former nation and the latter’s colonial possessions in the Americas, it might easily come to pass that Southern states intent on trading in slaves and transporting their produce to market via the Spanish port city of New Orleans might find themselves in direct opposition to Northern states whose commercial interests favored access to British and French possessions in the Caribbean or in Canada. The representatives of New York and Pennsylvania might conceivably see their way clear to approving of such an accord, their states’ commercial leanings tending to favor any agreement that promised opportunity for profit, but the New England states might as easily claim to see in such a pact a concerted Southern effort to disrupt their accustomed mercantile superiority. “This is only petty animus,” their representatives in the Senate might accordingly claim, “A jealous attempt to gain an advantage for themselves while our own merchants suffer for a lack of commercial opportunities. The great empires of Europe will not tolerate making agreements with the same nations as their rivals, and the representatives of the South have selfishly chosen to prejudice their own interests over those of the commercial heart of this nation.” Concessions might be made, to be sure, provided all parties come to agree that the accord was never intended as an instrument of spite. But, then again, they might not, the result of which would be the rejection of a potentially lucrative trade agreement at the behest of a minority of Senators representing a minority of the American population. For a nation which would claim for itself the mantle of liberty and justice, this would seem to be a result at once unjust and potentially dangerous.

    Bearing the possibility of such an outcome in mind, Messrs. Wilson and King accordingly believed that requiring a two-thirds majority for the ratification of treaties to be both inadvisable and unnecessary. Inadvisable, as Mr. Wilson mentioned, because it would place far too much power in the hands of a minority of the American people, the result of which might end up being the complete erosion of popular trust in the very notion of an American republic. And unnecessary, as Mr. King mentioned, because the President would act as a check on Congress in their own right. What King meant by this, almost certainly, was that the threshold of treaty ratification need not have been so high because the chief executive was intended to play an integral role in the relevant process from start to finish. If the Senate were to posses sole the responsibility for approving treaties, it might indeed make good sense to require a two-thirds majority for ratification. Setting the relevant threshold at only a simple majority would allow as few as fourteen Senators representing less than half of the total population to grant the approval of Congress to a series of legally binding treaty directives with potentially wide-ranging consequences. But the Senate, of course, was not to possess this power. As mandated by the text of the proposed constitution, the upper chamber of Congress was permitted to review and provide their consent only to such agreements as the President saw fit to present them. And since the President was to set to be the only officer in the entire federal government who could claim to represent the whole of the American people, their role in the treaty-making process might be considered a form of “pre-clearance.” It would be permissible, in short, for only a simple majority of Senators to vote to approve a given treaty because said treaty had necessarily already been approved by the one magistrate in the entire country who could claim a national mandate.

    In the moment, as it happened, no one took this argument up. Or, at the very least, they did not take it up directly. The next argument to be offered, however, did represent something of a philosophical counterpoint. Wilson and King, recall, had shown themselves to be both distrustful of the Senate and willing to place their confidence in the President as the common representative of the American people. A minority in the Senate, they said, should not be allowed to obstruct the vital business of the nation, while the office of President, they said, could be trusted to ensure that no treaty placed before the Senate for approval failed to account for the best interests of the population. James Madison’s response to these assertions – if, again, response is the right word – was to give voice to a substantially divergent set of sentiments. But first, to the apparently unanimous approval of his colleagues, he, “Moved to insert after the word “treaty” the words “except treaties of peace” allowing these to be made with less difficulty than other treaties [.]” That Messrs. Wilson and King appeared to support this alteration is substantially unsurprising. It was their assertion, after all, that a two-thirds threshold represented an unnecessarily high barrier against the passage of potentially critical international agreements. Madison’s suggestion that treaties of peace might be approved by only a simple majority accordingly addressed this concern, at least in part. But Mr. Madison, as it turned out, had further changes to suggest.

    From seeming to offer solace to those who believed that the President had an important role to play in the treaty-making process – namely as an agent of restraint upon the authority of the Senate – the gentleman from Virginia thereafter proceeded to propose something that seemed calculated to offend these very same individuals. Madison, it was thus recorded,

Moved to authorise a concurrence of two thirds of the Senate to make treaties of peace, without the concurrence of the President. The President he said would necessarily derive so much power and importance from a state of war that he might be tempted, if authorised, to impede a treaty of peace.

Evidently, as far as Madison was concerned, the role to be played by the President within the treaty-making process should have been a source of suspicion rather than comfort. Oh, perhaps the chief executive could be counted on when it came to treaties of commerce and the like, but treaties of peace? As the Virginian explicitly noted, the President stood to derive far too much unchecked power from the existence of a state of war to grant them too much leeway when it came time to sue for peace. Granted, it wasn’t entirely clear how the Senate might go about forming a peace treaty on its own initiative given that most of the foreign policy machinery of the national government was to rest in the hands of the executive branch. Would the upper house choose its own negotiators? Would Senators simply attend to the business themselves? Madison did not say. But what was clear was how little comfort the gentleman in question derived from this one aspect of the President’s authority. Better, he seemed to think, to allow the Senate to bypass the chief executive entirely in the event that enough of its members agreed to do so.

    The immediate response to Mr. Madison’s proposal was understandably somewhat mixed. Pierce Butler of South Carolina spoke up immediately to offer his support, and a short time later would give voice to a very interesting justification. But before he could do so, Nathaniel Gorham and Gouverneur Morris first made clear their abiding skepticism. Gorham, for one, “Thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the President, but of the Legislature.” Morris then proceeded to add that he also, “Thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests.” The crux of both of these arguments, of course, was that the President’s powers within the context of a state of war actually weren’t to be feared as much as Madison avowed that they should be. How was the President supposed to take undue advantage of their war powers if it lay with Congress to make the relevant declaration? A conspiracy between these two entities might conceivably give rise to some species of military tyranny, it was true, but how likely were Congress and the President to find their interests so aligned? Gorham did not say. Nor did he pay any heed to the notion that an ill-designing President might seek to take advantage of a war they did not start for the purpose of further empowering themselves.

    And then, of course, there was the aforementioned Mr. Morris, who seemed to think that the President’s role as the superintendent of national affairs absolutely required them to play some part in drafting treaties of peace. Was it possible that this superintending authority might conceivably be abused? Was it possible that some future President might attempt to use their war powers in a way that was anything but harmless? Morris, also, did not say. But while this conspicuous silence might seem to indicate a sense of cupidity on the part of the gentleman from Pennsylvania and his colleague from Massachusetts, this need not have necessarily been the case. More than likely, rather than being too naïve for their own good, Morris and Gorham were simply of the opinion that the President should not have been a source of fear and suspicion. They and their colleagues had created the office to serve a particular purpose, after all, and it doubtless seemed strange to them to then fetter it with myriad restrictions for fear of what some future occupant might do. If the executive branch was to function as the chief organ of the nation’s foreign policy, they doubtless reasoned, then it made little sense to burden it with a great many caveats and qualifications, thus lessening its effectiveness. 

    It was at this point that Pierce Butler finally gave voice to the reasons behind his aforementioned support for Madison’s cited proposal. He was, he said, “Stenuously for the motion, as a necessary security against ambitious & corrupt Presidents.” And as evidence of the kinds of ambitious and corrupt behavior he hoped to guard against, he made mention of two instances from recent European history. The first, as Butler put it, was, “The late perfidious policy of the Statholder in Holland [,]” while the second was, “The artifices of the Duke of Marlbro’ to prolong the war of which he had the management.” The gentlemen said no more about either of these allusions, unfortunately, leaving it up to his audience to piece together precisely what it was he meant. Luckily for those of us otherwise unfamiliar with all the myriad ins and outs of 18^th century European history, a little research would seem to provide a fairly obvious set of explanations. In the first instance, Butler was almost certainly referring to a series of events which took place in the Dutch Republic between about 1780 and 1787 known collectively as the Patriottentijd. And in the second instance, he was unquestionably speaking about the actions taken and the opinions expressed by John Churchill, 1^st Duke of Marlborough, during the closing phase of the War of the Spanish Succession (1701-1714).

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.