The Purpose and Powers of the Senate, Part XVI: Maladministration and Misdemeanors

    Having settled, as of September 8^th, the nature of the Senate’s responsibilities in the realm of foreign policy, the final major issue touching upon the authority of that selfsame body which the assembled delegates took up before adjourning for the day had to do with another instance in which the upper house would act as something more than a legislature. Granting the Senate the ability to weigh in on international treaties and vote upon executive nominations effectively transformed the chamber into a kind of state-appointed advisory council to the office of President. But there was more that certain delegates felt that the upper house of Congress could accomplish – a further purpose which its members might serve – beyond simply acting as a check on executive discretion. Lest a President, in their four years, abuse their power to such an extent that waiting for the next election to be rid of them would place an intolerable burden upon the American people, the chief executive of the United States needed to be removable at any time. The mechanism which the Framers adopted for this purpose, impeachment, was one which had its origins in British parliamentary procedure. As the House of Commons possessed the right to charge an officeholder with a given crime and the House of Lord the right to try them, so would the House of Representatives claim the right to levy charges and the Senate maintain the right to hold a trial. But while this represented but one of many adaptations of British administrative procedure in which the Framers knowingly indulged, the implications of thus empowering the Senate gave rise to certain questions given the increasing scope of its responsibilities. With the upper house of Congress set to take a much more active role in several different areas of public policy than was at that time the case in Britain with the House of Lords, certain of the Framers were naturally given to wonder whether the Senate was really the best place to hold a trial of a public official.

    Specifically, it was the potential trial of a President which had become an object of concern for certain delegates. Granting such a power to the Senate was bound to affect the relationship between one and the other. The exact terms of the relevant indictment needed to be chosen very carefully. Virginia’s George Mason was the first to raise this point, notably in reference to the aforementioned British parliamentary procedure. “Why is the provision restrained to Treason & bribery only?” he asked, quoting specifically from the language of the existing draft constitution.

Treason as defined by the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.

Pursuant to these observations, Madison further recorded, Mason moved to add the phrase “or maladministration” to the draft immediately after the word “bribery.” For reference, the “Hastings” in question was one Warren Hastings (1732-1818) of the East India Company, a colonial administrator in British India who was famously impeached in 1786 and whose trial was not concluded until 1795. Mason’s declaration that Hastings was not guilty of treason – though he had been charged with embezzlement, extortion, and coercion – was doubtless meant to draw attention to the fact that such a narrowly-defined crime was not necessarily a very useful means of punishing misconduct. Bills of attainder were far more flexible in this regard, being acts of law which declare that a particular person guilty of a crime. But as Mason noted explicitly, they had been forbidden by the proposed constitution, in no small part because of their notorious use in British America in the years preceding the Revolution. His solution, therefore, was to expand the scope of impeachment beyond what the present draft declared, specifically so as to include the rather vague offense of “maladministration.”

    Elbridge Gerry, as seemed his custom, was quick to second Mason’s motion. But James Madison, his fellow Virginian, questioned the wisdom of such broad terminology. Treason was a crime with a very specific significance, though the exact means by which it was defined tended to vary by jurisdiction. And while bribery could and did on take many different forms, it did always come down to the illicit exchange of one thing for another. But what was “maladministration,” exactly? It could mean administration that was provably dishonest, which would potentially indicate that some manner of fraud had been committed. But it could also take on the character of something more like a judgement of value. Someone who was guilty of maladministering their sphere of responsibility might be said to have acted inefficiently according to some pre-defined standard of efficient operation. Or, to be yet more relativistic, they might be said to have simply “done a bad job.” Granting that, in the context of private enterprise, being dishonest, inefficient, or simply bad at one’s job are generally held to be valid grounds for dismissal, elected officials tend to operate within a different structure of assumptions. To be “bad” or “inefficient” as an elected public servant may be reasonable grounds for being voted out of office, but they tend not to figure into discussions of impeachment and removal. The reason for this, as Madison put it, was really very simple. “So vague a term [,]” he said, as maladministration, “Will be equivalent to a tenure during the pleasure of the Senate.” To make “doing a bad job” an impeachable offense, in effect, was to allow the upper house of Congress to remove anyone from any post at any time based on its members subjective evaluation of their individual performance.

    In response to Mr. Madison, Gouverneur Morris was substantially dismissive. In reference to Mason’s proposal to expand the grounds for impeachment to include incompetence, he said that, “It will not be put in force & can do no harm. An election every four years will prevent maladministration.” The fundamental assumption underpinning this claim, of course, was that no President would perform sub-optimally knowing that their job prospects were on the line. And there was something to this within the specific context of the original draft version of the Constitution. Prior to the ratification of the Twenty-Second Amendment in 1951, any given individual – having met the relevant age and citizenship requirements – could serve an unlimited number of terms in the office of President of the United States. Bearing this in mind – and as Mr. Morris pointed out – every President would be forced to continually make a choice as to their future in that role. Do they want to run for another term or will they retire at the end of their present term? Granted, a particularly nefarious and ill-designing President might concoct some means of staying in office indefinitely without ever having to face re-election, but this – in light of the various safeguards put in place- would seem an unlikely thing to succeed. No, the real question would seem to come down to either running or not running. If they choose to run, then it will be as Morris said; they will do their best to avoid accusations of maladministration. And if they conversely choose to retire, then it doesn’t matter how inefficient, dishonest, or incompetent they are; in four years’ time, they will surely be gone. The introduction of a two-term limit – pursuant to the aforementioned amendment – has somewhat complicated the calculus. Namely, it would seem to allow for a second term in which President might take rather drastic measures to stay in power or else behave in a less than forthright manner, knowing, as they do, that their upcoming retirement is mandatory. But such an outcome would seem about as unlikely now as it was in 1787, though certain of the safeguards mentioned above have been shown to be significantly less sturdy than they might have seemed in the past.

    Pursuant to the aforementioned criticisms, Mr. Mason then consented to alter the terms of his proposal. Rather than add the phrase, “or maladministration” after the word, “bribery” in the text describing the mechanism of impeachment, he instead suggested the insertion of the phrase, “or other high crimes and misdemeanors.” And on the motion thus altered, the vote came out decisively in the affirmative. Only three states out of eleven chose to cast their ballot in opposition – being New Jersey, Pennsylvania, and Delaware – while the remaining eight all voted in favor. Given that Mason’s approved terminology was little more specific than that to which Madison and Morris objected, this might seem a strange outcome, but the slight change of verbiage doubtless made all the difference. As discussed above, the word “maladministration” had a rather subjective tinge. It might, true enough, indicate criminal dishonesty, but then it might just as well describe simple incompetence or inefficiency. The phrase “high crimes & misdemeanors” conversely spoke to matters of far graver significance. Granted, these were not precise legal definitions. Unlike treason, which was a crime whose definition was literally spelled out in the draft constitution, a high crime or misdemeanor were not a specific species of offense. But they did, at the least, indicate the essential character of the act in question. A President who found themselves impeached, convicted, and removed from office in consequence of having committed either a high crime or a suitably damaging misdemeanor could not be said to have simply performed their duties poorly or with rank inefficiently. Rather, they will have had to commit come manner of offense which was either a crime in fact – under the laws of the United States – or a crime in spirit as agreed upon by a majority in the Senate. The exact nature of the offending act would still be subject to deliberations in Congress, but the language in question would inevitably narrow its scope. For this reason, to be sure, the assembled delegates voted to approve.

    Notwithstanding this brief show of consensus, however, there were still significant issues to be settled in the realm of Congressional impeachment. James Madison gave voice to one of these when he rose to speak following the aforementioned vote. Though he and his colleagues were largely in agreement as to the terms under which impeachments could be brought, the Virginian nevertheless,

Objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemensor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

This, to be sure, was no minor complaint, but one which Madison had rather hinted he was preparing to make. As discussed above, he took issue with Mason’s attempt to insert the word “maladministration” into the impeachment clause because he felt that, “So vague a term will be equivalent to a tenure during pleasure of the Senate.” This was, to be sure, a critique of the specific terminology which Mason sought to deploy, and one which succeeded in having said terminology retracted. But it could also be taken as an argument against the fitness of the Senate to try impeachments at all. As he noted in his latter pronouncement, “The President under these circumstances was made improperly dependent.” Evidently, regardless of the criteria by which a chief executive might be impeached in the House of Representatives, Madison felt that allowing the Senate to conduct the resulting trial threatened to create an improper relationship between the two branches of government. The Senate, he no doubt feared, might use the threat of impeachment to exact concessions from a President. And a President, at the same time, might seek to weaken the Senate as a means of preserving their term in office. It would be better for all involved, he concluded accordingly, for impeachment trials to be handled by the Supreme Court of the United States, or else a special tribunal of which, “That should form a part.”

    While it might seem like a given for the impeachment trial of a high official like the President to be conducted under the auspices of the nation’s highest judicial authority – i.e., the Supreme Court – Gouverneur Morris was quick to point out that Madison’s proposal to that effect was actually more fraught with complications than the latter seemed inclined to admit. Indeed, as far as Morris was concerned, “No other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted.” This wasn’t to say that Morris favored the idea of a Senate trial wholeheartedly. On the contrary,

He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

As with Madison, Morris was effectively elaborating on a concept that he had put forth previously. In response to Mason’s aforementioned talk of maladministration, the Pennsylvanian observed that granting the Senate the ability to remove a President for incompetence would have no net result one way or the other. Being forced to face re-election every four years regardless, canny executives would act accordingly and poor ones would be removed by the voters. Morris’s subsequent response to Mr. Madison’s proposal effectively took this assumption as its basis. If the impeachment trial of a President absolutely had to be held in the Senate – which Morris felt that it did, owing to the relatively small number of high court justices and the ease with which a majority could be bought – then no one need have worried about the integrity of the Senators in question. Since the voters could be depended upon to punish incompetence themselves, the members of the Senate would only ever rise to the occasion in the event that a crime had been truly committed.

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

    Having left the previous day’s session seemingly in doubt as to the Senate’s reliability, the fact that the debate of September 8^th opened on a somewhat contentious note should perhaps not come as a surprise. Some amount of agreement had ostensibly been reached, to be sure. For one thing, the discussion of the previous day appeared to settle the issue of how the Senate and the President were to cooperate in the establishment of treaties. Madison had failed to convince his colleagues that the upper house ought to possess the right to approve of treaties of peace without reference to the President, but he had least secured their agreement for a simple majority threshold for the approval of such agreements. But then, as the next day’s debate got underway, two delegates almost immediately raised such objections as to throw the whole subject into question once more. Rufus King of Massachusetts, for one, “Moved to strike out the “exception of Treaties of peace” from the general clause requiring two thirds of the Senate for making Treaties [,]” thereby seeking to reverse a decision that had previously been agreed to nem. con. And then, but a moment later, James Wilson of Pennsylvania added his own wrinkle to the proceedings. It was his wish, he said, that, “The requisition of two thirds to be struck out altogether. If the majority cannot be trusted,” he continued, “It was proof, as observed by Mr. Ghorum, that we are not fit for one society.” Between these two motions, one might fairly argue, most of the previous day’s work was set to be undone.

    With Mr. King’s motion as the basis of the ensuing discussion, the first of the delegates to speak was Pennsylvania’s Gouverneur Morris. Contrary to his colleague representing the state of Massachusetts, Morris believed that the clause in question was bound to serve at least two useful purposes. On the one hand, since it would allow a simple majority of Senators to approve of a treaty of peace, such a provision would accordingly prevent a consensus of as much as fifty-nine percent from being forced to admit their powerlessness when attempting to move a given agreement. In any other context, a fifty-nine percent majority would be capable of securing any motion or proposal it cared to, but that same majority – if the clause in question was struck out – would be confronted with defeat and embarrassment upon attempting to end a war by way of diplomacy. This, Morris held, would be a truly disagreeable outcome, from a moral perspective if from no other. But there was also, as it happened, a more pragmatic view as well. If a majority in the Senate – but one which did not reach a two-thirds threshold – desired to approve of a treaty of peace and failed, that same group might in turn attempt to use its numbers to achieve the outcome it desired in the realm of regular legislation. If, for example, a frustrated Senate majority, unable to move a treaty of peace, instead voted in favor of cutting off funding for the nation’s armed forces, the results might probably have been disastrous. Granted, it would be hard to imagine a group of Senators willingly endangering American servicemembers for the purpose of drawing a given armed conflict whose ending they sought to a definitive conclusion, but Morris was nevertheless correct in pointing out that the possibility definitely existed. If a Senate majority was prevented from acting in this one policy area in exception to all others, displeasure and resentment – and whatever outcome such feelings produced – were very likely to be the result.

    Unsurprisingly, given his cited antipathy for the whole concept of a two-thirds threshold, Morris’s fellow Pennsylvanian James Wilson also expressed his disagreement with striking out the clause in question. But while Morris approached the subject from the perspective of a potentially frustrated Senate majority, Wilson sought to point of the likely emergence of a powerful and unrepresentative Senate minority. “If two thirds are necessary to make peace,” he thus observed, “The minority may perpetuate war, against the sense of the majority.” What he meant by this, of course, was that if the sealing of a treaty of peace by the Senate required a majority vote of at least two-thirds of those seated, little more than one-third might be said to hold the balance of power. Indeed, it might be far fewer, depending on the opinions held by the various Senators. In a Senate in which all thirteen states hold two seats each, giving a total of twenty-six Senators altogether, a two-thirds majority would come out to seventeen. If ten Senators of these twenty-six were dead-set in favor of a treaty of peace, nine were dead-set against it, four were leaning in favor, and the remaining three were entirely unconvinced, which group holds the advantage? The ten wholly in favor of the treaty and the four leaning in that direction account for a simple majority between them, but they cannot secure the peace they desire without convincing all three of the undecideds. Does this kind of scenario not place an undue amount of power – the ability, as Mr. Gerry pointed out on the 7^th, to give away fishing rights or cede territory – in the hands of only three people?

    In point of fact, given that every state was to enjoy equal representation in the Senate, these three people might represent an even smaller fraction of the population than their relative numbers might imply. If every Senator represented the same number of people, three of them might claim to speak for one-ninth of the American people. But as the Senate, by design, was intended to grant equal weight to all states regardless of population, these three might instead represent the smallest among them – these being, as of 1780, Rhode Island, Delaware, and Georgia. Taken together, these three states, with a combined population of approximately one hundred and fifty thousand, would account for only one-seventeenth of the nation’s total population of two million six hundred thousand. Assuming that one Senator from each of these states constitute the three wavering votes, should the small fraction of the American people that these men represent be permitted to makes decisions on behalf of the rest? Decisions involving territorial secession, war reparations, or the continued suffering of American soldiers? James Wilson was of the opinion that this should absolutely not have been the case. The minority, he said, must not be allowed to perpetuate war against the sense of the majority. As true as this was within the specific context of the Senate, it was surely truer still in terms of the broader population.

    Interestingly enough, North Carolina’s Hugh Williamson made what was essentially the opposite case to that his colleague Wilson by way of much the same logic. Responding specifically to Wilson’s initial premise and Morris’s seconding thereof, he argued that even under normal circumstances in the Senate, “There may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace.” In terms of raw numbers, this accounting was substantially accurate. With twenty-six Senators in total, a quorum – that is, the smallest number necessary to transact business – would come out to fourteen, a simple majority of which would indeed be only eight. But while allowing this majority of eight Senators to approve a potentially wide-ranging treaty of peace might seem a preferable alternative to allowing as few as three Senators to hold the balance of power under the terms of a two-thirds threshold, the same rationale which made the latter outcome appear unpalatable spoke little better for the former. Empowering eight Senators in this way might appear to be preferable to empowering three, but even an eight-man majority might represent less than half of the American population. Such was the nature of the Senate, after all, that just more than half of just more than half of its total membership might conceivably represent a far smaller fraction that these ratios would otherwise indicate. Consider, by way of example, some of the same population figures which were deployed above. The eight smallest states as of 1780 were New Hampshire, Rhode Island, Delaware, Georgia, New Jersey, South Carolina, Connecticut and New York, the combined population of which was approximately nine hundred and seventy thousand. With a total contemporary US population of two million six hundred thousand, a simple Senate majority comprised of one Senator from each of these eight specific states could claim to represent only about one-third of the American people.

    There was no reason to believe that the numbers would always work out in this one specific way, of course. If the matter under discussion was a treaty of peace, it would seem likely that a greater number of Senators than just a bare quorum would make a point of appearing. And while the appearance of a bare quorum would require a majority of only eight Senators to approve of such a treaty, the resulting consensus might instead include those members who represented the eight largest states rather than the eight smallest. Indeed, it would seem quite unlikely, on the face of it, that this particular grouping of Northern states and Southern states, those who depended on slavery and agriculture and those who were primarily commercial or mercantile, would find common cause. Nevertheless, the possibility did exist. Just as a simple Senate majority might seek to exorcize its frustration at failing to surmount a two-thirds threshold by seeking to withhold military resources during a conflict which it wished to end, a majority of the eight smallest states – representing, as aforementioned, only one-third of the population – might approve of a treaty of peace whose terms could have severe consequences for the whole of the American people. Williamson’s intention, bearing this simple fact in mind, seemed to be increase the likelihood that the constituents represented by a Senate majority voting in favor of a peace treaty would actually constitute a majority of the American people as whole.

    A two-thirds Senate threshold, while it might indeed have ended up playing into the hands of only a fraction of the seated members, was also far more likely to include the representatives of at least half of the total population. Granted, when one once again examines the figures cited previously, the shortest route to seventeen votes – two from each of the eight smallest states and one from the next-smallest, North Carolina – would amount to one million two hundred and fifty thousand or just under half (forty-eight percent) of the total. But if the same vote was being held with only a bare quorum, a two-thirds threshold – to the tune of nine votes, one each from the nine smallest states – would potentially amount to the same overall percentage. And bearing in mind that this selfsame arrangement of states is more than a little artificial, the likelihood of the remaining larger states being included would seem to increase the probability that a two-thirds threshold would yield an actual majority in terms of the represented population. There were no guarantees, of course; no way of ensuring that every vote on a treaty of peace was approved by the representatives of a majority of the American people. But this, within the context of the draft constitution as a whole, was rather par for the course. Examining just about any clause or provision in detail was likely to reveal potential edge cases or worst-case scenarios. Such was the nature of most any codified governing charter intended to rationalize the administration of that most irrational beast, mankind. Williamson’s intention, therefore, was simply to make the emergence of a truly representative Senate majority as likely as possible whenever the Senate was called upon to approve a treaty of peace. As a two-thirds threshold seemed a fairly reasonable way to accomplish this, he naturally supported it and spoke against efforts to the contrary.

    Elbridge Gerry, it turned out, was thinking along the same lines as Hugh Williamson. When it came his turn to speak, he also made a point of drawing his colleagues’ attention to, “The danger in putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing, perhaps, not one fifth of the people.” His math, as the cited figures make clear, was ever-so-slightly off. Even the smallest simple majority possible – being one Senator each from the eight smallest states – could claim to represent slightly over one-third of the total population. But Mr. Gerry can certainly be forgiven for not having had access to accurate demographic data. And his miscalculation, for that matter, did not lessen the cogency of his argument. A simple majority in the Senate, as Mr. Williamson had pointed out, might conceivably represent less than a majority of the American people. That such a small portion of the electorate – by choosing state legislators who, in turn, appointed Senators – should have been able to decide on behalf of the majority of their fellow citizens how such important matters as were regularly contained in a treaty of peace were ultimately settled truly was a most disagreeable notion. Erecting a two-thirds threshold might not have closed off this eventuality completely, but it would at least have made it substantially less likely from one treaty vote to the next.

    At this point, the conversation at hand having thus far been concerned exclusively with ideal composition of a majority in the Senate for the purpose of approving a treaty, the parameters of the debate rather started to break down. Delegates who had previously held their tongues began openly questioning the basic premise of the discussion itself, others attempted to ram through their preferred proposals in spite of them having been previously denied, and the whole affair came to an abrupt halt with a final vote that more or less restored things to where they had been at the beginning of the day’s business. It made for a rather tumultuous exchange, to be sure, but one which nevertheless seemed to spur the formation of a final, durable consensus. Roger Sherman of Connecticut set things off in a rather dramatic fashion by making it know that, contrary to what his fellow delegates had been discussing for the better part of two days, he, for one, “Was agst. leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a proviso that no such rights shd. be ceded without the sanction of the Legislature.” Such an admission placed Sherman well outside the conceptual boundaries of the discussion at hand. The assembled delegates had previously agreed that the Senate was best suited to evaluate and vote upon treaties negotiated by the executive in no small part because the House of Representatives was thought to be too large, too unwieldly, and too partial to the interests of the most populous states. And yet, in spite of the several votes that had been held which affirmed this consensus, here was Sherman attempting to tear it all down. And what’s more, he sought to do so without even providing an explanation. He did not say why he preferred not to leave the establishment of treaty rights to the Senate, or why he believed – against ample evidence to the contrary – that this responsibility was best allocated to the House. On the contrary, he simply asserted that he was against the former and for the latter, as if that was all his fellow delegates would need to hear.

    Amazingly enough, this did seem to be all that Gouverneur Morris needed to hear in order to change his tune entirely from supporting a simple majority vote in the Senate to casting the Senate aside altogether. As recorded by Mr. Madison, Morris, “Seconded the ideas of Mr. Sherman.” But then Madison himself, who had been among the most strenuous in favor of allowing the Senate to vote upon treaties recommended by the executive – to the point of even suggesting that the Senate might vote upon treaties of peace entirely on its own initiative – made an apparent attempt to keep the conversation on track. He did this by observing, in reference to Mr. Sherman’s preference for allowing the House to weigh in on the establishment of treaty rights, “That it had been too easy in the present Congress to make Treaties altho’ nine States were required for the purpose.” The intention of this remark was presumably to draw attention to how easily the Continental Congress had approved of the treaties that had been placed before it over the course of the preceding decade in spite of the fact that nine of thirteen states were required to voice their agreement in order to do so. Granting that the idea of nine of thirteen states agreeing on anything during the 1780s is a fairly remarkable one, it nevertheless remains unclear precisely what else it was Madison was trying to communicate. Congress had ratified several international treaties during the period in question, notably those establishing relations with Sweden, Prussia, and Morocco. And at the same time, American diplomats had been involved in discussions with the governments of several other states in North Africa for the purpose of securing the release of hostages taken prisoner by local pirates and establishing the regular payment of tribute to stave off further attacks. But what had any of this to do with the fitness – or not – of Congress to ratify treaties? Did Madison find the terms of any of these particular agreements unpalatable? Was he embarrassed that his country had so quickly given in to the threat of piracy? Did he believe that the Senate, placed in the same role as the Continental Congress, would exercise a more suitable combination of fortitude and forbearance? Again, it is not clear, and the fact that Congress, under the auspices of the Articles of Confederation, voted by state rather than by representative makes it even less so. Why should he have argued against the example of the “present Congress” at all when the body most alike to it under the terms of the proposed constitution was to be his favored Senate?

    Regardless of whatever Madison was actually trying to say, the evident effect of it was to close off the avenue of discussion that Roger Sherman had attempted to open. Though Gouverneur Morris had explicitly seconded his call for the House to become part of the treaty process, the vote which immediately followed did not take Sherman’s motion as its question. Rather, it returned to the proposal that Rufus King had put forward when the day’s business first began – i.e. that of excepting treaties of peace from the two-thirds majority requirement in the Senate. According to the resulting tally, King has read the room well. In spite of the fact that the previous day had ended with a majority in favor of allowing treaties of peace to be ratified in the Senate by a simple majority – per Mr. Madison – the majority now favored the opposite tack entirely. By a count of eight states to three – with only New Jersey, Delaware, and Maryland voting against – peace treaties were no longer to be except from the two-thirds threshold. But rather than move on to another topic in the face of this evident show of unity, several delegates instead persisted in attempting to secure a majority vote for their own, often directly contradictory proposals. Messrs. Wilson and Dayton, for example, immediately moved that the two-thirds threshold – which the majority of their colleagues had just voted to uphold – be struck down entirely, resulting in another vote by which the assembled delegates – to the tune of nine against, one in favor, and one abstention – showed their attachment to the status quo. This same exchange arguably repeated itself a moment later when Messrs. Rutledge and Gerry introduced yet another proposal which their colleagues then proceeded to vote down by a wide margin. In this case, the purpose of the motion was to ensure that, “No Treaty be made without the consent of 2/3 of all the members of the Senate-according to the example of the present Congs.” But when it came to a vote, the same numbers appeared as before: eight opposed, three in favor.

    The intent of this last motion, it bears noting, was specifically to define a majority in the Senate for the purpose of ratifying international treaties. As Mr. Williamson had pointed out at some point earlier in the day’s discussion, a simple majority, under tradition quorum rules, would amount to only eight Senators in total. A two-thirds threshold would raise this number to nine, but this was still a very small number in light of the potential scope of a treaty of peace. Rutledge and Gerry’s proposal would have abandoned the traditional quorum rule – whereby a legislative body may transact business as normal as long as at least fifty-one percent of its members are present – and instead required a majority of, “2/3 of all the members of the Senate” for a vote of approval. This would have raised the threshold on all successful treaty votes from a minimum of nine votes to a minimum of seventeen, thereby increasingly the likelihood of a truly representative majority. This, recall, is exactly what Mr. Williamson had argued in favor of, and what Mr. Gerry had seconded, scant moment before. Rutledge and Gerry’s proposal would accordingly have further solidified a rule which their colleagues had only just agreed to adopt – or re-adopt, as the case may be. But while the fact that it was voted down might seem to indicate that the majority was as swiftly turning against the two-thirds rule as they had only recently voted in its favor, the truth was likely somewhat more mundane. Though there seemed to be – for the most part – substantial agreement among the assembled delegates that a two-thirds threshold on Senate treaty votes was indeed preferable to one which would have given the same power to only a simple majority, it was also undeniable – at least for the foreseeable future – that distance and context was bound to affect how many Senators might be in a position to report for a given vote.

    This was, after all, the late 18^th century. Not only was road infrastructure spotty at best – especially in rural areas – but travel was virtually impossible between certain regions of the country during certain times of the year. Bear this in mind, it would not be all that difficult to imagine a scenario in which fewer than seventeen Senators were able to appear for a treaty vote but among whom a majority still existed in favor of approval. Suppose that, after a long and arduous process of negotiation, a treaty is finally sealed between the United States and some foreign belligerent. A draft of the treaty is delivered at the first possible opportunity for the appraisal and approval of Congress, but it also happens to be the beginning of the winter season. Congress is out of session, all the various Senators have gone home, and a special session will need to be called in order for the vote to be held. No one wants the conflict in question to drag on any longer than it has, so a session is indeed called and summons are dispatched. But as a result of a sudden snow squall, blocked mountain passes, or generally beastly winter conditions, only ten or twelve Senators are able to make the journey in a reasonable amount of time. Under traditional quorum rules, these twelve are enough to transact business. And, as it happens, ten of these twelve have also made it clear their intention to approve the treaty that has been submitted to their scrutiny. Under the terms of the Constitution, however – thanks to Messrs. Rutledge and Gerry – only, “2/3 of all the members of the Senate” counts as a majority for the purposes of approving a treaty. Ten votes are not enough. The Senators could wait, of course, to see if any more of their colleagues arrive. But while military campaigns in the 18^th century tended to be put on “pause” during the winter, there was no guarantee that the resulting delay might not cost more American soldiers their lives. And even if no fighting occurred in the meantime, the soldiers that had already been dispatched would still need to be paid. One way or another, delay would come at an expense.  

    Without knowing for certain that this kind of hypothetical was on the minds of the assembled delegates when they voted to reject the proposal of Rutledge and Gerry, it would not have been in the least bit out of character if it had. More than once, the men who answered the summons to Philadelphia in the spring of 1787 had made plain their awareness of the need to balance principle with pragmatism. And so, while most of them might have agreed with Mr. Williamson’s assessment that the Senate’s tendency to distort the actual weight of a majority ought to be taken into account when allocating the power to approve treaties of peace, they were also doubtless conscious of the practical implications of erecting an absolute two-thirds threshold without any allowance for circumstance. To be sure, the set of conditions necessary to create the kind of situation described above were unlikely to ever coincide. Then again, so were the circumstances which might produce only a nine-member two-thirds majority under the traditional quorum rule in the Senate. In consequence, it no doubt appeared to the majority of these delegates then present that the best thing to do was simply maintain the two-thirds threshold while refraining from carving out an exception to the quorum rule. There may have remained, under the circumstances, the possibility of an unrepresentative majority, but such was almost certainly bound to be the case at some point in the history of Congress under the Constitution. Rather than choose to address every minute chance of something potentially going wrong – and creating, in the process, a framework of government so rigid as to very soon become constrictive – the Framers instead opted for a course of flexibility, simplicity, and durability.

    The next several sets of motions and votes that followed seemed very much to prove out the strength of this collective conviction. After the defeat of Rutledge and Gerry’s proposal, Roger Sherman then asserted that, “No Treaty be made without a Majority of the whole number of the Senate.” And while Mr. Williamson attempted to shoot this motion down by observing – rather pointedly – that, “This would be less security than 2/3 as now required,” the question was nevertheless put to a vote after a seconding by the aforementioned Mr. Gerry. After the resulting tally came out once again in the negative – albeit by a close margin of six against and five in favor – James Madison opted to keep the ball rolling by offering his own amendment along much the same lines. Specifically, he moved that, “A Quorum of the Senate consist of 2/3 of all the members.” Without calling into question the sincerity of the man’s underlying motives, this proposal on the part of Madison was plainly and inarguably flawed. His purpose, no doubt, was to ensure that no Senate meeting was ever gaveled into session without it being possible for the attending members to approve a treaty. If two-thirds of the total members were required to be present before any business could ever be transacted, there would accordingly never come a time when it was mathematically impossible for a two-thirds majority to coalesce. The only trouble with this plan, of course, was that it would prevent the Senate from acting in any official capacity unless two-thirds of its members were present. Granting that this might not seem such a high bar to clear here at the beginning of the 21^st century, it most certainly would have been at the end of the 18^th.

    As discussed above, long distance travel at the time that the various delegates were meeting in Philadelphia could be an exceptionally arduous undertaking, due in equal parts to the effects of inclement weather, the slow average speed of most modes of transportation, and the relatively primitive state of contemporary public infrastructure. Bearing all of this in mind, it would have been quite unlikely that a national legislative body like the Senate – which drew people from across the nation to one single location at varying distances from their homes – would have been gaveled into session with its full membership present more than once in every handful of years. Rather than hazard the journey on anything like a frequent basis – at risk of life and limb, potentially, or at least to the detriment of their private interests and estates – Senators whose homes states were particularly distant from the nation’s capital would doubtless have appeared only as often as they felt was absolutely necessary and left their colleagues nearer at hand to carry out the chamber’s day-to-day business. In consequence, while a simple majority of Senators might manage to attend to their official responsibilities with some regularity, a two-thirds majority was bound to be a rarer occurrence. This basic fact was why the quorum rule was erected in the first place. Truly representative government is a noble ambition, and one worthy of every reasonable effort to see it through. But before the era of rapid, cheap, and widely available transportation – before what came to be known as the “annihilation of time and space” by the introduction of steam-powered travel in the 19^th century – it was functionally unavoidable that any given representative assembly was going to operate at less than full membership for most of its life. Establishing a means by which said assembly could operate at partial strength without disregarding the essential principle of majority rule was accordingly essential.

    Madison’s proposal flew in the face of this basic admission to lived reality. If the Senate could only operate if two-thirds of its members were present, how often would it ever be gaveled into session? Perhaps, under such conditions, it might meet once in a given year, vote upon every piece of legislation that had been placed on its docket, and then split apart again for another twelve month period. Meeting so infrequently, one wonders how closely the assembled Senators would be inclined – or able – to scrutinize the items placed before them. Would they pour over every line of the bills and treaties submitted for their approval, or would they fairly quickly develop an expedited procedure intended to get their various members back to their homes as soon as possible? And what if, under these specific circumstances, a special session was summoned six months after the previous regular session for the purpose of ratifying a treaty of peace? How many Senators would make the journey right in the middle of their extended recess? A majority? Entirely possible. A two-thirds majority? Substantially unlikely. But while the traditional quorum rule would allow just a bare majority to proceed to a vote, Madison’s two-thirds quorum would require a much rarer assemblage. In consequence, while Madison’s intention, once again, was both plain and theoretically sound, his attempt to counter the potentially unrepresentative nature of a simple Senate majority would have almost certainly, if approved, made the Senate far less effective as a whole.

    The events which immediately followed the introduction of Madison’s aforementioned motion would seem to demonstrate the extent to which his colleagues were aware of its less desirable implications. Gouverneur Morris, for one thing, shot back that the Virginian’s plan, “Will put it in the power of one man to break up a Quorum.” Granting that Madison then very astutely pointed out that, “This may happen to any Quorum [,]” the mood of those assembled seemed nevertheless to be arrayed against him. The subsequent vote proved this out, though by a surprisingly slim margin. Of the eleven state delegations that cast a ballot, six voted against the motion – New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, and Delaware – and five voted in favor – Maryland, Virginia, North Carolina, South Carolina, and Georgia. While this came to the same total as the previous vote on Roger Sherman’s cited motion, the composition of these two specific groups would seem to be a significant one. The majority, who voted against Madison’s proposal, was comprised entirely of northern states. The minority, who voted against it, was comprised entirely of states in the south. The northerners in the room, whose states increasingly favored commerce over agriculture, doubtless anticipated the passage of more trade treaties with foreign nations. In consequence, perhaps they viewed any amendment that would hamper the Senate’s ability to approve such agreements as antithetical to the whole concept of a strong central government capable of advocating on behalf of its citizens’ economic interests. Meanwhile, the southerners then present, whose states favored agriculture over commerce and saw territorial expansion as a necessary facilitator of the former, quite likely viewed foreign trade agreements as a source of concerted anxiety. Outnumbered in the Senate – if only by a handful of votes – they may have accordingly favored such measure as would keep that same body from easily approving bi-lateral treaties. In this way, they might have hope to prevent their northern counterparts from giving away land on the western frontier along the disputed Mississippi River, or more generally from granting trade concession which favored northern commerce at the expense of southern farming.

    Whatever the logic that underpinned this final tally, it can at least be stated for a fact that it marked the end of the discussion of the Senate’s power to make treaties. After many exchanges and many votes spread out over the course of two days of debate, the assembled delegates had finally settled upon a mechanism by which the upper house of Congress was to provide input into foreign agreements. Some of the Framers were more inclined to hold firm to certain philosophical principles, specifically as they declined to grant the executive too much autonomy or power or sought to ensure that a majority in the Senate represented a majority of the American people. Others, meanwhile, made a point of drawing attention to certain practical considerations, from the unique suitability of the executive to attend to foreign affairs to the need to balance majoritarian principles with material circumstances. In the end, the final outcome represented a balance of each of these approaches. Indeed, this sense of compromise is surely what led the assembled delegates to grant treaty-making power to the Senate in the first place. Such agreements could not be put to referenda. Such a mechanism was far too unwieldly to be practical. And the House of Representatives, while true to its name, was both too large to be very efficient and was bound to be dominated by the largest states seated therein. The executive, it was true, might have handled matters themselves, but this would place a tremendous amount of additional power in the hands an already powerful officer of state. The Senate accordingly represented both the pragmatic choice and the most philosophically sound. It was less unwieldly than the House and more deliberate than the executive; simple thresholds could be put in place to make the emergence of a true majority more likely; and it could even punish a delinquent executive by other means if they were determined to abuse their diplomatic responsibilities. No one, to be sure, was prepared to argue that thus empowering the Senate represented the perfect solution to the issue at hand. But, then again, it didn’t need to be. So long as it met enough of the Framers’ philosophical and practical requirements – and so long as its most obvious flaws were relatively unlikely to make themselves known – then it would remain unchallenged in its role as co-administrator of foreign relations.

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

    Exactly how the War of the Spanish Succession concluded, and what ultimately became of the Duke of Marlborough, are matters for another discussion entirely. The moment of greatest significance in the tale has finally been arrived at, as far as the topic at hand is concerned, and the import of Mr. Butler’s cited allusion can at last be discussed in full. The example which the gentleman from South Carolina cited in favor of granting the Senate a distinct check upon the President’s authority to make treaties, recall, were the so-called, “Artifices of the Duke of Marlbro’ to prolong the war of which he had the management.” The war in question, it has by now been made clear, was the War of the Spanish Succession, and the “artifices,” such as they were, were the duke’s supposed efforts to foil the negotiation of a treaty of peace circa 1711. Marlborough, of course, was not the chief executive of the contemporary British state, and accordingly did not possess any formal authority within the realm of diplomacy. In this sense, he would not seem to compare all that closely to a President whose powers were set to extend into both the diplomatic and military spheres. He was, to be sure, the commander-in-chief of Her Majesty’s Forces during the period in question, thus placing him at least partially on the same level as the American chief executive, but he possessed no rights or powers when it came to the negotiation of peace. He might have tried, as his enemies alleged, to spoil the relevant proceedings either personally or by his actions on the battlefield, but it was not required of him in the least to add his stamp to the final result. The Crown’s negotiators were solely responsible for hashing out the terms and Parliament was responsible for either approving them or not.

    Rather than look just to Marlborough himself in an effort to understand what it was Butler was driving at, therefore, one must instead direct their attention to the essential nature of his position. While the duke was not himself the chief executive of the British government at that time, his role as the appointed commander-in-chief made him an extension of she who was. Queen Anne was not about to lead troops into battle in the Netherlands – not simply because she was a woman, mind you, but because contemporary European monarchs tended not to do such things – and so she delegated the task to John Churchill, Earl of Marlborough. Parliamentary approval was not required for this appointment, nor could Parliament force the post to be reassigned. The Crown had sole power to command the armed forces, and sole power, if it wished, to choose a proxy in its stead. Marlborough was that proxy, and so enjoyed an enviable – if at times somewhat tenuous – position within the hierarchy of the contemporary British state. He could not, as aforementioned, initiate, guide, approve, or dismiss any efforts undertaken to negotiate the terms of peace. Nor was it his exclusive responsibility to present any such draft agreements for the evaluation of Parliament. But while this arrangement would seem to have placed a clear limit upon Marlborough’s authority within the military sphere – permitting Parliament, as it did, to end the conflict over which the duke was formally responsible – the fact that Marlborough served at the pleasure of the Crown rather complicated the whole idea of Parliament acting as a check upon the authority of the royal executive.

    At some point, as discussed above, during the later stages of the War of the Spanish Succession, the Tory government led by Robert Harley determined that the continued service of the Duke of Marlborough in the role of commander-in-chief was inimical to their intention to secure a negotiated peace with France. The man was a patriot, to be sure, and an exceptionally able tactician and strategist, but his priorities, from the perspective of the Tories, were deeply misplaced. Not only did he remain inclined towards pursuing the conflict’s original objective of preventing the ascension of a French prince to the Spanish throne – placing him, along with the contemporary Whigs, in the “No Peace Without Spain” camp – but the relationships which he had forged among the command structure of the Grand Alliance – with Queen Anne’s heir, George, Elector of Hanover, chief among them – made him unwilling to abandon his allies in the midst of a conflict that was just then reaching its decisive phase. The duke, in short, would simply have to go, and for preference before he succeeded in potentially spoiling the peace. Under the terms of his appointment, however, Marlborough could not be removed from his post by Parliament. Indeed, no authority could dismiss him but the queen herself. As long as she remained of the opinion that the duke should stay where he was, Marlborough would stay where he was, free to exercise all the powers of the office of commander-in-chief. And so, since the Tories could not force his removal any more than they could force the queen’s, it fell to them to instead convince Her Majesty that the man’s services were no longer needed.

    Harley, as aforementioned, did succeed in this effort, and Marlborough was removed from his post in December of 1711. But while the peace that the Tories had so desperately sought was eventually enacted with the sealing of the Treaty of Utrecht, the fact that Queen Anne could have refused to cooperate with her Tory ministers would seem to embody the core concern later expressed by Pierce Butler in 1787. Parliament may have been free to debate and to approve of any treaty which its members felt best served the national interest, but if the Duke of Marlborough was determined to scuttle the whole enterprise, there did not seem to be any way of stopping him. Only the queen could give him orders, and only the queen could dismiss him from office. And if the queen decided, for whatever reason, that the duke was too valuable as a soldier to simply remove, Harley and his fellow ministers would seem to be possessed of little recourse. They could, conceivably, have attempted to remove Her Majesty. Britain had witnessed such overthrows before, with the most recent having occurred less than twenty years prior. But this would have constituted a rather extreme course of action, and one which might easily have sparked an inexcusably destructive civil war. No, the plain truth of it was that the Tories were pretty well stuck. Either Anne agreed to remove her commander-in-chief or she refused. And if she refused, Marlborough would do as he willed, sinking the peace, dragging out the war with France, or quite possibly bringing about a catastrophic defeat for Great Britain.

    Now, to be fair, the government described by the proposed constitution was not set to much resemble that of early 18^th century Great Britain. The United States of America would not have a crowned sovereign at its head, unelected by the people and virtually uncontrollable by their representatives. The office of chief executive and commander-in-chief were to be held by the same person, and that person was to be chosen by a poll of the population at large. But while this kind of arrangement would seem to represent a tremendous improvement upon the particularly monarchic aspects of the British model of government, there might still have been some danger inherent in how certain specific powers were assigned. Under the terms of the draft which the assembled delegates had compiled as of September 7^th, for example, the President was to be possessed of absolute command over the nation’s armed forces as well as sole authority over the negotiation of treaties. Such treaties, it was true, were required to be submitted to the Senate for approval, but unless or until they were, the Senate was powerless to act. And in some ways, this presented an even more troubling power dynamic than had been the case during the time of Marlborough and Queen Anne. Parliament, during the War of the Spanish Succession, could at least conduct negotiations and debate and approve a treaty of peace without any need to defer to the office of commander-in-chief. As such a treaty was bound to drastically and suddenly curtail the scope of the authority of the officer in question, this made more than a little sense. And while it was true that someone like Marlborough could have used what power he still possessed in an to attempt to prod his nation’s enemies into voiding the negotiated peace, Parliament – in the event that the queen refused to remove her favorite general – could still have tried to put the treaty to a vote in the hopes that its passage came in time enough to pull the war out from under the erstwhile duke’s feet. Hardly an ideal solution, to be sure, but quite possibly an essential one.

    Under the terms of the aforementioned draft constitution, however, no such opportunity would have been afforded to Congress. Because the commander-in-chief of the arms forces was also to fill the role of chief decider of foreign policy, and because no treaty could even be considered by Congress unless it had been referred to that body by this selfsame executive officer, there would seem to have been no “safety valve” in place by which a legislative branch might attempt to reign in an ambitious President. A President, therefore, who was intent on using his powers as commander-in-chief during a time of war to transform his temporary position into a permanent one would evidently have to do little more to prevent a sudden loss of authority than simply refuse to submit any draft treaties to the scrutiny of Congress. Congress itself, of course, would retain the ability to actually declare war, which point Nathaniel Gorham had made during the discussion now being considered. But how much of a safeguard, really, would this be against a chief executive whose determination was equal to their cunning? Might not a President committed to becoming a perpetual monarch in all but name achieve a declaration of war via the manipulation, blackmail, or bribery of members of Congress? Was it not similarly conceivable that they might attempt to use their admittedly significant powers within the military and foreign policy spheres to maneuver a majority in Congress into declaring war of its own members’ accord? And what then? Even if the plot were revealed to them after the fact, how might the membership of Congress reign in the powers of a President during a time of war when the ability to end said war lay primarily in the hands of that selfsame President?

    There was impeachment, of course, which power lay beyond the government of Robert Harley during the events of the war with France. The Duke of Marlborough was not impeachable, or at least could not be removed via impeachment, and so remained outside the control of Parliament at that time. But a President, according to the draft constitution, was always subject to being charged with certain crimes by Congress and, upon conviction for those crimes, being removed from office by the Senate. Might not a Congress, having been confronted with a warmongering, power-mad President, thus exercise their constitutional right to impeach and remove them? Well, yes, to be sure, they could. But one rather wonders at how an impeachment would play out in the court of public opinion at a time when the nation is in the midst of a state of war. How easily might a canny President paint the actions of Congress as an act of unjust persecution? Or as a betrayal, even, while the country struggles under the cruel yoke of a foreign conflict? Indeed, such an attempt by Congress to justifiably remove an otherwise dangerous individual from a position of unparalleled power might potentially play directly into that same individual’s hands. “Congress is in the pay of the enemy,” they might claim. “Martial law must be declared and its membership must be arrested.” And while such an action might appear extreme in the sober light of peace, it bears remembering how often war has been used to justify the most egregious breaches of personal liberty and the law. Provided that the general population is maintained in a perpetual state of fear – punctuated, as necessary, by bouts of fervent patriotism – one rather shudders to think what an ambitious President might thus accomplish.

    All of this necessarily leads back to the cited allusion which Mr. Butler had attempted to make and the position in whose service he was seeking to make it. The Duke of Marlborough, as aforementioned, was a very ambitious man and an intelligent one. And while his dedication to his country was never really in question, he was nevertheless prepared to throw his weight around when he felt it necessary to the course of his career. He betrayed his king and longtime patron, James II, for example, when he felt the winds of fortune had shifted against the House of Stuart in December of 1688, maintained contact with this same individual in order to exert leverage upon his new sovereign, William III, over the course of the 1690s, and had no qualms about manipulating certain of his allies during the War of the Spanish Succession in order to achieve the end result which he felt was most desirable. By 1711, the man was among the most powerful in all of Europe, sitting at the head of a victorious allied army and possessed of the confidence of half the monarchs of the Continent. But for all his power, and the many things he could do with it, he served at the pleasure of a single individual. This fact, Pierce Butler doubtless intended to impress upon his fellow delegates, made him, in some ways, an exceptionally terrifying figure. Parliament, to be sure, could approve a treaty of peace without his say so, but it was between the general and his royal patron whether they would actually get the chance. The United States of America was set to avoid such an outcome in part, specifically by ensuring that the commander-in-chief of the nation’s armed forces was subject both to periodic election and to removal from office in the interim. But what if this selfsame commander-in-chief used their authority in the foreign policy sphere – granted to them separately and evidently without reference to their authority in the military sphere – to cultivate a continuous state of war during which their already ample powers would be expanded even further? Would this not make them even more dangerous than the Duke of Marlborough? Would this not reduce the United States government to something even less secure than that of aristocratic Great Britain?

    Mr. Butler seemed inclined to answer these questions in the affirmative, leastwise if his various assertions are any indication. And his solution, as previously discussed, was to grant a jot of extra authority to the Senate. In most cases, he agreed with his colleague James Madison, it was perfectly acceptable to allow the President to take the lead in terms of foreign policy, with draft treaties thus secured to be submitted to the approval of the Senate. But during wartime, when the authority of the President was to be substantially augmented in their role as commander-in-chief, Butler also felt it prudent to permit Congress to move independently to secure a treaty of peace. To wait for the President to offer such a treaty to Congress, he affirmed by way of historical allusion, would have been tantamount to allowing a general of great success and renown to decide for themselves when to dispense with their power and prestige. The recent actions of the Dutch Stadtholder had shown this to be a foolhardy arrangement at best. And while the British parliamentary system had proved itself, during the events of the War of the Spanish Succession, to be somewhat more capable than the Dutch Republic at dealing with otherwise unchecked military authority, the actions of the Harley ministry vis-à-vis the Duke of Marlborough nevertheless demonstrated that even the resilient British model stood to benefit from additional safeguards. The carving out of a grant of power to the Senate which might have allowed its members to bring an end to a state of war in the face of an uncooperative President was exactly that, albeit adjusted to fit the specific American context.

    Under the terms of the arrangement for which Pierce Butler was advocating, an American executive might still have attempted to use their powers as commander-in-chief to pursue some manner of self-aggrandizing objective, no doubt, but they would not have been able to do so indefinitely. By allowing the Senate, upon consideration, to pursue and to approve of a treaty of peace on its own authority, Congress would accordingly gain the ability to curtail the most wide-ranging powers of a warmongering President. Granted – and depending on the situation – the Senate might still conceivably end up in a kind of race with the chief executive to see whether its members could end the state of war before the President made it impossible for them to do so, but even a failed effort would not necessarily have been in vain. Having shown themselves to be peace-minded, and having made clear the intentions of the commander-in-chief, the assembled Representatives and Senators would doubtless have found it much easier to convince their constituents that impeachment and removal was necessary. In this sense, an exclusive Senate vote on treaties of peace would form part of that body’s larger responsibility to keep the office of President in check. If the upper house of Congress was to be trusted with the ability to potentially convict and remove a chief executive from office, should it not also have been granted the power to curtail the abuse of executive authority? If its members were to be granted the right to punish the commission of certain “high crimes and misdemeanors,” mightn’t they have been additionally tasked with preventing these kinds of abuses from occurring in the first place? Even if they failed, they’d be in a better position to hold the offender to account. Having witnessed, firsthand, the unjust actions of a President intent on holding on to their expanded war powers, they would surely be both willing to expedite their removal and quite capable of doing the same.

    Notwithstanding the strength of Butler’s cited allusions – which were, between them, both very recent and very familiar – not everyone agreed with his and Madison’s take. Elbridge Gerry, for one, held that, “In treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties.” Presumably, what he intended by this was that the President – being the representative of the whole population rather than any particular constituency – should have been included in any treaty discussions that touched on matters as sensitive and far-reaching as those often encompassed by a treaty of peace. Under the terms of such agreements, he argued accordingly, “The dearest interests will be at stake, as the fisheries, territory &c. […] there is more danger to the extremities of the Continent, of being sacrificed, than on any other occasion.” Based on these specific examples, one might fairly assume that Mr. Gerry viewed the President as more likely to guard the rights of some of the smaller states, or those with specific economic concerns, or those which bordered the frontier, than would the Senate in isolation. North Carolina’s Hugh Williamson also objected to Madison’s proposal, though in much simpler terms than Gerry. All that he said by way of response was that, “Treaties of peace should be guarded at least by requiring the same concurrence as in other Treaties.” One supposes, lacking evidence to the contrary, that what he meant by this was that commerce no more important than the settling of an international conflict. If the approval of the President was to be required for the passage of a treaty concerned with the former, it made more sense than not for it to be required for one concerned instead with the latter.

    In the end, when Madison’s proposal was finally put to a vote, the less involved arguments of Gerry and Williamson seemed to win out. Of the eleven delegations that submitted a vote, eight were against the motion and only three – Maryland, South Carolina, and Georgia – were in favor. Mr. Butler, it seemed, managed to carry his fellow South Carolinians along with him, but Mr. Madison had failed to do the same when it came to his fellow Virginians. The result, of course, was that the Senate’s treaty powers would remain as they were. Evidently, while the assembled delegates were inclined to allow for some legislative oversight in the arena of foreign policy – much as that which was possessed by the contemporary British Parliament – they were not necessarily inclined to allow the President to be cut out entirely. Chalk it up to suspicion of the Senate, perhaps, or possibly a surfeit of trust in the office of commander-in-chief. Maybe it was as Gerry had argued; that the President, by the very nature of their office, would be more inclined to pay heed to the needs of marginal communities than would a chamber where such priorities were bound to gain very little traction. Or perhaps it was Mr. Morris who hit the nail on the head. If the President, he observed, was to be, “The general Guardian of the National interests [,]” than it made little sense to exclude them from proceedings of the highest consequence for the American people. Either the office of President could be trusted, in essence, or it couldn’t. That the delegations in attendance voted against allowing the Senate to circumvent the President’s authority in the context of treaties of peace would seem to indicate that they were generally of the former opinion. That, or they held the Senate to be even less worthy of public confidence.                 

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

    Closer to home than the recent events which had taken place in the Netherlands – if also less neat as a parallel – the behavior of the “Duke of Marlbro” during the War of the Spanish Succession (1701-1714) also served as a potentially instructive example in the eyes of South Carolina delegate Pierce Butler of the kinds of executive behavior which he and his colleagues ought to have disqualified at all costs. The individual so named was none other than John Churchill (1650-1722), 1^st Duke of Marlborough, Commander-in-Chief of the Forces, and one of the most celebrated soldiers in the history of Great Britain. And the “artifices” in question, by which the duke sought to, “Prolong the war of which he had the management” represented exactly the kind of behavior which Mr. Butler most feared a prospective President might indulge in unless their authority was suitably checked. The relevant conflict, it was true, had been concluded by treaty some seven decades prior to Butler’s reference to the same. Among the men then assembled at the Philadelphia Convention, only a scant few – like Benjamin Franklin, born in 1706 – could claim the events in question as having occurred during their lifetime. All the same, Butler’s citation of the Duke of Marlborough would doubtless have struck a chord with his colleagues to an even greater extent than did his aforementioned reference to events in the contemporary Dutch Republic. But for the outcome of the Revolution, after all, the inhabitants of the United States would still have been British subjects. And as it stood, the lot of the delegates then in attendance had been raised and educated in a distinctly Anglocentric fashion. For Butler to name “Marlbro” was to thus invoke a common point of reference; a personage and a significance that scarcely warranted explanation. 

    For those of us who are less familiar with 18^th century British history than the average American statesmen of 1780s, of course, some degree of clarification would appear to be in order. John Churchill, for one thing, was at once a much-heralded and much-benighted figure in the history of Great Britain whose boundless ambition led him alternately to enjoy great successes in one moment and suffer great reverses in the next. The eldest surviving son of minor aristocrat and Member of Parliament Sir Winston Churchill (1620-1688), John had watched his father suffer as a result of the latter’s support of the Royalist cause during the English Civil War (1642-1651) and determined accordingly never to bind himself to any patron as a matter of principle. He developed, as a result, something of a mercenary outlook which served his desire for social advancement very well but also often led to those in power questioning his intentions. His elder sister’s affair with the Duke of York, for example – the man later to ascend the throne as King James II (1633-1701) – led to his appointment as one of the duke’s pages while still an adolescent, and then to his commission as an ensign in the prestigious Foot Guards. This first appointment then led to a series of military postings by which the young Churchill steadily gained favor and fame. By the end of the 1670s he had risen to the rank of Captain; in 1679 he was elected to sit in Parliament; and by 1682, in recognition of his continued support for his longstanding patron, the Duke of York – whose status as both an avowed Catholic and the heir apparent to the British throne had precipitated a major political crisis in the late 1670s – he had at last been elevated to the peerage as Lord Churchill of Eyemouth. As it thereafter became increasingly clear that the duke would indeed ascend the throne, Churchill’s star seemed set to rise yet further than it already had.

    The latter half of the 1680s, it turned out, was indeed to be an eventful period in the life of the future Duke of Marlborough, though not necessarily in the way he imagined. His service to the Duke of York initially continued to pay dividends. Upon the latter’s elevation to the throne as King James II in 1685, for example, Churchill served as one of his principal officers during the failed rebellion that resulted – led by Charles II’s illegitimate son, the Duke of Monmouth (1649-1685) – and was thereafter rewarded with military promotions and a second title, that of Baron Churchill of Sandridge. Notwithstanding these favors, however, Churchill soon found himself in an increasingly uncomfortable position. Though the king, as aforementioned, was a devout – one might even say fervent – Catholic, his trusted protégé remained a dedicated Protestant, and time and again made it clear that he intended to remain so until the day he died. But while, in the immediate, this sense of conviction did not prove to be much of an obstacle for Churchill’s tireless sense of ambition, other Protestants in positions of power in the realm soon arranged matters so as to force the general to revaluate his prospects. Upon the invitation of several prominent statesman belonging to both major factions represented in Parliament, along with the support of Henry Compton (1632-1713), the sitting Bishop of London, William III (1650-1702), Stadtholder of the Dutch Republic and nephew of James II, invaded England in November of 1688 for the purpose of deposing his uncle and claiming the throne for himself.  As William was a Protestant, his arrival was viewed with relief by those who deeply distrusted their unapologetically Catholic monarch, and in very short order the king’s overthrow was all but accomplished.

    Churchill, at least on the surface, remained loyal to his long-term patron for far longer than many of his contemporaries. Indeed, it wasn’t until November 24^th, almost three weeks after William’s landing at Brixham, that he chose to depart the king’s camp with some four hundred men in tow. But while James took the desertion of among his most steadfast servants as a sure sign that his cause was well and finally lost, in actual fact Churchill had been contemplating an exchange of loyalties since before William’s arrival in England. Though not yet viewed by his contemporaries as being important enough to include in the initial invitation, the general nevertheless made it clear to certain well-placed English agents in the Stadtholder’s court that he would be quite willing to provide whatever assistance that William might require. In the end, Churchill’s desertion was about the extent of the service he rendered, but the new king was pleased enough that he determined to reward the general all the same. In consequence, upon the coronation of William III and his wife Mary II – who was also, incidentally, James’s daughter and eldest child – Churchill was granted a third peerage in the form of the Earldom of Marlborough, sworn in as a member of the Privy Council, and made one of the Gentlemen of the King’s Bedchamber. The next several years were spent occupying a series of senior military posts – during which time he reorganized the army and commanded an English expeditionary force sent to the Low Countries during the Nine Years War (1688-1697) – at the end of which the young general had accrued substantial fame and success. Victories in Europe, and against a resurgent James II in Ireland, had done much to burnish his reputation, and by the beginning of the 1690s he was among the most prominent men in the kingdom. The only trouble, as it turned out, was that King William didn’t trust him.

    Marlborough, in fairness, had rather publicly betrayed his longstanding patron when first he came into William III’s service. And while the king neither doubted the wisdom of his choice nor his value as a solider and strategist, he did come to find it difficult to place very much faith in a man whose loyalty was evidently so flexible. The general’s close relationship with Queen Mary’s sister and heir, Princess Anne (1665-1714), did not help matters much at all, particularly as the royal couple persistently failed to produce a surviving child. The king, as a result, began to show Marlborough a degree of disfavor, passing him up for promotions and refusing him certain awards, which in turn provoked the general to sow discontent in the armed forces. As all this was going on, Marlborough also sought to contact the exiled James II so that he might communicate his regret and seek a pardon for his actions in deserting him some years prior. In part, it has since been concluded, this likely constituted something on the order of an insurance policy on the part of the general. It was not necessarily impossible that James might successfully retake the throne, and Marlborough doubtless believed it prudent to ensure that his position would not suffer, come what may. But it also made sense, if William was determined to drive the general to the sidelines, for word to eventually reach him that one of his most popular officers remained in contact with his predecessor. Marlborough’s desertion, after all, had helped convince James to abandon his throne; perhaps the general might play this role again if his new liege continued to malign him.

    There was no second revolution, of course, which replaced James on the throne and deposed William in turn. Rather, owing to the further deterioration of their relationship, the king had Marlborough completely exiled from royal service. First, in the middle of January in 1692, Marlborough was stripped of his positions, relived of his appointments, and forbidden from appearing at court. Then, pursuant to a letter which came into the possession of the queen that was seemingly signed by the general and purported to seek the deposition of William and the restoration of James, Marlborough found himself placed under arrest and imprisoned in the Tower of London for five weeks. When it was revealed, at length, that the letter was a forgery, the general was accordingly released. Several more incidents like this followed, though none with consequences quite so severe. Marlborough had not, in fact, plotted the overthrow of William III, but he had been in contact with the former James II for some time, leading to somewhat frequent accusations that he was passing information to his former patron. This occurred first in 1694 when the disastrous defeat of one of Marlborough’s rival officers during a naval assault on the French port of Brest led to accusations that the defending garrison had been warned as a result of Marlborough’s correspondence with the former king. Then, in 1696, the general was again implicated in a plot to overthrow King William and replace him with King James, this time in cooperation with certain militant Jacobites operating in England. Notwithstanding Marlborough’s continuing and avowed relationship with the deposed James, however, neither charge was ultimately substantiated, and by 1698, William and Marlborough had managed to reconcile. The general’s ranks and his position on the Privy Council were restored and he was appointed to the prestigious position of overseeing the education of Prince William (1689-1700), son of Princess Anne and thus heir to the heir apparent.

    All of this is to say, in case the reader was perhaps wondering why they’d just been made to sit through the partial biography of a man who died over fifty years before American independence was even declared, that by the time the War of the Spanish Succession broke out in 1701, John Churchill, Earl of Marlborough, was in many ways a man on the make. His career, previously defined by success upon success, had been sidelined for some years as a result of the suspicions of his royal benefactor, and his sense of ambition undoubtedly spurred him to try to make up for lost time. Another war with France provided the ideal opportunity, and Marlborough seized it with characteristic alacrity. The king of Spain, it seemed, had died without issue, and chose to name as his successor the grandson of King Louis XIV (1638-1715). As the ascension of a French prince to the Spanish throne would seem to have augured the eventual union of France and Spain – the latter of which, while increasingly enfeebled, was still possessed of a wide-ranging set of possessions in Europe, the Americas, and even in the Pacific – the great powers of the era were accordingly determined to intervene. The Hapsburg rulers of the Holy Roman Empire were particularly anxious to stymie the ambitions of their long-term rivals the Bourbons of France, and England, under William III, was eager to join them. This fact was altered not at all by the unexpected death of the king in a riding accident in the spring of 1702. His sister-in-law and successor, Anne, was no less staunch in her antipathy towards a formal union of the Catholic monarchies of Europe. What William’s demise did change, however, were Marlborough’s near-term propositions. The newly crowned Anne was one of his staunchest supporters. His latitude of action had accordingly became greater than it ever had been before.

    Queen Anne did not waste time in showing Marlborough to be her favorite. In short order, the man was made Master-General of the Ordinance – the most senior permanent military position in the realm – a Knight of the Garter, and Captain-General – or Commander-in-Chief – of her majesty’s armed forces. These grants of authority effectively placed Marlborough, notwithstanding his relative youth and inexperience, among the highest echelons of the allied command structure, notably above certain generals in Dutch and Austrian service who had served for far longer and had many more victories to their name. In spite of his relative greenness, however, the general took to his newfound role with great cunning, always paying heed to the concerns of his nominal subordinates so as to ensure their timely cooperation. By the end of 1702, with the assistance of his allies, Marlborough had accordingly managed to outmaneuver his French opponent, the Duc de Boufflers (1644-1711), and capture a series of towns and cities in the Spanish Netherlands. The primary result of this first flush of victory, beyond its strategic importance, was the elevation of the general’s title by Queen Anne. No longer simply an earl, John Churchill was now the Duke of Marlborough. And while it was true that shortly after his elevation the man suffered a personal loss in the death of his son – thus seemingly to stymie any ambitions of laying the groundwork for an enduring dynasty – the war nevertheless continued to prove itself a tremendous boon for the duke’s once-stalled career.

    Among the campaigns that followed over the course of the conflict now known to history as the War of the Spanish Succession, perhaps none are more famous – or more commonly associated with the supposed brilliance of a single commander – than that which led to the much-memorialized Battle of Blenheim in 1704. The duke, having endeavored for two years by way of tact and persuasion to hold together the increasingly fragile alliance of nations dedicated to preventing a Franco-Spanish union, found himself at the end of 1703 with something of a crisis in the making on his hands. With the Hapsburg domains threated in the south by both the forces of the Franco-Bavarian alliance and a full-scale revolt in Hungary, it was not at all certain, less than three years into the conflict, whether the Austrians would be forced to prematurely withdrawal. But while Marlborough was eager to prevent such an outcome by marching his forces to the relief of his Austrian allies, the Dutch forces under his command were categorically unwilling to allow for a weakening of their position in the occupied Spanish Netherlands. The duke’s solution to this impasse was ultimately to mislead the Dutch. First moving his forces to the Moselle – a river which forms the southern border between modern Luxembourg and Germany – with full Dutch permission, he then slipped away, journeying south towards the Danube where he caught up with the Franco-Bavarians at Donauwörth (July, 1704) before then crushing them at Blenheim (August, 1704). The Bavarians were thereafter knocked almost entirely out of the war, Louis XIV’s hopes of an early victory were dashed, and the so-called “Grand Alliance” of the Austrians, the English, and the Dutch was decisively saved from disintegration.

    More accolades followed, though further such victories did not. Marlborough was granted a lavish estate by the queen in recognition of his triumph at Blenheim, for one thing, and in 1706, following the Battle of Ramillies in the Spanish Netherlands, Parliament confirmed his titles and made them perpetual on his heirs, male or female. Anne even agreed to allow the Hapsburg sovereign to make Marlborough a Prince of the Empire in gratitude for his inestimable service. But by the dawning of 1707, things had perceptibly begun to turn. Military setbacks and diplomatic controversies had led certain members of the reigning Tory government to begin to question Marlborough’s management of the British war effort to that point. And while he was not removed from his office amidst the cabinet re-shuffle that resulted, his standing amongst both his friends in Parliament and with the queen had definitely started to slip. Further successes, like at Oudenarde (July, 1708), did something to arrest this process. So too did the ascension of the Whigs to a position of power, their leadership being in favor of continuing the war while the Tories were increasingly peace minded. By 1710, however, the tables had turned against, with the Tories back in power, peace talks in the offing, and Marlborough held in suspicion by those he ardently professed to serve. When preliminary talks at Geertruidenberg came to nothing, the duke was accused by his detractors of interference. Clearly, they crowed, the general was fearful of what would become of him if the conflict should end. He had gained so much from it already, and a final peace would gain him little.

    There was, in point of fact, some truth to this accusation, though how much, exactly, is rather a matter of perspective. There was no denying that Marlborough had gained a great deal over the course of the conflict in question. At its beginning, he was but an earl and a general who had only recently regained the favor of his sovereign and was little known or remarked upon in the sovereign courts of the Continent. By 1710, conversely, he was a duke, a Captain-General, one of the leading figures of the Grand Alliance, and one of the most famous and well-respected soldiers in all of Europe. He had won an estate for himself in battle, and secured his titles, and was even heralded as a Prince of the Holy Roman Empire. Clearly, whereas in peace he had nearly found himself sentenced to death for treason, war had once more given him the chance to prosper and flourish. In consequence, while it may not have been politic to say so publicly, Marlborough on some level surely view the perpetuation of the war with France as synonymous with his own good fortune. There was also, no doubt, some amount of the duke’s pride on the line when it came to the subject of the conflict and its conclusion. In nine years, Marlborough had achieved great victories, saved the Grand Alliance from potential collapse, earned the respect of princes, kings, and emperors, and brought the French very nearly to their knees. He was accordingly hesitant, in light of the faith which his allies had come to invest in him, to acquiesce to a peace which might have ended up favoring British interests over those of its supposed partners. This latter concern was made all the more relevant when it became clear that the Tories were willing to allow a Bourbon king on the Spanish throne if it would bring the conflict to a close. The prevention of this exact outcome was the why the Grand Alliance had been formed to begin with, and Marlborough personally felt it something of a betrayal of the agreement for any settlement to be agreed upon which aimed to give the House of Bourbon what they had claimed for themselves all along.

    Bearing in mind these various personal and professional considerations, the Duke of Marlborough proceeded through 1710 and into 1711 more or less as he had since the war began. Plans were made among the allies, battle lines were drawn, the season’s campaign was launched with particular objectives in mind – this time into northern France – and a series of victories were won which dazzled contemporary observers. Arrayed against the Duc de Villars (1653-1734), one of the greatest of Louis XIV’s generals, Marlborough deployed a series of feints and forced marches that caught his adversary completely off guard and led to the stunning capture of the fortress of Bouchain. Having thus breached the French line of defense in a manner previously considered unthinkable, the duke had all but ensured that his forces would march on Paris in 1712 and carry the war into its final phase. Unfortunately for Marlborough and his colleagues in the allied command structure, however, the reigning Tory ministry led by Robert Harley (1661-1724) had no intention of allowing the conflict to progress to such an extreme. Harley’s government had worked throughout 1711 to secure what they believed to be a reasonable agreement between the belligerents which would bring the war to a close. Allowing Marlborough to march on Paris, the supporters of this effort were convinced, would surely spoil the entire effort and drag the war out further still. The Whigs, to be sure, offered their resistance to the plan, forcing Harley to ask Queen Anne to name a dozen new peers to the House of Lords to secure the passage of the resulting treaty. But even once this was accomplished, the problem of Marlborough himself remained. Unless the queen consented to remove him – which she showed no signs of doing – the Captain-General of Her Majesty’s Forces would surely never consent to abandon his allies or give up the strategic advantage which his cunning and determination had won.

    The solution which Harley and his Tory allies ultimately alighted upon was to publicly disgrace the duke via charges of corruption so that Anne would have no choice but to release him from her service. In part, they accomplished this through an application to the House of Commons. Charges were brought against Marlborough on two counts having to do with the misappropriation of funds, though in both cases there was clear precedent for a commander receiving such additional pay. And at the same time, in terms of public opinion, Tory satirist and pamphleteer Jonathan Swift (1667-1745) penned and published an excoriation of the Whigs, Marlborough, and Britain’s European partners entitled The Conduct of the Allies and of the Late Ministry in Beginning and Carrying on the Present War (1711) in which the duke was painted as a glory-seeking warmonger who cared little for the interests of the British people and far too much for his own. “Whether this War were prudently begun or not,” Swift accordingly observed therein, “It is plain, that the true Spring or Motive of it, was the aggrandising of a particular Family, and in short, a War of the General and the Ministry, and not of the Prince or People [.]” The work proved to be a fantastic success, selling over ten thousand copies by the end of 1712 and shifting popular and parliamentary opinion against Marlborough and in favor of peace. When Harley then approached the queen in December of 1711 to request that she dismiss her former favorite from his post, Anne felt she had no choice but to do as she was asked. Writing to Marlborough in her letter of dismissal, she accordingly made it quite clear that the nature of her decision was more political than personal. “I am sorry for your own sake [,]” she said, “The reasons are become so public which makes it necessary for me to let you know you have render'd it impracticable for you to continue yet longer in my service [.]”