by Ray Raphael
Morris’s work did not go unappreciated by Congress, which on December 21 formally approved the “care of the public business as signified in Mr. Morris’s letters.” On one day alone, Congress read on the floor twenty-three of his letters. More significantly, it transformed the team of Morris, Clymer, and Walton into an emergency committee with the broad and unprecedented power “to execute such continental business as may be proper and necessary to be done at Philadelphia,” and it gave this committee immediate access to $200,000, along with the authority to borrow as much “as the continental use there may demand.” Since Clymer and Walton disappeared from public service during this time, one man, Robert Morris, now possessed the power to run the fledgling nation by himself. He could (and did) order salt to be removed into the country, purchase clothes for soldiers, rig boats with guns, commandeer wagons to evacuate the city, and make myriad on-the-ground decisions with no oversight, no check on his deeds.11
Previously, Congress had guarded its powers jealously, fearing that a grant of executive authority to one or a few individuals might start the new nation on the road to tyranny. With the new nation struggling for survival, however, delegates relented by forming an ad hoc executive branch that was empowered to take independent action. If the exigencies of war demanded a distinct executive, so be it, republican principles be damned—at least for the time being, in this state of emergency.
The immediate crisis ended when Washington’s army crossed the Delaware and forced a British retreat. Then, when Congress returned to Philadelphia, it resumed business as usual, which meant government by committees, but there was no template for this, no rules or codes. Without a constitution or firm precedents, the confederation of thirteen states that had declared independence from Great Britain remained under interim management.
The embryonic nation could not go on forever like that, ruled by Congress’s seat-of-the-pants committees. To be accepted by the world as a legitimate state and, more pointedly, to attract foreign assistance in its fight against Great Britain, former colonists required a governing body that a nation such as France could reasonably do business with. This, in turn, required a more formal definition of the relationship between Congress and its component parts, thirteen diverse states that still considered themselves sovereign.
The resultant Articles of Confederation turned out to be just what its name implied, a confederation, not a government per se. The states, as sovereign entities, allocated few tasks to Congress beyond those required for coordinating the war effort and engaging with foreign countries. Yes, there would be a federal post office, but no, Congress could not raise its own funds. Even to fight the war, it would have to appeal to the states for money. Yet Congress was still expected to support and administer an army, and this required it to function in an executive capacity.
The closest thing to an executive body in the Articles was a “Committee of the States,” composed of one delegate from each state, to carry on business “in the recess of Congress.” That committee could only deal with matters that Congress, in advance, had specified, and it could “never”—a key word—tackle a wide range of the most important matters of state:
engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defence and welfare of the United States, or any of them: nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy.12
The confederation’s only executive body, in short, was instructed in no uncertain terms not to take action on any matter of policy or great consequence.
Although the Articles of Confederation did not formally take effect until they were ratified by the last of the thirteen states, Maryland, on March 1, 1781, Congress used the document as a guide as it fought off the British imperial army and navy, but the Articles were of no great help. Waging a war required a host of on-the-ground executive actions that Congress and its committees, with no funds of their own and little authority over the states, were in a poor position to take.
The states, unlike Congress, had access to money through the power to levy taxes. They also had clearly defined authority and powers and were therefore in a better position to provide for executive administration. Still, with the excesses from colonial times still fresh in their minds, the state constitution makers used various mechanisms to curtail executive power. Massachusetts, the first to cast off British rule and therefore the first to need a new governmental arrangement, addressed the problem by eliminating the governorship entirely. In 1775, in the immediate aftermath of Lexington and Concord, it decided to resume its old charter in all respects—minus a separate and distinct executive. All functions formally performed by the royal governor were assumed by a council elected by members of the assembly.
New Hampshire, likewise, abolished the office of governor in the provisional new government it created early in 1776, and it made no alternative arrangement for executive functioning. Although it established a council with an elected president, it defined that body only as a “separate branch of the legislature” and assigned it no specific executive duties.
South Carolina’s provisional new government did provide for a chief executive, but it did not call him a “governor,” one who governs or rules. Instead, like New Hampshire, South Carolina called its most prominent leader a “president,” one who presides, a lesser term carried over from its Provincial Congress. Two other states, Pennsylvania and Delaware, also adopted the title “president” over “governor.”
The states devised various mechanisms for holding executive officers closely accountable. Six of the ten states that formed new constitutions within a year of independence elected their governors or presidents annually. Two states had biennial elections, the remaining two triennial. Five of the annual-election states permitted no more than three successive years in office, and only three states failed to require rotation in office, as they said at the time, or term limits, as we call it today. “A long continuance in the first executive departments of power or trust is dangerous to liberty,” the Maryland Constitution of 1776 declared. “A rotation, therefore, in those departments is one of the best securities of permanent freedom.”13
Executive officers were not granted authority to “prorogue, adjourn, or dissolve” the legislatures. In some states this prohibition was made specific; in others the power was simply absent. One state, New York, allowed its governor to prorogue (suspend) the legislature for no more than sixty days within the period of a year, but he still could not adjourn or dissolve it. All Revolutionary-era Americans could recall, or had heard about, the many times royal governors had seized power from the people by preventing elected representatives from gathering, and they wanted none of this in their new governments.
Eight of the ten states established executive or privy councils to lessen the authority of their chief executives. Although colonists had suffered much grief at the hands of His Majesty’s Privy Council, these junior versions would help diffuse the concentration of power in the new state governments. No single executive should be empowered to act on his own will alone, they believed. An elected council, not personally beholden to a chief executive officer, would keep him from using patronage for political or economic gain.14
Finally, and most definitively, all but two of the new constitutions denied their governors or presidents the power of the veto. Recalling how royal governors once ran roughshod over colonial assemblies, most Americans opposed giving executive officers any influence in legislative matters. The two exceptions, New York and Massachusetts, had extenuating circumstances. Governors in these states, unlike in the others, were popularly elected, so their veto was viewed as the people’s check on the legislature, and the veto was not absolute, as in colonial t
imes. In both states, the legislature could override a gubernatorial veto with a two-thirds vote.15
New York (1777) and Massachusetts (1780) were the last two states to adopt constitutions, and the fact that both provided for the popular election of governors and then granted these officers a limited veto power signaled an evolution in public attitudes. Couldn’t the myriad difficulties of a prolonged war be lessened by the efficient administration of a stronger governor? Particularly in states torn by fighting, proponents of executive power, once a distinct minority, finally gained some traction.
In South Carolina in 1780, with British forces staged to take over Charleston, the legislature granted its chief executive, John Rutledge, the “power to do everything necessary for the public good except the taking away the life of a citizen without legal trial.” When the British then made advances into Virginia, Governor Thomas Jefferson called the legislators together and asked for additional powers, such as the authority to draft slaves to build military fortifications. His proposals were modest, however, when compared with others’. Under attack and very nervous, Virginia’s assemblymen seriously debated whether to “have a dictator appointed,” with the “power of disposing of the lives and fortunes of the citizens thereof without being subject to account.” Although legislators rejected the notion of an all-powerful executive, they did grant Jefferson’s successor, Thomas Nelson, the authority to impress food and supplies, call forth militias and dispatch them at his will, and imprison or banish suspected Tories.16
The desperation of war placed similar pressures on the confederated quasi-government in Philadelphia. Back in December 1776, as he struggled to keep Washington’s army in the field to defend the young nation’s capital, Robert Morris had proposed that Congress “pay good executive men to do their business as it ought to be & not lavish missions away by their own mismanagement. I say mismanagement because no men living can attend the daily deliberations of Congress & do executive part of business at the same time.” The following year Congress gave a tentative nod to Morris’s ideas by establishing a few key “boards” and appointing some men who were not delegates, but the boards possessed little money or authority, and like Congress itself they depended ultimately on the state governments.
Increasingly, as the war lengthened and deepened, Robert Morris’s call for full-time executive officers, however repugnant to republican ideals, received serious consideration. In 1780, Alexander Hamilton, Washington’s aspiring aide-de-camp who had taken upon himself the study of politics and government, presented a comprehensive plan to strengthen the confederacy and reorganize Congress. In a letter to James Duane, an influential delegate to Congress, Hamilton reiterated Robert Morris’s basic complaint—“Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive”—and then outlined distinct executive departments with individuals at the helm. He even suggested which individuals would be best at these new posts: General Philip Schuyler (his soon-to-be father-in-law) as president of war, Alexander McDougall as president of marine, and Robert Morris as financier. Here was a structure that emphasized efficient management, but even Hamilton at this point stopped short of the ultimate centralization of power, a single man above the department heads, a chief executive.17
Hamilton’s timing was perfect, for Congress was in a collective state of despair. The war, with no apparent end, was only part of the problem; equally significant was the total collapse of the economy. The value of currency issued by Congress, backed by nothing in particular, spiraled downward. By the close of 1780 a Continental dollar could not even buy a penny’s worth of goods. Few sensible investors were willing to loan money or advance goods to Congress, a body that had no viable way to raise funds other than begging from its constituent states.
Lacking both money and credit, Congress had to act decisively. On February 7, 1781, delegates resolved to create three “civil executive departments” that would be headed, as Alexander Hamilton and others had suggested, by individuals, not committees or boards. The first office listed was “Financier,” followed by “Secretary at War” and “Secretary of Marine.” The priority was clear. Without a workable financial system, nothing else was possible.18
Less than two weeks later, Congress unanimously elected Robert Morris, who had ushered Congress through hard times back in the winter of 1776–77, to serve as financier. When Morris expressed reluctance, Congress enticed him with the offer of extraordinary powers. He could make all his own appointments, with no input from Congress. Everybody in the government who handled money in any capacity would serve at his pleasure. He could borrow money from foreign governments and import or export goods, all on the nation’s tab. He could deal with foreign ministers, thereby running his own department of foreign affairs. Without congressional oversight, he could issue private contracts to supply the army. Soon, he also assumed control of the Marine Department. The Financier, as he was called, accepted the powers and used them, and he produced results. He stimulated the flow of money through a national bank, and he restored confidence in governmental notes by backing them with his own personal credit, which people still trusted.
If the Financier’s powers sound to us today dangerously close to one-man rule, that’s how many at the time viewed it as well. Late in 1781, Joseph Reed commented wryly to Nathanael Greene:
The business of that august body [Congress] has been extremely simplified, Mr. Morris having relieved them from all business of deliberation or executive difficulty with which money is in any respect connected, and they are now very much at leisure to read dispatches, return thanks, pay and receive compliments, &c. For form’s sake some things go thither to receive a sanction, but it is the general opinion that it is form only.19
The Financier’s “reign” (as some called it) ended in 1784 for two reasons. First, despite all his powers, Morris was never able to achieve his primary goal, giving Congress the power to tax. Without that, the federal government could never rest on a firm and lasting financial footing. Second, the war had come to an end, and with it people’s tolerance for allocating exceptional powers to any executive officer. In the words of the Financier’s outspoken assistant, Gouverneur Morris (no family relation to Robert), peace was “not much in the interest of America,” for it lessened the need for strong government. “War,” on the other hand, “is indeed a rude, rough nurse to infant states.”20
The coming of peace shifted the political tide back toward the pure republicans, those who opposed any centralization of political authority. The focal points of power and politics in the postwar years were the states, not Congress. With the disappearance of an immediate military threat, a lack of funds, no clear mandate, and scant authority under the Articles of Confederation, congressional delegates felt they had more important business to transact, both public and private, back in Virginia, Massachusetts, or wherever they resided. Sometimes Congress could not even convene for lack of a quorum. “Congress continue to be thin, and of course do little business of importance,” James Madison, a congressman from Virginia, wrote to George Washington on April 16, 1787.21
Madison penned these words four years after the war officially ended and three years after the Financier left office. In the interim, Congress’s influence and reputation had continued to slide. In the fall of 1786, when authorities in Massachusetts appealed for federal help to suppress what they labeled a domestic insurrection, Congress, without money and lacking the authority to call up a peacetime army, came up empty. Yet ironically, as weak as it was, Congress was vilified for failing to cure the nation’s ills, while those wanting to strengthen its hand were accused of power mongering. So Congress was caught in a bind, too feeble to act yet suspected of being too strong.
There was a way out, people like James Madison, Alexander Hamilton, Robert Morris, and Gouverneur Morris reasoned. If Americans overhauled the existing rules of the confederation, they could form a stronger union that was better equipped to govern at home and attain influence abroad
. To give that government more “vigor” and “energy,” as these men and others said at the time, they would need to reverse the retreat from executive authority, but they had to tread lightly. Even the faintest hint of monarchy, or the least resemblance to the hated royal governorships, could jeopardize any plan to create a new government.
PART II
Conjuring the Office
CHAPTER THREE
First Draft
Shortly before 10:00 on the first morning of June, forty-three astute statesmen, seasoned by the tumultuous Revolution that had dominated political life over the previous two decades, filed into the east chamber of the Pennsylvania State House, normally occupied by the state assembly. The room was large and airy, forty feet on a side, more than twice the height of a man, and generally bright unless the shutters were closed. Tall multipaned windows dominated the walls flanking the entrance. On cool days, and there were still a few of these, the room was warmed by two fireplaces on the paneled wall facing the door.1
Since the convention had opened a week before, delegates now approached seats they had already claimed, comfortable Windsor chairs arranged around small writing tables, each with quill and ink at the ready. The secretary, Major William Jackson, a former member of Washington’s staff and agent for Robert Morris, took his place at the front, just below and to the side of the president’s chair, while James Madison, who was recording a more personal and detailed account than Jackson’s, sat as usual “in front of the presiding member, with the other members on my right & left hands.” This was the most “favorable position for hearing all that passed,” Madison explained in the preface to his invaluable Notes of Debates in the Federal Convention of 1787. George Washington assumed his seat in a mahogany Chippendale chair, topped by a frieze of the sun and its rays, which had been fashioned by a local craftsman during the Revolutionary War. The doorkeeper closed the entryway. A lagging delegate from Georgia came forward to present his credentials. Then Washington read the order of the day, which was quite simple: the convention would transform itself into a committee of the whole to resume discussion of a working draft to reshape the federal government.