Franklin & Washington Page 21
Franklin worked his mediating magic in committee. Hosting its members for dinner that same night and then meeting with them at the State House on the next day, 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 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.70 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. 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 unresolved how the limits on money bills would operate and who constituted “inhabitants” for purposes of apportioning House seats. In resolving these matters, Washington played a conciliating role.
The concession on money bills unexpectedly split the large-state delegates. Although it was intended to limit the power of the small-state-dominated Senate, some big-state delegates 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 a draft constitution compiled from provisions already approved by the Convention, these delegates pushed to remove it. Other large-state delegates viewed the concession as essential to their states’ interests. “To strike out the section, was to unhinge the compromise of which it made a part,” Virginia’s George Mason complained.71 Franklin agreed, adding that he welcomed having money bills crafted by the people’s house.72
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, 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.”73 Ultimately, the Convention settled on compromise language that 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.”74
THE COMMITTEE’S PROPOSAL to apportion the House of Representatives based on the number of a state’s “inhabitants” inadvertently opened the explosive issue of slavery, leading to a second major compromise. In early June, when the delegates originally debated the principle of proportional representation for Congress as set forth in the Virginia Plan, they were thinking of proportionality in terms of either the number of a state’s free people or the amount of its tax payments, with tax payments serving as a rough gauge of property. The Convention had papered over the difference by simply agreeing to allocate seats “according to some equitable ratio of representation.”75 Franklin believed this ratio should factor in both people and property since government was instituted to protect both.76 This left an opening for him to make some concession for slave property even though he opposed slavery. Representing a slave state, Washington also wanted concessions for slave property.
As a practical matter, because they had more slaves and fewer free people than their northern counterparts, southern states would lose representation under any allocation based only on free inhabitants. Likewise, they would gain under one that included all inhabitants, free or slave. The problem with the latter approach was, as some northern delegates noted, that the south treated slaves as property, not people. Although this was common practice throughout America in colonial times, the revolution for liberty had transformed popular thinking on the issue, at least in the north. If people were the sole basis for representation, Massachusetts’s Elbridge Gerry asked when this matter first arose at the Convention, “Why then should the blacks, who were property in the South, be in the rule of representation?”77 Gerry opposed slavery and wanted southerners to confront the hypocrisy of their position.
In mid-June, when delegates were still thinking in terms of an “equitable ratio” that factored in property as well as people, they accepted a plan proposed by Pennsylvania’s Wilson and seconded by South Carolina’s 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.78 In adapting this now shocking formula from an earlier one proposed by Congress for equitably allocating the requisitions due from each state, 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 passed with only Gerry speaking against it.79 Even Gouverneur Morris, who opposed counting slaves as people because it would reward slaveholders, accepted doing so as a rough gauge of property.80 Conceding the slave states anything less than this three-fifths, most delegates believed, would derail the Convention and, by various rationalizations, most northerners accepted it.
By mid-July, after the delegates agreed to Franklin’s language of allocating House seats based on population with one representative for each forty thousand individuals, 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 heightened by the battle over Senate representation, other northerners now joined Gerry in arguing that slaves should not count because their states treated them as property. “If Negroes are not represented in the states to which they belong, why should they be represented in the General Congress?” New Jersey’s William Paterson asked in a rhetorical question addressed directly to Washington.81 South Carolina’s delegation countered by demanding that slaves count as whole people, not just as three-fifths of one, despite their lack of any rights. “The security that the Southn States want is that their negroes not be taken from them,” Pierce Butler thundered.82 Virtually no one expressed concern for the slaves. They became white men’s pawns in a north-south power struggle. Franklin remained quiet during this phase of the debate reflecting his belief that, even if it meant accepting the Three-Fifths Compromise, the best way to end slavery in southern states was to first get them in a strong federal union.
For those delegates principally concerned with preserving what had been gained to this point and saving the Convention from shipwreck, the goal became getting the delegations back to the Three-Fifths Compromise. Washington played his part when, in the midst of this debate, a committee chaired by Gouverneur Morris proposed an initial allocation of House seats. Attacked 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.83 Washington promptly created another committee, which made new allocations using the Three-Fifths Compromise, and the crisis passed.84 Three-fifths for their slaves was enough to keep the southern delegations from bolting without losing the northern ones. The Carolina and Georgia delegations would later win two additional constitutional protections for slavery, with Washington’s Virginia supporting one, aiding the capture of fugitive slaves, and opposing the other, barring Congress from limiting the importation of slaves until 1808.85
Despite counting as three-fifths of a person for purposes of representation, slaves could not vote in any state—every delegate agreed on this, even those who hated slavery. This did not settle the question of which free citizens could vote in House elections. Franklin wanted as broad a franchise as possible, although he never said if this should include women and Native Americans. His Pennsylvania constitution guaranteed voting rights to all freemen. In neighboring New Jersey, the 1776 state
constitution extended voting rights to all adult property owners, including women. Because state law barred married women from owning property, this construction restricted female suffrage to single women. The Virginia constitution, in contrast, limited voting rights to male landowners and many of Washington’s allies at the Convention, including Madison and Gouverneur Morris, favored extending that limit to federal elections in all states.
“We shd. not depress the virtue & public spirit of our common people,” Franklin shot back against this proposal. “The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised.” He gave as a principle that the elected should not “narrow the privileges of the electors.”86 For New Jersey, this would mean preserving the voting rights of single women. Responding to Madison’s worry that the poor could not be trusted with the vote, Franklin replied, “Some of the greatest rogues he was ever acquainted with, were the richest rogues.”87 The Convention split the difference by confirming the compromise that, in each state, the qualifications for voting in House elections would be the same as for voting in state assembly elections. Pennsylvania, New Jersey, Virginia, and every other state could follow its own light, no matter how dim. Free Blacks voted in some states, but not others, depending on local practice. As for Native Americans, the Constitution expressly excluded “Indians not taxed” from counting toward representation in Congress and thus they were barred from voting everywhere.88
In a similarly pragmatic move made near the Convention’s end, when some delegates urged that the limit on the number of House members per state be lowered from no more than one for every forty thousand inhabitants to no more than one for every thirty thousand, Washington sided with them. “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.”89 With Washington’s endorsement, the amendment passed. Enlightenment pragmatists at heart, both Franklin and Washington sacrificed lesser aims to achieve their principal goals.
HAVING BRIDGED THE GULF over representation dividing small versus large and free versus slave states with pragmatic (but unprincipled) compromises, the Convention faced the enigma of the executive. Revolutionary era Americans saw the face of tyranny in the likeness of King George III and feared creating a despot like him. But they had few places to turn for precedent in crafting the presidency of an extended republic. Each state had an executive officer, but their authority varied. Some, like Franklin in Pennsylvania, had little formal power and gained influence only by the deference they commanded. Others, like George Clinton, Washington’s wartime friend and postwar business partner who served seven terms as governor of New York, wielded real power under his state constitution. Governors, unlike kings, did not have authority over foreign affairs or war and peace, however, and their jurisdictions were relatively small. Looking to Europe for examples of elected leaders with such powers, delegates cited the consuls of ancient republican Rome, the Holy Roman Emperor, the Venetian Republic’s doge, the king of Poland, and even the Pope, but none of the analogies fit. The American presidency was the Convention’s most original creation, with Franklin and Washington splitting over the extent of its powers.
The debates on the executive consumed more time at the Convention than those on any other topic and were not resolved until September. Having agreed to begin by working through the Virginia Plan, the delegates reached its two resolutions regarding the executive on June 1. The longer of these called for a “National Executive” chosen by Congress for a single term of some fixed but unspecified length. “Besides a general authority to execute the National laws,” it stated, this officer “ought to enjoy the Executive rights vested in Congress by the Confederation.” The shorter one provided a limited means of vetoing bills passed by Congress.90
If these executive rights included all those once held by the British monarch and later vested in Congress, the provisions gave considerable power in the executive. Beyond executing laws, the king held direct authority over war and peace, the military, foreign affairs, appointing officers and judges, and granting pardons. Since the Articles of Confederation vested power over these matters in Congress, they might go to the executive under the Virginia Plan. Then again, they might not. The resolutions were frustratingly vague on this score.
Perhaps because Washington was sitting among them, when the delegates reached these resolutions, they fell unusually silent. After brief comments by two supporters of a strong executive, Madison wrote in his notes, “a considerable pause ensued” and the chair asked whether the delegates were ready to vote on (and presumably pass) the provisions.91 Coming from Washington’s delegation, no one seemed inclined to dispute them.
Most delegates assumed Washington would become the first president, trusted him in that post, and wanted to shape the office to his satisfaction.92 From the war, he had a popularity that bordered on veneration. Indeed, during the war, patriot propagandists promoted him as a republican replacement for the king. “That George is now no more,” one such writer proclaimed soon after the Declaration of Independence, “GOD save great WASHINGTON.”93 By 1778, references to his being the Father of His Country begin appearing much as kings stood as father figures for their realms. By the 1780s, Americans celebrated his birthday in a manner once reserved for the king’s. In 1784, Princeton College commissioned Charles Willson Peale to paint a portrait of Washington to replace (in the same frame) one of King George II for its main hall. A generation later, early-national-period author Washington Irving (whose parents named him for the general in 1783) had his late-colonial idler Rip Van Winkle awake after the Revolution to find King George’s image on a tavern sign transformed to one of Washington simply by changing the coat’s color from red to blue, swapping a sword for a scepter, and adding a cocked hat. So readily could one George replace another in American eyes, Irving seemed to say, so naturally would the later one become president, if not king.
Perhaps more important, in his person, Washington projected an aura that inspired deference. It fulfilled his aspiration, expressed in 1776 after taking command of the American army: “to obtain the applause of deserving men, is a heart felt satisfaction—to merit them, my highest wish.”94 A popular account has Hamilton, at the Convention, warning Gouverneur Morris that Washington was too aristocratic and reserved for friends to treat as they did others. Dismissing Hamilton’s remark, Morris bet that he could greet Washington with a gentle slap on the shoulder. When Morris did so, the story goes, “Washington withdrew his hand, stepped suddenly back, fixed his eye on Morris for several minutes with an angry frown, until the latter retreated abashed.” Morris claimed his wager but said of the episode, “Nothing could induce me to repeat it.”95 Showing the regard with which delegates held Washington, this account suggests why they might defer to his wishes on the presidency.
But who would follow Washington in that post?
Fully Washington’s equal and never one to defer, Franklin broke the silence at the Convention over the presidency. Emphasizing that the structure of the executive is “of great importance,” he urged delegates to “deliver their sentiments on it before the question was put.”96 This comment burst the dam and debate flooded the room. Four days later, with the discussion still raging, Franklin said with reference to Washington and the presidency, “The first man, put at the helm would be a good one. No body knows what sort may come afterwards. The executive will always be increasing here, as elsewhere, till it ends in a monarchy.”97
Favoring a weak executive, at one point or another during the debates Franklin advocated circumscribing the presidency with term limits and an advisory council, and by eliminating the veto power. “In free Governments the rulers are the servants, and the people their superiors,” he said of term limits. “For the former to return among the latter was not to degrade but to promote them.”98 Further, Franklin wanted presidents elected by the people and to serv
e without any compensation beyond their expenses. “I am apprehensive,” he explained, “that the Government of these States, may in future times, end in Monarchy. But this Catastrophe I think may be long delayed, if in our proposed system we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit.”99 Twice, Franklin defended the power to impeach corrupt presidents against those like Gouverneur Morris who would put them above the law during their terms in office. “It wd. be the best way,” Franklin explained, “to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”100
By the second day of their discussion of the executive, the delegates had drifted so far apart that they could not even agree whether there should be one president or an executive triumvirate like those of late republican Rome, with a member from each of the country’s three regions. With Washington in the room, a solo executive should have seemed obvious, especially since every delegate who knew him well must have known that he would never serve as one member of an executive committee. Fearful of investing too much power in any one person, some delegates—including Mason and Randolph from Washington’s own state—favored a triumvirate. On June 1, Randolph denounced a solo executive as “the fetus of monarchy.”101 By the second, Franklin was echoing the Virginia governor’s warning about “nourish[ing] the fetus of a King.”102 He later expressed the added concern that a solo executive might lead to disruptive discontinuity in government upon a change in administration or if the president became incapacitated. “The Steady Course of public Measures is most probably to be expected from a Number,” he stated with respect to having an executive triumvirate or council.103 In a vote taken that day, the delegations split six to four, with the majority not yet ready to accept a solo presidency.