by Ray Raphael
The popular branch alone could not check this drive for power. “The rich will take advantage of their passions & make these the instruments for oppressing them,” he stated. That’s why delegates needed to create a truly independent executive who could function as “the great protector of the mass of the people.” He could hardly protect the people against legislative usurpations if he owed his job, and his continuance in office through reelection, to the very legislators he was supposed to hold in check.
There was an alternative. If the executive was to be “the guardian of the people,” why not “let him be appointed by the people”? Delegates had long distrusted this concept, Morris not the least among them, but suddenly, driven by pure logic, he overcame his aversion—at least for the moment. If the people themselves chose their “protector,” and if they were the only ones empowered to keep him in office, he would be free to curb legislative abuse. That was the circuitous route that turned Gouverneur Morris, an even less likely democrat than James Wilson, into a champion of popular election of the executive.
Further, Morris warned that if the legislature held the power of impeachment, the executive’s independence would be even more seriously undermined. In that case, when the chief executive tried to check the legislature, legislators would simply remove him from office. But if impeachment by the legislature was not a desirable option, who could hold an inept or corrupt executive in line?
Morris’s reasoning here led him to uncharted terrain. If the executive was eligible to repeat in office, and if each term was short enough, the people themselves, by refusing to return him to office, would hold what amounted to the power of impeachment. That’s why Gouverneur Morris, who only two days before had argued that the executive should remain in office “during good behavior,” possibly for life, suddenly suggested that his term be only two years—a shorter period than any of the delegates had yet suggested. If an executive misbehaved or failed to perform his functions, he would simply lose the next election. Reeligibility and frequent elections, taken together, supplanted the need for impeachment and the problems it created. Unlike impeachment, Morris’s system would not subject the president to the whims of Congress, nor would it turn changes of leadership into cataclysmic events. Orderly transfers of executive authority, when necessary, would be built into the very fabric of the system.
Here at last was a plan that was totally interconnected, with each component—popular election, reeligibility, short terms, and “impeachment” only by the people through the electoral process—logically pinned to the others. Morris’s schema, radically more democratic than anyone but James Wilson had dared envisage, gave the people themselves a prominent place in the electoral process. Would this assembly of gentry dismiss it as out of the mainstream, as they did with Hamilton’s?
No, they took Gouverneur Morris seriously. When Morris moved at the end of his presentation “that the whole constitution of the Executive might undergo reconsideration,” the state delegations unanimously consented.
Something remarkable was happening. Through many of the prior debates, the delegates’ vested interests had shaped their positions to an embarrassing degree. They had been not disinterested leaders, as good republicans should be, but obedient representatives from small states or large, “carrying states” or those with less trade, states that depended on slave labor or those that did not, yet quite unexpectedly Gouverneur Morris, as aristocratic as any of the delegates, and as haughty in his demeanor, was moving in a direction that ran counter to his class interests. He challenged some of his very own prior notions. Openly, he was changing his mind, and following his lead, others granted themselves permission to do likewise.
As delegates reconsidered their prior positions, the arguments crystallized. With cold, hard logic, Morris had demonstrated how legislative selection required ineligibility for a second term, lest the executive saddle up to Congress to gain reelection, and ineligibility, in turn, required longer terms in office, so the executive would have enough time to become proficient at his job before being forced out. These elements belonged in a single package, while Morris’s proposed alternatives—popular election, reeligibility, and short terms—belonged in another. On the very first day of debating the executive office, James Wilson had suggested the very measures Morris was now presenting, but he did not fully demonstrate their interconnection. Now Morris showed there were two sets of choices, and delegates would have to select one of them.
The strongest argument remaining for the legislative-appointment rubric was the weakness of its chief alternative, popular election. While Morris, at least for the moment, appeared ready to accept Wilson’s radical concept, few others thought the people were capable of making a wise choice. Most delegates, though, were willing to entertain indirect election through intermediate electors. This idea had been presented by Wilson on June 2 but defeated soundly, and by Hamilton on June 17 but ignored. Now it fared better. By a vote of six states to three, with one divided, the convention decided the chief executive should be “chosen by Electors.” Then, eight states to two, the convention determined that those electors would be chosen by the state legislatures.* That still put the people themselves two steps removed from the chief executive, a safe enough distance.
Then, since the national legislature no longer chose the chief executive and he would not have to curry its favor, reeligibility did not appear so controversial. Two days earlier, reeligibility had squeaked through with a six-to-four vote; now, upon reconsideration, it passed by eight states to two, with Delaware and the key state of Virginia having changed their minds. Only the Carolinas resisted the tide.
Finally, with reelection possible, delegates decreased the seven-year term, which had been written into the plan on the first day of debating the executive office. They didn’t reduce it much, however, settling quickly on a six-year term, nine states to one; Morris’s idea of biennial elections was more than they could bear.
In a single day, delegates had altered the fundamental way they viewed the executive office. If we judge a speech by the votes taken soon afterward, Gouverneur Morris’s performance on July 19 was among the most effective of the summer. While he didn’t get his exact wish on all counts, he had reversed the thrust of the convention.
With hindsight, some of Morris’s ideas, echoing Wilson’s, were also the most “modern”: frequent elections of the chief executive by the people themselves. Within this convention of men who knew they needed to include “the people” yet hoped to keep the people’s role in the new framework tightly constricted, Morris’s and Wilson’s notions stand as democratic anomalies, stranger yet because of the standings and proclivities of their authors.
• • •
The next morning, July 20, delegates considered how many electors to allocate to each state. Elbridge Gerry presented a scheme whereby each of the three largest by population (Virginia, Pennsylvania, and Massachusetts) would select three electors, the next six in size two each, and the four smallest only one apiece. Was that really fair? Shouldn’t New Hampshire have two instead of one? Connecticut’s Oliver Ellsworth wondered. (A large number of New Hampshire residents had come from Connecticut.) Then Georgia should have two as well, said Georgia’s William Houstoun. Gerry’s formula was affirmed, although four small states, unhappy with their share, voted against it. The elector scheme was taking on a definite shape.
With the allocation of electors determined, Gouverneur Morris, along with Charles Pinckney, tried to continue along the lines taken the previous day by removing the provision on impeachment from the working draft. Now that an orderly process was in place for periodic reevaluation of the executive, impeachment was no longer necessary and should be dispensed with. Impeachment in any form, Morris argued, “will render the Executive dependent on those who are to impeach,” thereby undermining his independence and authority.
This time Morris met immediate resistance. North Carolina’s William Richardson Davie, who spoke only rarely at the convention, predi
cted that if the only way to remove a president from office was through an election, the chief executive “will spare no efforts or means whatsoever to get himself re-elected.” Impeachment was “an essential security for the good behavior of the Executive,” he concluded.
James Wilson, previously allied with Morris, broke their bond and sided with Davie. George Mason asked rhetorically, “Shall any man be above Justice?” Then Benjamin Franklin turned Morris’s argument on its head. Impeachment, the clever sage noted, was “favorable to the Executive” because without it the clearest path to removal was assassination. In that sad event, an executive “was not only deprived of his life but of the opportunity of vindicating his character.” Impeachment of the chief executive, on the other hand, would lead to appropriate punishment when “his misconduct should deserve it” or to “his honorable acquittal when he should be unjustly accused.” Franklin spoke the language of his colleagues, who professed to value honor above all else.
Edmund Randolph, who had favored a multiple executive and was still wary of concentrating power in the hands of a single executive, offered a convincing corollary to Franklin’s argument. Legal impeachment procedures, he said, would promote justice while preventing civil unrest:
Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections.
Some process for impeachment, Franklin and Randolph demonstrated, was necessary to the orderly functioning of government. This was precisely the sort of argument that would convince Gouverneur Morris, and it did. He had been outflanked, and to his credit he acknowledged as much. First he backed off mildly, admitting that “corruption & some few other offences … ought to be impeachable” but insisting that “the cases ought to be enumerated & defined.” Then, as the debate continued, he realized his prior stand against impeachment had depended on staging elections every two years, but the convention had settled on six-year terms instead. Noting that his “opinion had been changed by the arguments in the discussion,” he was now “sensible of the necessity of impeachments, if the Executive was to continue for any time.”
Still, the nuts and bolts of impeachment had to be worked out. How should impeachable offenses be defined? What should be the punishments? Who should initiate and conduct the trials? Morris weighed in on each of these. Bribery, treachery, corruption, and incapacity should be “causes of impeachment,” he stated. The executive “should be punished not as a man, but as an officer, and punished only by degradation from his office.” While these ideas closely approximated the final Constitution, Morris’s final suggestion did not fare so well. “We should take care to provide some mode that will not make him dependent on the Legislature,” he reiterated—but to no avail. The resolution to make the executive “removable on impeachment and conviction of mal practice or neglect of duty” passed easily, eight states to two. The resolution did not state specifically who was to do the impeaching, but the default mode was Congress, as was implicit in the original Virginia Plan that allowed Congress to choose the executive.
Other delegates, like Morris, hesitated to grant the power of impeachment to Congress, but what were the alternatives? Impeachment and trial by the Supreme Court? By a special panel of judges? By an executive council of some sort? No matter what particular body was granted the authority to remove the chief executive from office, the executive’s supremacy would be challenged and his independence undermined. The only group that legitimately outranked the chief executive was the people, as Morris had stated so clearly in his speech the previous day. America’s executive officer, he now proclaimed, “is not the King but the prime-minister. The people are the King.”
Having “settled” the issues of the executive’s selection, length of term, reeligibility, and possible impeachment, delegates discussed other matters for the better part of three days. Then, late on Monday afternoon, July 23, William Houstoun and Richard Dobbs Spaight moved “that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered.” Houstoun, from Georgia, and Spaight, from North Carolina, had no great philosophical concerns. They worried only about “the extreme inconveniency & the considerable expense, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.” Eight state delegations agreed “that tomorrow be assigned for reconsideration.” Only Pennsylvania and Connecticut dissented; Morris and Wilson, having finally prevailed four days earlier, would have preferred to let matters stand.
When “tomorrow” arrived, the backsliding began. Pleading hardship of the “more distant states,” which would bear the expense of dispatching electors, Houstoun moved that the “National Legislature” reclaim the job of choosing the executive. Here again was the same old debate. Four delegates spoke to Houstoun’s motion for “going back to the original ground,” as Hugh Williamson of North Carolina put it, and it was Williamson who probably carried the house, if any of the speakers did. Reelection was to be avoided at all costs, he said. The “Magistrate” would see himself as “an elective King, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children.” Only ineligibility would protect against that. Further, ineligibility would make legislative appointment once again feasible, since the executive, after assuming his office, would have no vested interest in pleasing Congress.
Houstoun’s motion passed by seven delegations to four. Five states that had favored electors less than a week earlier now changed their votes.† So the legislature would select the executive, as in Randolph’s original plan and as reaffirmed several times since, save only for the day of Gouverneur Morris’s persuasive speech. Few delegates were thrilled with this option, but that was the way it would be.
Immediately, Elbridge Gerry and Maryland’s Luther Martin moved “to re-instate the ineligibility of the Executive a second time.” That went with the territory, and so did a longer term—perhaps much longer. The motion for ineligibility thus led to a bidding war on term length:
William Davie of North Carolina: eight years.
Elbridge Gerry: fifteen years.
Rufus King of Massachusetts: twenty years. “This is the median life of princes,” he explained. (Madison, in his notes, hints that King might not have been serious.)
James Wilson, who opposed legislative appointment and ineligibility, was depressed by his defeat but would not surrender. If the executive could not be reelected, perhaps he should serve during “good behavior.” That would be better than cutting him off prematurely, he mused. Older men make better leaders—just look at the age of popes, he suggested, perhaps with a wink. Of course he didn’t really want to go that route; instead, in all earnestness, Wilson urged his fellow delegates to reconsider their reconsideration and reverse the previous vote.
Which prompted Gerry to give up. “We seem entirely at a loss on this head,” he confessed. Maybe, if they sent the matter to committee, people there will be able “to hit on something that may unite the various opinions.”
Right at that moment, James Wilson hit upon the answer. This had happened to him before, on June 2, but few others shared his excitement about that solution, the first proposal for special “electors,” which they deemed too confusing. His solution this time was stranger yet. The problem with legislative appointment, and particularly with reelection by the legislature, was that the executive would have to please the very fellows who elected him—but what if the executive could not determine who those fellows might be? “Not more than 15 of the National Legislature” could be selected, “not by ballot, but by lot,” and these would “retire immediately and make the election without separating.” No possibility of “intrigue” there, and hence less dependence. This was not yet “a digested idea,” Wilson admitted, bu
t he threw it out there anyway.
By lot! Imagine the mockery from people out of doors when they heard that the very wise men at the convention, after months of deliberation, had determined that the head of state for the nation should be elected by a small cadre of individuals who had been selected through mere chance. No appeal to the example of Athenian senators in ancient times would prevent the ridicule. James Wilson, by all acclaims one of the finest and most precise minds in America, was flirting with the bizarre.
So too was Gouverneur Morris, another great but desperate mind. Wilson’s idea “deserved consideration,” he said. “It would be better than intrigue.” Buttressed by Morris’s apparent support, Wilson fashioned his bright idea into a motion, but in the brief discussion that followed, other delegates revealed they were not overly thrilled. “We ought to be governed by reason, not chance,” Rufus King stated bluntly, affirming one of the cardinal principles of the Enlightenment. Wilson then admitted that this was hardly his preferred choice. “We ought to resort to the people for the election,” he said yet one more time, as if mere repetition might win the day.
