Mr. President (16 page)

A pattern was emerging. Although Morris didn’t have the votes to transfer significant powers to the president, he could get agreement on small changes while getting the larger issues remitted to committee. By moving the venue, he provided an alternative mechanism for the passage of controversial resolutions. We do not know exactly when this became a conscious strategy, but we do know that in the last two weeks of August, he was more than eager to send issue after issue into committee—and further, the committee report that would eventually emerge bore a striking resemblance to Morris’s own views.

By August 24 the convention had worked its way up to Article X, Section 1, of the new draft: “The executive power of the United States shall be vested in a single person. His stile shall be ‘The President of the United States of America’; and his title shall be ‘His Excellency.’ He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.” Here the heavy jockeying began. The proceedings of that day would have immense consequences for the presidency and the nation, so they need to be examined in some detail.

The single executive, his “stile,” and his title excited no controversy at this moment, but then came the problem: What, exactly, did “elected by ballot by the Legislature” mean? That seemed to imply both houses of Congress, the Senate and the House of Representatives, but would these bodies vote jointly, or would they each have to approve the president, voting separately?

John Rutledge opened by moving that the word “joint” be inserted before “ballot,” and this immediately resurrected the old small-state/large-state controversy that had dominated so much of the early weeks of the convention. Connecticut’s Roger Sherman objected that the Senate, which represented states, would lose “the negative intended them in that house”; only separate balloting would maintain that body’s integrity. Nathaniel Gorham of Massachusetts, a state with double the population of Connecticut, quickly scolded Sherman for neglecting “the public good,” which was “the true object to be kept in
view.” This triggered a tirade from New Jersey’s Jonathan Dayton and David Brearly, who warned that the Senate, in which each state had an equal say, would be overwhelmed in the voting by the much larger House, dominated by large-state representatives. “A
joint
ballot would in fact give the appointment to one House,” Dayton complained, and he “could never agree to the clause with such an amendment.” Twenty-six years old and the youngest delegate to the convention, Dayton had fought at Brandywine and Germantown when only sixteen, survived wartime captivity, engaged in daring postwar land speculation, and already established a reputation as a hard-hitting politician for issuing statements that resembled ultimatums, such as this one.

That last phrase in Dayton’s pronouncement—“could never agree to the clause”—caught the attention of James Wilson and Maryland’s Daniel Carroll. The clause Dayton referred to was legislative selection of the president, and his strong opposition signaled to them that support might be weakening for that worn idea. Carroll, who had seconded Wilson’s strange elector-by-lot scheme exactly one month earlier, moved “to strike out ‘by the Legislature’ and insert ‘by the people,’ ” and Wilson now seconded Carroll’s motion. This radical alternative, though, had never garnered many votes, and it didn’t this time either; only Pennsylvania and Delaware voted in favor of popular election, a proposition that offered no solace to the disgruntled small-state delegates.

So it was back to the matter at hand, how Congress was to select the president. John Langdon and James Madison mounted a two-pronged offensive that was difficult to rebut. First, Langdon announced he was ready to vote against the interests of his own state, New Hampshire, which was smaller than either Connecticut or New Jersey and would presumably lose influence under joint balloting. According to New Hampshire’s constitution, he noted, each house voted separately for the state’s chief executive, and that system had been “productive of great difficulties.” Jealousies resulted when one house rejected a candidate approved by the other, and joint balloting was the only sensible alternative.

Madison followed by noting that small states actually
gained
influence under the joint-balloting plan, which would “give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely can not be unreasonable.” When the question was called, seven states thought joint balloting was reasonable
indeed, while four still objected—New Jersey, Connecticut, Georgia, and Maryland.

Dayton and Brearly, defeated but not vanquished, countered with another proposal: joint balloting but with the congressional delegation for each state casting but a single vote. Without debate, this blatantly small-state proposal picked up the support of tiny Delaware, but it was still defeated, six states to five. There the matter stood: the president would be chosen by a joint ballot of the members of both houses of Congress. It was time to move on—or was it?

Enter once again Gouverneur Morris, not yet ready to concede, who suggested that the president “shall be chosen by Electors to be chosen by the People of the several States.” This idea had a familiar ring, and Morris was the only one who bothered to speak in its favor or, more precisely, to speak against the existing plan, selection by Congress. “The legislature will swallow up the whole powers of the constitution,” he warned, “but to do this effectually they must possess [select] the Executive.” Other delegates could have recited this by rote, Morris and Wilson had said it so many times. Yet Morris was unrelenting, and he forced the issue as never before. “In the strength of the Executive would be found the strength of America,” he proclaimed with dramatic flair but to no avail.
⁴

The motion failed, but only by a vote of six states to five. Morris had chosen his words carefully, hoping to attract small-state delegates who wanted no part of Wilson’s popular election. Electors were to be chosen “by the People
of the several States
,” leaving the path open for one-state, one-vote or to some compromise scheme that would allocate a certain number of electors per state. This almost worked. Three leading carriers of the small-state banner—New Jersey, Connecticut, and Delaware—joined delegates from Pennsylvania and Virginia, the prime proponents of an independent executive, in support of Morris’s motion.

A coalition was building, and Morris was tantalizingly close to having his way. If he could convince only one more state delegation to change its mind, presidential selection would be removed from the grip of the legislative branch. Strategically, he separated his defeated motion into two sections. First, did the convention approve of electors “as an abstract question,” with no mention of how electors should be chosen? If the answer to that turned out to be yes, delegates could then determine the exact manner of elector selection.

The vote on the first question, the basic idea of electors, turned out
a tie, four states in favor, four against, two divided, and the Massachusetts delegation so puzzled by an “abstract” vote it abstained. Technically, by the rules of the convention, the motion “failed the states being equally divided.” The issue had been settled “in the negative,” as the official journal noted, and that made the second question moot. The convention was ready to move on, and at least for the moment there was nothing more Gouverneur Morris could do. Even so, by obtaining a tie vote on his “abstract” question, this skilled tactician had managed to confuse the matter. That was a victory of sorts, and he would make ingenious use of this one week later, on August 31.

The convention then took up the last two items of Article X, “He shall hold his office during the term of seven years; but shall not be elected a second time,” or at least it tried to. Before anything could be said on the matter, Dayton moved to postpone the discussion of these issues, which Morris had previously demonstrated to be integrally linked to the manner of selecting the president. Postponement would give Dayton, Morris, and their allies time to regroup and line up another state or two, and when the length of term and eligibility issues resurfaced, they could possibly change all three decisions at once, as Morris had convinced the convention to do back on July 19. The very word “postponement,” though, was anathema to the delegates at this late stage. Dayton’s motion “was disagreed to without a count of the States.”

Jacob Broom of Delaware, with a more politic approach, moved that term length and eligibility be referred “to a committee of a member from each state.” This fared better, achieving a tie vote, but that was not sufficient to pass. Too many weary delegates wanted to dispense with this matter once and for all, and that is precisely what disturbed opponents of legislative selection. Hurriedly, delegates were likely to approve the Committee of Detail’s report—a seven-year term and ineligibility, natural corollaries to legislative selection. All three issues would then be settled, and given the delegates’ increasing restlessness, they were unlikely to be considered again.

The New Jersey delegation, with no other card to play, requested a postponement “to tomorrow,” the longest period of time it could reasonably expect the convention to approve. “Request” is the term used in the official journal, but Madison recorded it differently: the postponement, he wrote, was “at the
insistence
of the deputies of New Jersey.” It is reasonable to infer that Dayton, who was taking the lead on this matter, played a heavy hand.

Reluctantly, the convention acquiesced, but “tomorrow” never came. Dayton, Morris, and their allies were in no haste to bring the issues back to the table, for the longer the delay, the more likely the issues would be “committed,” or handed over to a committee. They allowed the convention to take up Articles XI through XXII, which took another week. During this time, matters were voted on quickly, with little discussion. If a vote yielded a positive resolution, so much the better, but if it didn’t, the issue was sent to yet another Committee of Eleven, to be composed of one delegate from each state. Here, members would deal with “such parts of the Constitution as have been postponed, and such parts of reports as have not been acted on.”
⁵

Just moments before the state delegations chose their representatives to this committee, the convention tried to finalize Article XXIII of the working draft, which stipulated how the very first election would be conducted. Each state legislature needed to choose its two senators and establish a mechanism for its citizens to elect their congressmen. Then, once Congress convened, it would select the president. This article contained nothing structural. It merely established how Articles IV and V, which provided for selection of members of Congress, and Article X, which provided for legislative selection of the president, would take effect the very first time. It appeared a cut-and-dried matter, with no policy issues at stake.

Yet not so cut-and-dried for Gouverneur Morris, who moved to strike out the clause that directed the first Congress to “choose the President.” The matter of choosing any president, including the first one, had not yet been “finally determined,” he said. This was incorrect. Selection of the president by the legislature had been settled, and resettled, and resettled again. Only once, more than a month earlier, had it been briefly overturned, and then it was quickly restored.

The previous week, on August 24, delegates had reaffirmed that Congress should choose the president. On that day, the convention had also decided, by a seven-to-four vote, that the selection was to be made by both the House and the Senate, voting jointly. Further, delegates had stipulated that the winner needed to garner votes from an absolute majority of the members present, and in the case of a tie the president of the Senate would cast the determining vote. Precise, well-defined procedures had been incontrovertibly set in place.

All that was a matter of record, entered into the official journal. Two events, however,
could
give the impression the issue had not been
“fully determined.” First was the tie vote on Morris’s “abstract” question of electors. That motion, even if it passed, would not have implemented any change to the existing plan of government. It was presented as a straw poll only so the discussion might continue, and it didn’t matter in any case, for by the rules of the convention the motion had failed, but the defeated motion had been a draw, and that produced the confusion that Morris now exploited. He could say in an offhand manner that the matter had not been “finally determined” and thus should be sent to committee.

The other factor that instilled confusion was the August 24 postponement of the length of term and eligibility issues. Although these issues were supposed to be taken up the very next day, this never happened. Thanks to the ingenious conniving of the New Jersey delegation, the Committee of Detail’s provisions addressing these matters had not been finalized, so the Committee of Eleven would have to place them on its agenda. Technically, this charge to the committee did not include selection of the presidency, a different though related matter, but by Morris’s reasoning, which most of the delegates had come to accept, the three issues needed to be addressed at once. Merely by association, selection of the president could be viewed as an appropriate issue for the committee to take up.

In tandem, Morris and the New Jersey delegation had managed to breathe new life into their opposition to legislative selection. Morris’s motion, without debate, prevailed with the dissent of only two delegations. By sleight of hand, selection of the president was placed on the docket for the Committee of Eleven.

Gouverneur Morris must have known he would be appointed as Pennsylvania’s representative to the Committee of Eleven. Franklin, who was too ill even to attend on some days, was not fit for committee work. Wilson was still serving on the critical Committee of Detail, which had various assignments of its own. George Clymer had just served on a similar committee composed of one representative from each state. The remaining four delegates from Pennsylvania—Robert Morris, Thomas Mifflin, Thomas Fitzsimons, and Jared Ingersoll—had spoken on the floor, between them, only six times over the course of the convention, a span of more than three months. Gouverneur Morris, by contrast, spoke seven times on that day alone, August 31. Over the previous four
days, he had offered up another dozen motions, matching his total for the first four days of August deliberations. If delegates from Pennsylvania wanted a strong voice on this committee, Gouverneur Morris was their obvious choice, and he got the job.