by Lynne Cheney
Franklin, alarmed at the hostile turn, again urged compromise, this time by evoking an artisan who, finding that two planks do not fit, “takes a little from both and makes a good joint.” But his words were followed shortly by the most inflammatory speech of the convention. The volatile Gunning Bedford proclaimed that for all their high-flown words, the big states were seeking dominion over the small ones. “I do not, gentlemen, trust you,” he declared. “Sooner than be ruined, there are foreign powers who will take us by the hand.” Rufus King of Massachusetts shot back: “Whatever may be my distress, I never will court a foreign power to assist in relieving myself from it.”32 And on that harsh note, the Saturday session ended.
Sunday was a day of respite from the quarreling but not from worry about the convention’s fate. George Washington and Robert Morris were “much dejected,” a visitor to the Morris home reported. “Debates had run high, conflicting opinions were obstinately adhered to, animosities were kindling, some of the members were threatening to go home, and, at this alarming crisis, a dissolution of the convention was hourly to be apprehended.”33
Sunday was also a time when members from the small-state coalition might have finalized a scheme for pushing the convention toward a middle ground. It is impossible to prove that they met and planned, but the events of Monday, July 2, suggest that small-state supporters identified two men who, although inclined to the large-state view, were sufficiently concerned about the convention’s failing that they were willing to help achieve a compromise.
The first was a Maryland delegate, the wealthy Daniel of St. Thomas Jenifer, a jovial man who owed his unusual name to a Jenifer family tradition of naming all males Daniel. “Of St. Thomas” had been added to distinguish him from his brother. One of the convention’s elders, Jenifer had a record of steady attendance—and of canceling Luther Martin’s vote—but when the convention met on Monday, he was absent. Oliver Ellsworth of Connecticut renewed the call to have equality of voting in the Senate, and when the roll call reached Maryland, Luther Martin cast a yes vote, moving Maryland, usually divided, into the small-state column. After the vote, Daniel of St. Thomas Jenifer reappeared in the East Room.34
Madison, taking notes, probably still counted on a victory. Even with Maryland added to Connecticut, New York, New Jersey, and Delaware, the small states would get only five votes. The large states had six they could count on: Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia. But when the roll call reached Georgia, the last state to vote, thirty-two-year-old delegate Abraham Baldwin had a public change of heart. He had been born and educated in Connecticut and had spent more of his adult life there than in Georgia. He had apparently become convinced that the delegation of his native state was right to seek compromise, because he voted for Ellsworth’s motion, moving Georgia from support of the large states to a divided position. The result was a tie vote: five ayes, five nays, and one state divided.35
Delegates jumped to their feet, urging that the matter be sent to a committee. Madison and Wilson were the only voices against, and when the vote came, it was 9 to 2, with even Virginia voting yes. The states then balloted on delegates to serve on the Grand Committee, as it became known, and the news was even worse for Madison. Committed opponents of proportional voting were elected—Luther Martin, William Paterson, Gunning Bedford—and there were ardent advocates of compromise, such as Oliver Ellsworth and Benjamin Franklin. But determined supporters of proportional representation, such as Madison and James Wilson, were notably absent.
• • •
WEDNESDAY, JULY 4, a day on which the convention was in adjournment, was a festive time in Philadelphia. The anniversary of the Declaration of Independence was marked by bell ringing, gun salutes, and fireworks. Sermons were preached, orations declaimed, and many a toast was drunk. A group of militia officers at Mr. Preston’s Tavern raised their glasses and offered thirteen toasts, including one for the state that had refused to attend the convention: “May Rhode Island be excluded [from] the Union until they elect honest men to rule them.”36
Madison could not have been in a celebratory mood, knowing as he did that the Grand Committee was almost certain to endorse a compromise that he believed fundamentally unfair. On July 5, just as he feared, the committee report proposed a first chamber in which the representation would be proportional and a senate in which each state would have an equal voice. An enticement was included for the large states, namely, that all money bills would originate in the lower chamber, where they were more powerful, but Madison declared that to be no real concession. The matter remained the same, he said. Delegates faced a choice “of either departing from justice in order to conciliate the smaller states and the minority of the people of the U.S. or of displeasing these by justly gratifying the larger states and the majority of the people.”37
Gouverneur Morris joined Madison in condemning the report of the Grand Committee. The large states could not go along with it, and “civil commotion” was likely to be the result. Then, his temper seeming to rise to meet the temperature (there hadn’t been a break in the heat for nearly a week), he declared, “This country must be united. If persuasion does not unite it the sword will.” So rancorous was the debate and so recalcitrant the delegates that George Washington began to think that his attendance had been a mistake. “I almost despair of seeing a favorable issue to the proceedings of the convention,” he wrote to Hamilton, “and do therefore repent having had any agency in the business.”38
The issue was still hanging fire on July 13, when Madison took a night off from transcribing his notes to dine at the Indian Queen, an elegant pile of buildings where many delegates stayed. A genial out-of-town visitor, the Reverend Manasseh Cutler, joined the dinner group and proposed a visit to the famed naturalist William Bartram, who lived two miles beyond the Schuylkill River. Cutler, a lobbyist as well as a clergyman, understood that politicians yearned for occasional breaks from their labor, and his suggestion proved popular. The next morning at 5:00, two carriages full of delegates headed out of the city, Madison among them. He knew as well as any the importance of leaving off work and getting into the countryside.
Madison and the other delegates startled William Bartram, who was hoeing barefoot when they arrived, but he soon made them welcome, and they wandered the alleys of his very old garden for nearly two hours. On the way back to Philadelphia, they stopped at Gray’s Tavern, where graveled walkways had been laid out. One imagines Madison first following the path that led to a “shady valley, in the midst of which was a purling stream of water,” then wandering along another that brought a view of “one of the finest cascades in America.”39 Gray’s was a place where one might gather spiritual sustenance to meet the defeat that seemed certain to come.
• • •
ON THE FOLLOWING MONDAY, July 16, delegates took up the report of the Grand Committee and by a vote of 5 to 4, with Massachusetts divided, voted for proportional representation in the first house of the legislature and equality of votes in the second. Predictably, Connecticut, New Jersey, Delaware, and Maryland voted for the proposal, as did North Carolina. Voting with Virginia against the compromise were Pennsylvania, South Carolina, and Georgia, which voted last. Abraham Baldwin, apparently seeing that his vote was not needed for the compromise to succeed, returned to the fold.
Edmund Randolph took some time before he spoke, likely pondering the inflammatory suggestion he was about to make. “He wished the convention might adjourn,” Madison recorded, “that the large states might consider the steps proper to be taken in the present solemn crisis of the business.” Paterson understood the threat: the large states might abandon the convention. Fresh from victory, he dared Randolph to go through with it. If a permanent adjournment was what Randolph had in mind, Paterson declared that “he would second it with all his heart.”40
Randolph responded calmly but let the idea of a threat linger. As Madison wrote in his notes, “He had in view merely an adjournment till tom
orrow in order that some conciliatory experiment might if possible be devised, and that in case the smaller states should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary.”41
When the large states gathered the next morning before the convention started, it quickly became apparent to Madison that many of the delegates had lost heart for the fight. They “seemed inclined to yield to the smaller states,” Madison wrote. How little he was of a mind to do so is clear from his description of the compromise as “imperfect and exceptionable … decided by a bare majority of states and by a minority of the people of the United States.”42 But he couldn’t fight on without allies.
After the convention was called to order, Madison was dealt a second major setback. The limited legislative veto came up, the check on state laws proposed in the Virginia Plan and previously approved in the committee of the whole. Now, however, delegate after delegate spoke against it. One declared it “likely to be terrible to the states,” another said it was “unnecessary,” a third that it was “improper.” Madison defended it as essential in order to control “the propensity of the states to pursue their particular interests in opposition to the general interest.” He said he understood there was sentiment in the convention for the idea that courts could accomplish this task, but they were too slow. The states “can pass laws which will accomplish their injurious objects before they can be … set aside by the national tribunals,” he said. But the measure received only three aye votes, while seven states voted no. Luther Martin immediately moved “that the legislative acts of the United States made by virtue and in pursuance of the articles of Union and all treaties made and ratified under the authority of the United States shall be the supreme law of the respective states,” a proposal that was unanimously adopted.43 The supremacy clause, as it became known, would be modified and strengthened during the course of the convention, making it clear that the Constitution was also “the supreme law of the land,” but even then Madison would not think the delegates had found an effective substitute for a congressional veto.
• • •
THE CONVENTION MOVED ON to consider the executive branch. After delegates had agreed to have the executive chosen by the national legislature, one of Madison’s Virginia colleagues, Dr. James McClurg, proposed that the executive serve “during good behavior”—which would amount to a lifetime appointment unless the executive was impeached. Madison, astonishingly, took the floor in support. “If it be essential to the preservation of liberty that the legislative, executive, and judiciary powers be separate, it is essential to a maintenance of the separation that they should be independent of each other,” he said, and an executive who looked to the legislature to be reappointed would not be independent. The idea of lifetime tenure deserved “a fair hearing and discussion, until a less objectionable expedient should be applied.”44
In later years, Madison would say that he had merely “meant to aid in parrying the animadversions likely to fall on the motion of Dr. McClurg,” for whom he “had a particular regard,” but the course of events surely helped prompt his comment. Having the executive chosen by the national legislature, as the convention had just voted, had been proposed in the Virginia Plan, but when Madison had devised that plan, he had not contemplated the states being represented as states in the Senate. Now nothing was as it should be. When George Mason took the floor to predict that tenure during good behavior for the executive would lead to hereditary monarchy, Madison gave a sharp reply. He “was not apprehensive of being thought to favor any step towards monarchy,” he said. “The real object with him was to prevent its introduction.” State legislatures were “omnipotent,” he said. “If no effectual check be devised for restraining the instability and encroachments of the latter, a revolution of some kind or other would be inevitable.”45
Madison soon reined in his frustration and adjusted his plans. At the convention’s beginning, he had expressed concern about enumerating exactly what the powers of Congress were, but once the states gained equality of voting in the Senate, he supported enumeration—and thereby the limitation—of congressional powers.46 At the beginning of the convention, he had seen the national legislature as the body that would subordinate the states, but with the states to be represented in the Senate and the legislature to have no veto over state actions, he decided that strength was needed outside the legislative branch to provide a check. The executive could fulfill that function, but not if it were chosen by the national legislature as the Virginia Plan proposed.
From the convention’s earliest days, Madison’s ally James Wilson of Pennsylvania had been proposing election of the executive by the people in order to make that office “as independent as possible.” There were practical problems with this idea. The nation had voters in so many far-flung places it was hard to imagine how a single candidate could emerge with a majority or anything approaching it. Wilson’s solution was to divide the states into districts and have the people of each district vote for electors, who would then gather and cast their votes for the executive. On July 19, delegates approved the idea of electors but wanted them chosen by state legislatures, a plan that could not have made Madison happy, since those were the very bodies he wanted to disempower. Five days later, the delegates put the selection back in the hands of the national legislature. The to-and-fro prompted Wilson to suggest mockingly that a lottery be tried. Legislators would pick from a bowl of balls, and those who chose gilded ones would become electors.47
On July 25, Madison took the floor to note that “there are objections against every mode that has been or perhaps can be proposed” for electing the executive, and he reviewed them. Appointment by the national legislature would not only undermine the independence of the executive, he said; it would also give rise to intrigues between candidates and factions within the legislature. It could even invite foreign meddling. Appointment by state legislatures was objectionable for many reasons, including the “strong propensity” of those legislatures “to a variety of pernicious measures.” In the end, there were only two acceptable choices: “appointment by electors chosen by the people” or “an immediate appointment by the people.” The former had much to recommend it, he said, but “had been rejected so recently and by so great a majority that it probably would not be proposed anew.” That left “election by the people.” He said that “with all its imperfections he liked this best.” He noted that such a selection was of advantage to northern states, which were likely to have a greater number of qualified voters than southern states, but he, “as an individual from the southern states … was willing to make the sacrifice.”48
Oliver Ellsworth of Connecticut thought Madison’s profession of selflessness was a diversion, meant to keep the convention from seeing that the real issue was once again whether the big states would dominate. Since there was no method for narrowing down the number of people from which a voter might select, he was likely to choose a person from his own state, and thus, in Ellsworth’s words, “the largest states would invariably have the man.” Suggestions followed to fix this problem, such as having citizens cast two votes, only one of which could be for someone from their state. It was an imaginative remedy but did not satisfy Elbridge Gerry of Massachusetts, who had another concern: that the Society of the Cincinnati, being well organized, would take over. “They will in fact elect the chief magistrate in every instance, if the election be referred to the people,” he said.49 The next day, delegates returned to their default position: election by the national legislature.
Madison was finding it uphill work to secure an independent executive, nor was it easy to make that office stronger. He had tried and failed to move the power to appoint judges from the Senate, where he had early in the convention thought it should be, to the executive. He had also tried and failed—and would try and fail again—to establish a council of revision that would bolster the executive with judicial power when it came to vetoes.50
Quick action did bri
ng Madison a success in August that would have profound consequences down the years. The convention was considering a list of legislative powers, among them “to make war.” He moved successfully to insert “declare” in the place of “make,” “leaving to the executive the power to repel sudden attacks.”51 His experience in Congress during the Revolution, when congressmen, including himself, had ordered troops here and there, probably also influenced his thinking. Once war had begun, the executive—now being called the president—had to be the commander in chief.
By August 31, the matter of how to select the president was still sufficiently unsettled that delegates voted to refer it to the memorably named Committee on Postponed Parts. Madison was a member of the committee, as were Rufus King of Massachusetts and Gouverneur Morris of Pennsylvania, both opposed as Madison was to having the national legislature choose the president. But there were strong advocates of that method as well, including the committee’s chairman, David Brearley of New Jersey, and Roger Sherman of Connecticut, and they seem to have brought enough of their fellow committee members around to their view to prevail. They were in the statehouse library, preparing to move to the East Room and make their recommendation—which delegates would have been likely to follow. Selection of the president by the national legislature was the original proposal, it had been positively voted on several times, and it was in many ways the simplest solution.