The Return of George Washington

by Edward Larson

  WHILE WASHINGTON POSED, Franklin worked his mediating magic in the Grand Committee. Hosting committee members for dinner on July 2 and then meeting with them at the State House on the third, Franklin proposed his version of the Connecticut Compromise. For small states, he offered “an equal vote” for every state in the Senate; for large states, he offered one member in the future House of Representatives “for every forty thousand inhabitants” plus the concession that all bills raising or spending money would originate in this lower house and could not be amended by the Senate. Presumably, this arrangement would protect the small states’ liberty and the large states’ money. Although each side objected to some part of the compromise, the committee agreed to submit it to the Convention, as Gerry explained, “merely in order that some ground of accommodation might be proposed.”59 After more bitter debate and some minor amendments, the Convention narrowly passed the compromise on July 16 and never looked back. Franklin’s greased language left three open issues: how would the limits on money bills operate, who are “inhabitants” for purposes of apportioning the House, and what constitutes an equal vote in the Senate. In the further debate, Washington deftly played a conciliating role.

  Surprisingly, the concession on money bills split the big-state delegates. Although intended to limit the power of the small-state-dominated Senate, some big-state nationalists like Wilson, Madison, and Gouverneur Morris feared that the provision would undermine that body’s ability to check democratic excess in the lower house. In August, after the bar against the Senate originating or amending money bills was included in the draft constitution compiled from provisions already approved by the Convention, these delegates pushed to remove it. Other big-state delegates viewed the concession as essential to their states’ interests, however. “To strike out the section, was to unhinge the compromise of which it made a part,” Virginia’s George Mason complained.

  Casting the deciding vote in a divided Virginia delegation, Washington first voted to strike the provision, but when the issue came up again five days later, he switched sides and carried Virginia with him. “He disapproved & till now voted against,” Madison wrote, but “gave up his judgment, he said, because it was not very material weight with him & was made an essential point with others, who if disappointed, might be less cordial in other points of real weight.”60 Ultimately, the Convention settled on language that surely pleased Washington: “All Bills for raising revenue shall originate in the House of Representatives: but the Senate may propose or concur with amendments as on other bills.”61

  The Grand Committee’s proposal to apportion the House of Representatives based on the number of a state’s “inhabitants” reopened the explosive issue of slavery. When the delegates originally accepted the principle of proportional representation for Congress, they simply agreed to allocate seats “according to some equitable ratio of representation,” which many believed should factor in both people and property since government was instituted to protect both.62 As a practical matter, because they had relatively more slaves and fewer free people than their northern counterparts, southern states would lose power under any allocation based strictly on free inhabitants. Factoring in property could help to equalize representation between North and South, but counting slaves as people would produce similar results. The problem with the later approach was, as some northern delegates noted, the South treated slaves as property, not people. If people were the sole basis for representation, Gerry bluntly asked when this issue first arose, “Why then should the blacks, who were property in the South, be in the rule of representation more than the cattle & horses of the North?”63

  In mid-June, when many delegates were still thinking in terms of an “equitable ratio” that factored in property as well as people, they easily accepted a plan proposed by Wilson and seconded by Charles Pinckney to apportion congressional seats among the states in proportion to the whole number of their free inhabitants plus “three fifths of all other persons,” meaning slaves.64 In devising this now shocking formula, the delegates were not thinking of slaves as having three-fifths of the moral worth of free persons but, in even less human terms, as having three-fifths of the property value of free people. Astonishing as it seems today, the so-called three-fifths compromise initially passed with only Gerry speaking against it, and he couched his opposition in terms of not wanting slaves “put upon the Footing of freemen.”65 Even Gouverneur Morris, who opposed expressly counting slaves for purposes of representation, accepted doing so as a rough gauge of property.66

  By mid-July, after Gerry’s Grand Committee proposed and the Convention agreed to allocate House seats based on population with one representative for each forty thousand inhabitants, no one could disguise the three-fifths rule as merely a means to factor in the relative worth of southern property. “Individuals” could only mean people. With tensions raised by the battle over equal representation, other northerners now joined Gerry in arguing that slaves should not count at all because their states treated them as property. “Has a man in Virginia a number of votes in proportion to the number of his slaves” Paterson asked in a rhetorical question addressed directly to Washington, “and if Negroes are not represented in the states to which they belong, why should they be represented in the General Government?”67 Even Wilson, who had proposed the compromise, observed that “the blending of the blacks with the whites” in allocating seats would “give disgust to the people of Pen[nsylvani]a.”68 South Carolina’s Pierce Butler and Charles Pinckney responded by demanding that slaves count as whole people despite their lack of rights. “The security that the South[er]n States want is that their negroes not be taken from them,” Butler thundered.69 Virtually no one expressed concern for the slaves. They became white men’s pawns in a North-South power struggle over representation.

  For those delegates principally concerned with preserving what had been gained to this point, the goal became getting the delegations back to the three-fifths compromise. Randolph, Madison, Ellsworth, and Charles Pinckney all tried at different points, and eventually succeeded after a week of wrangling. Washington played a part when, in the midst of this debate, a committee chaired by Gouverneur Morris proposed an initial allocation of House seats. Challenged by delegates who thought their states underrepresented, Morris explained that his committee used an estimate—really “little more than a guess,” he said—of population and property in allocating seats.70

  Washington promptly created another committee, which made a new allocation using the three-fifths compromise.71 In a similarly pragmatic move made near the Convention’s end, when some members urged that the limit on the number of representatives per state be lowered from no more than one for every forty thousand inhabitants to no more than one for every thirty thousand, Washington broke his silence on substantive issues. “It was much to be desired that the objections to the plan recommended might be made as few as possible,” he stated, and this change accommodated a general insecurity “for the rights & interests of the people.”72 With Washington’s endorsement, the amendment passed unanimously.

  Two added issues relating to slavery arose in late August, as Washington and other delegates pushed toward adjournment. The first involved imposing a twenty-year ban on Congress’s power to bar the importation of slaves; the second related to a proposed clause requiring free states to return fugitive slaves to their masters in slave states. By this time, Washington had new hope that the Convention would soon end successfully. “By slow, I wish I could add & sure, movements, the business of the Convention progresses,” he wrote to Henry Knox on August 19. “I am fully persuaded,” he added about the emerging Constitution, “it is the best that can be obtained at the present moment, under such diversity of ideas as prevail.”73

  Then, two days later, Charles Pinckney threatened that South Carolina would never ratify that document if it allowed Congress to limit the slave trade. Others made similar threats on behalf of the lower South states of Georgia and North Carolina, where demand f
or new slaves remained high.74 With Washington presiding, the delegates agreed to restrict congressional power over this form of international commerce. Analyzing the debate, historian Paul Finkelman concluded that the Carolinas and Georgia would not have walked over this matter.75 No states cared enough to test them, however, though Virginia and three other states voted to hold the restriction to twelve years.76

  For all the future horror that it caused, the Fugitive Slave Clause generated even less controversy at the Convention than the slave-trade provision. Butler raised the matter on August 28, and the clause passed without debate or opposition on the next day. Decades later, it would contribute to the crises leading toward the Civil War, but northern delegates seemed more intent on stitching the Constitution together than keeping it from later falling apart. Perhaps they feared that, had they resisted, their slave-state counterparts might again threaten to defeat the Constitution, with the threats coming from upper as well as lower South delegates.77 And the upper South included Virginia, where, due to the proximity of Pennsylvania, runaway slaves were a major worry. They posed a personal problem for Washington, who doggedly pursued fugitives from Mount Vernon. He likely favored the clause, and if so, his support would carry weight. “His strong personal commitment to the status quo of slavery made the topic especially difficult,” historian Fritz Hirschfeld concludes from his analysis of this issue. “There was probably not a single representative at the convention who was willing to provoke Washington on this sensitive topic.”78 In its provisions on slavery as much as in its conception of the presidency, the Constitution was crafted in Washington’s image.79

  A third issue left open by the compromise on representation involved how a state would receive its “equal vote” in the Senate. Under the Articles of Confederation, each state had one vote in Congress and could instruct its representatives how to cast it. These members served at the pleasure of their state’s legislature and truly represented the state’s interests. Some Convention delegates thought that the Senate should operate in a similar fashion but nationalists like Madison and Hamilton envisioned it as a quasi-aristocratic body whose members served long, staggered terms. These independent senators would serve as a check on the popularly elected House of Representatives. An elite Senate could also act in a quasi-executive fashion somewhat like the governor’s councils that still existed in some states and formerly were common in the colonies.

  Seizing the initiative on July 23, Gouverneur Morris and Rufus King moved that the Senate consist of a fixed number of members from each state—the Convention set this figure at two—who would serve six-year terms and vote individually.80 Although appointed by state legislatures, their long terms and independent votes would create, as Randolph depicted it, “the countenance of an aristocracy.” Mason was blunter about these senators. “Chosen by the States for 6 years,” he noted, they “will probably settle themselves at the seat of Gov[ernmen]t [and] will pursue schemes for their own aggrandizement.”81 Over time, in practice if not in theory, the result might approach what Hamilton had in mind for the Senate—an American House of Lords.82 Not surprisingly, nineteen of the Convention’s fifty-five delegates, including both Morrises, later became senators.

  With New York’s anti-nationalists having already departed in disgust, the only opposition to individual voting by senators came from the Maryland delegates still committed to preserving a confederation of states. Luther Martin denounced it “as departing from the idea of the States being represented” while Daniel Carroll added that “he did not wish so hastily to make so material an innovation.”83 Their state was outvoted, ten to one.

  BY THE LAST WEEK OF JULY, when the delegates resolved the Senate’s structure and reconfirmed their earlier decision to have the President chosen by Congress for a single seven-year term, the Convention had at least tentatively and in a piecemeal fashion approved the component parts for a complete plan of government. On July 26, after referring all of the various provisions passed so far to the five-member Committee of Detail charged with arranging them into a unified document, the Convention adjourned for ten days. Having been cooped up in the Assembly Room for two months with windows shuttered and doors closed for secrecy, many of the members took advantage of this long recess to get out of Philadelphia, which was notorious for foul air and pestilence in summer. Some from nearby states went home; some living farther afield headed to New York. Washington considered a trip to New York, where he could confer with Jay and Hamilton, but his carriage was undergoing repairs, and he did not want to borrow one.84 He went fishing instead. In fact, during this brief recess, Washington took two fishing trips, both to nearby locations that held powerful memories.

  On Monday, he went with Gouverneur Morris to a popular trout stream near Valley Forge. They traveled in Morris’s light, open carriage pulled by Washington’s two powerful horses and stayed for two nights in a farmhouse near the Revolutionary Army’s old winter encampment. One day, Washington toured the breastworks—“which were in Ruins,” he noted—before fishing.85 It was his first visit to the site in summer; trees and crops now grew on ground that his men had stripped bare for firewood and building materials. Meeting some farmers, he talked with them about growing buckwheat and using it to fatten livestock. In an uncharacteristically playful mood on his way out of town, Washington declined Elizabeth Powel’s invitation to the play The School for Scandal, with a note expressing regret that fishing would force him to miss his chance “to receive a lesson in the School for Scandal.”86

  Scarcely a day after returning to Philadelphia, Washington left again, this time with Gouverneur and Robert Morris on a two-day fishing trip to Trenton, the sight of the General’s first battlefield victory. The party stayed with Gouverneur Morris’s sister and her husband, a former Revolutionary War officer who owned an ironworks near the falls of the Delaware River. One afternoon, the party dined with John Dickinson’s brother, who had fought with Washington as a general in New Jersey’s revolutionary militia. Every place that he went in and around Philadelphia, it seemed, reminded Washington of service and sacrifice for cause and country. He returned to the Convention with a renewed sense of mission.

  While Washington fished, the Committee of Detail fleshed out a draft constitution from the provisions already passed by the Convention and its sense of what the delegates wanted. When it turned to composing the articles on the presidency and Senate, this enterprise became particularly creative. At the outset, the big-state nationalists envisioned a proportionally representative senate as both a check on the entire system and the guardian of national interests. Like the governor’s councils of colonial days, it would have executive, legislative, and judicial functions. Early on, perhaps only Wilson fully appreciated the role that a President—especially one like Washington—could play as a check on Congress and as a nationalizing force. It took time for the delegates to realize how their decision to have states appoint senators impacted the balance. Working as it did with many early-adopted provisions, the Committee of Detail—which included Randolph, who earlier had denounced the unitary executive as “the fetus of monarchy” and still depicted the presidency as “the form at least of a little monarch”87—produced draft articles giving more power to the Senate and less to the President than the delegates, on further reflection, might want. Also by this time, they knew Washington better and perhaps trusted him more to define the President’s role by his practice.

  THE COMMITTEE’S DRAFT CONSTITUTION presented a snapshot of where matters stood in early August. The President, elected by Congress for a single seven-year term, would execute the nation’s laws, “appoint officers in all cases not otherwise provided by this Constitution,” possess a limited veto over legislation, receive ambassadors, hold the pardon power, and serve as commander in chief of the armed forces.88 Washington had served as commander in chief during the Revolutionary War, of course, and always conceived that post as under the civilian control of Congress. Power over war and peace, or at least the power to declare
war and make peace, remained with Congress.89 The Senate, with two members named by each state’s legislature for six-year terms, would act as a coequal house of the legislature, appoint ambassadors and Supreme Court judges, make treaties, and serve as a court for disputes between states. These articles provided the starting point for the Convention’s concluding deliberations on the separation of powers, which extended into early September as weary delegates raced toward adjournment. During this final stage of the proceedings, the presidency gained power at the Senate’s expense.90

  The resulting changes in the power balance among branches, which laid the foundation for the American presidency, began with concerns over the Senate. Some delegates thought that the committee, by giving so much power to the Senate, created an aristocracy, which Mason defined as “government of the few over the many.”91 Even Dickinson conceded that, if the plan went forward, “Aristocracy will be the watchword; the Shibboleth among its adversaries.”92 Others soured on the Senate after it became the agency of the states rather than proportionally representative of the nation as a whole. They foresaw it perpetuating the failings of the Confederation Congress by favoring state over national interests.93 In light of the recent uproar caused by a bare majority of states in Congress agreeing to negotiate a treaty with Spain on terms that many southerners viewed as crippling to their region’s interests, this concern especially applied to treaty-making. “The Senate represented the States alone,” Madison argued, “and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.”94 As far as entrusting it with the power to make appointments, Gouverneur Morris denounced the Senate “as too numerous for the purpose; as subject to cabal; and as devoid of responsibility.”95 Few of the committee’s proposals on these particular points made it into the final constitution.