by Ray Raphael
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.
A decade earlier, Morris had served on the commi
ttee that drafted New York’s first state constitution. There, he succeeded in getting the committee to approve a strong executive office complete with appointive and veto powers, but the committee’s report was then overturned by the convention, which created a council of appointments and a council of revisions to water down the governor’s powers. Now Morris would once again try to strengthen an executive office within a committee, and this time, with kingly abuses and the hated royal governorships more distant in memory, he might have a better chance of securing approval for a committee report that gave the executive greater authority.
The Committee of Eleven set to work in the Library Room of the State House on Saturday morning, September 1. We have no record of the committee’s deliberations, only a few anecdotal recollections. Fifteen years after the fact, Delaware’s representative John Dickinson placed himself at the center of the action. Entering a committee session midway, Dickinson wrote to a friend, he delivered a speech denouncing legislative selection of the president. In his telling, Dickinson seems to imply his speech had a strong impact, swaying Gouverneur Morris and others to his position, but that is highly implausible, since Morris needed no convincing. The letter does admit an alternate interpretation, however, that hints at Morris’s leadership role within the committee. “Having thus expressed my sentiments,” Dickinson concluded, “Governieur Morris immediately said—‘Come, Gentlemen, let us sit down again, and converse further on this subject.’ We then all sat down, and after some conference, James Maddison took a pen and paper, and sketched out a mode for electing the President agreeable to the present provision. To this we assented and reported accordingly.”6
Neither Morris, Madison, nor Dickinson was elected to preside over the committee, a position that called for a delegate less overbearing. That role was filled instead by the Honorable David Brearly, chief justice of the New Jersey Supreme Court, who gave the committee an air of objectivity but was a known opponent of legislative selection. In addition to Morris and Brearly, several other committee members had evidenced opposition to legislative selection or had supported an alternate plan. One week earlier Daniel Carroll had joined Wilson in moving for popular elections and then seconded Morris’s motion in favor of electors. James Madison, Rufus King, and Pierce Butler had voiced their preference for electors back in July, when Morris staged his major assault on legislative selection. John Dickinson had signaled mixed messages in his two-part solution: first, “the people of each State chuse its best Citizen,” and then, “out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the National Legislature, or by electors appointed by it.” Hugh Williamson was also on the fence, first opposing special electors, but then working on the details of the elector plan that briefly held sway in late July. Of the remaining three committee members only Roger Sherman was a firm proponent of legislative selection. The other two, Nicholas Gilman and Abraham Baldwin, left no record of their inclinations on this matter.
This committee, considering its composition, was primed to oppose legislative selection, but it needed to come up with an alternative that would not only satisfy a majority of its own members but also hold up on the convention floor. That would not be easy. If an alternate plan ran afoul of a particular interest group, that group could make matters difficult in the floor debates, and delegates seeking the easiest way out would then retreat to legislative selection, as they had done every other time the issue was raised. The committee’s “solution,” then, must be some sort of compromise.
We do not know how the committee devised its final plan, but by examining the problems they needed to overcome, the prior positions taken by the committee members, the voting records of the states they represented, and the eventual outcome, we can get some sense of how this critical chapter in the creation of the presidency played out behind two sets of closed doors, both the committee’s and the convention’s.
With popular election of the president off the table, the only available option was some scheme involving intermediate electors. Clearly, these would be chosen in their separate states, but wouldn’t electors then be prone to vote for a local favorite son? If so, numerous candidates would garner votes, and unless there were some provision for a runoff between leading contenders, a president could be chosen with but a small fraction of the votes, and these might all come from one state or region.
Further, the number of electors would have to be distributed among the states, and this raised a very familiar problem: Should allocation be by population, or should each state get an equal share? The convention had settled a nearly identical matter once before with its so-called Great Compromise; now the Committee of Eleven would have to confront it again, this time with respect to the presidency.
Finally, how could electors be prevented from engaging in “intrigue” and “cabal,” the alleged evil of legislative selection? Why would this duplicate Congress be better suited to its purpose than the existing one?
On Tuesday, September 4, David Brearly reported the committee’s bold findings to the convention. No longer would the president be chosen by a joint ballot of Congress, as previously determined; instead, he would be selected by a complicated scheme that added more than three hundred words to the working draft. Here’s how the new system worked. Each state was entitled to a number of electors equaling the total of its congressmen and senators, a compromise allocation that replicated the joint balloting by Congress. The manner of selecting electors was left to the state legislatures, which were thereby granted a role in choosing the president. To avoid intrigue and cabal, electors were to meet simultaneously in their separate states. To offset the favorite-son temptation, each elector was to vote for two men, including at least one from another state. The results would then be sent to the Senate, and the president of that body would tabulate the returns. The candidate with the most votes would be president and the runner-up vice president, an office that made its first appearance in the Committee of Eleven’s report, three months and a week into the convention’s proceedings.
If no candidate appeared on the majority of the electors’ ballots, the Senate would choose the president from among the top five vote getters. Although this seemed to contradict the basic premise of electors—to make the executive independent of the legislature—proponents of the new system could argue that all five finalists had been vetted by the electors. The runoff in Congress both solved the problem of a minority president and placated Sherman, an unyielding partisan for the legislative branch, and perhaps Dickinson, whose own scheme allowed Congress to judge among finalists. Allowing the Senate instead of the House to make the final choice was a clear victory for small states, offsetting the advantage of large states in selecting the five leading contenders.7
Such was the plan, a composite geared to satisfy many interests. True, it was untested. Delegates fond of citing historical precedents, often from classical times, could not do so here. Yet at first glance it seemed to address all the projected problems, and that was an achievement in its own right. Further, because the president would no longer be beholden to Congress for his selection, the path was opened for reeligibility, and this permitted shorter terms. Accordingly, the committee’s report changed the president’s time in office from seven years to four and allowed him to be reelected.
Brearly’s presentation appeared to take delegates on the floor by surprise. Bluntly, perhaps angrily, Edmund Randolph and Charles Pinckney “wished for a particular explanation & discussion of the reasons for changing the mode of electing the Executive.”
Gouverneur Morris answered immediately with “the reasons of the Committee and his own.” His arguments now, identical to those he had made several times before, focused on the problems with the old system: the need for executive independence, the danger of intrigue, the impossibility of reeligibility with legislative selection, and so on, all of which were addressed by the committee’s plan for electors. Strikingly absent in Morris’s defense of the report, though, was any mention of
stage two, the runoff in the Senate. If legislative selection was really such a bad idea, why would they entrust a body of Congress with the decision now?
It was this part of the plan, not the previously controversial elector idea, that raised questions and prompted opposition. Charles Pinckney predicted that in most instances “the dispersion of the votes” among the electors “would leave the appointment with the Senate, and as the President’s reappointment will thus depend on the Senate he will be the mere creature of that body.” George Mason said he preferred “the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.” Any sitting president, because he was known nationally, would be among the top five contestants, and if he could coddle favor with the Senate, he would be reelected time and again. So much for executive independence. So much for rotation in office. The president and the Senate, by teaming up, “will be able to subvert the Constitution.”
James Wilson, while joining the opposition, offered two practical suggestions: in order to limit congressional discretion, lower the number of finalists “to a smaller number than five,” and to lessen the danger of “cabal,” change the venue for a runoff from the Senate to the House. The House, Wilson explained, was elected by the people every two years and would be “free from the influence & faction to which the permanence of the Senate may subject that branch.” These ideas should have appealed to Morris, who, with Wilson, had been pushing all along to protect the president from congressional control and who had probably opposed the Senate runoff within the Committee of Eleven, but Morris was in no position to undermine committee negotiations to which he had been a party, so instead of embracing Wilson’s improvements, he offered two uncharacteristically weak defenses. The Senate was better than the House “because fewer could then say to the President, you owe your appointment to us.” (Morris himself, had he not been the one to make this argument, would probably have countered that the Senate was more likely to engage in intrigue and cabal because of its small numbers.) And in any case, Morris added, too much attention was being paid to the second step of the process because electors in most cases would produce a clear winner.