I

 

ABSTRACT

ORIGINS OF THE AMERICAN PRESIDENCY:
A STUDY IN EXECUTIVE THEORY

By
Joseph Addison Warren III

For nearly two hundred years scholars and politicians have
been debating what the Founding Fathers intended when they created the
presidency. Few have taken the time to examine in depth the nearly
two centuries of experience the Americans had with executive theory
prior to writing the Constitution. While a number of monographs have
been written on various aspects of that experience, there has been no
extensive integration of primary and secondary sources to see whether
there was any consistent patterns from which the delegates to the Con-
stitutional Convention fashioned the presidency. This study undertakes
to do that by examining the period from the founding of the American
colonies to Washington's first appearance before Congress under the
new government.

The conclusions of this study indicate three distinct periods
of executive experience from which the Americans established the prin-
ciple of a limited responsible executive. The first era comprised the
seventeenth century in which commercial companies were transformed into
political entities under strong governors possessing extensive powers.

In spite of the wide range of power given to the governor, the Americans

Joseph Addison Warren III

legitimatized the principles of executive unity, a written delegation
of powers, and the belief that the executive was responsible for his
actions. His discretionary authority in this period was tempered more
by his superiors in London than by popular restraint, except in the
case of Massachusetts.

In the eighteenth century the colonial assembly reduced the
political power of the royal governors by forcing them to bargain for
their salary and other measures of support. When the political differ-
ences between England and the colonists became insurmountable, the
Americans formed their own provincial governments, which made the
governor irrelevant. Even though the governor's constitutional powers
were still basically intact, his political ability to carry them out
was irreparably destroyed.

In the century preceding the Revolution, numerous attempts
were made to unite one or more colonies under a common executive.

Aside from the various political or military factors which militated
against such unions, there was the problem of having a common executive
over colonies with different constitutions. While the executive's
military powers could be delegated to another officer, Americans were
unwilling to let an outside civilian executive operate without the
requisite constitutional safeguards.

During the second phase in the development of American execu-
tive theory, between the Declaration of Independence and the Constitu-
tion, the executive and legislative roles were reversed. Now the.
legislature was the engine of government, not the executive. Since

the state constitutions were considered to be temporary expedients

Joseph Addison Warren 111

until the war was settled, the governor was given just enough
constitutional authority to protect the state during the course of the
war. The framers thought it best to err on the side of too little
authority, since it could always be increased by statute or constitu-
tional amendment. The state constitutions were the first experiments
the Americans had in formulating their own executives. As such, they
were modeled on the principles developed in the previous century and
they later served as the source for most of the provisions of the
presidency.

0n the national level, several important developments took
place in executive theory. The Continental Congress underwent a number
of reorganizations finally culminating in the establishment of the
major executive departments under unitary heads who were not members
of Congress. Attempts to create a national executive by the Committee
of States failed. Also the President of Congress never attained much
power.

The most significant development in this period was the
office of commander-in-chief. General Washington became the gg.fggtg_
national executive since he was the central cog in the apparatus which
tied military and civilian, national and state organizations together.
His experiences not only showed the need for a national unitary execu-
tive, but also provided him with invaluable training for his future
presidency.

The third phase in the development of American executive
theory came with the Constitutional Convention. Using their historical

experience, the delegates fashioned the presidency in such a way as to

Joseph Addison Warren III

protect it from legislative encroachments, yet give it sufficient
energy to carry out its duties within a well defined and limited sphere.
More importantly, the phrase "The executive power shall be vested in a
President" was not meant to be a general grant of power, but it merely
identified where the executive power resided. This followed the
eighteenth-century American practice of constitution writing whereby
the authors identified who held the power followed by a specific enu-
meration of powers. The few important powers granted to the President
were to be shared with the legislature which required him to seek "the
advice and consent" of the Senate. Thus the presidency envisioned by
the Founding Fathers was well within the American tradition of a limited
responsible executive. His powers and duties were clearly and pre-
cisely enumerated, not, as some writers contend, vaguely written,
thereby justifying an expansive interpretation of the President's power.

While Washington did exert some influence over the Conven-
tion's deliberation on the nature of how the executive ought to be
written, the delegates were far too practical to commit the nation's
future to one man without providing the necessary safeguards to protect
the people from the presidents who might come after Washington.

The ratification debate over the presidency was carried on
in the context of whether the people were properly protected from execu-
tive abuses. The anti-Federalists argued that human nature was such
that extensive checks had to be written in the Constitution, while the
Federalists argued that the President's power was sufficiently checked
and limited to be well within the American tradition of a responsible

executive.

ORIGINS OF THE AMERICAN PRESIDENCY:
A STUDY IN EXECUTIVE THEORY

By

JOSEPH ADDISON WARREN III

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of History

1976

©

Copyright by
JOSEPH ADDISON WARREN III

1976

To My Parents

In grateful appreciation for their many
years of encouragement and support

iii

ACKNOWLEDGMENTS

I would like to thank Professor Robert E. Brown, as my
dissertation director, for his patience, aid, and guidance throughout
my graduate career. His excellence in historical scholarship and
teaching will always remain a standard to judge my future as a scholar.

Several other faculty members also deserve a special mention.
In addition to Professor Brown, the able and articulate teaching of
Professors Marjorie E. Gesner, Paul A. Varg, and Alan P. Grimes have
provided many insights into the study and teaching of history for me.
The author hopes this thesis will, in some small measure, be a tribute
to these persons who helped launch his academic career.

I would also like to thank Professors Donald Lammers and Sam
5. Baskett for serving as readers on my committee in the final stages
of the dissertation.

No dissertation could be completed without the able assistance
of a competent secretarial staff. To the following individuals I
express my heartfelt thanks: Doreen Matune, Loreen Morgan, Elaine
Ballance, Sheri Himes, and Lynn Borody.

Finally, to my parents I owe a debt of gratitude for their
support and encouragement over the years. While I can never fully
repay them for their sacrifices, I hope this dissertation will, in
some small way, honor them as a tribute of my love and the respect I

hold for them.

iv

PREFACE

For nearly two hundred years the American Presidency has been
an enigma to scholars and politicians alike. There have been literally
thousands of books and articles written about the office and its occu-
pants. Yet the presidency continues to be the source of vigorous debate
over what was intended by the founding fathers. Presidents have tried
to stretch the constitutional provisions of the office to fit their
policies and programs, while critics have been just as eager to check
the office and its occupants. The scholars are caught between. Many
of their writings are influenced by presidential actions while their
conclusions are used as justification for one side or the other in the
various disputes over the office.1

The issues raised by the continued debate over the nature of
the presidency focus on the very heart of the present-day American
political system. The urgency with which various advocates raise their

concerns suggests what is at stake. As one observer noted, “it is upon

the American President more than any other figure in the world, are

 

1Two examples of this phenomenon are Edward S. Corwin, IDS.
President: Office_and Powers, l787-l957 (New York: l959) and Arthur
Schlesinger, Jr., The Imperial Presidency (Boston: l973).

 

centered man's hopes and fears for survival, freedom, and the good
life."2

Yet, in all the controversy which surrounds the debate over
the nature of the presidency, few writers have taken the time to examine
in depth the origins of the office. Many relegate that aspect of its
history to a few well worn assumptions and move on to other t0pics.
Those few writers who have addressed themselves to the problem of ori-
gins invariably disagree. It is therefore important for someone to
survey the existing literature, sort out the essential issues, reexamine
the era in which the office was established, and draw some conclusions
as to its intended nature. It is the purpose of this dissertation to
lay the groundwork for what the author hopes will be renewed interest
in this area of presidential scholarship.

Traditionally disputes between scholars over the presidency
have centered on five major areas. The first concerns the general
nature of the presidency. Did the Constitutional Convention of l787
have a definite expectation or did they intend for experience to define
the basic nature and function of the presidency?

The second area concerns the institutional and organizational
structure of the presidency. Did the Convention assume the constitu-

tional provisions of the office to be reasonably complete or did they

 

ZLouis W. Koening, "More Power to the President, Not Less,”
New York Times Magazine (January 3, 1965), reprinted in The American
President, Sidney Warren, ed. (Englewood Cliffs, N. J.: l967), pp. 102-
l03.

vi

loosely organize the presidential provisions in Article 11 leaving
experience to solidify the structure?

The third area of disagreement is over the powers and duties
of the president. Did the delegates have a common and definite concep-
tion of what executive power included prior to, during, and at the close
of the Convention? Did the Convention intend for the president to be
limited only to the powers outlined in Article 11 plus the veto power
in Article 1? Additionally, did the Convention intend a grant of power
in the phrases, "The executive power shall be vested in a President,"
and "The President shall take care that the laws be faithfully executed“?
That is to say, was the president given a general grant of executive
power with its limits to be decided by either Congress or experience?

Or was the president limited to exercising only those powers specifically
stated in the Constitution? And, finally, what limits did the Conven-
tion intend to place on the commander-in-chief and treaty-making powers?

Allied to the questions raised in the third area of concern
are the ones related to the relationship between the three branches of
government. For example, did the Convention provide for a specific
relationship between the president and Congress? If so, was the rela-
tionship to be one of equal standing or was the president to be subordi-
nate to Congress to act merely as its instrument to carry out its
policies? Finally, was the presidency designed to be the counter
balance to legislative supremacy?

The fourth area of disagreement between scholars is over the
models used by the Convention in creating the presidency. Some contend

that the Convention used the English monarchy as the basic model,

vii

adapting its features to the American experience. Those who argue this
approach disagree among themselves as to whose concept of the monarchy
was used. On the other hand, another group insists that the presidency
is based on the American experience, citing examples from the colonial
to the Revolutionary War governor. Others believe that the presidency
is a hybrid of the Anglo-American experience. Still others assert that
the presidency was modeled on, and created for, George Washington, who,
they maintain, was expected to be its first occupant. Finally, there
are those who contend that the Convention created a novel experiment in
executive organization.

The final major area of disagreement is over the function of
the president. Was the creation of the office a response to the admini-
strative problems faced by the Congress under the Articles of Confedera-
tion? If so, what was the intended relationship between the president
and the administrative heads of government? Additionally, was the
president's primary areas of responsibility considered to be the hand-
ling of foreign affairs and executing the law? Or did they intend for
him to have a more general policymaking role within the government?

Related to the above significant points of difference are two
collateral issues. The first is whether the method of electing the
president was intended to be democratic or undemocratic. The second is
whether the presidency was itself intended to be democratic or undemo-
cratic in its organization and operation.

This dissertation discusses the foregoing points of contention
by a chronological examination of the events from the granting of the

charter establishing Jamestown in l606 to the beginning of George

viii

Washington's first administration. The purpose is to establish what
experiences and precedents comprise the development of American execu-
tive theory and how that might be used to explain the creation of the
presidency in 1787. The organization of the dissertation is, therefore,
along the following format.

Chapter I examines the development of American executive theory
in the seventeenth century. A detailed discussion of the Virginia and
Massachusetts experience provides the two basic examples of how governor-
ship emerged from being primarily a manager of a corporate enterprise
to a political institution in that century. A briefer discussion of the
proprietary governorship is offered since it followed the same general
pattern experienced by Virginia and the other royal colonies.

Chapter II continues the development of executive theory to
the reorganization of the empire in l763 by discussing the interaction
of the constitutional elements of the governorship with the political
environment in which it operated.

Chapter III discusses the various plans of colonial union
proposed during the period from the Glorious Revolution to the reorgani-
zation of the British empire in l763. The main emphasis is on the
problems of uniting two or more colonies under a single executive.

Chapter IV analyzes the colonial governorship in the period
from 1763 to the eve of the American Revolution. These years saw the
political climate in which the governor operated change drastically.
This era also produced some definitive ideas about the executive in the
minds of Americans which they later incorporated into the first state

constitutions.

ix

Chapter V continues the discussion of colonial union from the
reorganization of British Empire through the organization of the Contin-
ental Congress to the year l78l. In this period Americans were forced
to unite, establish a central government, and provide for a national
military leader to fight the Revolution. General George Washington's
role in national affairs during this period provided a unique insight
into the problems of creating a national executive.

Chapter VI examines the writing of the first state constitu-
tions. This was an extremely important period as Americans incorporated
their experiences and theorizing into written documents establishing
their state governments for the first time. The purpose of this chapter
is to identify and analyze the various factors used by the framers of
these constitutions to construct the executive power.

Chapter VII discusses the problems of the Confederation period
as Congress tried to reorganize itself to meet the peacetime needs of
the nation. It examines the development of the administrative arm of
Congress and the office of President of Congress as models of executive
organization on the national level.

Chapter VIII analyzes the preliminary considerations and fund-
amental assumptions of the delegates prior to the constitutional con-
vention debates over the organization of the executive branch. George
Washington's influence on the convention is also considered.

Chapter IX develops the creation of the presidency in the
Constitutional Convention. It looks at the step-by-step deliberations
of the delegates to identify their train of thought as to what they

intended the office to be in light of the questions raised earlier.

Chapter X discusses the ratification debates to establish the
Federalist and anti-Federalist interpretations of the office. Also
lbshington's initial concept of the office is developed and examined
during this period as he came to realize and accept that he would be

the first president under the new Constitution.

Chapter XI summarizes the nearly two centuries of American
executive theory and its final culmination in the creation of the presi-

dency in an effort to answer the questions discussed above as to the

intention of the founding fathers.

xi

TABLE OF CONTENTS

CHAPTER

II.

British Empire in l763 ...............
III. THE QUEST FOR UNION: The Idea of A Continental
Executive l688-l760 .................
IV. THE ROAD TO REVOLUTION: The Colonial Governor and
the Reorganization of the British Empire ......
V. AT THE POINT OF UNION: The Idea of A Continental
Executive l760-l78l .................
VI. THE REVOLUTIONARY GOVERNOR: A Transitional Execu-
tive in Crisis ...................
VII. THE ROAD TO THE CONVENTION: Re-thinking the Execu-
tive Power .....................
VIII. THE CONSTITUTIONAL CONVENTION: The Preliminary
Considerations ...................
IX. CREATION OF THE PRESIDENCY: The Convention Debates
X. THE RATIFICATION DEBATE: Interpreting the Presidency
XI. CONCLUSIONS ......................
BIBLIOGRAPHY .........................

AMERICAN EXECUTIVE THEORY: The Seventeenth-Century

Foundations .....................

DOMESTICATING THE EXECUTIVE: The Eighteenth-Century
Colonial Governor to the Reorganization of the

xii

Page

144

165

219

277

339

412
432
503
572
579

CHAPTER I
AMERICAN EXECUTIVE THEORY:
The Seventeenth Century Foundations

The foundation of American Executive Theory began with
charting of a joint stock company in l606. Several charters later this
commercial venture formed a pattern of executive organization and power
which laid the foundation for future development of executive theory
throughout the colonial period.

The English joint stock company concept reached a point of
maturity during the reign of the Tudor's. The charter of Elizabeth I
for the East India Company in l600 marked a refinement of a precise
nomenclature for joint stock companies which lasted until the end of
the reign of Charles I. For the most part, companies chartered after
l6OO granted power to the "Governor and Company“ or the "Governor and
Society" to undertake specific enterprises. The East India Company's
charter, for example, provided no more than the legal basis for its
trading activities since its continued existence depended not on its
trading capital but on its annual election of the governor, the court
of committees, and the other corporate officials. The assumption was
that if the state could guarantee a continued constitutional framework
of adequate and legitimate power the company's merchants could be

expected to organize the details of trade. Additionally the governor

./..-

and court were given a wide range of discretionary powers to regulate

tme internal affairs of the company as was the case With most other

cmmpanies chartered at this time.
The accession of the Stuarts to the throne marked a general
tfightening of royal control over joint stock companies The charter

that James I granted to the London Company in l606 kept the company and

colony directly under the control of the Crown, and not the Crown and
James decreed

Parliament together, as was the case with England itself

that the reigning monarch or his "heirs and successors" retain the power
to "ordain and give" such additional instructions, laws and constitu-

tions as they thought necessary, unless they saw fit to delegate their

Power to others .
The London Company's first charter provided for two counCils

True first was appointed by and was directly responsible to the king,
This thirteen-man

arui its membership could be altered by him at will
bOdy reSided in England and was responsible for "the superior managing

arui direction only of and for all matters that shall concern the govern-

ment" of the colony. It was authorized to appoint a second thirteen-man
ccJuriml to reside in the colony "to govern and order all matters and

 

\
1See K. N. Chaudhuri, The English East India Compagy_: The

§3L9_£1y of an Early_Joint- Stock Company, 1600- l640 (London, 1965); W. E.
I"QeTback, The Merchant Adventures of England: Their Laws and Ordi-
l97l); and William Rovert Scott,

T-IZLsaes with Other Documents (New York,
Constitution and’Finance of English Scottish and Irish Joint Stock

 

 

 

 

 

 

 

h\

~9~m__11§nies to l720, 2 Vols. (Gloucester, Mass. , l968).

CC) 2Bennjamin Perley Poore, The Federal and State Constitutions,

EE;;!_9__nial Charters and other Organic Laws of the United States (Washing-
n . 1878), ,l889.

causes which shall arise, grow, or happen to or within the same several

cmlonies," according to the laws, ordinances, and instructions, given

amlsigned "under the Privy Seal of our realm of England."3

The council in Virginia was in turn authorized to elect a
inesident for a term of one year. He could be removed by a majority
vote by either council "upon any just cause, either absence or other-

On the death or removal of a president or council member, the

wise."
council in Virginia was authorized to elect another so that there would

always be a president and thirteen council members. The president was

specifically prohibited from serving more than one consecutive term,
He had one vote on

but could be reelected after an intervening year.
'the council as governor, and a second vote as a council member in case
5

0f a tie.
The president was required to see that all the orders and

l°rIStructions from the king, privy council, and London Company were
He also was authorized to "rule

faithfully and thoroughly carried out.
aruj command" all officers, soldiers, and citizens in the colony in con-

f0Y'rnity with the regulations established for him by the king and council

 

31bid.
f 4This could be circumvented as Captain John Smith did by hav-
ang a successor elected and then resign immediately. See Philip Alex-
Cnder Bruce, Institutional History of Virginia in the Seventeenth
W (Gloucester, Mass., 1964), I, 300.
Instructions reprinted in The Early Charters of the Virginia
l606-l62l, Samuel M. Bemiss, ed.

WW with Seven Related Documents:
" 'I‘Tiamsburg, Virginia, l957), p. 15.

In London. Additionally, he was, with the help of the council, to
Prevent him from severing allegiance to England.6

The president and council were given judicial authority to
hear, try, and punish offenders in the colony. The article of instruc-
tions and orders specifically listed crimes of "tumults, rebellion,
conspiracies, mutiny, and seditions in those parts which may be danger-
ous to the estates there, together with murder, manslaughter, incest,
rapes, and adultery" which were punishable by death.7

The instructions also laid down the procedure by which the
president and council were to conduct these judicial proceedings.
Twelve I'honest, and indifferent persons swarn [sic] upon the Evangel-
ists," were to act as a jury appointed by the president and a majority
of the council. Upon conviction or confession of guilt, the president
and a majority of the council "shall have full power and authority by
these presents to give judgment of death upon every such [offender]."8

The president and council were given general authority to try
and punish all other crimes and civil offenses not specifically listed
in the instructions. In these cases the president and a majority of
the council could punish offenders "either by reasonable corporal pun-
ishment and imprisonment or else by a convenient fine, awarding damages,
or other satisfaction to the party grieved." Additionally, the president

and majority of the council were empowered to punish I'all manner of

 

6Ibid.

Ibi ., p. l6.
id.

\I
Q.

(I)
U'

I

excess, through drunkenness or otherwise, and all idle, loitering and
Vagrant persons" in the colony.9

The other powers granted to the president and council con-
cerned the economic conditions of the colony. This included the appoint-
ment of various local officials, whose terms of office were generally
longer than that of the president himseif.'°

Finally, the president and council possessed legislative dis-

cretion to cover contingencies not listed in the charter or instructions.
A majority of the council with the president could "lawfully . . . con-
stitute, make and ordain such constitutions, ordinances, and offices
for the better order, government, and peace of the people . . ." in the
colony. The only prohibition was that the laws did not touch any "party
in life and member and were within the score of the legislative power
granted to the London Company by its charter." Otherwise, they would
remain in effect until overruled by the council in England.11

'The distribution of powers under the first charter was extremely
awkward. The colonists, for example, were under three specific areas of
authority. They were equally subject to the personal authority of the
king, the regulation of a distant commercial company, and finally to
the immediate supervision of a president and council not of their choos-

ing. At all levels the colonists themselves had no formal voice in

their fate. Additionally, this structure denied even the stock holders

 

of the company direct control over many important aspects of the
company ' 5 operation. 1 2

The final undoing of this colonial venture resulted from the
continuous quarreling of the members of the first council appointed in
Virginia as they tried to increase their personal power at the expense
of the colony. After this dismal beginning the members of the company
were forced to apply for a new charter.

The failure of the company's first colony venture was ascribed
as much to the form of government as it was to the acrimonious behavior
of the council members. A broadside published in l609 to stimulate
further emigration to the colony noted the previous failure. "Experience
of error in the equality of Governors, and some out-rages, and follies
committed by them, had a little shaken so tender a body," it claimed.

The source of the problem came from two "roots," it concluded, "Ihg_

"13

Form of Government, and length and danger of the passage. A sermon

 

preached before the company council in l6lO also concluded that "the

 

12One historian, over a century later, observed the following
about the arrangement of authority in the colony: "It seemed certain,
that though such exertions of prerogative were common in that age, a
king of England could not more exercise a legislative authority over
English subjects, because they had removed to a distant territory of
the state, than over Englishmen within the realm. For the priviledge
of both had been derived from the same great charter. Such then was
the rotton foundation where upon was erected, with no great skill, the
superstructure of the Virginian immunities and laws." George Chambers,
Political Annals of the Present Colonies. . . . (London, 1780, reprinted
New York, l868), p.l7.

13"A True and Sincere Declaration of the Purpose and Ends of
the Plantation begun in Virginia. . . .", reprinted in Alexander Brown,
Genesis of the United States (Boston, l890), I, 342.

principle (if not the only) wound in this business hath been the want
of government."14

The Charter of l609 ended the imperial form of organization
and passed political management of Virginia to the London Company.
James I was not pleased at the transition, but the only alternative was
to sustain the colony from his own treasury or let it fall into total
ruin. In return for delegating his power, James expected a substantial
return from customs paid on imports from the colony. To induce invest-
ment in the company he agreed to allow greater participation by its
members through a more liberalized charter.

The l609 Charter established "a corporation and body politic"
under the direction of a "Treasurer and Council." This time they were
primarily agents of the company and not the king, as he had delegated
to the company his right to draw up all the orders, instructions, and
constitutions for the administration of the colony's affairs. However,
the king retained the right to veto any appointment and continued to
require an oath of allegiance on the pain of disqualification, which
proved troublesome for the company later on. The company's rights and

powers over the colony were broadened far beyond those granted in the

 

14"Crashaw's Sermon" reprinted in Brown, Genesis, I, 365.
See also John Smith's "Testimony to the Commission Appointed to Investi-
gate the Affairs of the Virginia Company," on the defects of the govern-
ment. "The multiplicity of opinions here, and officers there, makes
such dealings by question and formality, that as much time is spent in
compement as in action. . . ." Jack Lankfor, Captain John Smith's
America (New York, l967), p. l59. Also George Chambers concTfided,
“Alteration of systems is sufficiently pernicious in the best established
government; but, in an infant colony, frequent change of government is
extremely destructive: And owing to this, among other causes, the pros-
pmfity of Virginia was greatly retarded," Political Annals, p. 35.

 

 

l606 charter. They were authorized, in essence, to "correct, punish,
pmrdon, govern, and rule" all people who were to settle in Virginia.15
The colonial plan of government was completely altered. The
fOrmer president and council were replaced by an all-powerful governor,
elected for life, who ruled under the authority of martial law. He was
authorized to "have full and absolute power and authority to correct,
punish, pardon, govern and rule all such subjects [of the colony] accord-
ing to such order, ordinances, constitution, directions and instructions
by our said Council." The governor was also given discretionary power
to cover defects or omissions in his office in capital, criminal, civil
offenses, so long as they were agreeable to the laws, statutes, and
governmental policies of England. Additionally, the governor was given
full power and authority to "use and excercise marshal law in cases of
rebellion or mutiny in as large and ample manner as our lieutenant in
our counties within our realm of England. . . ."16
The instructions required the governor to play the part of
the chancellor rather than a judge when he exercised his judicial
authority.17 In capital and criminal cases of rebellion and mutiny he
was required to invoke martial law "according to your commission as of

most dispatch and terror and fittest for this government (sic)." In

all other cases of criminal or civil authority the instructions stated

 

15Bemiss, Early Charters of Virginia, p. 27.

161bid., p. 53.

‘7The term chancellor, as used in this context, probably
meant that the governor was to be the chief justice, rather than a
trial judge.

that

you shall find it proper and useful for your government to
proceede rather as a chancellor than as a judge, rather upon
the natural right and equity than upon the nicenes and letter
of the law which perloexeth in this tender body. . . .

It went on to admonish the governor to

dispatch all causes so that a summary and arbitrary way of
justice discretely mingled with those gravities and forms of
majesty as shall in flour discretion seem [most] apt for you

and that place,‘ {find will be of most use both for expedition
and for example.

The governor was also required to maintain and disseminate the

symbols of his authority.

You shall for the more regard and respect of your place, to
beget reverence to your authority and to refresh their minds
that obey the graviety of those laws under which they were
borne; at your discretion use such forms and ensigns of govern-
ment as by our letters-patents we are enabled unto you.

Additionally, the instructions gave the governor the "power to make, add
or distinguish any laws or ordinances at your discretion . . ." neces-
sary to the maintenance of respect for the governor's authority. He was
admonished to listen to all opinions and complaints, but once he had

decided upon a course of action

' do not impart [it] to any [one] whatsoever, but to such onTy as
shall execute it, and to them also under the seal of your com-
mandment and but at the instant of their parting from you or
the execution of your will.

Finally, the governor was authorized to have “the attendance of a guard

upon your person."19

 

18Bemiss, Early Charters of Virginia, p. 58.

191m.

10

Contemporary records indicate a belief that one of the
reasons that the original colonial experiment failed was because the
colonists lacked discipline. This would explain why the governor's
instructions combined both a civil and military code designed to keep
freedom of action to an absolute minimum. One observer noted that the
instructions given to Governor Dale, for example, were intended to
order the colonists' activities along a military routine. This, company

officials argued, would create necessary direction of labor to make the

colony successful.20

Lord Bacon, a member of the council in London, expressed his
opinion on the wisdom of limiting authority to the governor and a few

advisors in his essay "Of Plantations." He said that

For government, let it be in the hands of one, assisted with
some counsel; and let them have commission to exercise martial
laws, with some limitation, and above all, let men make that
profit of being in the wilderness, as they have God always and
his service before their eyes: let not the government of the
plantation depend upon too many counsellors and undertakers

in the country that planteth, but upon a temperate number:

and let those be rather noblemen and gentlemen, than mer-
chants; for they look ever to the present gain.2

Additionally, the governor had the power to appoint and remove
a council of advisors. His instructions required him to summon and con-
sult the council in all matters of importance and to "proceede therein

with their advice." The governor was also authorized to appoint and

 

20For example see "A True Declaration of Virginia,“ re rinted
in Peter Force, Tracks and Other Papers (Gloucester, Mass., l947), III,
No. 5. Also seeT“Council in Virginia to Virginia Company," reprinted

in Brown, Genesis, 1, 402-3.

21Brown, Genesis, II, 80l.

11

remove any other officer that was needed and was not otherwise provided
for by the council in London.22

Finally, the instructions gave a detailed list of non-political
duties the governor was required to perform. These included specific
orders on organization of the colonial economy, defenses, and peace
treaties with the local Indians. The governor was especially advised
to keep the council in London informed as to all the mail sent and
received by the colonists as well as what was shipped into or out of
the colony so that "our fleets come not home empty nor laden with use-
less merchandise."23

The function of the governor up to this point was basically
to manage a large commercial venture. The failure of past efforts to
make a profit necessitated this drastic alteration of management methods.
However, as the colony increased in size the governor's political func-
tion began to supersede his commercial functions as he delegated the
latter to subordinate officers.

Not long after the 1609 Charter took effect it became evident
that further changes were necessary. Economic crisis turned into poli-
tical problems for the company and they were forced into a third revision
of the charter. The Charter of 1612 expanded the colonial territory and
made a number of changes which "our said former letterspatent do not
extend so far as time and experience hath found to be need[ed] and con-
venient." Among these were new laws and administrative procedures which

22Bemiss, Early Charters of Virginia, p. 52.

23Ibid., p. 66.

12

began to pull the colony together into a more cohesive political
unit.24

A number of significant changes were made in the governing
of colonial affairs by the Charter of 1612. The power of the general
assembly of adventurers was broadened to give them a greater voice in
governing the company and colonial affairs. Prior to the 1612 Charter
they were primarily limited to electing members of the council and
determining the apportionment of land. Under the new charter they were
authorized to elect all officers of either company or colony, to admit
new members to the company, and to draft laws and ordinances for the
colony's welfare. More significant was the fact that the general court
of adventurers displaced the council as the governing body and turned
the former council into the court's executive agent.

By 1618 events again conspired to force a change in the com-
pany's charter. Governor Argall had grossly abused his powers which
brought to the fore much of the resentment with the way the colony had
been operating. Additionally, political disputes between the Crown and
Parliament were mirrored in the governing councils of the company.
Finally, Sir Edwin Sandys, an outspoken critic of the king's prerogative,
led a faction which seized control of the company in 1618. While the
colony could have continued to operate with its system of governor and
council, Sandys wanted to remove the remaining effects of Governor
Argall's misrule. Moreover, he wanted to abandon the monopolistic policy

of the company and its plantation type colony. In its place he sought

241 id., p. 77.

13

to establish a colony which could grant land under easy conditions to
st‘i mu late emigration while at the same time give the colonists the
widest possible freedom of trade. This, he hoped, would secure the full

cooperation of the colonists and assure the colony's success.

Under Sandys' guidance the general court of the company re-
organized the colonial government. The instructions sent with Governor
Yeardley in 1618, which was sometimes known as the "Great Charter,"25

called for an equal and uniform government consisting of "two supreme

councils." The first was chosen by the company in England and consisted

of a governor and council. The governor and lieutenant governor were
nominated and elected by members of the company assembled in a quarter
court for a term of three years, which could be extended to six at the
company' s pleasure. 6 The‘second was a council of state in which two

bur‘SJesses were chosen by the planters from each town and colony. The

governor and council met with the representatives in a joint assembly

presided over by‘the‘secretary of the colony. The governor had the

power to summon the burgesses "once yearly and no oftener but for very

N

251mm, p. 95.

re 26One author noted the need to "season" a governor, hence a
P350" t0 give him a longer term. "The General Assembly, writing, to the
rivy Council in 1623, protested against the limitation of the term to
dufie YEGY‘Suthe period adopted in actual practice--on the ground that,
or 129 the first.year, this.officer was.almost invariably disabled more
his ts? by the Sickness inc1dental to his 'seasoning'; and that during
h'rd . he was making preparations for his departure for England,

:gdéhgn Consequence, was not disposed to give the strictest attention

- . Performance of his duties.‘I Bruce Institutional History of
mm. 111, 310-311. '

 

l4

extraordinary and important occasions." Additionally, he possessed

veto power‘over acts of the assembly.27

The events between 1618 and 1621 were not only important for

the Virginia company, but they‘marked a significant period for American

constitutional history. Governor Yeardley's instructions authorizing

the first representative assembly was the beginning of representative

democracy in the colonies. Two years later the company codified a

series of rules for the permanent administration of the colony's affairs.

This was considered by some to be the first rudimentary constitution in

Amri ca n hi story . 28

From 1621 to 1624 the experiment in Virginia colonial govern-

ment came full circle. The instructions given to Governor Wyatt in

1621 created a model form of government designed by the ablest minds

of the company. It included a governor and council of state who were

aPpointed by the company, and a general assembly to be convened at least

once annually, which was composed of the governor, council, and bur-
gesses . 29

The powers conferred upon the governor became a model for

future executive grants. Like past instructions he was given "absolute

power and authority . . . to direct, determine and punish at his good

\

27Bemiss, Early Charters of Virginia, p. 95.

Al 28See Bruce, Institutional History_of Virginia, II, 248;

198??"‘197‘ Brown, Engl_ish Politics in Early Virginia History (Boston,
’ P- 41; and7fiexander Brown, First Republic in America (Boston,

’ P- xix.

ngemiss, Early Charters of Virginia, pp. 109-125.

15

d1’ scretion any emergency business, neglect or contempt of authority

- ' . ." Again, like past instructions, the governor had the veto power
over acts of the assembly. Moreover, the governor had his power in the
council reduced from‘two votes to just "a casting voice if the number
0F councilors should be even or should be equally divided in opinion."
However, it was not clear whether the company intended the governor to
be ‘i ndependent or merely the first member of the council .30

Additionally, the instructions created a new executive office

known as the treasurer of the colony. His responsibility was to over—
see the production of staple commodities necessary to the survival of
the colony. In the past this duty was assigned to the governor, but
rep eated problems led the company to reevaluate the governor's role.
The ‘i nstructions noted that past failures were caused "in part by our

31' Relieved from responsi-

cha rging the governor with too much business."
bl" 1’ ty for specific economic concerns,'the'governor could devote more
time to solving political problems. This marked an important step in
the transition of the governor from a manager or supervisor of an essen-
tia‘l ‘l 3 commercial venture to an executive head of a settled political
com-nu riity.

The company's awareness of the need for a responsible execu-
tive 1:0 head the colony is demonstrated in the detailed instructions

for t he inmediate replacement of a governor who failed to fulfill his

term of office for one reason or another. Upon the death or removal of

16

the governor the council had'fourteen days to elect one of their members
as acting'governor‘.‘ If a majority'could not agree, the instructions
established a line of succession. First came the lieutenant governor,
then ‘ the marshal, treasurer, and finally "one of the two deputies . . .

unt‘i’ l the-place of governor be settled on [one] of our said chief

OFF-i cers."32

Thus, by 1621 Virginia was governed by a code creating a
rudimentary form of popular government. The executive power established
by that charter became, in retrOSpect, an important milestone in
es tablishing what'was considered to be within the purview of executive

Power and how that power ought to be organized.

However, the political problems of the company in London were
fa r from over. Debts and political feuds finally forced the king to
dis solve the company and bring the colony under his direct control again.
Ja"hes , angered when the company refused to select a treasurer from the
”St of names he had supplied, ordered his attorney general to prepare
a quo mtg and bring the case before the King's Bench. The company
105‘1: its charter, through an error in pleading, in spite of impassioned
p13aczling from the colonists themselves. James, it seemed, was determined
to l‘<1*aep popular government from gaining a foothold in Virginia.33

In 1624 King James I issued a new charter for Virginia. The
document retained Governor Wyatt and the power granted in the instructions
\

32M” pp. 121-122.

33For a discussion of the problems of the final dissolution

8f the company see Frank Wesley Craven, Dissolution of the Virginia
m: The Failure of a Colonial Experiment (Gloucester, Mass., 1964).

17

to former Governor Yeardley, but made no mention of the assembly.
Moreover, the commissions of 1624'andl625 were granted to the governor
and council which led toconfusion over their intended relationship.
The governor claimed-to possess the real executive authority while
be'i ng advised and checked to a limited degree by the council, while
the council laid claim to a larger share of the executive power than
they had in the past. However, before the commission that James had

appointed to supervise'the changeover of the colonial government could

f1“ n ‘1' sh their work, James died.34

The accession of Charles I placed the future of Virginia
be 1:0 re the Privy Council.35 The'council'refused to recharter the com-
Pa ny, in spite of pleading by some former members of the London company to
res urrect it. Instead, the king reappointed Sir George Yeardley governor
with the same powers set forth in‘Wyatt's commission. Charles then
iss ued a proclamation which outlined'his intention "to render this (the
VIV‘Q ‘i nia) government into such a right course as might best agree with
the 'Forms [of government] held in the rest of his monarchy." He then
PI‘PC eeded to outline a form of government that was substantially the
Same as the one his father had issued for the original colony in 1606.36

\

34See Brown, First Repgblic in America, pp. 585-609.

aff - 35Throughout most of the seventeenth century the colonial
b 3:1 rs were handled as an undifferentiated part of the Privy Council's
5%“ h 1255. See Louise Phelps Kellogg, "The American Colonial Charter.
mud)! of English Administration in Relation Thereto, Chiefly after

88 - " Annual Report of the American Historical Association (Washing-

t‘m» 1903), I, 185-341.

V' - 36For documents relating to Charles I and his relations with
"‘91 ni a see The Virginia Magazine of Histomand Biggraphy, II, (1900),

18

Prior to the arrival of Yeardley with the new set of
instructions, Wyatt faced a dilemma of what to do about the assembly.
The temporary commission under which he was acting was silent as to his
power to call it into session. Since the former letters-patent granting
the governor this power was cancelled, the assembly could not legally
be called until the governor was so authorized to summon it by the king.
However, Wyatt was reluctant to administer the colony's affairs with
the council along. On specific occasions he would invite the leading
ci t i zens to take part in the council's deliberations when practical.

Fo rmal documentsresulting from these deliberations would appear in the
name of "Governor, Council, and Colony of Virginia Assembled Together."37

By the time Governor Yeardley arrived in Virginia in 1626 it
was clear that the governor faced an impossible work load. The colony
had grown considerably and the governor was given the legislative duties
in addition to his traditional executive and judicial responsibilities.
Thi 3 concentration of power in the hands of one branch of government was
"0': Only a tremendous burden for the governor and council, but was also
eXtr‘ernely inefficient. Yeardley was quick to request the king to autho-
rize him to summon the assembly. After much hesitation, Charles finally
a9r9ed on the royal instructions of 1628.

Thus, the year 1628 marked the end of corporate control of
Virg ‘3 hia. Hereafter the Crown, not the company, would direct the affairs

\

gap: 3 68-386. Also see Wilcomb E. Washburn, Virginia Under Charles I and
wen, 1625-1660 (Williamsburg, Va., 19577.

37

 

Brown, First Republic in America, p. 647.

19

01: ‘tJie colony. Under the instructions the new government would consist
()f’ ‘tJie governor, members of his council, the treasurer, and the secretary
of: estate, who were appointed by the king, and the House of Burgesses,
uric: vvere chosen by the people. This was to be the established form for
trace \Iirginia Government through the end of the colonial period, except
for the brief period of. the comnonwealth. There were, however, many
crlear1gjes which took place within that time which affected the development
0F executive theory.

The charter experiments in Virginia colonial government prior
to “[6528 established a number of significant principles which were
l'"llDor-tant to the later development of American executive theory. This
ex[Derience created a reasonably independent and strong executive, whose
Powers, for the most part, remained intact throughout the seventeenth
cer1rt:L1ry.38

The first principle established in these early years of Vir-
9V1‘i £3. colonial government was executive unity. In all charters the
exec: u tive authority was vested in one person called either president or
9W9!“ nor. Though the charter of 1606 created a combined unit of presi-
dmit: .and council, the president was responsible for seeing that the
Londo n council's decisions were administered to their and the king's
sat-i S 'faction. The other charters created an executive head called the
gove1"‘tior who did not share his authority equally with a council, but
“the r, in theory, used the council in an advisory capacity. However,

\

f 38See Thomas J. Wertenbaker, Give Me Liberty: The Struggle
Wf—Government in Virginia (Philadelphia, 1958).

20

in actuality the governors were sometimes at the mercy of the council.
For example, a newly arrived governor would be heavily dependent upon
the council for advice until he had been exposed to conditions in the
co1 any long enough for him to render judgments about the situation

h‘i ms elf.

The second principle of executive theory was written delega-
ti on of powers. While the powers and duties of the governor varied from
time to time, depending on the political situation in England, they were
nevertheless contained within a written document whether it came from
the king or the company.39 Governors were, for the most part, hesitant
to go beyond their formally delegated powers fearing their recall by
the king or council in London. Governor Wyatt's refusal, for example,
to summon the colonial assembly without specific authority from the
king . even in the fact of his hesitancy to rule without their advice,
1nd? cated how strongly he felt about transcending his authority.

Executive responsibility was the third principle established
1" this period. No matter how powerful a governor was, he was still
responsible for his actions to someone other than himself, generally to
either the king or the council in London. Even under the 1609 Charter,

Which gave the governor "full and absolute power," he was limited to

 

. 39The significance of the charter as a fundamental constitu-
t1°n was noted by George Chambers in 1780 when he said, "It is a singular
t‘rcunistance, in the history of these colonies, that there is not an
”5113 rice of emigration without the permission of the supreme magistrate
Of the state first applied for and obtained. The anxiety with which all
praYEd for charters, under the great seal of England, shew (sic) that
d 93! deemed them extremely essential to the ultimate success of their
8519713." Political Annals of the Colonies, p. 26.

21

exercising his power within the defined limits of the charter and
instructions, and even then he was subject to review by the company and
k'i ng.

The fourth principle of executive theory granted the governor
a degree of executive discretion, which made him more than a mere admini-
strator carrying out directives. The council in London realized that
the charter and instructions could not foresee all eventualities and
granted the governor power to meet most problems as he saw fit, but
subject to any limitations within his grant of authority and subject to
revi ew by the London council. The governor therefore had political
P0 1 ‘i cy-making power which made him more than just an administrator.

The experience of these early Virginia charters helped to
establish the general scope and purview of executive power. For example,
the colonial executive was charged with both political and administrative
1‘95 ponsibilities. As the colony grew the council in London began to
de] eg ate various administrative tasks to specially created assistants
to 7 ‘i ghten the governor's work load and allow him more time for his
P01 ‘5 t ical duties.

The governor was also given a number of specifically enumerated
powers to carry out his duties and responsibilities in this period.
Among the more significant ones were his veto and appointing powers,

“9 b reaking votes in the council meetings, the authority to summon and
(”530 ‘lve the legislative assembly, and lastly, to be commander-in-chief
of the military. These powers formed the core around which future
C010" ‘ial executive theory developed. Moreover, the governor also had

Within his jurisdiction the legislative power. However, it was finally

22

g‘i van to the assembly, not for reasons of constitutional theory, but

because it was overburdening the governor's already heavy work load.

Finally, the importance of having a designated executive for
the colony was established by a specific line of succession when a
g overnor could not complete his term for one reason or another.

Upon the foundations laid in these first twenty-eight years
the governorship of colonial Virginia grew into a powerful political
ir155‘tritution by the end of the seventeenth century. How successfully
it:s; {Dowers were used depended upon the personal idiosyncrasies of the
in (ii vidual governors who varied considerably in character and ability.
EV en the Lords of Trade were aware of this when they wrote:

All things are made so entirely dependent on the Governor's
single will and pleasure, that whenever there may happen an
ill man in that post, it cannot reasonably be expected [that]
any person . . . should either oppose such [a] one an what-
ever he may attempt or so much as give any advice.4

Another case reported to the board in 1667 noted that there were "in-
jun-i es done in the courts through the governor's passion, age, or weak-

"958 . . . [and] the governor licensing some to trade with the Indians:

41

and not timely suppressive [of] their insurrections." Another report

put ‘3 t more succinctly when it concluded that "young colonies are made
0" Y‘u ined by their governors."42

\

40Cited by Thomas J. Wertenbaker, Give Me Liberty: The Strggy

Mgr Self-Government (Philadelphia, 1958), p. 19. Taken from the
pritéjssh Public Records Office, America and West Indies, C.0. 5-1359.
. 5.

1 . 41Calendar of State Papers, Colonial Series, America and West
~fl814§5§1,_1661-1668 (London, 1880), v, doc. 1532, p. 484.

42Ihid., v11, doc. 1066, p. 479.

23

Governors could and did augment their grants of power by a
judicious use of patronage. The most sought after office was a seat on
the governor's council. In a report to the Lords of Trade an observer
noted that the councillors "have all along held the places of profit in
V'i rginia by the governor's gift and during his pleasure."43 Once a
member of the council, a person would be next in line for a commission
in the colonial militia or navy, or be eligible for the lucrative posi-
tion as a tax collector. Additionally, the governor appointed justices
of: the peace, sheriffs, and other local officials which helped insure
acceptance of his policies on the local level. However, the governor's
Power was restricted in cases where the office received its commission
un der the royal seal from England. Then, only when the office was
Vi cant due todeath, resignation, or removal, could the governor appoint
a temporary incumbent until a replacement was commissioned from England.44
The governor's relationship with the colonial assembly was often stormy,
but ‘it was not until the middle of the eighteenth century that the
355 embly gained the upper hand.

On questions where the burgesses were not unified against the
gWer‘nor's policy, the governor could bring to bear his patronage to

secu Y‘e passage of his legislation. As one observer lamented:

5 43Cited by Wertenbaker, Give Me Liberty, p. 21, from c.o.
“1359. pp. 95-96.

A 44See Bruce, Institutional History of Virginia, II, 323.
1'50 Governor Berkeley's Instructions, 1641-1642, Colonial Entry Book,

16065— 1662, p. 222.

24

Places are now shifted as often as the occasion requires, to
put out or in, as men will or will not serve a turn. . . .
need not tell you what men too many of our House of Burgesses
are, how greedy they are to catch at any little place of
profit, without considering the ill consequence that attends
it. [They are] like the poor harmless fish that eagerly
catches at the balg without considering the hook of destruc-
tion is under it.

The governor possessed an absolute veto over legislation
though in many cases he rarely had to use it. If a bill displeased him,
he could exercise his influence on the council to dispose of it. Fail-
ing that, his signature and a message to the king advising him to over-
turn it. would, in effect, allow the governor to maintain his political
standing within the colony and yet all but veto the legislation.

The governor's power to summon, prorogue, and dissolve the
assembly was also a powerful weapon that he could invoke to influence
legislation. Most instructions required him to convene the assembly at
least once a year. However, if the governor found cooperative burgesses,
he oould continue them in session indefinitely, though the arrival of a
new governor, or the accession of a new monarch automatically dissolved
the assembly.

The governor's relationship with his council was sometimes
strained as they vied for political influence. In 1631, when the gov-
ernor and council clashed over their respective powers, Governor Harvey

lamented that he was limited to carrying out the council's recommenda-

tions, while having the influence of only one vote on the council. The

45Cited by Wertenbaker, Give Me Liberty, p. 20, from C.O.
5-13414, doc. 15 G. Also see Richard L. Morton, Struggle Against Tyranny,
and the Beginning_of A New Era, 1677-1699 (Williamsburg, Va., 1957).

 

 

25

council, on the other hand, complained bitterly about Harvey's
overbearing usurpation of power.46 By the end of the century, however,
the governor had clearly separated himself from the council and gained
considerable power over it, even to the point of the Crown regularly

appointing his nominees to the council.47

As will be seen later, this
arrangement became the model for other royal colonies as well as most
of the proprietary colonies.

As the representative of the king, the governor was eager to
maintain the pomp and circumstances which surrounded such an office.
In addition to his much heralded body guards, used as much for show as
for protection, the governor was quick to subdue any threat to his power
or person. Records indicate that men were severely punished for utter-
ing words which the governor thought might incite seditious behavior

among the colonists.48

Specifically, then, the Virginia governor in the seventeenth

century possessed about eighteen distinct powers which can be classified

49

into eight basic areas. First, he was the personal representative of

 

46Calendar of State Papers, Colonial Series, 1, April 2, 1663,

p. 129.

47Henry Hartwell, James Blair, and Edward Chilton, The Present
State of Virginia, and the College, Hunter D. Farish, ed. (Charlottes-
V1 e9 6., s pp' ' °

48Calendar of State Papers, Colonial Series, VII, doc. 1390,
p. 6243 Also see Bruce, Institutional History of Virginia, 11, 353-7
for other examples .

49His powers were: (1) appoint members of his council and,
with cause, sus end them; (2) to approve legislation; (3) to veto
1e islation; (4? to summon, prorogue, and dissolve the general assembly;
aCt as chief justice, and establish courts and appoint judges; (6)

 

26

the king and empowered to do those things which the king would normally
do if the monarch were personally looking after the affairs of the
colony. Second was his control over the military. Third was his regu-
lation of the colonial maritime trade. Fourth was his control over
treasury matters. Fifth and sixth were his control over the use of the
colonial seal and his responsibilities as the chief judicial officer.
Seventh was his influence in matters under the jurisdiction of the
council. And finally, the governor was the king's dg_fagtg_ecclesiasti-
cal representative in the colony.

The exception to the previous development of executive theory
in Virginia came under the commonwealth. During that period the bur-
gesses appointed the governor, council and other executive officers.
Under the authority of the convention of 1652, which empowered them to
elect "all the officers" of the colony, they exercised only such powers
as the assembly might from time to time delegate to them. Cromwell
apparently thought he still possessed the authority to appoint colonial
executives when he declared in December, 1653, that he "thought [it]
fit to continue colonel Bennet" as governor until he should "further
signify his pleasures." However, Cromwell, distracted by greater

problems, said nothing more about the matter and the assembly continued

 

to validate with his signature all warrants to withdraw money from the
treasury; (7) to pardon offenders, except treason and willful murder;
(8) to grant reprieves and remit fines; (9) to head the church; (10) to
muster the militia; (11) to execute martial law; (12) to fill the office
of the Vice-Admiral; (13) to administer oaths of allegiance; (14) to
appoint shipmasters and empower them; (15) to grant patents to public
lands; (16) to designate cities for public buildings; (17) to issue
proclamations; (18) to naturalize foreigners. See Bruce, Institutional
History of Virginia, 11, 320-321.

27

to elect governors until the Restoration. These eight years of self
rule provided the assembly with some valuable lessons which they were
to use against future governors.50

In summary, then, the experience of the seventeenth century
Virginia government established a tradition of strong executive leader-
ship which did much to lay the groundwork for the development of Ameri-
can executive theory on a national scale.

Virginia, however, was not the only colony from which the
precedents were drawn. New England provides another major illustration
of the evolution of executive theory in the seventeenth century. The
experiences in this region established many of the same principles that
Virginia did but from a different approach.

The first colony in the New England area was Plymouth. Like
many of the later New England settlers which were to follow, the colo-
nists at Plymouth came to America for religious reasons. They were part
of the Puritan movement which attempted to reform the Church of England.
However, they soon found that the church was not amenable to reform
from within and separated from it by migrating to Leyden, Holland. It
was from this group of "Separatists" that the colonists which eventually
founded Plymouth were drawn. As in the case of Jamestown, the Plymouth
colony was dependent upon profit minded investors to finance their
endeavor, though after the first disastrous winter in Massachusetts,
investments gradually declined. In spite of this, the colony began to

prosper and within five years was self-sufficient.

 

50M. w. Henning, ed., The Statutes at Large (1809-1823), I,

406-412.

28

When the Pilgrims landed in America they were not within the
area described by their charter. This necessitated the formulation of
an agreement to carry on the basic functions of government which became
known as the Mayflower Compact. It demanded that the signers obey all
the laws and ordinances drafted by the leaders of the enterprise. Its
purpose was to "convenant and combine our selves together into a civill
body politick. . . ." The government it created was authorized:

by virtue hearof to enacte, constitute, and frame such just
and equall lawes, ordinances, acts, constitutions, and
offices, from time to time, as shall be thought most meete and
convenient for the general good of the Colonie, unto which we
promise all due subm1551on and obedience.

The settlers then chose, "or rather confirmed," as historian-
governor William Bradford noted, John Carver as the first governor of
the colony. Carver had been informally appointed governor of the May-
flower when it sailed from England. Once the Mayflower Compact was
signed it was necessary to elect a governor and therefore the colonists
chose to confirm Carver, their previous choice.52

For the first three years the governor and one assistant,
elected by the general court, comprised the executive branch. They were
empowered to make laws as they saw fit. In 1624 the number of governor's

assistants was raised to five and a short time later to seven.53

 

 

 

511'Jilliam T. Davis, ed., Bradford's History of Plymouth Planta-
tion, 1606-1646 (New York, 1923), p. 107.

52mm.

53

Poore, The Federal and State Constitutions, I, 932-942.

29

During the first year a number of settlers challenged Governor
Carver's authority to rule the colony. A similar situation occurred in
Jamestown in 1608 which forced Captain John Smith to assume dictatorial
powers to save the colony from collapsing. Likewise, as Bradford
reported, the situation in Plymouth was brought under control by the
majority of settlers supporting the wisdom, patience, and "just and
equall carrage of things by the Gov[erno]r and the better part, which
cleave faithfully togeather in maine."54 Unfortunately for Carver, he
died a short time later, living only long enough to guide the fledgling
colony through its first political crisis. Bradford then succeeded him
as governor.

In the early years of the Plymouth colony, decision-making
was in the hands of the elected officials. In 1623 rumors circulated
to the home company that Plymouth had become a democracy. Bradford
replied that women and children could not vote. Moreover, he stated
that he seldom submitted policy decisions to the voters. That the
colonists agreed with this procedure was indicated by an incident in
1623. Bradford had requested the General Court to outline a policy
toward the Massachusetts Indians. However, the Court returned the mat-

ter to the governor and his assistants for their disposition.55

 

54

55William Bradford and Isaac Allerton, Plymouth, September 8,
1623, printed in American Historical Review, VIII (1902-1903), 299;
George D. Langdon, Jr., Pilgrim Colony: A History_of New Plymouth,
1620-1691 (New Haven, 1966), p. 91.

Davis, ed., Bradford's History, pp. 107-108.

30

This episode was an example of the early seventeenth century
Puritan concept of government which required that leaders rule and the
citizens obey. John Robinson counseled the Pilgrims that they owed
"all due honour and obedience in their lawfull administrations; not
behoulding in them the ordinarinesse of their persons but gods ordinance
for your good." Moreover, he said, you know "that the image of the
Lords power and authoritie which the magistrate beareth, is honourable,
in how meane persons soever." Finally, he concluded, "this dutie you
both may the more willingly and ought the more conscionably to performe
because you are at least for the present to have only them for your
ordinarie governours, which your selves shall make choyse of for that

worke."56

If the people did not like the way a magistrate ruled, they
could vote him out of office at the next election. Until that time,
however, the magistrate was the ruler.

Historian George D. Langdon concluded about this period of
Plymouth's history that the people were probably content to let Brad-
ford rule without curtailing his power. In 1625 when the first threat
to his power occurred, the majority of the colonists backed the governor.
In Langdon's words, so long as the people "could look up from their
planting and see him working in the adjacent field, it seemed foolish

to worry over the extent of his power."57 As in the case of the Virginia

settlenents, when Plymouth grew to a size where people were unfamiliar

 

56Davis, ed., Bradford's History, p. 86.

57Langdon, Pilgrim Colony, p. 91.

31

with Bradford personally, then they began to worry about restraining
his power.

Until 1636 the governor and his assistants, sitting as the
court of assistants, were the ruling magistrates in colonial policy-
making. Gradually the general court supplanted the former group until
it became the sole governing authority in the colony. By 1639 the
colony had grown to the point where the general court was convened in
which the governor and his seven assistants comprised the upper house,
and elected town deputies composed the lower house. The general court
met four times a year, and at one session elected the governor, his
assistants, and later the treasurer of the colony.58

In October, 1636 a major.milestone occurred in limiting the
power of the magistrates. The general court gave the governor and seven
assistants power to rule the colony, but their authority did not include
the power to enact legislation as before. By 1639 the governor and
assistants had their power to grant lands limited. Seven years later
this was followed by limiting these officials, when they sat as a court,
to consideration of judicial concerns only.59

' Under the general court the most important official was the
governor. He could summon the court into session when he felt it neces-

sary, and once convened, he presided over its deliberations, casting a

vote in case of a tie. He also held the power to arrest and commit to

 

32

prison as well as the authority to execute all colonial laws. Other
than these, he held no other statutory powers.60
The governor could, if he chose, exercise a tremendous influ-
ence on the direction of policy through the prestige of his person and
office. ‘The governor and his assistants carried great weight in the
general court deliberations inasmuch as "the notion that every person
is equally capable of declaring policy was not yet part of the popular

d."6] Their articulate enunciation of colonial needs more often

cree
than not carried the day.

In summary, the early years of the Plymouth colony, like those
of the Virginia settlements, saw a tradition of strong executive leader-
ship emerge as an essential element necessary to move to a representative
form of government which led to a curtailment of the governor's powers.
This also meant that the colonial government had become less immediate
and responsive to the needs of the people in comparison to the early
days of the settlement when governor and citizen worked side by side
for the survival of the colony.

The success at Plymouth led to further colonizing efforts.

The next was the establishment of the Massachusetts Bay colony in 1629.
Like the colonists at Plymouth, the settlers at Massachusetts Bay came

for religious reasons. The charter granted to "The Governor and Company

of the Massachusetts Bay in New England" in 1629 created a trading

 

60
61

Ibid., p. 95.

 

Poore, The Federal and State Constitutions, I, 932-942.

33

company which soon proved to be an important element in the evolution
of executive theory in the seventeenth century.

Unlike the Virginia Company, the Massachusetts Bay Company
had an underlying religious motivation for colonization in addition to
its commercial activity. While both colonies began with charters which
were quite similar, the Massachusetts Bay experience was significantly
altered by the removal of the charter from England to America. John
Winthrop, Thomas Dudley, and others, "who were dissatisfied with the
arbitrary proceedings both in church and state, pleased themselves with
the prospect of liberty in both, to be enjoyed in America," undertook
to move the company from London to the colony, but only on the condition
"that the patent and charter should [be] remove[d] with them." Since
there had been no profit "and [the company] had no rational prospect of
any profit from the plantation in the way" as it was presently consti-
tuted, the company voted to transfer the charter to New England.62
Management of the company was given to five individuals, among whom was
Winthrop, who shortly became governor and exerted a powerful influence
over the direction of both company and colony.

With the company now residing in the colony, a new series of
problems emerged, which further set the Massachusetts experiment apart
from the Virginia experience. In Virginia, the colonial government was

separate and subordinate to the company's operations in London. In

Massachusetts, the problem was to integrate the charter provisions for

 

62Thomas Hutchinson, The History_of the Colony and Province
of Massachusetts Bay (Cambridge, MassaChusetts, 1936), I, 13.

..,_

 

 

34

operating the company into a political mechanism for governing the
colony. The only restriction placed on the company by the king when he
granted the charter was that the company should make no laws that were
repugnant to the laws of England. Otherwise, the settlers were to
enjoy "all liberties and immunities" as any other citizen of England.
However, in the 1630's English birth did not confer the right to parti-
cipate in government. Therefore, since the charter did not specify
that the laws passed by the company had to have the approval of the
settlers before taking effect, the company had full power to legislate,
organize the government, and carry out its policies in any manner the
company officers saw fit.63
The mechanism for policy making within the company was spelled
out in the charter in fairly complete detail. The members of the com-
pany, knoWn as freemen, were to meet four times a year in a "Great and
General Court" to make laws for both the company and colony. At one of
these meetings they were to elect a governor, deputy governor, and
eighteen assistants to manage company and colonial affairs between ses-
sions of the general court. These officials comprised an executive
council which met once a month. The charter required that the governor
or deputy governor and at least six assistants had to be present at
each general court. Since the charter did not mention the necessity of

any other members being present, this meant that these seven officers

 

63Edmund S. Morgan, The Puritan Dilemma (Boston, 1958), p. 85.

35

could presumably exercise the full powers of the general court.
essence, Winthrop and the other members of the company had unlimited
authority to govern the colony in any manner they saw fit so long as
they met the charter requirements of meeting once a month as a court of
assistants, four times a year in a general court and provided no laws
were passed repugnant to the laws of England.
Given Winthrop's background and religious beliefs, he could

not be satisfied with any government that did not have biblical sanction.
0n the voyage to America he preached that

God Almightie in his most holy and wise providence hath soe

disposed of the Condicion of mankinde, as in all times some

Slit-E? T'°2h232‘em2222e;n3°1§ Zliiicilflni'gim '" “we" “d

gn1 1e, 0 J
Therefore, he concluded, government could not be trusted to the people
at large but must be kept in the hands of the elite who had the necessary
background and training to lead. At a later time, he noted that in any
community the "best" part of the people was always the smallest part,
"and of that best part the wiser part is always the lesser."66
When the first general court met on October 19, 1630, Winthrop

violated the terms of the charter by setting up an elite system in trans?

forming the company charter into the constitution for governing the

colony. The company records described the proceedings as follows:

 

64Ibid.. pp. 85-86.

65Cited, Ibid., p. 88.

66Cited by James Kendall Hosmer, ed., Winthrop's Journal
"History of New England" 1630-1649 (New York, 1908), I, 125n.

 

36

For the establishinge of the government. (sic) It was
propounded if it were not the best course that the Freeman
should have the power of chuseing Assistants when there are
to be chosen, and the Assistants from amongst themselves

to chuse a Governor and Deputy Governor, who with the Assis-
tants should have the power 057makeing lawes and chuseing
officers to execute the same.

Apparently Winthrop had opened the meeting to all the settlers
and had used the occasion to transform the company's executive council
into the colony's legislative body whereby they had the power to pass
laws and appoint officers. The records indicate that "this was fully
assented unto by the generall vote of the people, and errection of

hands."68

Moreover, the term freeman was altered to mean not only a
member of the commercial company, but was now used as a term of citizen-
ship. Shortly thereafter a large number of new freemen were admitted,
presumably most of the adult males in the colony. Thus, Winthrop suc-
ceeded in keeping power in the hands of the elite by limiting the power
of the freemen to choosing the assistants only. Additionally, by allow-
ing only church members to be freemen he had violated the charter a
second time.

Historian Edmund S. Morgan explains this action as formalizing
the Puritan belief in organizing society around a covenant. He cited
Winthrop's assumption that "It is of the nature and essence of every

society to be knitt together by some Covenant, either expressed or

imp1yed." The agreement to come to the new world was, he said, the

 

67Reprinted in The Founding of Massachusetts: Historians and
the Sources, Edmund S. Morgan, ed. (Indianapolis, 1964), pp. 398-398.

681bid., p. 398.

37

implied-covenant to live within the laws of God. However, a second '
covenant was necessary to establish the "due form of government."
Though the king's authority gave the company power to rule the colony,
this was insufficient, Winthrop thought. There had to be a specific
covenant between the rulers and the ruled, thus the action of the general
court on October 19 and the subsequent admission of the enlarged free-
manship.69 A
Winthrop believed he had established a government run by the
elite. The executive and legislative powers belonged to a select group
who derived their authority not from the people, but from God, irrespec-
tive of their method of election. Therefore, he argued, the rulers were
accountable to God and not to the people. Their function was to enforce
the covenant between God and the community as they thought best during
their term. If a ruler failed to enforce the laws of God he could be
turned out of office before the next election. However, so long as he
continued to perform his duty, "his authority was absolute, and, regard-
less of any errors of judgment he might make, the people were obliged
to submit. Indeed, anything less than submission would be rebellion
against the authority of God."70
The freemen did not always see the situation in the same light

as Winthrop did. A few weeks prior to the election of 1632, some

residents of Watertown had questioned the power of the government "to

 

69Morgan, The Puritan Dilemma, pp. 93-94.

7OIbid., pp. 93-95.

38

make laws or raise taxations without the people." Winthrop responded

that

this government was in the nature of a parliament [and not
that of a mayor and alterman who did not have such powers],
and that no assistant could be chosen but by the freemen,
who had power likewise to remove the assistants and put in
others, and therefore at every general court . . . they had
free liberty to consider and propound anything concerning
the same, and to declare their rievances, without being
subjeqt to question, or, etc., [until] they were fully satis-
fied.
Thus, the peoples' power, in Winthrop's opinion, was limited only to
the election of assistants who were accountable only by election, which
was a violation of the charter.

The freemen at that year's election also voted to extend their
power of election. They passed a resolution that they could not only
elect the assistants, but the governor and deputy governor as well.
However, they agreed to restrict their choice of governor to those among
the assistants: 'Also, they voted to hold annual elections thereby making
the elected officials accountable to the people at least once yearly.
Winthrop also reported that "the people" proposed "that every company
of trained men might choose their own captain and officers." After he
explained his opposition "they were satisfied without it," he said.
Finally, the court agreed that every town should choose "two men to be
at the next court, to advise with the governor and assistants about the

raising of a public stock, so as what they should agree upon should

 

71Hosmer, ed., Winthrgp's Journal, I, 75.

39

bind all."72

Thus the freemen were beginning to expand their role in
governmental decision-making.

That same year a dispute arose over the extent of the gover-
nor's power. Deputy governor Thomas Dudley accused Winthrop of exceeding
his power and demanded to know the "grounds and limits" of Winthrop's
authority. Dudley argued that the governor had no more power than
"every assistant (except power to call courts, and precedency, for honor
and order.)" Winthrop responded that he had more authority than that
because the patent "making him a governor, gave him whatsoever power
belonged to a governor by common law or the statutes." Dudley then
listed seven areas where he believed Winthrop had exceeded his authority.
Winthrop, the adroit politician, noted that he was accountable to no
one except the assistants who elected him. However, to keep the peace
and show that he did not wish "to make himself popular, that he might
gain absolute power, and bring all the assistants under his subjection"
he agreed to submit to the judgment of the ministers, who managed to
cool the dispute without fonmally defining the governor's powers.73
Thus, Winthrop had argued a concept of executive power limited only by
statute, common law, and his own sense of justice in its use. This was
not to go unchallenged.

In 1634 another incident occurred where Winthrop was forced

to reiterate the Puritan concept of leadership. At the general court

of April a number of freemen:

 

4O

desired a sight of the patent, and conceiving thereby that
all their laws should be made at the general court, repaired
to the governour to advise with him about it, and about the
abrogating of some orders formerly made, as for killing of
swine in corn, etc.

Winthrop responded that

when the patent was granted, the number of freemen was sup-
posed to be (as in like corporations) so few, as they might
well join in making laws; but now they were grown to so great
a body, as it was not possible for them to make or execute
laws, but they must choose others for that purpose.

Moreover, he said,

it would be necessary hereafter to have a select company to

intend that work, yet for the present they were not furnished

with a sufficient number of men qualified for such a business,

neither could the commonwealth bear the loss of time of so

many as must intend it.
As a compromise, Winthrop offered a plan whereby the general court would
appoint "a certain number" of individuals:

to revise all laws, etc., and to reform what they found amiss

therein; but not to make any new laws, but refer their grie-

vances to the court of assistants; and that no assessment

should be laid upon the country without Xhe consent of such

a committee, nor any lands disposed of.7
Thus, Winthrop was unwilling to let any power slip from the magistrates'
hands for fear that it would fall into the hands of those unqualified
to make the necessary decisions for the good of the colony. One of
Winthrop's biographers characterized the episode as a case where "Win-
throp seems to have spoken like an absolute sovereign, designing (sic)
to grant a favor to his subjects, by admitting them to a representation

at court."75

 

74Ibid.. pp. 122-123.

75Cited, Ibid., p123n.

41

Winthrop's compromise did not satisfy the freemen. At the
general court they ordered that the freemen of every plantation could
select two or three representatives "of each town, before every general
court, to confer of and prepare such public business as by them shall
be thought fit to consider of at the next general court.“ Moreover,
they empowered the representatives to ”deal in their behalf in the pub-
lic affairs of the commonwealth," and gave them "full power and voice
of all the said freemen derived to them for the making and establishing
of laws, granting of lands, etc., and to deal in all other affairs of
the commonwealth, wherein the freemen have to do," except in the election
of the magistrates, "wherein every freeman is to give his own voice."76
Thus, Winthrop's attempt to keep power in the hands of the elite who
were responsible only to God between elections led the freemen to expand
and enlarge their role in the development of colonial policy.

Winthrop's acquiescence in the election of popular deputies
marked a significant step in the adjustment of relations between magis-
trates and freemen. The function of government was to curb the human
depravity of its citizens, he argued. If the government was subject to
every corrupt public whim, how could it enforce the laws of God? It
needed to have those responsible for carrying out this vital function
insulated from public accountability. Therefore, he contended, the
magistrates derived their authority from God, not the people. The

representatives of the people ought not to have power over the

 

42

magistrates, but only serve the function of keeping the "government
in touch with public opinion."77
Another incident in conjunction with the events described
above led to Winthrop's defeat as governor at the 1634 general court.
As became the custom, a minister preached an election sermon. The
minister, John Cotton, used the occasion to reinforce the idea that
magistrates ought not to be removed from office because of a change in
public attitude. Cotton argued that
a magistrate ought not to be turned into the condition of a
Private man without just cause, and to be publicly convict
ed], no more than the magistrates may not turn a private man
out of his freehold, etc., without like public trial, etc.78
Thus, a ruler possessed his office as a freeholder possessed his free-
hold, neither of which ought to lose their title to it without just
cause and public trial.
Another time Cotton spelled this doctrine out more precisely.
He wrote Lord Say that
Democracy . . . [was not ordained by God] as a fit government
either for church or commonwealth. If the people be governor
who shall be governed: As for monarchy and aristocracy, they
are both of them clearly approved and directed in scripture,
yet so as referreth the sovereignty to himself and setteth up
theocracy in both, as the best form of government in the com-
monwealth as in the church. 9
After his second defeat five years later, Winthrop began

pushing for veto power by the magistrates over legislation passed in

 

77Morgan, The Puritan Dilemma, p. 156.

78Hosmer, ed., Winthrop's Journal, I, 124-125.

79Hutchinson, History of Massachusetts-Bay, I, 497, Appendix

III.

43

the general court in an effort to reduce the power of the deputies.
Since the deputies outnumbered the magistrates, they might interfere
with the work of those chosen by God to enforce His laws in the com-
munity. In the September, 1634 general court, the issue came to the
crisis point. In the vote there were only two magistrates and the
governor voting for the proposition. Winthrop contended that the
issue could not pass since the patent required the assent of six assis-
tants. "Upon this grew a great difference between the governor and
assistants, and the deputies," he reported. Moreover, he continued,
They would not yield the assistant a negative voice, and the
others (considering how dangerous it might be to the common-
wealth, if they should not kee that strength to balance the
greaser number of the deputies) thought it safe to stand upon
Thus Winthrop used the quorum requirement of the charter to
base his argument that no action of the general court was valid without
the approval of the governor or deputy governor and six assistants.
This view was strongly opposed by Israel Stoughton the following year.
Stoughton contended that the governor's power was only "ministerial"
in nature and went on to oppose the negative power of the magistrates.
Winthrop used influence with the court to have Stoughton "disabled for
three years from bearing any public office." Not until 1636 did the
general court finally confirm the negative power of the assistants by

passing a law

that noe lawe, order, or sentence shall passe as an act of
the Court, without the consent of the greater parte of the

 

801bid., p. 133.

44

magistrates on the one parte8 and the greater number of the
deputyes on the other parte.

In 1636, the general court created a standing council of magis-
trates with broad executive powers, with the governor acting as presi-

82 This council raised so many popular

dent, to serve for life terms.
passions that it lasted only three years. The dispute reached a climax
in May, 1639 when the general court, fearing that this might be inter-
preted and used as a precedent for other executive officers, passed a
resolution reaffirming executive accountability through election.

That, whereas, our sovereign lord, King Charles, etc., had,

by his patent, established a governor, deputy, assistants,

that therefore no person, chosen councillor for life, should

have any authority as a magistrate, except he were chosen in

the annual elections to one of the said places of magistracy

established by the patent.
Winthrop noted that council finally did yield to the deputies, "because
it concerned themselves, and they did more study to remove these jealous-
ies out the people's heads, than to preserve any power or dignity to
themselves above others."83

By 1635 the concept of unlimited administrative discretion

was under increased attack by the freemen. Winthrop reported in his
diary that "The deputies having conceived great danger to our state, in
regard that our magistrates, for want of positive laws, in many cases,

might proceed according to their discretions. . . . At another

 

8ICited in Morgan, The Puritan Dilemma, p. 160.

 

82Hosmer, ed., Winthrop's Journal, I, 178.

83Ibid., p. 304.

84Ibid., p. 151.

 

45

point he noted that the people "thought their condition very unsafe,
which so much power rested in the discretions of the magistrates." To
remedy this, a group of individuals were appointed "to frame a body

. of laws, in resemblance to a Magna Charta . . . [which] should be
received for fundamental laws."85 In 1641 "The Massachusetts Body of
Liberties" was enacted. The code, written in the form of a bill of
rights, concluded that it was

therefore our dutie and safetie, whilst we are about the

further establishing of his Government to collect and express

23.1 Sflfihpifii‘iil‘i: 211.2335???".156f°'esee may ”5’

The Body of Liberties was more than just a bill of rights.

It embodied the fundamental concepts of the Puritan experiment in
Massachusetts. In addition to listing what rights were protected, it
established the principle that no law or custom would exist "that can

87 It thus

be proved to bee morallie sinfull by the word of God."
affirmed the basic premise that the Massachusetts Bay colony would be a
biblical commonwealth.

Also, this code established the church's authority over civil
officers, but did not empower the church to tamper with their authority.

At the same time it gave the state power to establish "Christ's religion

in every church." The state could "deale with any Church member in a

 

851bid., p. 323.

86William H. Whitmore, ed., The Colonial Laws of Massachusetts
Reprinted From the Edition of 1660, with Supplement of 1672. Containing,
also the Body of Liberties of 1641 (Boston, 1889), pp. 32-61.

87Cited in Morgan, The Puritan Dilemma, p. 171.

46

way of Civill Justice, notwithstanding any Church relation, office or
interest." On the other hand, the church could deal with any "officer
what so ever that is a member in a church . . . in case of apparent and
just offence given in their places, so it be done with due observance
and respect." However "no church censure shall degrade or depose any
man from any Civill dignities, office, or Authoritie he shall have in

88 In essence, then, the church could discipline by

the Commonwealth."
censure or excommunication a governmental official who was a member of
the church for improper actions, but the church's action could not
affect his authority or the validity of that official's action.

While the Body of Liberties listed the principles of govern-
ment, it did not describe in specifics the organization of government.
That had been established by a decade and a half of experience. A num-
ber of problems still remained, however. One area that was still a
source of dispute was the relative authority of the magistrates and
deputies.

Under the Body of Liberties, the governor possessed certain
rights and responsibilities, while having several checks placed on his
power. In the section entitled "Liberties more peculiarlie concerning
the free men" the governor, other executive officers, and court members
"shall . . . [have] their necessary expences defrayed. . . ." Several
items later the freemen were guaranteed the right to choose "all the

general officers of this jurisdiction" at the yearly court of election.

It went on to prohibit office holding on good behavior stating that "If

 

88Cited in Ibid., pp. 171-172.

47

they please to discharge them at the day of Election by way of vote

. . They may do so without shewing (sic) cause." It then established
an impeachment process whereby the removal of an executive officer, at
any court other than the election one, required that "the reasons be
alleged and proved."89

With respect to the governor's powers, the Body gave the
governor a tie-breaking vote and a limited pardon power. "The Governor
shall have a casting voice whensoever an Equi (sic) vote shall fall out
in the Court of Assistants, or general assembly. . . ." The pardon
power was given to the "Governor and Deputy Governor joyntly (sic)
consenting or any three Assistants concurring in consent. . . ." How-
ever, they possessed the power to reprieve "a condemned malefactour,
till the next quarter or general Court . . . [because] the general Court
onely shall have power to pardon a condemned malefactor."90
There were a number of other practices established in this

period which helped to develop the role of the executive power. One
such example occurred in 1636 after one of the numerous disputes Win-
throp had with his rivals in the court of assistants. After reconciling
their relationship they agreed on a list of ten items to help smooth
future administrative operations. First they agreed to hold executive
sessions whenever possible "That the magistrates should (as far as might

be) ripen their consultations beforehand, that their vote in public

might bear (as the voice of God)." Additionally the governor was to be

 

89Whitmore, ed., The Colonial Laws of Massachusetts, p. 58.

90Ibid.. pp. 58-59.

 

48

honored by "submitting to him the main direction and ordering the

9] Thus, the governor would have the court's

business of the court."
agenda before him.
Another dispute, which occurred in June, 1644 again raised
the issue of inherent power within the executive authority. The deputies
sought to create a commission to handle the affairs of the colony between
sessions of the general court. The governor and magistrates tradition—
ally had continued to carry on their administrative functions until the
next quarter court. However, the deputies feared that the continued
exercise of administrative and judicial powers in cases where the general
court had not as yet established a law or policy might set an unhealthy
precedent. They therefore proposed a joint committee of magistrates
and deputies to undertake all of the affairs of the commonwealth during
the recess of the general court.
In the magistrates' response opposing the idea, Winthrop
offered his theory of executive power. He noted,
that to make a man a governor over a people, gives him, by
necessary consequence, power to govern that people, other-
wise there were not power in any commonwealth to order,
€1§E°ifié.~2'.§$~2'32 32.?Eivéaiiwwflié‘iaiédm12152'“' °““’
The dispute with the deputies carried over into the October

court where the power of the governor and magistrates was further clari-

fied, especially in judicial matters. The general issue was

 

91

921bid., p. 171.

Hosmer, ed., Winthrgp's Journal, 11, 171-172.

49

Whether the magistrates are by patent and election of the

people, the standing council of this commonwealth in the

vacancy of the general court, and have the power accordingly

to act in all cases subject to government, according to the

said patent and laws of this jurisdiction.
In response to the specific question of whether the deputies in the
general court had "judicial and magistratical authority," the elders,
acting as a constitutional review board, responded that "The patent,
in express words, giveth full power and authority, as to the governor
and assistants, so to the freemen also assembled in general court."
They further argued a threefold division of powers: legislative, judi-
cial, and "consultative or directive of the public affairs of the
country for provision and protection." The first and last were held
jointly by the freemen and the magistrates. The judicial power, how-
ever, rested jointly in these two bodies only in impeachment cases, or
as an appellate review board. Otherwise the governor and magistrates
held the judicial power.93

The elders further elaborated on the issues raised at the

previous court. The deputies asked whether the "governor and assistants
have any power by patent to dispense justice in the vacancy of the
general court, without some law or order of the same to declare the
rule?" The elders concluded that they did not have such power and
further contended that the rules governing their actions should be as

specific as possible, "and where such cannot be had, [it was] to be

supplied by general rules." Additionally, the elders reaffirmed the

 

93Ibid., II, 211. Also see Emory Washburn, Sketches of the
Judicial History of Massachusetts From 1630 to the Revolution in 1775
(Boston, 1840), pp. 1-26.

 

 

50

general court as "The chief civil power of this commonwealth" and
specifically noted its powers in the "orderly impeaching, removing, and
sentencing any officers, even the highest, according to law. . . ."94
The elders concluded their clarification of the patent by
upholding Winthrop's view of the governor's power. The deputies had
asked "whether the titles of governor, deputy, and assistants do neces-
sarily imply magistratical authority, in the patent?" They concluded
that the title did confer power. However, in response to the question
of whether the patent gave magistratical power to the people, who in
turn gave it to the governor, the elders concluded that the "magistrati-
cal power is given to the governor, etc., by the patent." To the people,
they noted, was given the power to select their magistrates, and "to the
general court power is given to make laws, as the rules of their admini-
stration." The opinion of the elders proved decisive and the role of
the assistants as an executive board was never again seriously ques-
tioned.95
In May of 1645 Winthrop, then deputy governor, was accused of
acting arbitrarily in a dispute with the militia officers of the town
of Hingham. Upon his acquittal he delivered a speech which further
clarified his conception of executive authority. "I entreat you to
consider," he said,
that when you choose magistrates, you take them from among

yourselves, men subject to like passions as you are. There-
fore when you see infirmities in us, you should reflect upon

 

94Hosmer, ed., Winthrgp}s Journal, II, pp. 214-215.

951bid., pp. 216-217.

51

your own, and that would make you bear the more with us. . . .
The covenant between you and us is the oath you have taken

of us, which is to this purpose, that shall govern you and
judge your causes by the rules of God's laws and our own,
according to our best skill. . . . When you call one to be

a magistrate, he doth not profess nor undertake to have
sufficient skill for that office, nor can you furnish him
with gifts, etc., therefore you must run the hazard of his
skill and ability. But if he fail in faithfulness, which by
his oath he is bound unto, that he must answer for.

However, if he failed in his judgment because a rule was not clear,

“yourselves must bear it," he concluded.96

Winthrop further argued that there were two types of liberty.
The first is the natural state of "man and beast" before the advent of
the second, which he called civil or federal. Civil liberty referred
to the "Covenant between God and man, in the moral law, and the politic
covenants and constitutions, amongst men themselves." This liberty,

he contended,

is the proper end and object of authority. . . . [It] is
maintained and exercised in a way of subjection to authority.
[And] . . . it will be between you and your magistrates. If
you stand for your natural corrupt liberties, and will do
what is good in your own eyes, you will not endure the least
weight of authority, but will murmer (sic) and oppose, and be
always striving to shake off that yoke; but if you will be
satisfied to enjoy such civil and lawful liberties, such as
Christ allows you, then will you quietly and cheerfully submit
unto that authority which is set ovg; you, in all the admini-
strations of it, for your own good.

After his speech to the court, Winthrop noted that not every-

one agreed with his interpretation. Some individuals were so convinced

that

 

961bid., pp. 237-238.
97Ibid.. pp. 238-239.

52

the magistrates affected an arbitrary government . . . [that]

this caused them to interpret all the magistrates' actions

and speeches (not complying exactly with their own principles)

as tending that way, by which occasions their fears and

jealousies increased daily.
Nothing Winthrop or his fellow magistrates could do would allay the
fears of these individuals, whose actions, he noted, served "to weaken
the authority of the magistrates, and their reputation with the people."98

One of the most interesting documents which came out of this

whole dispute was Winthrop's treatise on arbitrary government. He con-
cluded it with a summarized opinion on the nature and operation of the
Massachusetts Colonial government as it then existed:

The Government of Massachusetts consists of Magistrates and

Freemen: in the one is placed the Aut[horit]ye, in the other

the Liberty of the Comm[mon] W[ealth2 either hath power to

Acte, both alone, and both togither sic), yet b a distinct

power the one of Liberty, the other of Aut[horit ye: the

Freeman Act of them selves in Electinge their magistrates and

Officers: the magistrates Acte togither (sic) in the General

Court: yet all limited by certaine Rules, bothe in the

greater and smaller affairs: so as the Governmsnt is Regular

in a mixt Aristocratie, and no waye Arbitrary.9

Winthrop was not alone in defending the form and actions of

the Massachusetts Colonial government. John Cotton, a minister and
political theorist, was quick to take up the pen to explain and defend
the colonial government. Though he once argued for life-time tenure

for magistrates, he was no defender of arbitrary government. His

 

98Ibid.. pp. 240-241.

99Winthrop ngers,_1638-1641, Massachusetts Historical Society
(Boston, 1944), IV, 482. Also see B. Katherine Brown, "A Note on the
Puritan Concept of Aristocracy," The Mississippi Valley Historical
Review, XLI, no. 1 (June, 1954), pp. 105-112, for a discussion of the
meaning of the political terms used by the Puritans.

53

"Exposition upon the Thirteenth Chapter of the Revelation" discussed
the need for limitation upon those who exercise authority.

There is a straine in a man's heart that will sometime or
other runne out to excesse, unlesse the Lord restraine

it. . . . It is necessary, therefore, that all power that

is on earth be limited, Church-power or other. . . . It is
counted a matter of danger to the State to limit Preroga-
tives; but it is a further danger, not to have them limited.
They will be like a Tempest, if they be not limited: A
Prince himselfe cannot tell where hee will confine himself,
nor can the people tell. . . . It is therefore fit for every
man to be studious of the bounds which the Lord hath set:

and for the People, in whom fundamentally all power lyes, to
give as much power as God in his word gives to man: And it

is meet that Magistrattes in the Common-wealth, as so Officers
in Churches should desire to know the utmost bounds of their
own power, and it is safe for both: All intrenchment upon

the bounds which God hath not given, they are not enlargements,
but burdens and snares. . . ." 00

Thus, Cotton recognized that there must be limits placed upon the exer-
cise of power to protect society from the evils and excesses of human
nature.

In 1643, four colonies formed a union called the United Colo-
nies of New England. The union of Massachusetts, Plymouth, Connecticut,
and New Haven created a confederation under an executive whose authority
would not threaten the governor's position within any of the respective
colonies. Each colony sent two representatives from which the confedera-
tion council elected one as their executive head. His principle function
was that of a presiding officer, "whose office and work shall be to take

care and direct for order and a comely carrying on of all proceedings in

 

100John Cotton, An Exposition Upon the Thirteenth Chapter of
the Revelation (London, 1965), p. 72.

 

54

their present meeting. . . ." However, the articles of union went on
to specifically deny him any special political power or authority:

He shall be invested with no such power or respect, as by

which he shall hinder the propounding or progress of any

business, or any way cast the scales otherwise than in the

preceding articles is agreed.
In other words he had no veto or other powers which would raise him
above the others, which indicated a reluctance to create an office that
might interfere in any way with the internal affairs of a colony. That
view is further reinforced by the fact that in a dispute among the
council members, three fourths (six out of eight) had to agree before
any action could be taken. Thus, the New England union foreshadowed
the fear of an independent executive power that proved to be a stumbling
block to American union over a century later.]01

In the latter half of the seventeenth century Massachusetts

underwent a series of political crises which culminated in the loss of
its charter. After the Stuart Restoration in 1660, Charles II undertook
to convert Massachusetts into a royal colony. Once the Massachusetts
charter was annulled in 1683 the way was cleared for the king to con-
solidate the entire New England area under one royally appointed gov-
ernor and to eliminate the assembly. However, his death ended that

prospect temporarily.102

 

10lKellogg, "The American Colonial Charter," pp. 203-204-

102For documents relating to the vacating of the Massachusetts
Charter see Robert N. Toppan, ed., Edward Randolph: Including His Let-
ters . . . With Other Documents Relating Chiefly to the Vacating of the
Royal'Charter of the Colony of Massachusetts Bay,fl676-l703, 7 Vbls.
(New York, 1967):

 

 

55

Charles' successor, James II, continued the plan to bring
Massachusetts under royal control. In October, 1685 a temporary govern-
ment for New England was established by granting Joseph Dudley a commis-
sion "As President of the Council for New England." He was empowered
to select one council member to act as his deputy. Seven members of
the council constituted a quorum, and together with the governor, the
council was to act as the general administrative body for the Dominion
of New England until a new government could be established.103

In June of 1686, Edmund Andros was appointed "Captain General
and Governor in Chief" for the Dominion of New England, which was
enlarged to include New York and New Jersey. His brief tenure caused a
major upheaval within the colony which set the stage for the future
drama leading to the American Revolution in the eighteenth century.
Andros had been the governor of New York, a colony with traditions far
different from those of Massachusetts. Unlike the New England experience,
New York had no legislative assemblies. There the governor and council
legislated for the colony, levied and collected the taxes, and spent
the revenue. The English crown and its concept of prerogative were
firmly inculcated into its colonial tradition. When Andros tried to

apply the lessons of New York's executive controlled colony to the

 

103"Joseph Dudley's Commission as President of the Council
for New England," Publications of the Colonial Society of Massachusetts
(Boston, 1913), II, 37. The title given here was assigned by the editor
Albert Matthews. See his note on page 37.

56

self-governing tradition of Massachusetts it was only natural that it
touched off a political crisis.104

The king's plan was to consolidate all the colonies within
the New England area under an all-encompassing executive power similar
to the French and Spanish pattern of colonial organization. To adminis-
ter this territory Andros was given five exclusive areas of authority
and three joint areas of power to be shared with the councillors. In
the first category he was given the power to suspend council members on
just cause, to judge and pardon offenders in capital and criminal mat-
ters, treason and willful murder excepted, to appoint judicial officers,
to raise an army, to declare martial law, and to establish courts of
admiralty. Powers shared jointly with the council were the authority
to legislate, to impose, assess, raise and levy rates and taxes, and to
establish courts.105

The commission under which Andros assumed control over the
Dominion of New England was alien to the tradition which had developed
within that region during the seventeenth century. To force the inhabi-
tants of the Massachusetts area to submit to an autocratic form of
government, imposed solely by the will of the executive who obeyed

commands from some other remote executive power, would eventually lead

to a political confrontation.

 

104"Sir Edmund Andros's First Commission as Governor of the
Territory and Dominion of New England," Ibid., pp. 44-56. Also see
pages 57-68 for his second commission of April 7, 1688 entitled, "Sir
Edmund Andros's Second Commission as Governor of the Territory and
Dominion of New England."

105Ibid., pp. 57-68. Also see Calendar of State Papers,
Colonial Series 1685-1688, XII, doc. 857, p. 242.

57

On taking office, Andros ordered life to carry on as usual.
Judges were instructed to "administer justice according to the custom
of the place." Taxes were to follow the "former established rules,"
and laws not inconsistent with his commission were to be enforced. In
short, as colonial historian Thomas Hutchinson noted, "his administra-
tion gave great encouragement."106

Soon, however, problems appeared. When some residents who
felt themselves oppressed appealed for redress, a member of the council
I'told them they must not think the privileges of Englishmen would follow
them to the end of the world." Hutchinson wrote that "This gave an
alarm through the government, and it was never forgotten." Then an
attempt was made to establish the Church of England which threatened to
interfere with "worship in the congregational way." This was followed
by "Swearing by the book, which had never been practised (sic) and such
as scrupled it were fined and imprisoned." Fees "to all officers" were
raised to a burdensome rate. Finally, the people were told that because
of the new charter the "titles to their estates were of no value."107

In England James II was facing a political crisis of his own.
The birth of a Catholic heir to the English throne and his appointment
of Catholics to civil and military offices in disregard to the Test Act
of 1673 was pushing England to a political crisis. In a move to protect

their interests, Parliament invited William and Mary of Orange to take

the throne in what became known as the Glorious Revolution.

 

106Hutchinson, The History of Massachusetts-Bay, I, 300.

'07Ibid.. pp. 302-305.

o...
1

run

 

w

 

 

58

The overthrow of James II by the Glorious Revolution added a
new element in the struggle with Andros, which caused one observer of
the events in Massachusetts to comment: "I fear whether or not the
matter of settling things under a new Government may not prove far more
difficult than the getting from under the power of the former. . . ."108

The revolt against Andros which followed quickly on the news
of the Glorious Revolution was accomplished with relative ease. How-
ever, as predicted, establishment of a new government presented a number
of problems. The first solution was to create a Council of Safety to
act as an executive body to take charge of the immediate problems of
government until an interim government could be agreed upon. Finally,
in May of 1689, the old government of 1685 was called back into service
until matters could be clarified in England.109

Colonial agent Increase Mather, when sent to England, failed
in his attempt to gain the restoration of the old charter. King William
wanted a government for Massachusetts modeled after that of Barbados,
whereby the king would appoint the governor who would have full veto
power. Mather, on the other hand, wanted to confine the governor's veto
power to laws only, and not to cover elections and other acts of the

assembly. However, he was overruled by the Crown's advisors and the

governor was given full veto power over all acts of the assembly. In

 

108Charles M. Andrews, ed., Narratives of the Insurrections
(New York, 1915), p. 190; Samuel Prince to Thomas Hinkley, Boston,
April 22, 1689.

109See the Calendargf State Pppersg_Colonial Series,_1689-
1692, XIII, doc. 152, pp. 45-47; doc. 181, pp. 60-61; doc. 196, pp.
67-68; doc. 261, pp. 92-95; doc. l, 276, p. 375.

59

addition, the governor had the power to appoint judges and sheriffs,
and the right to probate wills. The king concurred, and Massachusetts
was granted a new charter in 1691.110
The 1691 charter permanently altered the future direction of
executive experience in Massachusetts. On the whole, the new charter
granted a broader scope of powers than did the charter of 1629. It is
significant that it was the only royal charter to systematically set
forth a provincial constitution. Its provisions expressed a clear legal
basis for the legislative and judicial powers whereby the power to tax
and issue judgments was firmly established. Subject to the governor's
veto, the former assistants became the upper house of the legislature.
The assembly, on the other hand, was no longer absolute. Its powers
were subject to the veto of a royally appointed, not elected, governor.
Additionally, behind the governor was a royally appointed deputy governor
and secretary."1
Like the previous charter, the governor was given specific
powers of appointment and other responsibilities. He had "full power"
to summon, "prorogue and dissolve" the 'general' Court of Assembly"

whenever "he shall think fitt," but at least once annually. He could

also appoint "Judges, Commissioners of Oyer and Terminer Sheriffs,

 

noFor a discussion of the events surrounding the charter dis-
pute see M. 0. Hall, ed., "The Autobiography of Increase Mather," Pro-
ceedings of the American Antiquarian Society, LXXI (October, 1961), pp.
271- 360. Also see Calendar of State Papers, Colonial Series, 1689-1692,
XIII, doc. 11, p. 4; doc. 18, p. 6; doc. 28, p. 8; doc. 37, p. 11.

H]"Sir William Phips's Commission as Governor of the Pro-
vince of the Massachusetts Bay, 12 December, 1691," Publications of the
Colonial Society_of Massachusetts, II, 69-75.

 

 

 

60

Provosts Marshalls Justices of the Peace and other Officers to Our

."112 The governor's specific

Councill and Courts of Justice. . .
responsibilities on how to administer these powers were included in his
instructions upon his appointment.

The charter divided the bulk of the powers between the gov-
ernor and the two houses of the legislative branch, which was a compro-
mise between the two factions vying for control of Massachusetts since
the Restoration. A royally appointed executive branch, and a popularly
elected legislative branch made Massachusetts basically a commonwealth
with a provincial executive grafted on as its executive head. To assert
its control over Massachusetts and to counter the tradition of popular
government, the English monarch had to destroy the concept of an execu-
tive responsible to the people and impose one responsible to him alone.
This ended an era in which the concept of a limited, elected, and
responsible executive was shown to be a workable alternative to a
royally appointed and controlled colonial executive.

The proprietary colonies developed their executive theory
along lines similar to those of the royal colonies, the major difference
being that a proprietor stood between the king and governor. From the
governor's point of view, the proprietor assumed the function of the
Crown as he possessed "the jurisdictions, liberties, immunities,
regalities, and franchises, which were enjoyed by the Bishop of Durham,
including the right to grant lands, appoint officers, erect tribunals,

establish militia, control the church, incorporate towns, designate

 

”215w.

 

‘v

 

61

ports, and assess customs."H3 Lord Baltimore received the charter
for Maryland in 1632, which granted him all rights, privileges, and

immunities.”4

He held the land in free and common socage and made a
token payment to the king of two Indian arrows and one fifth of the gold
and silver found in the colony. However, the proprietors of the New
York and Pennsylvania colonies were restricted in several ways. In the
grant to the Duke of York, the king reserved the right to receive appeals

115 In Pennsylvania the king

resulting from judgments within the colony.
reserved the right to veto all acts passed by the freemen and supported
by the proprietor for a limited time after their transmission to the
Crown.116
The relationship between the king and proprietor was feudal

in nature, inasmuch as it associated the rights of land with the rights
of government. The proprietary grants were, in essence, private juris-
dictions in which the normal operation of royal sovereignty was generally
exempted. The purpose of the proprietary grant, in the words of one
historian, was to

found a landed estate, [and] the statute of 'quia emptores'

was in every case suspended and the proprietor given the

power of erecting manors and of selling and alienating lands.

The proprietary, therefore, was a vast estate, and the rela-
tionship between the colonists and the head of the province

 

113Kellogg, "The American Colonial Charter," p. 193-

114Poore, The Federal and State Constitutions, I, 811-817.

"5151d., 11, 783-785.

'16Ibid., pp. 1509-1515.

62
was complicated becauselgf this twofold relationship as
governor and landlord.
In matters of organization and power the royal and proprietary
colonies had much in common. Each had a governor appointed by an out-
side source (the king or proprietor) who governed with a nominated

118 However, as one historian concluded

council and an elected assembly.
about the proprietary governor, he was,
in a sense, not even a public officer at all, but the agent
of a private person or group of persons instructed, it is
true, with the powers and duties of an officer of State, but
charged also with tbs defence and promotion of distinctly
private interests.

Though the proprietary colony offered the chance for numerous
experimental concepts of government, by the end of the seventeenth cen-
tury the tendency was for the proprietary colonies to fall within the
concepts embodied by the royal colonies. Thus, the governors of the
proprietary and royal colonies essentially differed only in the fact
that the royal governor received his authority directly from the Crown
while the proprietary governor received his from the individual or body

of proprietors. It therefore became relatively simple to convert the

 

117Kellogg, "The American Colonial Charter," p. 193.

118In the case of Carolina "the distinction of the Governor
from the rest of their Deputies is a thing of order than of overruling
power, and he has not more freedom than any one of the council to
swerve from those rules commissions and instructions which his lordship
expects his Deputy exactly to follow." The Earl of Shaftesbury to
Maurice Mathews, June 20, 1672, Calendar of State Pppers,_Colonia1
Series, VII, doc. 867, pp. 377-378’provides a comprehénEiVe discussion
of the governors powers and how the Fundamental Constitutions were to
operate.

119Evarts B. Greene, The Provincial Governor in the English
Colonies of North America (Gloucester, Massachusetts, 1966), p. 9.

 

 

 

63

proprietary to royal colonies without major political upheavals by
simply transferring the prerogatives from the proprietor back to the
king.

In retrospect the seventeenth century established a body of
experience and precedents which laid the foundation of American execu-
tive theory. The early colonial charters were for commercial ventures
which later matured into political communities. One of the key elements
in this transition was the colonial governor. At first his political
functions were dependent upon his commercial obligations to a parent
company or proprietor. His powers, therefore, appeared to be based more
upon commercial expediency than any particular constitutional or politi-
cal theory.

However, as the colonies grew in size and their operation
became more complex, the role of the governor underwent a series of
changes which altered his power and functions. Thus, as a general rule
the governor's authority and organization was not established fully
developed, but rather it was altered periodically to meet the needs of
changing circumstances. Many of the changes that did occur emerged
from a common body of experience that resulted from the necessity of
creating a political community from a commercial venture. Where the
results differed, it was due, in part, to the different circumstances
under which the various companies were established. For example, where
the company remained in England, as in the case of Virginia, the problems
of operating a colony so far removed from the parent company created a
variety of administrative experiments which were different from the

Massachusetts model in which the company and colony were merged into

64

the same entity. Nevertheless, by the end of the seventeenth century
the similarities outnumbered the differences with respect to the organi-
zation and empowering of the executive within each of the colonies.

The source of executive authority came from four basic areas
in the seventeenth century. The first was the charter which created
and empowered joint stock companies to delegate certain powers to a
president or governor. As noted before, these grants of power were by
and large general in nature. Additionally, the charter listed certain
obligations the governor was required to carry out from which he implied
various other powers. Upon conversion to a royal colony the governor's
power derived mainly from the commissions and instructions which were
the second significant source of executive power. In addition to his
powers contained within the commissions and instructions he carried the
weight of the royal prerogative behind him as personal representative
of the king. This gave the royal governor a vice-regal position, which
gradually influenced and finally determined the scope of powers exer-
cised by the colonial governors.

The third source of executive power came from commissions and
instructions issued by proprietors, who stood between the king and the
governors. Unlike the royal governor, the proprietary governor could
not effectively use the weight of royal prerogative to augment his
power. However, the proprietary governor was by no means powerless.
Often the proprietor granted the governor virtually the same powers he

himself had received as was the case with Governor Nicoll's commission

65

from the Duke of York.120

More often than not, though, the proprietary
governor developed along the same lines as the royal governor.

The people were the fourth source of executive power, as
evidenced by the development of the Massachusetts Bay colony. Like the
early Virginia experience, Massachusetts developed its executive power
from a commercial company. However, since the company itself was in
the new world the stockholders took an active part in determining the
direction the development of executive power was to take. As seen in
the 1634 resolutions of the general court, the freemen claimed the right
to elect and define the role that executive officials were to play, in
spite of Governor Winthrop's claims of general executive authority under
the charter and existing common law. Thus, the freemen claimed the
right to interpret and develop to their own satisfaction the grant of

executive power found in the charter. Connecticut and Rhode Island were

the other New England colonies which experimented with elected

 

120See the administration of Governor Niccolls in Alexander
C. Flick, History of the State of New York (New York, 1933), II, 76-86.
The case of Carolina provided another good example of the relationship
between the governor and proprietor. ”He sent his deputy and put into
his hands all the power and share in the government Schaftesburg should
have himself, were he in Carolina. We find their Fundamental Constitu-
tions, temporary laws, and instructions the compass he is to steer by,
wherein, if not deceived, the safety and prosperity of the people has
been better provided for than ever was done in any other plantation.
He is therefore obstinately to stick to those rules and oppose all devia-
tions, since by their frame no body, power, or any of the Proprietors
themselves is able to hurt the meanest man in the county if their Deput-
ies have but honesty and resolution enough to keep things tight to those
ends." Earl of Shaftesbury to Maurice Mathews, June 20, 1672, Calendar
of State Papers,_Colonial Series, VII, doc. 867, p. 375.

 

66

governors.12] However, these governors appeared to be more

administrators than policy makers as was the case with Massachusetts.

The power granted the governors in the early part of the
seventeenth century was usually of a general nature, and described in
the briefest of terms in their commissions. Most commissions contained
a formal grant of power, a statement of the governor's military powers
and obligations as commander-in-chief, directions on the formation of
the council, and a few specific instructions designed to meet local
problems. At first, little attention was given to any exact description
of the governor's powers since he was given the responsibility of manag-
ing a commercial venture, not creating a political entity. Only when
the colony became too large for personal management did the necessity
arise for a stricter definition of his powers in light of the need to
delegate some of his power to specially created executive officers.
Even then, general descriptions were still preferred. It was not until
the latter part of the century that the commissions provided a more
detailed description of the governor's power.

While the commissions granted power to the governor, his
instructions often limited it by describing how he was to use it. For
example, a governor's commission would empower him to create courts and

appoint justices. However, his instructions might limit his ability to

 

121The elections procedure outlined in the "Fundamental Orders
of Connecticut" (1639) provided for a rudimentary electoral college.
"Euery (sic) p[e]rson present and qualified for choyse shall bring in(to
the p[e]rsons deputed to receaue (sic) the) one single pap[e]r w[i]th
the name of his written in y[e]t whom he desires to haue (sic), Gov-
ernor, and he that hath the greates nu[m]ber of papers shall be Governor
for that yeare." Poore, Federal and State Constitutions, I, 249.

67

create courts to only those warranted by the Crown, and even then,
require the council's consent to confirm his appointments to fill them.
One of the governor's foremost powers was his role as commander-
in-chief. Generally the governor's commission would authorize him to
appoint officers, raise armies, and use those powers normally belonging
to the commander-in-chief to protect and defend the colony. The gov-
ernor did, however, have limits on his military powers. The Massachusetts
charter of 1691, for example, limited his power in two ways. First, he
could not take the militia out of the colony without the consent of the
general court. Second, he could not declare or execute martial law
without the approval of the council.122
In actual practice the governor's military powers varied
according to the extent of danger posed by the possibility of an inva-
sion or insurrection. The Maryland charter, for example, gave the
governor power to make war upon the neighboring Indians when they

123

endangered the colony. The Pennsylvania charter prohibited the

governor from corresponding with an enemy of the king, or making war

124 Aside from the problems with the Indians.

upon friendly neighbors.
the royal and proprietary governors, as subordinate officials to the
Crown, were prevented from embroiling the colony, and therefore England,

in an unwanted war. Later in the eighteenth century the assemblies

 

122"The Massachusetts Charter of 1691," Publications of the
Colonial Society of Massachusetts, II, 69-75.

123Poore, Federal and State Constitutions. 1. 311-817-
'24Ibid., II, 1527-1531.

68

would try to further limit the governor's military power by denying
him the necessary funds to support the militia when they opposed his
actions.

Allied with the governor's role as commander-in-chief was his
responsibility for the foreign affairs of the colony. This was generally
limited to handling problems with the Indians and communicating with
other colonies over common problems. The significance of the governor's
role in this area did not come fully into play until later in the
eighteenth century.125

Another important power possessed by the governor was that of
filling colonial offices. Appointment to the council, the courts, or
the numerous other local offices gave the governor a useful weapon to
enhance his power as noted previously. However, the assemblies responded
by trying to restrict his power by statutes and later on, by limiting
or withholding appropriations and salaries to nominees they did not like.

The governor was entrusted with certain other powers, among

which was the power to pardon. As a rule, most commissions gave the

 

125See the following examples of the futile attempt by Governor
Sloughter to formulate a military alliance and union among the colonies
to resist the French. Calendar of State Pa ers Colonial Series, XIII,
doc. 1593, p. 477; doc. |638, p. 503; doc. 1647, p. 508; doc. 1673, p.
515; doc. 1681, p. 517; doc. 1708, p. 525. These are all examples indi-
cating that the colonies were too engrossed with their own problems to
think of union for their common defense. In 1693 Governor Fletcher of
New York tried and failed to form a colonial congress to discuss common
military problems and raise an army to defend New York's boarders.
Calendar of State Papers,_Colonial Series, XIV, doc. 578, p. 165; doc.
582, p. 166; doc. 590, p. 167; doc. 664, p. 203; doc. 794, p. 227. In
short, from 1693-1696 the colonies refused to face common problems of
defense. England came forward and provided the necessary defense and
the colonies paid the price by giving more control to the English bureau-
cratic structure over them.

69

governor the power to pardon in all cases except treason and willful
murder. In those areas he had the power of reprieve until the case
could be reviewed by a higher authority. For the most part the governor
exercised his pardon power independently and he did not require the con-
currence of the council.

Finally, the governor was granted provisional discretionary
power to cover problems not specifically outlined in the commission or
instructions. In most cases the governor had to have the concurrence
of the council and had to inform immediately his superiors in England
of what actions were taken.

Above all, the royal governor's greatest influence came as
the representative of the king. One historian summed up the seventeenth
century experience in Virginia when he said,

In the days of Charles I, in the Restoration period, and under
James II, when the Stuarts were combating liberal institutions,
both in England and in the colonies, the governor exercised a
powerful and dangerous control over affairs in Virginia. But
after the English Revolution his power declined. As the people
of England no longer dreaded a monarch whose authority now
rested solely upon acgg of Parliament, so the Virginians ceased
to fear his Viceroy.

Another feature of the early seventeenth century colonial
governments was the initial concentration of power in the hands of the
executive branch. The separation of powers doctrine was not as yet an
established constitutional doctrine. In most colonies political neces-

sity did, however, give it a nudge in that direction since the governor

was overburdened with work as the colony increased in size. The

 

126Thomas J. Wertenbaker, Virginia Under the Stuarts, 1607-
1688 (New York, 1958), p. 42.

 

70

legislative powers were the first to be taken away from the executive

via an assembly or general court. However, as evidenced by the Virginia
and Massachusetts experience, it was not without considerable trouble.127
This struggle was generally repeated in virtually every other colony.
Even after the existence of the assemblies was assured, it was not
uncommon for the governor to attempt to circumvent the assembly by the
means of proclamations. Nevertheless, the New England government out-
lined in Governor Andros' commission was the last attempt of that
century to give the governor absolute legislative authority.

When the governor lost his legislative power to an assembly,
it did not mean that he lost his ability to influence legislation.
Aside from his veto, the governor often possessed other influences.
The 1682 royal instructions for Virginia, for example, directed the

128 The Maryland,

governor and council to draft all legislative bills.
Pennsylvania, and Carolina constitutions all provided for executive

preparation of legislation for assembly approval. These claims of

 

127In response to a series of questions sent by the Commission
on Plantations in 1670, Governor Berkley noted the separation of powers.
"Where [is] the legislative and executive powers in your government?"
Answer. In the governor, council and assembly, and officers substituted
by them." Calendar of State Papers,_Colonial Series, VII, doc. 565, p.
232. George Chambers notedithat the failure of Parliament to develop
the machinery to legislate for all the details of colonial government
necessitated the creation of local legislatures. He concluded that "the
security and freedom of the colonists arose . . . from the mixed nature
of the government, which necessarily produces opposition to the execu-
tive power; from the excellent balance of the constitution, which offers
so many checks to the spirit of domination; from the responsibility of
ministers, which, in modern times, forms the best barrier of any against
oppression. Political Annals, p. 45.

128Leonard Woods Labaree, Roypl Instructions to the British
Colonial Governors, 1670-1776 (New York, 1967), I, 125.

 

71

executive prerogative were, however, generally resisted by the
assemblies.

Also, the governor's council gradually assumed an independent
role to become, in most cases, the upper house of the legislative
branch. The governor then became either a member of the upper house or
its presiding officer. However, the governor, along with his council,
sought to maintain a firm hold on the judicial functions assigned to
them by the commissions and instructions. In the case of Virginia, for
example, this relationship had its political advantages. First, the
governor and council had extraordinary power over the judiciary since
they appointed the judges and they possessed the final appellate review
over their judgments. Second, "the close connection between the execu-
tive and the courts at this time made it quite possible for the governor
to obtain from a jury whatever verdict he desired. In fact, it became
the custom for a new administration, as soon as it was installed in
power, to take revenge upon its enemies by means of the courts."129
This power was somewhat limited later by the organization of the colonial
courts, but the governor and council continued to be, in most cases, the

highest court of appeal, which still gave them tremendous power.

 

129A complaint against the system of justice was voiced by

Benjamin Harrison in 1698. "The same men of the council also constitute
the Supreme Court of Judicature in all causes whatsoever, so that there
is not relief against any judgments that they choose to give, so that
the most prudential method for every man is to submit patiently and to
make the best terms with them that he can. For they will always look

so carefully to their own interest as to stand by each other in opposi-
tion to all persons, and if one of them chances to speak a little freely
of the miscarriages of one of his brethern, though perhapse there may be
truth enough in it, yet among themselves and generally let such things
sleep. Calendar of State Papers, Colonial Series, XVI, doc. 656, p. 330.

72

The seventeenth century governor was therefore not strictly
or exclusively an executive officer since he still possessed important
legislative and judicial functions. It was left to the eighteenth
century to complete the task of a more thorough division of powers.

In short, the theory of executive power began in the seven-
teenth century with a strong independent governor. Part of that resulted
from the initial concentration of most governmental power in his hands.
Gradually as the commercial companies matured into complex political
communities the scope of the governor's power was divided and limited.

He lost, for example, the legislative power to representative assemblies,
though he was far from powerless to influence legislation. As experi-
ence dictated, his powers were further defined and limited.

The seventeenth century established and reinforced a number
of principles around which developed the basic institution of American
executive power. The first was executive unity. Every colony vested
the ultimate executive authority in one person. He may have shared his
powers with a council at various times, but responsibility generally
devolved upon one person to see that policies were properly administered.130

The second principle was the written delegation of powers.

The governor's authority came from a written instrument, be it a charter,

a commission, a set of instructions, or laws passed by an assembly.

 

130Wertenbaker, Virginia Under the Stuarts, p. 66. Also see
William C. Morey, "The Genesis of A Written Constitution," Annals of
the American Academy_of Political and Social Science, April, 1891, pp.
529-557; Andrew C. McLaughlin, Foundations of American Constitutionalism
(New York, 1966), Chapter II, pp. 38-65; Thomas Ludwell, “A Description
of the Government of Virginia," Virginia Mpgazine of History and Bio-

graphy, V, 56-57.

73

Though the royal governor viewed himself as the embodiment of the

royal prerogative, he was still subject to the limits of those docu-
ments. Even in the charter colonies, like Massachusetts, the deputies
in the general court were quick to protest a claim of executive autho-
rity which was not recognized by the charter or granted by laws enacted
under it. Thus the governor had the scope of his authority confined to
a written instrument, though he had other means, like patronage, to
augment his written grants of power.

The third principle was executive responsibility. The docu-
ments which empowered the governor also created a hierarchy of authority
which established executive responsibility. The governor was not a
divine right monarch. His actions were subject to review by king, pro-
prietor, or assembly, as in the case of a charter colony. He may have
been a powerful political figure in the colony, but the exercise of that
power was tempered by the fact that he was not entirely his own man.

His actions directly affected the king, or proprietor, or the people

who elected him. In the latter case, as noted earlier, the people of
Massachusetts were quick to oppose the idea of life-time appointment

for the governor, preferring to make him subject to annual election to
keep him responsible to their wishes. Additionally, the governor was
required to take an oath of office before he could begin his duties, and
he was subject to recall or impeachment if he violated it.]31

In Virginia, however, the governor developed ways to counter

the checks placed upon him. Hartwell, Blair, and Chilton, in their

 

131Labaree, Royal Instructions, I, 33-34.

 

74

century end report on The Present State of Virginia,_and the College,
listed three checks on the governor--the king's instructions, the coun-
cil, and the general assembly. The governors, they reported, "have
since found out ways to evade them all!" He first kept the instructions
secret. Then he maneuvered appointments to the council into his hands
and maintained their loyalty by patronage. Finally, after 1680, with
Culpepper's appointment as governor, he convinced the king to remove
the appellate power from the assembly and to lodge it with the king,
which effectively ended the assembly's power to override the governor.
These and a host of other minor ways made the governorship a powerful
political institution in relation to the council and the assembly toward
the end of the century.132
The fourth principle involved was executive discretion. As
long as the governor was accountable to those responsible for his
tenure, most were willing to grant a degree of discretion in the execu-
tion of his duties. At first, the degree of discretion was extremely
broad. However, as the governor's duties became more political and
less concerned with management of a commercial venture, the degree of
discretion allowed was significantly narrowed. Additionally, as the
operation of the colony became more complex, the governor's powers were
increasingly defined in more precise terms which tended to limit his
discretion even further. Nevertheless, commission and instructions

could not foresee every eventuality that might arise, and therefore,

 

132Hartwell, Blair, and Chilton, The Present State of Virginia,
pp. 21-30. Calendar of State Papers, Colonial Series, V, doc. 1250, pp.
400-401.

 

75

did leave the governor some discretion. In areas of extreme importance,
like military matters, the governor was required to proceed only with
consent of the council.

As the seventeenth century drew to a close, England began to
take steps to consolidate its power over the colonies. The king's old
executive board, known as the Committee of the Privy Council on Trade
and Plantations, established under Charles II, was reorganized into the
Board of Commissioners for Trade and Plantations, better known as the
Board of Trade. The Board was responsible for the development and
enforcement of imperial controls over the colonies. Since the Restora-
tion, England had slowly built up an apparatus which tried to bring the
colonies into a more ordered system of administrative control under the
English executive.133

The Board's major tool for enforcement of its policies was the
colonial governor, who was controlled through the means of his commis-
sion and instructions. The other significant means of control was the
supervision of colonial legislation. The right of the king to suspend
or disallow provincial legislation in the royal colonies had long been
conceded. However, in 1681 England began to extend this to the proprie-

134 Especially

tary colonies as evidenced by the Pennsylvania charter.
after the Glorious Revolution, the disallowance of colonial legislation

became one of the major weapons the Board used to bring the colonies

 

133Kellogg, "The American Colonial Charter," pp. 207-229, for
a discussion of the Board's role.

134Poore, Federal and State Constitutions, 1. 1527‘1531-

 

76

into conformity with imperial policies. In the polarization that
followed between England and the colonists, the governor became the
focal point as he tried to maintain the royal prerogative against assem-
blies which were viewing themselves more and more as miniature Parlia-
ments. This was to have a decisive influence on the development of
American executive theory in the eighteenth century.

Thus, from 1685 to 1720 the Crown exerted its greatest efforts
to reduce the colonial charters to forms consistent with their aim of
imperial control. The major instrument in accomplishing this was the
Board of Trade whose hostility toward the seventeenth century colonial
charter was directed at the establishment of a uniform system of govern-
ment which would allow it to exercise a more complete bureaucratic

‘35 The implica-

control over the development of American institutions.
tion of this process on American executive theory will be discussed in
Chapter II.

Additionally, the political experience among the colonies was
remarkably uniform by the end of the seventeenth century. Many common
experiences had developed out of the divergent origins of charter,
proprietary, and royal colonies which, in spite of the geographic isola-
tion, formed the basis for common solutions. This was especially true
after the Board of Trade began to institute uniform policies for the
colonies under its jurisdiction.

In summary, the American colonial experience of the seventeenth

century saw, for the most part, a tradition of strong executive

 

135Kellogg, "The American Colonial Charter," p. 319-

77

leadership. However, the means by which a governor maintained his
strength became, in part, his undoing. As the governor came to be
identified more with an external authority, the more precarious his
position became within the colony. The American colonial governor's
fall from power soon became one of the major themes of the eighteenth

century.

CHAPTER II

DOMESTICATING THE EXECUTIVE:

The Eighteenth Century Colonial Governor
To the Reorganization of the Empire in 1763

The century between the Glorious and American Revolutions was
a period of great significance for the development of American executive
theory. The experiences, precedents, and theorizing which took place
in this era established a foundation upon which the revolutionary genera-
tion built the structure of the national executive power in the succeed-
ing two decades. This chapter examines the role of the eighteenth
century colonial governorship in the development of American executive
theory by analyzing the interaction between its constitutional structure
and colonial politics prior to the reorganization of the British Empire
in 1763.

The Stuart Restoration in 1660 saw an attempt by Charles II
and James II to bring some order to the haphazard organization of English
colonial efforts by the consolidation of the colonies into dominions.
However, this plan was cut short by the Glorious Revolution in 1688.
Colonial reaction to the events in England led the new policy makers to
abandon the dominion concept and return to the establishment of indivi-
dual colonies. Additionally, England undertook a major review of its
colonial administrative methods and overhauled its machinery for super-

vising colonial affairs. Oddly enough, the Revolution which established

78

79

Parliamentary supremacy in English political life did not carry over
the same result into the colonial policy making. There the Revolution
was followed by an attempted increase of prerogative control over the
colonies.1

The transition from the Stuart monarchy to William and Mary
saw a significant restructuring of colonial administration. To prevent
Parliament from interfering with colonial operations, William established
the Lords of Trade and Plantations in 1696, often called the Board of
Trade. Prior to that time colonial affairs were handled by various
committees of the Privy Council. However, the Board of Trade did not
have the power to act independently, but only to recommend actions for
Privy Council consideration, e.g., whether to approve or veto colonial
legislation. The Privy Council was therefore the ultimate constitu-
tional authority over the colonies, limited only by the fact that once
a colonial charter was granted, it could only be revoked by due process
in English courts. The Board of Trade, for the most part, became the
conduit for communications between England and the colonies. This
latter function was shared with the Secretary of State for the Southern
Department to whom the colonists frequently appealed to circumvent the
Board of Trade recommendations inimical to their interests, since the

Secretary could overrule the Board at his pleasure.2

 

1George Chalmers, Political Annals of the Present Colonies
from the Settlement to the Peace of 1763 (New York, 1968), and Midhael
G. Hall, et al., The Glorious Revolution in America: Documents on the
Colonial Crisis of 1689 (New York, 1963).

2Louise P. Kellogg, "The American Colonial Charter, A Study
of English Administration in Relation Thereto, Chiefly After 1688,"

80

The Board of Trade's primary function was to further British
mercantile interests. Its policy makers were therefore more concerned
with economic than administrative aspects of colonial relations.
Accordingly, the Board's administrative work was limited to a few basic
functions: examining governors' instructions; preparing annual reports
on a governor's actions; recommending persons for various colonial
offices; analyzing colonial legislation for possible veto; writing
legislation for governors to present to their colonial assemblies; and
finally, accounting for all funds raised and dispersed within the
colonies. In short, the function of the Board was to gather information
and prepare advice for the direct action of the King in Council.3

The Secretary of State for the Southern Department, on the
other hand, represented the Crown's prerogative in colonial relations.
He appointed the governors and other royal officials within the colo-
nies, directed colonial military operation, and corresponded with colo-
nial officials. His interference prevented the Board of Trade from
carrying out a definite and consistent plan of colonial administration.

Additionally, the ability of the men appointed as secretary also affected

 

Annual Reports of the American Historical Association, 1903, I, pp. 184-
341; Peter Laslett, “John Locke, the Great Recoinage, and the Origins

of the Board of Trade: 1695-1698, William and Mary_Quarterly, 3d ser.,
XIV (July, 1957), 370-402; I. K. Steele, Politics of Colonial Policy:
The Board of Trade in Colonial Administrationil696-l720 (Oxford, 1968).

3Kellogg, "The American Colonial Charter," pp. 207-214; Arthur
H. Bayse, The Lords Commissioners of Trade and Plantation . . . 1748-
1782 (New Haven, 1925); Michael Kannen, Empire and Interest: The Ameri-
can Colonies and the Politics of Mercantilism (Philadelphia, 1970);
George Louis Beer, The Commercial Policy_of England Toward the American
Colonies (New York, 1893)}

 

 

 

81

the development of policy. From 1696 to 1724, thirteen men occupied
this office until the Duke of Newcastle was appointed at the age of
thirty. Under his leadership, which lasted until 1748, colonial rela-
tions fell into a period of inattention, which allowed precedents to
become so strongly established that an attempt to undo them created a
major political crisis. This is known as the period of "salutory
neglect."4

From its inception to 1702, the Board of Trade acted as an
adjunct to the King in Council, which accounted for its initial suc-
cesses. However, after that point it suffered from fragmented admini-
strative control as senior ministers of the Crown plundered the colonial
office in search of lucrative patronage prizes to bolster their own
position within the English government. Moreover, American affairs for
the most part were on the periphery of English political concerns, which
resulted in colonial policy fashioned to fit private interests. So long
as there was no one agency in charge of coordinating the development and
enforcement of colonial policy, Americans would enjoy the benefits of
virtually governing themselves. As one official observed, "It is found
by experience that whatsoever Councel (sic) is not enabled as well to
execute as advise, must needs produce very imperfect and weak effects."5
That was the position the Board of Trade found itself in during the

crucial years of American colonial development.

 

4James A. Henretta "Salutory Neglect": Colonial Administra-
tion Under the Duke of Newcastle (Princeton, 1972).

 

5Quoted in Steele, Politics of Colonial Policy, p. 8.

 

82

By 1752, the Board of Trade convinced the Privy Council to
direct the colonial governors to deal with it alone except in cases
requiring the Crown's immediate attention, e.g., questions of foreign
policy and military action. However, the Board of Trade was unable to
surmount the bureaucratic and political problems caused by the reorgani-
zation of colonial administration and was finally abolished in 1768. A
secretary of state was appointed to conduct all colonial business, which
indicated an attempt to centralize colonial administration in the hands
of an official directly responsible to the king.6

Under the Duke of Newcastle, colonial administration suffered
from a number of problems which affected the internal operation of the
colonies. One of the more serious ones was Newcastle's use of the
colonial office as a source of patronage to increase his influence
within the British government. By the 1730's the colonial office had
"become a repository for sterile placemen and shabby politicians."7
Newcastle's success at bringing colonial affairs under his control,
however, was not used to strengthen British control over the colonies.
This was due, in part, to the fact that American affairs did not carry
the political impact necessary to bring down a ministry when something
went wrong. The lack of competent administrators and the low priority

of American affairs in British politics further weakened British control

over the colonies in this period.

 

6Kellogg, "The American Colonial Charter," p. 225; Henretta,
"Salutory Neglect," pp. 308-309; Franklin B. Wickwire, British Sub-
Mfifiisters and‘Colonial America, 1763-1783 (Princeton, 1966).

7

 

Henretta, "Salutory Negiect,9 p. 140.

83

Bureaucratic rivalry among the major departments connected
with colonial policy accounted for another problem. The Board of Trade's
major concern was to further British mercantile interests. As such,
they were concerned with the efficient administration of the empire,
even if it had to be financed to some degree by the homeland. The
additional cost would be more than offset by the increased trade, they
argued.8 Treasury, on the other hand, was more concerned with finding
additional sources of revenue to meet the drain on the national treasury.
The colonies, they argued, were a source of potential revenue and they
should therefore pay the costs of imperial administration and send the
surplus to the English treasury. The conflict between these views was
evident in the dispute over whether to pay the salaries of colonial
officials to keep them dependent on England and not the colonial assem-
blies. The result was that “it hath always been esteemed good policy,"
the Board of Trade concluded,

that the officers of the Crown in the American colonies should
be maintained and supported in a reasonable degree that the
people may by their means be restrained and kept in due obedi-
ence to the king, and in a just and rquisite subordination
and dependence on the1r Mother Country.

This attitude turned out to be one of the major undoings of British

colonial policy.

 

8Ibid., pp. 64—65. Also see Dora Mae Clark, The Rise of the
British Treasury: Colonial Administration in the Eighteenth Century
(New Haven, 1960); Dora Mae Clark, "The Office of Secretary to the
Treasury in the Eighteenth Century," American Historical Review, XLII,
(October, 1965), pp. 22-45.

 

9Calendar of State Papers: Colonial Office, XXXVII, p. xxxviii.

84

Also, English domestic politics were another factor in
colonial policy-making in the first half of the eighteenth century.
The Walpole government, for example, wanted to avoid any issues which
might prove divisive to the political stability of England. So long as
imperial trade continued to increase English commercial prosperity, he
was content not to interfere with colonial administration. By the
second decade of the century "colonial administration had come to run
itself, subject only to the demands of domestic patronage," one historian
concluded.10
By mid-century the military and financial needs of the empire
forced a change in colonial policy and a reform of its administrative
machinery. However, the lax policies of the past half century were not
easily altered without causing considerable damage to colonial relations.
Additionally, the relationship between Parliament and the
monarchy was undergoing a fundamental revision. The weakness of the
first two Georges allowed Parliament to dominate English politics. With
the accession of George III, who was determined to regain the dominant
role, there was a fundamental revision of the constitutional relation-
ship between the various parts of the empire. How this affected the
colonies is discussed later. In short, the colonial policy developed
in the first half of the eighteenth century, irrespective of its intrin-
sic merits, faced formidable obstacles in its enforcement from conditions

in the bureaucratic structure of the colonial administrative apparatus.

 

10Henretta, "Salutory_Neglect," p. 268.

 

85

In addition to the late seventeenth century revision of
colonial administrative machinery, there was an attempt to bring the
American colonies into a uniform pattern of government aimed at maxi-
mizing the Crown's control over them. This was done in part by standard-
izing the charters and commissions granted to each colony and its governor.
Moreover, the various experimental forms of government which existed
prior to the Glorious Revolution were replaced by a common structure
which included an appointed governor, except in Connecticut and Rhode
Island where they were elected; an appointed council, except in Massa-
chusetts where it was elective; and a popularly elected assembly. These
divisions remained in effect until the American Revolution and produced
similar experiences through the colonies when they tried to cope with
the English colonial policies. Moreover, while it is difficult to gauge
the full impact that colonial rebellions after the Glorious Revolution
had on the English policy-makers, they did, in some way, stem the
aggressive tendencies of the Crown to centralize control over the colo-
nies and dominate their constitutions by the English executive bureau-
cracy.H

A second factor in the enforcement of colonial policy was the
role played by the colonial assemblies, which were firm fixtures in
colonial constitutions by the 1690's. Adopting tactics used by Parlia-
ment to control the king in the seventeenth century, the colonial assem-
blies were often very successful in frustrating royal intentions in the

eighteenth century. In the final analysis, as discussed later, the

 

11Kellogg, "American Colonial Charter."

 

86

trend toward local representative government played a decisive role in
finally preventing the total executive domination of the colonies.12
Before England could begin to develop programs for the enforce-
ment of colonial policy, the major obstacles to their enforcement had
to be eliminated. King William, for example, attempted to remedy the
deplorable state of colonial policy by extending his prerogative to
charter and proprietary colonies to bring them into line with the royal
colonies. The House of Lords in 1698 sought to increase the Crown's
prerogative over the colonies by three measures. First, they expanded
vice-admiralty court jurisdiction over the Navigation Acts to combat
the failure of colonial courts to enforce them. As branches of the
High Court of Admiralty at London, the vice-admiralty courts were pre-
rogative courts and therefore did not follow common-law procedure or
precedent. Their establishment signaled a victory of prerogative over
the common-law tradition in the colonies and indicated a significant
revision of the governing powers granted in the colonial charters whereby
a novel form was created to replace an established English tradition.
As the eighteenth century progressed, these courts were to become an
important point of contention.13

*The second measure was directed at the charter and proprietary

colonies to force their compliance with the Navigation Acts. It gave

 

12Mary Patterson Clark, Parliamentary Privilege in the American
Colonies (New Haven, 1943); S. M. Pargellis, "The Procedure of the Vir-
ginia House of Burgesses," William and Mary_Quarterly, 2d ser., VII
(April, 1927), pp. 73-86, 143-157.

'3Michae1 Hall, "The Navigation Act of 1696," William and Mary
Quarterly, 3d ser., XIV (October, 1957), pp. 494-515. See note 73 for
further sources.

 

87

the Crown the right to approve any governor appointed in those colonies.

In Connecticut and Rhode Island, where governors were elected annually,
this procedure proved too cumbersome and was allowed to lapse. In the
proprietary colonies its enforcement gave the Crown a chance to examine
the proprietary records and the qualifications of the candidates.14
The third measure required the governors of all the colonies
to take an oath to support the trade laws in addition to posting a
security bond. This gave the Crown some measure of control over the
charter colonies which it did not otherwise possess.15
These measures helped cement the notion that the colonies
were creatures of the Crown and tightened prerogative control over them.
Thus, the beginning of the eighteenth century saw an attempt to shore
up and remedy some of the major defects in the administration of British
colonial policy.
The colonial governor played center stage in this extension

of prerogative control over the colonies at the end of the seventeenth

century. He was the connecting link between the colony and the colonial

 

14Kellogg, "American Colonial Charter," pp. 257-258. For
additional information see the following: M. Eugene Sirmans, "Politics
in Colonial South Carolina: The Failure of Proprietary Reform, 1682-
1694," William and Mary Quarterly, 3d ser., XXII (January, 1966), pp.
33-55; I. K. Steele, "The Board of Trade, The Quakers, and the Resump-
tion of Colonial Charters, 1699-1702," William and Mary QuarterLy, 3d
ser., XXIII (October, 1966), pp. 596-619; D. D. Wallace, Constitutional
History of S. Carolina From 1725-1755 (Abbeville, S. C., 1899); Charles
C. Crittenden, "The Surrender of the Charter of South Carolina," North
Carolina Historical Review, I (October, 1924), pp. 384-400; M. Eugene
Sirmans, Colonial South Carolina: A Political History, 1663-1763 (Chapel
Hill, 1966).

”Ibid., p. 255.

 

 

88

administration in London. Furthermore, he was the administrative
cornerstone of English policy within the colony. As a royal appointee,
he was the personal representative of the Crown and carried all the
weight and prestige of a royal agent. In that capacity he was respons-
ible for defending the royal prerogative, enforcing the commercial
policies and Parliamentary acts of the realm, and acting as commander-
in-chief in times of war.

The governor's authority, like his seventeenth century prede-
cessor, came from two sources, his commission and instructions. The
commission generally contained a general grant of authority and the
instructions were detailed directions on its use. These documents com-
prised the quasi-constitution of the colony which defined not only the
governor's responsibilities, but the colonial assembly's role as well.
Additionally, the instructions outlined the policies that the colonial
government was to pursue and the manner in which it was to be done. As
colonial historian William Smith noted, the instructions "are changeable
at the king's pleasure, but rarely undergo any very considerable altera-
tion."16

The governor's executive authority can be divided into two
basic categories, legislative and administrative, with the latter com-
prising his judicial functions as well. In the first instance, he was.

empowered to summon the assembly, and with the assent of the legislature

 

16William Smith, Jr., The History of the Province of New York,
Michael Kannen, ed. (Cambridge, 1952), I, p. 254. Also see L.F.S. Upton,
The Loyal Whig, William Smith of New York and Quebec (Toronto, 1969).

89

"to make, constitute and ordain Laws Statutes and Ordinances for the

public Peace, Welfare and good Government" of the province; to exercise

an absolute veto over laws, statutes, and ordinances enacted by the

assembly, contrary to the prerogative, interest, or policy of the Crown;

and to summon, adjourn, pror09ue, or dissolve the assembly when he

deemed it necessary. His administrative duties were to execute the

laws and all things under his command and trust, "to erect, constitute

and appoint such and so many Courts of Judicature and publick justice"

for hearing "all causes, . . . Criminal as Civil, according to Law and

Equity," to appoint judges, justices of the peace, and commissioners of

oyer and terminer "for the better Administration of Justice," to grant”

pardons for criminal offenses, but only temporary reprieves to traitors

and willful murderers, to command military and naval forces to repel

attack from land or sea, to appoint military officers, and, when neces-

sary, to execute martial law; to issue warrants for the expenditure of

public monies, to create fairs, markets, ports, and harbors, and

finally, to collate ministers of the Church to ecclesiastical benefices.17
The governor's grant of power gave him tremendous influence

on the direction of colonial affairs and made him a powerful political

figure. As one eighteenth century historian noted, the colonial governor

18

enjoyed "a vast plenitude of power." Another contemporary declared

that the

 

17Based on the commission given to Francis Bernard, Governor
of New Jersey, reprinted in George Dargo, The Roots of the Republic: A
New Perspective on American Constitutionalism (New York, 1974), pp. 31-32.

18Smith, History, I, 245.

90

king's Governours in the Plantations either have, or pretend

to have very large Powers with their Provinces, which with

. . . [their patronage] render them so absolute, that it 13

almost impossible to lay any sort of Restraint upon them.
It was thought necessary to empower the governor to such a degree so
that he could administer and enforce the colonial policies more eaSily.

However, the colonial governor was not a miniature absolute

monarch. He had only delegated administrative authority, which did not
place him on the same constitutional basis with the colonial legislature
as the Crown was to Parliament. As an agent of the Crown he held only
that authority which facilitated administration of established polioy.
In theory, he possessed no discretion in the establishment or execution
of policy. His function was to administer those policies given to him
in the manner prescribed in his instructions or included within the
policy. The New Hampshire assembly neatly summarized the distinction
between king and governor when it said,

However much he may be exalted above us by the honor he

receives from His Majesty's commission, [he] is yet liable

to mistakes and errors in his canduct, and may do wrong

though his royal master cannot. 0
Citing the contrary constitutional assumptions of both England and the

colonies another contemporary said,

It is impossible that the Supreme Legislature, that the King,
Lords, & Commons can be guilty of High Treason; but it cannot

 

19Anonymous, "An Essay Upon the Government of the English
Plantations on the Continent of America," Louis B. Wright, ed. (San
Marine, California, 1945), p. 36.

20Quoted in Jere R. Daniell, Experiment in Republicanism, New
Hampshire Politics and the American Revolution,_l741-l794 (Cambridge,
1970), p. 26.

 

91

be doubted, that a Governor, Council, 8 Assembly may be guilty.
It is an illegal usurpation in a subordinate power to claim
the same rights & privilieges with the supreme.

2' Thus,

That, he concluded, "would at least be a solecism in politicks."
the governor, like the other component parts of the colonial government,
was viewed as being subordinate to, but not equal to, their respective
counterparts in England. Though the colonial assemblies never admitted
that the royal governor was anything more than a royal agent, they were
quick to identify their authority as being the same as Parliament's with
respect to internal colonial affairs. This is discussed further in
regard to the disputes between the governor and assembly.

Empowering a colonial executive with vast authority was reason-
ably easy; it was quite another problem to control his use of that
authority from such a distance. To accomplish this, English officials
devised two methods to help them maintain control over the governor's
actions. The first was the set of instructions given to each governor
with his commission. These contained detailed discussions of the poli-
cies and procedures he was to follow in carrying out his duties. The
Board of Trade did not consider them to be mere guidelines, but rather
cautioned the governors "to strictly . . . adhere to your instructions
and not to deviate from them in any point but upon evident necessity

22

justified by the particular circumstances of the case." The Privy

 

21Cadwa11ader Colden to Alexander Colden, July 5, 1759, Smith,
History, Appendix B, p. 295.

22Quoted in Leonard Woods Labaree, Royal Government in America:
A Study of the British Colonial System before 1783, reprinted ed. (New
York, 1964), p. 435.

 

92

Council, under the presidency of Lord Grenville, put the matter much
more bluntly when it said,

. those Instructions are not like little Pocket Instruc-

tions given to an Ambassador or Envoy, in which may be left
to Discretions; . . . The King in the Council is THE LEGIS-
LATOR of the Colonies; and when his Majesty's Instructions
come there, they ar33the LAW OF THE LAND: . . . and as such
gggflt _1_:_g_ be OBEYED.
The significant point was that they theoretically denied the governor
virtually any discretion in carrying them out.

The fact that the instructions were not basically altered in
the seventy-five years preceding the American Revolution shows the
determination of the English policy-makers to enforce a uniform policy
irrespective of the changing conditions. Proposals to bring the instruc-
tions into line with new developments in the colonies were resisted as
being contrary to the "true principles of a provincial constitution."24
The inflexibility of the instructions, however, more often than not
caused the governor significant hardship in trying to deal with the
assembly by tying him to an inflexible position.

The second restriction placed on the governor's exercise of
his power was the built-in checks in the colonial constitution. He
was forced to deal with a council, which was sometimes appointed with-

out his knowledge or approval. His veto power was weakened by the

enumerated categories of legislation listed in his instructions that

 

23Benjamin Franklin to Robert Norris, March 19, 1759, Franklin
Papers, VIII, 291-297.

24Quoted in Labaree, Royal Government, p. 447. Also see
Percey Scott Flippen, The Royal Government in Virginia 1624-1775 (New
York, 1919), p. 364.

 

93

he was required to veto to protect the royal prerogative and English
interests, which further eliminated any discretion he could use in
dealing with the assembly. Moreover, his veto was also weakened by

the Crown's review of colonial legislation and the demand that he force
the colonial legislature to add suspending clauses to certain types of
legislation. Finally, his judicial power was tempered by allowing

25 Thus, in key

appeals to be taken to England for final disposition.
areas the governor often did not have the final word in provincial
decision-making, but was only one step in the continual process of
negotiations between the Crown and colonists.

Throughout the eighteenth century the colonial constitution,
as outlined in the commission and instructions of the governor, did not
change significantly. However, the political realities under which it
operated were altered considerably. As the century progressed, the
royal governor found himself caught between the demands of British
officials to enforce policies on unwilling subjects and the changing
political conditions of the people he was supposed to govern. In that
matrix prerogative government underwent its greatest challenge in the
colonies.

At the end of the eighteenth century there was a demand from
numerous individuals to reform many of the practices and procedures and
put the colonies on a proper footing. One of the most serious problems

was the lack of competent appointments to the governorships. As royal

official William Blathayt noted early in the century,

 

25See Kellogg, "The American Colonial Charter," pp. 259-272.

94

The sending of good Governors to the Plantations is much

insisted on with good reason, for where his Majesty has so

few officers of his own appointment they ought to be more

careful of their Duty and at so great a distance from his

Majesty'3ogyeogrggtslemgta5gons happen whereby his Majesty's
Ideally, a governor ought to be schooled in the law, military science,
and governmental administration. Generally they were totally devoid of
these prerequisites.

Many governors were appointed on the basis of patronage. One
observer contended that "the Court of England hath hitherto gone upon
wrong Principles, in appointing Governours . . . as the last Rewards
for past Services." This resulted in their "expecting nothing after
that . . . which necessitated, them to make Provision for their whole
Lives, whereby they were in a manner forced upon such Methods (whether
good or evil) as would compass those Ends."27

By a judicious selling or renting of colonial offices a gov-
ernor or Crown official could return a profit to himself, since the
lesser offices were considered private property to be "rented out“ to
deputies who performed the actual work at a fraction of the salary. Of
the ten governorships appointed by patronage, five were worth more than

1,000 pounds sterling annually, with the most lucrative worth more than

8,000 pounds.28 Prior to the 1730's American posts were given to those

 

26Quoted in Stanley N. Katz, Newcastle's New York: Anglo-
American Politics, 1732-1753 (Cambridge, 1968), p. 37.

27"An Essay Upon the Government of the English Plantations,"
Wright, ed., p. 37.

28$ee Beverly McAnear, The Income of the Colonial Governor
(New York, 1967).

95

individuals whose fortunes were expended in the "national" interest,
e.g., those in the military or diplomatic service, from noble birth, or
influential connections were usually the priority criteria. After 1730
exploitation of the colonial administration was used as a reward for
political loyalty, which tied colonial administration with English

29

politics. In short, as one disgruntled New Yorker argued,

That state or Kingdom must be Very ill-governed, whose officers

are chose (sic) because they are relations to this or that

great man or because they are able to give a large sum of

money for their imployment (sic), wherg a meritorious man has

no Chance if he has not a good friend. 0

Other governors just did not have the personal ability to

carry out their tasks or were too busy trying to make their fortunes.
"Governments were heretofore too often bestowed upon men of mean parts,
and indigent circumstances," New York historian William Smith concluded.
"The former were incapable of the task, and the latter too deeply en-
grossed by the sordid views of private interest, either to pursue or

h."3'

study our commonwealt The New York assembly roundly condemned the

practice of fortune seeking governors because "as they know the Time of
the Continuance in their Government to be uncertain, all Methods are

used, and all Engines set to work to raise Estates to themselves."32

 

29See Henretta, "Salutory Neglect," Chapters III, IV.

 

30Quoted in Katz, Newcastle's New York, p. 7.

315mith, History, I, 3.

32Quoted in Katz, Newcastle's New York, p. 28.

 

96

Governors also lobbied the home government for promotion to
more lucrative governorships for various reasons. Francis Bernard,
then governor of New Jersey, requested a larger colony explaining,

If the peculiar circumstances of my family did not require

an uncommon exertion to make a provision for them, I should
condemn myself for thinking of another Government. But till
Nature sets bounds to the Number of my Children, which is not
done yet I know not how to limit my wants or desires.

Another source of governors was the military. Early in the
eighteenth century governorships were viewed in many cases as paramili-
tary positions. Their function was to unite the civil and military
authority in the interests of advancing the royal prerogative and
enforcing the Navigation Acts. Their military experience in administer-
ing garrison towns gave them the practical background which they applied
to the colonies with vigor. Additionally, their military spirit gave
them an anti-legislative bias, which the Crown found quite congenial to
its ends in its battles with the colonial assemblies. The House of
Commons was quick to note that attitude when one of its committees con-
cluded that "in the army it has grown into a principle that Parliaments

"34 Francis

are roots of rebellion and Magna Charta sprung out of them.
Nicholson, one of the prime examples of the military governor, saw trade
as a vital factor in England's strength and therefore enforced the

Navigation Acts with a vigor which was more mercantile than most of the

 

33Quoted in Donald L. Kemmerer, Path to Freedom: The Struggle
for Self-Government in Colonial New Jersey 1703-1776 (Princeton, 1940),
p. 263.

34Stephen S. Webb, "The Strange Career of Francis Nicholson
. . . ," William and Mary Quarterly, 3d. ser., XXIII (October, 1966),
p. 529.

97

merchants themselves, though his goal was not directed at profit as
much as it was toward increasing the royal customs revenue and strength-
ening the Crown's prerogative.
Not all governors could be characterized as lacking in general
abilities or were overly hostile to colonial interests. New Hampshire's
governor Benning Wentworth, for example, was one of a number of meritori-
ous governors who served the Crown and yet completed his service without
continual strife between himself and the colonists, though he did have
his differences with them at times.35 Another was Governor Hunter of
New York who, upon leaving his post, was eulogized by the assembly who
said in part,
We have seen many Governors, and may see more: and as none of
those, who had the Honour to serve in your Station, were ever
so justly fixed in the Affections of the Governed, so those
to come will acquire no mean Reputation, whgg it can be said
of them, the1r Conduct has been l1ke yours.

Apparently the affection was one sided, since Hunter was reported to

have said just before announcing his departure from the colony, "People

think it a fine thing to be a governor. A governor by ----- a Tom

 

35J. R. Daniell, Experiment in Republicanism, Chapter I; J. R.
Daniell, "Politics in New Hampshire Under Governor Benning Wentworth,
1741-1767," William and Mary Quarterly, 3d ser., XXIII (January, 1966),
pp. 76-105; Lawrence H. Leder, Robert Livingston 1654-1728 and the
Politics of Colonial New York (Chapel Hill, 1961); John A. Schutz,
William Shirley, Kingfs Governor of Massachusetts (Chapel Hill, 1961);
R0bert Zemsky, “William Shirley and'the Politics of Persuasion," Mgr?
chants, Farmers,yand River Gods (Boston, 1971); George Wood, William
Shirley (New York, 1920).

36

 

 

 

Smith, History, I, 157.

98

Turdman's is a better office than to rake in the dunghill of these
people's affections."37
Unfortunately, from the Crown's point of view, the colonial
governor was too often sadly lacking in the necessary abilities to carry
out his functions with the degree of skill and finesse required in such
a tenuous position. A governor's attitude toward the colony complicated
things still further, as evidenced by Alexander Spotswood's complaint
about giving up his career in the army "to go be buried in obscurity

in America."38

In short, many colonists might conclude, after looking
at their long line of governors, that the following description did not
miss the mark by much.
A faithful description of our Provincial governors . . . would
be little better than a portrait of artifice, duplicity,
haughtiness, violence, rapine, avarice, meanness, rancour and
dishonesty, ranged in succession, with a very small portion of
honour, justice and magnanimity here and there intermixed, to
lessen the disgust, which, otherwisg9 the eye must feel in the
contemplation of so horrid a group.

Personnel problems were not the only defects in colonial
administration. Many of the administrative procedures and practices
frustrated those attempting to conscientiously enforce colonial policy.
More often than not a governor's initial zeal was crushed by the intract-

able attitudes of the colonists and the indifference of the home office.

 

37Cadwallader Colden to Alexander Colden, October 15, 1755,
Smith, History, Appendix B, p. 308.

38Spotswood to Board of Trade, August 18, 1719, Virginia His-
torical Society, Collections, 11, 328-335.

39

 

Edward Long, History of Jamaica (London, 1774), I, 4.

 

99

Governor Gabriel Johnson of North Carolina wrote after only three years
in office:

I imagined like most young beginners, that with a little

assistance from home, I should be able to make a mighty

change in the face of affairs, but a little experience of

the people, and reflection on the situation of things at

home has absolutely cur'd me of this mistake, I now confine

my care entirely, to do nothing, which upon a fair hearing

. can be reasonably blameflo and leave the rest to time,

and a new set of inhabitants.

One of the ways governors overcame some of their difficulties
was to seek patrons or use agents to plead their case to officials in
London. As Governor: Belcher noted, "you will observe that a Governor
can't have too many friends at Court."41 The development of a system
of colonial agents created a series of informal relationships between
various segments of the empire. However, it was a two-sided weapon
which could be used to promote the private as well as the public inter-
est. Informal agreements between parties tended to undermine the power
and authority of the regular bureaucratic channels and smoother debates
over policy principles under a maze of private understandings among the
various parties. From the 1730's to the eve of the French and Indian
Wars, this system of informal government reached a point where the

various agents acted as buffers to mitigate the antagonisms between

England and the colonies. With Newcastle's departure as Southern

 

40Quoted in Henretta, “Salutory Neglect," p. 324.

41Quoted in John Schultz, "Succession Politics in Massachu-
setts, 1730-1741,“ William and Mary Quarterly, 3d ser., XV (October,
1958), p. 509n.

 

100

Secretary of State this elaborate system of informal government crumbled
leaving no buffer to cushion the clash of interests within the empire.42
Another way that colonial officials undercut the governor's
position in the colony was to reduce his patronage positions. By a
judicious use of colonial offices at his disposal, a governor could
increase his power over the assembly. However, Newcastle's political
ambitions within the English government forced him to raid the colonial
administration to augment his own patronage power. Governor Gooch
argued that to do this "would be subverting the fundamental Principles
of Government to take away from the Chief Officiating magistrate the

43 Governor Clinton warned the home govern-

Power of rewarding Merit."
ment that his lack of patronage was threatening the loyalty of those he

relied on for support of the prerogative especially after Newcastle

 

42See Henretta, "Salutory'Neglectyi pp. 142-147; James Burns,
The Colonial Agents of New EngJand (Washington, D.C., 1935); Michael
Kammen, A Rope of Sand: The Colonial AgentsyyBritish Politics and the
American Revolution (Ithaca, 1968); Michael Kammen, “The ColoniaTTAgents,
English Politics and the American Revolution," William and Mary Quart-
erly, 3d ser., XXII (April, 1965), pp. 244-263; Edward P. Lilly, The
Colonial Agents of New York and New Jersey (Washington, D.C., 1936)?
Edwin Tanner, "Colonial Agencies in During the Eighteenth Century,”
Political Science Quarterly, XVI (March, 1901), pp. 24-49; Mabel P.
Wolff, The C01onial Agency of Pennsylvania, 1712-1757 (Philadelphia,
1933); also see Henretta, "Salutory Neglectgi pp. 35-39 for a discussion
of the governor's involvement in English politics; Beverly Bond, "The
Colonial A ent as a Popular Representative,“ Political Science Quarterly,
XXXV (1920), pp. 372-392.

 

 

 

 

 

 

 

 

43Quoted in Henretta, "Salutory Neglect," p. 250. Also see
B. D. Barger, "Lord Dartmouth's Patronage, 1772-1775," William and Mary
Quarterly, 3d ser., XV (April, 1958), pp. 191-200; Philip Haffenden,
"Colonial Appointments and Pattronage Under the Duke of Newcastle, 1724-
1739," English Historical Review, LXXVII (July, 1963), pp. 412-435;
Donnell MacClure Owings, His Lordship's Patronage Offices of Profit in
Colonial Maryland (Baltimore, 1953).

 

 

 

101

nominated his own choice for a council post. "Mr. Rutherford,“ he
said, "is but a Stranger in the Country, and his appointment has greatly
alarm'd the People, particularly those of the better sort who expect to
be advanced to that preferment, as Vacancies happen."44
The loss of patronage also diminished the governor's control
over the administration of the colony. Governor Partridge of Rhode
Island despaired of his inability to appoint naval officers because the
Crown thought they would be more diligent in the prosecution of their
duties if they were not subject to the governor, even though I'by Act of
Parliament the right is in the Govr.”45
Complaints against the enforcement procedures had to be
handled by officials in London and not the governor, which eliminated
one more political weapon from his arsenal. Not only did this undercut
the governor's position, but it served to weaken the Crown's control
over the colonies. One contemporary observed in hindsight that
Bestowing [of] almost every lucrative office in America, that
could be exercised by Deputy, on some person residing in Great
Britain, who employed a Deputy, with a slender allowance, to
execute the office for him: this Deputy had neither weight
in the Province, nor any interest in the Government under
which he lived.
This resulted in the governor being "deprived of every appointment of
consequence . . . [who had] nothing in their power therewith to stop

the mouths of the demagogues that endeavored to throw the Country into

 

44

45Richard Partridge to Governor Ward, March 3, 1743, The Cor-
respgndence of the Colonial Governor's of Rhode Island, Gertrude S.
Kimball, ed. (Boston, 1902), I, 266-268, and Partridge to The Lord's
Justice in Council, May 28, 1743, p. 229.

Ibid., p. 260.

 

102

confusion."46

Governor Belcher' put it more succinctly when he wrote
the Board of Trade in May, 1733:
How is it possible . . . to support the King's power and
authority if such insults upon it must be indured, and how
can the hands of the King's Governor be strengthened if men
so diametrically opposed to him must be let into the govern-
ment to clog every thing he propoies for the King's service
and for the good of h1s subjects.
Thus, the loss of key patronage offices not only undermined the governor's
authority within the colony, but also diminished his authority as the
chief administrator of colonial policy.

The royal governor's role as colonial administrator was encom-
passed within two basic requirements. The first was to protect and
defend the royal prerogative and English interests. The second was to
enforce and administer Parliamentary acts and colonial legislation.

The means by which he was to carry this out were contained in his instruc-
tions which "regulated the governors conduct in almost every contin-
gency."48 In his first speech to the Massachusetts assembly Governor
Burnet stated that the "governor is but . . . [the Crown's] officer, to
act by his instructions and to have not inclinations, no temptations,

no bias, they may divest him from obeying his royal masters commands."49
Paramount in his duties was the protection of the royal prerogative,

which he was to pass unimpaired to his successor. However, this was

 

46Anthony Stokes, A View of the Constitution of the British
Colonies . . . (London, 1783), p. 138.

47Quoted in Schultz, "Succession Politics in Massachusetts,"
p. 511.

485mith, History, I, 245.

'4gQuoted in Labaree, Royal Government, p. 98.

 

103

not an easy task when faced with a recalcitrant assembly and apathy
from the home government. As Governor Shute noted in a letter to the
Board of Trade:
I have the Royal Prerogative (for which I have not a little
suffered as to my own private interest) and cannotsaay H. M.
Counc1l have 1n a great measure ass1sted me 1n it.

The other requirement was to veto all legislation detrimental
to the interests of the Crown. The governor's veto gave him power
virtually denied the monarchy after 1707. However, the governor did not
have discretionary use of the veto. As colonial assemblies learned how
to pursue effectively their own aims, governors were ordered to exercise
their veto over an increasing number of areas, which meant that "whole
categories of legislation declared in advance, without reference to the
reasoning of the colonial Assemblies . . . [was made] inadmissible."5]
Moreover, colonial legislatures were required to include "suspending
clauses" in certain pieces of legislation to prevent the law from taking
effect until the Crown's "Pleasure shall be made known concerning the
same."52 This strengthened the governor's hand in bargaining with the
assembly over pending legislation. It also "drew the Crown itself

directly rather than indirectly into the business of executive negation,

 

 

 

50Calendar of State Papers: Colonial Office, XXXII, doc. 514,
p. 329.

51Bernard Bailyn, The Origin of American Politics (New York,
1968), p. 67.

52Leonard W. Labaree, ed., pr 1 Instructions to British
Colonial Governors, 1670-1776 (New York, 1967), I, 131.

 

104

which, late in the colonial period, gave the colonists an excuse to
blame the Crown for their problems.53
British insistance that the governors adhere strictly to their

instructions in the enforcement of laws often caused more problems than
it prevented. The governors perennially complained about the lack of
discretion in carrying out their duties, especially in the years just
prior to the American Revolution. Governor Franklin of New Jersey sum-
marized the problem when he said:

I do not mean, however, that governors have, or ought to have

a power of dispensing with acts of parliament, but only that

they may be at liberty, where circumstances render it neces-

sary, to consent to some small deviation from the mode, pro-

vided the principal end of the act is obtain'd, and—th'

deviation is not contrary or repugnant to that, . . ." 4
The fact the instructions were not always rigidly adhered to was attested
to in a Board of Trade report in 1752, which noted that "the experiences
of late years furnished too frequently instances in which many of those
instructions have been dispensed with and neglected upon slight and
unwarrantable pretenses."55 One historian noted in the case of Virginia
that "two-thirds of the governors choose to meet the needs of the colo-
nists over a strict enforcement of the instructions," while the "remain-

ing third who showed strenuous activity in executing royal instructions,

and in seeking their own aggrandizement" were removed because of their

 

53Bai1yn, Origin of American Politics, p. 57.

54Quoted in Catherine Fennelly, "William Franklin of New
Jersey," William and Mary_Quarterly, 3rd ser., VI (July, 1949), p. 376.

55Quoted in Labaree, Royal Government, PP- 434'435-

105

“inability to administer the affairs of the colony with satisfaction
to the colonists and the approval of the home government." Thus, he
concluded,
. so long as a governor could keep the colony quiet and
prosperous, and trade with England was successful . . . nothing
was said about the royal instructions, tge royal prerogative
or the popular spirit of the colonists.
However, this was not always the case after the reorganization of the
empire began in 1763.
The governor was aided in the administration of the colony by

a council, which was designed to augment and check his powers. The
council was appointed in all colonies except Massachusetts where it was
elected, though in that case the governor could veto any member nominated.
The council had a dual function. As one writer described it,

The King's Councillors in the Colonies have a double capacity;

they are not only a branch of the Legislature, but are like-

wise as the King's Privy Council entitled to a considerable57

show in the administration and execution of the laws there.
The more significant powers of the governor were tempered with the coun-
cil's involvement; for example, the governor's commission would use the

phrase "full Power and Authority by and with the Advice and Consent of

our said Council" to preface a specific power. In Francis Bernard's

 

56Persey Flippin, The Royal Government in Virginia, p. 149.

 

57talendar of State Papers: Colonial Office, xxxv11, doc.
500, p. 327. For further discussions of the role of the council see
H. H. Bellot's "Council and Cabinet in the Mainland Colonies," Ro al
Historical Society Transactions, 5th ser., V, 1955, pp. 161-176, an
Rex M. Naylor, The Royal Prerogative in New York, 1691-1775," Quarterly
Journal of the New York State Historical Association, V (1924), pp. -
255.

 

106

commission, he was required to have council approval to summon the
assembly, write legislation, establish courts, grant land, and establish
ports, fairs, and markets.58

The council was responsible for the administrative functions
of government when the governor died or was absent from the colony. If
there were no lieutenant governor present, then either the council was
to take up "the Administration of the Government and that the eldest

)."59 Often, when this clause was invoked,

Counsellor do preside (sic
it touched off a dispute between the president of the council and the

eldest member over who had the actual authority to administer the colony.
However, the president's power, as one wag noted, was only "to sit at

the upper end of the table."60

The role the council played in colonial affairs depended on

its relationship to the governor. For example, a newly appointed gov-
ernor who "knows nothing of the country must rely upon the council for

6] In the end, though, councils dependent on the

his first governing."
governor's appointment and patronage tended to support the governor's
position in political disputes. Councils elected or appointed by England
wavered in their support of the governor. In the case of Massachusetts,

whose council was elected, an observer noted that "sometimes they are

under the awe of a negative. This precarious situation makes their

 

58Dargo, Roots of the Republic, pp. 31-32.
59

 

Calendar of State Papers: Colonial Office, XXIII, doc. 859,

 

p. 1707.

601bid., x1x, doc. 389, p. 194.

6'Ibid., XXIII, doc. 859, p. 420.

107

con<duct fickle, uncertain and inconsistent."62

Governor Nicholson,
giv<w1tfis military attitudes, found the council a nuisance and recom-
mended to the Board of Trade that a lieutenant governor be appointed.
Aside from the fact that many of its members were "old and very infirm
and lived a great distance from the seat of Government" which made it
difficult to assemble them, that when they succeeded in establishing a
quorum they had "great disputes about the person of the President and
his power singly." Moreover, when the council members are "all natives
self-interest may sway them to act in a manner prejudicial to H. M.
interest." The only reason against sending a lieutenant governor, he
argued, would be that "it may disoblige the Council and the people,
because none of them may ever be Governors in Chief." However, he con-
tinued, "this need not be made public, but the Lieutenant Governor may
be supposed to be sent upon some other present exigency."63
The council exercised three basic functions in the colonial
government: executive, legislative, and judicial. In its executive
capacity, as noted before, it advised and checked the governor since he
could not officially act in many areas without the council's approval.
This prevented the governor from abusing what little discretionary power
he had or from stretching his constitutional authority beyond its limits.

Governors sometimes found ways to manipulate the council by summoning

only those councillors who supported their position. A group of

 

62Quoted in Ellen E. Brennan, Plural Office Holding_in Massa-
chusetts 1760-1780 (Chapel Hill, 1945), p. 20.

63Calendar of State Papers: Colonial Office, XVII, doc. 579,

p. 311.

108

chs.gruntled colonists once complained that "where the advice of the
Qancil has been thought necessary, you have not given general summonses,
but have only summoned so small a number as would constitute a Quorum in
which you were sure of a majority."64
The governor presided over the council in executive session,
which made it a unit of the executive power. The recall of Georgia's
Governor Reynolds for his abuse of the council indicated that the Eng-
lish authorities intended for the broad executive authority to be exer-
cised by the governor in council and not the governor exclusively.65
However, in protecting the royal prerogative and administering colonial
policy, the Board of Trade made it clear that the governor did not share
that responsibility. Governor Bernard was told that "it is you to whom
the Crown had delegated its authority, and you alone are responsible
for the due exercise of it."66 This served to fix executive responsi-
bility even though creation of local policy was a joint venture with

the council and assembly. Thus, what policies the Crown could not

immediately control from England by prescription were created by a body

 

64Ibid., XL, doc. 441, p. 258.

 

65Trevor Richard Reese, Colonial Georgia: A Study of British
Imperial Policy in the Eighteenth Century (Athens, 6a., 1963), p. 24.
Also see Richard S. Dunn, "The Trustees of Georgia and the House of
Commons 1732-1752," William and Mary Quarterly, 3rd ser., XI (October,
1954), pp. 551-565, for the background on Georgia as a conscious attempt
to put the lessons of English colonial theory into practice. The follow-
ing works are also helpful: William Wright Abbot, The ngal Governors
of Georgia (Chapel Hill, N.C., l959); Amos A. Ettinger, James E. lee-
thorpe: Imperial Idealist (Oxford, 1936); and James R. McCain, “The
Executive in Proprietary Georgia," Ph.D. Dissertation, Columbia, pub-
lished 1914.

 

 

66Quoted in Labaree, Royal Government, p. 171.

109

whose power derived from separate grants within the governor's
umnnission, but were jointed in a manner designed to check each other's
excesses. This meant that certain areas of executive authority could
not be exercised until both parts of the executive branch were in agree-
ment. The phrase that the governor was empowered to act with the advice
and consent of the council was intended to mean that he would be ih
danger of exceeding his authority if he acted without the council's
consent in those areas of his commission and instructions requiring him
to seek their consent. In this manner the governor's actions could be
held in check in those areas where it was impossible for the Crown to
predefine what the governor's actions ought to be. However, in practice
this theory did not always work, especially when the governor controlled
the council.67

The governor also presided over the council's judicial func-
tion as he did with the council's executive function. Generally, the
governor and council were the highest appellate court for civil cases
in the colony. Criminal cases of treason and willful murder were usu-
ally appealed to the English courts. Additionally, the governor was
empowered by his commission to erect courts, and with the advice and
consent of the council, appoint justices, which were often selected
from members of the council. However, this authority was frequently
limited to erecting only those courts sanctioned by writ from the Crown.

Also, the provincial assemblies gradually increased their power to

 

67See Brennan, Plural Office Holding in Massachusetts, p. 35

ff.

110

cre.ate courts and define their jurisdiction, which caused a great deal
of 'friction with the executive branch. As Thomas Pownal noted, the
pmver of a governor to erect courts was a "universally disputed" autho-
rity in the first half of the eighteenth century.68 Unlike the seven-
teenth century where the governor was considered the chief justice, the
eighteenth century development of separate courts led to the Crown
appointment of the chief justice during the latter part of the colonial
era.69
In legislative areas the governor and council acted as sepa-

rate entities. At the beginning of the eighteenth century the governor
sat with the council in its legislative session. However, his presence
caused many problems which eventually led to a clarification of his
role. One group of dissatisfied councillors wrote to London complaining
that the council

humbly conceives that they ought to be left to the freedom of

their own debates, without being swayed and overawed by the

governor's interposition; he is not only constantly present,

but takes upon him to preside and debate, and state the ques-

tion, and overrule as if he were still in council, which the

said house takes to be a great encroachment of their liberties

and privileges. 0
The Board of Trade sought a ruling on this matter from the Crown's attor-

ney general who concluded that "it is inconsistent with the nature of

 

68Thomas Pownall, The Administration of the Colonies (London,
1765), p. 75. Also see G. H. Guttridge, "Thomas Pownall's The Administra-
tion of the Colonies, and the Six Editions," William and Mary Quarterly,
3rd ser., XXVL (January, 1969), pp. 130-146.

69See Evarts B. Greene, The Provincial Governor in the English
Colonies in North America (First published New York, 1898, reprinted
Gloucester, Mass., 1966), pp. 133-144.

 

 

70Quoted in Labaree, Royal Government, p. 160.

111

this government, with the governor's commission, and his Majesty's
insrtructions that governors should in any case whatsoever sit and vote

as a member of the council" in its legislative capacity.71

This ruling
was significant since it established that the governor was a separate
but unique part of the legislative process quite distinct from the
other two branches.

Relations between the governor and council in their legislative
capacity were tenuous at best. In many disputes between the governor
and assembly, who the council sided with often determined the outcome.
At other times the governor was left to fend for himself in protecting
the royal prerogative, especially when the council's interests did not
coincide with his need to defend the prerogative. One councillor
explained his colleagues' actions by saying that they

chose to give way to the necessity of the times and leave the
supporting [of] the king's instructions to the king's minis-
ters, who had the framing of them, and who have sufficient
power to do it, had they leisure for such remote considera-
tions; and the visible want of that encourages these men in
their insolence.72

The organization of the colonial judiciary severely limited
its ability to check the governor. As noted previously, he was part of
the system which he had a hand in creating as well as staffing. In
addition to these roles the governor, as chief executive, was responsible

for enforcement of laws and judicial decisions. The governor, through

his agents, especially the attorney general, was the chief prosecutor

 

71

721 1d., p. 438.

Ibid., pp. 406-419.

112

fbr the colony. What laws, rulings, or decisions he might or might
not choose to enforce would all have a bearing on the administration of
justice. Also, the governor's possession of the provincial seal made
him chancellor with jurisdiction in equity cases. In some instances he
was the chancery court and in other cases he and the council, each of
whom possessed an equal vote, comprised the court. This judicial form
was generally distrusted by the colonists as it was easily subject to
abuse.73
However, judicial tenure was one of the constant sources of
irritation between the Crown and colonists. Appointment of justices
during good behavior would reinforce an independent judiciary, and that
was what the Crown sought to avoid since it might place prerogative
control of colonial affairs in jeopardy. When Jamaica enacted legisla-
tion granting all judges of the supreme court tenure on good behavior,
the Crown's legal advisor ruled that it was not "advisable, either for
the interest of the plantations themselves, or of great Britain" that

the judges be granted that form of tenure.74

 

73See Greene, The Provincial Governor, pp. 139-141. Also see
Labaree, Royel Government, pp. 373-419.

74Ibid., p. 135. Also see the following: William J. Curren,
"The Struggle for Equity Jurisdiction in Massachusetts," Boston Univer-
sity Law Review, XXXI (1951), pp. 269-296; Milton M. Klein, "The Rise
of the New York Bar: The Legal Career of hHlliam Livingston," William
and Marinuarterly, 3rd. ser., XV (July, 1958), pp. 334-358; Milton M.
Klein, Prelude to Revolution in New York: Jury Trials and Judicial
Tenure," William and Mary Quarterly, XVII (October, 1960), pp. 439-462;
Jerome J. Nadelhaft, "P01itics and the Judicial Tenure Fight in Colonial
New Jersey," William and Mary Quarterly, 3rd ser., XXVIII (January,
1967), pp. 46-63. For an analysis of the colonial courts and the prob-
lems with the governor see Erwin C. Surrency, "The Courts in the American

 

 

113

Although governor's instructions began to require that
justices be appointed during pleasure only, colonial assemblies continued
to pass acts granting justices tenure for good behavior which led the
Board of Trade to demand that governors, on the pain of removal from
their positions, follow what has been agreeable to "the Ancient Practice

and Usuage in our said Colonies and Plantations."75 The assemblies'

control over executive and judicial salaries, however, made this provi-

sion most difficult to enforce in the manner prescribed. England feared,
with good reason, that the failure to keep judicial tenure in the hands
0“ r‘QYall officials would lead the judiciary to become completely sub-
servi ent to the demands of the assembly.76 As John Dickinson summarized
the 51' tuation, "If the commission of judges are during the pleasure of
the Crown, [and] yet if their salaries are during the pleasure of the
people there will be some check upon their conduct." Moreover, he con-

CWdEd after the Stamp Act crisis, "few men will consent to draw on

\

ggéonies," American Journal of Legal History, XI (July, 1967), pp. 253-

C 347-376; Stanley Katz, “The Politics of Law in Colonial America:
Ontlr‘oversies Over Chancery Courts and Equity Law in the 18th Century,"
flipectives in American History, V (1971), pp. 257-284; Joseph H. Smith

Th George Hershkowitz, “Courts of Equity in the Province of New York:
XV? Crosb Controversy, l732-l736,‘I American Journal of Legal Hietory,
of (1922 , pp. 1-50; Emory Washburn, Sketches of the Jud1c1al H1$tory
Wmassachusetts From 1630 to the Revolution in 1775 (Boston, 1840);
Ref-"1d Woodruff“Chancery in Massachusetts," Boston University Law
\‘eyv, IX (1929), pp. 168-192.

751bid.

76See Labaree, Royal Government, pp. 379-380, 390-405.

114

themselves the hatred and contempt of those among whom they live for
the empty honour of being judges."77
The greatest threat to the governor and prerogative government
came from the colonial assembly. By the 1690's the assembly was a fixed
feature of all colonial constitutions. Originally conceived as a rati-
‘fiying b<>dy for legislation proposed by the governor, it steadily carved
(MJt an 'independent role in colonial politics during the eighteenth cen-
tUYW- 13ut, the British and American views of the nature and functions
(IF its 'role in the legislative process were never reconciled prior to
the Nnerican Revolution.
Although British officials conceded the right of all English-
Inen ti) participate in the legislative process, the Crown contended that
par“lament was the main body responsible for legislating for all British
S‘l‘bJ'ecns. The colonial assembly was only created to meet local needs
and ‘Nas the result of an act of royal grace. As such, the Crown claimed
'the l“ight to define and limit the assembly's authority as it saw fit.
Nor‘eover, the British position argued that the assembly was only the
e’qul‘valent of an English municipal council or corporation and not a
mini ature Parliament. This view was taken by Archibald Kennedy in his
fflLJfigssay on the Government of the Colonies in 1752. He wrote that
We are no more than a little Corporation.--I would advise these
Gentlemen (Assemblies) for the Future, to drop those Parlia-
mentary Airs and Style about Liberty and Property, and keep
within their Sphere, and make the best Use they can of his

Majesty's Instructions and Commission; because it would be
high Treason to sit and act without it.--This is our Charter,

\—

77John Dickinson, Letters of A Pennsleania Farmer, p. 96.

115

If we abuse or make a wicked Use of his Majesty's Favours,

we are, of them, but Tenants at WilIé we only hold them
during Pleasure and good Behaviour.

Since, according to the British, the assembly's authority
was based on the governor's commission and instructions, England argued

that it could be altered at the pleasure of the Crown. Moreover, that

power could not be exercised until the governor had summoned it, and
the governor had to approve any assembly action before it could take
effect. Thus, the British viewed the assembly as being founded on the
Prerogative and its power was exercised only on executive command.79
The colonial assembly had a much different view of its nature
and function in colonial government. In the latter half of the seven-
teenth century the provincial assemblies began to view themselves as
OPer‘ating in the same manner that Parliament did, especially after
Jamai ca won the right to initiate legislation in 1680. In the eight-
eenth century the parliamentary tradition was a firmly rooted aspect
0f Colonial legislation. New England took the lead in this area and

had a marked influence on the other colonies. As one frustrated gov-

erncar pointed out, "in one word, this part of the world is infected
With the maxims of the representatives in New England; they put them-

se] Ves upon the very same foot with Parliament in Great Britain."80

 

\
78Smith, History, I, 257n.
d‘ 79See Labaree, ngal Government, pp. 174-175 for a further
‘ S(:ussion.

 

p 80Calendar of State Papers: Colonial Office, 35, doc. 655,
‘ 325.

116

The Board of Trade had contradictory statements on the role
of par] 1‘ amentary tradition in the lower houses of the provincial assem-

bl ies. In 1705 it said that

no assembly in the plantations ought to pretend to all the
privileges of the House of Commons in England, which will no
more be allowed them, than it would be to the council, if

they should pretend to all the privileges of the House of
Lords.81

In another instance it said that

we must observe to you that it certainly was in all times the
intention of the Crown that the constitution of the several
Colonies abroad, inmediately under H. M. Government, should
resemble as much as might be the constitution of the Mother
Country, to whom laws and customs the said Colonies are

directed to conform themselves, as far as they may be appli-
cable to their circumstances.

Moreov er, they continued, the Crown had established the assembly on
"the British model; the Governor representing the King, the Council,

the House of Lords and the Assembly the House of Commons. . . ." This
meant that

every legislative act of theirs, like those of Great Britain,
might pass a threefold approbation, and that each branch of
their legislature subsisting upon an independent and distinct 82
footing might be reciprocally checks upon the other two. . . ."

The assembly's authority, as listed in the governor's instruc-
tions, was not to exceed that of Parliament, the Board of Trade noted.
HOWever, "the Law of Parliament in England is properly the usage of
ar] iament." This posed a problem for defining the limits of the

\

me 8lQuoted in Oliver Mortan Dickerson, American Colonial Govern-
%1696-1765 (Cleveland, 1912), p. 16.

82Calendar of State Papers: Colonial Office, XXXVII, doc.

500. pp. 327-328.

117

as sembly's authority. It was, perhaps, "what has usually been done by
[colonial] Assemblies may have by that usuage acquired a sanction in
matters not directly repugnant to the authority and prerogative of the
Crxnnn"£33 Thus, the Board of Trade recognized past precedent as a
valid (:1 aim of power only in those matters not contrary to the preroga-
tive.

The provincial assemblies concluded otherwise. Every prac-
ti ce not challenged by the Crown was considered to be a binding prece-
dent and therefore a valid exercise of their authority. As precedents
accumulated, an assembly's power and influence increased in its dis-
putes with the governor. The American attitude toward the role of the
assembly in colonial politics is essential to understanding the history
of the disputes between it and the governor. It is probably best sum-
ma"lZed by William Smith, who wrote:

()ur representatives, agreeable to the general sense of their
constituents, are tenacious in their opinion, that the inhabi-
tants of this colony are entitled to all the privileges of
Englishmen; that they have a right to participate in the
legislative power, and that the session of Assemblies here,

is wisely substituted instead of a representation in Parlia-
ment, which all things considered, would, at this remote
distance, be extremely inconvenient and dangerous.

This , he said, was in contradistinction to the governor's position, who

Claimed that "all the immunities we enjoy . . . not only flow from, but
absolutely depend upon, the mere grace and will of the Crown." Given

theSe contradictory sentiments, it is only natural that there were

 

Con1=licts , he concl uded.84
\

831.12.151-

84

Smith, History, I, 256-257.

118

Moreover, Smith noted that most disputes between the governor
and assembly revolved around revenue issues, "for the support of govern-
ment." For example, before one of New York's governors, Lord Cornbury,
embezzl ed revenue from the treasury, the assembly enacted long term
revenue bills. After that, they were cut to a few years at most. How-
ever, continued abuse of the colonists' trust led them to conclude that
no long term funds would ever again be raised, "or put what we shall
raise i nto the Power of a Governour to misapply, if we can prevent it."
Therefore future revenue bills would be limited to a year, but only
after laws were passed, I'as we conceive necessary for the Safety of the
Inhab-i tants of this Colony, who have reposed a Trust in use for that
0'111’ purpose. . . ."85

Repeated attempts by British officials to force the colonists
into enacting permanent revenue bills forced them to digress from parlia-
m(antary custom. "The particular state of this Province differs so
Widely from that of their mother country, that we ought not in this
respect to follow the custom of the Commons," the New York assembly
concluded. The colonial constitution "is so imperfect in numberless
in'~““t:ances," historian Smith concluded, "that the rights of the people
He . even now, at the mere mercy of their Governors; and granting a
per‘Detual support, i't is thought, would be in reality little less, than
the loss of everything dear to them." Then he concluded with what must
be regarded as the key to understanding the conflict between the governor
and the assembly: "A Governor has numberless opportunities, not proper
\

85Ibid., p. 258.

119

to be mentioned, for invading the rights of the people, and insuperable

di fficu1ties would necessarily attend all the means of redress.‘I There-

fore, when the assembly controlled the raising and spending of revenue,
especially the salaries of governmental officials, it could bargain

with the governor for the protection of its rights.86 As discussed

later, this was a fundamental issue which helped to split the empire

after 1 763.

The function of the assembly as the protector of colonial

1‘1 ghts was a dominant theme throughout the century after the revolution

aSlainst the Stuart tyranny in 1688. Jeremiah Dummer touched on this

Point in his defense of the New England charter: "Governours are apt

to abu se their Power and grow rich by Oppression, Experience shows us.
To enlarge the powers of the Governours," he said, "is to give them

greater Power to oppress." That was the case in those colonies in which

the governor exercised both the legislative and executive power, "or at
1eeS‘t [had] so great an Influence on the constituent Parts of the Former,
as leaves them little more than Nominal Sharers, serving rather as
Scr‘eens to the Governour than a Defence to the People." Therefore, he

Concluded, in those governments where there was a charter that required
atll Officers Civil and Military . .

. to be annually elected by the
Peotitle . .

. nothing under Heaven can be a stronger Barrier against

ar"b‘itrary Rule."87 Lieutenant Governor George Clarke repeated this

\

861bid.

(B 87Jeremiah Dumner, A Defense of the New England Charter
oSton, 1765), pp. 35, 69, 71.

120

sentiment when he said that the colonists "look upon frequent assemblies
as the best and surest protection of their liberties and properties."88

The second aspect of the assembly's function was to guard
against the arbitrary use of executive authority. As one observer noted

early ‘i n the century, the claim that

a Governour of any Colony . . . so far distant from-the Seat
of Redress . . . should be vested with a Power to govern, in
a more absolute and unlimited manner there, than even the

Queen [Anne] herself can, according to Law, or ever did attempt
to exercise in Great Britain,

was dangerous since the provincial assembly had "less Sway and Weight

- than the House of Conmons had in Great Britain."89

The control of colonial revenue proved to be the most important
weapon that assemblies possessed in their struggle with the governor,

eSPeC‘ially the control of salaries. As noted previously, the colonial

bureaucrats in London thought it sound policy to make the colonists bear
the expenses of colonial administration. Yet, for over half a century
they were unwilling and unable, because of economic and military problems

With France, to devise a scheme to force the colonists to pay under

3’1 tish terms. In the end, however, assembly control of the governor's

Sal ary was by far one of the most corrmon complaints among the royal

 

90" ernors .
\
88Calendar of State Papers: Colonial Office, XLIV, doc. 73,
pp - 32-33.

 

t‘ 89Quoted in Jack P. Greene, "Political Mimesis: A Considera-

tho“ of the Historical and Cultural Roots of Legislative Behavior in

R e British Colonies of the Eighteenth Century," American Historical
e\I‘iew, LXXV, No. 2 (December, 1969), p. 352.

121

By the end of the first half of the eighteenth century the
colonial assemblies had gained a significant degree of control over the
governor by manipulating his salary. Cadwallader Colden summarized the
governor's dilenma when he said that the "unreasonable increase of popu-
lar power by which the balance of power essential to the English Consti-
tution 1' s destroy'd in the Colonies is wholly owing to the Governours
having no subsistence but from the Assembly." He further noted that
"Governours have for several years stood firm to the Kings Instructions
1" SuPport of his prerogative 81 . . . after all were obliged to comply
with the humours of the Assembly or starve or be sunk in debt."90 One
examp] e of this was Governor Shute of Massachusetts who wrote:

that since the people had, in opposition to the royal instruc-
ion, reduced the governor to an avowed dependence, it would

be proper that he should be paid a salary by His Majesty at

home, till the iBliiabitants of Massachusetts can be brought to
a better temper.

Governor Burnet, Shute's successor, was determined to force
the assembly into giving him a fixed salary. He outlined his position
1." a message to the assembly by pointing to the British constitution,
“01:1 ng especially the provisions for the independence of each depart-
ment of state based on a permanent civil list. Since the governor was
kept dependent on the assembly by means of a temporary salary, he rea-
soned, it prevented the executive branch of government from being inde-

pen(Elent to act freely according to his own judgments on pending

\

t' 90Quoted in Alice M. Keys, Cadwallader Colden: A Representa-
'V\eEiahteenth Century Official (New York, 1906), p. 235.

Ma 9]Quoted in Spencer, Constitutional Conflict in Provincial
SS achusetts , pp. 74-75.

122

1 egislation. As evidence that this was the real reason, he cited the
as sembly's withholding the governor's salary bill until the governor
ha (1 signed the other bills approved by the assembly.92

The assembly responded that no part of the government ought
to be wholly independent, since the balance of government could only be
maintained by a mutual dependence. Furthermore, the assembly was depen-
dent upon the governor in many ways so that the assembly needed some
way to counterbalance that. Moreover, since the governor's tenure was
01" such short duration, his stake in the province was not like that of
the king's to England. Therefore, to keep him dependent on the assembly
for his salary would keep him loyal to the interests of the province.

The Massachusetts assembly then reiterated its position by
1 ‘i S ting the four reasons why "we can neither come into an act for fixing

a S alary on the governor forever nor for a limited time." First, "it
i 3 an untrodden path," frought with many unseen dangers; second, it has

t"eem'the right of Englishmen) since the Magna Charta to raise and dispose

01': public money without compulsion; third, it will destroy the balance

01-? the constitution and lessen the dignity of the house of representa-

t‘i Ves; and finally, the house cannot betray the privileges of the pro-

V“ hce since it is their duty to make only such laws they judge to be

.FQY‘ its "good and welfare."93

\
92Thomas Hutchinson, History of the Colgny and Province of
Sibassachusetts Bay (Cambridge, 1936), II, 301-320.

93Ibid.

123

The reasons the provincial assemblies dealt with the governor

'.. this manner was not difficult to understand in light of the policies
Benjamin

1

01”

many of the governors they were forced to live under.
Franklin justified the colonists' actions on the basis that the govern-

cairn-s;
are generally strangers to the Provinces they are sent to
govern, have no estate, natural connexion (sic) or relation
there; that they come only to make money as fast as they
can; are sometimes men of vicious characters and broken 94

fortunes, sent by a Minister to get them out of the way.

The most significant reason for the assembly to control the

governor's salary was that it was the means to protect the colony from
arb-i trary executive action. When the rights of the colonists conflicted
”‘5 th British interests or prerogative, governors, by the nature of their

authority, placed provincial interests in the subordinate position.
Add 1‘ tionally, governors were under constant pressure to expand the pre-
IrTOQative as far as they could over the colonists. Early in the eight-
eenth century, one observer noted the trend which became more pronounced
1'“J'jr‘flzzughout the century: "Instances may be given that Governors have
Us” taped more Authority than belonged to them, as well as in the Propri-
eti es as in the Kings Colonies,’l he claimed. Moreover, "It is no

Advantage to the King, that his Governors should have it in their Power

to grip and squeeze the People in the Plantations, nor is it ever done,

“FQY‘ any other reasons, than their own private Gain."

 

94Benjamin Franklin, Works (Smyth, ed.), V, 83.

124

lageiFr‘ter stating that he often heard complaints that many governors "and
th eir Officers and Creatures, have been guilty of ill things to raise

[51:5; ‘tates for themselves, or to gratify their own Revenge, or some other

Passion," he concluded that,
I think it is past Dispute, that the King's and Plantations
Interest is the same, and that those who pretend, the King
hath, or ought to have an unlimited Power in the Plantations,
are a sort of People, whose Designs make their Interests run
counter to that both of the King and Plantations. 5

l\r1<)'t:her writer placed the blame for the colonists' problems squarely
c>r1 't:he governors' abuse of their authority. It was the governors who

31 ways acted the "offensive Part," and set up "unwarrantable Claims
. [and employed] Snares, Menaces, Aspersions, Tumults, and every
. [in an attempt to force] the Inhabitants
96

other unfair Practice . .

of the Privileges they were born to."

()lj‘t;
Governors' abuse of their executive power forced the assembly

lil" islet to protect the provincial interests in the same manner the House
()‘f: (Zlommons had done with the Stuart monarchy. The assembly always
acted "on the defensive only,‘l one writer noted, as its members strug-

SJ.“ ‘E=<:l against the machinations of "hungry, ignorant, or extravagant"
. servile, fawning" adher-

Qo" emors whose "crafty, active, knavish .
eh ts were the "trash of mankind," as ones who entered into such ill
97

(2. . . . . . .
Q"‘|<:e1ved alliances against the people's r1ghts and l1bert1es.

.s‘_“‘~‘t

WI"fight, ed., pp. 11, 21.
96Quoted in Greene, "Political Mimesis," p. 352.

 

95"An Essay Upon the Government of English Plantations,"

97Ibid.

125

The failure of most governors to gain an ample fixed salary

1:0 r a reasonable length of time forced them to bargain away some of

their powers. Governor Lewis Morris wrote the London officials that

something must be done to "prevent the Governours from bartering the

K'i ngs Prerogatives or Lands for bread." He proposed that England make

the governors and other royal officials independent of the assembly and
"give the Councils a greater weight and Influence than they at present
have . . . [to keep the] Assemblies within their Just and proper limnits
C s “i c )."98 Another time, he wrote that the
rendering of governors and all other officers intirely (sic)
dependent on the people is the general inclination and

endeavor of all the plantations in America, and no where
pursued with mgge Steadinesse and less decency than in New

Jersie (sic)."

AnC>‘l:her governor complained that "Whilst Governors are dependent on
thei r Assemblies, the Acts of Trade will never be observed." Moreover,
I. i '2' ;you knew who were the leading men in the several Assemblies you
"0‘4 1 d [be] convinced that Governors ought to have better salaries, and
not be permitted to take any presents from the people." When they do,
he a. rgued, "there will be illegal indulgences in point of trade, jus-
t:.i ‘:=GE= will be bought and sold, Chancery suits protracted, and the poor

0
DDY‘est."mo Benjamin Franklin noted that

\

 

98Quoted in Kemmerer, Path to Freedom, pp. 162-163.
99Quoted by Greene, Provincial Governor, pp. 173-174.

100Calendar of State Papers: Colonial Office, XIX, doc. 26,
DD . 27-28.

126

every proprietary and Royal Governor has two Masters, one who
gives him his Commission, and one who gives him his Pay. . . .
The Subject Money is never so well disposed of as the Maieten-
ance of Order and Tranquility, and Purchase of good Laws. 0

I=7<:>‘r example, Governor Clark of New York was accused of selling his
approval of the Triennial Act in return for his salary.102

The Board of Trade recognized that the governors' salaries
ss.f1<3t11d be fixed "to prevent the inconvenience and clamour of presents,"

c>'f’t:<en granted to governors, which rendered them "precarious and depen-

ciear1't on the people."103 However, finding a proper solution was more

<1 i f’1Ficult than recognizing the problem.

New Hampshire Governor Benning Wentworth provided one solu-

t‘i on. In the twenty-six years as governor his personal fortune increased

13¢) ‘1the point where he was financially independent of the assembly. This
ii.“ “I (owed him once to go four years without a salary, and even meant that

““3’ (:ould afford to pay his nominee as chief justice of the superior

COL! rt when the assembly refused to appropriate his salary. However,

thi 3 did not deter him from seeking an adequate salary besides. The
a"V'ial‘ilability of vast amounts of land, which the governor could grant to
as S embly members eased his situation considerably. A cynic observed:

I suppose, our Assembly expect to be landlords of thousands
and thousands of acres, esteeming it reasonable, for generous
grants of money, to have alseturn of as generous grants of

land, huzza, huzza, huzza.

 

 

 

\
10(Quoted in Greene, Provincial Governor, p. 175,
'Ozlpjg,, p. 173.
t). 181. 103Calendar Of State Papers: Colonial Office, XIX, doc. 112,

104Quoted in Daniel, Erperiment in Republicanism, p. 26.

J:

127

Numerous other solutions were offered by both governors and
Board of Trade members. Governor Lewis Morris suggested that the Crown
take over the loan-office system used in New Jersey and apply 1t to the
rest of the colonies. The interest earned could be used to pay the
cost of colonial government.105 Another solution was proposed 1n a

report to the Board of Trade which recomended that Massachusetts and
New York be reunited in the Dominion of New England This was to be

done not in response to military needs or as a result of compla1nts

about the governor's actions, but purely on the grounds of f1nanc1al
and constitutional expediency. The weakness of the Massachusetts gov-

ernor would therefore be strengthened if he could be sustained by the
Qua ranteed revenue previously established in New York This appeared

to be the easiest solution to the constitutional dilemna posed by the

Mas sachusetts assembly's control of the governor s salary, 1n the face

OF the Board of Trade's avowed opposition to the Crown's paying the
sa 1 ary on the grounds that it might set a precedent for other colonies
to agitate for the same.106

When the assemblies failed to appropriate a governor s salary
he would often threaten to seek aid from Parliament Governor Morris

of) New Jersey recommended that Parliament pass an annual allotment for
Qt)Vernors' salaries, which he said, "would put an end to the constant

 

\
105See Kemerer, Path to Freedom, p. 162.

106See James S. Leamon, ”Governor Fletcher' 5 Recall, " W1ll1am
X(October, 1963), pp. 527— 542. Also see

ahd Mary Quarterly, 3rd Ser.,
Q\harles W. Spencer, Phases of Royal Government in New York 1691- 1719
(Columbus, Ohio, 1905), especially Chapter II.

128

wragglings (sic) between governors and assemblies."m7 When Governor

H u nter requested the Crown to settle the matter of salaries, the Board
¢:>‘1F’ Trade unsuccessfully sought a Parliamentary revenue act. By 1755
the Board of Trade seemed to give up as hopeless the idea of Parlia-

rrtaseritary grants as a way to settle the disputes between governor and
as semblies.108 However, not until after the attempt to reorganize the

empire in 1763 did the assemblies take these threats to have Parliament

F361)! the officials salaries seriously.

The salary question was not the only financial problem plagu-
‘i rig; relations between the governor and assembly. Virtually all other

areas of revenue caused problems most of which the Crown considered as
‘5 rI‘l’r'ingements on its prerogatives.

Robert Morris wrote the Board of
Tra de saying

it has been proposed to raise and appropriate [funds] . . .
sufficient to answer the ends of Government the wheels of
which have been often stopt (sic), upon trifling quarrels

that have arrisen (sic) between the governors and the
people.

Nlo""eover, he noted that colonists "in their turn too often expect and
1 h S ‘ist upon some right of the Crown's being given up before they will

co'1'sent to the giving any money." Since the assemblies usually appro-

phi ated funds for a year's duration,

they may have frequent opportunity of gaining such points

. . . from whence it has happened that the Crown having no
more rights for their governors to Barter away, they are now
striking at the very right of government itself.

\

107Morris to Newcastle and to Board of Trade, October 4, 10,
1739, New Jersey Historical Society, Collections, V, 58-63.

108See Greene, Provincial Governor, pp. 169-170-

129

Furthermore, they are in "a fair way of taking from the British
¢:,-fficers the very frame & shadows of government having long ago seized
the substance." The failure of England to look after colonial govern-
trident properly, he rightly predicted, would find the British government
unable to
check the disobedience of a set of people who with them (if
they have not already) have it in their power to turn the
Balance of trade and Consequently of Riches and power into
the scale of almost any Nation in Europe. 9
At the heart of the revenue disputes was a conflict between
constitutional interpretations. Governor Hunter of New York addressed
the assembly noting that
giving Money for the Support of Government, and disposing of
it at your Pleasure, is the same with giving none at all.
Her Majesty is the sole Judge of the Merits of her Servants.
This Right has never yet been disputed at Home, and should I 110
consent to give it up abroad, I should render myself unworthy.
l—'i l<:e the Crown, he contended, the governor had the sole right to deter-
"‘13 l"le how the money was to be spent for the administration of the colony.
I‘l‘53 then went on to ask if the assembly was ready to undertake the admini-
$1:-i"‘ation of the province if they continued to refuse him any appropria-
‘tz‘i <2>ns. As noted previously in the salary disputes, the assemblies
Q1 aimed the right to appropriate and dispose of money as they saw fit

“ ‘"‘ the same manner as did Parliament. Under Governor Clinton the New

\

109R. H. Morris, "Some Consequences of the Crown's Not Having
A Revenue in America," reprinted in Kemnerer, Path to Freedom, p. XVIII.

1'OSmith, History, I, 141. Also see J. M. Gitterman, “Council
1::f Appointment in New York," Political Science Quarterly, VII, 1892,
p. 83—84.

 

130

Y ork assembly refused to accept amendment to money bills they had
passed, appropriated salaries of governmental officials by name and
not their office, which limited the governor's appointing power,
attached salary bills to measures the governor could not afford to
veto, such as military appropriations, and finally, provided for the
i ssuance of money from the provincial treasury without a warrant from
the governor.]]1
The Massachusetts assembly addressed the revenue problem
‘From a different approach. They provided money or supplies for a year
by a vote or resolve instead of an act of the assembly, which eliminated
the need for the sanction of the governor and council. It also meant
that the assembly would keep in their hands the power to determine
Wh-i ch accounts were to be paid, even after the services had been per-
Fo V‘rned. This kept the Massachusetts governor completely independent
of and isolated from the area of colonial finances. England retaliated
by issuing a further instruction to the governor declaring that no

mo" ey was to be raised by bills of credit issued except by an official

act of the assembly.”2

It was evident that England needed to develop alternate
so urces of revenue to overcome the royal officials' dependence on the
Q01 onial assemblies. Governor Quary sumnarized the ideal approach

thm the British point of view when he said,

\

1“See Labaree, Royal Government, p. 287.
112

 

Calendar of State Papers: Colonial Office, XXXVII, doc.

131

6 Governor ought to have his support as well as dependence

from the Crown, though at the same time the fund should come

from the people, but by such means as ought first to settle

it in the Crown.
However, the attempts to tax the colonist for revenue to pay royal offi—
cials backfired, especially after 1763. The power to tax and appropriate
funds was a right of Englishmen too fundamental to be given up, the
colonists contended. Moreover, assembly control of the taxing and
appropriations process was politically too advantageous to allow the
governor much, if any, control over expenditures especially when the
assemblies could use them to keep the governor responsible to the
interests of the province. In short, the colonists would not admit the
right of the governor to dispense public funds because it was "impossible,
unless the Representatives betray the Trust reposed in them by the
People that chose them." Moreover, it was “against their Constituents
Instructions, [to] prostitute the Money in the Treasury to the unaccount-
able and consequently uncontrolable Will and Pleasure of the Governor."
Nevertheless, they argued,

the Taxing of the People, and Putting Money in the Treasury,

is what more peculiarly belongs to the House of Representa-

tives, as their Constituents pay it, and therefore what pre-

vents and hinders them in what they are the most peculiar and

proper Judges of seems not only to bear upon their Rights by

Charter; but also as Englishmen and rational Creatures. 4

As John Dickinson later argued in his Letters From A Pennsylvania Farmer,

 

113New York Colonial Documents, IV, 1050.

114Quoted in Albert Southwick, "The Molasses Act--Source of
Precedents," William and Mary Quarterly, 3rd ser., VIII (July, 1951),
p. 403.

 

132

no free people ever existed, or ever can exist, without,

keeping, to use a common but strong expression, 'the purse

strings' in their own hands. Where this is the case, they

have a constitutional check upon the administration, which

may therefore be brought into order without violence, but

where such a power is not lodged in the people, oppression

proceeds uncontrouled (sic) in its career, till the governed,

transported into a rage, seeks redress in the midst of blood

and confusion. 5
Thus, to allow Parliament to do what they would not allow the governor
to do would not only be a contradiction, but a violation of English con-
stitutional principles. As noted later, this argument becomes extremely
significant in colonial protests as the Revolution approaches.

Detailed appropriation bills also increased the assemblies'
control over the governor by limiting his discretion. In some cases
the governor was reduced to the position of an accounting officer
directed to issue his warrants in accordance with the detailed instruc-
tions provided for by the assemblies. While this part of the governor's
prerogative was invaded to varying extents in each colony, on the whole
it was regarded as the exception rather than the rule in most instances.116
The power to appoint revenue officers grew out of the idea

that the assemblies were the guardians of public money. Except for New
Hampshire, New Jersey, and Georgia, assemblies were successful in gaining
the right to appoint the provincial treasurer. In the case of New York,
the financial irregularities of Governor Cornbury's administration led

the assembly to request the appointment of a treasurer "for the receiving

 

115John Dickinson, Letters of A Pennsylvania Farmer, Letter
IX, pp. 87-88.

116

 

See Greene, Provincial Governor, p. 180.

 

 

133

and paying of such Monies now intended to be raised for the publick
Use as a Means to obstruct the like Misapplication for the future."n7
When assemblies gained the right to appoint the treasurer it generally
meant that the governor was effectively barred from any control over
the provincial finances, which was then placed in the hands of a person
"solely and entirely a servant of the assembly." Thus, I'almost every
executive power of the Crown lodged in its governor, where money is
necessary, [is] thus exercised by the assembly and its commissioners."H8
The threat to the governor's position was further illustrated
by Virginia's practice of combining the offices of speaker of the house
and provincial treasurer. Governor Fauquier reported to the Board of
Trade: "I am thoroughly convinced that no alteration can be made in
this long established custom . . . without manifest prejudice to his

"119

Majesty's service. William Knox also wrote to the British officials

about the problem of revenue officers not being dependent on the British
government, though he saw little hope of overcoming it.

The Independency of the Revenue Officers on (sic) the Govern-
ours, for the Governours have no power over them, they are
very little attentive to their Conduct, and the Officers know-
ing themselves to be accountable to only one another in
America, and to the Lords of the Treasury here, they agree

 

'17Ibid., p. 184.

118Pownall, Administration of the Colonies, pp. 52-53.

Inguoted in Flippin, Royal Government in Virginia, pp. 212-
213. Also see Persey S. Flippin, The Financial Administration of the
Colony of Virginia (Baltimore, 1915).

 

 

134
amongst themselves what liberties they shallotake, without
any regard to the Dut1es of the1r Offices.

The provincial treasurer was not the only appointment made by
the assembly. In all colonies, to varying degrees, the assembly acquired
the power to appoint most key administrative officers, which signifi-
cantly reduced the governor's power. Governor James Glen of South
Carolina wrote in 1748 that "almost all the places of profit or of trust
are disposed of by the General Assembly. . . . The executive part of
the government is lodged in different sets of Commissioners." Moreover,
he noted, “they are named by the General Assembly, and are responsible
to them alone," which means that ”the people have the whole of the
administration in their hands." Thus, he concluded, the governor was
"cloathed (sic) with Authority,” but "is stripped Naked of Power to
carry out his duties."]21

Another inroad made by the assemblies on the executive autho-
rity was in the area of military affairs. Assemblies would appropriate
funds for military supplies, prescribing in minute detail the purposes
they were to be used for, which was tantamount to dictating the course
of military operations. Additionally, committees of the assembly, or
commissioners appointed by them, were responsible for overseeing the

disposition of funds, which involved them in the conduct of military

 

120William Knox, "Hunts Respecting the Settlement of Our
American Provinces," reprinted in "A Project for Imperial Form: 'Hints
Respecting the Settlement for Our American Provinces' 1763," Thomas C.
Barrows, ed., William and Mary Quarterly, 3rd ser., XXIV (January,
1967), p. 119.

121South Carolina Historical Society, Collections, 11, 303-304.

 

.'

i. ‘3 vi

\. .n..

135

operations. Furthermore, the assembly's power to appoint and remove
officers tended to interfere with the military discipline.122 As his-
torian Chalmers remarked, "the King's representative acted merely as
the correspondent of his ministers. The war was conducted by committees
of assembly."123
Thus, by the middle of the eighteenth century the provincial

assemblies had succeeded in carving out a significant, if not a dominant,
role in the determination of policy in those areas which directly affec-
ted local provincial interests. The Board of Trade's characterization
of Massachusetts in 1757 applies to the other colonies in varying
degrees as well. It observed that

almost every act of executive and legislative power, whether

it be political, judicial, or military, is order[ed] and

323333131 .212??? ifldtfiisfillii 2? EQSfiEEfiEiL-SZSHM'" "”5"

Many of these alleged usurpations of the executive prerogatives

were done in response to the abuse of governors or the indifference of

 

123George Chambers, An Introduction to the History of the
Revolt of American Colonies, II, 300-301.

124Quoted in Greene, Provincial Governor, pp. 193-194. For
further discussion of the assemblies encroachments see the following:
Jack P. Greene, "Foundations of Political Power in the Virginia House
of Burgesses, 1720-1776," William and Mary_Quarterly, 3rd ser., XVI
(October, 1959), pp. 485-506; Jack P. Greene, The Quest for Power: The
Lower Houses of the Assembly in the Southern ngal Colonies, 1689-1776
(Chapel Hill, 1963); Dickerson, American Colonial Government, pp. 158-
179; George E. Frakes, Laboratory for Liberty: The South Carolina
Legislative Committee System 1719-1776 (Lexington, 1970); Evarts Greene,
Provincial Governor, Chapters IX, X; Labaree, ngal Government, Chapters
V, X; J. R. Pole, Political Representation and the Origins of the Ameri-
can Republic (New York, 1960); Elmer 1. Miller, The Legislative of the
Province of Virginia: Its Internal Development (New York, 1907); Stanley
Pargellis, "The Proceedings of the Virginia House of Burgesses,” William
and Mary Quarterly, 2nd ser., VII (April, 1927), pp. 73-86, 143-157.

 

 

 

 

 

 

 

 

136

British colonial officials to the needs and rights of the American
colonists. Moreover, many of the prerogatives claimed by the Crown and
granted to the governors, were, in the opinion of the colonists, a
violation of their rights as Englishmen. Most notable was the right to
raise and disperse provincial funds in the interests of the colonists.
The impact this had on the development of American executive theory was
to turn an appointed governor, over whose appointment the colonists had
little control, into an executive responsible to provincial needs. So
long as the assembly could exercise an effective counterweight to the
authority granted in the governor's commission and instructions, the
legislative branch could protect the province from arbitrary and capri-
cious royal administrators, bent on serving their own interests, be
they financial or political.

Furthermore, the techniques developed by the assemblies to
check the royal prerogative and frustrate the policies of the colonial
bureaucracy in London served to protect the colonies from feeling the
full burden of programs which clearly placed their interests subordinate
to the dictates of British imperial and mercantile interests. Aided by
England's problems with France, the colonies were able to stave off
effective enforcement of British colonial policies for over half a
century, which enabled the development of precedents and practices to
become firmly established in the colonial political tradition. By the
time the British were finally able to undertake a major revision of the
empire in the 1760's, the provincial assemblies were more than able
opponents to the chief provincial administrator of British policy. In

this capacity, the provincial governor, after 1763, was overloaded

137

trying to enforce colonial policies in the face of such wholesale
opposition with the meager arsenal of political weapons left at his
disposal.

In spite of the inroads made by the provincial assemblies,
the governor was not totally destitute of power to influence their
actions. First and foremost was his power to summon the assembly, with
the advice and consent of the council, subject to any restrictions or
limitations listed in his commission and instructions. Massachusetts
and Pennsylvania both required that there be annual elections and ses-
sions at fixed dates. A number of provinces passed biennial, triennial,
and septennial acts which would limit the governor's power over calling
sessions. North Carolina passed a biennial act in 1715-1716 which was
finally disallowed in 1737, on the advice of the royal governors that
it deprived them of prerogatives granted to them.125 In 1762 Virginia
passed a septennial act calling for legislative assemblies at least
once every three years. These were only two cases of the numerous and
often unsuccessful attempts to regulate the governor's power over the
assembly. Finally the Board of Trade issued its policy on the subject
in 1767, which said that no governor could assent to any act fixing the

duration of the assembly.126

 

125See Charles Rapier, North Carolina: A Study in English
Colonial Government (New York, 1904). Also see Blackwell P. Robinson,
The Five Royal Governors of N. Carolina (Raleigh, 1963). For Pennsyl-
vania see William She herd, History of Proprietary_Government in Pennsyl-
vania (New York, 1896)

126

 

 

See Greene, Provincial Governor, p. 153.

 

138

The governor's authority to summon, prorogue, and dissolve
the house gave him tremendous power to influence legislation. Governor
Belcher was accused of proroguing the Massachusetts assembly to prevent
the house from intervening in the boundary dispute with New Hampshire.127
Later, during the Stamp Act crisis, governors in New York and Georgia
used this method to prevent action by their assemblies to interfere with
its enforcement.128 Moreover, a governor could keep assemblies in ses-
sion against their will when it suited his interests.129

Finally, all governors possessed the right to dissolve the
assembly, except in Pennsylvania where it was disputed. This method
was often effective in dealing with an obstinate assembly, in the hopes
that the governor could summon another, at a later date, more to his
liking.

Another power the governor possessed over the assembly was
the right to issue writs of election, though this was also disputed by
the assemblies. These were generally granted by the governor to the
sheriffs listing the number of representatives from each district. The
issue arose over whether the governor had any discretion in determining
the number of representatives from each district and his ability to

grant representation to a new district. At first the assembly appor-

tioned representatives by act, though in the later colonial period the

 

127See Hutchinson, History of Massachusetts, II, 349-350.

 

128Greene, Provincial Governor, p. 153.

129Hutchinson, History of Massachusetts, 11, 306-309.

 

139

governors were forbidden to assent to any act increasing the number of
representatives in the assembly.130
Once the assembly met, the governor claimed power to control
its organization. Through their power to administer oaths to the mem-
bers of the government, two governors maintained that they possessed
the authority to determine who was qualified to sit in the assembly.
Governor Cornbury of New Jersey refused to administer the oaths to
several members of the assembly until overruled by the Board of Trade
who told him he would "do well to leave the Determination about Elec-
tions of Representatives to that House, and not to intermeddle there-

131

with.“ Governor Belcher of New Hampshire also refused to swear in

several members and the assembly refused to do any business until the
disputed members were seated, whereupon he relented.132
Additionally, some governors tried to influence the assembly
by interfering with the choice of house speaker. Presenting the newly
elected speaker to the governor was generally a formality. However, a
governor would occasionally object, leading to a confrontation with the
assembly. Early in the eighteenth century Governor Dudley of Massachu-
setts rejected Thomas Oakes, whom he had previously vetoed for a seat
on the council. The assembly refused to elect another and the council

backed its action. Dudley finally relented because his "just sense of

pressing Affairs of the War that demanded a very Sudden dispatch of this

 

130Greene, Provincial Governor, pp. 146-148.
'3'Ibid., p. 49.
'321bid.

140

. Saving to Her Sacred Majesty her just Right . at all

Session . .
'times."133 Thus, he did not view his expediency as an encroachment on

1:he prerogative. However, it did set a precedent. Later, Governor
Shute, with the backing of the home government, dissolved the house
The house later chose

rfiather than accept their choice of speaker.
another speaker, which Shute approved, though the representatives
c>txjected saying it was unnecessary.134 Governor Benning Wentworth also
successfully used his veto power in the house in this matter, which

'Ft)r~ced a deadlock in the house from 1749-1752, when a new speaker was
135

-F"ir1ally elected who was acceptable to him.
Another power that the governor possessed to influence legis-

The seventeenth century royal governor

lation was the use of patronage.
However, as noted

had numerous patronage positions at his disposal.
previously, the eighteenth century saw the governor's power in this area
Gradually diminished, especially after the Duke of Newcastle began to
raid the colonial administration for the patronage he might use to
support his own political ends within the British government. The pro-
vincial assemblies also countered the governor's patronage by taking

over appointment to some offices, as noted before, and barring former

receivers of patronage from sitting in the house for a certain number

 

133Quoted in Wesley F. Craven, The Colonies in Transition,

1660-1713 (New York, 1968), p. 321.
134Hutchinson, History of Massachusetts, II, 211, 214-215.

135See Daniel, Experiment in Republicanism, pp. 27-32.

141
of years after their commission expired. The Maryland assembly forbade
(anyone, on the pain of fine, to solicit offices for their friends.136

Finally, the governor was a member of the legislative process

fiimself. No act passed by the assembly could take effect until he had

aipproved it. If he vetoed an act, there was no chance for the assembly

tn: override his negative. Moreover, the governor's instructions required
'that suspending clauses be included in certain bills giving England the

f’irial right of review. As noted previously, the growing number of man-

datory vetoes and areas requiring suspending clauses limited the gov-

eer~ru3r's discretion and weakened his ability to deal with the assembly.

His other legislative role was to recommend legislation. How much power

iztris authority contained depended upon his relationship with the assembly.
In short, the American colonial governor in the first half of

iflie eighteenth century retained much of the authority possessed by the

strong seventeenth century governors. However, his power to implement

that authority had slipped away from him for a number of reasons.

Foremost among the British causes of the governor's decline
in power was the failure of colonial administrators to follow up on the
extension of prerogative control over the colonies undertaken by William

III. Many of his reforms fell victim to bureaucratic indifference or

political rivalry, especially when colonial affairs came under the

direction of one man, the Duke of Newcastle. In that period of "salu-

tory neglect“ colonial policy was stretched between national and private

interests, neither of which was able to exert enough pressure to develop

 

136See Greene, Provincial Governor, p. 158-

142

and implement a consistent colonial policy. Furthermore, the failure
of colonial officials to work out adequate methods to administer the
colonies led to confusion and conflicting policies. Part of this was
due to the fact that American affairs were on the periphery of British
politics with insufficient political impact to gain the attention they
deserved. Moreover, the British officials sought to maintain the
status quo in the face of changing conditions within the colonies.
This put the governor under tremendous pressure to bargain away his
power and authority to maintain some semblance of control within the
colonial government.
Furthermore, the governor's dual role as chief colonial
administrator for the English and chief executive for the colonists
was fraught with built-in conflicts. He was given broad authority
derived from his position as representative of the royal prerogative,
but was limited in his use of it by his instructions. Moreover, the
Crown appointed by commission other royal officials designed to check
the governor's use of his authority, but more often than not they were
a source of friction and made colonial administration quite inefficient.
The governor's dual role also made him subject to two masters,

the Crown and the people. Without the colonists' good will the gov-
ernor had difficulty maintaining his administration. As one governor
noted

If a governor lies under the fatal necessity of disobliging

a majority of representatives by doing his duty on one hand,

or on the other of gaining their favor by breach of his duty,
his doom is flxed, since he must either fall a victim to the

143

unjust rage of those men for what is right39r to his Majesty's

just d1spleasure for d01ng what TS wrong.
In the words of one historian, "it was a supreme failure of leadership
to earn the opposition of the Assembly, the Council, and one's subordi-
nates without winning any increase in the perogative of the Crown."138

In summary, the colonial governor was granted extensive

authority in his commission and instructions to carry out his duties.
That authority was tempered by his instructions on how to use it, the
built-in constitutional checks like the council, and an increasingly
powerful assembly. While the governor's authority basically remained
unchanged throughout this period his power to carry it out was severely
eroded. The major factor was the assemblies' control of the governor's
salary and their ability to force the governor to bargain his powers
and prerogatives in return for their support. By mid-century the assem-
blies had managed to devise the techniques and mechanisms to make the
governor responsive to colonial interests. In short, appointed governors
whose basic function was to protect English interests and administer
colonial policy within the colonies found himself facing a significant
counterweight to his power and authority in the assembly as it sought

to make him accountable to colonial interests.

 

137
138

Quoted in Labaree, Royal Government, pp. 31-32.

 

Henretta, "Salutory,Neglect,:_p. 152.

 

CHAPTER III

THE QUEST FOR UNION:

The Idea of a Continental Executive, 1688-1760

From the Glorious Revolution to the outbreak of the American
Revolution many proposals were discussed on the feasibility of uniting
two or more colonies under one common executive. Other plans developed
the idea of continental associations. Taken together these discussions
raised many of the problems which confronted the Americans once they
had declared their independence and were attempting to establish their
own national government. This chapter examines these plans and pro-
posals from 1688 to the years just preceding the re-organization of the
empire in 1763 in an effort to sort out the various problems, experiences,
and methods used in an attempt to unify two or more colonies.

Until the end of the first quarter of the eighteenth century
military concerns dominated the various plans of colonial union. For
example, on orders from the Crown,Governor Fletcher of New York tried
unsuccessfully to organize a meeting of colonial representatives in
1693 to discuss matters of common defense. However, several colonies
did not feel sufficiently threatened to see the need for such a con-
ference while others resented Fletcher and the manner in which he called
the conference. The following year British officials assigned troop

quotas to each colony under the united command of Fletcher. This

144

145

offended several colonies who ordered their agents in London to take
matters before the Crown. In response, the attorney general issued his
opinion which declared in part that the charters gave "Ordinary Powers
of the Militia to the respective Governments thereof." He argued, how-
ever, that

their Majesties may [also] constitute a Chief commander, who

may have authority at all times to Command or order such por-

tions of the Forces of each Colony . . . [as the Crown sees

fit], And forther (sic) in times of Invasion and approach of

the Enemy with ye advice and assistance of the Governors of

the Colonies to Conduct and Command the rest of the Forces

for the preservation and defense of such of those Colonies

as shall most stand in need thereof not leaving the rest

unprovided of a competent force for their defense and safety.
But in peace time the militia "within each of the said Provinces ought
as we humbly conceive to be under the Government and disposition of the
respective Governors of the Colonies according to their Charters."1
Though the British and many Americans agreed that some form of united
military action was needed in time of crisis, the Americans were not
about to give that much power to a governor like Fletcher whom they
mistrusted.

The following year William Penn received a letter from New

York resident P. D. LaNoy, which outlined one of the fundamental problems
of establishing a union over such disparate colonies. He began by
criticizing Fletcher but noted that it would be a great convenience to

have "a Union under one Govern[o]r, especially in time of war, and it

would

 

1New York Colonial Documents, IV, 103-105.

146

be a terrour (sic) to the french of Canada who assume a boldness

purely from our divisions into separate bodyes and the piques

that are to common amongst the several govern[o]rs of which the

French don't want [of] a constant intelligence.
However, if such a union between New England, New York, and the Jerseys
under one governor did take place it would have to be done in such a
manner that

the Assembly's, Courts of Judicature and Laws of the respective

colonys(sic) may remaine and be kept separate and entire as

they now are; for our laws & manner of trade are different from

one another and the distance betwixt us would make very uneasie

for the rest of the Provinces to resort to any one common justice.

In December, 1696 William Penn recommended to the Lords of
trade that the colonies elect delegates to a common assembly for the
purposes of solving continental problems. The following February he
presented his detailed plan of colonial union. It called for two dele-
gates from each of the then ten colonies to meet at least once annually.
The Crown would appoint a commissioner to "preside in the said Congress,"
who would probably be the governor of New York since it was the most
centrally located colony. Aside from his role as presiding officer,
he would "be general or chief commander of the . . . [troops raised by
the congress] against the common enemy, for the good and benefit of the
whole."3
Later in February the Board of Trade made its own recommenda—

tion for a union between New York and the other colonies listed by Penn.

The Board was careful to note the various objections of the colonial

 

2Ibid., p. 224. Also see II, 58.

 

3Penn's plan reprinted in Frederick Tolles and E. Gordon
Alderfer, The Witness of William Penn (New York, 1957), pp. 136-137.

147

agents to combining the colonies under a common civil government. If
the union's executive was to be either the governor of New York or
Massachusetts, it would be a hardship on those who had to travel long
distances to conduct their business with him. Moreover, the colonies
would be required to raise money to support some other colony's governor.
In light of these and other problems, the Board of Trade noted that the
union would only be feasible under a military command separate from the
civil goVernment entirely. Since the previous quotas established by
the Crown for colonial defense had not been complied with, the Board of
Trade concluded that "it requires the exertion of a more vigorous power
than hath thitherto been practiced, to make it produce the desired
effect." Therefore, the Board of Trade recommended that the Crown
appoint an official to coordinate military affairs within the colonies.
Additionally, they recommended that the rest of the colonies outside of
the New England-New York area be made to realize

their own true interests and thereby [be] induced to enact such

laws in their respective governments as shall be necessary to

enable the said Captain General to execute Your Majesty's Com-

missions, so as shall be most for Your Majesty's service, their

own defense and general advantage."
The result was the appointment of the Earl of Bellomont as the captain-
general and governor of New York and the surrounding territory.4

In 1698 Charles D'Avenant published "Discourses on the Public

Revenues and of the Trade of England” in which he outlined a plan simi-

lar to the one proposed by William Penn. In comparing the proposals he

noted that

 

4New York Colonial Documents, IV, 259.

 

148

this constitution has some resemblance with the court of the
Amphictiones, which was a kind of council where the general
affairs of Greece were debated; which if they could have
preserved in its original purity, and to the first design

of it, that country had not been so easy a conquest to the
Romans.

D'Avenant's plan of colonial union came under heavy attack by
an anonymous Virginian who wrote "An Essay Upon the Government of the
English Plantations on the Continent of America," in 1701. One of this
author's strongest objections was the making of the New York governor
"so much advanced in Dignity above the rest of the Colonies and their
governors." Moreover, he objected to always holding the council meet-
ings at New York. Instead,

it would be much more convenient and useful too, if they met

by turns, sometimes in one Province, and sometimes in another;

and the chief Governour in the Province were they meet, being

commissioned by his Majesty, may preside as the High Commis-

sioner amongst them.
He went on to recommend that the continent be divided into "five Circuits
or Divisions" with each taking its turn as host for the grand council
meetings. Moreover, he said, "there was a fundamental constitutional
principle involved which allowed the people to remedy the Grievances
that may happen to the Plantations by their Governours." As proposed
by D'Avenant's plan, "the last resort of Justice in any Province, may
not be to the chief Governour there," he contended. Furthermore, it

was "very dangerous to establish any Judicature, which cannot be called

to Account for male-administrations (sic)." Instead, he called for an

 

5Charles D'Avenant, "Discourses on the Public Revenues and on
Trade," in The Political and Commercial Works of Charles D'Avenant,
Charles Whitworth, ed. (London, 1771), II, 29.

149

act of Pairliament to make all the colonial government uniform in
structurea lest "some . . . Tricks . . . be plaid (sic) by the Charter
Governmerits." This was an allusion to the use of New England ports as
a haven 1’or "Pyrates" who had not been captured until the Government of
the Earl of Bellamont, who may properly be called the first Governor of
the English Interest in that Province. In the end, however, he con-
cluded that

it is necessary for all the Colonies to be united under one

Heacl, for their common Defence; and that it will be much more

so, 'if the French or any other Nation, possess themselves of

the F2iver Messachippe (sic), and the Lakes to the Westward.

'That same year Robert Livingston of New York wrote the Lords
of Trade aarid outlined his plan of union. He recommended that "one form
of governnneant be establish'd in all the neighbouring Colonies" and that
they be r£21=ashioned into three "distinct governments." Each government
would be aisssessed 5,000 pounds annually for ten years to support con-
tinental £a><penditures. Representatives from each of the three govern-
ments WOUT C] then meet annually at Albany to "oversee the management and
dISPOSItlcari of the money to those uses and not otherwise." No mention
was made (if an independent executive head.7

'The Earl of Stair proposed "A Scheme Towards the Better Gov-

ernment of the West Indies" in 1721. His paramount suggestion was

 

 

. 6"An Essay Upon the Government of the English Plantations on
the C9ntllaent of America (1701): An Anonymous Virginian's Proposals
for leeY“ty Under the British Crown, with Two Memoranda by William
Byrd» Louis B. Wright, ed. (San Marino, California, 1945), pp. 68-86.

7New York Colonial Documents, IV, 87.

 

150

that there be a Captain General or Governor in Chief appointed
over all the Continent of [the] West Indies, whose Commission
[was] to supersede all other Gouvernors (sic) of Province, in
whi ch he shall go on occasion of defense or other necessity,
and his Residence to be in the middlemost Province upon the
Continent from North to Soutg, for the being more at hand to
succour any that shall want.

Stair's plan was far more explicit in outlining the powers of
executive than previous plans. Specifically, the proposed executive
was required to maintain the form of government and "to exercise the
same powers only" of the governor of the colony he replaced. He was to
have a "general Council" consisting of "two Members from the Assembly
of each Province" and one of the two representatives be "changed or re-
elected every year to keep the council better informed as to conditions
within the respective colonies." The major duty of Captain General and
Council was "to allot the portion of Men and Money, which shall be the
Appointment of each Province, to be fixed in gross, and the Assembly of
the Province to direct by a law the ways of raising it."9

Stair's plan of intercolonial government specifically barred
the counci 'I from interfering with the form or operation of any parti-
cular meniber colony. A11 actions were on a "majority of voices present,"
and "not an act of Decree." Provision was to be made for an adequate

salary for the members by their respective provinces and "that there be

a reasona ble allowance settled from each province, as a competent salary

151

to the Captain General, over and above the Allowance of his Government,

where he resides . "10

Most interesting, however, was the scope of Stair's grant of
executive power. He recommended that the "Captain General have all
Powers proper for his Office, and needful for his Service, even the
suspension of Governors, where His Majesty's Commands by him are dis-
puted without being causelessly neglected, or willfully disregarded."
Moreover, he was to have the power to fill vacancies in the standing
military force, "to be confirmed by His Majesty's Commission." Addi-
tionally, he had the power to remove any officer in the Militia of any
province, "when under his Command upon service; but to fill up the
Vacancies with persons only of the Province, to which the said Militia
belonged. " Furthermore, the executive was to have the power "to order
and march the Militia of any Province to the defense of another (this
Article to be settled under reasonable Rules, Allowances, and restric-
tions)." F'inally, Stair would require the executive to transmit copies
of all council proceedings to the Board of Trade, and where the Crown's
pleasure was not known, "to suspend acting till His royal pleasure be
known." Thus, Stair would have the "Captin General" take over the pro-
V10C131 governor's military powers on every military occasion except

local matters.“

 

 

10Earl of Stair, "Proposals for a Scheme Towards the Better
GOVem'Pefilts of the West Indies," reprinted in "Plans for the Union of
the Brit Ish Colonies of North America, 1643-1776," Frederick D. Stone,
9d-3 Mm of the Celebration of the One Hundredth Anniversary of the
___(_g__Promul étion of flue Constitution of the United States, Hampton L. Carson,
ed- Ph11adelphia, 1889), II, 461.

"Ipid.. pp. 461-462.

152

A final interesting note was Stair's recommendation that
Parliament pass a revenue act "or as such as shall be thought proper
and worthy the acceptance of able, honest Men for the maintenance of
Governors and other officers in several Provinces, especially in the
proprietary Governments." Moreover, under severe penalty, no governor
be allowed to act, whether he was "nominated, elected, chosen or
appointed ," until

he shall have obtained the Royal Approbation for his so acting,
as Governor . . . and that he hath first qualified himself
according to Law, and shall have given proper security for his
dutiful behaviour, his observance of all the Laws of Trade and
navigation, and of all such orders as from time to time be
sent unto him.

Thus, Stai r recognized and sought to avoid the problems of a governor's

salary not being fixed and assured.12

l_ater that year the Lords of Trade proposed a similar plan

for coloni a1 union. Under this proposal the whole continent would be

placed under a

Lord Lieutenant or Captain General from whom all other Governors
0f Particular Provinces should receive their Orders in all
cases for Your Majesty's Service, 8: Cease to have any Command
resPectively in such province where the said Captain General
51131] at any time reside, as is presently practiced in the
Leeward Islands where each Island has a particular Gover[nor],
but one General over the whole.

Like Previous plans, he was to have a council of two or more deputies
from each province. Moreover, they recomnended that

he Should have a fixed salary sufficient to support the Dignity
0f 80 Important and Employment, independent of the Pleasure of
the Inhabitants; and in our humble opinion ought to be a person
0f 900d Fortune; Distinction and Experience.

“

121bid.. pp. 462-463.

153

This plan went further than the previous ones in its recommendation that
the exeantive have not only military power, but civil power as well over
the respective governors.13
The idea of a general executive power over the colonies was
picked up: the following year by Daniel Coxe of New Jersey. In his work
"A Description of the English Province of Carolina" he proposed that a
"Lieuteneant, or Supreme Governour" be constituted "and appointed to pre-
side on tzhe spot, to whom the Governours of each colony shall be
subordinate." A "great council or general convention of the estates of
the colonies . . . by order, consent or approbation of the Lieutenant
or Governour General, shall meet together, consult and advise for the
good of the whole." Unlike the other proposals, this one specifically
noted that "in all cases the Governour General or Lieutenant is to have
a negative ; but not enact anything without their [the council's] con-
currence, (or that of a majority of them." Since this plan was a "gene-
ral" Proposal, "other jurisdictions, powers, and authorities . . . may
be vested. in and cognizable by the above said Governor General or
Lieutenant, and council in accordance with the laws of England."14
By the mid 1720's the problems of colonial defense were yield-

109 to the problems of colonial administration. Some feared that
60100131 IJnion would be detrimental to English interests. One such

person Was Governor William Keith of Pennsylvania. Citing the jealousies

“

13

14Daniel Coxe, "A Description of the English Province of

Carolina ’ '1 ' ° II 11
465-467. (London, 1722), reprinted 1n Stone, ed., Plans. . . , pp.

New York Colonial Documents, V, 629.

154

and riva 1ries between the colonies over trade and other matters, he
noted that
the wisdom of the Crown of Great Britain therefore by keeping
its colonies in such a situation is very much to be applauded;
for while they continue so it is morally impossible that any
dangerous Union can be form'd among them.
Moreover, he was concerned whether it was "good policy to accustom all
the able men in the colonies to be well exercised in arms."115
British official Martin Blanden changed his mind several times
on the question of colonial union. In 1721 he and two other members of
the Board of Trade recomended a "Captain-General" to preside over a
loose confederation of all the American colonies. However, in 1726 he
was more concerned with colonial administration. He then saw the need
to keep the colonies divided and therefore dependent on England. By
1739 military'concerns were again paramount and he accordingly recom-
mended a military governor with a bi-cameral legislature to oversee
American i nterests. He wanted this executive to be the governor of New
York and Massachusetts "so that he might constantly subject . . . [the
latter col ony to] a very narrow Inspection." The problem in Bladen's
plan was that the executive depended on voluntary grants from the colo-
nies for his salaries which, given past experience, was bound to cause
problems. Moreover, Bladen recommended that the executive be given

"full Powers to do all such Acts as may be requisite, for the due execu-

tion Of his commission." This undefined and unlimited executive would

—-———\

. 15Sir William Keith, "Collection of Papers and Other Tracts,"
reprinted in Stone, ed., "Plans. . . ," p. 467.

155

have beeen very difficult for most Americans to accept had he finally
been appointed.16
The defense aspects of colonial union quickly surfaced when
hostilitzies broke out at mid-century with the French and Indian Wars.
In 1751 .Archibald Kennedy wrote a pamphlet entitled “The Importance of
Gaining and Preserving the Friendship of the Indians to the British
Interest; Considered," which called for a number of commissioners repre-
senting “the various colonies to meet annually at Albany to discuss
common defense needs. There was no discussion of any particular execu-
tive power over all the colonies.17
However, the French threat was great enough to cause serious
discussic>ri of a possible union which finally culminated in the conference
at Albanyr in 1754. In May of that year Benjamin Franklin published in
his neWSpa per an article entitled "Short Hints Towards a Scheme for
Uniting the Northern Colonies." Three years earlier Franklin began
thinking about the problem of union as evidenced by a letter to James
Parker W11C> had asked Franklin to comment on Kennedy's pamphlet. Franklin
agreed that a union was necessary though he believed it "not [to] be
brought Eibout by the Means that have hitherto been used for that Pur-

P0$e-" The squabbles between the governors and their assemblies, he

noted. would cause it to be dropped. However, he predicted success,

 

 

, .. 16Jack P. Greene, ed., "Martin Bladen's Plan for Colonial
””10". lflilliam and Mary Quarterly, 3rd ser., XVII (October, 1960),
pp. 517-529.

 

, 17Archibald Kennedy, "The Importance of Gaining and Preserv-
ing the Friendship of the Indians to the British Interest Considered,"
(New York, 1751), pp. 27-31.

156

if you were to pick out half a Doxen (sic) Men of good
Understanding and Address, and furnish them with a reasonable
Scheme and proper Instructions, and sent them in the Nature
of Mbassadors to the other Colonies, where they might apply
particularly to all the leading Men, and by proper Management
get them to engage in promoting the Scheme. . . . For reason-
abl e sensible Men, can always make a reasonable Scheme appear
such to other reasonable Men, if they take Pains, and have
Time and Opportunity for it, unless from some Circumstances
their Honesty and good Intentions are suspected.

He concluded that a

voluntary Union entered into by the Colonies themselves . . .
would be preferable to one impos'd by Parliament; for it would
be perhapse not much more difficult to procure, and more easy
to alter and improve, as Circumstances should require, and
Experience direct.

Moreover, "it would be a very strange thing," he wrote,

if six Nations of ignorant Savages should be capable of forming

a Scheme for such an Union, and be able to execute it in such

a Manner, as that it has subsisted [for] Ages, and appears

1ndissolub1e; and yet that a like Union should be impracticable

for ten or a Dozen English Colonies, to whom it is more neces-

sary, and must be more advantageous, and who cannot be supposed

to want an equal understanding of their Interests. 8

Franklin's thoughts on the organization of such a union inclu-

dEd a "general Council form'd by all the Colonies" and "a Governor
general appointed by the Crown to preside in that Council, or in some
Manner 1:0 concur with and confirm their Acts, and take Care of the Exe-
CUt10"-" Their authority was limited to "every Thing relating to Indian
Affairs and the Defense of the Colonies." Franklin did not elaborate

at this time on the powers of the executive.19

 

 

. 18Benjamin Franklin to James Parker, March 20, 1750/1, Frank-
lin—33.1%, Leonard N. Labaree, ed. (New Haven, 1961), IV, 117-11F.

19Ibid., p. 119.

157

By June of 1754 Franklin had drawn together his thoughts on
the organization of the executive. In a letter to James Alexander and
Cadwallader Colden, in which he enclosed a copy of his "Hints," he noted
that the "Governor General" ought to be appointed by the king, be a
military man, have "a Salary from the Crown,‘I and possess a "Negative on
all acts of the Grand Council, and carry into execution whatever is
agreed on by him and the Council." Together with the "Governor General“
and "Grand Council,’I Franklin would empower them to do "everything that
shall be found necessary for the defense and support of the Colonies in
General, and increasing and extending their settlements."20

In a letter to Cadwallader Colden, James Alexander discussed
several problems left unsolved by Franklin's plan. Most serious was
the difficulty of finding men "skilled in Warlike affairs'I to comprise
the "Grand Council," and the difficulty of communicating with them on
confidenti a1 matters of state over such a wide area. He proposed that
a "Counci‘l of State" be created to consist of

a few persons to be chosen by the Grand Council at their stated
meetings which Council of State to be allways (sic attending
the Governour General, and with him to degest (sic before
hand all matter to be laid before the next Grand Council, and
001.3! the General but not the Particular plans of Operation.

This "Council of State" was "to be something like that of the United

provinces; and the Grand Council to resemble the States General."

fl

20Benjamin Franklin to James Alexander and Cadwallader Colden,
May [June] 8, 1754, Ibid., V, pp. 337-339. For a discussion of these
and What mid-century plans of union prior to the Albany Conference see
Lawrence Henry Gipson, "Massachusetts Bay and American Colonial Union,
(”735463 F;%%eedings of the American Antiquarian Society, April 19, 1961,

 

158

Aleaxander sought therefore to create a continental form of government
al<3ng the lines of the government in the royal colonies.2]
Shortly afterwards delegates from each colony met at Albany
'U) discuss the problem and terms of union. The plan they adopted was
similar to Franklin's proposal. The union would be governed by a
"President-General" appointed and supported by the Crown and a "Grand
Council" whose members were chosen by the colonial assemblies. The
President-General had the power to call the council to session in emer-
gencies other than the annual required meeting, so long as "he having
first obtained in writing the consent of seven of the members to such
call, and sent due and timely notice to the whole.“ Additionally, the
executive had to assent to "all acts of the Grand Council, and that it
be his office and duty to cause them to be carried into execution." A
quorum consisted of twenty-five members plus the "President-General" so
long as there was "one or more from a majority of the colonies.“ All
powers of the continental government were to be shared between the
"Council and President-General." However, the power of appointing
military offices was granted to the President-General with Council Appro-
bation, while civil offices were to be nominated by the Council and were
"to receive the President-General's approbation before they officiate."

Upon the death of the executive, "the Speaker of the Grand Council for

 

21James Alexander to Cadwallader Colden, May [June] 9, 1754,
Franklin Papers (Labaree, ed.), V, pp. 339-340.

159

the time being shall succeed, and be vested with the same powers and
enlthorities, to continue till the King's Pleasure be known."22
The Albany Plan for colonial union was a significant model

fcar the development of a continental executive. The proposed office
combined a military head with the chief Indian agent, gave him a veto,
and made his salary independent of American control. However, the plan
limited his power to interfere with its proposed legislative functions
by denying him the power to prorogue or dissolve the "Grand Council" or
participate in the selection of its speaker. Moreover, the plan en-
visioned a union in which the legislative branch possessed more power
than the provincial legislatures had in relation to their governors,
though less than Parliament retained in relation to the Crown. Finally,
the President-General's salary was to be paid by the Crown, because, as
Franklin later noted, that

all disputes between him and the Grand Council concerning his

salary might be prevented; as such disputes have been fre-

quently of mischievous consequences in particular colonies,

espec1ally 1n t1me of pub11c danger.

When the Albany Plan was presented to the provincial assem-

blies, there were objections to it. The New York council wanted the
governors and councils involved in the selection process for members of

the "Grand Council." Franklin contended that this would violate English

constitutional theory inasmuch as it would upset the balance created by

 

22"Proceedings of the Albany Congress," reprinted in the
Massachusetts Historical Society, Collections, 3rd ser., V, 1836, pp.
70-74.

23Labaree, ed., Franklin Papers, V, 402.

160

thee plan. Under the proposed plan as adopted by the convention, one
ha'lf of the government would be in British hands and one half would be
Iwasponsible to the American people, since they or their assemblies would
elect the delegates, which he said "is the same thing." In the British
<x3nstitution, he continued, the Crown only had one third of the power,
while the Albany Plan provided that "the council chosen by the people
can effect nothing without the consent of the President General appointed
by the Crown; the Crown possesses therefore full[y] one half of the
power of this constitution." Moreover, he continued,

if the governors and councils therefore were to have a share

in the choice of any that are to conduct this general govern-

ment, it should seem more proper that they choose the Presi-

dent General. But this being an office of great trust and

importance to the nation, it was thought better to be filled

by the immediate appointment of the Crown.
Overall, he concluded, the power given "to the grand council is only a
concentration of the powers of the several assemblies in certain points
for the general welfare; as the power of the President General of the
several governors in the same points."24

Franklin viewed the function of the president general as the

key link between England and the colonies. He noted that the assent

of the executive

to all acts of the grand council was made necessary, in order
to give the Crown its due share of influence in this govern-
ment, and connect it with that of Great Britain.

 

24Ibid., pp. 403-405.

161

lmrreover, he concluded, the "President General, besides one half of the
legislative power, hath in his hands the whole executive power."25

As time dragged on after the meeting at Albany, Franklin des-
paired of any action toward union being taken by the provincial assem-
blies. In a letter to Peter Collinson six months after the convention
he wrote,

all the Assemblies in the Colonies, I suppose, had the Union
Plan laid before them; but it is not likely, in my Opinion,
that any of them will act upon it so as to agree to it, or

to propose any Amendments to it. Every Body cries, a Union

is absolutely necessary; but when they come to the Manner

and Form of the Union, their weak Noodles are presently dis-
tracted. So if ever there be a Union, it must be form'd at
home by the Ministry and Parliament. I doubt not but they 26
will make a good one, and I wish it may be done this Winter.

In the end, however, both the British and Americans rejected
the Albany Plan as an unacceptable solution to colonial union. Franklin
argued that it was rejected because the British thought it gave too much
control to the democratic part of the government, while the Americans
rejected because it gave too much power to the prerogative.27 Thomas
Hutchinson contended that it was rejected by the colonists since no
colony was "inclined to part with so great a share of power" as pro-
posed for the new government. He went on to note that Massachusetts'
Governor Shirley proposed a central government composed of

all the governors of the colonies, and a certain number of

the council of each colony, with powers to agree upon measures
for the defense of the colonies, and to draw upon the treasury

 

25Ibid., p. 409.

26Ibid., p. 454. Also see editors discussion of the events

surrounding the Albany Conference, pp. 374-392.

27Smith, ed., Franklin Works, III, pp. 226-227.

 

162

in England for money necessary to carry such measures into

execution; for the reimbursement whereof, a tax should be

laid on each colony by an act of Parliament.
Tliat was patently unacceptable to the colonies. In any case, John Adams
'later recalled, that by the following year the British, out of their
'fear of colonial union, took "the war into their own hands."29

Franklin mentioned that several other plans for colonial union

‘were discussed about the time he presented his. Though there is no way
of telling which ones he was referring to, one of them was probably
written by Rev. Richard Peters, a delegate to the Albany Congress. He
proposed that a "Colonel, Lieutenant Coll. & Major" be appointed and
paid by the Crown to supervise a company of one hundred men, exclusive
of officers to be called “the Union Regiment." This military organiza-
tion would also be responsible for building and maintaining forts, roads,

and the like.30

Another plan was likely that of Thomas Hutchinson who also
provided an extensive outline for the Albany convention's consideration.
His provisions for an executive head corresponds almost exactly to
Franklin's with respect to his duties and powers, which were shared
with the council. However, Hutchinson's plan stated that the powers
of the president and council were limited to a term of six years "from

their first meeting, unless at the expiration of said six years there

 

28Thomas Hutchinson, History of Massachusetts Bay, III, 17.

29John Adams, Works (Charles F. Adams, ed.), IX, 592.

30Pennsylvania Archives, II, 197.

163

stiould be war between Great Britain and France in which case the said
ptawers shall continue until the end of said war and then expire."3]
About the same time that the Albany Plan was being discussed,
l.ord Halifax, president of the Board of Trade, recommended a plan of
colonial union to the Privy Council. Though similar to previous plans
proposed by other British officials, it did not overcome the problem of
how to appoint a civilian executive over all the colonies that would
not violate the charters of the pr0prietary and charter colonies. In
line with the attorney general's ruling on the subject, that the Crown
could appoint a commander-in-chief but not a civilian head over all the
colonies, Halifax proposed that the union be accomplished under a mili-
tary structure making the governor of New York the commander-in-chief
over all the colonies. Halifax's motive for offering his plan was part
of a calculated effort to increase his standing within the British
government. Moreover, if he could make the commander-in-chief for
America responsible to the Board of Trade, it would increase the Board's
prestige in relation to the other departments handling colonial affairs.
At any rate, British policy-makers had already decided that colonial
union was detrimental to their interests at that time.32

In summary, the initial attempts at colonial union were com-

plicated by two basic problems. The first was the legal difficulty in

 

3lHutchinson's plan reprinted in Richard Frothingham's Ihe_
Rise of the Republic of the United States (Boston, 1886), p. 613.

32See Alison Gilbert Olson, I'The British Government and C010-
nial Union, 1754," William and Mary_Quarterly, 3rd ser., XVII (January,
1960), pp. 23-34.

164

triying to combine two or more distinct constitutional entities under
orie civilian executive. Given the conflicting provisions of the char-
tears, it would be hard for him to govern without first trying to recon-
<:ile the charters by integrating the existing machinery of government
'into one general unit empowered to act for the combined area of the
colonies. Moreover, the colonists would find it difficult to hold the
governor accountable for his actions if one charter granted him the
authority to carry out actions that the other charters did not allow.
For the most part, however, this was not a problem in military matters
inasmuch as the colonial militia could be delegated to any commanding
officer necessary for the colony's defense. The second problem was the
inability of the various colonies to overcome their attachments to local
interests in favor of a united solution to their common problems. This
was partly a reaction to England's waivering over whether colonial union
was in its best interests in light of the French threat. At other times
it was a function of regional disputes. At any rate, colonial union
prior to 1760 was fraught with too many difficulties for either the

Americans or British officials to overcome.

CHAPTER IV

THE ROAD TO REVOLUTION:

The Colonial Governor and the Reorganization
of the British Empire

During the period from 1763 to the outbreak of the American
Revolution, the British tried to restructure the empire and the Ameri-
' cans strongly reacted. The ensuing crisis placed colonial governors in
an extremely untenable position as they tried to carry out British
policy in the face of growing American hostility. This resulted in an
increased assault on the governors' position by the assembly. In many
ways these were crucial years as the conflict between the governor and
assembly served to create and fix certain fundamental attitudes toward
executive power that carried over into the Revolutionary era. On
another level the conflict stimulated American writers to examine the
various problems of political theory as they applied to the American
situation. These ideas helped set the stage for the writers of the
first state constitutions in the initial years of the Revolution.

Until 1763 British efforts to administer colonial policy were
continually frustrated by the French presence in Canada. The Peace of
Paris in 1763 brought Canada under British control, which now allowed
England to undertake a major reform of colonial administration. The
purpose of British intentions remained the same, i.e., to enforce the

nmrcantile policies of the last century for the benefit of England.

165

166

What emerged after 1763 was a change of methods directed toward a
restructuring of imperial relations. As noted previously, governors
and other colonial officials continually pointed to the fact that as
long as they were dependent on the assembly for their salaries, they
could not enforce British colonial policy. The aim of imperial reform
was therefore primarily directed at breaking the stranglehold of the
assemblies over the salaries of royal officials. Former Governor Thomas
Pownall recommended that the priority reform be directed at the salary
question. "I will further venture to suggest," he wrote, "that, what
ever revenues, are raised, the first and special appropriations of them
ought to be the paying_the governors and all other Crown officers inde-

pendent of the legislature's of the colonies."1

However, it soon became
clear that the trends and precedents in the American colonies were too
strongly established to be undone without causing a major political
crisis.

The major difficulty of imperial reform in the colonies,
especially the re-establishment of the governor's position in provincial
politics, was colonial democracy. The precedents and traditions esta-
blished by the provincial assemblies, especially the control of the

governor's salary, made the governor more dependent on American than

British interests. British customs agent Comptroller Weare analyzed

 

1Thomas Pownall, The Administration of the Colonies, p. 128.
Also see the following works on Pownall's perceptive observations:
Charles A. W. Pownall, Thomas Pownall . . . (London, 1908); John A.
Schutz, Thomas Pownall: British Defender of American Liberty: A Study
in Anglo-American Relations in the Eighteenth Century (Glendale, Cali-

fornia, 1951); William Otis Sawtelle, Thomas Pownall, Colonial Governor
and Some of his Activities in the AmerTEanTColonies (Boston, 1930).

167

the situation and recommended a number of significant changes. He
noted that the provincial charters were necessary expedients at first,
but had "become nuisances pregnant with mischief." In any future re-
organization of the colonial governments, he declared, "it will be
necessary to check [the] licentiousness of a democracy, by reducing
the present exorbitant power of [the] assemblies." To eliminate the
impact of democracy on the governor, Weare recommended that the Crown
pay the salaries of all governors and appoint the councils or upper
houses of the colonial legislatures. In addition to other reforms, he
noted that England must rule the colonies justly because British autho-
rity depended on the wisdom and caliber of the officials sent to the
colonies. If the people saw the public officials using their power and
authority for private gain, they might well revolt.2
William Knox commented on the impact of democracy on royal
government in his suggestions for imperial reform. The charter and
proprietary colonies, he wrote, "have not only injured the Civil Autho-
rity in the Kings Government, but they have also proved highly detri-
mental to the Commerce of Great Britain." He noted that "where the
Governor and all Civil Officers canvass for Votes, and are Annually
Elected by the People, it will scarcely be expected that the Laws of

Trade, will be carried into strict execution."3

 

2Comptroller Weare, "Observations on the British Colonies on
'the Continent of America. . . ," Massachusetts Historical Society,
Collections, lst ser., I, 66-84.

 

3Thomas C. Barrow, ed., "A Project for Imperial Reform: 'Hints
Respecting the Settlement for our American Provinces,’ 1763," William
and Mary Quarterly, 3rd ser., XXIV (January, 1967), p. 118.

168

William Smith's analysis of British-American relations also
pointed out that the provincial assembly was too close to the people to
represent the empire over local interests. "It may be said of every
one of the Colonies," he wrote, “that our Assemblies are unequal to the
Task, of entering into the Views of so wise, and so great a Nation as
Great Britain is, and from which we are so far removed." He continued
by noting that the responsibility could

not be expected from an Infant Country, many of whose Assembly-
men represent little obscure Counties. . . . Besides, the
scant Districts of the respective Provinces, bring the several
Branches of the Legislature into too great a Familiarity, for
the Purposes of good Government; and open the Door to frequent
Bickerings and Discords, in which the common Interest will be
too often sacrificed, to private Piques or partial Aims, and
the Royal Voice drowned in the Dinn 3f Faction, or the Clamors
(sic) against an obnoxious Governor.

On the eve of the American Revolution Edmund Burke pointed to
the democratic nature of the provincial assembly as well. l'Their gov-
ernments," he said,

are popular in a high degree; some are merely popular; in all,
the popular representative is the most weighty; and this share
of the people in their ordinary government never fails to

inspire them with lofty sentiments, and will a strong aversion
from whatever tends to deprive them of their chief importance.

5
Contemporary historians of the American Revolution also pointed
to the problem of democracy in the colonies as a stumbling block to

British interests. William Knox's explanation of the Revolution noted

 

4Robert M. Calhoon, ed., "William Smith Jr.'s Alternative to
the American Revolution," William and Mary Quarterly, 3rd ser., XXII
(January, 1965), pp. 115-

5Edmund Burke, "Speech on the Conciliation with America,"
Marth 22, 1775, reprinted in The American Revolution,_l763-1783, Richard
B. Morris, ed. (New York, 1970), p. 153.

 

169

that in spite of the tremendous authority granted to the royal
governors, it was to little avail in the face of colonial democracy.
While the Crown appoints the "principal Civil Officers" and

can abrogate or repeal their laws at any time . . . Democracy

had the leading influence, and the general tendency is to

Republicanism, a tendency which increases with their Wealth,

and in a little time, if their prosperity had continued, must

have swallowed up the Monarchic powers.
He concluded that the origin of this colonial democracy was "inherent
in the Constitutions . . . [and was] owing to the delinquency of the
King's Servants." Moreover, to promote "the speedy settlement and cul-
ture of the soil" small tracts of land were given out at the founding
of each colony, which made "every Male Inhabitant . . . a Freeholder,
and by consequence entitled to a share in the Government of the Province."
"This mode," he concluded, "excluded all ideas of subordination and
dependence."6

Tory John Randolph sought to find a "plan of accommodation"

between England and the colonies after the Revolution had begun. In
his proposal for reconciliation he noted the role of colonial demo-
cracy in undermining British authority. "The want of Consequences and
authority in the Kings Representatives," he wrote

has been a capital Defect in the Government of the Colonies.

It has strengthen'd Democracy, and produced neglect in the

People. The Prospect of Favour and the Motives of Fear, had

but little operation amongst them. They knew that the Gov-

ernors had few Things in their Gift; and that Punishment
depended on the Law, which was in a great Degree, subject

 

6Jack P. Greene, ed., "William Knox's Explanation for the
lhnerican Revolution," William and Mary Quarterly, 3rd ser., XXX (April,
1973), pp. 299-300.

170

to their Construction of it. This led them to consider
their chief as no more than a Cypher, and to rely on their
own strength and unanimity, for support.

Thus, colonial democracy continually frustrated British attempts
to establish total prerogative control over the provincial governments
prior to 1763. Fear of potential and actual abuse of the prerogative
led the provincial assemblies to gradually establish measures by which
they made the governor, and hence the prerogative, subject to colonial
restraint to protect colonial interests. As noted time and again, con-
trol of the government and other royal officials' salaries accomplished
this more consistently than any other act. Combined with the other
inroads of the governor's power and authority, the provincial assemblies
had gone far in achieving a responsible executive power within the frame-
work of prerogative government. However, this was all threatened by
the renewed interest of England in reforming colonial government after
1760 and especially after 1763. With the French threat safely disposed
of, reform began in earnest. 'The heart of this effort was to eliminate
the governor's dependency on the assembly.

The colonial governor, caught between Parliament and the pro-
vincial assembly, was gradually overwhelmed by the rush of events after
1763. Prior to this time the governor and assembly were mutually inter-
dependent, each relying on the other for the exercise of their powers.
While there were many disputes between the two, and though the assembly

had acquired control over a number of the functions originally reserved

 

7Mary Beth Norton, "John Randolph's 'Plan of Accommodation,'"

° ' d M uarterl 3rd ser., XXX (January, 1970), p. 119.

171

for the governor, the executive authority within the royal colonies
was still a significant power to contend with overall.

After 1763 Parliament undertook an all-out assault on the
provincial assemblies' power, which drastically altered the political
climate in which the governors worked. Thomas Hutchinson's characteri-
zation of Massachusetts Governor Bernard's dilemma illustrated the
problem. He wrote that

no governor, before Mr. Bernard, had been obliged to propose
measures against which, not only the people of his own govern-
ment, but of every other government on the continent, were
united. . . . It requires great fortitude to advise and
assist to the carrying such measures into execution.
Moreover, he pointed to the significance of Canada as a check on the
colonies by saying,
before the reduction of Canada, which gave to the colonies a
new idea of their power and importance, a dread of an exertion
of the power of the kingdom in support of the supremacy of
parliament, would have restrained the people from that oppo-
sition which, afterwards, they did not scruple to make, and

the council would have had little to fear from their resent-
ment.

Now, "they had much to fear."8
The political pressure generated by colonial reaction to
Parliament's acts adversely affected the other department of government
as well. One council member claimed "that he did not now enter the
council chamber with the free mind he used to have." Justice Peter

Oliver was quoted as saying that he was "under duress." This led

Hutchinson to conclude that

 

8Thomas Hutchinson, History of Massachusetts, III, 165.

172

to this general alteration in the state of affairs, we may
well enough attribute the opposition made by the council to
the measures proposed by the governor; and any irregularities
in the course of the controversy, on one side or the other,
may be charged to those frailties of human natureg which are
more prevalent 1n pol1t1cal, than other disputes.

Hutchinson went on to compare how, at the turn of the century,
Massachusetts Governor Dudley would not hesitate to veto any nominee to
the council not in accord with his principles. However, this was no
longer the case, because "the power of the house had been gradually
increasing, and some parts of the prerogative, which had been disused,
could not now be resumed." Moreover, Governor Bernard had wanted to
veto eight nominees to the Massachusetts council, but "in the disordered
state of the province, it was not thought advisable to irritate the
people to the degree that this exertion of power would have done." It
was clear, then, that in the altered circumstances, no governor could
continue to operate as he had done prior to 1763.10

The events after 1760 touched off numerous debates about the
nature of the colonial constitutions, especially the relationship between
the legislative and executive branches. In 1762, an incident in Massa-
chusetts prefaced the great debate over the right to tax touched off by
the Stamp Act three years later. Governor Bernard requested the council
to make provision for the extra men needed to outfit a sloop for the

protection of Salem and Marblehead's fishermen. Hutchinson noted that

"this exercise of authority, by the governor and council, was to be

 

173

justified as far as precedents, from the date of the charter, could
justify it."H
However, the House of Representatives took strong exception
to the governor's action. James Otis composed a remonstrance outlining
their position. The attempt to remove from the house "their most
darling privilege, the right of originating all taxes," was tantamount
to "annihilating one branch of the legislature," he wrote. "It would be
of little consequence to the people," he noted, "whether they were sub-
ject to George or Louis the King of Great Britain and or the French
King, if both were as arbitrary as both could be, if both could levy
taxes without parliament.‘I This was a warning to the governor "as he
regards the peace and welfare of the province, that no measures of this
nature be taken for the future, let the advice of the council be what

it may."12

Thus, the people's, and hence the assembly's, power to tax
was their power to prevent tyranny and arbitrary rule.

The following year the colonists were alarmed to hear that
England had decided to enforce the Molasses Act in an attempt to raise

revenue. Mr. Otis again took up the pen and wrote The Rights of the

 

British Colonies Asserted and Proved. To allow Parliament the right to
tax colonial trade, he argued, would admit their right to tax everything
the colonists possess.

This, we apprehend, annihilates our charter rights to ggyerg_

and tax ourselves. It strikes at our British privileges,

which, as we have never forfeited them, we hold in common
with our fellow subjects who are natives of Britain.

 

174

Moreover, "if taxes are laid upon us in any shape, without our having

 

a legal representative when they are made, are we not reduced from the
character of free subjects to the miserable state of tributary slaves?"13
Since governments were necessary "by the law of nature," there

must be "a supreme legislative and supreme executive power," and they
must remain in the "whole body of the people," Otis argued. Irrespective
of the organization of those powers, be they democratic, aristocratic,
or monarchical, "the same law of nature and of reason is equally obliga-
tory." That

whenever the administrators, in any of those forms, deviate

from truth, justice, and equity, they verge towards tyranny,

and are to be opposed; and if they prove incorrigible, they

will be deposed by the people if the people are not rendered

too abject,
he concluded. Here he was just repeating the assumption the colonists
had operated on in their struggles with corrupt and arbitrary governors.
Put another way,

power of legislation without a power of execution in the same

or other hands, would be futile and in vain: on the other

hand, a power of execution, supreme or subordinate, without

an independent legislature would be perfect despotism.
In other words, the key to liberty was an independent legislature. Once
that was achieved it does not matter whether the executive power was

within or separate from the legislative power, since its function is

 

13James Otis, The Rights of_the British Colonies Asserted and
Proved (Boston, 1764), reprinted in The Debate on the American Revolu-
tion, 1761-1783, Max Beloff, ed. (New York, 1960), pp. 47-72. Also see
Jack P. Greene and Richard M. Jellison, "The Currency Act 1764 in
Imperial Colonial Relations, 1764-1776," William and Mary Quarterly,
3rd ser., XVIII (October, 1961), pp. 484-518 for another act which was
a source of irritation to the colonists.

 

175

merely to execute the law. Most important to Otis was that legislation
emanate from the people, not a source separate from them. "The first
principle and great end of government being to provide for the best
government of all the people," he said, can only be achieved "by a
supreme legislature and executive ultimately in the people." For con-
venience the people “have made it necessary to transfer the power of
the whole to a few: This necessity gave rise to deputation, proxy or a
right of representation."14

Once that was assured, Otis faced I'the grand[est] political
problem in all ages," which was how to "invent the best combination or
distribution of the supreme powers of legislation and execution." The
most successful states were those "in which these powers have not only
been separated from each other, but placed each in more hands than one,
or a few." He concluded that

British Constitution in theory and in the present administration
of it, in general, comes nearest the idea of perfection, of any
that has been reduced to practice; and if the principles of it
are adheredsto . . . [it will] always keep the Britons uppermost
1n Europe.

Once Otis established his theory of government he went on to
outline what was the fundamental constitutional dispute between England
and the colonies. l'Every British subject born on the continent of
America or in any other of the British dominions," he wrote,

is by the law of God and nature, by the common law, and by act
of parliament (exclusive of all charters from the Crown) en-

titled to all the natural, essential, inherent, and inseparable
rights of our fellow subjects in Great Britain.

 

14Ipid.

15Ibid.

176

Furthermore, to protect those rights "God and nature" had fixed certain
limitation on the supreme legislative power: "To govern by stated laws
. . . [which] have no other end ultimately but the good of the people
Taxes are not to be laid on the people, but by their consent
in person, or by deputation," and finally, the legislature cannot trans-
fer its lawmaking power to any other hands.16 Thus, Otis and his con-
temporaries contended that they were full citizens of England with all
the rights and privileges therein.
When the following year Parliament passed another revenue
bill called the Stamp Act, colonial reaction was swift and violent.
The people refused to buy the hated stamps and threatened bodily harm
to any stamp agent attempting to collect the revenue. The act was
clearly interpreted as an attack on the rights of the colonists and the
foundation of their government. Letters were sent to all provincial
assemblies urging united opposition. South Carolina proposed a congress
"to consider of (sic) a general, united, dutiful, loyal, and humble
representation of their condition to his majesty, and the parliament;
and to implore relief," which resulted in the Stamp Act congress.17
The civil disorders alarmed the colonial officials, especially
Governor Bernard of Massachusetts. In his speech to the assembly he
noted that the disorders rendered
the ordinary executive authority of this government . . . much

too weak to contradict such declarations, or oppose the force
by which they are supported: it has therefore been found

 

16Ihid.

17Hutchinson, History_of Massachusetts, III, 85.

177

necessary to call the whole legislative power in aid of the
executive government.

The assembly replied that
we indeed could not have thought that a weakness in the execu-
tive power of the province had been any part of our danger, had
not your excellency made such a declaration in your speech:
certainly the general assembly have done every thing incumbent
on them; and the laws are already in being for the support of
his majesty's authority in the province.
They then noted that the governor did not point out any deficiencies in
the present laws, "and yet you are pleased to say, that the executive
authority is much to weak." Moreover, they hoped that the governor did
not intend "any new and extraordinary kind of power should by law be
constituted, to oppose such act of violence," because, as they noted,
"there were sufficient laws and magistrates for the preservation of
peace."18
The assembly's answer to the governor went on to outline the
colonists' relation to the Crown.
Our duty to the King, who holds the rights of all his subjects
sacred as his own prerogative, and our love to our constituents,
and concern for their dearest interest, constrains us to be
explicit upon this very important occasion.
After reiterating their loyalty to the Crown they noted that their dis-
agreement was only with Parliament, whose actions were
totally subversive of the happiest frame of subordinate civil
government expressed in our charter, which amply secures to

the government our allegiance, to the nation our conngction,
and to ourselves the indefeasible rights of Britons.

 

18Ibid., Appendix D, p. 338.

19Ibid., pp. 340-341.

178

The New York assembly summed up the Stamp Act crisis as a
'violation of two essential constitutional rights. To
this constitution these two principles are essential, the right
of your faithful subjects freely to grant to your majesty such
aids as are required for the support of your government over
them, and other public exigencies, and trials by their peers;
by the one they are secured from unreasonable impositions, and
by the other from arbitrary decisions of the executive power.
By violating the colonists' right to tax themselves for the support of
the provincial government, Parliament attacked the very core of the
system the colonists used to maintain a responsible executive branch,
i.e., control of royal officials' salaries. Moreover, removing cases
involving violations of the acts of trade from common law courts to
executive-controlled admiralty courts meant another infringement of
fundamental rights over which they possessed no redress from arbitrary
actions detrimental to American interests.

Parliament responded to the American reaction by suspending
the New York assembly for its failure to comply with the letter of the
law. The colonists replied by claiming that this was unconstitutional
because charters were considered sacred. "Powers and authorities, once
granted by the Crown for the rule of government in a colony, were deemed
equivalent to charters," the colonists argued. The king, the Lords,
and the commons, form the legislature of Great Britain, but in America

"the king, by his governor, with the council and assemblies, form the

legislatures," they contended. The American argument against

 

20Ibid., Appendix G, p. 347.

179

Parliamentary intervention was outlined as follows: Since the provincial
assembly

cannot make laws to extend further than their respective

limits . . . it becomes absolutely necessary for the parlia-

ment of Great Britain to interpose, in all cases where the

legislative power of the colonies is ineffectual.
There, the colonists claimed, was "the line of authority of the parlia-
ment" to be drawn. "All beyond it is an encroachment upon the constitu-
tional power of the legislature of their fellow subjects in America."
This, historian Hutchinson wrote, "was asserted to be the constitution
of the colonies, and it was held out to the people in newspapers and
pamphlets, in every colony from Virginia to Massachusetts Bay, as early
as the year 1767."21

Attempts to limit the "supreme authority can never be admiss-

ible under any form of government," Hutchinson declared.

The effect of neglecting them appeared in annulling the con-

stitutional powers of government within each colony, so far

as related to the support of the supreme authority of parlia-

ment, while, in all other matters, they continued in full

force and vigour.
This, Hutchinson concluded, ought to be the date of the colonial revolt,
"rather than from the declaration of independence."22

Supporters of the British viewed the situation much differ-

ently. Soame Jenyns played down the colonists' argument that their

fundamental rights were being violated, asserting that the

 

221b1d., p. 125.

2'Ipid., pp. 124-125.

180

liberty of an Englishman is a phrase of so various a
signification, having within these few years been used as
a synonymous term for blasphemy, bawdy, treason, libels,
strong beer and cyder, that I shall not here presume to
define its meaning.

No one, he claimed, was exempt from the authority of Parliament, especi-
ally the colonists. "Their charters," he noted, were "derived from the
Crown, and no charter from the Crown can possibly supersede the right
of the whole legislature." Moreover,

their charters are undoubtedly no more than those of all
corporations, which impower (sic) them to make bye-laws
(sic), and raise duties for the purposes of their own police,
for every subject, to the superior authority of Parliament.

Furthermore,

in some of their charters the manner of exercising those
powers is specified in these express words, according to the
course of other corporations in Great Britain, and therefore
they can have no more pretense to plead an exemption from
this parliamentary authority, than any other corporation in
England.23

Governor Bernard repeated virtually the same sentiment.

In Britain the American Governments are considered as corpora-
tions empowered to make by-laws, existing only during the
pleasure of parliament, who have never yet done anything to
confirm their establishment and hath at any time a power to
dissolve them.

The Americans, he noted,

claim (I mean in public papers) to be perfect States, not
otherwise dependent upon Great Britain than by having the
same king, which having complete legislatures within them-
selves are no ways subject to that of Great Britain.

 

23Soame Jenyns, "The Objections to the Taxation of Our Ameri-
can Colonies by the Legislature of Great Britain, briefly considered,"
(London, 1765), reprinted in The Debate on the American Revolution,
1761-1783, Beloff, ed., pp. 77-85.

 

181

"In a difference so very wide," he concluded, "who shall determine?”24

In the opinion of Governor Bernard, the Stamp Act crisis
pointed to the need for a major reorganization of the provincial struc-
ture of government. "So much is America altered by the late financial
acts, that a new system of policy and of a more refined kind than was
wanted heretofore, has now become needful." The "patchwork" colonial
governments "will last no longer," he wrote. That Parliament must
establish "a government upon fixed constitutional principles" was evi-
dent "with a precipitation which could not have been foreseen but a year
ago, and is become more urgent by the very incidents which make it more
difficult." He then recommended that England take the Americans at
their word and give them representatives in Parliament, “30 for the
Continent and 15 for the islands," and then "let the affairs of the
American governments be canvassed t0 the bottom." Once the relationship
between Parliament and the colonies was settled, the "American repre-
sentatives may be dismissed and left to attend their own legislatures
which will then know the bounds of their own authority."25

The Stamp Act crisis dealt a blow to the power of the provin-
cial governor and illustrated the pressing need for colonial reform.
South Carolina chief justice William Drayton wrote that Lieutenant

Governor Thomas Boone, then acting governor, was sworn to enforce the

 

24Sir Francis Bernard to Lord Barrington, November 23, 1765,
Barrington-Bernard Correspgndence, ed. E. Channing and A. C. Coolidge
(Cambridge,Tl912), pp. 93-102.

25Ibid., pp. 99-101. Also see Edmund S. and Helen M. Morgan,
The Stamp Act Crisis; Prologue to Revolution, rev. ed. (New York, 1963).

182

Act, "but his powers at that time were insufficient to effectuate the
same." The assembly took the pressure off him by saying
that while Mr. Boone was out of the bounds of his government
they could not consider him in any other light than a private
gentleman; and the act being received through such a channel,
was not sufficiently authentic, to place the lieutenant gov-
ernor under the obligation of enforcing it. 5
Arguments were raised on both sides of the ocean that it was
the improper time to initiate such a fundamental reform in government
relations. However, Soame Jenyns scoffed at that contention. Citing
all the reasons for taxing the colonists then, and not postponing it,
he asked when “can any time be more proper?" Among other reasons, he
noted,
can any time be more proper to oblige them to settle handsome
incomes on their Governor's, than when we find them unable to
procure a subsistance on any other terms than those of break-
ing all their instructions, and betraying the rights of their
sovereign?
Moreover, "can there be a more proper time to compel them to fix certain
salaries on their judges, than when we see them so dependent on the

27 It was clear that the British thought

humours of their Assemblies?"
that the provincial governments needed a major revision to keep them in
line with English interests. Standing in the way was the colonial

assembly, whose control over provincial revenue and officials' salaries

 

26William Drayton, Memoirs of William Drayton, portion re-
printed in Chronicles of the American Revolution, Alden T. Vaughan, ed.
(New York, 1965), pp. 23-24.

27Soame Jenyns, "The Objections to the Taxation of Our Ameri-
can Colonies. . . ," pp. 82-83.

 

183

rendered the royal prerogative void when it conflicted with American
interests.

Parliament ignored the advice of more moderate voices and
plunged ahead with a new round of legislation to replace the Stamp Act,
which they were forced to repeal, arguing that it was harmful to British
trade. In its place they passed the Declaratory Act reaffirming their
right to tax the colonists. Next came the Townshend Acts which touched
off another round of debate and colonial resistance, culminating in the
Boston Massacre in 1770.

Townshend proposed taxes on glass, paper, lead, tea, and
paint, and a Board of Commissioners of Customs in America to prevent
smuggling. The revenues raised were to be used to raise the governors
and judges salaries to 2,000 and 500 pounds respectively, sufficient to
make them independent of provincial assemblies. As Hutchinson noted,
"It was thought necessary to free the civil officers in the colonies
from the restraint they had been under, by means of their dependence
upon the assemblies there for their support." Moreover, "it was . . .
thought reasonable that the charge of supporting such officers should
be borne by the colonies."28

Like reaction to the Stamp Act, colonial response was again
swift and vigorous. The Massachusetts assembly instructed their agent
to protest Americans having to appropriate money for the "maintenance

of swarms of officers and pensioners in idleness and luxury, whose

 

28Hutchinson, History of Massachusetts, III, 130.

 

184

example has a tendency to corrupt our morals, and whose arbitrary
dispositions will trample on our rights.‘' Moreover,

a multitude of placemen and pensioners, and an enormous train

of underlings and dependents, all novel in this country, we

have seen already. . . . Their imperious tempers, their rash,

inconsiderate, and weak behavior, are well known,
the assembly noted. Thus, the colonists thought that they were about
to be overwhelmed with a hoard of new royal officials "to suck the life-
blood of the body politick while it is streaming from the veins" in
revenue raising taxes.29

Boston, not content with that action, moved to call a conven-
tion of towns to discuss these developments since the governor had
dissolved the assembly. In their circular letter the town noted that
"the late house, has been pleased to say, 'proper care will be taken
for the support of the dignity of government'; the meaning of which it
was too plain to be misunderstood.”30
Moreover, rumors indicated that British troops were about to

enter the province.

The design of these troops is everyone's apprehension; nothing

short of enforcing, by military power, the execution of acts

of parliament, in the forming of which the colonies have not,

and cannot have any constitutional influence. This is one of
the greatest distresses to which a free people can be reduced,

the circular letter concluded.3]

 

291 id., Appendix K, p. 355.

I id., Appendix L, p. 357.

185

Hutchinson noted that the members of the convention were
uneasy about their proceedings when the governor accused them of crimi-
nal activity. "They hope the governor will be sparing of his power
. . . [not from a] fear of personal punishment, as from a fixed aversion

32 This

to anything inconsistent with the dignity of their sovereign."
indicated that the governors were not as weak as they claimed to be at
times, since they still carried the weight and dignity as the king's
personal representative.
The dispute between the Massachusetts convention and Governor

Bernard over the quartering of troops illustrated the colonists' fear
that the military forces might go beyond the ability of the governor to
control them. The Americans admitted the right of the Crown to send
troops "to any part of the world . . . for the defence (sic) and pre-
servation of the society." However,

it is impossible to believe that a standing army,--stationed

here, in consequence of misrepresentations,--quartered contrary

to act of parliament,--accompanied with every mark of contempt,

reproach, and insult,--can be uncontrollable by the supreme

executive of the province; which, within the limits of the

same, is the just and full representative of the whole empire.
Moreover, the doctrine advanced by the governor "establishes a military
power, uncontrollable by any civil power in the province." They resolved,
therefore,

that the establishment of a standing army in this colony in a

time of peace, without the consent of the general assembly of

the same, is an invasion of the natural rights of the people,
which they claim as free-born Englishmen.

 

32Ibid., p. 152.

“

33Ibid., pp. 169-170.

186

Moreover, they asked that the Crown and its ministers
"inquire whether the disorders complained of have not arisen from an
arbitrary disposition in the government, rather than from too great a
spirit of democracy in the constitution." Furthermore, they expressed
a deep concern over persons in power who "are indefatigable in their
endeavor to render the monarchy absolute and the administration arbitrary
in every part of the British empire." These then were the twin pillars
on which the colonists dealt with the governor: to make him accountable
to the people and to protect themselves from arbitrary use of the execu-
tive power in the hands of the governor and his prerogative courts.
They concluded that "nothing remains in such a state, if no redress can
be had from the king's lieutenant in the province, but that the oppressed
people unite in laying their ferment and humble petitions before their

34 Once again, the colonial protest was based on

gracious sovereign."
the theory that no policy, office, or institution ought to be allowed
which was not responsible to the people or their representatives.
Besides the colonial reaction, a comment by Hutchinson indi-
cated the soundness of the British strategy of trying to make the royal
officials dependent on the Crown for their salary. When he received a
warrant for an additional 200 pounds annually, in addition to his regu-
lar salary, he noted, "I am more than ever obliged to exert myself in

35

His Majesty's service." However, the more England freed the royal

 

34Ibid., p. 170.

35Quoted in Robert E. Brown, Middle Class Democraoy and the
Revolution in Massachusetts, 1691-1780 (New York, 1955), p. 247.

 

187

officials from dependence on the assemblies, the more difficulty they
had carrying out their duties. Suspicion of British motives were fast
depleting the reservoir of colonial goodwill toward the mother country.
In that climate few governors, irrespective of their political or admini-
strative abilities, could maintain an effective working relationship
with the colonies. Hutchinson noted the major theme of what happened
to the colonial governor after 1763 when he referred to Governor Ber-
nard's case.

When the opposition U3the authority of parliament began in the

province, he was obliged, by duty of his office, to counteract

this opposition. This lost him the esteem of the people, and

enabled those persons, who, for other reasons, had taken

offence (sic), to gratify their private resentment, by height-

ening gge public resentment against him throughout the pro-

vince.

Hutchinson described the end of the Governor Bernard's
administration as having had "the satisfaction of being informed . . .
that his conduct was approved by the king, and by his ministers." How-
ever, the "rage against him became, at length, so violent, that it was
judged necessary to recall himII as a means of placating the people.
Then Hutchinson described the fundamental dilemma of the colonial gov-
ernor.

It was well known in America, that the surest way for a
governor to keep from the hazard of removal was by keeping
upon good terms with the people of his government. .

But there have been times, and this was one, when it has
not been possible for a governor to preserve the favour of

the people, ang the approbation of his own conscience, at
the same time.

 

36

37Ibid.

Hutchinson, History_of Massachusetts, III, 134.

 

188

Ironically, the climax of sentiment against British actions,
the Boston Massacre, happened at the same time England was in the pro-
cess of repealing the hated Townshend Acts. The new head of government,
Lord North, ordered their repeal on the grounds of expediency. However,
he refused to repeal the preamble of the tea tax, which he claimed as a
fundamental Parliamentary right. Moreover, the Townshend Acts failed
to accomplish the goal of making the colonists more dependent on England.
They had done just the opposite by raising more doubts about the rela-
tionships between the various elements of the empire.

After 1770, England backed off from a massive frontal assault
on the provincial assemblies' power and turned to a piecemeal approach
to prevent the colonies from uniting as they had done previously.
Hutchinson observed the change when he wrote: "from the appearance of
a determination to pursue vigorous measures, in order to secure the
colonies from separating themselves from the rest of the dominions.
lenient measures were suddenly thought more proper for that purpose."38

When Governor Bernard left Massachusetts, the governorship
devolved upon Thomas Hutchinson. Since Massachusetts was in the fore-
front of revolutionary activity, the remainder of this chapter concen-
trates on the developments there with relation to what happened to the
executive. As Hutchinson noted, he "entered upon his office under
circumstances peculiarly difficult and discouraging.” By oath, and

"the nature of his office," he was bound to “support an authority to

 

189

which the body of the people refused to submit, and he had no aid
from any of the executive power of government under him."39
Popular opinion was running high against former Governor
Bernard as he left for England. A grand jury brought a bill of indict-
ment against him, in spite of the English laws, which made governors
liable for crimes committed within their government. The fact that
the grand jury proceeded anyway indicated the low level of confidence
possessed by the colonists in England's interest to redress their
grievances. Moreover, Hutchinson reported, "it is now very evident,
that, without a further exertion of power and authority from the king-
dom, acts of parliament for raising money by taxes from the . . . colo-
nists could never be carried into execution." The democratic tide was
so strong that "there was no power, legislative or executive, within
the colonies, which would exert itself in checking this resistance."
Even a military force was to no avail, he wrote, because "without the
direction of a civil magistrate, it remained perfectly inactive in all
times of tumult and riot." Furthermore, "it was perfectly despised,
seeing that nothing short of actual rebellion and the people's taking
up arms, would justify the military, without the civil power, in any

offensive acts."40

 

39Ibid., p. 184. Also see Malcolm Freiberg, ”Thomas Hutchin-
son: The First Fifty Years," William and Mary_Quarterly, 3rd ser., XV
(January, 1958), pp. 35-55.

40

 

Hutchinson, History of Massachusetts, III, 189-190.

190

Hutchinson complained that the deteriorated relations between
the governors and the people had reached a point where they each mis-
trusted the others' motives. "Governors in the colonies," he wrote:

could not dispense with communicating the state of their
governments to the king through his ministers. The facts
spoke for themselves . . . the plain narratives . . . were
nevertheless pronounced misrepresentations with a view to
bring[ing] on vindictive measures, and to increase a flame
in the colonies, which, in truth, it was the interest of the
governors, beyond that of all other men, to extinguish.4l
Against this background, the final years of the colonial period saw the
development of attitudes toward the executive that carried over into
the Revolutionary state constitutions.

One dispute which touched off a major discussion of the gov-
ernor's power was Hutchinson's decision to move the assembly from Boston
to Cambridge on orders from the Crown. When a similar dispute arose in
Governor Burnet's administration, the council sided with the governor.
In the dispute with Hutchinson, "the council had become equally zealous
with the house, not only in declaring against the authority of the
king's instructions, [especially] when they did not correspond with his

own judgment."42

From this time on the governor stood isolated from
the other two branches of the Massachusetts government as they vented
their wrath on him for Parliament's actions.

The colonists' objection to Hutchinson's removal of the assem-
bly from Boston rested on two arguments: that it was contrary to the

charter and that it violated the laws of the province. While they

 

4'Ibid., p. 191.

42Ibid., p. 215.

191

admitted that the charter was silent on where the assembly was to meet,
they thought it a breach of the charter that Hutchinson should follow
the king's instructions, since they assumed that it was not the king's
pleasure, but "a deep-laid and desperate plan of imperial despotism

. for the extinction of all civil liberty" by the ministry for
American affairs. Even if it was the king's pleasure, the grant to the
governor in the charter of "'the sole power of dissolving, &c.' is
devolved entirely 'upon,‘ and exclusively vested 'in the governor.'"
Since the governor has the sole power, the Crown cannot force the gov-
ernor to exercise it by an instruction.43

The colonists took pains to point out that they would like to

have seen the Crown lawyers' opinion of the case, but were emphatic
about their right to determine whether their charter was violated. "As
we always expect to defend our own rights and liberties, so we are unal-
terably fixed to judge for ourselves of their real existence, agreeable
to law." Moreover,

let it be recorded, that we enter upon this task, protesting

against the pretended right or power of any Crown lawyer, or

any exterior authority upon earth, to determine, limit, or

ascertain all or any of our constitutional or charteral (sic),

natural or civil, political or sacred, rights, liberties,

privileges, or immunities.
With that statement they launched into an extended discussion of the
Crown's prerogative,

a topick too delicate and sacred to be profaned by the pen of

a subject; that it was ranked among the arcana imperii; and

like the mysteries of the bona gee, was not suffered to be
pried into by any but such as were initiated in its service:

 

43Ibid., Appendix R, p. 372.

192

because, perhaps, the exertion of the one, like the solemenities
of the other, figuld not bear the inspection of a rational and
sober inquiry.

The Americans contended that the Crown's prerogative was sub-
ject to the limitation of law. As only a third of the total legislative
power, it was "intrusted with the execution of laws already in being."
As the law was the measure of the king's power, it was also the measure
of the

subject's obedience: for as the laws assert and bound the just

rights of the king; so they likewise declared and maintained

the rights and liberties of the people: hence it is adjusted

law, that all prerogatives must be for the advantage and good

of the people; otherwise, such pretended prerogatives are not

to be allowed by law.
They cited Sir Henry Finch, lawyer to Charles I, who defended the pre-
rogative as the power to do those things "'that are not injurious to
the subject; in them all it must be remembered that the king's preroga-
tive stretcheth not to the doing of any wrong.'" Finally, they cited
their own lawbook definition of prerogative, which was

'that discretionary power of acting for the publick good,

where the positive laws are silent;--and if this discretionary

power be abused to the publick detriment, such prerogative

is exercised in an unconstitutional manner.‘

Since no one had argued what good would come from removing
the assembly from Boston, the colonists contended that its removal vio-
lated prerogative law as they had defined it. Moreover, even waiving

provincial law as to the seat of government, "the holding [of] the

 

44

Ibid.
45Ibid., pp. 373-374.

193

general court, from its ancient and proper station, is unwarrantable,
unconstitutional, illegal, and oppressive." Therefore, they concluded,

the prime and only reason which originated all law, but more

particularly and expressly the prerogative, was the general

emolument to the state; and, therefore, when any pretended

*prerogatives do not advance this grand purpose, they have no

legal obligation; and when any strictly just prerogatives are

exerted to Hromote any different design, they also cease to

be binding. 5

In summary, the colonists viewed this incident as the latest

example of ministerial abuse of power.

We have, for a long time, beheld, with grief and astonishment,

the unwarrantable practice of ministerial instructions to the

commander-in-chief of this province. . . . Such an enormous

stretch of power, if much longer unchecked, will eventually

annihilate the_essentials of all civil liberty.
Furthermore, they requested their representatives to check into the
state of criminal prosecutions in the executive courts, I'and endeavor
to revive the ancient method of appointing the attorney-general, agree-
able to the charter."47

The council joined the House of Representatives in denouncing

Hutchinson's action. They supported the assembly's contention that the
power to remove the assembly from one place to another rested with the
colonial executive alone, since it was inherent in the power to prorogue
and adjourn the assembly. Moreover, the king was too far away to know
the circumstances of how this power should be used. The council's let-
ter reiterated the assembly's arguments and discussion of the preroga-

tive, adding that so long as the

 

46Ibid., p. 374.

47Ibid., p. 375.

194

prerogative is exercised for the real good of the community,
the community must feel and will always acknowledge, it is
seldom examined, whether that exercise be strictly legal or
not: but that omission does not take away the right of
examining8 whenever prerogative is exercised for a different
purpose.

Moreover, the governor's instructions were subordinate to the
charter, the council contended. To be otherwise, "the charter would be
annihilable at pleasure." Since the charters granted perpetual rights
and privileges, the Crown was not able to abridge them with instructions
to the governor. Hutchinson replied that if he had removed the assembly
from Boston on his own, he would not be obliged to tell them his rea-
sons.

You admit it to be a part of the prerogative, that I should
convene the court at such time and place as I judge to be
most fit, you have a reserve, for you have explained away all
the prerogative, and removed it from the king and his repre-
sentative, and have made yourselves and the people judges
when it shall be exercised, and in the present case have 49
determined that it is not fit that it should be exercised.

The matter did not die there, but was revived when Hutchinson
responded to the assembly's arguments in his next speech. He reiterated
his duties under the charter and noted that

instructions relative to any matter not unconstitutional must
be obligatory upon me. My commission makes them so. I have

no authority to act, but what I derive from this commission,

and I must act in conformity to my instructions, or not at all.50

The assembly countered by citing John Locke on the relation-

ship of the executive and legislative power to the people with respect

 

48 d., Appendix S, p. 381.

49Ibid., p. 383.

Ibi

50Ibid., p. 384.

195

to who was to judge the proper use of the prerogative. They noted
Locke's answer that

'between an executive power in being with such a prerogative,
and a legislative that depends upon his will for their con-
vening, there can be no judge upon earth, as there can be
none between the legislative and the people, should either
the executive or legislative, when they have got the power
in their hands, design or go about to enslave or destroy
them.

The only remedy left to the people is "an appeal to heaven," though the
assembly was quick to add, that they would "by no means be understood
to suggest, that this people have occasion at present to proceed to such
extremity." Moreover,

we shall never except to the proper use of the prerogative.

We hold it sacred as liberty of the subject. But every abuse

of it will always be excepted to, so long as the love of

liberty or any publick virtue remains.
When the prerogative was abused, "the house will not fail to judge for
themselves of the grievance, nor to exert every power with which the
constitution hath intrusted them, to check the abuse of it, and redress
the grievance."51

The assembly concluded their response to Hutchinson reciting

the encroachments on the Massachusetts charter.

Courts of admiralty extended from the high sea whereby the

compact in the charter they are confined, to numberless

important cases upon land; multitudes of civil officers,

the appointment of which is by charter confined to the

governor and council, sent here from abroad by the minis-

try;--a revenue, not granted by us, but torn from us;--
armies stationed here without our consent;--and the streets

51Ibi ., p. 388.

196

of our metropolis crimsoned with the blood of our fellow
subjects,

plus numerous other grievances too many to "be enumerated."52
Hutchinson ended the debate over his authority by attacking

the premises of the colonial argument.

You speak of times when there has been a corrupt and

profligate administration, of daring encroachment of wicked

ministers, of devices of ministers of state; and you suppose

instructions to governors to acts of ministers, and not of

the king; . . . It may be presumed that you would have not

done this, if you had known it to be an order from his majesty:

I wish, however, that you had spared this coarse and indecent

epithet.
He said he knew of no "ministerial instructions" and that the king was
well aware of the happenings in America. Furthermore, he accused the
assembly of quoting Locke out of context and was at a loss to see why
the people would have to appeal to heaven. Moreover, he noted that the
assembly had used the term sole instead of full, as listed in the char-
ter, to refer to the governor's power of proroging and adjourning the
assembly, and could not understand how they could adduce that this "was

granted to the governor in favour tthhe commons." "I am not contend-

 

ing,“ he said,
for a right to do wrong, and I am very willing to understand
the maxim, that his servants alone shall be punished for the
wrong they do, and not avail themselves of a royal order or
instruction for their justification.

Until he understood that there was an encroachment on the charter, the

assembly's claim that they had the right to judge an abuse of prerogative

 

521bi

G.

., p. 393.

197

was unanswerable. "In all controversies, as soon as one party is
allowed to be the sole judge, the knot is cut, and there must be an
end of strife."53

This controversy is quoted at length to illustrate several
points. First, the colonies viewed the charter as the source of execu-
tive power, which was a fixed grant of authority, unchangeable except
by due process in the English courts. The authority it granted to the
governor took precedence over any additional instructions the Crown
might add at a later time. Moreover, what discretion the governor
possessed as a result of his prerogatives could only be exercised for
the well-being of the community, or at least not against the interests
of the province. The colonial assembly would be the judge as to whether
the prerogative was properly used. In short, the assembly was express-
ing the culmination of a century of precedent and tradition by which
the colonists fashioned the ways and means of colonial revenue to make
an appointed governor accountable to the people by using his salary to
curb the use of his power to carry out his authority.

Secondly, British attempts to raise revenue for the payment
of royal officials' salaries was a direct attack on the democratic
colonial government. Before England could enforce its long-standing
mercantile policies, it had to pry its officials away from their depen-
dence on the assembly. The more England stepped up its efforts to
accomplish this, the more strongly the colonists resented British

interference. Hence, the assault on the assemblies' power backfired,

 

53Ibid., pp. 394-399.

198

because the more pressure placed on the assembly the more the Americans
resisted, causing the political situation to deteriorate so that the
royal agents in the colonies were rendered increasingly helpless, especi-
ally the governor, who was the most prominent symbol of British autho-
rity within the colony. The colonists, at this stage, attacked
Parliament and the Crown's ministers, while appealing to the king for
protection of their rights against parliamentary usurpation. Gradually,
as George III failed to take those steps the colonists thought necessary
to protect their rights, he came under the same attack.54
Finally, British attempts to strengthen the governor's autho-
rity were met by colonial arguments about the governor's accountability
to the people and the provincial interests. By defining the scope of
the prerogative in a limited sense, i.e., making it subject to existing
law, and its exercise to the "good of the community," the assembly could
then argue that they had the power to judge its abuse as representatives
of the people. Thus, the governor came to be regarded less as an agent
of the Crown than an executive subject to the rights and limitations
within the colonial charter. When prerogative and charter conflicted,

the charter would take precedence. Where they did not conflict, and

 

54See Stella F. Duff, who based her work on Virginia's experi-

ence, argued that the colonists were blaming George III in the 1760's.
"The Case Against the King: The Virginia Gazettes Indict George III,"
William and Mary_Quarter1y, 3rd ser., VI (July, 1949), pp. 383-397.

For other aspects of this argument see Pauline Maier, "John Wilkes and
American Disallusionment with Britain," William and Mary Quarterly,

3rd ser., XX (July, 1963), pp. 373-395. Also see Jack P. Greene, ed.,
The Nature of the Colonial Constitutions: Two Pamphlets on the Wilkes
Fund Controversy in S. Carglina by Sir Egerton Leigh and Arthur Lea
(Columbia, S. Carolina, 1970).

 

 

 

 

199

the prerogative was deemed to be a threat to colonial interests, the
assembly, as representatives of the people, would determine its proper
use. Either way, by the end of the 1760's the governor was considered
by Americans to be an executive confined and limited to exercising his
powers in the colonial interests. If, for example, a governor annually
convened a general assembly, and shortly before or after the election
of councillors, dissolved the assembly, this would be an abuse of the
prerogative. That the assembly was called to meet at Cambridge was, in
the assembly's opinion,

an abuse of the power vested by charter in the governor of this

province, for him, from time to time, unnecessarily, or merely

in obedience to an instruction, without exercising that judg-

ment and discretion of his own, which by charter he is empowered

and is duty bound to exercise for the ggod of the province, and

not for the preservat1on of h1s place.

In the final analysis, the governor's accountability rested
on one check, the assembly's control of his salary. "The safety of the
people requires that every power should have a check,” the assembly
wrote. In the case of convening, adjourning, proroguing, and dissolving
the assembly this power was vested in a governor, who resided in the
province, "and is and ought to be supported by the free grants of the
people." Since the king gave the governor that power to exercise "as
he shall think fit or judge necessary," for the Crown to interfere by
directing the governor to use it in a prescribed manner "is clearly an

attempt to infringe and violate the charter." Thus, the Crown's inter-

ference was deemed an effort to undermine the popular check on the

 

55Hutchinson, History of Massachusetts, III, Appendix T, pp.

 

400-401.

200

executive power, which led the assembly to conclude that if this
grievance was not remedied soon, "it will then become plain and obvious
that the power vested in the governor by the charter for the good of
the province is willingly perverted to a very different end."56
As the constitutional battle lines became more closely drawn,
the governor felt increasing pressure from his dual role as colonial
chief executive and chief defender of the prerogative. In the past,
the mitigating influences of British neglect, informal relations via
agents in the home government, and a general laxness in enforcement
procedures prevented a total breakdown of Anglo—American relations.
However, as the British increased their pressure on the governor to
uphold their interests, the colonists responded with counter-pressure
to maintain their hold over him to protect their own interests. Hutchin-
son, caught between, noted that "His majesty expects from me, on the
one hand, that I make no invasion upon any of your rights; but then,
on the other hand, he enjoins me to give up no part of his prerogative."57
At the heart of the problem was the perennial problem of who was to pay
the governor's salary, which came to a head two years later.
The Crown finally moved to pay the governor's salary in 1772,
and, as expected, the Massachusetts assembly protested that it was
another infringement on their rights. In July of that year the assembly

outlined their arguments by noting that "the support of his majesty's

governor of the province [was] . . . the most important part of the

 

56Ibid., p. 401.

_

57Ibid., p. 403.

201

support of his majesty's government." The fact that the governor
received his support "independent of the grants and acts of the general
assembly, is a dangerous inovation; which renders the governor not
dependent on the people, as the charter prescribed." Therefore, it
altered the charter which the colonists agreed to in 1691 without the
due process of law in the courts the colonists were entitled to receive.
Moreover, it destroys that "mutual check and dependence which each
branch of the legislature ought to have upon the other, and the balance
of power which is essential to all free governments." This change, they
concluded, was an important alteration of the constitution, and "exposes
the province to a despotick administration of government."58
Hutchinson responded by saying that the colonial assumptions
about the origins of the charter were in error, noting that the colonies
were independent states, but subordinate units like corporations. More-
over, he reiterated the British conception of the check and balance
theory which required the concurrence of the three branches, i.e.,
governor, council, and assembly, for a governmental action to be valid.
However, "when any one branch withholds this concurrence, it is properly
a check upon the other two." He then pointed to the governor's depen-
dence upon the assembly as destroying the independence of the three
branches, "which is the glory of the English constitution, and which
will not admit that any one should be compelled by the other to any act
against its judgment." Since the governor could not violate the freedom

and independence of the council or assembly, "is it not reasonable that

 

58Ibid., pp. 404-405.

202

the governor should be entitled to the like share of freedom and
independence, in the exercise of his judgment?" Furthermore, he con-
tended,

that independence, which cannot consist with a free government,

and which the English constitution abhors, and which may pro-

perly be termed despotism, is a freedom in those who are

vested with executive and judicial powers, from the restraint

of known established laws, and a liberty of acting according

to their own will and pleasure.
Irrespective of who pays the governor's salary, restraints on this
independence will remain the provincial constitution, he concluded.59

Hutchinson then cited the civil lists granted to the Crown

for the duration of a monarch's reign as a possible course of permanent
revenue for the governor. He noted that he had "reason to think, that
if the governors of this colony [can] may be made equally secure of an
adequate provision for their support, the Crown will never interpose."
The colonists would have nothing to fear because

so tender has been our most gracious sovereign of the rights

of his subjects, that although I should humbly hope for royal

forgiveness, in the case of inattention to some point of no

great importance, which might affect the prerogative, yet I

may not expect ghe forgiveness of any willful envasion of

your liberties. 0

The colonists were not mollified with those words, especially

when a short time later an attempt was made to pay the salaries of the
judges. Nothing Hutchinson could say would quiet the colonists fears.

They are more and more convinced of the designs of administra-

tion totally to subvert the constitution, and to introduce an
arbitrary government into the province: they cannot wonder

 

591bid., p. 408.

60Ibid.. pp. 408-409.

203

that the apprehensions of the people are thoroughly awakened;

they wait with impatience to know whether the justices will

:Etgzly1geggfigxezfig.go accept of support (sic) in a manner

Before matters could settle, Parliament passed the Tea Act,
which inflamed an already volatile political situation, since the colo-
nies believed it to be a devious way to impose taxes. The Massachusetts
response was the famous Boston Tea Party. This, in turn, led Parliament
to pass a series of acts designed to punish Boston and destroy the heart
of their imperial problem, colonial democracy. The Port Act, Government
Act, Justice Act, Quartering Act, and the Quebec Act, better known as
the Coercive or Intolerable Acts, evoked a spirit of unity and resistance
throughout the colonies. Soon the situation degenerated to the point
where "all legislative, as well as executive power, was gone, and the
danger of revolt was daily increasing."62
The commemoration of the Boston Massacre gave rise to many

discussions of the colonial constitution and the need for checks on the
arbitrary use of the executive power. Dr. Joseph Warren compared the
similarities of the Massachusetts charter to the British constitutional
formulation of monarchy, aristocracy, and democracy, noting especially
that the colonial executive, like the king, "is supposed to have a just

sense of his own interest, which is that of all the subjects in general.“

Therefore, his assent is required to all acts of the legislature based

 

6'Ibid.. p. 278.

62Ibid., p. 320.

204

63

on the colony's best interests. Dr. Benjamin Church noted,

as in every government there must exist a power superior to

the laws, viz, the power that makes those laws, and from which

they derive their authority: therefore, the liberty of the

pe0ple is exactly proportional to the share the body of the

people have in the legislature; and the check placed in the

constitution, on the executive power.
John Hancock raised the old salary dispute noting that the

people will never be enslaved with their eyes open. The

moment they knew that the governor was not such a governor as

the charter of the province points out, he lost his power of

hurting them. They were alarmed; they suspected him, have

guarded against him, and he has found that a wise and a brave

people, when they kgow their danger, are fruitful in expedi-

ents to escape it.6

Pamphleteers, frustrated and enraged by recent events, increased

their discussions of the deteriorating political situation. In 1773
Benjamin Franklin wrote an essay entitled "Rules By Which A Great Empire
May Be Reduced To A Small One, . . ." which summarized, in part, colo-
nial sentiment toward the provincial governor. After listing the colo-
nial grievances created by Parliament's legislation since the Stamp Act,
he turned his attention to the royal officials in the colonies. He
wrote that remote provinces must have governors and judges to represent

the "delegated parts" of the monarchy. However, "much of the strength

 

63Joseph Warren, "Oration Delivered at Boston, March 5, 1772,"
reprinted in Principles and Acts of the Revolution in America, H. Niles,
ed. (Baltimore, 1822), p. 21.

64Benjamin Church, "Oration Delivered at Boston, March 5,
1773," reprinted Niles, ed., Principles and Acts . . . , p. 36.

65John Hancock, ”Oration Delivered at Boston, March 5, 1774,"
reprinted in Niles, ed., Principles and Acts . . . , p. 41.

205

of government depends on the opinion of the people; and much of that
opinion on the ghgige_of_ruler§_placed immediately over them." More-
over, if the Crown sent "wise and good men for governors, who study the
interests of the colonists, and advance, their prosperity, they will
think their King wise and good, and that he wishes the welfare of his
subjects." Therefore, he cautioned England, "be careful whom you recom-
mend for those offices." Franklin continued in a sarcastic tone by
saying, "if you can find prodigals, who have ruined their fortunes,
broken gamesters of stockjobbers, these may do well as governors, for
they will probably be rapacious, and provoke the people by their extor-
tions." Furthermore,

wrangling proctors and pettifogging lawyers, too, are not amiss;

for they will be for ever disputing and quarrelling with their

12:33.3,pill'ifiié‘iiaa,‘§.”$5’éi'tfifleieili'é'gsbe 19......“ ”“9

Franklin's essay encouraged England to continue to ignore

American complaints of "mal-administration, oppression, or injustice."
Added to long delays, "enormous expence, and a final judgment in favor
of the oppressor," England would prevent "future complaints" and "Gov-
ernors and judges will be encouraged to farther (sic) acts of oppression

and injustice; and thence the people may become more disaffected, and

at length desperate." Finally,

 

66Benjamin Franklin, "Rules By Which A Great Empire May Be
Reduced To A Small One Presented To A Minister, When He Entered Upon
His Ministry, 1774," reprinted in The Political Thought of Benjamin
Franklin, Ralph Ketcham, ed. (Indianapolis, 1965), pp. 257-258.

 

206

when such Governors have crammed their coffers, and made
themselves so odius to the people that they can no longer
remain among them, with safety to their persons, recall and
reward them with pensions. You may make them baronets too,
if that respectable order should not think fit to resent it.
All will contribute to encourage new governors in the ggme
practice, and make the supreme government, detestable.

 

At a later point in the essay, Franklin noted the perennial
problems of the governor's salary.

If the people of any province have been accustomed to support
their own Governors and Judges to satisfaction, you are to
apprehend that such Governors and Judges may be thereby influ-
enced to treat the people kindly, and do them justice.

For that reason, he wrote, England desired to apply

part of that revenue in larger salaries to such Governors and
Judges, given, as their commissions are, during your pleasure
only; forbidding them to take any salaries from their pro-
vinces; that thus the people may no longer hope any kindness
from their Governors.6

 

Franklin concluded his essay by criticizing the appointment
of a commander-in-chief in the provinces superior to the civil magis-
trates. "Lastly," he wrote, "invest the General of your army . . .
with great and unconstitutional powers and free him from the controul
(sic) of even your own Civil Governors." If England followed these and
the other rules he laid down, "you will that day (if you have not done
it sooner) get rid of the trouble of governing [the colonies], and all
the plagues attending their commerce and connection from henceforth

and forever.69

 

207

Thomas Jefferson picked up the theme and reiterated the

American concept of executive power. The king, he wrote,

is not more than the chief officer of the people, appointed

by the laws, and circumscribed with definite powers, to assist

in working the great machine of government, erected for their

use, and consequently subject to their superintendence.
However, the recent policies of England had created "a new executive
power, unheard of till then, that of a British parliament," which, in
its attempt to shut down Boston's ports, gave the Crown power to open
"two wharfs . . . when his majesty shall think pr0per." This exception,
he noted, "seems to have been thrown in for no other purpose than that
of setting a precedent for investing his majesty with legislative
powers."70

Later in the same essay, Jefferson discussed the king's I'devi-

ations from the line of duty." The British and colonial constitutions,
he wrote, give the Crown the right to veto any law passed by the other
two branches. However, since the monarchs,

conscious of the impropriety of opposing their single opinion

to the united wisdom of two houses of parliament, while their

proceedings were unbiased by interested principles, for several

ages past have modestly declined the exercise of this power in

that part of his empire called Great Britain.
Yet, Americans had seen "the wanton exercise of this power . . . on the
laws of the American legislatures . . . for the most trifling reasons,

and sometimes for no conceivable reason at all.71

 

70Thomas Jefferson, "A Summary View of the Rights of British
America, . . ." (Williamsburg, 1774), reprinted in Tracts of the Ameri-
can Revolution, 1763-1776, Merrill Jensen, ed. (Indianapolis, 1967),
pp. 258-267.

71

 

 

Ibid., pp. 268-269.

208

Moreover, the power to dissolve the legislature was carried
"beyond every limit known, or provided for, by the laws," Jefferson
argued. This led to a situation where the "feelings of human nature
revolt against the supposition of a state so situated as that it may
not in any emergency provide against the dangers which perhaps threaten
immediate ruin." So long as the bodies "to whom the people have dele-
gated the powers of legislation" were dissolved, "the power reverts to
the people, who may exercise it to [an] unlimited extent, either assem-
bling together in person, sending deputies, or in any other way they
may think proper."72
Furthermore, Jefferson contended, subjection of the civil

authority to the military was unconstitutional. Can the monarch "erect
a power superior to that which erected himself?" he asked. "He has done
it indeed by force; but let him remember that force cannot give right."
Then Jefferson laid down a challenge and warning to George III.

Let not the name of George the third be a blot in the page of

history. You are surrounded by British counsellors, but remem-

ber that they are parties. You have no ministers for American

affairs, because you have none taken from among us, nor amen-

able to the laws on which they are to give you advice. It

behooves you, therefore, to think and to act for yourself and

your people.
Moreover, he contended, ”the whole art of government consists in the
art of being honest. Only do your duty, and mankind will give you

credit where you fail."73

 

72Ibid., pp. 271-272.

73Ibid., p. 275.

209

Jefferson concluded his essay by noting that

these are our grievances which we have thus laid before his

majesty, with that freedom of language and sentiment which

becomes a free people claiming their rights, as derived from

the laws of nature, and not as the gift of their chief

magistrate.
In short, Americans believed that "kings are the servants, not the pro-
prietors, of the people." Thus, Jefferson reiterated one of the funda-
mental points of American executive theory that all executive power was
ultimately derived from and was responsible to the people irrespective
of its agent be he governor or monarch.74

The same year Daniel Leonard and John Adams began to publish

installments of their essays "Massachusettensis and Novanglus," which
further amplified these sentiments. In one segment Leonard noted that

it was not the person of a Bernard or Hutchinson that made

them obnoxious; any other governors would have met with the

same fate, had they discharged their duties with equal fidel-

ity; that is, had they strenuously opposed the principles

and practices of the whigs.
When they found that the government would not support them, they wrote
home for support from the Crown. Had matters been attended to then,
"we [would have] . . . now been as happy a people as good government
could make us." Though Hutchinson was "amiable and exemplary in private
life" and

his abilities and integrity, added to his thorough knowledge

of the province, in all its interests and conexions (sic),

were insufficient in this case, the constitution was gone,

though the ancient form remained; the spirit was truly repub-
lican.

 

74

210

Slowly the poison of "disaffection" spread throughout the body
politic.75
John Adams compared the strength of the executive branch of
government to the legislative prior to the Stamp Act as being weighted
in favor of the former. "The art and power of governors, and especially
the negative, have been a stronger motive on the one hand, than the
annual election of the two houses on the other hand." However, popular
pressure afterwards slowly brought the council over to the side of the
assembly. He concluded that the council was not to blame for their
previous support of the governor, because
if those, over whom the governor had the most absolute authority
and decisive influence, refused obedience, does not this show
Sfifiofliiilitififiiidpllei'11.115322;"32.13?.3“§.2?”$EE§3516°' that
The pressure on Governor Hutchinson reached the point where
he wanted to end his term as governor, but was prevented from doing so
by the death of the lieutenant governor. If he left for even "a temp-
orary relief . . . from so heavy a burden as that of being at the head
of government," the council would become the executive power. "This
consideration alone," he wrote, "was sufficient to cause him to lay

aside all thought of quitting his station, until another lieutenant-

governor should be appointed." Soon he received notification that

 

75Daniel Leonard and John Adams, "Massachusettensis and
Novanglus," reprinted in Tracts of the American Revolution, Jensen,
ed., pp. 291-293.

76Ibid., p. 331. Also see Francis G. Walett, "The Massachus-

etts Council, 1766-1774; The Transformation of a Conservative Institu-
tion," William and Mary Quarterly, 3rd ser., VI (October, 1949), pp.

605-627.

211

General Gage would succeed him until the political problems were
settled, whereupon “it was the king's intention that he should be rein-
stated." However, that chance never came, since, as he reported, the
people had on their own authority formed a legislative body, and "from
that time all pacifick (sic) measures for restoring their former depen-
dence upon the supreme authority of the British dominions, were in vain
and to no purpose."77
The impact of events in Massachusetts had spread to other
colonies in varying degrees. The failure of the British official to
head off a confrontation by addressing themselves to the American
grievances widened the split between governors and the assemblies.
Governors who tried to squelch the growing resentment against England
by dissolving the assemblies found to their dismay that the colonists
would continue to meet in the extra-constitutional provincial assemblies.
Without the assembly the governor could only rely on his powers as
commander-in-chief and these were undermined by a hostile militia.
Since the colonial constitution depended upon the governor to
activate its authority, the colonists looked first to the governor to
carry their grievances to the Crown. However, when the governors'
opinions differed with the colonists, the latter were forced to seek
other means of redress. Samuel Adams noted the dilemma in a letter to

Governor Hutchinson in January, 1774. He wrote that

 

77Hutchinson, History of Massachusetts, III, 329-330.

 

212

it has been the practice . . . for the Governor . . . of this
province . . . at all times to correspond with ministers of
State and persons of influence . . . in the nation, in order
to concert and carry on such measures of the British admini-
stration as have been deemed by the Colonists to be grievous
to them, [so] it cannot be thought unreasonable . . . for
the Colonists to correspond with their agents as well as with
each other, to the end that their grievances may be so ex-
plained to His Majesty as that, in his justice, he may afford
them necessary relief.
This justified the establishment of extra-legal bodies, Adams thought,
to carry out the function of government when the governor refused to
do so in a manner consistent with the views of the colonists. The
mechanism was the provincial congress and its various committees, which
are discussed in detail in another chapter.

The provincial congresses with their committees of correspon-
dence and safety were in effect setting up a dual form of government
parallel to colonial form. As the dispute worsened the latter form
came to exercise the functions of government, making the former all but
irrelevant. General Gage's letters chronicled this change starting in
September, 1774. Then he wrote that "Civil Government is near its end"
and recommended that "a very respectable force should take the field."
Two months later he reported that the colonists were about "to form as
complete a government as they can." Moreover, he continued, he would
"not be surprised . . . if persons should be authorized . . . to grant

Commissions and assume every power of a legal government." The follow-

ing month he concluded that the colonists' aim was "to usurp the

 

78"Instructions from the Provincial Legislature of Virginia,
Meeting at Williamsburg to its Delegates to the First Continential,
1774," reprinted in Niles, Principles and Acts, p. 275.

 

213

Government entirely as the surest means to procure both money and
troops by their own authority." Within six months Gage's fears were
confirmed as the colonies began issuing resolutions asserting that

the Provincial Congress, under the Continental Congress, is

invested with all legislative and executive powers within

their respective provinces and . . . no other legislative

or executive paper does . . . exist at this time in any of

these Colonies. 9

As these dual forms of government began to solidify, governors

expressed their growing helplessness. Referring to activities of the
provincial congresses, Georgia's Governor Sir James Wright observed that

As long as these kind[s] of summonses and meetings are suffered,

a private man takes upon him to summons (sic) a whole province,

to consult upon and redress public grievances, I apprehend there

will be nothing but cabals . . . and the peace of the Province

. . . continually is termed arbitrary and oppressive.
91f these calls and meetings are considered as illegal and improper,"
he concluded, "it will require the interposition of higher authority to
remedy the evil, for the Executive powers of government in the Colonies
are too weak to rectify such abuses."80

If a governor did manage to keep the affections of the colo-

nists during all the turmoil he was often criticized by his fellow
governors for making their job more difficult. One such case was Gov-
ernor Bull of South Carolina who refused to use harsh or retaliatory

tactics to force colonial compliance with British policy. His actions

 

79"Resolutions of the Massachusetts Provincial Congress, May
5, 1775," reprinted in Niles, ed., Principles and Acts, 118.

 

80Quoted in Margaret Burnham MacMillan, The War Governors in
the American Revolution (Gloucester, Mass., 1965), p. 19.

214

earned him a stinging criticism from neighboring Georgia Governor
Wright who wrote Lord Dartmouth in 1774 that

now again my Lord, as in the time of the Stamp Act, I am to
be Reflected upon and abused for opposing the Licentiousness
of the People and its (sic) thrown out 'Why should our Gov-
ernor do so and so, when the People in Carolina have gone

Greater Lengths than we have and the Governor has not taken

any notice of it.’81
In the end, however, the governors were fighting a losing
battle. Lieutenant Governor Golden of New York expressed the frustra-
tion of many British officials in America. He wrote that the selection

of delegates to the Continental Congress was

dangerous and illegal, but by what means shall Government
prevent them? An attempt by the power of Civil Magistrates
would only show their weakness and it is not easy to say upon
what foundation a military aid should be called in; such a
measure would involve us in troubles which it is thought much
more prodent to avoid, and to shun all extremeg while it is
yet possible things may take a favorable turn. 2

By October, 1775 the situation had deteriorated to the point
where Thomas Jefferson observed that "Not a governor of the Continent
has the real power, but some have the shadow of it,"83 three nmnths
before General Gage had come to the same conclusion. In all the colo-

nies, he said, "not one seems in a better situation than Another, and

Government can never recover itself, but by using determined Measures."84

81Quoted in Louise B. Dunbar, "The Royal Governors in the
Middle and Southern Colonies on the Eve of the Revolution: A Study in
hnperial Personnel," in The Era of the American Revolution, Richard 8.
Morris, ed. (New York, 1965), p. 257.

82Lieutenant Governor Colden to Lord Dartmouth, July 6, 1774,
reprinted in Peter Force, American Archives, 4th ser., I, 517.

83Journals of the Continental Congress, III, 482.

84Quoted in Dunbar, “The Royal Governors, . . ." p. 245.

215

Georgia Governor Wright summed up his and the other governors'
situations when he said that he was "a mere Nominal Governor" since
"the Powers of Government" had been removed from his hands and "Law and
Government . . . [was] nearly if not quite annihilated."85

From 1763 to the outbreak of the Revolution Americans per-
ceived their dispute to be primarily with England. The colonial gov-
ernors were not considered to be the chief targets but only the agents
in charge of enforcing policy though they often received the brunt of
American hostility. The failure of British officials to resolve Ameri-
can grievances caused the governors' power base to erode within the
colony. Since the provincial government was dependent on the governor
calling the legislature into action the governors often used this to
try to block or counter American reaction to British policy. The only
way the colonists could vent their frustration was through extra-
constitutional arrangements like the provincial congresses. The Ameri-
cans soon found that they could duplicate the governmental functions as
well under their own authority as they could under the previous provin-
cial constitutions. As discussed in a later chapter, many viewed this
as only a temporary phenomenon until the problems were resolved with
England and the governors were replaced with ones who would follow the
principles laid down in the colonial constitutions.

The continued failure of England to head off a confrontation
solidified this temporary form of government making the governors ir-

relevant. Thus, the royal governors still possessed significant

85Quoted, Ibid., p. 264.

216

constitutional grants of authority, but lacked the political power and
respect necessary to carry out their duties. Once the Americans saw
that the governor would be of no use in their effort to persuade England
to change its policy, the governor lost what little political power he
had left.

Historian Louise B. Dunbar's study of the middle and southern
governors on the eve of the Revolution provides an interesting insight
into this period. She noted that all the governors suffered large
property losses, though none lost his life, which was amazing in a
revolutionary situation. Her explanation was the British choice of
personnel and the American reaction to their position. The governors
she studied possessed military training, "Some degree of prestige, with
notable connections in Great Britain or America, or some useful govern-
mental experience" all calculated to win American acceptance. Moreover,
since most had some degree of wealth they had much to lose in the event
of an armed insurrection. However, each of them inherited burdens
generated by the past conflicts between governor and colonists. Addi-
tionally, each was deeply involved in public and private affairs to the
point that few had the time nor the desire to lobby thoughtfully for
fundamental constitutional change.86

On the other hand, the provincial political leaders realized
that the governor was merely an imperial agent and not the author of

those measures which the colonists found objectionable. In short,

86

O.

Ibi ., p. 267.

217

this made possible an absence of vindictiveness toward

representatives of the old regime, unusual in revolution.

Heads did not roll: instead, the royal governors were at

best treated with continued deference and at worst sub-

jected to petty insults or temporary imprisonment until

they departed from the scene incidental casualties in the

collapse of the Old Empire.87

The Americans during this period articulated their theories

on Government and especially on the executive. They contended that
they were Englishmen with all the rights and privileges which belonged
to any English citizen. Moreover, the charters granted to the colonies
were embodiments of their rights as colonists and could not be changed
by the Crown without due process of law. While the colonists recognized
that the Crown and his agent, the colonial governor, possessed certain
prerogatives, they contended that they were subject to the limitations
of the law and could only be exercised to benefit society. Furthermore,
the eXecutive power was limited by the English constitution and the
colonial charter or constitution. The king could not issue instructions
to the governor which violated either of these documents. These senti-
ments were outlined in a report by James Wilson to the members of the
Continental Congress in 1776. He wrote that

all Power was originally in the People--that all the Powers of

Government are derived from them--that all Power, which they

have not disposed of, still continues theirs--are Maxims of the

English Constitution, which, we presume, will not be disputed.

The Share of Power, which the King derives from the People, or,

in other Words, the Prerogative of the Crown, is well known and

precisely ascertained: It is the same in Great Britain and in

the Colonies. The Share of Power, which the House of Commons

derives from the People, is likewise well known. The Manner in
which it is conveyed is by Election. But the House of Commons

 

87Ibid., p. 268.

218

is not elected by the Colonists; and, therefore, from them
that Body can derive no Authority.88

Benjamin Franklin neatly summarized the American attitude
toward the various levels of executive power when he wrote that

. all the colonies acknowledge the King as their sovereign;
his Governors there represent his person: Laws are made by
their Assemblies or little Parliaments, with the Governors'
assent, subject still to the King's pleasure to confirm or
annul them: Suits arising in the Colonies, and difference
between Colony and Colony, are determined by the King in Coun-
cil. In this view, they seem so many separate little states,
subject to the same Prince. The sovereignty pf_§pe_King is
therefore easily understood. . . .

The sovereignty of Parliament in the empire, he contended, was limited

to the power "to regulate its general commerce."89

Thus, the Crown was
the uniting force which held together the empire, but the king was
limited by the English constitution and was required to protect the
rights of all English subjects. The governor, as his representative,

was expected to do the same.

 

88James Wilson, "Draft of An Address of the Continental Con-
gress to the People of the United States, 1776," reprinted in American
Historical Review, Vol. I, July, 1886, 686-687.

 

89Benjamin Franklin to Lord Kames, April 11, 1767, Franklin,
Works (Bigelow, ed.), (New York, 1904), IV, 285-286.

CHAPTER V

AT THE POINT OF UNION:

The Idea Of A Continental Executive 1760-1781

The French and Indian Wars during the middle of the eighteenth
century forced the British to reassess the whole relationship between
England and the American colonies. This led to an attempt to reorganize
the empire, which raised the whole question of colonial union but in a
context quite different than that prior to 1760. This chapter examines
the plans and proposals for colonial union after 1760 through the
establishment of the Continental Congress to the year 1781. In that
period the Americans were forced to unite and face the problems of cen-
tralized leadership during the most difficult period of American history
to that date.

By the 1760's a new series of schemes for colonial union were
offered to settle the deteriorating relations between England and the
colonies. Dr. Samuel Johnson outlined a comprehensive program of colo-
nial reorganization. He contended that all the colonies should have
the same type of government, imposed by an act of Parliament, designed
to reduce colonial democracy, which, he wrote was

pernicious to/them, as the people are nearly rampant in their
high notions of liberty, and thence perpetually running into
intrigue and faction and the rulers so dependent on them that

they in many cases, are afraid to do what is best and right
for fear of disobliging them.

219

220

Moreover, since the king was "the head of the Legislature and the
fountain of all executive power," he ought to appoint all colonial gov-
ernors. Once that was accomplished, then unite the colonies under
some gentlemen of great dignity and worth, [who] should be
appointed by the King to be in the nature of a Vice Roi (sic),
or Lord L[ieutenan]t to reside at New York, as being best
situated, to preside over and inspect the whole, with a com-
mission to continue only for three years.
He was to be assisted by a council composed of a representative from
each colonial council and assembly who had the power to discuss and
pass on matters of "war, trade, &c." Also they would have the power to
confirm or veto "the Laws passed in each government, and the result to
be confirmed or negatived by the King." The only problem he foresaw
for such a union was the possibility of "an affection of independency"
on the part of the colonies. He did not think that the colonies could
overcome the barriers of distance between them to pose that much of a
threat to British interests.1
The end of the French and Indian Wars and the acquisition of
Canada by the British led colonial policy-makers to undertake a major
reorganization of the empire. As discussed previously, the new policies
touched off a storm of protest throughout the colonies, which culminated
in a series of American-initiated attempts at union. The first was the

Stamp Act Congress, which met in 1765.2 Though it did not propose a

continental plan of government, it was instrumental in helping to focus

 

1New York Colonial Documents, VII, 441.

2See Edmund S. and Helen M. Morgan, The Stamp Act Crisis:
Prologue to Revolution, rev. ed. (New York, 1963).

 

 

221

attention on the need for a workable union among the colonies. Prior
to 1763 the vast majority of proposals for union were concerned with
the military aspect since that was the overriding concern, and the fact
that civil union could not be accomplished without a massive restructur-
ing of colonial governments which would in all likelihood violate the
colonial charters. After 1763 England found it almost impossible to
alter any of the colonial traditions or institutions without causing a
far-reaching crisis within the empire. Any effort to consolidate the
colonies under one government was therefore not in the interests of
English colonial policy. As Governor Bernard summed up the situation
in the 1760's:

There is in my opinion no System of Government in North America

that is fit to be made a module of. The royal Governments are

faulty in their constitution. . . . If therefore there should

be a new establishment of the government in North America [it]

should be upon a true English constitutional bottom, it must

be upon a new plan. . . .

As hostilities between England and the colonies increased
after 1763, the office of the British commander-in-chief began to take
on added significance. This office was originally created to coordinate
American military actions in the French and Indian Wars, but took on
the responsibility of overseeing Indian affairs and supervising the

remaining British military units in America. Moreover, the office was

destined to play a significant role in post-war politics since the

 

3Governor Bernard to Lord Barrington, December 15, 1761, The
Bernard-Barrington Correspondence, 1760-1761, ed., E. Channing and ATTC.
Coolidge (Cambridge, 1962), p. 43.

222

various plans of imperial reform invariably included a standing army

to keep the colonists subservient to British interests. As William

Knox was quick to point out, however,
where troops might be particularly necessary for awing the
colonists, none could be stationed, because it is easy to
suppose an Assembly in such a Province would refuse to pro-
vide for them: and where the probabilities of Indian irrup-
tions, or attacks from other Enemies would make Troops much
wanted, it would be impossible for the Commander-in-chief to
station any considerable Number because a Colony in such a
situation could hardly be expected to be of ability to main-
tain many Troops.

A year later Thomas Pownall raised the problem of a commander-
in-chief over all the colonies. He first discussed how the military
powers granted to the governors came to be viewed as being limited under
the terms of the various provincial charters. In essence, once a colo-
nial constitution had been established

it cannot, in its essential parts, be altered or destroyed by
any royal instructions or proclamation, or by letters from
secretaries of state: It cannot be superceded, or in part
annulled, by the issuing out of any other commissions not
known to this constitution,"
he wrote. However, at the outbreak of the hostilities in the French
and Indian Wars the British commander-in-chief was given power "superior
to those constitutional commanders in chief [the governors], with a
jurisdiction extending over the whole of the British empire in America."
That, he thought, was a dangerous precedent to have established. The

colonial governor possessed no power which was not "specified and

 

4Thomas Barrow, "A Project for Imperial Reform: 'Hints Res-
pecting the Settlement for our American Provinces,‘ 1763," William and
Mary_Quarterly, 3rd ser., XXIV (January, 1967), p. 123.

 

223

defined by the nature of the constitution." Therefore, he argued, the
military powers were limited to only those

persons as are within the jurisdiction of the province, who

derived their powers from the supreme powers are amenable to

the laws of the province, and to the governor, who is himself

specially responsible for the trust.
Moreover, when "this military branch of the governor's office is esta-
blished and received as part of the constitution, the King may safely
grant and the people safely act under" the extensive range of military
powers outlined in the governor's commission, because of the limited
jurisdiction.5

Pownall argued that the commission granted to the British

commander-in-chief derived its power directly from the Crown and was
not subject to the same constitutional tradition and limitations. He
noted that at the time of the establishment of this office, great care
was taken to spell out the lines of authority. In times of crisis this
individual would

command all military operations, and preside in general over

all military establishments for the general service, indepen-

dent of, and superior to, the powers and authorities already

granted to the governors and captains general of the provinces.
Moreover,

it was suggested, that no commissions under the private seal

and sign manual could supersede, revoke, or take precedence

of these powers granted by letters patent under the great

seal, and it was determined accordingly, that the military

commander in chief must have his commission patent under the
great seal.

 

5Thomas Pownall, Administration of the Colonies (London,
1760). pp. 55-58.

224

Nevertheless, Pownall pointed out, the precision with which the
commission was granted was not carried over into the drafting of his
powers, which were given in "general and indefinite terms." Citing the
commission, he was especially critical of the passage which gave to the
commander-in-chief the power

to have, hold, exercise, and enjoy the said office during

pleasure, together with all the powers, authorities, rights

and privileges, thereunto belonging, subject however to such

restrictions, limitations, and instructions, as are given,

or to be given, from time to time, under the royal sign man-

ual, and charging and requiring all the governors, lieutenant

governors, deputy governors, and presidents of the council of

the respective colonies and provinces of North America, and

all other officers civil or military within the same, to be

aiding and assisting in this command.
These powers, he pointed out, were "such as no minister who advises the
issuing [of] such [a] commission will venture to describe, these general
words, power, and command." Either they are very dangerous or "nugatory."
When compared with the provincial governor, the British command-in-chief
is granted "dictatorial power," while the governor possessed only "gpp;

"6

sular power.

Pownall went on to question the maintenance of such an office
as commander-in-chief in time of peace, irrespective of its legality in
the British constitutional tradition. On the one hand, its existence
was dangerous to the liberties of the subjects and the constitutions of
the colonies. On the other, "there are no people in the whole world,

when their liberties shall become infected and undermined, so liable to

become the instruments of dominion, as a people who have lived under a

 

6Ibid., pp. 60-61.

*

225

free and popular government." While there may have been no danger to
liberty at that time, he noted, "once planted when it comes to grow

. when it has taken root, and has spread its branches through the
land, it will soon overtop and overshadow all the weaker, humbler shoots '
of civil liberty." In the final analysis, "once this lord of the
forest [is placed] on a permanent footing, it will soon have, as Mr.
Harrington says, 'Toes that have roots, and arms that will bring forth
what fruit you please.”7

Moreover, Pownall noted, the continuance of the office of

commander-in-chief was also a dangerous precedent whenever there was
the danger of colonial revolts. In their present state the colonists
found it difficult to unite since

they have neither legislative nor executive powers, that

‘ extend to more than one; the laws of one extend not to the

other; they have no common magistracy no common command, in

short, no one principle of association among them.
In the end, he concluded, if England furnishes the colonies with "a
principle of union" and "if ever the colonies revolt, and set up an
empire in America, here begins the history of it."8

By the fourth edition of his work in 1768, Pownall was advo-

cating a parliamentary union of the colonies with England. He envisioned
"A Grand Marine Dominion, consisting of our possessions in the Atlantic,

and in America, united into a one Empire (sic) in one center, where the

seat of Government is." Giving the colonies representation in Parliament

 

7Ibid.. pp. 62-63.

8Ibid., pp. 63-64.

226

was the only way he thought a separate American empire could be avoided,
given the increasing diversity of the colonial economy. He summarized
his argument by saying that "a general and intire (sic) union of the
British dominions, is the only measure by which Great Britain can be
continued in its political liberty, and commercial prosperity, perhaps
in its existence."9
The British commander-in-chief, as Pownall pointed out, was
significant not only as an executive model, but played an important
political role as well in the development of American attitudes toward
the English. His basic functions were to direct, police, and administer
the British imperial domain in America. He had to keep in constant
communication with the various segments of the empire from Montreal to
Detroit, to St. Augustine, while keeping a wary eye on the remaining
French and Spanish territory. From his vantage point he could view the
entire range of problems better than anyone else, including the British
officials in London. Since he was mainly a military administrator, he
was faced with a never-ending series of delicate political questions in
which the military and civilian jurisdictions might overlap. To add to
his burdens, there were no previous models and very few past precedents
which could help guide him through such an uncertain terrain. Moreover,
he generally received very little guidance from the home officials which

allowed a wide latitude of discretion on his part.10

 

9Ibid., p. 164, p. xvi (fourth edition).

10See Clarence E. Carter, "The Significance of the Military
Office in America, 1763-1775," American Historical Review, Vol. XXVIII
(1922-1923), pp. 475-488.

 

227

Beneath the commander-in-chief were two superintendencies
corresponding with the northern and southern military districts. At
any rate, the relationship between the levels of command were not with-
out considerable conflict at times. In 1766 Lord Shelburne was forced
to remind the superintendents of their position in the chain of command
with the following words:
As to what you propose of Instructions to be given to the
Government to correspond with the Superintendents, His Majesty
thinks it will answer sufficiently that your regular and fixed
correspondence be with the Commander-in-Chief of His Majesty's
Forces, the System of Indian Affairs are as managed by the
Superintendents must ultimately be under his Direction.
Moreover, since
the different Governors can scarcely be supposed to coincide
in opinion, nor is it possible for so many to act in Concert.
You are therefore to take the Orders of the Commander in Chief
on all interesting Occasions, who, being settled in the Center
of the Colonies, will carry on the Correspondence with the
Governors on all such Points . . . and as he will be very
particularly instructed by Administration; you are to look
upon him as a proper Medium of material Intelligence either
to or from England of the Colonies.
Thus, the commander-in-chief became the coordinating point for all sig-
nificant information affecting the far-flung activities of the empire.
As one historian noted about his responsibility for monitoring the Indian
trade, this "brought his office into immediate contact with many power-
ful interests, which, up to this time, had felt only the rather loose
control of the provincial governments."11
Placed at the center of communication between England and the

colonies, the commander-in-chief occupied a powerful position which

 

HQuoted, Ibid., p. 480.

228

exerted a significant influence on the development of colonial policy.
Lord Shelburne described his position as being by "the nature of his
commission and his Trust [one who] holds by equal Ties to all the Pro-
vinces and watches equally over the safety of the whole." His functions
were threefold in nature: management of the Indians and their trade;
responsibility for the troops in North America; and the reduction of
expenses in the operation of royal government on the continent, which
included raising money to defray these costs. The freedom he had in
carrying out these duties was a function of the lack of any prior civil
authority with which he had to compete. Overall, however, the office
survived for a relatively long period without a definitive authorization,
"though royal direction and parliamentary enactment at times gave impe-
tus to the growth of its power."12
On the other hand, as the office of commander-in-chief became
more settled and carved out its position within the colonial framework,
it helped to undermine the effectiveness of the royal provincial gov-
ernor who was more and more being squeezed between the hostile assemblies
and the dictates of overall colonial policy as administered by the home
government and the commander-in-chief. Whichever way the royal governor
chose to throw his lot would invariably reduce his effectiveness with
the other.13

It was clear that Americans viewed the commander-in-chief as ‘

a distinct threat to their political well-being. The concerns expressed

 

'ZIbid.. pp. 481, 487.

13Ibid., pp. 485-486.

229

by private persons throughout the 1760's and into the 1770's culminated
in the Continental Congress resolution laying the American grievances
before the Crown. The committee's draft contained a paragraph which
expressed the fear:

And whereas since the conclusion of the last war, orders have
been issued by the King, that the authority of the commander-
in-chief, and under him, of the Brigadier-General in the
Northern and Southern departments, in all military affairs
shall be supreme, and must be obeyed by the troops as such,
in all the civil governments in America.

Later in the report it requested Congress to resolve "that the orders

aforesaid for rendering the authority of the Commander-in-chief, and

under him, of the Brigadiers-General, supreme, are illegal and void."14

In the case of Massachusetts, the appointment of General Gage
to replace Governor Hutchinson signaled the end of civil government in
the colonists' eyes. As Anglo-American relations worsened, Gage refused
to summon the assembly and prohibited the meeting of colonists in any
other form. Virginia recognized the problem this caused when it in-
structed its delegates to the First Continental Congress. They resolved
that

The proclamation issued by General Gage . . . declaring it
treason for the inhabitants of that province to assemble them-
selves to consider . . . their grievances . . . is the most
alarming process that ever appeared in a British government;
that he . . . hath thereby assumed and taken upon himself
power denied by the constitution to our legal sovereign; that
he, not having condescended to disclose by what authority he
exercises such extensive and unheard of powers we are at a
loss to determine whether he intends to justify himself as

the representative of the king, or as the commander-in-chief

 

14Paul L. Ford, ed., Journals of the Continental Congress,
October 14, 1774, I, 64, 69.

230

of his majesty's forces in North America. . . . If [he]
conceives he is empowered to act . . . [in the latter capa-
city] this odious and ille a1 proclamation must be considered
as a plain and full declaration that this deepotic vicergy_
will be bound by pp_lpp, nor regard the constitutional Fights
of his majesty's subjects, whenever they interfere with the
plan he had formed for oppressing the good people of Massa-
chusetts Bay; and therefore, that the executing or attempting
to execute, such proclamation, will justify resistance and

reprisal.

Once again Americans argued that executive authority not restrained
15

 

 

within the boundaries of law was despotic.
The following year Dr. Joseph Warren, president of the Massa-
chusetts provincial congress reaffirmed this doctrine. He issued a
declaration which said in part:
That . . . general Gage hath . . . utterly disqualified him-
self to serve to this colony as a governor . . . in every
capacity; and that no obedience ought, in future, to be paid
by the several towns and districts in this colony to his writs
for calling an assembly, or to his proclamation, or any other
of his acts or doings; but that on the other hand, he ought
to be considered and guarded against, as an unnatural and
inverate enemy to the country.
In the final analysis the office of commander-in-chief for
North America proved to be a viable model for organizing and administer-
ing British colonial policy on a continental scale. It was created out
of the colonists' inability to unite in the face of a common enemy and
the need for a unified continental command to coordinate and execute
the war effort. However, at the end of the war the Crown expanded its

duties, by an extension of the prerogative, to act as a unifying agent

 

15"Instructions to the Delegates to Congress," Williamsburg,

1774, reprinted in Niles, ed., Principles and Acts of the Revolution,
p. 276.

16Ibid.

231

for the reorganization of the empire. In the words of one historian,
"this.institution turned out to be the most cohesive element.that had
yet appeared in the American colonies."17
Partly because of the prestige the office attained during the

war and partly due to the new responsibilities given it during the post-
war period, the commander-in-chief came to play a significant role in
administering British colonial policy. It was this aSpect of the office
that Americans came to fear most. Although, as historian C. F. Carter
contended, there was no evidence that the British sought to establish

a jurisdiction in America superior to the civil power . . .

nevertheless, a mechanism was in the process of development

which undoubtedly facilitated the assumption of such power

in the latter crisis, a concurrent power which loomed larger
as the years passed and as revolutionary disorders increased.

18
As Anglo-American relations continued to deteriorate this office was
looked upon as an increasing threat to the colonists' liberty. This
may well be one of the reasons why the Continental Congress was reluc-
tant to approve any national executive and why it granted power and
authority to George Washington as the American commander-in-chief for
only a limited time which had to be periodically renewed.

By 1774 it was evident that the Americans needed some organi-

zation to give a united response to British colonial policy. On June 1,

1774, the Virginia House of Burgesses met in defiance of the royal

 

17Clarence E. Carter, "The Office of Commander in Chief: A
Phase of Imperial Unity on the Eve of the Revolution," in The Era of
the American Revolution, Richard B. Morris, ed. (New York, 1965), p.
176.

 

18Carter, I'The Significance of the Military Office in America,"
p. 488.

232

governor and recommended that all colonies send delegates to a
Continental Congress. Three months later delegates from every colony
except Georgia met at Carpenters' Hall in Philadelphia. After electing
a chairman and secretary, the delegates voted to name the body "The
Congress" and the chairman "The President"; titles which were used in
the new government over a decade later.19
The reasons for assembling such a Congress were spelled out

in varying degrees by the credentials presented to it from each of the
delegations. The Pennsylvania delegates' credentials noted that the
purpose of the Congress was

to consult together upon the unhappy State of the Colonies,

and to form and adopt a plan for the purpose of obtaining

redress of American grievances, ascertaining American rights

upon the most solid and constitutional principles, and for

establishing that Union and harmony between Great Britain

and the Colonies, which is indispensably necessary to the

welfare and happiness of both.20

Before any final plan could be adopted a number of questions

had to be sorted out and examined. One of the committees established
to do this was the "Committee to State The Rights of the Colonies."
During its discussions, James Duane outlined his theory of the English
monarchy and its relation to the people which helps shed some light on

how Americans viewed the fundamental concept of executive power. The

 

19See James Duane, "Notes on Proceedings," in Letters of the
Members of the Continental Congress, Edmund C. Burnett, ed., 1, 8;
hereafter Eited as Letters.

20Quoted in Edmund S. Burnett, The Continental Congress (New
York, 1964), p. 35.

233

first principle, he contended, was that "England is governed by a
limited Monarchy and free Constitution." If, however, a
Subject is bound by a law to which he does not assent, either
personally or by his Representative, he is no longer free,
but under an arbitrary power, which may oppress or ruin him
at pleasure.

Moreover, he pointed out, it was admitted
by the English judicatories and has been solemnly resolved
by the King in privy Council, that the Common Law of England
and such Statutes as existed prior to our Emigration are
fundamentals in our Colony (sic) Constitution.

Therefore, he concluded, it was "upon this grand Basis the prerogatives
of the Crown and the Rights of the Subjects are as fully ascertained in
the Plantations as in the parent State." Furthermore,

by the same Constitution the Kin has the Executive Power,

and is the Foundation of Title[s], offices and Honors. Hence

arises his royal Prerogative in the formation of Colonies to

establish a System of Governt (sic), legislative, judicial

and executive, suitable to the Circumstances of a People who

are blessed with the Privile es which they never meant, nor

were supposed, nor coud (sic) forfit by altering their local

situation within the same Empire.
Thus, Duane argued that the supreme executive power was limited and sub-
ject to the restraints imposed by law and the constitution for the
protection of the subjects. Like previous comments on executive power
throughout the eighteenth century, Duane echoed the American fear of
unrestrained and unchecked executive power.21

' In spite of the deteriorating state of relations between Eng-

land and the colonies, few persons thought of independence as the

solution. The cautious New Yorker, John Jay, said it was not for this

 

2lBurnett, Letters, 1, 24-25.

234

Congress to set about framing a new system of government for America.
' "The measure of arbitrary power is not full, and I think it must run
over, before we undertake to frame a new constitution," he said. Rather,

22 For

the Congress must try "to correct the faults in the old one.‘I
days the Congress debated the question until the Suffolk resolves gal-
vanized them into action. General Gage's indication that he proposed
to enforce the Intolerable acts brought a vote from Congress to resist.
The crisis in Boston injected a new urgency into the deliberations over
finding a way to resolve the dispute with England.

Joseph Galloway proposed a plan to solve the dispute within
the framework of the British empire. His plan was similar to the one
proposed at the Albany conference twenty years before. He outlined "a
British and American legislature, for regulating the administration of
the general affairs of America," in which each colony would retain "its
present constitution, and powers of regulating and governing its own
internal police, in all cases whatsoever." The proposed government
would be administered by a "President General" appointed by the Crown
and a "Grand Council" to be chosen by the representatives of the people
of the several Colonies in their respective Assemblies, once in every
three years. The "President General" had the power to summon the coun-
cil as soon after the election as practical. Moreover, he was to hold
office at the pleasure of the Crown, and IIhis assent shall be requisite

to all acts of the Grand Council, and it shall be his office and duty

 

235

to cause them to be carried into execution." Additionally, with the
advice and consent of the "Grand Council" he would

hold and exercise all the legislative rights, powers, and
authorities, necessary for regulating and administering all
the general police (sic) and affairs of the Colonies in
which Great Britain and the Colonies, or any of them, the
Colonies in general, or more than one Colony, are in any
manner concerned, as well civil and criminal as commercial.

The executive and council proposed by Galloway would be "an inferior

 

[and] distinct branch of the British Legislature,_united and incorpo-

rated with it for the aforesaid general purposes." Finally, in time of

 

war any bills which granted aid to the Crown, "prepared by the Grand
Council, and approved by the President General, shall be valid and

23 When

passed into law, without the assent of the British Parliament."
the plan was finally put to the delegates, it was defeated by one vote.
It was clear that while all the delegates agreed that there were prob-
lems with England, there was no unanimity of opinion on what ought to
be done.

In addition to Galloway, others discussed alternative pro-

posals. One such plan was outlined in Jefferson's Summary of the Rights

 

of British America. As noted in the previous chapter, Jefferson voiced

 

the American contentions that no one held absolute power be it king,
Parliament, governor, or colonial legislature. All those who held power
were subject to the higher law as embodied in positive law in the British

Constitution or colonial charters, or the laws of nature. The proper

 

23Journals of the Continental Congress, I, 43-48. Also see
Julian P. Bond, Anglo-American Union: Joseph Galloway's Plans to Pre-
serve the British Empire 1774-1788 (Philadelphia, 194i).

 

236

task of political communication, therefore, was to describe the
distribution of power among the agencies of government. With respect
to union between England and the colonies it was to revolve around the
king as "Chief Magistrate" with each state being units of the whole.
Thus, the monarch was the unifying force tying them all together.
Within that context the Crown was "circumscribed with definite powers"
and was assisted by legislatures "in working the great machine of govern-
ment" while all were subject to the "superintendance" of the people.
The king held the "executive powers" within each state while exercising
the same for the whole empire. He was the only agency of government
outside each colony and within his sphere of circumscribed powers he
was to protect and defend their interest by the use of his veto. How-
ever, the full legislative powers remained "at all times" within each
colonial assembly. Parliament could not interfere in the internal
affairs of the colonies but only regulate commerce between them and
other parts of the empire. Thus, Jefferson viewed the empire in its
fragmented units as being tied together under a limited and circumscribed
executive who was responsible to the people to exercise his powers for
their protection and well-being.24
A year later Benjamin Franklin proposed his “Articles of
Confederation and Perpetual Union" for the Continental Congress to

consider. Article IX outlined an executive council appointed from the

 

24Boyd, ed., Papers of Jefferson (Princeton, New Jersey, 1952),
I, 121-137. Also see Anthony M. Lewis, "Jefferson's 'Summary View' as
a Charter of Political Union," William and Mary Quarterl , 3rd ser., V
(January, 1948), pp. 34-51.

 

 

237

general Congress which consisted of twelve members, a third of which
were changed annually and two-thirds were required for a quorum. Its
function was to
manage general Continental business and interests; to receive
applications from foreign countries; to prepare matters for
the consideration of the Congress; and to fill up, prp_§ep_
pore, continental offices. . . ; and to draw on the general
treasure for such moneys (sic) as may be necessary for general
services, and appropriated by Congress to such services.
While the whole plan was never adopted, the executive council concept
was seen as a definite necessity during congressional recesses. Together
with similar ideas discussed by John Dickinson and Jefferson, a committee
of states was adopted in 1784.
Congress, in 1774, was faced with a series of organizational
problems which continually hampered attempts to reach a common under-
standing. The Connecticut delegations' letter to their governor illus-
trates a number of these. They wrote that while
we have the pleasure of finding the whole Congress, and through
them the whole continent, of the same sentiment and opinion of
the late proceedings and acts of the British parliament; but
at the same time confess our anxiety for greater dispatch of
the business before us, than it is in our power, or perhaps
in the nature of the subject, to effect.

They went on to describe how
an assembly, like this, though it consists of less than sixty
members, yet, coming from remote colonies, each of which has
some modes of transacting publick business peculiar to itself,

some particular provincial rights and interests to guard and
secure, must take some time to become so acquainted with each

 

25Franklin's proposed Articles of Union are printed in the
Journals, July 21, 1775, II, 195-199. Dickinson's draft is found under
July 12 and August 20, 1776, V, 546-555, 674-689. His executive coun-
cil was called a council of state.

238

one's situations and connexions, (sic) as to be able to give
an united assent to the ways and means proposed for effecting,
what we are ardently desirous of.
Moreover, given the circumstances of such an assembly,
our President, though a gentleman of great worth, and one who
fills and supports the dignity of his station to universal
acceptance, yet cannot urge forward matters to an issue pith
that despatch, which, he might in a different assembly.2
It was not until the next congress that an attempt was made to resolve
these internal problems.

By late 1774, the First Continental Congress had completed
its work and adjourned. Members had agreed upon the "Articles of Asso-
ciation" recommending that the colonies pursue a stringent policy of
non-intercourse with Great Britain until the grievances outlined were
redressed. Its preamble opened with avowals of loyalty to the King,
but closed with a finger pointed at a "wicked ministry." More important,
however, was the mechanism for its enforcement. It called for

a committee [to] be chosen in every county, city, and town
. whose business it shall be attentively to observe the
conduct of all persons touching this association; and when it
shall be made to appear . . . that any person within the
limits of their appointment has violated this association,
that they cause the truth of the case to be published in the
gazette; to the end, that all such foes to the rights of
British-America may be publically known, and univerially
contemned (sic) as the enemies of American liberty.
Though the association was not a frame of government, aside from the
mechanism for its enforcement, it was a significant step in the direc-

tion of union since it was the first unified action of all the colonies

 

26

27Ibid., p. 57.

Burnett, Letters, 1, 70.

239

participating and the basis for a number of lasting contacts and
friendships among the participants who were to play an instrumental
role in the American Revolution during the following decade.

It was clear to some delegates like James Duane, however,
that the association would not be enough to solve the future problems
he envisioned. In December he wrote a long letter to Samuel Chase, a
critic of the plan, outlining his reasons why Chase and his fellow
critics should support it. He noted that

the plan is calculated to secure to every colony its own
exclusive interest, Legislation and form of Government except
in matters which respect Great Britain and the Colonies
jointly . . . [and] the new Council were to have no authority;
and in all cases the Representatives of the people were to be
vested with a complete negative.

Moreover, England ought to be involved in the "great Council" because

there may be but one supreme head in the State to conduct
events which regard the whole Empire and upon which its very
existence may depend . . . [and] because it is just that Great
Britain should be guarded against all attempts of the Sovereign
to unite with one part of the Empire which must soon be the
most important, to oppress or injure her.

He went on to point out that if "the rights of regulating Trade is to
be rejected or pared away to nothing Some Plan of Union must be seri-
ously thought of." He then requested Chase

and the other delegates appointed for your Colony to take this
subject into serious consideration . . . [because] if you can-
not approve of something like the above mentioned plan devise
one which you will support. Think in time of the conditions
of union 5° which you will accede, and communicate them with
candour.2

 

240

To men like Duane it was becoming evident that the colonies stood at
an important juncture and they must be ready to proceed in one of two
directions, a speedy resolution of the conflict with England, or inde-
pendence.

With their work complete, the delegates to the First Conti-
nental Congress adjourned but agreed to meet the following May. A major
step in the direction of union was accomplished in the face of strong
fear against a national government, however weak, which might be as
oppressive as England was accused of being. This fear presented a con-
stant obstacle to those advocating union, and later, a revised and
strengthened federal government.

In England, the king ignored the petition outlining the colo-
nists' grievances, while the ministry viewed the Articles of Association
as a direct challenge to their authority. The colonists themselves
continued to meet in the extra-legal assemblies known as provincial
congresses when governors attempted to silence rebellious assemblies by
refusing to call them into session. The conventions provided the
mechanism for deliberation and legislative action in much the same
fashion as the provincial assemblies had done. In the words of the
Massachusetts provincial assembly which noted that

the distressed and miserable state of the province, occasioned
by the intolerable grievances and oppressions to which the
people are subjected, and the danger and destruction to which
they are exposed, of which your excellency must be sensible,

and the want of a general assembly, have rendered it indis-
pensably necessary to collect the wisdom of the province, by

241

their delegates, in this congress, to concern some adequate
remedy for prepgnting impending ruin, and providing for the
public safety.

The provincial congress was generally too large and unwieldy
to carry into execution its directives. Committees of safety were
therefore created to take over the executive function and administer
the policies, resolves, and other enactments. These committees were
further responsible for keeping the functions and momentum of govern-
ment going between sessions of the provincial congress. In short, the
committees of safety were the chief executives during the transition
from colony to state and therefore comprise an important link in the
development of American executive theory. 1

The mechanism of committees acting in an executive capacity
was not new to the colonies. Throughout the previous century assemblies
had acquired various executive duties, roles, and responsibilities, as
they tried to make an appointed governor more responsible to provincial
interests. The assemblies did not exercise these functions as a com-
mittee of the whole, but delegated them to various special committees.
Only in New England was there not an extensive tradition of legislative
committees exercising executive functions with the possible exception
of the Grand Committee or the Councils of War in Connecticut. However,

all colonies had a tradition of commissions, appointed by the assembly,

to carry out executive functions. In many cases, they made appointments

 

29"From the Provincial Congress, Sitting at Concord, To His
Excellency Governor Gage," Niles, ed., Principles and Acts of the
Revolution, p. 99.

 

242

and supervised the conduct of military operations in line with assembly
appropriations, as discussed in the previous chapter.30
The governor's council provided another source of precedents.
Since executive power was to a great extent shared by the governor and
council, with the council acting as governor in his absence if there was
no deputy lieutenant governor, it was consistent with past precedent
that executive power be handled by a committee. This might explain why
it was referred to as committee of safety since it was designed to
function as a temporary expedient, like the former councils, in the
absence of the governor. Since few people thought in terms of indepen-
dence at this point, the committees were considered only in a temporary
1ight.3'
Further precedents were offered by English Parliamentary
traditions in which committees exercised executive functions. Thus,
the provincial congresses had a wealth of precedents to draw upon when
establishing the committees of safety to undertake the necessary execu-
tive responsibilities until the difficulties with England could be
resolved. In the words of one historian on the subject, the colonists

"did not create an institution out of hand but adapted familiar materials

in its construction."32 In short, the committees of safety carried out

 

30See J. Franklin Jameson, "Standing Committee System in the
American Legislature," American Political Science Qperterly, IX, No. 2,
pp. 246-267.

3‘See Chapter IV.

32Agnes Hunt, The Provincial Committees of Safety of the
American Revolution (Cleveland, 1904).

243

the work for the provincial congresses in'a manner long familiar to
members of the legislatures, with the major difference being that they
now comprised the entire executive branch once the royal governors left
the colonies.

In the years preceding American independence, committees of
correspondence took an active role in coordinating colonial resistance.
The committees or correspondence kept other colonies informed as to
developments within their respective province and fanned the fires of
agitation against the royal governors. While local committees of corres-
pondence were more active than the provincial ones, it was the latter
that tied the colonies together and acted at the primary channel of
communication between the colonies and the Continental Congress. As
the threat of war increased, the committees of correspondence were
generally supplanted by committees which were more concerned with colo-
nial defense. However, the committees of correspondence did provide a
valuable function in promoting colonial unity and bridging the transi-
tional period between the preliminary events and the actual outbreak of
the Revolution. One historian suggested that the founding of the Con-
tinental Congress was the logical outgrowth of the committee system on
the provincial level raised to one on the continental level when New
York pointed to the need for coordinating and directing provincial

activities.33

 

33See Edward 0. Collins, "Committees of Correspondence of the
American Revolution," American Historical Association Annual Reports,
1901, pp. 245-271.

244

As the committees of safety began to replace the committees
of correspondence, they assumed the role as the executive agent for the
provincial congresses. Generally they were given wide and undefined
authority to act in whatever manner they deemed necessary for the public
safety when the provincial congress was not in session. Since there
was no constitution to define and regulate their behavior, they could
do whatever was not contrary to a resolution of the provincial congress.
However, this tremendous latitude was not without its checks. First
they were creations of the provincial congresses and elected or appointed
for very short terms. This alone prevented them from undertaking much
that was not approved by the legislature since their frequent changes
of membership prevented them from developing into permanent bodies with
goals and ambitions apart from the assembly itself. Moreover, these
were at the absolute mercy of the provincial congresses who could alter
or abolish them at any time, creating whatever form they might choose.
Additionally, the committees' acts and decrees were subject to suspen-
sion or abrogation at any time while dependent on local committees to
carry them into action. In short, the provincial congress was the
source of all governmental authority, power, and prestige with a colony.
The committee of safety was merely an organ for carrying its policies
into execution on a provincial seal. The primary concern of the com-
mitte of safety was the safety and defense of the colonies, though they

were responsible for other areas as well.

 

34See Hunt, The Provincial Committees.

245

The committees of safety were handicapped by their size,
which sometimes led to inefficient activities and made it difficult to
carry out military policy. The reason for their large size was the
desire of the provincial congress to make it as representative as pos-
sible of the whole province. In spite of their ineffiency, when compared
to a single executive, they were, by and large, successful in carrying
out their functions. It must be remembered that until the Declaration
of Independence there was great uncertainty as to which course of action
to take. The extra-constitutional organs of government set up to meet
the emergency of 1774 were not meant to be permanent forms of government.
Rather, they were temporary expedients to meet the needs of the moment
until the problems with England had been resolved. Only when it became
evident that the old provincial forms of government were not going to
be reinstated did the Americans cast off the temporary forms in favor
of new and permanent constitutions based on a tripartite division of
government into legislative, executive, and judicial branches.35

In May, 1775 the Second Continental Congress met in Philadelphia
after the outbreak of fighting at Lexington and Concord the previous
month. The king had not replied to their list of grievances and the
ministry looked upon the Articles of Association as a direct challenge
to British authority. On the 16th of May, the provincial congress of
Massachusetts requested guidance on whether to take up and exercise the
civil powers of government. Congress responded that no obedience was

due to the act of Parliament altering the constitution of the province,

 

35Ibid.

246

nor to a Governor, or a lieutenant-Governor (sic), who will

not observe the directions of, but endeavour to subvert that

charter . . . [they were therefore] to be considered as

absent, and these offices vacant.
Since the

inconveniences, arising from the suspension of the powers of

Government, are intollerable (sic), especially at a time when

Genl. Gage hath actually levied war, and is carrying on hos-

tilities, against his Majesty's peaceable and loyal subjects
it was therefore necessary that the citizens of Massachusetts summon an
assembly of representatives to elect councillors "in order to conform,
as near as may be, to the spirit and substance of the charter" until
such time as "a Governor, of his Majesty's appointment, will consent to
govern the colony according to its charter."36 Thus, Congress did not
as yet see the necessity for altering Massachusetts' form of government.

On June 15 the Congress elected George Washington to be

commander-in-chief of the colonial forces. John Adams nominated him to
"compell" the members of Congress "to declare themselves for or against
something" in an effort to move the members off dead center.37 Washing-
ton received no serious objection and his successful confirmation was
viewed as overcoming the sectional jealousies so prevalent in that body.
The following day Washington gave his acceptance speech and Congress
responded by establishing the organizational structure of the army.
The creations of the subordinate offices in the military structure gave

a significant patronage power to Congress which resulted in the expected

bickering over who would receive which offices. However, Congress left

 

36Journals, II, 83-84.

37Adams, Works, 11, 415.

247

the appointment of the officers below the general officers to the
provincial congresses to present nominees to General Washington who
would fill the commissions authorized by Congress. This in a sense
gave the commander-in-chief the semblance of a patronage power also.
Washington's commission gave him a general grant of power.
It noted that for the "Defense of American liberty . . . you are hereby
vested with full power and authority to act as you shall think for the
good and welfare of the service." Moreover, he was
to be careful in executing the great trust reposed in you, by
causing strict discipline and order to be observed in the
army. . . . And you are to regulate your conduct in every
res ect by the rules and discipline of war (as herewith given
you) and punctually to observe and follow such orders and
directions, from time to time, as you shall receive from this,
or a future Congress of the United Colonies, or committee of
Congress.
This commission was to continue "until revoked by this, or a future

Congress."38

Thus, Congress broke with the committee tradition and
placed the supreme field command in the hands of one person with no
apparent strong opposition from anyone in Congress.

Washington provided Congress with other valuable services in
addition to his duties as commander-in-chief. He realized that Ameri-
cans were fearful of a standing army and any military leader who pos-
sessed power enough to endanger their liberty. These fears were
especially evident in Congress as many members were reluctant to grant

him any more than the barest minimum of authority to carry out his

managing and directing of the military forces in the field. To

 

38Journals, II, 96.

248

Washington's credit, he understood these motivations and his letters
to Congress indicate a great patience with their misgivings though at
times he lamented the effect they were having on the success of the
military effort. For example, in December of 1775 Washington prudently
asked for the authority to call forth the state militias, which was
granted in general terms. However, the opponents of Washington seized
on this, raising the spectre of a military dictator kept fresh in
American minds by the British commander-in-chief's actions in Mass-
chusetts. To allay these fears, Congress amended Washington's authority
to require him to seek the approval of the executive in each state
before calling the militia. Sensitive to these fears, Washington had
taken pains to see that this had been done before it became an issue in
Congress, thereby averting any question of his actions personally.39
Washington's letters were read to the Congress in full ses-
sion, his advice on military matters was given careful consideration,
and his judgment carried much weight in the final decision. In a sense
he was the central cog around which the complex military and civilian
organization revolved in the conduct of the war.’ On the one hand, he
would provide the necessary information for Congress to make policy and
on the other he would be the vehicle for carrying it into execution.
By anticipating difficulties which might arise, he could prod Congress

into beginning the long deliberative process so that a decision might

be reached before he was faced with the crisis, thereby lessening his

 

39See Jared Sparks, The Life of George Washington (Boston,
1844), pp. 151-152.

249

inconvenience which too often resulted from Congress' disorganization
and lack of direction.

A second area in which Washington provided executive leader-
ship and organization was in his relationships with the various state
governments. Congress would authorize the raising of troops and sup-
plies which the states would provide through various acts of the legis-
lature. Washington was continually forced with graphic representations
of the armies' needs to prod the states into fulfilling their quotas.
Since the state executives in the early period of the Revolution pos-
sessed most of the executive power in America, Washington's correspon-
dence with them brought hhn into direct contact with the source of
power where he could gain an overall view of the problems and have a

40 More-

direct input of his ideas where they might be most effective.
over, Washington was forced to deal with maritime affairs since Congress
was slow in organizing and establishing policies in this area. He
assumed that it was included in his authority as commander-in-chief to
arm and equip vessels to protect coastal areas, shipping, and to harass
the British navy.

Thus, Washington became a de_fpp§p_national executive in his
position as commander-in-chief. Not only did he provide the bridge
between Congress and the military, but he acted as a significant link
between the states and Congress as well. In short, he was one of the

few individuals, if not the only one, who possessed a unique vantage

point from which to view the problems and solutions facing the Americans

 

40See MacMillan, The War Governors, pp. 149-163.

250

during the Revolution. His contacts and correspondence gave him a
wide-ranging source of information as well as the opportunities to
inject ideas into the various levels of government. This not only
helped the American cause during the Revolution, but it provided Wash-
ington with a wealth of valuable experience upon which he could draw
during his years as president when he was trying to place the new
government on a firm foundation.

Centralization of executive authority was not the pattern fol-
lowed by Congress for its role in the conduct of the military effort.
Throughout 1775 Congress jealously guarded its power and refused to
delegate any of it to committees to oversee the conduct of military
policy. Benjamin Harrison recommended that such a committee be esta-
blished, "but the Gentlemen [of Congress] could not think of parting

4] As early as May, 1775 Silas

with the least particle of their power."
Deane had raised the question of appointment of a committee during the
adjournment of Congress to "sit constantly at Hartford or elsewhere near

42 It was not until the early part of 1776, how-

the scene of action."
ever, that the delegates began to move in the direction of an executive
committee which eventually became the Board of War and Ordinance. Even
then Congress did not grant it general powers, but provided it with

barely enough power to meet specific problems as they arose. By Decem-

ber, 1776 it was evident to some that the committee system needed a

 

4lBenjamin Harrison to George Washington, July 21, 1775,
Burnett, Letters, I, 170-171.

42Ibid.. pp. 105-106.

251

drastic revision if the Americans were to prosecute the war effort
successfully. Samuel Chase noted the "impropriety of . . . [the] mili-
tary system" and sought to restructure it. "If we expect to succeed in
the present war, we must change our mode of conduct,‘I he said. "Distinct
and precise departments ought to be established. [Moreover] a Gentleman
of the military must be of the Board of War,“ he concluded.43
In spite of these recommendations the committee system lumbered
on for another year. Congress chose to establish numerous specialized
committees to handle specific problems as they arose. For example, one
committee was established for the purpose of explaining to the state
governments why additional powers had been given to General Washington,
"and requesting them to cooperate with him, and give him all the aid in

44 In the end, however, it was not until 1780 when Con-

their power."
gress finally consented to a full review of the administrative procedure
in the face of the glaring defects manifest over the past four years.
At that point another special committee was formulated to consider “the
revision and new arrangement of the civil executive departments of the
United States."45
Another crucial area that suffered from the lack of organized
administrative procedures was foreign affairs. In November, 1775 Congress

authorized the establishment of The Committee of Secret Correspondence,

 

43Samuel Chase to John Sullivan, December 24, 1776, Ibid., II,

186.

44gpprpplp, VI, 1041. Also see pages 1043, 1047, 1153.

45Ibid., XVII, 791.

252

which was the forerunner of the later State Department. Its function
was to correspond with nations and persons friendly to the American
cause through trusted agents abroad. Unfortunately, the committee could
not maintain its secrecy, causing John Jay to remark that he wished

the secret (Commercial) committee would communicate no other
intelligence to the Congress at large than what may be neces-
sary to prompge the common weal, not gratify the curiosity of
individuals.

In spite of these and other problems, Congress refused to authorize one
committee to handle foreign affairs. In December, 1778 they resolved
to meet each evening for at least two hours "until the present state of
our foreign affairs shall be fully considered."47 However, it was John
Jay, a former member of the committee, who put the dilemma so aptly.

He said that

one good private correspondent would be worth twenty standing
committees, made of the wisest heads in America, for the pur-
pose of intelligence. What with clever wives, or pretty girls,
or pleasant walks, or too tired, or too busy, or do you do it,
very little is done, much postponed, and more neglected. If
you who are naturally industrious and love your country, would
frequently take up your pen and your ciphers and tell me how
the wheel of politics runs and what measures it is from time
to time turning out, I should be better informed and Congress
better served. I now get more intelligence of your affairs
from the French ambagsador than from all the members of Con-
gress put together.

Agent Benjamin Franklin was so exasperated over his dealings

with the Secret Committee that he vowed to deal only with the president.

 

46Francis Wharton, ed., Revolutionary Diplomatic Correspon-
dence (Washington, 1889), II, 165.

47Journais, XII, 1181.

48John Jay to James Lovell, October 27, 1780, Wharton, Revolu-
tionary Diplomatic Correspondence, IV, 105.

 

253

I write fully to the President. The frequent hindrances the
committee of correspondence meet with in writing as a committee,
which appear from the excuses in your particular letters and the
many parts of my letters that have long been unanswered, incline
me to think that your foreign correspondence would be best man-
aged by one secretary, who could write when he had an opportu-
nity, without waiting for the concurrence of opinions of his
brethren, who can not always be got conveniently together. My
chief letters will therefore, for Rhe future, be addressed to
the President till further orders. 9
In the period from 1775-1781, Congress was hampered by the
lack of efficient organization in its executive functions. The examples
cited above applied to the other areas of administration within Congress
as well. As the governmental operations increased in complexity, it
became clear to more members that the committee system under which Con-
gress was operating needed a drastic overhaul and the major committees
had to be placed on a more permanent basis. The revolutionary committee
system that functioned so well on the provincial level was breaking down
under the load of the national government.50
During the same period the presidency of the Congress found
itself involved in a number of internal squabbles. The Second Conti-
nental Congress elected Peyton Randolph to the presidency. He was
described by Silas Deane as a man "designed by nature for the business,"

as "affable, open, and a majestic deportment, large in size, though not

 

49Benjamin Franklin to James Lovell, Ibid., pp. 26-27.

50See the following for a detailed account of the development
of the committee system, Edmund C. Burnett, The Continental Congress
(New York, 1964); Jennings B. Sanders, Evolution of the Executive
Depaptments of the Continental Congress, 1774-1789 (Gloucester, Mass.,
1971 .

 

254

out of proportion, he commands respect and esteem by his very aspect,

5] Unfortunately, less

independent of the high character he sustained."
than two months later he was forced to resign because of ill health.

He was succeeded by Henry Middleton, a prominent politician from South
Carolina who had served as Speaker of the House and was a member of the
council in the provincial government. He served until Congress adjourned
five days later.

The Second Continental Congress also had problems with its
president. It re-elected Randolph, who again had to leave the chair to
attend pressing matters at home. Middleton declined to succeed him on
the grounds of ill health. At this point, John and Samuel Adams steered
the nomination to their colleague, John Hancock, who was President of
the Massachusetts provincial congress. They soon regretted their deci-
sion, however, as they accused him of keeping the company of individuals
not noted for their revolutionary fervor. When Randolph returned to
Congress, Hancock declined to surrender his chair in favor of Randolph.
As Abigail Adams wrote to Mercy Warren:

How well might some folks have saved their credit and their
Bacon too (as the phrase is) by a resignation of a certain
place. 0 Ambition, how mgpy inconsistent actions dost thou
make poor mortals commit.

Hancock's insensitivities further irked the Adams' and others

when he requested a respite from his duties and made a farewell speech

 

51Burnett, Letters, I, ll.

52Abigail Adams to Mercy Warren, Warren-Adams Letters. . . ,
Massachusetts Historical Society, Collections (Boston, 1917-1925), I,
181.

 

 

255

upon being granted such a leave. He complimented himself by noting
that "my health being much impaired, I find some relaxation absolutely
necessary, after such constant application [to my duties]; I must there-
fore request your indulgence for leave of absence for two months." He
went on to say that

As to my conduct, both in and out of Congress, in the execution

of your business it is improper for me to say anything. You

are the best judges. But I think I shall be forgiven if I say

that I have spared no pains, expense, or labor, to grggify

your wishes, and to accomplish the Views of Congress.

It was moved to thank Hancock for his services but the motion

to do so was side-tracked by a motion that it was I'improper" to thank
an officer for discharging his duties. On that motion, the Congress
split evenly. The original motion passed six states to four, with one
divided and Massachusetts voting no. Samuel Adams wrote with alarm that
this whole episode "labored 'a whole Afternoon,'" and the "Principle was
objected to, it was urged to be unprecedented, impolitick (sic), [and]

"54 Moreover, neither of Hancock's predecessors had been so

dangerous.
honored, he noted. The final insult occurred when Hancock requested an
escort to guard his return to Massachusetts. Two weeks before Hancock

left Congress, Henry Laurens moved "the House to intreat (sic) and soli-

cit Hancock's continuance," and to his surprise "I was seconded and pp

 

more."55 Shortly thereafter, he himself was elected to the post.
53Journais, IX, 852-853.
54Sam Adams to James Warren, October 30, 1777, Burnett, LEE?
ters, II, 537.

55Henry Laurens to John Gervais, October 16, 1777, Ibid., p.

522.

256

Laurens' term as President also saw many complaints about
his actions. His pre-presidential correspondence was filled with scorn
for Congress and many of the men who served in it. For example, he
wrote that "Congress is not the respectable body which I expected to
have found."56 Another time he "threatened to kick [Secretary Charles]
Thompson from the President's platform upon which they both happened

57 Furthermore, he participated in congressional debates.

to be standing."
which was justifiable on the basis that he was a delegate and at times
the sole representative from his state.58 However, his uncomplimentary
statements from the chair about members of Congress were difficult for
his colleagues to understand. As the anniversary of his election
approached, Laurens tenured his resignation. The Journal recorded the
event in the following manner: "Having assigned sundry reasons why he
could not continue longer to execute the office of President," he re-

59 Not to be outdone by Hancock's farewell

signed and left the chair.
address, however, Laurens delivered an even more extensive one, compli-
menting himself on his patriotism for remaining at his post for six

weeks after his year expired. Laurens' apparent reason for his abrupt

 

56Laurens to Gervais, September 5, 1777, Ibid., p. 476.

57See Herbert Friedenwald, "The Journals and Papers of the
Continental Congress," Pennsylvania Magazine of History, XXI, 183.

58See Jennings B. Sanders, The Presideney of the Continental
Congress, 1774-1789: A Study in American Institutional History (Glou-
cester, Mass., 1971), p. 18.

59

 

Journals, XII, 1202.

257

departure was an affront to Congress by its agent, Silas Deane, which
Congress, he complained, suffered in silence. "I had antecedently to
the appearance of Mr. Deane's insult been exceedingly Chagrined by the
tame submission of the great Representatives of the United States to

the most gross affronts."60

Laurens hoped his resignation and re-election
would vindicate his position, but the delegates were content to see him
resign.

After Laurens stepped down as President, Congress found itself
embroiled once again in the controversy over whether to thank him for
his services. In the end, however, such a resolution was not passed
until six days after his resignation and not before he demanded "in
modest terms . . . a testimonial of my Conduct, intimating the honor
and interest of Congress and the States were as nearly concerned as my
own." After the resolution passed, Laurens characterized Congress'
actions as "the acknowledgments with which after mature deliberation

”61 Seven months later he was

you have been pleased to honor me. . . .
still suffering from his defeat when he wrote to John Laurens requesting
that he "tell my friends they will find, that my resignation on the 9th

December was, as I then said to them, the greatest act of my Life."62
Fortunately for Congress, Lauren was the last president to lecture them

on his retirement.

 

60Laurens to Rawlings Loundes, December 16, 1778, Burnett,
Letters, III, 537-538.

6'Ibid., p. 538.

62Ibid., Iv, 327.

258

In the next election for President, the delegates decided to
choose someone from New York to allow each geographical area to be repre-
sented in the post. The choice was General William Schuyler who was not
present at the time. John Jay was appointed to fill in until Schuyler's
arrival. By the time that happened, Jay had resigned to represent Con-
gress as Minister Plenipotentiary, and Schuyler never occupied the chair.
Interestingly enough, Jay continued as Chief Justice of New York while
acting as President of the Congress, resigning the office shortly before
his appointment to Spain. As With his predecessors, Congress split over
whether to thank him for his services. James Lovell noted that

I declare openly that I did not approve Mr. J's conduct in the
Chair--some others followed me in like declarations, but I would
not go to the dirty work of Yeas and Nays and urged that, if a63
Majority were so disposed, he might receive a Formality. . .

Samuel Huntington of Connecticut was elected President on
September 28, 1779, and continued in office until July of 1781. In the
summer of 1780, he suffered a severe case of smallpox and offered his
resignation. The Journals recorded that on July 6, 1781 "The President
having informed the United States in Congress assembled, that his ill
state of health" would "not permit him to continue longer in the exer-
cise of the duties of that office," requested a leave of absence.64
Samuel Johnston of South Carolina was elected to replace him but declined

to serve, citing his ill health. The Journals noted that his reasons

"were satisfactory" and proceeded to elect Thomas McKean, then a delegate

 

631bid., p. 474.

64Journais, xx, 724.

259

from Delaware.65

Privately Johnson gave several other reasons for
declining the office. In a letter to Governor Burke, he wrote that
having no prospect of being relieved or supplied with money
for my expenses and my disorder, which abated a little on
the first approach of warm weather, returning so as to render
me of little use in Congress. . .
Moreover, his youngest son had just died and he wished to return home
to attend to family matters.66
Thomas McKean's troubles revolved around the question of con-
centration of power in the hands of one man. While a delegate from
Delaware, he was simultaneously Chief Justice of Pennsylvania. His
election to the presidency caused a storm of protest from the Pennsyl-
vania assembly who contended that if restrictions were not placed on
office holding "some one man will at length arise too powerful to be

resisted."67

McKean countered by noting that his position in Congress
was a function of his being a delegate from Delaware, not as an office
holder in Pennsylvania, and that the assembly had no jurisdiction over

this matter as it was the function of Pennsylvania Board of Censors to

a
O

remedy any supposed wrong. McKean retired from the presidency in Novem-
ber, 1781 citing the fact that he had agreed to take the position with

the stipulation that he would have to attend the Pennsylvania Supreme

 

65Ibid., p. 733.

66Quoted in Sanders, The Presidency of the Continental Con-
gress, p. 21.
67Ibid.

260

Court sometime in September or October. Since Congress was about to
adjourn, he agreed to remain until that time in November.68

In the seven years after its inception, seven men occupied
the presidency of the Continental Congress. Geographically, three
presidents were from the south and the remainder from the central and
New England states. With respect to the term of office, there was no
regularity, the shortest being five days and the longest two,years and
five months. The two individuals who resigned to become more involved
with provincial matters, Randolph and Henry (under the ostensible excuse
that his gout was bothering him),69 apparently saw the chance for more
prestigious involvement with state politics than national affairs.

This was some indication of the prestige attached to the office. Others
often showed a reluctance to assume its responsibilities, and no one
actively and openly campaigned for the office, though Laurens used what
little leverage he could muster with his resignation to try unsuccess-
fully to influence a congressional action.

One of the reasons men may have been reluctant to take on the
responsibilities of the presidency was the fact that Congress was reluc-
tant to cover their expenses. For example, on July 31, 1778 a committee
of three was appointed "to direct and superintend an entertainment to
be given by Congress for Ambassador Sieur Gerad." The report which

followed recommended that

 

68Ibid., p. 22.

69See General W. H. Sumner, "Some Recollections of Washing-
ton's Visit to Boston," The New England Historical and Geneolggical
Register, XIV, 164-165 for an account of Hancock's use of illness for
political purposes.

261

it will be necessary to the Reception of Ambassadors and

other Foreigners of Importance, that the President of the

Congress for the Time being should be allowed a House and

Table at the Public Expense, and that a Master of the Cere-

monies and the like
ought to be appointed. The report further recommended that the master
of ceremonies be given a military rank, but this was crossed out in the

final report.70

Not until December of that year did Congress consider
the report and then requested that the committee collect a record of
expenses from the past presidents for reimbursement and voted to pro-
vide "a convenient furnished dwelling house . . . a table, carriage and
servants at the public expense, for the President of Congress for the
time being." Moreover, Congress voted that the President be provided
at public expense with "a steward, who shall have the superintendance
of the household of the President."71
In September, 1780 the question of the President's term was

again raised. John Henry wanted "the rule laid down in the Articles of
Confederation respecting the election of the President of Congress be
henceforward (sic) observed," and so moved. Samuel Adams countered
with a motion to delay which carried, with Maryland, Virginia, South
Carolina, and Georgia voting against and New Jersey Split. Then James
Lovell moved that

the President having informed Congress that one year was

elapsed since his election. Resolved, That no rule or prac-

tice of the house limits the term for which the President
is elected.

 

70Journals, XI, 733-734.

71Ibid., XII, 1222-1223.

262

This carried unanimously. With the parliamentary maneuvering out of
the way to allow the incumbent a chance for re-election under the new
rules, the Congress resolved "that the continuance of the President in
office shall not be longer than one year from this day forth, and that
all future elections shall be agreeable to the rule marked out by the
Confederation."72 Thus, Samuel Huntington was the first president to
serve under this change of rules as he was confirmed for another term
of one year.

The executive role played by the President of Congress and
the one played by the coninander-in-chief provided an interesting con-
trast in the delegates' thinking about the organization of executive
powers. On the state level, Americans were forced to fashion new govern-
ments to fill the vacuum created by the demise of the royal governments.
Instead of discarding the old system altogether, they relied on reshaping
familiar institutions to meet various problems as they arose. Only when
it was clear that there would be no reconciliation between England and
America did the colonists begin to create permanent institutions of
government.

On the national level, however, there were no precedents aside
from the ones created by the British empire. Moreover, few individuals
in the early years of the Revolution were advocating a strong central
government. In fact, one of the prevalent concerns of the delegates and

the states they represented was to prevent the creation of an association

 

721bid., XVIII, 869-871.

263

that might threaten the status of the individual states. Even John
Adams echoed this sentiment when he said in January, 1776 that
We have heard much of a continental constitution; I See no
occasion for any but a congress. Let that be made an equal
and fair representative of the Colonies; and let its autho-
rity be confined to three $ases,--war trade, and controversies
between colony and colony. 3
Thus, Congress was given barely enough power to carry out its duties and
was constantly asking for increased authority.

Furthermore, Congress jealously guarded what little power it
had when it came to rationing it out to the various specialized com-
mittees created to carry out congressional policies. Robert Morris
noted this in December, 1776 in a letter to the American delegation in
Paris.

I will not enter into any detail of our conduct in Congress,

but you may depend on this, that so long as that respectable

body persist in the attempt to execute, as well as to deliber-

ate on their business, it never will be done as it ought, and

this has been urged many and many a time, by myself and

others, but some of them do not like to part with power7 or

to pay others for doing what they cannot do themselves.
Given that frame of mind, it was not difficult to understand why Congress
was reluctant to create an executive office with any significant powers
other than to preside over meetings and represent Congress at diplomatic
functions.

When it came to empowering the commander-in-chief, Congress
was faced with a specific problem and realized that significant authority

must be placed in one person. For example, on a matter of staffing,

 

73Adams, Works, IV, 208.

74Burnett, Letters, IV, 184.

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264

Congress was willing to let Washington's judgment stand. James Deane
wrote to Washington that Congress was "determined not to weaken your
Hands in a Branch that may be essentially injured by the Retirement of
all the Gentlemen skilled in it."75 When Washington recommended the
establishment of a "Department of Inspector General" Congress, however,
was wary of allowing that much power to slip out of its grasp. Duane
again wrote to Washington as representative of the Committee of Confer-
ence which was the chief link between the commander-in-chief and Congress.
He noted that Congress regarded this proposal as holding

up the Idea too strongly of separate departments which, as they

have been conducted, imply an Independence of the Commander-in-

Chief, and are jg other respects productive of Inconvenience

and Experience.
Thus, Congress was willing to grant power to Washington to conduct the
war but wanted to keep his actions under close supervision, granting
him as little control as possible over areas not immediately necessary
to that objective. Yet in 1783 Congress took pains to clarify his
authority by resolving

That the president inform General Washington, that Congress

never intended by any commission hitherto granted by them, or

by the establishment of any department whatever, to supersede

or circumscribe the power of General Washington as the com-

mander in chie of all the continental land forces within the
United States.

 

77Journais, VIII, 668.

265

By 1778 Congress' inability to raise sufficient funding for

the war led to talk of creating a grand council to review public affairs.

Henry Laurens called for a council
composed of men renowned for Integrity and Abilities from each
state assisted by the Commander-in-chief and a few selected
General Officers to take under their consideration the state
of the nation to sit either in or out of Congress (in the
latter case to call upon Congress for every necessary informa-
tion). . . .
He went on to express fear of the committee structure then in operation.
These Committees which we see rising every day are Epitomes
of the work I have in mind, but however good their views and
intentions may be their Authority is usurped and may become
dangerous to the safety of the People.
The council Laurens proposed would act as a clearinghouse for a discus-
sion of the problems in each state to the end that "from their repre-
sentations wholesome coincident Laws would be enacted in each state,
without which it will be impossible for Congress to proceed in the dis-
charge of public business." This proposal grew partly out of a fear of
the central government and partly out of the frustration of Congress‘
inability to "intimate to the States the necessity for passing such
laws." The other point was Laurens' argument for need of the commander-
in-chief to be involved in the council's deliberations. This indicated
at least the embryonic notion that he ought to have a voice in policy-
making rather than being just the instrument to carry out congressional
war policies.

Since Washington's appointment as commander-in-chief was made

in part to satisfy regional politics and cement together the tenuous

 

78Burnett. Letters. pp. 298-299.

m...‘

266

union of states, the question arises as to how much influence he had
on development of American attitudes toward a national executive during
the Revolution. As noted earlier, Washington was given a general grant
of power as commander-in-chief to conduct the war effort. Two years
later the military effort had deteriorated to the point where Congress
was forced to give him a further extensive grant, which some members
characterized as dictatorial though they went along with it out of
necessity. John Hancock, then President of Congress, justified this by
saying that
ever attentive to the Security of Civil Liberty, Congress would
not have consented to Vesting such Powers in the Military
Department as those, which the Inclosed Resolves conve to the
Continental Commander-in-chief, if the Scituation (sic of
Publick Affairs did not Require at this Crisis a Decision and
Vigour, which Distance and Numbers Deny to Assemblies far 79
Remov'd from each other, and from the immediate Seat of War.

This special authority granted to Washington was to last for
six months only. It included the power to raise troops and supplies,
but more important than the military authority was his power to arrest
and confine persons who refused to receive the continental currency or
who were otherwise disaffected with the American cause for trial in
states where they were citizens. This authorized Washington to become
a virtual dictator.

Congress noted in the preamble to the resolution, however,
that the powers they granted were in consequence of a perfect reliance

on his wisdom, vigor, and uprightness. Washington did not disappoint

Congress in his use of that authority. As in all other cases where

 

79Journals, VI, 1053.

267

power and authority was delegated to him, he was careful to exercise
it no further than to accomplish the end for which it had been granted.
As the committee who conveyed these new powers to Washington noted:

We find by these resolves your Excellencys hands will be
strengthened with very ample powers . . . [and] happy it

is for this Country that the General of their Forces can
safely be entrusted with the most unlimited Power and neither
personal security, libertfi or property be in the least degree
endangered thereby. . . . 0

Washington himself was very reluctant to exercise the full
military power granted to him. In 1777 he wrote to the President of
Congress:

I confess I have felt myself greatly embarrassed with respect
to a vigorous exercise of military power. An ill-placed
humanity, perhaps, and a reluctance to give distress, may have
restrained me too far; but these were not all. I have been
well aware of the prevalent jealousy of military power, and
that this has been considered as an evil much to be appre-
hended, even by the best and most sensible among us. Under
this idea, I have been cautious, and wished to avoid as much
as possible any act that might increase it.

He went on to assure Congress
that no exertions of mine, as far as circumstances will admit,
shall be wanting to provide our own groups with supplies on
the one hand, and to prevent the enemy from getting them on
the other.
He then lamented the failure of the state to act with dispatch in grant-
ing the army necessary supplies ascribing it to the peoples' fear of the
military. "The people at large are governed much by custom," he wrote.
To acts of legislation or civil authority they have ever been

taught to yield a willing obedience, without reasoning about
their propriety; on those of military power, whether immediate

 

80Burnett, Letters, 11, 198.

268

or derived originally from another sourcg1 they have ever

looked with a jealous or suspicious eye.
Thus, Washington was fully aware of the power and responsibility placed
in him and acted in a manner to raise as little suspicion as possible.

Washington was not without his critics. The Conway affair

was probably the most famous of the attacks on his position as commander-
in-chief. General Conway and his friends on the newly created Board of
War sought to undermine and discredit Washington through a series of
letters circulated among members of Congress and the military. Once
Washington found out about the cabal he wrote the President of Congress
to request a full investigation of the charges, saying: "I would not
desire in the least degree to suppress a free spirit of inquiry into any
party (sic) of my conduct." Further, he declared

my enemies take an ungenerous advantage of me. They know the

delicacy of my situation, and that motives of policy deprive

me of the defense I might otherwise make against their insidi-

ous attacks. They know I cannot combat their insinuations,

however injurious, without disclosing secrets, which it is of

the utmost moment to conceal.82
Fortunately for Washington, when the conspiracy was made public it soon
dissipated.

In 1778 Washington's proposal for recruitment of officers at

half pay for life encountered heavy opposition from congressional mem-

bers who were extremely fearful of the military. Washington lobbied

 

81Washington to Congress, December 15, 1777, reprinted in
Sparks, Life of Washington, p. 243.

82

 

Washington to Congress, January 31, 1778, Ibid., p. 253.

269

hard for this plan and in a letter to a member expressed his thoughts
on the relationship between the military and civilian authority. He
wrote that

if we would pursue a right system of policy there should be
none of the distinctions. We should all, Congress and the
army, be considered as one people, embarked in one cause, in
one interest; acting on the same principle, and to the same
end. The distinction, the jealousies . . . are impolitic in
the extreme. . . . The very jealousy, which the narrow poli-
tics of some may effect to entertain of the army, in order to
a due subordination to the supreme civil authority, is a
likely means to produce a contrary effect; to incline it to
the pursuit of those measures, which they may wish it to avoid.
It is unjust, because no order of men in the Thirteen States
has paid a more sacred regard to the proceedings of Congress
than the army; for without arrogance of the smallest deviation
from truth it may be said, that no history now extant can
furnish an instance of an army's suffering such uncommon hard-
ships as ours Bad done, and bearing them with the same patience
and fortitude.

By December of that year, Washington was expressing concern
over the collapse of the civil authority of the central government. In
a letter to Benjamin Harrison, he wrote that the

States, separately, are too much engaged in their local con-
cerns, and have too many of their ablest men withdrawn from
the general council, for the good of the common weal. In a
word, I think our political system may be compared to the
mechanism of a clock, and that we should derive a lesson from
it; for it answers no good purpose to keep the smaller wheels
in order, if the greater one, which is the support and prime
mover of the whole, is neglected.

He went on to note the failure of the states to speedily frame constitu-

tions, provide laws, and fill state offices with their ablest minds.

 

83Washington to Congress, 1778, cited by Sparks, p. 262.

|

270

He then concluded that "if the great whole is mismanaged, the states

. . must sink in the general wreck."84

For the next three years Washington continued to press for a
strengthened central government, fearing an imminent collapse of the
war effort if Congress could not raise troops and supplies. In February,
1781 he wrote that

the great business of war can never be well constructed, if it
can be conducted at all, while the powers of Congress are only
recommendatory. While one State yields obedience, and another
refuses it, while a third mutilates and adopts the measure in
part only, and all vary in time and manner, it is scarcely pos-
sible that our affairs should prosper or that anything but
disappointment can follow the best concerted plan.

He went on to note the continued American mistrust of a central govern-
ment.

The fear of giving sufficient powers to Congress, for the

[military] purposes I have mentioned, is futile. A nominal

head, which at present is but another name for Congress, will

no longer do. That honorable body, after hearing the interest

and views of the several States fairly discussed and explained

by their representatives, must dictate, and not merely recommend

and leave it to the States to do afterwards as they please,

which, as I havg observed before, is in many cases to do

nothing at all. 5
Even as the war ended, Washington continued to push for a stronger cen-
tral government, an idea he wrote about with increased frequency to the
eve of the Constitutional Convention in 1787.

In the period from the First Continental Congress to the final

adoption of the Articles of Confederation in 1781, what can be said

 

84Washington to Benjamin Harrison, December 13, reprinted,
Ibid., p. 286.
85February 23, 1781, cited by Sparks, Ibid., p 324.

271

about the American conceptions of executive power on a national scale?
The Congress, as the body charged with the formulation and execution of
continental policy, was extremely inefficient in its operation. As
previously noted, Americans were fearful of any central government
which might threaten their liberties. The states therefore empowered
their delegates to enact only measures which affected the continent as
a whole. For example, Congress declared independence, made war, formed
treaties, sent ministers to foreign courts, created paper currency and
pledged credit to support it, and on several occasions, conferred dicta-
torial powers on the commander-in-chief. 0n the other hand, Congress
only recommended to the states that they raise troops, levy taxes, send
supplies to the army, and enact and execute laws for the purpose of
carrying on internal government. In these areas, Congress and the
commander-in-chief were at the mercy of the states.

In the execution of its policies Congress reluctantly chose
to delegate only limited‘power to special committees to meet individual
problems as they arose. In the initial stages, this can be explained
by the fact that for over two years the question of independence had
not been settled. Even after the Declaration of Independence had been
approved, there were those who thought some reconciliation might be
reached with England. As such, it would serve no purpose to establish
a national constitution and create a whole new government. Committees
would be sufficient to handle the problems as they arose.

Once it became evident that there would be no reconciliation

with England, Americans were still reluctant to create a permanent

Pi; .. -43.

272

national government as evidenced by the debate over, and the length of
time it took to ratify, the Articles of Confederation. Internally,
Congress was even more reluctant to give up any of its power to commit-
tees fearing they might usurp their delegated powers and pose a threat
to Congress and the states. However, in the seven years since the First
Continental Congress a growing number of Individuals came to the conclu-
sion that Congress had to be restructured internally for it to effec-
tively carry out its policies. This led to the development of permanent
standing committees who were charged with the execution of policy in
their respective areas. Eventually these executive committees were
staffed with non-members of Congress charged exclusively with administra-
tive responsibilites. These committees carried on the executive func-
tions of Congress until the establishment of the new government under
the Constitution of 1787 where they ultimately became part of the Presi-
dent's cabinet.

The President of Congress functioned primarily to preside over
its sessions and receive foreign ambassadors. Moreover, he became the
conduit through which much of the congressional correspondence flowed
to both state executives and American foreign agents. His power was
rarely more than the combination of his personal influence, the autho-
rity granted to the presiding officer, and the influence he chose to
exercise over policy via his housekeeping chores as spokesman for Con-
gress and as its chief correspondent and diplomatic representative.

His term in office was indefinite until Congress adopted the year limit
proposed in the Articles of Confederation. In short, the importance of

this office in the period prior to the adoption of the Constitution of

273

1787 was to centralize in one person the function of acting as a
spokesman for Congress.

The important office for the development of American executive
theory in this period was the commander-in-chief. Here the weaknesses
of Congress acted to strengthen Washington's role. Since Congress could
not compel state compliance with its quotas for troops and supplies,
Washington was forced to intercede. In doing so, he developed a signi-
ficant line of communication with all levels of government acting as
both a clearing house fluiinformation and as a central executive agent
coordinating and directing the whole operation. Moreover, he provided
the link between the military organization and civilian government
which additionally involved him in shipping and various other commercial
matters connected with naval operations. Had Congress been more effec-
tively organized in all probability Washington's role might have been
confined to just military matters. As it was, it fell to Washington to
become the vital connecting link to keep the various elements together.
Washington was ideally suited to such a role given his ability to handle
a wide range of complex problems, his sensitivity to American fears of
the military, and his refusal to abuse or to go beyond the powers
granted to him even though at times they were virtually dictatorial in
nature. In short, this period was in a sense a training mission for
both Washington and the nation on the necessity of a well-organized and
empowered executive. However, neither Congress nor the nation was ready
for such a step except in the area of military affairs.

The adoption of the Articles of Confederation marked the

transition of the central government from an advisory body to the states

274

into the early semblance of a true national government. The Articles
prescribed the union and defined the powers Congress could exercise.

It was not a sharp break with the past since Congress had generally
confined itself within the limits outlined when the proposal was first
presented to the states for ratification five years earlier. The desig-
nation for the new body was "The United States in Congress Assembled"
with its membership the same as those elected in the last election.
There was no significant change in the organizational structure. Even
the President remained the same since the length of his term had been
fixed at one year within a three-year period prior to the final adoption
of the Articles.

The Articles of Confederation provided for a committee of
states to sit during the recess of Congress and act as an executive
head. This committee was made up of one delegate from each state and
was authorized

to execute . . . such of the powers of congress as the united

states in congress assembled, by the consent of nine states,

shall from time to time think expedient to vest them with;

provided that no power be delegated to the said committee,

for the exercise of which, by the articles of confederation,86

the v01ce of nine states in the congress . . . is requ1s1te.
Thus, the Articles strictly adhered to the policy that on the national
level civilian executive power was to be exercised only by committee.

Few individuals were satisfied with the government outlined

by the Articles. An increasing number of the delegates were calling

 

86Articles of Confederation, reprinted in Documents Illustra-
tive of the Fonnation of the Union of the American States, Charles
Tansill, ed. (Washington, D.C., 1927), p. 33.

 

 

275

for a stronger government or at least increased power for Congress.
In April, 1781 James M. Varnum proposed calling a constitutional conven-
tion. He argued that the object of their deliberation ought to be a
revision of the Articles to form the "kind of Government sufficiently
energetic to obtain the Objects of Peace when free from invasion." To
accomplish this, the delegates ought not be "composed of Members of Con-
gress, especially those whose political Sentiments have become interwoven
with their Habits, from a long Train of thinking in the same way." Once
assembled, they ought "to define the aggregate powers of the United
States in Congress assembled; fix the Executive Department, and ascertain
their Authorities." Varnum proposed that the convention's power include
even the right to ratify the document they drew up, but only if the
system "should expire at a given or limited Time."87
These sentiments were voiced by numerous other individuals in
Congress who saw that Congress must have coercive power over the states.
Others who saw the same need questioned the wisdom of trying to increase
the power of Congress so soon after the adoption of the Articles.
Thomas Burke noted that such an attempt "not expressly given by that
Charter . . . would give a dreadfull alarm to their Constituents who

88

are so jealous of their Liberty." Joseph Jones wrote that ”such a

Recommendation coming from Congress wo[u1]d excite fears in the States,

that there was a disposition in Congress to grasp dangerous powers."89

 

87
88

Burnett, Letters, VI, 42.
Cited by Burnett, The Continental Congress, p. 505.
89Burnett, Letters, VI, 58.

276

It would finally take six years for a significant number of individuals
to successfully gain the necessary support for such a move, and then

only after a number of failures.

CHAPTER VI

THE REVOLUTIONARY GOVERNOR:

A Transitional Executive In Crisis

The transition from the colonial era to the early state
governments was fraught with uncertainty. For the first time Americans
were faced with having to create their own constitutions. In most
states, the executive power was for the first time exclusively in the
hands of the Americans. The writers of the state constitutions were
therefore forced to experiment with a variety of constitutional arrange-
ments derived from the colonial experience. This chapter examines that
transition with special attention to the framing of the Massachusetts
constitutions of 1778 and 1780 as examples of the political theories
discussed in the revolutionary period.

During the early years of Revolution, the states underwent
the transition from temporary to permanent governments. As noted pre-
viously, the committees of correspondence and safety fulfilled most, if
not all, of the executive responsibilities of the provincial congresses
which were established to carry out the functions of government in the
last months of the colonial governments. On May 5, 1775, the Massachu-
setts Provincial Congress refused to acknowledge the authority of
General Gage as governor and turned to the Second Continental Congress

to seek direction on the establishment of civil government. Congress

277

278

was reluctant to advise anything more than a temporary expediency,
however, since a major remodeling of the constitution was too irrevocable
a measure when a reconciliation with England might still be made. Con-
gress finally urged Massachusetts to elect a new House of Representatives
which would select a new council to exercise the power of government
until "a Governor, of his Majesty's appointment, will consent to govern
the colony according to its charter."1
On October 18, 1775, Congress received a similar request from

New Hampshire, and recommended that the people call a convention to
establish, if they thought necessary,

such a form of government, as in their judgment, will best

produce the happiness of the people, and most effectually

secure the peace and good order in the province, during the

continuance of the present dispute between G[reat] Britain

and the colonies.
Later the same language was used in response to a request from South
Carolina. By November, 1775 it was evident to Congress that the provin-
cial governments had to be put on a firm foundation until it was clear
what course the dispute with England might take.

John Adams later recalled in his autobiography the various

questions discussed by the Americans during these initial stages of con-
stitution making. One of the key areas was the executive power. He

noted that

Kings we never had among us. Nobles we never had. Nothing
hereditary ever existed in the country; nor will the country

 

1Journals of the Continental Congress, II, 83-84.

2Ibid., III, 319.

279

require or admit of any such thing. But governors and councils
we have always had, as well as representatives. A legislature
in three branches ought to be preserved, and independent judges.
He went on to answer the query “where and how will you get your governors
and councils?" By election, he replied. "How,--who shall elect?" He
responded that "the representatives of the people in a convention will
be the best qualified to contrive a mode." He then concluded:
I knew that every one of my friends, and all those who were the
most zealous for assuming governments, had at that time no idea

of any other government but a contemptible legislature in one
assembly, with committees for executive magistrates and judges.

For their edification he put together his Thoughts on Government.3
Adams' pamphlet outlined a government based on a well-ordered

division of powers aligned to prevent any branch from usurping or abusing
its authority. His fundamental premise was that the best form of govern-
ment was republican in nature which he defined as "an empire of laws,
and not of men." The best of all republics was one "contrived to secure
an impartial and exact execution of the laws." If good government was
based on laws, by what means ought the laws to be made and administered?
He prescribed an assembly which was "in miniature an exact portrait of
the people at large." Moreover, he wrote, "a people cannot be long
free, nor ever happy, whose government is in one assembly." He there-
fore proposed two branches of the legislature because

if the legislative power is wholly in one assembly, and the

executive in another, or in a single person, these two powers

will oppose and encroach upon each other, until the contest

shall end in war, and the whole power, legislative and execu-
tive, be usurped by the strongest.

 

3Adams, Works, III, 19-23.

280

There should be a mediator between these two powers, a council or
senate which ought to be independent from the assembly and be vested
with a negative over legislation. These two bodies ought then to unite
to elect a governor "who, after being stripped of most of these badges
of domination, should have a free and independent exercise of his judg-
ment, and be made also an integral part of the legislature."4
Adams was aware that the proposal for the executive would be

"liable to objections." Nevertheless, he continued,

if you please, you may make him only president of the council,

as in Connecticut. But as the governor is to be invested with

the executive power, with the consent of council, I think he

ought to have a negative upon the legislature. If he is annu-

ally elected, as he ought to be, he will always have so much

reverence and affection for the people, their representatives

and counsellors, that, although you give him an independent

exercise of his judgment, he will seldom use it in opposition

to the two houses, except in cases the public utility of which

would be conspicuous; and some such cases would happen.5

The key to protecting the people from despotic executive offi-

cers was their annual election. Adams cited the maxim that "'where
annual elections end, there Slavery begins.'" Moreover, annual election
will teach these men "the great political virtues of humility, patience,
and moderation, without which every man in power becomes a ravenous

beast of prey."6

 

4Ibid.. pp. 194-196.

Ibid., p. 197.

281

Adams realized that this was an experimental period as
Americans tried to find a workable formulation of governmental powers.
He concluded that the election of the executive offices

‘ will answer very well for the present; but if by experiment
it should be found inconvenient, the legislature may, at its
leisure, devise other methods of creating, by elections of
the people at large . . . or it may enlarge the term for which
they shall be chosen to seven years, or for life, or make any
other alterations, which the society shall find productive of
its eese, its safety, its freedom, or in one word, its happi-
ness.

The provisions Adams sought for the Massachusetts executive
would have given him command of the militia, a limited veto, and some
opportunity for "a free and independent exercise of his judgment." He
would also have a small privy council for advising and sharing the
appointing and pardoning powers.8

Over all, Adams viewed the executive as the best counter-
balance to the assembly. To carry out this function required that he
possess sufficient powers to check the assembly and protect himself from
legislative domination. Moreover, he was to serve as the public spokes-
man to protect the general welfare against the appeals of special
interests. This strong executive could be made safe by annual election
and by placing a limit on the number of years any one person could serve.
Thus, for Adams a strong executive became a fundamental principle to a

well-written constitution.9

 

7Ibi

Ibid , p. 200.

9See John R. Howe, Jr., The Changing Political Thought of
John Adams_(Princeton, 1966), pp. 93-98.

d.
8

282

Another pamphlet which appeared about the time that Adams'

did was one entitled The PEOPLE The Best GOVERNORS: Or A PLAN Of GOVERN-
MENT Founded On The Just PRINCIPLES Of Natural FREEDOM. The author's
purpose was to "help in some measure to eradicate the notion of arbi-
trary power, heretofore drank in, and to establish the liberties of the
people of this country upon a more generous footing." He based his
theory on the principle that "the people best know their own wants and
necessities, and therefore are best able to rule themselves." He went
on to argue that the

just power of a free people respects first the making and

secondly the executing of laws. The liberties of a people

are chiefly, I may say entirely guarded by having the180n-

troul (Sic) of these two branches in their own hands.

After discussing the theory of representative democracy, the
author turned to answering questions about the construction of the execu-
tive branch. He opposed the notion that the legislative representatives
were more qualified to select the executive officers than the people.

If the legislators were to do so they might "assume to themselves a
lasting, unlimited power" since they would combine the supreme legisla-
tive authority with a power to control the executive branch through
appointments. Moreover, he said, if the people can choose good legis-
lators why can they not choose good executive officers? It was, he

pointed out, "much easier to execute, than to make or regulate the

system of laws." Therefore, he concluded, "the more Simple, and the

 

10Pamphlet reprinted in Frederick Chase, A History of Dart-
mouth College (Cambridge, 1891), I, 655.

283

more immediately dependent . . . the authority is upon the people the
better, because it must be granted that they themselves are the best
guardians of their own liberties.“n
The author further argued that if there was to be a "negative

power over those who enact the law" it could be derived from the legis-
lature. When the people give the power to legislate to the representa-
tives they do not authorize them to give it to any one else. "Therefore,

. for the representatives to appoint a council with a negative
authority, is to give away . . . that power, which they have no right
to do, because they themselves derived it from the people." Moreover,
he contended a negative in the legislature was

a palpable contradiction. . . . For this negative power, if

it cannot be called legislative, has at least such weight in

the legislature as to be the unlimited sine qua non (a restrain-

ing power). Those therefore who act as a council or negative

body make use of a power in the room of the people, and conse-

quently represent them so far as their power extends.
In short, "to say that the legislative body can appoint them is as absurd
as to say that the representatives have a right to appoint the repre-
sentatives of the people."12

Once the author concluded his discussion of the theory of the

legislative and executive authority, he turned to a practical framework
of government. He cautioned that "A government is not founded for a day

or a year, and for that very reason should be erected upon some invari-

able principles." Moreover,

 

1'Ibid., p. 656.

'zIbid.

284

ii<:rvv is the time for the people to be critical in establishing
a. plan of government, For they are now planting a seed which
‘rl‘i'll arise with boughs, either extended to shelter the liberty

of succeeding ages, or only to skreen (sic) the designs of
Crafty usurpers.

He recommended that the executive be elected annually, "with-
01“; any concern in the legislature." His function was
to transact such occasional business as the assembly may
devolve upon him; And he may be the general commander of the
militia, and in these capacities the people, if they please,
may stile (sic) him a governor--and in case of his incapacity

a lieutenant, &c., may be appointed as before, to act occa-
sionally in his stead.

The governor with the advice of I'any three of his council"
CcDuld call a special assembly in emergencies. Officers of government
CO uld not hold more than one office at a time and had to take a reli-
9"i (ous oath. Any freeman could lodge a complaint against any officer of
9 overnment and if twelve members of the "assembly think there is just
grounds for the said complaint, they may suspend the person so complained
0‘1F’ in his office, appoint another for the present in his stead." Any
O‘iF‘ficer so removed was subject to punishment by the courts.15

The author concluded his discussion by noting that "the forms
01: government that have hitherto been proposed since the breach with
GV‘GEEIt Britain, by the friends of the American States, have been rather
‘h3() arbitrary." His proposal was directed at securing "the liberties
Of' 'fiormer ages . . . [by keeping] a just notion of them [which] has

\

13Ibi

D.

., p. 660.

14

H

bi

Q

15I

0'

id., p. 662.

285

guarded the people against the sly insinuations and proposals of these

of a more arbitrary turn, whose schemes have a tendency to deprive man-

kind of‘ their natural rights."16

Most authors of the pamphlets which discussed governmental
theory agreed that power in the hands of any one individual or group
without checks was dangerous. Moreover, they found little agreement
over how best to construct the executive in the state constitutions.

0Pposed to Adams strong executive was Thomas Paine's argument that

n17

"Assembl ies" ought to "be annual, with a President only. Massachu-

setts was to go without a governor for five years, which led one writer
to advocate that it not establish one in the proposed constitution of
1780, but leave the executive power in the hands of the council. An
anonymous Virginia pamphleteer advocated that the governor be appointed
for life, made independent of the legislative and judiciary branches,
and be gi ven a wide range of administrative authority.18
In spite of the extensive political discussion that took

place in the last years before independence, most of the new state con-
stitutions were written with considerable haste in a time of crisis.
This led to many difficulties when the governments attempted to operate

under them once they had been ratified. Most political writers could

agree upon a few fundamental principles, but the problem came when they

‘
1

1
E51bid., pp. 662-663.

1
Am . 7Thomas Paine, Common Sense, reprinted in Peter Force,
__er1can AV‘czhives, 4th ser., IV, 1555.

8Force, American Archives, 4th ser., VI, 730-732.

286

tried to construct the specific provisions of a constitution to carry
them out. One such example was the state of Massachusetts, which was a
leader in establishing a temporary or provisional government before the
break with England.
Shortly after the provisional government of Massachusetts had
been established, it came under attack from dissatisfied citizens. A
petition from the town of Pittsfield complained, among other things,
about "the dangerous Effects of nominating to office by those in power."
In their opinion this was the "most defective discordant 81 ruinous System
of Government of any that has come under our Observation." Moreover,
The Government of our respective Corrmittees is lenient &
efficacious. But if it is necessary for the carrying into
more effectual Execution the means of our Common safety that
some Mode of government should be adopted we pray it may be
one De nove agreeable to that formentioned Advice of the
Continental Congress 81 no more of our ancient form be retained
than what is Just 8 reasonable.19
Those supporting the provisional government sought to show
how this was different in its operation than it had been under the Crown,
SPecifica‘lly in the combination of executive and legislative branches.
An articl e which appeared in the Massachusetts Spy on May 18, 1776 out-
lined the arguments. The significant point the author noted was that
under the old system the citizens had "the misfortune of placing our
confidence in men of weak and contracted minds, in men of sordid and

selfish spirits, in cursing and designing men and in pretending patriots."

””11 the new elections the citizens had the "opportunity . . . to

‘\

05C” 1 9Reprinted in The Pppular Sources of Political Authority,
and Mary F. Handlin, eds. (Cambridge, 1966), pp. 63-64.

287

delegate the powers of government to those, and to those only, who will

act upon the genuine, the unadulterated principles of the constitution"

and who will "promote the greatest happiness of the greatest numbers."20

From the adoption of the Declaration of Independence to the
rejection of the Massachusetts constitution of 1778, frequent discus-
sions took place in that state on the formulation of government. Many
agreed with the citizens of Boston who instructed their Representatives

that it was

essential to Liberty that the legislative, judicial & executive
Powers of Government be, as nearly as possible, independent of
& separate from each other; for where they are united in the
same Persons, there will be wanting that natural Check, which
is the principal Security against the enacting of arbitrary
Laws, end a want on Exercise of Power in the Execution of
them.2

Few, however, voted as the town of Ashfield did. They noted

that it is our Opinion that we 00 not want any Goviner (sic)
blgt the Goviner of the univarse (sic), and under him a States
Gineral (Sic) to Consult with the wres (sic) of the united
Stats (sic) for the Good of the whole.

The proposed constitution of 1778 provided for a general court
divided i nto a House of Representatives and Senate with a governor and
lieutenant-governor, both of whom had a seat in the Senate. The quali-
fications of the governor and his lieutenant were a five-year residency

Prior to their selection and an estate valued at one thousand pounds,

‘

20Reprinted in Massachusetts, ColonLto Commonwealth, Docu-
mgnts 9n 1the Formation of its Constitution. 1775-1780. Robert J. Taylor.
e - ”11 1amsburg, Virginia. 1961). P- 30-

21Handiin, ed., Political Authority, p. 95.

 

22Ibid., p. 111.

288

of which five hundred had to be in Massachusetts real estate. For the
lieutenant governor it was five hundred pounds, half of which was to be
in real estate. This compared with the requirement for representatives
of two hundred pounds, half in land in the town he represented. Any

citizen who possessed sixty pounds was entitled to vote for the execu-

tive offices and senators. The executive officers also had to be of

the protestant faith. 23

The responsibilities of the governor included those of
commander-in-chief of the army and navy and certain enumerated duties.
He had the authority, with the advice of the Senate, to recess or pro-
rogue the general court "not exceeding forty days in any one recess of
said Court." Except for all "civil officers annually chosen, with
salaries annually granted for their services," who were chosen by the
general court, the governor and Senate appointed all others. The gov-
ernor and his lieutenant plus the speaker of the house, or any two of
them, had the authority of granting pardons "for the time being."

The governor had no negative "in any matter pointed out by
this Constitution to be done by the Governor and the Senate, but shall
have an equal voice with any Senator, on any question before them." On
the Question of impeachment, the "executive officers and the Senate
comprised the court of impeachment unless any one of them was impeached."
Moreover, the power to impeach all officers for "malconduct in their

respective offices, shall be vested in the House of Representatives."

289

The remainder of the impeachment clause read very much like the one
adopted in the Federal Constitution of 1787.24

When the Constitution was presented for public consideration,
it was voted down for a variety of reasons. In the process of consider-
ing the Constitution many towns provided a detailed analysis of the
provisions they objected to the most. These comments offer an interest-
ing index to American thinking about executive theory on the state level.

One of the most frequently mentioned objections was to the
Property requirements both for voting and holding executive offices.
The town of Lennox thought it was a violation of the articles governing
the national union which guaranteed that all free citizens "shall be
intitled (sic) to all privileges and immunities of Free Citizens."25
The town of Mendon argued that it was unfair to be governed by laws
created by persons who some might be denied having the right to vote
on.26 Others thought the property requirement for the executive offices
50 low as to be meaningless. In short, few towns were satisfied with
3W 01' the property requirements.

Mendon was adamantly opposed to the proposed governors' mili-
tary Powers. Specifically, they objected to his power to "Imbody the

Militia." A governor who was "Enemical (sic) to the people" might march

the tr‘OOPS to the opposite end of the state from where the enemy was

 

attacking. They cited the case where the "Publick Stoars (sic) Seized
H
24Ibid., pp. 197-201.
2
51311., p. 254.
26

Ibid., p. 267.

290

in the Year l774" resulted from the people's failure to take them
before the governor did since he could "Remove them at his pleasure."
They therefore wanted the governor to be denied the power to "Imbody (sic)
the Mil itiaII without the approval of the legislature. This was a clear
case of fear of the executive power based on colonial experience. This
was by no means the case with other towns.27

By far one of the most sophisticated analyses of executive
power in the whole revolutionary area was the study contained in the
Essex Result, a report from twelve out of the twenty-one towns in that
county. They voted eighteen objections to the Constitution, five of
which were in reference to the executive. Most objectionable was the
failure of the Constitution to sufficiently separate the executive and
1eSlislat:ive powers. In their third objection, they argued that the
executive ought not to have "any share or voice in the legislative
power in framing the laws." They also objected to the seventeenth and
twentY-s econd articles on the same grounds, which made the governor
president of the Senate and gave him veto power as a member of the Senate
in additi on to his executive veto. The twentieth article evoked protest
because the governor was required to be a member of the impeachment
court. The twenty-third article was objectionable because it did not
vest the pardoning authority "solely . . . in the supreme executive power

of the stategu28

\
271m.

281mm. pp. 324-326.

291

Once they had voted their objections, they formed a committee

to "attempt the ascertaining of the true principles of government . . .
and to delineate the general outlines of a constitution conformable
thereto." In their analysis of executive power, they noted that it was
"sometimes divided into external, and internal executive." The former
deals with "whatever concerns the transactions of the state with any
other independent state." In this case the national government "hath
10Pped off this branch of the executive, and placed it in Congress."
The internal executive power concerns

the peace, security and protection of the subject and his

property, and the defense of the state. The executive power

15 to marshal and command her militia and armies for her

defense, to enforce the law, and to carry into execution all

the orders of the legislative powers.
That bei’ ng the case. it was clear to them that these powers "ought to
be in di fferent hands, and independent of one another, and so ballanced,
(sic) and each having that check upon the other, that their independence
shall be preserved." If these powers are in the same branch "the govern-
ment wil ‘I be absolute, whether these powers are in the hands of one or
a large number." Moreover, if these powers were united, "mischiefs the
most terrible would follow." The executive "would enact those laws it
pleased to execute. and no others" and it would set aside the judiciary
"as l"COHVenient and tardy" which would end the protection of citizens
and make the executive "absolute, and the government [would] end in
tyranny." If the executive and judiciary were united

the Subject would then have no permanent security of his

Efirson and PrOperty. The executive power would interpret
e 1aws and bend them to his will; and, as he is the judge,

292

he may leap over them by artful constructions, and gratify,
with impunity, the most rapacious passions.

The committee concluded that any new constitution ought to be
based on certain general principles of organization. Among these included
the notion that the supreme power was limited; that is, it cannot violate
the natural and inalienable rights of mankind; that the three powers of

government were

to be lodged in different hands, that each branch is to be
independent, and further, to be balanced, and be able to exert
such checks upon the others, as will preserve it from a depen-
dence on, or a union with them,

and finally, the government "can exert the greatest power when its supreme

authority is vested in the hands of one or a few." The rest of the

PrihCip'l es referred to the legislative powers.30

Once they had agreed to these general principles of govern-
ment, the Essex Result discussed the specific principles needed to esta-
blish each branch. With respect to the executive, they argued that

it ought to be conducted with vigour and dispatch. It should
be able to execute the laws without opposition, and to controul
all the turbulent spirits in the state, who should infringe
[Ion] them. If the laws are not obeyed, the legislative power
1s vain, and the judicial is mere pagentry. . . . The execu-
tive power ought therefore . . . be exerted with union, vigour,
and dispatch.

The military aspect of the executive was also significant,
they ar‘Slued. "In this department, union, vigour, secrecy, and dispatch

are more peculiarly necessary." Therefore, to protect the citizens from

K
291 id.. pp. 332, 337-338.

30Ibid. , pp. 339-340.

311mm, p. 344.

293

abuse "the armies should always be composed of the militia or [a] body
Q [of] the people [since] standing armies are a tremendous curse to a
state." Moreover, the executive ought to have the power to appoint and
promote officers because "if it is in his power immediately to promote
or disgrace them, they will be induced to noble exertions." If the
legislature retains this power it would be an "undue influence over the
¢a><ecutive whiCh will amount to a controul (sic) for the latter will be
their creatures, and will fear their creators." Furthermore, legislators
hl()Ll1d be more prone to appoint their friends but if this power was kept

in the hands of a small number of individuals, as with the management

0 f' a department,

their conduct is accurately noticed. On any miscarriage of
imprudence the public resentment lies with weight. All the
eyes of the people are converted to a point, and produce that
.attention to their censure, and that fear of misbehaviour,
\which are the greatest security the state can have, of the
\wisdom and prudence of its servants.

Therefore the "supreme executive power should be vested in the hands of
(Hie (yr of a small number, who should have the appointment of all subor-
dinate executive officers." However, "should the supreme executive
Offi cer be elected by the legislative body, there would be a dependence
of the executive power upon the legislature." The same was true "should

he be elected by the judicial body." They concluded that the people at

7
a "‘9 e must

(designate the person, to whom they will delegate this power.
JAnd upon the people, there ought to be a dependence of all the
powers in government, for all the officers in the state are but

‘the servants of the people.

\
321bid.. pp. 345-346.

294

After discussing the requirements for the executive officers
and their method of election, which they opposed, they went on to dis-
cuss the governor's powers. They opposed the combined power of the
governor and Senate to hear impeachments as being unwise. Moreover,
they failed to find any power of the governor which might be used to
Farevent the executive from legislative encroachment. "Without this

check the legislative power will exercise the executive, and in a series
of years the government will be as absolute as that of Holland."33

In short, the Essex Result provides an interesting summary of

ideas on executive power a full decade before the adoption of the
Federal Constitution. Many of the ideas and concerns expressed denote
an understanding of the issues which were vigorously argued during the
debates in the framing of that document. Especially noteworthy was the
"99d to have sufficient power in the executive branch for both carrying
out its duties and protecting itself from encroachments by the legisla-
t'iVe department. Also significant was the concern expressed for the
separation and balancing of the various departments. In the final analy-
sis this document provides an interesting counter to the argument that
the Americans during the Revolution were so fearful of executive power
that they were willing to strip it to the basic minimum necessary for
Carrying out government.

Even though the Constitution of l778 was rejected by the peo-
p1 e a the demand for a legitimately constituted government did not subside.
M031: counties were willing to wait for developments, but a determined
\

3333151.. p. 351.

295

number of constitutionalists were insistent on adopting a document
Whl Ch firmly grounded the government in the people. The statement
adopted by the town of Worcester probably represents the majority opin-
ion of those calling for a new constitution. They noted that it was
necessary for the people to take up a temporary government in the crisis
atmOSphere in the last days of the royal government.
But when we had repelled the fatal blow . . . to those in power
that were endeavoring our destruction, and; agreeable to the
recommendation of the Continental Congress, assumed the forms
and execution of legislative, and executive government the
reason and necessity of the [county] Conventions, to advise
the general court ceased. . . . At this day, it appears to
us, they can do no good, but may be productive of great and
lasting mischief and for Committees to take to themselves such
power is, we conseive (sic), without the line of their duty;
they are made by the Law, and the Law has limited and defined
their power and jurisdiction, every step beyond which is an
illegal arrogation.
IRecalling the reason for their rebellion against England which was not
against the laws, "then in being . . . but the executors of the laws,
who instead of using them for the end they were designed, prostituted
them to flaginous purposes." However, the executive authority was now
deposited in "those that have the confidence of the people [and they
WEre] men of virtue and knowledge, whose doings and decisions meet with
universal approbation." They then called for obedience to the general
COurt, as opposed to the staunch opposition of the town of Pittsfield,
Until a new constitution could be framed. This document reaffirms the
nOtion that they were not afraid of executive power when properly made
Y‘esponsible to the people.34

\

34Ibid.. pp. 369-373.

296

When the new convention was finally called to write the
COOS-ti tution, there were relatively few instructions given the respec-
tive delegates regarding the composition of the executive power. Pitts-

fi e'\ d cautioned against giving the governor and Senate any veto power

35

(’VEBY‘ acts of the general court. Other towns wanted frequent elections

“ri]CV\ Williamston calling for popular election of all civil and military

Off‘i ces. Dudley wanted no salary attached to the governor's office.36

Se\Ieral towns emphatically demanded a total separation of the branches
“'i":li Williamston suggesting that all branches be given the minimum power
necessary to protect the security, safety, and happiness of the inhabi-
tailr'lts.

After seven months' work, the convention presented the proposed
C0 hstitution before the people on March 2, l780. In the convention's
aCildress to their constituents they noted that

a government without Power to exert itself, is at best, but a
useless Piece of Machinery. It is probable, that for the want
of Energy. it would speedily lose even the Appearance of Govern-
ment, and sink into Anarchy. Unless a due Proportion of Weight
is given to each of the Powers of Government, there will soon
be a Confusion of the whole. . . . The Powers of Government
must then be balanced: To do this accurately requires the
highest Skill in political Architecture. Those who are to be
invested with the Administration, should have such Powers

given to them, as are requisite to render them useful in their
respective Places; and such checks should be added to every
Branch of Power as may be sufficient to prevent its becoming
formidable and injurious to the Commonwealth.3

351bid.. p. 411.

361bid., p. 415.

371bid., pp. 435-436.

297

The convention report pointed out that the office of the
governor was "emphatically the Representative of the whole People, being
chosen not by one Town or County, but by the People at large." There-

fore they thought it safest to rest the executive power in his hands,

arui

as the Safety of the Commonwealth requires, that there should be
one Commander in Chief over the Militia, we have given the
Governor that Command for the same reason, that we thought him
the only proper Person that could be trusted with the power of
revising the Bills and Resolves of the General Assembly; but

the People may if they please choose their own Officers.

To prevent the governor from abusing the power

which is necessary to be put into his hands, we have provided
that he shall have a Council to advise him at all Times and
upon all important Occasions, and he with the advice of his
Council is to have the Appointment of Civil Officers . . . for
if those Officers who are to interpret and execute the Laws.
are to be dependent upon the Election of the people, it must
forever keep them under the Control of ambitious, artful, and
interested men, who can obtain most Votes for them.--If they
were to be Appointed by the Two Houses or either of them, the
persons appointing them would be too numerous to be accountable
for putting weak or wicked Men into Office. Beside the House
is designed as the Grand Inquest of the Commonwealth, and are
to impeach Officers for malconduct; the Senate are to try the
Merits of such impeachments; it would be therefore unfit that
they should have the Creation of those Officers . . . but we
conceive there is the greatest propriety in vesting the Gov-
ernor with this Power, he being, as we have before observed,
the complete representative of all the People, and at all
Times liable to be impeached by the House before the Senate
for maladministration. And we would here observe that all the
Powers which we have given the Governor are necessary to be
lodged in the hands of one Man, as the General of the Army

and first Magistrate, and none can be entitled to it by he

who has ghe Annual and United Suffrages of the whole Common-
wealth.3

381bid., pp. 437-439.

298

The Massachusetts Constitution of 1780 was a significant
document inasmuch as it provided a number of precedents which were later
used to fashion the presidency in the Convention of 1787. Chapter II
01: the Constitution, as it was called, outlined the executive power.
lit t>eegan with a general statement: "there shall be a SUpreme Executive
Magi strate, who shall be styled, THE GOVERNER OF THE COMMONWEALTH OF
'“U\SSESAtHUSETTS; and whose title shall be--HIS EXCELLENCY." It then enu-
meY‘ated the governor's prerequisites, method of election, power, and
dLl‘tzies. He was to be an inhabitant for the preceding seven years, to
own property in Massachusetts of at least the value of one thousand
l13<>I.Jnds, and to be "of the Christian religion."39

The election procedure was similar to the one later adopted
‘5153 the federal electoral college. It required that each town record
the name and number of votes each candidate received. These lists were
Scaled and transmitted to the general court. If no one received the
majority then the general court would elect

two out of four persons who had the highest number of votes,

if so many shall have been voted for; but, if otherwise, out

of the number voted for; and make return to the Senate of the

two persons so elected; on which, the Senate shall proceed,

by ballot, to elect one, who shall be declared Governor.
.T‘lius, the town and house votes became a nominating process for the Senate
40

to elect if there were no generally known candidates.

The governor had the authority to convene the general court
and together with at least five counsellors "keep a Council, for the

x

39 d , p. 456.

Ibi .
4°Ibid., pp. 456-457.

299

orderi ng and directing the affairs of the Commonwealth, agreeably to
the Constitution and the laws of the land." He also had, with the advice
0f the council, the power to prorogue the legislature within specific
bouNCls as well as adjourn it in cases of disagreement but "not exceeding
Ninety days."41
The governor's military authority was that normally given to

90" ernors as comnanders-in-chief. However, when the legislature deemed
it necessary the governor was authorized to exercise "the law martial."
The governor was

intrusted (sic) with all these and other powers incident to

the offices of Captain—General and Commander-in-Chief, and

Admiral, to be exercised agreeably to the rules and regula-

tions of the Constitution, and the laws of the land, and not

otherwise.
The only exception was that he was not to renove the troops beyond the
S‘e-Zate borders without

their free and voluntary consent, or the consent of the General

Court; except so far as may be necessary to march or transport

them by land or water, for the defense of such part of the
State, to which they cannot otherwise conveniently have access.

42
The pardoning and appointing powers were vested in the gov-
eY‘nor with the advice of the council. The military officers were vari-
oUsly elected or appointed by the House and Senate and commissioned by
‘t1'1ee governor. All officers of the continental army were appointed by

the governor with the advice of the council. A special clause granted

4]Ibid.. pp. 457-458.

42Ibid., p. 459.

300

the governor power to nominate and appoint all political officers with

the advice and consent of the council.

The governor also had the power to issue warrants from the
treas ury with the advice and consent of the council for the purposes of

mi1 ‘3 tary defense and the execution of the acts and resolves of the

general court.43 He also had a limited vote. Moreover, since "the

pub1 ic good requires that the Governor should not be under the undue

inf] uence of any of the members of the General Court, by a dependence

on them for his support" and that he may

act with freedom for the benefit of the public--that he should
not have his attention necessarily diverted from that object
to his private concerns--and that he should maintain the dig-
nity of the Commonwealth in the character of its chief magis-
trate--it is necessary that he should have an honorable stated
salary, of a fixed and permanent value, amply sufficient for
those purposes, and established by standing law.

The Constitution also directed that this "be among the first acts of the

cSeneral Court, after the Corrmencement of this Constitution, to establish

Such salary by law accordingly."44

When the finished document was presented to the people, a

'"lumber of doubts were raised as might be expected. However, no town

Was unwilling to give it a trial realizing that it was not a perfect
<1<3cument and could be amended in the future if experience indicated

that some sections needed alteration. Opposition to the executive por-

tion of the Constitution centered around the appointing power. Given

the power over military appointment some feared that it might put too

43
44

Ibi

O.

Ibi

O.

.. pp. 459-461.

301

much power in the governors' hands while others feared that the election

0f ce rtain officers might make them too independent to take orders from
the-i Y‘ superior officers.

Cfi 11“ cism.

Civilian appointments likewise came in for
Some argued that the governor did not "know in so extensive

a State who are proper for Officers" and would be likely "to sell offices

to the highest bidder."45 Others wanted as many offices elected as

DOSsible. Winsor reflected this fear of the governor's patronage power

tlfi’ twoting that it was not safe
to put any more athority (sic) into one Mans hand than what is
of absolute necessity,—-and if the Governor should give himself

so much Time as would be necessary for that purpose he neg-
lect[s] other business of more importance. 5

I h the final analysis, however, the Massachusetts Constitution of 1780

lDY‘QVided a number of precedents which were very instructive when it came

to formulating the presidency later.

The adoption of the Revolutionary constitutions in other

3 tates underwent much the same trial-and-error process that Massachusetts

Cl id. However, the results were often complicated by the speed and poli-

tical inexperience with which they were written. Most were written in

the confused period during the initial phases of independence where the

S tates looked to the Continental Congress for guidance. As noted previ-

ously, Congress requested that the petitioning states draw up constitu-

t ‘i ons that

451bid., p. 88l.

461bid., p. 505.

302

establish such a form of government, as, in their judgment,

will best produce the happiness of the people, and most effec-

tually secure peace and good order in the province, the con-

tinuance 3f the present dispute between Great Britain and the

colonies. 7
A year later in May, l776 Congress passed a resolution urging the remain-
ing states to follow suit. In the words of one historian,

American state government in its essential principles was not

designed for efficient, constructive public work, but was the

product of temporary and peculiar conditions growing out of

the revolt against Great Britain.48

The task facing the writers of the new state constitutions

was of no small consequence. The debates and controversies over the
formation of the new governments consumed American interests like few
other events had done. In the words of one contemporary

it is a point generally allowed that internal oppression is

more intolerable than that of a foreign enemy: for in this

latter case it is at a distance; but in the former the usurp-

ing or tyranical eye is immediately over the oppressed.
Therefore, he concluded, "A bare conquest over our enemy is not enough;
and nothing short of a form of government fixed on genuine principles
can preserve our liberties inviolate." Furthermore, he continued,
”Mistakes and errors in the principles of government eat like a canker.
At first they may be but small; but as they grow they will get beyond

49

the power of remedy, and at length destroy the body." Thus, Americans

not only had to contend with the enemy, but put their own house in order

 

47Journals of the Continental Congress, III, 3l9.

48Leslie Lipson, The American Governor From Figuehead to
Leader (Chicago, 1939), p. l5.

 

49"The Republican," reprinted in Chase, A History of Dartmouth
College, I, 43l.

 

303

as well. Once they had created their own government, Samuel Adams

PVEdlCtEd. they would then "feel their Independence."50

George Washington realized the difficulty in writing a new

constitution. In a letter to his brother about the Virginia Convention,

he declared:

To form a new Government, requires infinite care, and unbounded
attention; for if the foundation is badly laid the superstruc-
ture must be bad, too much time therefore, cannot be bestowed
in weighing and digesting matters well. We have, no doubt,
some good parts in our present constitution; many bad ones we
know we have, wherefore no time can be mispent that is imployed
(sic) in separating the Wheat from the Tares. My fear is,

that you will all get tired and homesick, the consequence of
which will be, that you will patch up some kind of Constitution
as defective as the present; this should be avoided, every Man
should consider, that he is lending his aid to frame a Consti-
tution which is to render Million's happy, or Miserable, and
that a matter of such moment cannot be the Work of a day.51

Thus, as early as l776 Washington was deeply aware of the need for a
well-grounded constitutional structure before any government could expect
to succeed.
The Declaration of Independence was a turning point in the

constitutional history of America. One observer noted that the

declaration of independency made the antecedent form of govern-

ment to be of necessity null and void; and by that act the

people of the different colonies slid back into a state of

nature, and in that condition they were to begin a new.52

John Jay noted that

 

50Samuel Adams to Samuel Cooper, April 30, l776, Harry A.
Cushing, ed., Writings of Samuel Adams, III, 283.

51George Washington to John Augustine Washington, May 3l,
l776, Writings of George Washington, John C. Fitzpatrick, ed. (Washing-
ton, l932-l937), V, 92.

52

 

 

“The Republican." Chase, History of Dartmouth College. PPo
43l-432.

304

the Americans are the first people whom heaven has favored
with an opportunity of deliberating upon, and choosing the
forms of government under which they should live; all other
constitutions have derived their existence from violence or
accidental circumstance, and are therefore probably more
distant from their perfection, which, though beyond our reach,
may nevertheless be approached under the guidance of reason
and experience.

Dr. David Ramsay echoed this sentiment when he said

we are the first people in the world who have had it in their

power to choose their own form of government. . . . But hap-

pily for us, the bands of British government were dissolved

at a time when no rank above that of freemen existed among

us, and when we were in a capacity to choose for ourselves

among the various forms of government, and to adopt that

which best suited our country and people.
Moreover, he concluded, "we are in possession of constitutions that
contain in them the excellencies of all forms of government, free from
the inconveniences of each."54

The overriding concern of those who drew up the first state

constitution was providing for the defense of the state with a minimal
threat to the liberty of the citizens. The sections in each constitu-
tion outlining the executive power were therefore primarily concerned
with his military role. Each state gave him the title of commander-in-
chief or captain-general and, in the case of Georgia, he had both titles
to designate his military capacity. In Pennsylvania, where the execu-
tive power was vested in a council, the president of the council was

given the title of commander-in-chief but was specifically prohibited

 

53"Judge Jay's Charge, September 9, 1777," Niles, ed., Princi-
ples and Acts of the Revolution, p. l8l.

 

54"Dr. Ramsay's Oration, July 4, 1778," Ibid., pp. 379-382.

305

from taking command in person. His function was only that of military
advisor to the council unless they saw fit to give him command. By and
large, the military powers conferred on the governor were fairly uniform
through most of the constitutions. In this area he possessed more inde-
pendence than any other. With the advice of the council, he could call
up the militia but was prohibited from marching them beyond the state
line unless they volunteered to do so. He was also empowered to lay
embargos and the like for varying lengths of time between legislative
sessions. In some instances, with the advice and consent of the council,
he could appoint officers not specifically elected or appointed by the
legislature. In several instances, he could establish martial law with
the advice of the council. In short, the early governors were, for the
most part, designed to fulfill first a military function and secondly
a civilian function. In this capacity, they wielded significant powers
even though checked by a council.55
Most Of the revolutionary constitutions contained general
statements about the executive powers. Delaware allowed the governor
to "exercise all the other executive powers of government, limited and
restrained as by this constitution . . . and according to the laws of

the state."56

The Georgia and Virginia constitutions had similar
phrases. While the South Carolina Constitution of l778 stated that the

"executive authority be vested in the governor and commander-in-chief,

 

55See Poore, The Federal and State Constitutions,_Colonial

Charters,_and Other Organic Laws'(Washington, l878), II, l544.
56Ibid., 1, 274.

306

57 the other constitutions for the most

in the manner herein mentioned,"
part combined the executive's title with a statement on the nature of
the power. The Pennsylvania Constitution noted that "the Supreme Execu-

tive power shall be vested in a president and council."58

These phrases
conferred no power but rather served to identify the ultimate source of
executive authority. All executive authority, power, and duties were
contained within specific clauses of the constitutions. The Maryland
and Virginia Constitutions went so far as to insert a clause which said
the executive authority "shall not, under any pretense, exercise any
power or prerogative, by virtue of any law, statute or custom of England

59 Thus, it was clear that the executive was limited

or Great Britain."
to only that authority found expressly within the constitution or that
given by legislative act. This became an issue on the national level
when some began to interpret Article II, section one of the Federal
Constitution, which grants the executive authority to the President, as
conferring power on the President not specifically stated in the rest
of the Constitution. The state experience was clear on this subject as
not conferring any power.

In most states the chief executive was called a governor. In
Delaware he was called president or chief magistrate. In New Hampshire

and Pennsylvania he was president of the council. South Carolina used

president in the Constitution of l776 and governor in the Constitution

 

57151 ., II, l62l.
I id., p. 1542.
Ibi .. pp. 824, 1911.

307

of l778. In the cases where he was president of the council, the
executive authority was the weakest.

The prerequisites for holding office as governor included in
varying degrees age, residency, property holding, and religious oaths.
The North Carolina and New Hampshire Constitution of l784 both required
the governor to be thirty years of age. All other states did not adopt
a minimum age until their second or third constitution. Residency
requirements ranged from Georgia's three years to South Carolinals ten
years with most being from five to seven years. Delaware, New Jersey,
New York and Pennsylvania had none. The North Carolina, Massachusetts,
and New Hampshire Constitution of l784 required a freehold of at least
a thousand pounds with New Hampshire's being half that. The South
Carolina Constitution of l778 required a settled plantation or freehold
valued at least l0,000 pounds clear of debt, while the previous one only
required the same amount for the president as a member of the general
assembly. All except New York and Georgia required some religious
affirmation. Most required that he be Christian with four specifying
that he be Protestant. Three states posed other requirements. Maryland
wanted a "person of wisdom and virtue," New York a "wise and discreet
Freeholder," and New Jersey a "fit person."

Most state constitutions had a one-year term for the executive
with varying degrees of re-eligibility. Both of the South Carolina
Constitutions had a two-year term with the second stipulating that he
would not be eligible for four years. New York provided a three-year
term with no statement on re-eligibility, while in Delaware he was not

able to serve more than one three-year term out of six years. North

308

Carolina provided a one-year term in which he was eligible for three
out of six successive years. All others had one—year terms with no
statement as to re-eligibility. One reason for the short terms was
spelled out by the Maryland Constitution which stated that
a long continuance, in the first executive departments of power
or trust, is dangerous to liberty; a rotation, therefore, in
thosg degartments, is one of the best securities of permanent
ree om.

Eleven of the states chose their chief executive by vote of
the legislature while Massachusetts and New York had popularly elected
executives with the only limitation that the voters be freeholders
qualified to vote for senators. Though the majority of the states
elected a governor through the legislature, they were careful to include
clauses that no one could hold more than one office of public trust and
profit at any one time. These were coupled with statements which made
it emphatic that no branch was to exercise the powers of any other.
Thus, the annual election of most governors and all legislatures put
the two branches on an equal footing with respect to their accountability
for their previous year's activities. If that were not enough, most
states provided an impeachment mechanism to remove the offending party
from office and subject him to the punishments of the law. Delaware
went so far as to make the executive liable to impeachment a full eight-
een months after he left office.

One of the greatest complaints the colonial legislatures had

against the royal governor was his power to interfere with the legislative

 

601bid., p. 819.

309

process. The new state constitutions took care to minimize executive
interference. No state gave the governor power to dissolve the legis-
lature. Most only had power to prorogue it but only for a limited
number of days per year, generally between forty and ninety days. The
governors could, however, summon the legislature to meet in emergency
sessions and in some states when both houses diSagreed over adjournment
the governor could then step in. While this was a limitation of the
executive authority when compared to the royal governor's authority, it
cannot be considered one when compared to the authority vested in the
President in the Federal Constitution which was quite similar to that
of the Revolutionary state constitutions, only the President cannot
prorogue Congress at all except in disputes over adjournment.

One area where there was a significant difference was in the
veto power of the early state executives. Only South Carolina's con-
stitutions gave the President absolute veto power over acts of the
legislature. Massachusetts gave its governor a veto which could be
overridden by two-thirds of the legislature. In New York, the governor
was a member of a council of revision. Otherwise, the states were
reluctant to grant the executive that much power over the legislature.

The governor's appointing powers varied from state to state.
All states required that he share this power with a council which had
to advise and consent to his appointments. In some states the senior
executive officers were popularly elected or appointed by the legislature
and commissioned by the governor. The New York council of appointment

was dominated by its war time governor, George Clinton, and never did

310

provide a successful check on the governor.61 However, this shared
appointive power in and of itself cannot be considered as weakening the
governors' power since it was required of both the royal governor and
the President under the Federal Constitution, the latter being required
to gain Senate approval for major appointments. In these two cases,
the potential strength of the appointive power was dependent on the
relationship between the executive and those with whom he shared the
appointive power.

Another major area of potential conflict between the executive
and legislature was over the salary issue. As noted in Chapter II, this
was a significant weapon used by the assemblies to make the governor
accountable to colonial interest. Under the Revolutionary state con-
stitutions, several states took great care in Spelling out the salary
provisions. Massachusetts noted that

as the public good requires that the Governor should not be
under the undue influence of any of the members of the General
Court, by a dependence on them for his support--that he should
in all cases, act with freedom for the benefit of the public--
that he should not have his attention necessarily diverted
from that object to his private concerns--& that he should
maintain the dignity of the Commonwealth in the character of
its chief magistrate--it is necessary that he should have an

honorable stated salary, of fixed & permanent value, amply 62
sufficient for those purposes, & established by standing laws.

 

6lSee Hugh M. Flick, "The Council of Appointment in New York
State, The First Attempt to Regulate Political Patronage, l777-l822,"
New York Historical Association, Proceedings, XXXIII, July, 1934, pp.
253-280.

62Poore, Constitutions, I, 274, 11, 1910.

 

311

Delaware and Virginia both provided that "an adequate but moderate
salary shall be settled on him during his continuation in office."63
South Carolina gave him a fixed salary of nine thousand pounds, while
New Hampshire granted compensation for service "from time to time by
such grants as the general court shall think reasonable though they

64 The other states left that matter

granted judges a permanent salary."
to be settled by statute.

Of all the constitutions, that of New York spelled out in the
greatest detail the civilian duties of the governor. He was required
to inform the legislature at every session the condition of the state
so far as it was within the purview of his department to do so. He was
to recommend measures for legislative consideration, correspond with
the Continental Congress and other states, transact all necessary busi-
ness with the civilian and military officers of government, take care
that the laws were faithfully executed, and expedite all matters as

might be resolved by the legislature.65

In the final analysis, what
general conclusions can be drawn about the constitutional provisions of
the executive branch in the early state constitutions? Traditionally,
many historians have noted the state executive departments' apparent
decline in power and authority when compared to that given the royal

governors as being a sudden revolutionary reaction against the royal

governors. However, when viewed in the context of the period and in

 

63Ibid., I, 274, II, 1910.

*1

64Ibid., II, 1288.

651bid., p. 1335.

312

relation to the other sections of these constitutions, can it really
be explained solely as a reaction to the colonial executive?

During the two years between the first meeting of the Con-
tinental Congress to the time the order was given to the states to write
new constitutions, it must be remembered that there was great confusion
over whether or not matters could be resolved between England and the
colonies. Since the actions of the royal governors and the British
commander-in-chief so inflamed the colonists, colonial government was
effectively brought to a standstill until a new government could be
formed. The mechanism was the provincial congress, which delegated its
executive functions to various committees until England would send a
governor who would administer, as in the case of Massachusetts, under
the terms of the 1691 charter. Until it was clear that England would
not comply with that request, there was no need to form a whole new
charter or constitution. When the colonists realized that reconcilia-
tion was hopeless, they proceeded to write new constitutions. In the
words of the New York Constitution:

Whereas the present government of this colony, by congress and
committees, was instituted while the former government, under
the Crown of Breat Britain, existed in full force, and was
intended to expire on a reconciliation with Great Britain,
which it was then apprehended would soon take place, but is
now considered as remote and uncertain . . . [and] whereas
many and great inconveniences attend the said mode of govern-
ment by congress and committees, as of necessity, in many
instances, legislative, judicial, and executive powers have
been vested therein, especially since the dissolution of the
former government by the abdication of the late governor and

the exclusion of this colony from the protection of the King
of Great Britain

313

it was therefore necessary to form a new government.66 Thus, this

period was viewed as being temporary until one or the other course of
action was taken.

Once the decision had been made to establish new governments,
many states adopted declarations of their rights which laid down the
fundamental principles upon which the constitutions and governments were
to be erected. One of the major themes which ran through all these
documents was a fear of government. The Constitution of Maryland noted
"that all persons invested with the legislative or executive powers of
government are the trustees of the public, and as such, accountable for

67

their conduct." The Virginia Bill of Rights states

that the legislative and executive powers of the State should

be separate and distinct from the judiciary; and that the

members of the two first may be restrained from oppression,

by feeling and participating [in] the burdens of the peogle

. by frequent, certain, and regular elections. . . . 8

"That the right of the people to participate in the Legislature," the
Maryland Constitution noted, "is the best security of liberty, and the
foundation of all free government," therefore it was necessary to hold

frequent elections.69

Thus, no government was to be trusted for fear
that it might, if not closely supervised by the people, present a threat
to their liberty. It was clear that Americans feared not only abuse of

the executive authority, but of the legislative authority as well.

 

66
67

I

U

id., p. 1329.

I

U”

id., I, 817.

68
69

H
U

Q.

i

H
0'

id.

314

The key to understanding the early state constitutions is to
view them as initial and sometimes temporary experiments adapted from
familiar colonial institutions to meet the perceived needs of the time
which could be changed or altered as the occasion arose. As John Adams
warned in his pamphlet Thoughts on Government, it was "safest to proceed
in all the established modes, to which the people have been familiarized
by habit."70 Furthermore, the state constitutions were written to pro-
vide a structure of government to carry out the necessary governmental
functions during a military crisis. One committee in New Hampshire
noted that the form of government was

far from being perfect; yet as the same was only proposed as
temporary, and the exigencies of the war having been, and
still continuing such as to leave no opportunity for the
people to enter upon forming a plan of Government and repre-
sentation with that attention and deliberation that matters

of so great consequence require, the present model will answer
for the purpose of our grand concern, viz., carrying on the
war.

Since governments were creatures of the people, if any part
proved defective or a threat to the public well being, the people could
alter or abolish it. In the words of the Massachusetts Constitution,

Government is instituted for the common good, for the protec-
tion, safety, prosperity, and happiness of the people, and not
for the profit, honor, or private interest of any one man,
family, or class of men; therefore the people alone have an

incontestable, unalienable, and indefeasible right to institute
government, and to reform, alter, or totally change the same

 

70Adams, Works, IV, l95.

71New Hampshire State Papers, XIII, 764, reprinted in Chase,
History of Dartmouth College, p. 457.

 

3l5

when their rotection, safety, prosperity, and happiness

require it.
As Jefferson observed, the Virginia Constitution

was fonned when we were new and unexperienced in the science

of government. It was the first, too, which was formed in the

lifilfivflfllfie‘v‘eiial‘i;ta1°82$23i§ 129131393" “me 3"“ ”'a‘ “a“
What John Adams wrote about the Massachusetts Constitution applied to
the other state constitutions as well. He noted that the "government
once formed, and having settled its authority, will have leisure enough
to make any alterations that time and experience may dictate."74

In view of the fact that the Maryland Constitution, as did

others, stated that the right of the people to participate in the legis-
lature was the "best security of liberty," it was only natural that
these early constitutions placed the bulk of governmental authority in
the hands of the legislature. Moreover, outside of the charter colonies
of Connecticut and Rhode Island, no state had ever before been forced
to create an executive office. Rather, their experience had been one
of trying to contain an executive over whose appointment they had little
or no control. As noted in Chapter II, Americans had always feared an
irresponsible executive and had taken steps to curtail the colonial

governors' authority and power within the legislatures' power to do so.

Thus, the early state executives were an embodiment of these experiences

 

72

73Thomas Jefferson, Notes on the State of Virginia (New York,
l964), pp. lll-llZ.

74

Poore, Constitutions, I, 958.

 

 

Adams, Works, IV, 208.

316

and not the victims of a sudden surge of anti-executive sentiment.
This, however, was not the complete picture, for the new executives
were quite apart from previous executives.

In the traditional English Constitution, power flowed from
the executive, who was the keystone in the three parts of the legis-
lature, the Crown, lords, and commons. It was the Crown who summoned,
prorogued, dissolved, and vetoed legislative actions. The royal gov-
ernors likewise held the power to control the colonial legislatures.
For nearly a century Americans sought to limit that power and make the
legislative branch as independent of the executive as possible by the
passage of triennial and other acts. Once the break with England came,
the colonies no longer had constitutions derived from the executive
authority, i.e., authority delegated from the Crown to a royal governor
who in turn could activate the legislative authority at his will. The
new state constitutions now made the legislature the engine of govern-
ment with the function of the executive to carry the will of the legis-
lature into action. In short, the American Revolution was the culmina-
tion of this reversal. No longer would the legislature be considered
the satellite to the executive but the executive was, in a sense, the
satellite of the legislative branch. Before, the legislature counter-
balanced the executive; now, the executive had to counter-balance the
legislature within a limited constitutional basis.

An examination of the powers and authority granted to the
executives in these early state constitutions indicates three points.
First, as noted previously, the bulk of authority granted to these

executives was military in nature. This was first in response to the

317

military crisis facing the states and secondly out of the need to place

command in the hands of one individual for the necessary energy and dis-
patch to carry out military activities. Even the Continental Congress,

a body supremely jealous of its authority, found it necessary to do this
soon after it first assembled.

Secondly, the major problem with the royal governors was their
ability to interfere with the legislative process. The new state con-
stitutions therefore provided that the legislature would meet at regular
and fixed intervals unless an emergency arose at which time the governor
could call a special session. Moreover, the governor could only prorogue
the legislature for a limited number of days each year or settle a dis-
pute between the houses over the question of adjournment. Just three
governors had veto power with South Carolina having the only absolute
veto. Thus, legislative interference by the executive was kept to a
minimum.

Lastly, the governors were made dependent on the people or
their representatives for relatively short terms and were given limited
constitutional duties. Their primary function, aside from their military
roles, was to carry out the policies of the legislative branch. Only
in the case of New York does the description of the governor's functions
hint of going beyond the role of administrator. Unlike the Crown and
his royal governors, the state executives were not intended to rule or
govern society. They were confined solely to limited governmental and
military spheres. As noted before, both Maryland and Virginia reinforced

this position by specifically stating that they were not "under any

318

pretense [to] exercise any power or prerogative, by virtue of any law,

statute or custom of England."75

This meant that none of the preroga-
tives or precedents established by the colonial governors could be used
by the state governors. In these two cases, at least, it was a clear
break with the past tradition of executive power and the establishment
of a new tradition which strictly limited it to the Constitution and
the statutes.

An insight into the development of American thinking about
the Revolutionary state executive was provided by Thomas Jefferson and
George Mason. Jefferson's three drafts and Mason's proposal for the
Virginia State Constitution of l776 provide evidence of an intermediate
position between the office of the colonial governor and the executive
outlined in the document adopted by the Virginia Convention. In all
three drafts, Jefferson called the executive an "Administrator." How-
ever, he added that "the Administrator shall possess the powers formerly
held by the king: save only that, he shall be bound by acts of the
legislature tho' not expressly named." He went on to list fourteen
specific powers and prerogatives that the administrator could not exer-
cise. George Mason's proposal called for "a Governour, or chief magis—
trate . . . With the advice of a Council of State, [to] exercise the
executive powers of government. . . ." While Jefferson would not let
his Administrator prorogue or dissolve the legislature, Mason's could,

with the advice of the council, both prorogue and adjourn the legis-

lature. Thus, Jefferson and Mason in their l776 drafts were willing

 

75Poore, Constitutions, II, 1911.

 

319

to allow the executive to exercise general executive powers with
specific limitations or prohibitions enumerated in the Constitution.
When the final document was approved, the words "according to the laws
of this Commonwealth" were added to the statement that the governor
would exercise the executive powers. This was followed by the statement
denying him any authority to exercise any power or prerogative not
mentioned in the Constitution. Jefferson and Mason were therefore will-
ing to let the executive exercise royal prerogatives unless specifically
prohibited, though his function was primarily administrative.76
In the summer of l783 Jefferson, among others, unsuccessfully

called for a constitutional convention to rewrite the Virginia Constitu-
tion of l776. Jefferson again drew up a proposed constitution to lay
before the convention. The executive power was titled "Governor" instead
of "Administrator." "By executive powers," he wrote,

we mean no reference to those powers exercised under our former

government by the crown as of its prerogatives, nor that these

shall be the standard of what may or may not be deemed the

rightful powers of the governor. We give him those powers only,

which are necessary to execute the laws (and administer the

government), and which are not in their nature either legisla-

tive or judiciary.
He went on to list the powers specifically denied his proposed governor.
However, "the whole military of the State, whether regular, or of mili-
tia, shall be subject to his directions; but he shall leave the execution
of those directions to the general officers appointed by the legislature."

His salary would be fixed "and it shall not be in the power of the legis-

lature to give him less or more, either during his continuance in office,

 

76Thomas Jefferson, Works (Boyd, ed.), I, 350’ 357’ 380°

320

77 Thus, Jefferson had clarified

or after he shall have gone out of it."
his thinking on the governor in those intervening years. While the
executive's function remained the same, Jefferson made it clear that
he was limited to only those powers specifically granted to him and
none of the English executive prerogatives.

William Hopper of North Carolina probably best summed up the
sentiment for an administrator-type governor. He wrote that "for the
sake of Execution we must have a Magistrate," but one that was "solely

78 John Sullivan noted that Americans "by no means object

executive."
to a Governor," however, he contended no one was willing to lodge
too much power in the hands of one person, or suffering an
interest in government to exist separate from that of the
people, or any man to hold an office, for the execution of
which he is not in some way or other answerabge to that peo-
ple to whom he owes his political existence.

It is difficult to gauge the full extent of American fear of
the executive because of the wide range of sentiment expressed. The
colonial experience was a clear example of executive tyranny to many.
However, now that the state constitutions were not dependent upon the
executive's grant of authority, and the new executives were dependent
upon the legislature and the people, would there be the need to fear
them as much as the colonial governor? To answer this question, several

factors must be kept in mind.

 

77Jefferson, Notes, pp. 189-190.

78Quoted by Gordon S. Wood, The Creation of the American
Republic (Williamsburg, l969), p. l36.

79$ullivan to Weare, December 11, 1775, Force, ed., American
Archives, 4th ser., IV, 24l-243.

321

First was the fact that the state constitutions were
deliberate creations of individuals who conscientiously tried to apply
the lessons of the past and the fundamental principles of political
society as they understood them to the creation of a frame of government
to solve the problems they faced at that time. Few, if any, individuals
contended that they were to be permanent unchangeable documents. In
fact, many powers were prefaced with the phrase "for the time being,"
indicating a possible revision if future experience warranted.

The second fact was that this was the first time Americans
had been forced to write constitutions. Before they had always been
given the constitution through the governor's commission and instruc-
tions. In doing so, they sought to eradicate the problems which they
perceived had caused the breakdown of colonial government. As noted
previously, they thought the most significant cause was the governor's
interference with the legislative process. Hence, it was only natural
that the newly created executive power would be prevented from doing so
in the future. Therefore, the governor's power to terminate the legis-
lative session, veto its actions, and corrupt its proceedings by the
use of patronage was severely curtailed. Moreover, in the three-
quarters of a century prior to the Revolution, the colonial assemblies
had been moving in this direction by limiting as best they could the
power of the royal governors to do these things. There was no plausible
reason for the writers of the new constitutions to break with this trend.

The third factor was the American's fear of all government.
Again, as noted previously, this fear was not limited to the executive.

Rather, it applied to all persons who held power. It fell to the

322

writers of the state constitutions to protect the people from all forms
of governmental tyranny, from standing armies to corruptible executives

to tyrannical legislatures. James Burgh wrote in his Political Disquisi-

 

tjgn§_in l774 that the
people ought to provide against their own annihilation. They
ought to establish a regular and constitutional method of acting
by and from themselves, without or even in opposition to their
representatives, if necessary. 0
Finally, most state constitutions sought to correct the prob—
lems they encountered with the colonial governments by binding not only
the executive, but the legislature as well. New York, for example, had
one of the strongest, if not the strongest, executives of all the
states, but the Constitution spelled out tenure of its various public
offices and did not allow either the executive or legislature the exclu-
sive power of appointment.81
Governors themselves were aware of the suspicions which sur-
rounded their offices and were often careful not to raise undue hostility
to the way they exercised power. Governor Livingston of New Jersey
responded tartly to the British suggestion that he held some influence
over political sentiments within that state. He said that
You have distinguished me by a title which I have neither

authority nor ambition to assume. I know of no man who bears
sway in this State. It is our peculiar felicity, and our

 

80James Burgh, Political Disquisitions: Or, An Enquiry_into
Public Errors, Defects, and Abuses. . . . (London, l774), I, 6.

81For an extensive discussion see J. M. Gitterman, "The Coun-
cil of Appointments in New York," Political Science QuarterLy, VII,
1892, pp. 88-ll5.

 

323

superiority over the tyrannical system we have discarded that
we are not swayed by men--In New Jersey, sir, the laws alone

bear sway.

Livingston was not willing to overstep his authority even for General
Washington. In response to Washington's request for removal of some
American supplies that might soon fall into British hands, he wrote:
"as the governor of this State is a civil magistrate, it cannot be
expected that he will act an arbitrary, that is, an illegal part."83
In spite of the safeguards against executive tyranny, some

were still fearful of the executive power of the new state constitutions.
One Delaware Whig wrote that "the executive power is ever restless,

84 However,

ambitious, and ever grasping at encrease (sic) of power."
it was Pennsylvania where the anti-executive sentiment reached its peak.
There the governor was totally eliminated and replaced by an executive
council. The concept of a governor was apparently “too monarchical"
and since Pennsylvania had renounced that form of government there was
no longer a "need of a representative of a King, for we have none."85
The Frenchman Jean Pierre Brissot de Warville, whose passion
for democracy brought him to America, wrote an interesting analysis of
‘the Pennsylvania Constitution. Speaking of the American Revolution he

noted that the Americans had given

 

82Quoted by MacMillan, The War Governors, p. 64.

83Livingston to Washington, November 9, l776, Force, ed.,
American Archives, 5th ser., III, 6l7.

 

84Quoted by Wood, The Creation of the American Republic, p. l35.

 

85Pennsylvania Packet, July 1, l776, reprinted in Force, ed.,
American Arch'ives, 4th ser., VI, 843.

 

324

oppressive despotism a terrible and memorable lesson. Tyrants
will learn from the plains of Saratoga that all power is use-
less against a people who, in order to be free, know how to
face death. They will learn that men must be ruled by reason,
and not by force; that the abuse of power embitters and angers
the slave, and that he will end by breaking his chains.

The Americans "were tired of subjection" and "they rejected even the

laws of their former masters; they were resolved to reform everything,

and they were able to back their reform by force."86

Turning to the Pennsylvania Constitution, Brissot wrote that
"it will prove that America had philosophers and statesmen when she
threw off the yoke of Great Britain." "The form of the government,“ he
noted, established in a

precise manner the limits of the legislative and executive
powers. There they excluded forever the authority of a single
person. There they confine the power to make the laws to a
general assembly of the representatives of the state, and give
the right to enforce the laws to a removable council.

Given the state of human nature,

it is evident how difficult it is to bring governments to a
certain degree of perfection. It is men who govern, and it
would be necessary for these governors to be more than men,
they would have to be angels. Whatever they do, although
nature joins with education to make the leaders well-disposed,
they will always be, like the rest of their kind, dominated
by passions or confused by errors.

"The Evil" he concluded, was in the fact

that rulers do not consult with the governed, those who neces-
sarily have an interest in being well-governed. They alone
can inlighten (sic) the rulers about their common interests--
and unalterable reason why the voice of the people should be
listened to, why it should always be represented near the
executive power.

 

86J. Paul Selsam, ed., "Brissot de Warville on the Pennsyl-
vaxria Constitution of 1776,? The Pennsylvania Mggazine of History of
Biography, LXXII, no. 1 (January, l948), pp. 29-3l.

325

Therefore,

since rulers tend to weaken the constitution in spite of
themselves, it is necessary then to erect a barrier to their
passions and their prejudices; and such has been the origin

of the Tribunes in Rome, of the Parliament in England, of both
the legislative and executive powers in America. These bodies
balance the authority of the government, not preventing it from
doing good, but stopping it when it wishes to do harm. These
powers mutually watch over each other. Good is accomplished

in fact by mutual digtrust; but what difference does it make?
good always results.

Moreover, Brissot continued,

despotism, which always ends by swallowing up everything in
itself, is found not only in monarchies, but also even creeps
into republics. The Americans fearing that, have granted many
rights to the pe0ple, and have made the executive and the
legislative powers check each other. That is the reason for
the rules that no one can be a member of the House of Repre-
sentatives more than four years in seven, that the General
Assembly cannot change anything in the present Constitution,
that the members cannot hold any other public office, that
they can be removed by their constituents, that the records
of their sessions shall be published and that their sessions
shall be public. And a thousand other precautions to prevent
the corruption of its members, which would hasten inevitably
the ruin of the Constitution."

Here then was a classic statement about the American fear of human weak-

ness corrupting and destroying the government and constitution.88

Brissot then went on to compare the English and American con-
ception of executive power.

The worst abuse in England springs from the fact that the
executive power is always in the same hand; in America this
power changes like the General Assembly. The source of the
trouble in England is especially the too great power of the
King. He has the right to appoint the civil and military
officials; he distributes favors, he is head of the church,

 

87Ibid., pp. 33, 37-38.

881bid., p. 38.

326

&c. In America the people and the militia have the right to
choose their officers; the Council has other rights; but it
changes, it is watched and it is under the censure of the
Council of Censors.

The Crown's interference in the legislative process allowed it to
approve or reject bills without discussion, to prorogue or
dissolve Parliament; the result is that the Crown dissolves
those which do not please it, and prorogues the Parliament
at the moment of fear. In America the convenings, dissolu-
tions and prorogations are fixed by law, and no one is able
to violate this law. Finally, in England the chambers do not
have the right to prosecute the King when he violates the
constitution; they are able to attack only his ministers. . . .

In America the abuses are insignificant and censure is more
frequent.

In spite of Brissot's enthusiastic endorsement of the Pennsylvania Con-

stitution, its council-type executive proved more injurious than bene-

ficial and was finally abandoned in the Constitution of 1790. However,
while his optimism may have been misplaced in the case of the Pennsyl-
vania executive, his characterization of American thinking about govern-
ment in general and executive power in particular was not far off.89
One of the tests of how well a constitution was written was
in its operation. Unfortunately, for most state governors during the

Revolution the constitutions under which they operated provided too few

powers and very little indication of proper procedures they were to

follow. One of the most powerful governors of this period was George

Clinton of New York who continually searched the Constitution for the

necessary authority to adequately carry on his military functions only

90

to find it "altogether silent" on many matters. When a constitution

 

891bid., pp. 41-43.

90Hugh Hastings, ed., Public Papers of George Clinton (Albany,
l899-l914), II, 500.

 

327

was silent on the proper procedure often the colonial practice was used
until a statute was enacted or it was established as a precedent under
the new government. For example, most constitutions were silent on the
procedures for signing bills calling special sessions.9]
Often the lack of adequate constitutional provisions was off-
set by the governor's personal prestige. Most governors had served in
the assembly and all were well-known local leaders. Their work in legis-
lative committees and leadership positions gave them a degree of political
experience and an excellent knowledge of the various political factions
within a state. Moreover, a number of them had served as militia offi-
cers prior to taking office. These contacts and experiences facilitated
the solution to many of the political problems they faced. Furthermore,
most governors came from the legal profession which allowed them to
exploit the full extent of the constitutional powers and authority they
did possess.92
Many states granted additional authority to a governor by
statute when military necessity required it, or when he might have to
act during a legislative recess. The degree of authority granted to a
governor was generally dependent upon the urgency of the military situa-

tion. During the seige of Charleston, the South Carolina legislature

voted to grant Governor Rutledge the following:

 

91

921bid., pp. 52-53.

See MacMillan, The War Governors, pp. 222-223.

 

328

Till ten days after their next session to the Governor John

Rutledge Esq. and such of the council, as he could conveni-

ently consult, a power to do everything necessary for the

public good except the taking away the life of a citizen

without a public trial.93
Soon after the crisis had passed Rutledge, to his credit, reconvened
the legislature and surrendered his dictatorial powers.

Virginia, on the other hand, declined to follow the South

Carolina example. Instead, it met each crisis with a special statute
covering only the circumstances relevant to that case. Thomas Jeffer-

son noted later in his Notes on Virginia that

 

In December 1776, out [of] circumstances being much dis-

tressed, it was proposed in the House of Delegates to create

a dictator, invested with every power legislative, executive

and judiciary, civil and military, of life and death, over

our persons and over our properties; and in June l78l, again

under calamity the same propositign was repeated and wanted

a few votes only of being passed. 4

Under similar circumstances, North Carolina adopted the oppo-

site approach. Instead of consolidating power in the governor, it
fragmented it by creating a board of war which even excluded the gov-
ernor from its membership. This caused Governor Abner Nash to remark
that the executive authority was so divided that "men not knowing who
to obey, obey nobody." He threatened to resign and chastised the
legislature because it had "effectually transferred the powers vested
by the Constitution in the Governor into the hands of commissioners."

This, he said, had rendered the executive "an empty title, neither

 

93Quoted by McCrady, History of South Carolina in the Revolu-
tion l775-80, p. 43.

94

 

Jefferson, Notes, p. lZO.

329

f."95 However, most

serviceable to the people nor honorable to mysel
states were not this reluctant to grant the governor special authority
to meet a crisis. More often than not, however, it was easier to do so
in the military field than in the civilian areas.

Some states adopted an alternative measure to granting the
governor special emergency powers. New Jersey created a Council of
Safety though it was different from any other committee bearing the
same name. Unlike some councils which operated throughout the war, New
Jersey's was activated only in time of crisis. It consisted of the
governor as president, a vice-president, and twelve members, five of
whom were a quorum. Its main function was to control the Tories. It
acted as a board of justices of the peace empowered to jail or send to
enemy lines anyone suspected of being dangerous or hindering the Ameri-
can war effort. It also could fill vacancies during a legislative
recess or request the speaker to call a special session. In short, the
committee's function was to exercise more power than the Constitution
would allow any one individual to possess.96

In the non-military areas of legislation, the governor often
found himself as restricted as many of the royal governors did in the
final days of their governments. Legislators were prone to spell out

in great detail the prescribed course of action the governor was to take

in executing a bill or severely limit the amount of money he could

 

95Quoted in MacMillan, The War Governors, p. 77.

96See MacMillan, The War Governor§,for a discussion of the
function of the council, pp. 87-88.

 

 

330

withdraw from the treasury without seeking further legislative
authorization. However, the governors were often allowed much more
freedom and authority especially when there was to be a considerable
lapse between legislative sessions.97
For whatever reasons, governors generally complained about

their lack of power. In l782, Virginia Governor Benjamin Harrison
requested, but was refused, powers equivalent to those of his predeces-
sors in time of crisis. However, because of the impending peace with
England and the disastrous state of the economy, the legislature was
reluctant to grant them or increase military aid. In his letter to
Major General Greene, Governor Harrison lamented that he could not send
the needed support.

It is a lucky circumstance indeed that the enemy have not been

reinforced, for let the occasion be what it may it is not in

my power to send you Aid or the militia out of the State; that

liberty was given to former Governors by a particular temporary

Act which has been several times continued for short periods

and is now extinct, as indeed are all other Laws giving extra-

ordinary powers to the Governor and I am left to the Constitu-

tion which may do in Peace but is by no means adapted to war.9

The state governors shouldered much of the burden for coordin-

ating the American Revolution in spite of their lack of constitutional
authority. They provided not only the central point around which state

political and military affairs revolved, but they were the connecting

 

97;p1g,, for a discussion on the statutes granting temporary
power to the governor, see Chapter V.

98H. R. McIlwaine, ed., Official Letters of the Governors of
the State of Virginia (Richmond, 1926), III, l69-l70.

 

 

331

link between the national and state governments as well. Almost

overwhelmed by the work load, Governor Henry wrote to Richard Lee that
As usual I am in a great hurry. . . . I am really so harrassed
by the great load of Continental business thrown on me lately
that I am ready to sink under my Burden and have thoughts of
taking that rest that will I ggubt soon become necessary. For
my strength will not suff1ce.

The state legislatures were reluctant to increase the governor's
authority even when he was expected to take on added burdens unless there
was an obvious military crisis about to endanger the state. Even under
the best of conditions, the governor faced what seemed like insurmount-
able obstacles. For example, the legislature, when not in session, was
scattered and difficult to convene to meet emergencies. More distressing
was the lack of ready cash or credit the governor needed to carry on the
functions of government. Most governors could agree with New York's
Governor Clinton who found it difficult to raise fifty-five guineas for
clothing for his officers because he had "not one farthing of specie in
the Treasury and my own small resources have long since been exhausted."100
Most frustrating was the governor's lack of information about what was
happening outside his immediate area of operation. The letters of the
war-time governors were filled with requests for information from the
commander-in-chief to private citizens. Often they had to rely on

information from other governors who were just as ill informed as they

were. Governors Cook and Trumble agreed to exchange information about

 

991bid., I, 260-26l.

100Hastings, ed., Clinton Papers, VI, 250.

332

their respective states of Connecticut and Rhode Island.101 Added to

this was the lack of adequate staff, supplies, and numerous other major

102

and minor irritations. One of the most time-consuming was the prac-

tice of receiving visitors. Virginia Governor Harrison complained of
his added duties and his hating to receive callers on top of it all.
His letter to the speaker of the House summed up the governors' overall
administrative dilemma when he noted that

The duties of the Commissioner fall to my lot to execute, I
earnestly wish I may be able to discharge them in such a
Manner to give satisfaction, but it really appears to me
impossible that any one Man can go thro' them with propriety
who had before a weight of important Business on his shoulders,
the eternal interruptions I meet with by being under the neces-
sity of hearing every Man that has Business either with me as
Governor or as Commissioner of War are such as often to take

up my Time for Several Hours in the Day. The human Mind and
body require relaxation and exercise, very little of which have
hitherto fallen to my share and I can expect none in the
future.103

Thomas Jefferson as governor of Virginia expressed the attitude
of the governors who kept plodding forward when beset by one obstacle
after another. He wrote to General Lafayette that

Mild Laws, a People not used to war and prompt obedience, a
want of the provisions of War & means of procuring them render
out orders often ineffectual, oblige us to temporise and when

we cannot accomplish an object in one way to attempt it in
another. 0

 

10'Force, ed., American Archives, 4th ser., IV. 917, 1017-

 

102See MacMillan, The War Governors, p. 94.

 

103McIlwaine, Virginia Governor Letters. 111. 409-

'O4Ibid., II, 401.

 

333

In the final analysis, much of a governor's success in coping
with the problems of executive leadership under the state constitutions
depended upon personal relations with the legislature, militia, and poli-
tical factions within the state. George Clinton's successes in New York
can, in a large part, be attributed to his rapport with the militia and
his domination of the council of appointment, though he was not immune
to the political squabbling that afflicted all governors.105 George
Washington often sympathized with the governors' position as a political
lightening rod in his correspondence with them. Commenting on the
failure of the British attempt to capture Governor Livingston, he wrote:

It is a tax, however severe, which all those must pay who are
called to eminent stations of trust, not only to be held up as
conspicuous marks or to the enmity of the public adversaries
to their country, but to the malace of secret traagors and the
env1ous 1ntr1gues of false friends and factions.

In summary, the Revolutionary years were not only important
militarily for the Americans but constitutionally as well. During this
period, a number of differing methods for organizing the executive power
were adopted in the various state constitutions. Taken as a whole the
state executive can be classified into four general categories. The
first was the charter colonies of Connecticut and Rhode Island. In
both cases, the Constitution provided for an executive identical to the

colonial governorship since only minor modifications were made in the

colonial constitution. Though elected by popular vote, they possessed

 

105See W. Wilder Spaulding, His Excellengy_George Clinton:
Critic of the Constitution (Port Washington, N. Y., 1964).

106Washington to Livingston, February 2, 1778, Fitzpatrick,
ed., Writings of Washington, X, 415-416.

 

 

334

no independent veto and were required to consult executive councils
before taking any action. A second category was the plural executives
found in Pennsylvania, Vermont, Georgia until 1777, New Hampshire until
1784, and Massachusetts until 1780. In these cases, the executive was
little more than the presiding officer over a council which collectively
exercised the executive authority. The third category comprised the
strong executives of New York and Massachusetts after 1780. These
governors were popularly elected, independent of the legislature and
possessed more powers than their counterparts in the other states. The
South Carolina governor was the only one to possess an absolute veto
which, in this instance, made him fairly powerful. The fourth category
was made up of the remaining states which empowered their executives
with varying degrees of authority.

The executive experiments outlined in these first state con-
stitutions provided the precedents which were used to create the presi-
dency. Virtually all the elements of the presidency can be found in
the state constitutions, though the Constitutional Convention of 1787
brought them together in a unique arrangement.

When assessing the success of the executive provisions in the
early state constitutions, several factors must be considered. The
constitutions were written in a crisis atmosphere and were designed to
place the temporary governments on a more secure footing until the crisis
with England could be resolved. Since the Stamp Act, there had been
numerous pamphlets circulated which discussed political theories and
principles of government. Much of this discussion revolved around the

relationship between the various branches outlined in the British

335

Constitution and their relation to the different segments of the empire.
The general principles which evolved out of these discussions concen-
trated on limiting power of government and protecting citizens' rights.
On the provincial level, the surest way to protect the citizen from
arbitrary government was through his right to participate in legislation.
Thus, the colonial experience reinforced the importance of the legislature
as a counter-balance to the executive. However, it must be remembered
that the colonial constitution was a function of the executive; that is,
the executive was the cornerstone upon which the whole provincial govern-
ment was built. It was only natural, then, for the Americans to try to
limit the colonial governor's power and authority in an attempt to make
him responsible to their interests.

When the British attempted to reorganize the empire after
1763, the struggle with the governor added a new dimension. Before
England could gain the upper hand within the colonies, the power of the
assembly had to be curtailed. In the ensuing effort to by-pass the
assembly, Parliament touched off a confrontation with the colonies.
The conflict was now between the assemblies and Parliament, with the
governor caught between trying to enforce parliamentary acts and yet
maintain his own interests as well. In this struggle, the Americans
looked to the Crown to protect their interests by requesting that the
king exercise his power of veto over those acts which violated their
rights as Englishmen. The failure of England to defuse the confronta-
tion created a political climate in which the normal operation of colo-
nial government ground to a halt. In their efforts to enforce unpopular

acts of Parliament, the colonial governors generated hostility toward

336

themselves. The only way they could head off a direct confrontation
with the assembly was to dissolve it. This forced the Americans to
develop a counter or extra-constitutional government which finally
solidified to the point where the colonial governor became irrelevant.

The provincial governments were viewed as being only temporary
solutions until the crisis with England could be solved. When it became
evident that it would not be resolved in the foreseeable future, the
Continental Congress ordered the creation of state constitutions which
would "best effect their happiness." Thus, each state wrote a constitu-
tion whose function it was to carry on the operation of government until
a resolution of the crisis could be worked out. Few Americans viewed
these documents as permanent or unchangeable arrangements of governmental
powers. They were to be altered as need and experience dictated.

Given the early state constitutions' temporary nature and the
Americans' fear of governmental tyranny, it was only natural that their
first efforts at writing a constitution would be ones that granted
minimal authority to all branches, but especially the executive with
whom much of their political history was devoted to checking and limit-'
ing as best they could. Moreover, the cornerstone of the state consti-
tution was not the executive but the legislature. In the colonial
constitution, the legislature existed to aid the executive in carrying
out his duties. In the state constitutions, the executive existed to
aid the legislature in carrying out its policies. The role of the state
governor was to aid in the direction, coordination and execution of
policy. In short, he was to do those things which the legislature found

it difficult to do because of its size and cumbersome manner of operation.

337

Therefore, most constitutional provisions regarding the state executive
revolved around his primary duty, i.e., to lead the state through a
military crisis. The non-military grants of authority given the governor
were primarily administrative in nature and quite limited in scope.
Taken as a whole, the executive portions of the early state constitu—
tions were rather meager grants of authority, though many governors had
extensive statutory powers granted during a crisis. New York and
Massachusetts were exceptions to this rule. When compared to the other
constitutions, New York's grant of executive authority created a fairly
strong and independent executive which reflected the strong executive
tradition of colonial New York. Massachusetts, on the other hand, was
one of the last states to write a constitution acceptable to the people.
Four years of rule by executive council gave them a number of experiences
which took the other states a while longer to incorporate into their
constitutions.

In short, the colonial experiences had shown the Americans
some of the major pitfalls to avoid in writing their constitutions but
did not provide a clear idea of what to include. The result was a num-
ber of experiments which reflected the different experiences Americans
had had with their colonial governments. Their constitutions' temporary
nature and the crisis atmosphere in which they were written offer reasons
for the limited constitutional grants of executive authority. Fear of
the executive did play a role, but it must be viewed in the context of
American fear of all governmental authority. If the executive played
a reduced role in state governments when compared to his predecessor,

the colonial governor, it was only natural since the new engine of

338

government in the state constitutions was the legislature, not the
governor. The constitutions only reflected this new reality.

That the state executives were short on constitutional autho-
rity did not mean that they were not powerful. Here the personality
and training of a governor could overcome many of the constitutional
shortcomings. Moreover, as the military crisis deepened, many states
augmented the governor's constitutional powers with statute authority
for a specified duration. In some cases, he was granted dictatorial
powers. Furthermore, the lack of a national executive power enhanced
the state governor's position politically though it added a tremendous
burden to his responsibilities. As noted, General Washington relied
heavily upon the state governor to raise troops and supplies in addition
to carrying out many of the Continental Congress directives which he
could not do himself. In summary, the state governor's constitutional
authority remained fairly constant throughout the Revolution, though
his actual political and military power varied with the extent and

nature of the crisis which beset the states.

CHAPTER VII

THE ROAD TO THE CONVENTION:

Re-Thinking the Executive Power

From the time General Washington disbanded the Continental
Army to the eve of the Federal Constitutional Convention in the spring
of 1787, a growing number of Americans saw the need to revise drastically
the Articles of Confederation. This chapter examines that era with
respect to the ideas of executive power which grew out of the frustra—
tions on both the national and state levels with Revolutionary War formu-
lation of the executive authority.

Washington's circular letter to the states in June of 1781
provides a convenient transition from war to peacetime discussions of
the problems of the Confederation. He warned Americans that

It is only in our united Character as an Empire, that our
Independence is acknowledged, that our power can be regarded,
or our Credit supported among Foreign Nations. The Treaties
of the European Powers with the United States of America, will
have no validity on a dissolution of the Union. We shall be
left nearly in a state of Nature, or we may find by our own
unhappy experience, that there is a natural and necessary
progression, from the extreme of anarchy to the extreme of
Tyranny; and that arbitrary power is most easily established
on the ruins of Liberty abused to licentiousness.
He then outlined four general considerations which he hoped would guide
the debate over public issues in the coming months. He advocated an
indissoluble union of states, a sacred regard to public justice, and

the adoption of a properly safeguarded military. Finally, he called

339

340

for the people and states to overcome their local interests and
prejudices for the mutual advantage of the community. On these pillars
alone, he contended, could the national character be supported.1
This was not the first time Washington advocated a strengthened

union. Barely two months prior to his circular letter, he wrote to
Alexander Hamilton that

No Man in the United States is, or can be more deeply impressed

with the necessity of a reform in our present Confederation than

myself. No Man perhaps has felt the bad effects of it more

sensibly; for the defects thereof, and want of Powers in Con-

gress, may justly be ascribed the prolongation of the War, and

consequently the expenses occasioned by it.
Furthermore, he concluded, "More than half the perplexities I have expe-
rienced in the course of my command, and almost the whole of the diffi-
culties and distress of the Army" have their origin in the poorly
organized Congress.2

The end of the Revolutionary War intensified the problems of

government under the Articles of Confederation. The French representa-
tive Luzerne noted in a letter to his superior, Rayneval, that

Scarcely had the treaty been ratified when several delegates

who had come to Annapolis for that important act returned to

their respective states. . . . It is thus that the federal

assembly is scattered; and since the ratification has taken

place, it has no longer been possible to form a congress of

nine states; and yet that number is required to decide the

most important affairs.
Congress found it difficult to bring together seven states and "when

they do meet, they hardly do any business, because it is rarely that

 

1John C. Fitzpatrick, ed., The Writings of George Washington
(Washington, 1935), XXVI, 488-489, 487.

2Ibid., p. 277.

 

341

the seven states when present vote unanimously."3

Even during the war,
Jefferson wrote, the Articles were I'found insufficient, as treaties of
alliance generally are, to enforce the compliance with their mutual
stipulations." However, during peace time "that bond was to expire of
itself, & each state [was] to become sovereign and independent in all
things." To prevent the states from warring among themselves, they
must find I'some further bond of union, which would ensure internal
peace, and a political system of our own, independent of that of Europe."4
Washington's experiences as Commander-in-Chief made him one

of the foremost advocates of a strengthened post-war union. In a letter
to Dr. William Gordon, Washington hammered home the ideas he was to
champion in the years leading to the Constitutional Convention. He
wrote that

it now rests with the confederated powers, by the line of conduct

they mean to adopt, to make this country great, happy, and

respectable, or to sink it into littleness; worse, perhaps,

into anarchy and confusion; for certain I am that, unless ade-

quate powers are given to congress for the general purposes of

the federal union, we shall soon moulder into dust, and become

contemptible in the eyes of Europe, if we are not made the

sport of their politics.
Moreover, he continued,

To suppose that the general concerns of this country can be

directed by thirteen heads, or one head without competent

powers, is a colecism, the bad effects of which every man, who
has had the practical knowledge to judge from that I have, is

 

3George Bancroft, History of the Formation of the Constitution
of the United States of America (New York, 1882), I, Letters Appendix,
p. 340.

4Paul Leicester Ford, ed., The Writings of Thomas Jefferson
(New York, 1892), I, 157.

342
fully convinced of, thougg none has felt them in so forcible
and distressing a degree.
Washington then proceeded to vent his frustration over the
lack of national concerns among so many of the states.
Why do congress spend months together in deliberation upon,
debating, and digesting plans, which are made as palatable
and as wholesome to the Constitution of this country as the
nature of things will admit of, when some states will pay no
attention to them, and others regard them but partically, by
which means all those evils which proceed from delay are felt
by the whole, while the complaint states are not only suffer-
ing by these neglects, but in many instances are injured most
capitally by their own exertions, which are wasted for want
of the united effort.
In short, he concluded,
I think the blood and treasure which have been spent on it have
been lavished to little purpose unless we can be better cemented,
and that is not to be effected while so little is paid to the
recommendations of the sovereign power.
Thus Washington, like many of his contempories, saw the problems as two-
fold: Both Congress and the union had to be strengthened.
In the years preceding the Constitutional Convention of 1787,
a number of writers analyzed the problems of the Confederation in vari-
ous political tracts. One of the earliest and most perceptive was
Alexander Hamilton's Continentalists' essays. In the first essay, he
picked up on the themes discussed in the last chapter by noting the
American fear of power in government. He wrote that
An extreme jealousy of power is the attendant on all popular

revolutions, and has seldom been without its evils. It is to
this source we are to trace many of the fatal mistakes, which

 

5Washington to Dr. William Gordon, July 8, 1783, Bancroft,
History of the Constitution, 1, 320.

5151a.

343

have so deeply endangered the common cause; particularly that
defect, which will be the object of these remarks. A WANT OF
POWER IN CONGRESS.7

Hamilton went on to discuss the need for a balance between

liberty and authority. He wrote that

In a government framed for durable liberty, not less regard

must be paid to giving the magistrate a proper degree of

authority, to make and execute the laws with rigour, than to

guarding against encroachments upon the rights of the com-

munity. As too much power leads to despotism, too little

leads to anarchy, and both eventually to the ruin of the

people. These maxims [are] well known, but never sugficiently

attended to, in adjusting the frames of governments.

Hamilton then outlined one of the major motivations of those

seeking to rewrite the articles. He said that

men who estimate the value of institutions, not from prejudices

of the moment, but from experience and reason, must be per-

suaded, that the same JEALOUSY of POWER has prevented our reap-

ing all the advantages, from the examples of other nations,

which we ought to have done, and has rgndered our constitutions

in many respects feeble and imperfect.
Thus, Hamilton saw the need to use reason and experience to correct the
problems of the present constitution. As discussed in the next chapter,
this assumption that man can rationally construct a viable government
from his experiences was an article of faith of those seeking to revise
the Confederation. The significance of this assumption becomes apparent

in the next chapter.

 

7Harold C. Syrett, ed., The Papers of Alexander Hamilton (New
York, 1962), III, 650.

8151a.

91bid., pp. 551-552.

344

In spite of the state constitutions' "imperfections,“
Hamilton contended that they "may be made to operate in such a manner,
as to answer the purposes of the common defense and the maintenance of
order" for some time without revision, since with the "progress of soci-
ety among us," they contained "the seeds of improvement." However, he
argued, this was not the case with respect to the "FOEDERAL GOVERNMENT:
if it is too weak at first, it will continually grow weaker" he wrote,

The ambition and local interests of the respective members,

will be constantly undermining and usurping upon its preroga-

tives, till it comes to a dissolution; if a partial combination

ggEzgmeagg VIOLENTeENSYTBfU] ones does not bring it to a more
he concluded.

In the "Continentalist" No. II, Hamilton outlined the consti-
tutional dilemma of organizing a national government. He wrote that in
a "single state, where the sovereign power is exercised by delegation,
whether it be a limited monarchy or a republic," the danger was that
"the sovereign will become too powerful for his constituents; in foe-
deral governments, where different states are represented in a general
council," the danger was "that the members will be an overmatch for the
common head, or in other words, that it will not have sufficient influ-
ence and authority to secure the obedience of the several parts of the

confederacy."H

Thus, it was clear that Hamilton and others who thought
as he did understood the necessity of having a sufficiently strong but

checked national government to carry out and protect the hard-won ideals

 

10Ibid., p. 652.

1'16161., p. 654.

345

of the Revolution. From the time Hamilton wrote his essays in 1781 to
the writing of the Constitution, six years of experience and constant
debate finally convinced sufficient numbers that a change had to be made.
By the end of the Revolution, only a very few individuals were
advocating a constitutional convention to rewrite the Articles of Con-
federation. Most politicians, however, were more interested in amending
them. The concept of a convention had been sporadically discussed since
the outbreak of the Revolution, but no formal action was ever taken.
Hamilton, though, began to advocate a convention as early as 1780.12
In July, 1783 he prepared a draft outlining a proposal for a convention
but never submitted it. It would take three more years before the idea
gained acceptance.13
In the meantime, however, those who advocated a stronger cen-
tral government were in general agreement about the constitutional and
structural deficiencies of the Articles of Confederation, especially as
they operated during peace time. The most fundamental constitutional
weakness was the lack of authority over the states. Jacob Read charac-
terized the situation quite aptly when he wrote that
. the States seem averse to do any Act that has in prospect
to assert the dignity of the general Government. We debate,
make and hear long and often Spirited Speeches, but when the
Moment arrives for a Vote We Adjourn and thus the feelings of

Individuals and the Welfare of the Union is trifled with . . .
and if in a short time the States do not enable Congress to

 

 

12See Hamilton to James Duane, September 3, 1780, in Ibid.,
III, pp. 400-418. Also see Burnett, ed., Letters of the Members of the
Continental Congress, VIII, pp. xxxv-i for a discussion of the history
of the idea of a convention.

'3Ibid., III, 420-426.

 

346

act with some Vigour and put the power of Compulsion into the
head of the Union I am free to Confess I think it almost time
to give over the farce of what I cannot consider as an Effi-
cient Government. 4

New York Governor Clinton wrote that

Unless the powers of the national council are enlarged and

that body better supported than at present, all its measures
will discover such feebleness and want of energy as will strain
us with disgrace and expose us to the worst of evils.

Luzerne noted that "These states by themselves are sheltered from foreign

invasion; but the government, though just, cannot be sure of being obeyed

without having at its disposition the means of coercion."16

A second failing of Congress was its inability to administer
its policies in a consistent manner. For example, Luzerne observed that

one of the great faults of the system was that "there is nothing of it

17

here for the great objects of administration." James Madison echoed

this sentiment and expressed the frustration of those who despaired of
the Confederation ever accomplishing much after the peace treaty had
been ratified. He noted that

Congress have come to no decision even as yet on any of the
great branches of the peace establishment. The military
branch is supported and quickened by the presence of the
Commander-in-Chief, but without any prospect of a hasty issue.
The department of foreign Affairs both internal & external
remains as it has long done. The election of a Sec[retar]y
has been an order of the day for many months without a vote
being taken. The importance of the marine department has been
diminished by the sale of almost all the Vessels belonging to

'4Burnett, Letters, VIII, 205.

15Cited by Bancroft, History of the Constitution, I, 122.

16Ibid., 1, 326.

'71 id.

347

the U.S. The department of Finance is an object of almost
daily attack and will be reduced to its crisis on the final
resignation of Mr. M[orris], which will take place in a few
months. The War Office is connected with the Military esta-
blishment & will be regulated I suppose in conformity to
what that may be. Among other subjects which divide Con-
gress, their Constitutional authority touching such an esta-
blishment in time of peace is one. Another still more
puzzling is the precise jurisdiction proper for Congress
within the limits of their permanent seat.

While many believed that something must be done, James Duane
was premature in his observation that

the day is at length arrived when dangers and distresses have
opened the eyes of the people, and they perceive the want of
a common head to draw forth in some just proportion tbg re-
sources of the several branches of the federal union.

However, the reorganization of the major committees of Congress into
executive departments elicited a ray of hope from Washington. He wrote
to Duane that

Skilful laborers are all that are wanting, and much depends

upon a judicious choice of them. Men of abilities at the head

of the respective departments will soon introduce system, order,

and economy. Our affairs, consequently, will put on a dif-

ferent aspect; but not unless congress is vested with, or will

assume, greater powers than they exert at present, and will

dispense them freely, upon general principles, to the ministers

of state.20

Like Washington, Hamilton was convinced that capable individuals

at the head of executive departments were essential to the survival of

the Confederation. He wrote to Robert Morris that he

 

18
II, 21-22.
19

Gillard Hunt, The Writings of James Madison (New York, 1901),

Bancroft, The History of the Constitution, 1, 283.
2°Ibid., p. 285.

348

was among the first who were convinced, that an administration
by single men was essential to the proper management of the
affairs of this country. I am persuaded now it is the only
resource we have to extricate ourselves from the distresses,
which threaten the subversion of our cause.

Later in the same letter he said:

To me it appears evident that an executive ministry composed

of men with the qualifications I have described ["individuals

of established reputation"] would speedgly restore the credit

of government abroad and at home. . . .
Thus, the reorganization of the administrative arm of Congress was a
major step toward exercising what power Congress did possess.

Unfortunately, faulty organization tended to undermine what

strengths each administrator brought with him. Gouverneur Morris
expressed the frustration of many administrators when he wrote that

the arduous task before them to govern without power, nay,

more, to obtain the power necessary to govern. They must

persuade where others command, and the strong phalanx of

private interest, with the imperious sallies of pr§§ate

politics and party, encounters them at every step.
On the other hand, many looked to these administrative heads as the
backbone of Congress. Arthur Lee wrote that "Politics here (Philadelphia)
are all comprized (sic) in a few words. We lean entirely on the French
and on Mr. R. Morris. I wish they prove neither broken reeds, nor Spears

to peirce (sic) us."23

 

21

22To General Greene, December 24, 1781, Jared Sparks, The

Life of Gouverneur Morris (Boston, 1832), I, 239.

23Arthur Lee to James Warren, July 27, 1781, Warren Adams

Letters, Massachusetts Historical Society, Collections (Boston, 1917),
LXXIII, 170.

Syrett, ed., The Papers of Alexander Hamilton, II, 604-605.

 

 

349

Yet such a situation elicited concern that the combined
department heads would be a threat to liberty. James Warren expressed
the fear that they would establish an oligarchy ”and by their joint
Efforts bear down all Opposition." If this system was not "annihilated,"

24

he concluded, then "our Liberties must be.“ Another time he charac-

terized Robert Morris as the "premier, the King, or Grand Monarch of

America," or as the "sgper Intendant of Finance . . . [whose] Office
1125

 

. made rapid strides to Dominion. . . . In spite of these fears
a number of significant steps were taken to consolidate and centralize
the administrative structure of Congress.

The movement from committees to separate executive departments
in the administration of congressional affairs greatly improved its
efficiency but did not completely solve the problems. A further step
was taken by appointing department heads who were not members of Con-
gress. Though the executive departments were technically separate from
Congress, they retained close ties as Congress was still the source of
all administrative authority. For example, the Secretary for Foreign
Affairs was required to "report on all cases expressly referred to him
for that purpose by Congress, and on all others touching his department,
in which he may conceive it necessary." Moreover, he was to attend all

sessions of Congress and to “give information to Congress respecting

his department, explain and answer objections to his reports when under

 

24To John Adams, October 27, 1783, Ibid., pp. 229-232.

25191g,, January 28, 1785, pp. 229-232.

350

consideration, if required by a member and no objection be made by
Congress," and to

answer such inquiries respecting his department as may be put
from the chair by order of Congress, and to questions stated
in writing, about matters of fact which lie within his knowl-
edge, when put by the president at the request of a member,
and not disapproved of by Congress.

The superintendent of finance was "to digest and report plans for improv-

ing and regulating the finances, and for establishing order and economy

27 The Secretary of War was

in the expenditure of public money."
to give his opinion on all such subjects as shall be referred
to him by Congress; and if, at any time, he shall think a
measure necessary, to which his powers are incompetent, he
shall comgunicate the same to Congress, for their direction
therein.2

A second major lesson of this period with respect to the execu-
tive departments was the necessity of consolidating authority in the
hands of one individual. In 1785 when Robert Morris resigned as head
of the department of finance, John Jay used the occasion to outline his
proposal for restructuring the department. He wrote that

Mr. Morris' resignation is a great loss to this country, and
yet I am not without hopes that the department of finance

will become properly arranged. The nature of our governments,
as well as the circumstances of their being new, exposes our
operations to delay, and renders the best systems slow in
forming, as well as slow in executing. In my opinion, one
superintendent or commissioner of the treasury is preferable
to any greater number of them; indeed, I would rather have
each department under the direction of one able man than of
twenty able ones.

 

26Journals of the Continental Congress, III, 723.

27Ibid., p. 575.

2816id.. pp. 8-9.

351

However, he noted "All things . . . in this world have their bright as
well as their dark sides; and there are few systems so imperfect as not
to have some conveniences." He then spoke to the fears expressed by
some about consolidating so much power in the hands of one person.
"Many reasons," he wrote,

induce me to disapprove of three persons; and yet one very
great convenience results from it, viz., that our jealous
republicans will have more confidence in three gentlemen
coming from different parts of the continent than they would
place in any one single man. Confidence, you know, is alwgys
followed by credit, and credit is the forerunner of money.

Thomas Jefferson summarized the difference between a republi-
can and monarchical governments' form of administration as being one
of safeguards. He concluded that

A monarchical head should confide the execution of its will
to departments consisting each of a plurality of hands, who
would warp that will as much as possible towards wisdom and
moderation, the two qualities it generally wants. But a
republican head, founding its decrees, originally, in these
two qualities, should commit them to a single hand for execu-
tion, giving them, thereby, a promptitude which republican
proceedings generally want.30

Benjamin Franklin wanted to take the development of the
executive departments a step further by making them hereditary. In a
letter to David Hartley, he wrote,
I am not sure that in reforming the constitution, which is
sometimes talked of, it would not be better to make your

great officers of state hereditary, than suffer the incon-
venience of such frequent and total changes. Much faction

 

29Henry P. Johnston, ed., The Correspondence and Public
Papers of John Jay (New York, 1891), III, 141-142.

30Answers to M. DeMevnier, Writings of Jefferson (Ford, ed.),
IV, 247.

 

352

and cabal would be prevented by having an hereditary First
Lord of the Treasury, an hereditary Lord Chancellor, Privy
Seal, President of Council, Secretary of State, First Lord
of Admiralty, etc. etc.

Moreover, he concluded,

It will not be said that, the duties of these officers being
important, we cannot trust to nature for the chance of requi-
site talents, since we have an hereditary set of judges in
the last resort, the House of Peers; an hereditary king; and,
in a certain German university, an hereditary professor of
mathematics.3

In spite of all the discussion about readjusting the admini-
strative organization, the end of the war brought a general satisfaction
with the way the executive departments were organized. Henry Knox

remarked that "Congress have rendered the powers and duties of the

32

office respectable." The French representative Otto wrote to Vergennes

that

The various departments have been arranged in the most perfect
manner; a regular system has been introduced into all the
branches of the general administration, and, but for the want
of permanent revenues, the United States would be one of the
best organized of governments. The department of foreign
affairs, of war, of finances, are in the hands of trusty and
capable men, whose integrity, wisdom, and circumspection will
stand every test. Secrecy is much better observed than during
the war. It is especially noticeable that the different
branches of the department of finances check each other 5033
ingeniously that the slightest malversation is impossible.

However adequate the structuring of the executive departments,

there was no way to prevent Congress from meddling in departmental

 

3lBigelow, ed., Works of Franklin, X, 264.

32$ arks, ed., Diplomatic Correspondence of the Revolution

(Boston, 1829 , IV, 98.
33

 

 

Bancroft, The History of the Constitution, II, 411.

 

353

affairs when it chose to do so. Time and again Congress would undertake
to inject itself into departmental concerns whenever an issue arose,
irrespective of the source. This was especially true in the area of
foreign affairs. John Jay complained continually about how this was

injuring foreign policy matters and Congress finally resolved that all

correspondence must be handled through the secretary.34

James Madison reiterated Jay's problems with Congress in a
letter to James Monroe. He concluded that

His feelings are such as every one must possess who is worthy
of the station which he holds. If the Office of foreign Affairs
be a proper one & properly filled, a reference of all foreign
despatches to it in the first instance, is so obvious a course,
that any other disposition of them by Congress seems to condemn
their own establishment, to affront the Minister in office, and
to put on him a label of caution ag[ain] that respect & confi-
dence of the Ministers of foreign powers, which are essential

to his usefulness.

He went on to say:

I have always conceived the several ministerial departments of
Congress, to be provisions for abiding their Counsels as well
as executing their resolutions, & that consequently whilst they
retain the right of rejecting the advice which may come from
either of them, they ought not to renounce the Opportunity of
making use of it. The foreign department is I am sensible, in
several respects the most difficult to be regulated, but I
cannot think the question arising on Mr. Jay's letter is to be
numbered among the difficulties. The practice of Congress
during the administration of his predecessor was never fixed,
& frequently improper, and I always suspected that his indif-
ference to the place resulted in part at least from ghe morti-
fications to which this unsteadiness subjected him.3

 

34Journals of the Continental Congress, IV, 468.

35Hunt, ed., Writings of Madison, II, 127-128.

354

Unfortunately, Congress refused to give the executive departments a
free hand when operating within their departmental jurisdictions, and
continued to operate as an administrative as well as a deliberative
body until 1789.

One other interesting point to emerge from the development of
the executive departments was the influence exerted by Robert Morris
and John Jay. Professor Henry B. Learned contends that as Congress
declined in power these two individuals "probably exercised large if

not directive influence over it," and that Jay "became really what may

36

be called the chief executive of the Confederation." This idea was

supported by the French representative Otto who observed that the

little stability of congress . . . insensibly gives to the
ministers of the different departments a power incompatible
with the spirit of liberty and of jealousy which prevails in
this country. There is an unwillingness that the members of
congress should hold their seats longer than three years, but
the secretaries of state can be removed only for bad conduct.

It follows that these ministers, being perfectly acquainted
with current affairs, enjoy a great superiority over the dele-
gates whom chance has assembled from all parts of the continent,
and who are for the most part strangers to their task.

"Mr. Jay," he noted

especially has acquired a peculiar ascendancy over the members

of congress. All important business passes through his hands.

He makes his report on it, and congress seldom has an opinion
different from his. Instead of appointing committees, they

will insensibly become accustomed to seeing only through the

eyes of Mr. Jay, and, although that minister may be as capable

as possible of conducting wisely the measures of the United
States, this influence necessarily is hurtful to the freedom 37
and impartiality which ought to prevail in the national senate.

 

36Henry B. Learned, The President's Cabinet (New Haven, 1912),

 

13. 59.

37Bancroft, The History_of the Constitution, 1, 474.

 

355

In another report Otto reiterated the power of Jay's influence
with respect to settling the problems with France. He complained that

The political importance of Mr. Jay increases daily. Congress
seems to me to be guided only by his directions, and it is as
difficult to obtain anything without the co-operation of that
minister as to bring about the rejection of a measure proposed
by him. The indolence of the majority of the members of con-
gress and the ignorance of most of the others cause his
superiority. It is found much easier in current business to
ask the opinion of the minister of foreign affairs than to
form into a committee; hence the prejudices and passions of
Mr. Jay insensibly become those of congress, which does not
perceive that it ceases to be anything more than the organ of
its chief minister. Happily, Mr. Jay is a patriot, and in
general well disposed, but his grievances against France render
him as obstinate as possible in regard to our demands the most
just.

In spite of this, Otto concluded that

whatever the prejudices of this minister toward us may be, I
cannot deny that there are few men in America better able to
fill the place which he occupies. The veneration with which

he has inspired almost all the members of congress proves,

more than anything else, that even the jealousy so inseparable
from the American character has not prevailed against him, and
that he is as prudent in his conduct as he is firm and resolutg
in his political principles and in his coolness toward France. 8

In the final analysis, Professor Learned concluded that the
tenure of Morris as director of continental finance from June, 1781 to
November, 1784 and Jay's leadership in the area of foreign affairs until
March, 1790 helped establish the "idea of an executive chief supported
by administrative assistants untrammeled by too intimate and controlling

39

a connection with Congress." Thus, the primary lessons learned during

the Confederation period with respect to the executive departments were

 

38
39

Ibid., pp. 479-480.

 

Learned, The President's Cabinet, pp. 58-59.

 

356

the need for their separation from Congress under independent heads,

and the fact that they provided for continuity in the administration of
congressional affairs. As Otto noted, however, "this fine structure is,
unfortunately, useless on account of the exhaustion of the treasury."40

In spite of the fears expressed about the power of these ad-
ministrators, a growing number of individuals began to see the necessity
of uniting and strengthening the administrative arm of Congress. As
early as August, 1780 a group met at Boston representing the New England
states and urged that the “national Concerns of the United States be
under the Superintendency and Direction of one supreme Head."4]

At the close of the war three years later, another writer
called for the establishment of a powerful federal executive. The
problem he pointed out was highlighted by the army's demands for back
pay in what came to be known as the Newburg Affair. They look

to congress, and congress only, as their lawful sovereign for

a fullfilment of those things . . . required of a government
knowing at the same time that it is as impossible for them to
do it as to make bread of stones. There must be a change of
government which must create a strict accountability from each
other to that head; a change that must disunite the legisla-
tive from the executive authority in that federal head (which
if they had any power at all would be mischievous, but in their

state of imbecility is harmless); and of this monstrous com-
pound, they must draw out two distinct and well-organized

 

40Bancroft, The History of the Constitution, II, 411. Also
see Jay Ceasar Guggenheimer,‘"The Development of the Executive Depart-
ments, 1775-1789," in Essays in the Constitutional History_of the United
States, J. Franklin Jameson, ed. (Boston, 1889), p. 148, who conEludedl
about this whole period that "It is positively pathetic to follow Con-
gress through its aimless wanderings in search of a system for the
satisfactory management of its executive departments."

41F. G. Houg, ed., Proceedings of A Convention of Delegates
from Several of the New England States,_Held at Boston,_August 3-9,
‘1780 (Albany, 1867), p. 50.

 

 

357

bodies; legislative and executive; whose powers and capacities
shall be equal to the task of managing the unruly affairs of
America.
With respect to the executive, he concluded that
there must be a great and fearful executive officer to do
anything; the power of that officer must be greater than that
which is hereditary in the house of Orange, and as nearly
like the head of that power we are contending with as can
well be imagined, the name only excepted.
He hastened to urge that this new government be formed while America
still feared the "enemy and their own army" to prevent a disintegration
into ”a wanton and riotous spirit.“ Finally, he concluded, anarchy was
more to be feared than a government "formed and established under the
influence of an army," for “doubly wretched is that country which has

42 Fortunately, few Americans were ready to

no government at all."
adopt a military dictatorship or a strong monarchy at this stage.

On the other hand, some Americans were beginning to see the
need for more concentration of power in executive hands. Shortly after
Congress created the major executive departments, an anonymous writer
in the Pennsylvania Packet commended the action noting that Congress
"hath determined on a measure which will give life and energy to our
proceedings, both in civil and military [areas by] . . . putting a man

at the head of each of the great departments." He then recommended

that since

 

42Extract of a letter from a person in Philadelphia to his
'friend in the New England Provinces, in Sir Guy Carleton's Papers,
1h). 60, of 15 March, 1783, found in Bancroft, The History of the
Constitution, I, 299-300.

358

persons who shall fill these offices have the fullest
information respecting all our affairs, they may render the
public essential service and facilitate the business of Con-
gress, if they were frequently to meet together to deliberate
on them, and then to lay their opinions and plans before Con-
gress. Much therefore will depend on their having a 9003
understanding and friendly intercourse among themselves. 3

A short time later, another writer added that since these

department heads were granted significant duties that they
might, if they should be men of general knowledge beyond the
line in which they act, be extremely useful in another capa-
city; for possessing among themselves ample knowledge of
everything relative to public affairs, they might meet fre-
quently together, consult what ought to be done, and submit
their sentiment to Congress. By this means much time and
labor would be saved to Congress; and the public business 44
would be carried on with regularity, vigor and expedition.
These suggestions in all probability were derived not from a theory of
government or administration but rather from the common sense notion
that Congress needed an executive advisory council.

Two years later, Pelatiah Webster formalized the idea of an
executive council. He advocated a bicameral legislature consisting of
a "Senate and Commons" and several department heads known as the "great
ministers of state." The ministers, he wrote, "will of course have the
best information, and most perfect knowledge, of the state of the
Nation, as far as it relates to their several departments, and will of
course be able to give the best information to Congress." This advice

would be submitted to Congress in writing though Congress might admit

 

43

44mm.

Cited by Learned, The President's Cabinet, p. 60.

359

the ministers to their sessions to provide information during a debate
though they would not be granted a vote. Moreover, he continued,

the aforesaid great ministers of state shall compose a Council

of State, to whose number Congress may add three others, viz.

one from New England, one from the middle States, and one

from the southern States, one of which to be appointed Presi-

dent by Congress;
to all of whom shall be committed "the supreme executive authority of
the States . . . [and they] shall superintend all the executive depart-

45 Here at least was the

ments, and appoint all executive officers."
embryonic notion of combining the executive authority into a "Council
of State," a phrase frequently found in state and colonial constitutions.
Another writer, Noah Webster, continued the line of reasoning
by advocating the concentration of all executive power in the hands of
one person. He contended that the "power of the whole . . . be brought
to a single point and vested in a single person, and the execution of
laws still be vigorous and decisive."46
While consolidating the executive power in the hands of one
or a few administrative heads was not alien to American political
theorists, it was far from an accepted political axiom. Yet, an
increasing number of individuals began to realize that one of Congress'
fundamental weaknesses was the lack of a proper division of powers.

By 1786 this was a major topic of discussion among those advocating a

restructuring of the federal government. John Jay wrote:

 

45"A Dissertation on the Political Union and Constitution of
the Thirteen United States of North America, etc.," in his Political
Essays (Philadelphia, 1791), pp. 213-222.

46Sketches of American Policy (Hartford, 1785), p. 7.

360

I have long thought, and become daily more convinced, that
the constitution of our federal government is fundamentally
wrong. To vest legislative, judicial, and executive powers
in one and the same body of men, and that, too, in a body
daily changing its members, can never be wise. In my opin-
ion, these three great departments of sovereignty should be
forever separated, and so distributed as to serve as checks
on each other. But these are subjects that have long been
familiar to you, and on which you are too well infgymed not
to anticipate everything that I might say on them.

Several months later in another letter to Jefferson, Jay
reiterated his concern. Said he:

I daily become more and more confirmed in the opinion, that
government should be divided into executive, legislative,

and judicial departments. Congress is unequal to one first,
very fit for the second, and but ill calculated for the
third; and so much time is spent in deliberation, that the
season for action often passes by before they decide on what
should be done; nor is there much more secrecy than expedi-
tion in their measures. These inconveniences arise not from
personal disqualificatigns, but from the nature and construc-
tion of the government. 8

To Washington he wrote that the "executive business of sovereignty
depending on so many wills, and those wills moved by such a variety of
contradictory motives and inducements, will in general be but feebly
done." He continued by pointing to the fundamental problem of a plural
executive. "Such a sovereignty, however theoretically responsible,
cannot be effectually so in its departments and officers without ade-

49

quate judicatories." And finally to John Adams he wrote the decision

 

47
48

491bid., p. 223.

Bancroft, The History of the Constitution, I, 511.

 

Johnston, ed., Corresppndence of John Jay, III, 210.

 

361

"that Congress should act in these different capacities was, I think,
a great mistake in our policy."50
Other advocates of constitutional reform in the federal gov-
ernment were coming to the same conclusions. Madison in the spring of
1787 wrote that “the limited powers now vested in Congress are fre-
quently mismanaged from the want of such a distribution of them."51
To this point few individuals had argued against the proposition that
the three basic divisions (rf government, legislative, executive, and
judicial, ought to be separated. That was a political maxim settled
in the colonial era. However, the bulk of the discussion applied pri-
marily to the state constitutions. Moreover, while it was an accepted
political principle there was still much debate over the mechanical
implementation of the theory. The state constitutional experience, as
discussed later, did much to influence the thinking within the purview
of the executive.
The lack of an executive to coordinate congressional affairs
and carry on between sessions was a constant problem. Charles Thompson
wrote to Jefferson that "This mode of rambling is neither consistent
with dignity nor convenience." He lamented that America "must go the
"52

common round of nations before us and learn wisdom from our experience.

In 1784 Jefferson proposed to remedy this situation by establishing a

 

50Ibid., p. 227.

51Madison, Letters and Other Writings (Philadelphia, 1867),
I, 286.

52Burnett, Letters, VII, 557.

362

committee of states empowered to act for Congress in its absence. He
wrote in his autobiography that the committee was

to consist of a member from each state, who should remain in
session during the recess of Congress: that the functions of
Congress should be divided into Executive and Legislative,

the latter to be reserved, and the former, by a general resolu-
tion to be delegated to that Committee. This proposition was
afterwards agreed to; a Committee appointed, who entered on
duty on the subsequent adjournment of Congress, quarrelled

very soon, split into two parties, abandoned their posts, and
left the government without any visible head until the next
meeting of Congress.

This he concluded was to be the fate of "any Executive consisting of a

plurality."53

Jefferson's idea was a direct descendant of the ones proposed
by Benjamin Franklin and John Dickinson in their drafts for the Articles
of Confederation, in 1775 and 1776 respectively. In the fall of 1775,

a committee of Congress chaired by Jefferson recommended a recess com-

54 Since Congress did not

mittee with extensive administrative powers.
adjourn then, the proposal was never acted upon. Dickinson's plan
submitted later followed Jefferson's ideas quite closely. The signifi-
cant point was that both proposals went beyond the mere establishment
of a committee to sit during a congressional recess but rather it was
to be a steering committee and was intended to be the chief administra-

tive arm of Congress at all times.55

 

53Ford, ed., The Writings of Thomas Jefferson (New York,
1892) s I: 75'76°

54

55See Edmund C. Burnett, "The Committee of States, 1784,"
Annual Report of the American Historical Association, 1913, I, 141-158.

Boyd, ed., Writings of Jefferson, VI, 516-518.

363

By 1784 a frustrated Jefferson wrote to Madison that Congress
failed to think through the implications of its adjourning. He said
that

the question of the location of Congress is put off to be
considered with the establishment of a committee of the
states, which to my astonishment would have been negatived
when first proposed had not the question been staved off
(sic). Some of the states . . . were against the measure,

I believe because they had never reflecteg on the consequence
of leaving the government without a head. 6

The final report of the congressional committee, which pro-
posed the Committee of States, stripped the enumerated powers from the
committee concept envisioned by Jefferson. In their place, they recom-
mended that the committee be granted the powers which might be exercised
by seven states in Congress. They also left most of Jefferson's enu-
merated prohibitions. In this form, the committee's report passed
Congress, though Jefferson cautioned that it was necessary to

define the powers of the committee of states, [so] that if we
are left in the lurch again as we have been, there may be
some power to place at the head of affairs till the states
can be made servicible, of the necessity of sending on full
delegation.5

Jefferson had also proposed that the President of Congress
be a member of the Committee of States and serve as its presiding offi-
cer. However, the recommending committee chose to grant the Committee

the power to choose its own chairman. Later Congress, by a separate

 

56
57

Ford, ed., Writings of Jefferson, III, 470.
Burnett, Letters, VII, 458.

364

resolution, specifically prohibited the President from exercising any
powers during a congressional recess.58
Membership on the Committee of States was originally deter-

mined by Congress. In case of vacancy, another member of the absent
members' delegation would be appointed by prior arrangement. Moreover,
the Ccmmittee was empowered to reconvene Congress before the scheduled
date to which it stood adjourned if necessary. However, the Committee's
power was almost fatally destroyed by the requirement that on every
issue, except daily adjournment, it could not act without support of
nine states. One member of Congress wrote his state governor noting:

I freely confess I consented to appoint a Committee only with

a view to obtain a recess. If they do no good, their powers

are too much restricted to admit of their doing much hurt

. As Congress has made the concurrence of nine voices

necessary in every act there is ample Security against gBe

Committee's sitting in Philadelphia, unless infatuated.
James Monroe wrote to Jefferson outlining the breakdown of voting pat-
terns on the Committee and expressed relief that "the powers of the
committee are confin'd so that no injury can be effected."60

One member, John Francis Mercer, even expressed his contempt

for being a member of such a useless body. He wrote:

I am here only since eight o'clock last Evening, but that is

long enough to convince me that I am here to no good purpose.

A desire that the State of Virginia might shew (sic) her

respect for the Confoederal (sic) Government (if it is not a

prostitution of the name of Government to apply it to such a
vagabond, strolling, contemptible Crew as Congress) will

 

58Burnett, "The Committee of States, 1784," p. 151.

590ited by Ibid., p. 152.

60Cited by Ibid.

365

induce me to spin out a couple of weeks here. . . . If I

do not find the ensuing Congress of a very different complex-
ion from the last, and disposed to be very decisive--I will
no longer myself degrade the Character of a human being by
continuing an useless Cypher among others, who are become as
contempéjble to the world as they have long been to them-

se ves.

When the Committee of States did manage to assemble, they
found it difficult to accomplish much. Francis Dana complained to
Elbridge Gerry that once they assembled a quorum,

some persons are totally disinclined to do business, and are

fatigued at the very sight of it; [yet these individuals

are] . . . indispensably necessary, for we have yet only

nine states on the floor, [and] every thing must be at a

stand. From such causes we have hitherto done very little

business.
He went on to note that "the burden of this is so great, that some
will insist upon adjourning every Saturday, for the benefit of their
health, and because they have not been accustomed to do business on
that day." Then he added sarcastically, "nor on any other day."
Finally, in exasperation, he concluded that the "barreness of our
journal makes me ashamed. I will soon quit a place where public busi-
ness cannot be done, and retire home Undo my private business."62

A dispute over adjournment to Trenton touched off a confronta-
tion between the delegates, which led to the final breakdown of the
Committee. Jonathan Blanchard noted that since there was "nothing to

do in the committee" he thought there was no reason to remain.63

 

61Cited by Ibid., p. 156.

62James T. Austin, The Life of Elbridge Gerry (New York,
1970), I, 443.

63Ibid., p. 447.

 

366

Other delegates viewed the maneuvering for adjournment as an attempt
to destroy the Committee. One member argued that

Our New England Members appear determined to prevent the
Continuance of the Committee by returning to their homes,

. . . the Eastern Gentry opposed the formation of a Com-
m[itt]ee very Strenuously--being baffled then, they are

now Resolved to render the Institution useless--they indeed
[endeavored?] to cover a little their real design by pro-
pose[ing] an Adjournment for 6 weeks, and a removal of the
Public papers to Trenton but the person must be very blind
that cannot see in complying with this proposal a dissolu-
tion of the Committee, the time between the end of Sept.
and the Meeting of Congress being so Short that Members,
uncertain of being continued in Congress will not think of
Assembling--besides there are at this very time many matters
which Should be attended to tho I must confess they are not
peculiarly interesting to the Eastern Combinatiga nor alto-
gether comformable to their System of politics.

Richard Spaight explained the final vote by contending that
it was an attempt to save the dignity of both the Committee and the
United States. Citing the "bad effects the dissolution of the Com-
mittee, by the withdrawing of any of its members, would have in the
political world on the affairs of the United States," the situation
induced him to

vote for . . . [the proposal] thinking it would have a better
appearance for the Committee to be dissolved (if it should
happen to have that effect by its not being formed again) by
its own vote than by the former mode, the one would at least
bear the face of unanimity, the other disunion.
'The proposal was voted down. Then Spaight and others attempted to
persuade those who wished to leave to remain until replacements could

be sent, whereupon Blanchard left immobilizing the Committee since

there were not nine states. For the next two days the remaining

 

64Quoted by Burnett, "The Committee of States, 1784," p. 154.
Also see Dana to Gerry, Burnett, Letters, VII, 555-556.

367

delegates tried to convince him to return to no avail. Shortly
thereafter, delegates Blanchard, Dana, and Dick left for home. This
action caused Spaight to conclude that

This unprecedented step of the Eastern Delegates did not
surprise me, it was only acting in unison with their former
conduct, and seems to me to be a concerted scheme among

the Delegates of the four New England States as they opposed
the appointing of a Committee during the recess, and would
not have agreed to it could they have had an adjournment
of Congress without.66

Not all members were so despairing of the significance of
the Committee of States. One delegate wrote that

It is conceived of great importance to the Confederacy that
the Com[mitt]ee should assemble. Whatever little politicians
may think, time will evince that it is of no small consequence
to save appearances with foreign nations, and not to suffer
the federal government to become invisible. A government
without a visible head must appear a strange phenomenon to
European politicians and will I fear lead them to form no66
very favorable opinion of our stability, wisdom or union.

Charles Thompson wrote to Ambassador Jefferson that

Though this invisibility of a Federal head will have little
effect on our affairs here, or on the minds of the citizens
of the United States who can easily reconcile themselves to
it and who will view it in no other light than the rising

or dissolution of their several Legislatures, to which they
have been accustomed, yet I am apprehensive it will have an
ill aspect in the eyes of the European nations and give them
unfavorable impressiggs, which require all your address and
abilities to remove.

In spite of these arguments, the Committee never again reassembled.

 

65Quoted Ibid., p. 155.
66

67

Burnett, Letters, VII, 593.
Ibid., p. 599.

368

A while later, James Monroe reported that there was a
movement among some of the delegates of Congress to investigate the
demise of the Committee. However, he argued, the less said about the
Committee the better for all concerned. When Madison was asked by
Jefferson to explain what happened, he replied:

I am not sure that I am myself possessed fully of the causes
different members of Congress having differed in their accounts
of the matter. My conception of it is that the abrupt depar-
ture of some of the Eastern delegates which destroyed the
quorum which Dana is said to have been at the bottom of pro-
ceeded partly from irritations among the comm[itt]ee partly
from dislike to the place of their session and partly from an
impatience to get home, which prevailed over their ragard for
their private characters, as well as for their duty.

If nothing else the lessons from the Committee of States
affair were a pointed lesson to those advocates of Confederation reform.
Overall, however, concern over the state of the Committee moved from
expressions for the need of an administrative head to concerns over
the appearance of the Confederation in diplomatic circles. As James
Madison argued:

I am persuaded that there sho'd always be . . . during the
recess of Congress [some executive power,] for while there
exists a foederal government and any arrangement abroad or
within depending on it, any responsible characters acting
under it, there sho'd always be a foederal head.
While on the other hand the chairman of the Committee concluded after
its demise,
what consequences may result from this ill-judged measure
time can only disclose. Though I must confess I anticipate
the worst. Its tendency to lessen the dignity of the foederal

Government in the Eyes of our own Citizens as well as those
of foreigners cannot be denyed.

 

68Hunt, ed., Writings of Madison, II, 162.

 

369

This, he concluded, exposed the United States "to all the danger that

69

may result from the want of a federal head." Moreover, this episode

not only pointed to the inherent weaknesses of the Confederation, but,
in the opinion of Jefferson, proved the futility of a plural executive.

The contempt it generated did, however, help to spur the discussion

for needed reforms by at least showing what did not work.70

As late as the summer of 1787 Jefferson continued to reiterate
the need for a separate and well-ordered executive branch. Prior to the
adjournment of the Constitutional Convention, he wrote:

I think it very material to separate in the hands of Congress
the Executive and Legislative powers, as the judiciary already
are in some degree. This I hope will be done. The want of it
has been the source of more evil than we have experienced

from any other cause. Nothing is so embarrassing as the
details of execution. The smallest trifle of that kind occu—
pies as long as the most important act of legislation, and
takes place of everything else. Let any man recollect, or
look over the files of Congress, he will observe the most
important propositions hanging over from week to week and
month to month, till the occasion have past them and the

thing never done. I have ever viewed the executive details

as the greatest cause of evil to us, because they in fact
place us as if we had no federal head, by diverting the atten-
tion of that head from great to small objects, and should

this diviSion of power not be recommended by the Convention,
it is my opinion Congress should make it itself by establish-
ing an executive committee.

Thus Jefferson, like others, argued for a separate executive branch as
a means to facilitate the administration of congressional policy and

free Congress from the daily details of administration.

 

70See Ford, ed., Writings of Jefferson, "Jefferson's Bio-
graphyJ'I, 75.

7'Ibid., IV, 424.

370

During the period from 1781 to 1789, the office of President
of Congress continued in much the same manner as before. However, the
organization of the executive departments relieved the President of
most of his official correspondence duties. In spite of the role played
by the executive departments, the President's duties continued to
revolve around three basic areas. He presided over Congress, repre-
sented Congress and the United States in official correspondence not
covered by the executive departments, and entertained Americans and
foreigners at official functions of state. As noted previously, Con-
gress after much delay finally provided the President with a house,
staff, and entertainment expenses. Moreover, in 1781 an unsuccessful
attempt was made to provide him with a definite salary. Superintendent
of Finance Robert Morris recommended that "a Salary be fixed to the
office of President whi 1 may be adequate to the Expence (sic) [he
incurrs]." This, he hoped, would "be more agreable (sic) to every
Gentlemen, who may fill that exalted Station."72 Three years later,
Morris again argued that the office ought to have a fixed salary in
line with sound financial principles as drawing on the treasury to pay
expenses as they arose caused administrative problems. He wrote Jef-
ferson regarding the "Expences (sic) of the PreSidents Household,“ and
concluded that

the present Mode is certainly objectionable as I have fre:
quently had Occasion to observe and which I now repeat with

the more Freedom as Nothing which can be said will bear the
least personal Application.

 

72Quoted by Jennings B. Sanders, The Presidenoy of the Con-
tinental Congress (Gloucester, Massachusetts, 1971), p. 50.

 

 

371

He proceeded to outline his reasons as follows:
lst. No Person not accountable to the United States should be
invested with the Right of drawing at Will on the Public
Treasury. 21y. Every Expenditure ought as far as the Reason
and Nature of Things will permit to be ascertained with Pre-
cision. 31y. A fixed Salary being annexed to the Office of
President of Congress he will be more effectually Master of

his own Household and in Consequence a gre9§er Order and
OEconomy (sic) may reasonably be expected.

Again Congress refused to follow his recommendation preferring to pay
the President as the need arose.

In 1784 an attempt was made to make the President "a more
powerful and serviceable official." It resulted from several indivi-
duals advocating the election of Jay, Laurens, and R. H. Lee for the
office. South Carolina was reported to have agreed to support Laurens
again "provided the position was made more important." However,
nothing ever came of the proposal and historian Sanders concluded it
was probably part of the general effort to call a constitutional con-

74 At the time most members of

vention to revise the Confederation.
Congress would likely have agreed with Richard H. Lee on what power
the President ought to have when he wrote to Samuel Adams in 1785 that
"the first maxim of a man who loves liberty should be, never to grant
to Rulers an atom of power that is not most clearly & indispensably

necessary for the safety and well being of Society."75

 

73Boyd, ed., Papers of Jefferson, VI, 560.

 

74Sanders, The Presidency of the Continental Congress, p. 29.

75James C. Ballagh, ed., Letters of Richard Henry_Lee (New
York, 1911), II, 343-344.

372

An indication of the President's lack of power to endanger
the Congress was illustrated by the election of Thomas Mifflin as Pre-
sident. At the time of his election he had not as yet been re-elected
a delegate to Congress from Pennsylvania. Not until nine days after
his election as President did he present his credentials indicating
that he had indeed been chosen to represent that state. As historian
Sanders observed, "It would seem, therefore, that Congress was antici-
pating a bit in their action. . . , and had the Presidency been a more
important office, this would strike one as having been rather hazardous."76
In summary, the significance for this study of the Presidency
of Congress lies not in its being a political forerunner of the present
presidency, but rather that it focused attention on the non-political
duties of the President. The President's duty to preside over Congress
was given to the Vice—President in the Constitution of 1787 as President
or chief presiding officer of the Senate. However, the President of
Congress in this period was more than a presiding officer as he had
important clerical and social functions to fulfill. It was in these
capacities that he could, if he so chose, use what little authority he
possessed to influence congressional policy. Moreover, most of the
occupants of the office were lawyers and as such they were well educated,
and possessed a considerable experience in public affairs. Most impor-
tant, in the long run, was that the role of spokesman for the United

States was passed intact from the congressional office of President to

 

76Sanders, The Presidency of the Continental Congress, p. 25,

373

the present office of the Presidency. Therein lies the significant
continuity between the two institutions.77
From the end of the Revolutionary War to the eve of the Con-
stitutional Convention of 1787 there was constant friction between those
who saw the problems of the Confederacy from the national viewpoint and
those who viewed them from the perspective of the states. Alexander
Hamilton noted in 1783 that "There are two classes of men . . . in Con-
gress of very different views-—one attached to the state the other to
Continental politics."78
Four years later John Jay despaired of any fundamental changes
being made in the Articles of Confederation because
this country has yet to feel and s§g_a little more before it
can be accomplished. A thirst for power, and the bantling--
I had like to have said MONSTER--sovereignty, which have taken
such fast hold of the States individually, will, when joined
by the many whose personal consequence in the line of States
politics will in a manner be annihilated, form a strong
phalanx against it.
Then there will be the support necessary for reform, but only when the
public mind has "matured for such an important change. . . ."79
To help in this process, Jefferson recommended “sending our
young statesmen . . . [to Congress]. They see the affairs of the Con-
federacy from a high ground; they learn the importance of the Union

and befriend federal measures when they return." "Those who never

 

77Ibid., pp. 70-71.

 

78
79

Burnett, Letters, VII, 129.

Johnston, ed., Correspondence of Jay, III, 238-239.

 

374

come here," he concluded, "see our affairs insulated, pursue a system

of jealousy and self-interest, and distract the Union as much as they

can."80

The growth of federal sentiment was urged by Jay and others
with increasing urgency in the years between the Revolution and the
Convention. To John Adams Jay wrote:

Your letters I am sure are useful; they disseminate those
federal ideas which cannot be too forcibly inculcated or
too strongly impressed. Our federal government is incompe-
tent to such objects, and as it is in the interest of our
country, so it is the duty of her leading characters to co-
operate in measures for enlarging and invigorating it. The
rage for separation and new States is mischievous; it will,
unless checked, scatter our resources, and in every view
enfeeble the Union. Your testimony against such licentious,
anarchical proceedings would, I am persuaded, have great
weight.81

To Jefferson he wrote that

Among the public papers herewith sent you will find the
speech of the Governor of New York to the Legislature, and
the answer of the Senate. A spirit more federal seems to 82
prevail than that which marked their proceedings last year.

In 1786 he mentioned the changing spirit to Adams. He noted that

The public papers will enable you to see the complexion of
the times. Federal opinions grow, but it will be some time
before they bear fruit; and, what is not the case with most
other fruits, they will, to judge from present appearances,
ripen slower in the South than in the North.8

 

80Boyd, ed., Papers of Jefferson, VI, 548-549.

81Johnston, ed., Correspondence of Jay, III, 172.
82Ibid., p. 179.

83Ibio.

375

Like the growth of federal sentiment the realization of a
need for an independent federal executive was painfully slow. Along
the way there were a number of incidents which helped formulate public
attitudes toward the need for such a national executive.

The Newburg incident showed how vulnerable Congress was in
the face of an uncontrolled army. The military officers, angered over
not being paid and not having their demands for half pay for life
approved, were threatening to take action against Congress. If Wash-
ington's presence and diplomatic tact had not defused the army's inten-
tions of forcing congressional compliance, it might well have created
a political crisis that would have brought down the already shaky
structure of the Confederation. The Maryland delegation in Congress
wrote to their governor explaining:

We are truly sorry to inform you that the discontents of our
Army have risen to a very alarming height, in so much as to
threaten fatal consequences--anonymous addresses calculated
to inflame the passions had been industriously and clandes-
tinely circulated through the Army calling a meeting . . .

to devise a mode of redressing their own wrongs, while it was
yet in their power, declaring at the same time that no reli-
ance was to be placed in the justice of Congress, from whom
their unavailing applications had met with only inattention
or contempt. The General interposed his authority as soon

as he was apprised of this dangerous proceeding . . . and
hoped the step he had taken to dissipate a Cloud so hastily
collected and which threatened to burst on a sudden [incident]
would meet the approbation of Congress. he (sic) has the
best disposition to support their Authority with his whole
influence and power; at the same time he relies on Congress
taking the most efficacious and speedy measures the circum-
stances will admit of to comply with the reasonable claims

of the Army.8

84Burnett, Letters, v11, 88-89.

376

Once again Washington had taken the lead and had shown Congress that
the lack of an executive head would cause them no end of problems some
of which might be fatal to the federal government.

Washington found himself involved in another veterans' problem
when he was elected president of The Society of Cincinnati. Washington
was drawn to the idea of its founders of establishing a charitable
organization to do benevolent work among the widows and orphans of
Revolutionary War veterans. However, some Americans interpreted this
as an attempt to set up a military aristocracy since it was a fraternal
organization with all the trappings and had a hereditary membership
which was also open to foreigners who had served in the war. Opposi-
tion to the organization spread rapidly and Washington, sensing his
predicament, resigned as its president. A letter that General Greene
wrote to Washington after this episode summed up the American sentiment
toward such organizations. He wrote in part that

The clamor roused against the Cincinnati was far more extensive
than I expected. I had no conception that it was so universal.
I thought it had been confined to New England alone; but I
found afterward our ministers abroad, and all the inhabitants,
in general, through out the United States, were opposed to the
order. . . . The measures you took seemed to silence all the
jealousines (sic) on the subject; but I wish the seeds of dis—
content may not break out under some other form. However, it
is hardly to be expected that perfect tranquility can return

at once, after so great a revolution, where the minds of the
people have been so long accustomed to conflict and subjects

of agitation. In this country many discontents prevail; com-
mittees are formed, and correspondencies going on, if not of

a treasonable nature, highly derogatory to the dignity of

government, as well as subversive of the tranquility of the
people. And I wish they may not break out into acts of

377

violencg and open rebellion against the authority of the
state.8

Many members of Congress were fearful that the Order of Cin-
cinnati was just a guise to establish a military constitution for the
present Articles of Confederation. Elbridge Gerry wrote that

as I have endeavoured formerly to shew (sic), some have
created this political Wolf and presented it in Sheeps
Cloathing (sic), and to recommend the harmless Creature
they have christned (sic) it with the venerable Name of
Cincinnatus. Should it be suffered to exist in the pre-
sent form, the constitutional Congress must be soon sus-
pended by the military one; and an Existence in any Form,
will furnish an intriguing Court with a fixed order of Men
to carry on operations against our Constitution. (sic) let
us suppose the Members of the Cincinnati without Funds,
Titles, Badges, or hereditary Descents, and only permitted
to have innocent Meetings in the States and in a continental
Congress once or twice a year. (sic) will they not be
instantly an object for intriguing Courts to establish
thereby an Influence, to Accomplish the purposes mentioned,
or any other that may endanger the Liberties of America?86

 

Jefferson counseled Washington that he
wished to see you standing on ground separated from it, and
that the character which will be handed to future ages at
the head of our revolution may in no instance be compromitted
(sic) in subordinate altercations. . . .
He also noted that he had not found one non-military member of Congress
who was not opposed to it, "and that with an anguish of mind, tho'
covered under a guarded silence, which I have not seen produced by any

circumstance before."87 Once Washington withdrew from the presidency

 

85
see I, 370.

86Burnett, Letters, VII, 522.

Bancroft, The History_of the Constitution, 1, 382. Also

 

87Ibid., p. 494. Also see Syrett, ed., ngers of Hamilton,

 

III, 635.

378

of the organization, its prestige declined, though it still remained
a source of political contention for a number of years. Washington's
stature and prestige had once again prevented a crisis.

One of the most insidious threats to the republican ideals
of the Revolution was the growth of monarchical sentiment. During the

Revolution, several plans to establish a monarchy were put forth, the

88

most famous of which was the one outlined by Court de Broglie. At

the close of the war, Colonel Nicola wrote Washington proposing him as
America's reigning monarch. In his letter he covered the sorry state
of affairs in America and went on to note that

This must have shown to all, and to military men in particular,
the weakness of republics, and the exertions the army have
been able to make by being under a proper head. Therefore I
little doubt, that, when the benefits of a mixed government
are pointed out, and duly considered, such will be readily
adopted. In this case it will, I believe, be uncontroverted,
that the same abilities, which have led us through difficul-
ties, apparently insurmountable by human power, to victory
and glory, those qualities, that have merited and obtained
the universal esteem and veneration of an army, would be
most likely to conduct and direct us in the smoother paths

of peace. Some people have so connected the ideas of tyranny
and monarchy, therefore, be requisite to give the head of
such a constitution, as I propose, some title apparently more
moderate; but, if all other things were once adjusted, I
believe strong arguments might be produced for admitting the
title of KING, which conceive would be attended with some
material advantages.

 

88See Louise Burnham Dunbar, "A Study of 'Monarchical' Ten-
dencies in The United States from 1776 to 1801," University of Illinois
Studies in the Social Sciences, X, 1923, Chapter II.

89Niccols letter reprinted in Jared Sparks, The Life of
Washington (Boston, 1844), p. 354.

 

379

Washington's indignant response outlined his aversion to
establishing a monarchy in America. He wrote that it was

With a mixture of great surprise and astonishment, I have
read with attention the sentiments you have submitted to my
perusal. Be assured, Sir, no occurrence in the course of
the war has given me more painful sensations, than your
information of there being such ideas existing in the army,
as you have expressed, and I must view with abhorrence and
reprehend with severity. For the present, the communication
of them will rest in my own bosom, unless some further agita-
tion of the matter shall make a disclosure necessary.

After disclaiming any feelings for monarchy, he warned that

if you have any regard for your country, concern for your-
self or posterity, or respect for me, to banish these
thoughts from your mind, and never communicate, as from 90
yourself or any one else, a sentiment of the like nature.

In 1781 Robert Morris, as Superintendent of Finance, was
charged with advocating the establishment of a monarchy by use of the
military. In a letter to General Nathaniel Greene, he wrote that

Experience must at least induce the people of America, if
the war continues to entrust proper powers to the AMerican
Sovereign, having compelled that Sovereign reluctantly to
relinquish the administration and entrust to their ministers
the care of this immense republic. I say if the war con-
tinues or does not continue, I have no hope that the Govern-
ment will acquire force; and I will go further, I have no
hope that our Union can subsist except in the form of an
absolute monarchy, and this does not seem to consist with
the taste and temper of the people. From the same attach-
ment to the happiness of mankind, which prompted my first
efforts in this revolution, I am now induced to wish that
Congress may be possessed of mucB more authority than has
hitherto been delegated to them. 1

 

90Ibid., p. 355.

9lLetter reprinted in The Diary and Letters of Gouverneur
Morris, Ann Carey Morris, ed. (New York, 1888), I, 15.

380

Thus, Morris was well aware that a monarchical form of government was
not acceptable to the American conditions. However, like Washington
and others of his time, he saw the need for a centralized government
with adequate powers.

As the decade of the 1780's progressed, those advocating
republican principles grew alarmed at the talk of establishing a
monarchy. Rufus King outlined all the problems of the Confederation
and then hastened to add that

It must not be understood that these remarks authorize an

opinion that a monarchy would promote happiness of the people

of America--far, very far from it. But they show this; if

wise and prudent men discerning the imperfections of the

present Governments, do not in season and without fear,

propose suitable remedies, the causes which changed the

Governments alluded to may, and probably will, change those

of America.92
King's remarks indicate that there were at least plausible discussions
of a monarchy.

Madison turned the discussion of the monarchical form of gov-
ernment to his own ends. Since he was one of the more influential
individuals in the forefront of those calling for a revision of the
Confederation, he analyzed the monarchical sentiment as stemming from
a desire for governmental stability with no viable republican alterna-
tive. He wrote that

Those who may lean towards a Monarchical Govt. and who I
suspect are swayed by very indigested ideas, will of course
abandon an unattainable object whenever a prospect opens of

rendering the Republican form competent to its purposes.
Those who remain attached to the latter form must soon

 

92Burnett, Letters, VIII, 459.

381

perceive that it can not be preserved at all under any
modifications which does not redress the ills experienced
from our present establishments.

Later to Edmund Pendleton he wrote that the

late turbulent scenes in Mass'ts and infamous one in Rhode
Island, have done inexpressible injury to the republican
character in that part of the United States; and a propen-
sity towards Mgflarchy is said to have been produced in some
leading minds.

The Canadians watched events in America with more than just
passing interest. An intelligence communication to Lord Sydney noted
the discussion of monarchy and though it was a gross overstatement,
assessed the national feeling. The report read in part that

At this moment there is not a gentleman in the States from
New Hampshire to Georgia, who does not view in the present
Government with contempt, who is not convinced of its inef-
ficacy, and who is not desirous of changing it for a monarchy.

It then went on to divide public opinion into three classes.

The first class proposes a federal Government somewhat resemb-
ling the Constitution of the State of New York, with an

annual Executive, Senate, and House of Assembly. The second
wishes to have a sovereign for life with two triennial Houses
,of Parliament. The third is desirous of establishing an
Hereditary Monarchy with a form of Government as nearly
resembling Great Britain as possible.

The report then noted that the first class looked

up to General Washington; those of the second and third
classes cast their eyes to the House of Hanover for a
Sovereign, and they wish for one of the King's sons. The
third class is the most powerful, and composed of the
ablest men in the States.

Finally, it concluded:

 

93

94Ibid., p. 319.

Hunt, ed., Writings_of Madison, II, 315-316.

382

From other sources of information it is understood that men

of ability in the States are in general strongly impressed
with the necessity of establishing a Monarchy; they find

their present Government neither efficient nor respectable;
they are greatly divided in opinion upon this subject,

whether they shall raise an American to this dignity, or 95
procure a Sovereign from Great Britain or from France. . . .

It was evident that this intelligence report had confused the desire
for an adequately endowed national executive by leading advocates for
constitutional reform with a desire for a monarchy.
Some sentiment for a monarchy was the result of the search
for forms of governmental organization to strengthen the national
government. In 1784 a respected New England clergyman, Jeremy Belknap,
wrote that
Experiment is the surest and fairest way of coming at knowl-
edge; and I think it will not be much longer before we shall
all be convinced that a democratic government, over such a
large and increasing number of people, inhabiting so vast an
extent of country, is to say the least . . . extremely incon—
venient . . . and very inadequate to the purpose.

A short time later, he wrote,
Let it stand as a principle that government originates from
the people; but let the people be taught (. . . they will
learn it by experience, if no other say) that they are not
able to govern themselves. . . . Should even a limited
monarchy be erected, our liberties may be as safe as if 96
every man had the keeping of them solely in his own power.

Others disagreed with the feasibility of a monarchy. Richard

Henry Lee observed that

 

95
548, No. 8.
96Jeremy Belknap to Ebenezar Hazard, February 27, March 3,

1784, Belknap Papers (Massachusetts Historical Society, Collections,
5th ser., II), I, 307, 315.

Communication reprinted in Burnett, Letters, VIII, 547-

 

383

Our territories are far too extensive for a limited monarchy,
in which the representatives must frequently assemble, and

the laws operate mildly and systematically. The most eligible
system is a federal republic, that is, a system in which
national concerns may be transacted in the center, and local
affairs in state or district governments. . . .9

Other individuals were more concerned with governmental
stability than the form it assumed. William Plumer claimed that this
was representative of the popular sentiment. As he argued:

I am fully resolved to use my power & influence in supporting
that form of Government which my country establishes. I do
not feel hostile to either democracy, autocracy, or monarchy.
I am inclined to think the people are much more interested

in the good administration than in the theory or form of the
government--Or, as Pope exprsgses it, 'That government is best
which is administered best.‘

The fear of monarchy proved to be a powerful spur to those
advocating reform of the Confederation. For example, Madison wrote to
Edmund Pendleton in January, 1787 that

Our latest information from the Eastw[ar]d has not removed
our apprehensions of ominous events in that quarter. It is
pretty certain that the seditious party has become formidable
in Gov[ernmen]t and that thsy have opened a communication
with the Viceroy of Canada.

George Washington wrote to Jay exclaiming,

What astonishing changes a few years are capable of produc-
ing! 1 am told that even respectable characters speak of a
monarchical form of government without horror. From thinking
proceeds speaking: thence to action is often but a single
step. But how irrevocable and tremendous! What a triumph

 

97Richard Henry Lee, Letters of a Federal Farmer, Letter VI,
December 25, 1787 (New York, 1788).

98W. Plumer, Jr., The Life of William Plumber (New York,
1969), ppo 53‘59.

99Hunt, ed., writings of Madison, II, 307.

384

for the advocates of despotism to find that we are incapable

of governing ourselves, and that systems founded on the basis
of equal liberty are merely ideal and fallacious! Would to

God that wise measures may be taken in time to avesb the conse-
quences we have but too much reason to apprehend.

Jay agreed with Washington's assessment and argued in his
reply that the functions of government must be divided into legislative,
executive, and judicial functions. With respect to the executive he
said,

Shall we have a king? Not in my opinion while other experi-
ments remain untried. Might we not have a governor-general
(to preserve the balance), with the advice of a council,
formed for that only purpose, of the great judicial officers,
have a negative on their acts? Our government should in some
degree be suited to our manners and circumstances, and they,
you know, are not strictly democratical (sic). What powers
should be granted to the governmens so constituted is a ques-
tion which deserved much thought. 1

After Shay's Rebellion, Jay wrote to Jefferson that "If faction should

long bear down law and government, tyranny may raise its head, or the

more sober part of the people may even think of a king."102

Then on the eve of the Constitutional Convention, Washington
summed up the public sentiment for monarchy. Said he:

I am fully of the opinion that those who lean to a monarchical
government, have either not consulted the public mind, or that
they live in a region, which (the leveling principals (sic) in
which they were bred being entirely eradicated) is much more
productive of monarchical ideas, than are to be found in the
southern States. . . . I am also clear, that, even admitting
the utility, nay, necessity of the form, yet that the period

 

100Johnston, ed., Correspondence of Jay, III, 209.

 

10'Ibid., p. 227.

102Ibid., p. 213.

385
is not arrived for adopting the change witggut shaking the
peace of this country to its foundations.

Throughout 1786 there was rumor of a "monarchical plot,"
though contemporary evidence is scant. Historian Louise Dunbar sifted
the evidence and concluded that "If anybody is to be convicted of pro-
moting a monarchical plan for any or all of the United States it must
be on circumstantial evidence." What evidence exists indicated that
some persons, mostly from New England, between the end of the Revolu-
tion and 1788, did favor the establishment of a monarchy. Especially
interested was the governor of Canada, though the available evidence
indicated more support for a Prussian rather than an English prince.
Finally, "that the known character and public record of the men involved
proves the motives to have been a desire for general security of pro-
perty and 'good government.'" Moreover, their discussions were shrouded
with "extreme caution" which indicated that they expected thataimonarchy
would be established by "coup d'etat“ and while the people in general
might oppose the movement, I'their aversion would in time be overcome
by the benefits to be received in peace, order, and prosperity.“104
Historian Samuel Elliot Morrison concluded from his studies that the
"Federalists" before 1788 who spoke of monarchy grasped "at the mon-

archical ideas, as a drowning man grasps at a straw." In his opinion

 

 

1031o Madison, March 31, 1787, Ford, ed., writings of Wash-
ington, XI, 132.
104

Dunbar, "A Study of 'Monarchical' Tendencies," p. 75.

386

the New England sentiment for a separate "Northern Confederacy"
indicated nothing to show that it "should be anything but a republic."105
Among the men who finally succeeded in replacing the Articles

of Confederation, only Alexander Hamilton stands out as indicating any
executive ideal which might be construed as favoring a monarchy. How-
ever, his proposal for a life-time executive, as discussed in the next
chapter, was not given serious consideration. Other individuals like
Washington and Madison feared a general drift toward monarchy if re-
publican ideals could not be securely anchored upon a strong and viable
national government. To this end, they used the threat of monarchy to
warn their colleagues that if actions were not taken soon to remedy
the weaknesses of the Confederation, the ideals of the Revolution were
in danger of being lost. In the words of Madison, who said that it
had fallen to the Americans, as to no other people, the opportunity
to justify "Republican government" by their actions.

In this view the citizens of the United States are responsible

for the greatest trust ever confided to a political society.

If justice, good faith, honor, gratitude and all the other

qualities which ennoble the character of a nation, and ful-

fill the ends of government, be the fruits of our establish-

ments, the cause of liberty will acquire a dignity and lustre

which it has never yet enjoyed; and an example will be set

which cannot but have the most favourable influence on the

rights of mankind. If on the other side, our governments

should be unfortunately blotted with the reverse of these

cardinal and essential virtues, the great cause which we have

engaged to vindicate will be dishonored and betrayed; the

last and fairest experiment in favour of the rights of human
nature will be turned against them, and their patrons and

 

105Quoted in Ibid., p. 75, n 100. This is quoted from a
letter Morrison wrote to Dunbar.

 

387
friends exposed to be insulggd and silenced by the votaries
of tyranny and usurpation.
While actively pursuing reform of the Confederation, men

like Jefferson and Madison also sought to remedy the problems experi-
ence had shown to be evident in the state constitutions. Jefferson
outlined the need to

make the Executive and Judiciary branches independent of the

Legislative; to give them some controul over the laws by form-

ing them into a Council of revision as in New York; to modify

the election of the Senate so as to ensure a choice of the

wisest men and thus rendering that branch of legislature more

useful, the making our constitution paramount the powers of

the ordinary legislature so that all acts contradictory to

it may be adjudged null; these are objects which to me appear

rational and necessary. 0

In lengthy correspondence with Jefferson over his proposed

revision of the Virginia Constitution in 1784, Madison outlined and
developed his thinking on the nature of the executive power. Jefferson
had proposed a constitution for Virginia in 1784 which provided for a
governor, council of state, and assembly. The governor was chosen by
both houses of the assembly for a maximum of five years. He was barred
from holding any other office in state government or any emolument from
any other source. His powers excluded all prerogatives formerly asso-
ciated with the royal governors and included only those powers "which
are necessary to carry into execution the laws, and which are not in

their nature [either legislative or] Judiciary." The executive was

barred from exercising any powers affecting the state beyond its border.

 

106Burnett, Letters, VII, p. xviii.

107Boyd, ed., Works of Jefferson. VII. 292-293-

 

388

These were reserved for Congress. Otherwise the governor would only
exercise "such laws as the legislature may think it expedient to
pass."108
Madison's response outlined his objections to Jefferson's

draft. With respect to the election procedure, he argued that

An election by the Legislature is liable to insuperable

objections. It not only tends to faction intrigue and

corruption, but leaves the Executive under the influence

of an improper obligation to that department.
Instead, he argued for direct popular election or "by Electors as in
the appointment of the Senate in Maryland" as being far more preferable.
He also thought that the benefits of re-eligibility outweighed the
safeguards of making him ineligible. That, he argued, “takes away one
powerful motive to a faithful and useful administration, the desire of
acquiring that title to a re-appointment." "By rendering a periodical
change of men necessary," he continued, ”it discourages beneficial
undertakings which require perseverance and system, or, as frequently
happened in the Roman Consulate, either precipitates or prevents the
execution of them." Moreover, he continued,

It may inspire desperate enterprises for the attainment of

what is not attainable by legitimate means. It fetters the

judgment and inclination of the Community; and in critical

moments would produce a violation of the Constitution, or

exclude a choice which might be essential to the public

Safety. [Moreover] . . . by putting the Executive Magistrate

in the situation of the tenant of an unrenewable lease, it

would tempt him to neglect the constitutional rights of his
department, and to connive at usurpations by the Legislative

 

108Ibid., v1, 297-299.

389
Sep?::::2:i YOBh which he may connect his future ambition
The appointing power was the most difficult to protect from

abuses, Madison thought. If it was given

to a numerous body, you at once destroy all responsibility,

and create a perpetual source of faction and corruption.

Give it to the Executive wholly, and it may be made an

engine of improper influence and favoritism.
He proposed dividing it between the executive and the upper house of
the legislature. The former would alone appoint subprdinate offices,
while the executive and Senate would appoint "those of the superior
order." This was especially necessary for judges that they owe their
appointment to the other two branches.“0

One of the "most puzzling articles of a republican Constitu-

tion" was the impeachment proCess, Madison thought. He said it was
"far more easy to point out defects in any plan, than to supply a cure
for them." He cited the fact that there were so many different modes
adopted by the various state constitutions which showed "how much the
compliers were embarrassed on this subject." The major problem was
how to organize a court of impeachment so that the party being im-
peached could not exert improper influence on the appointment of the
court. The second overall consideration was that a court of impeach-
ments maintain "impartiality . . . [and] respectability. The first

in order to a right, the second in order to a satisfactory decision."

The solution he recommended was to establish the court with "1/3 of

 

'09Ibid.. pp. 311-312.

1101bid., p. 312.

390

the members . . . struck out, by alternate nominations of the

prosecutors and party impeached; the remaining 2/3 to be the Stamen

of the Court." He then outlined the various court combinations.
When the House or Delegates impeach let the Judges or a
certain proportion of them and the Council of State be asso-
ciated in the trial. When the Governor or Council impeaches,
let the Judges only be associated: When the Judges impeach
let the Council only be associated. But if the party im-
peached by the House or Delegates be a member of the Executive
or Judiciary let that of which he is a member not be asso-
ciated . . . [and] 2/3 of the Court should in all cases be
necessary to a conviction and the chief magistrate at_least
be exempt from a sentence of perpetual if not of temporary
incapacity.

In the end, however, he concluded that
It is extremely probable that a critical discussion of this
outline may discover objections which do not occur. Some do
occur; but appear not to be greater thapIare incident to any
different modification of the Tribunal.

Madison thought it best to keep the veto power within a coun-
cil of revision. In this manner it served as a "check to precipitate,
to unjust, and to unconstitutional laws." He contended that it must
also be fashioned in such a manner so as not to disarm the "Legislature
of its requisite authority, by requiring bills to be separately com-
municated to the Executive and Judiciary department." If either of
these departments objected, 2/3 of the legislature would have to repass
the bill; and if both objected, then 3/4 of the legislature would have
to approve. In the final analysis, "It should not be allowed the
Judges or Executive to pronounce a law thus enacted unconstitutional

and invalid."112

 

mIbid., pp. 313-314.

1'21bid., p. 315.

391

The other aspects of Jefferson's proposal for executive
organization Madison apparently did not object to since he offered no
further observations. However, Madison realized the relationship
between practice and theory. He warned Jefferson that he grew

every day more and more solicitous to see this essential work
[of reform] begun. Every day's delay settles the Government
deeper into habits of the people, and strengthens the prop
which their acquiescence give it. 1

A year later Madison reiterated his thinking about the state
executive. In a letter to Caleb Wallace he summarized his thinking
about the nature and importance of the executive power. He noted that

Though it claims the 2d place is not in my estimation entitled
to it by its importance all the great powers which are properly
executive being transferred to the federal Government. I have
made up no final Opinion whether the first Magistrate should
be chosen by the Legislature or the pe0ple at large or whether
the power should be vested in one man assisted by a council or
in a council of which the President shall be only primus inter
ares. There are examples of each in the United States and
proEably advantages & disadvantages attending each. It is
material I think that the number of members should be small &
that their Salaries should be either unalterable by the Legis-
lature or alterable only in such manner as will not affect any
individual in place. 14

 

Turning to the Virginia Constitution, Madison concluded that

Our Executive is the worst part of a bad Constitution. The
Members of it are dependent on the Legislature not only for
their wages but for their reputations and therefore are not
likely to withstand usurpations of that branch; they are
besides too numerous and expensive, their organization vague
& perplexed & to crown the absurdity some of the members may
without any new appointment continue in Office for life con-
trary to one of the Articles of the Declaration of Rights. ‘5

 

113
114

"51bid., p. 170.

Madison, Letters and Other Writings, I, 73.

 

Hunt, ed., Writings of Madison, II, 169.

 

392

On the question of impeachments, Madison was still not sure
how to constitute a court to protect liberty and individual rights.

He wrote that

All the States seem to have seen the necessity of providing
for Impeachments but none of them to have hit on an unexcep-
tionable Tribunal. In some the trial is referred to the
Senate in others to the Executive, in others to the Judiciary
department. (sic) it has been suggested that a tribunal
composed of members from each Department would ge better than
either and I entirely concur in that opinion. 1

Madison remained consistent on the question of executive re-
eligibility. "With regard to the Executive," he wrote,
if the elections be frequent & particularly if made as to any
member of it by the people at large a re-eligibility cannot
I think be objected to, if they be unfrequent, a temporary or
perpetual incapacitation according to the degree of unfre-

quency at least in the case of the first Magistrate may not
be amiss.H7

Madison began to organize his thoughts for a national execu-
tive in the spring of 1787. In a letter to Jefferson, he outlined some
general thoughts on how a new federal Constitution ought to be organized.
One of the major points he thought ought to be included was a separation
of powers. He said the Convention must

organize the federal powers in such a manner as not to blend
together those which ought to be exercised by separate depart-
ments. The limited powers now vested in Congress are frequently
mismanaged from want of such a distribution of them. 8

In a long letter to Washington, Madison described the rela-

tionship between the state and national governments with respect to

 

"5Ibi ., p. 171.
117

Ibid., p. 174.
1181bid., p. 286.

393

the role played by executive power in a monarchy. In addition to the
positive powers granted to the national government, e.g., the regulation
of trade, taxing exports and imports, etc., he thought it ought to have

a negative jn_all cases whatsoever on the Legislative acts of
the States, as heretofore exercised by the Kingly prerogative,
appears to me to be absolutely necessary, and to be the least
possible encroachment on the State jurisdictions.

Moreover, he continued, such a negative would be a "controul on the

internal vicissitudes of State policy, and the aggressions of interested

majorities on the rights of minorities and of individuals.""9

Madison then pointed to one of the great weaknesses of repub-
lican government for which a solution had not yet been found. That was

the need for

some disinterested and dispassionate umpire in disputes between
different passions and interests in the State. The majority,
who alone have the right of decision, have frequently an inte-
rest, real or supposed, in abusing it.

In monarchies, he pointed out, "the Sovereign is more neutral to the
interests and views of different parties; but, unfortunately, he too
often forms interests of his own, repugnant to those of the whole."
For America, he concluded,

Might not the national prerogative here suggested be found
sufficiently disinterested for the decision of local ques-
tions of policy, whilst it would itself be sufficiently
restrained from pursuit of interests adverse to those of
the whole society? There has not been any moment since the
peace at which the representatives of the Union would have
given an assent 50 paper money, or any other measure of a
kinder nature. 2

 

HgMadison, Letters and Other Writing§3 1. 285-

120Ibid., p. 288.

394

Madison then went on to discuss the role of the executive
departments. He concluded that the “National supremacy in the Execu-
tive departments is liable to some difficulty, unless the officers
administering them could be made appointable by the Supreme Government."
This was especially true of the militia which "ought certainly to be
placed, in some form or other, under the authority which is entrusted
with the general protection and defense."]21

After discussing the executive functions that the federal
government ought to play in relation to the states, Madison was still
unsure of how to organize the executive branch. He noted that

A National executive must also be provided. I have scarcely
ventured, as yet, to form my own opinion either of the manner
12121513121322.563365238248;3122125“ a“'“°""es

In preparation for the Convention, Madison undertook to exa-
mine the histories of past confederations. He assembled his "Notes of
Ancient and Modern Confederacies, preparatory to the federal Convention
of 1787." He carefully examined the authority, power, and structure
of each of the major confederacies in history and noted their strengths
and weaknesses. He concluded that it was doubtful whether a confedera-
tion form of government was practical for the American situation.123

In April of 1787, Madison outlined a fairly comprehensive

analysis of the American Confederation's weaknesses. He listed eleven

 

'Z'Ibid.. pp. 288-289.

'221bid., p. 290.

'23Ibid.. pp. 293-315.

395

general shortcomings with extensive commentaries on each. Again he
does not mention anything about a proposed structure of an executive.
Instead he reiterated his concern over the lack of a neutral judge to
moderate the interactions of the various interest groups. The problem
he outlined was to modify sovereignty so as to

render it sufficiently neutral between the different interests
and factions to controul (sic) one part of the society from
invading the rights of another, and, at the same time, suffi-
ciently controul (sic) itself from setting up an interest
adverse to that of the whole society.

He then compared the problem in absolute and limited monarchies with
that of small and extensive republics.

In absolute monarchies the prince is sufficiently neutral
towards his subjects, but frequently sacrifices their happi-
ness to his ambitions or his avarice. In small Re ublics,
the sovereign will is sufficiently controuled (sic from
such a sacrifice of the entire Society, but is not suffi-
ciently neutral towards the parts composing it. As a
limited monarchy tempers the evil of an absolute one, so

an extensive Republic meliorates the administration of a
small Republic,

He concluded.124

Madison completed his thoughts on the Confederation by saying
that the election process must produce the best minds in the nation.

He wrote:

An auxiliary desideratum for the melioration of the Republican
form is such a process of elections as will most certainly
extract from the mass of the society the purest and noblest
characters which it contains; such as will at once feel most
strongly the proper motives to pursue the end of their appoint-
ment, and be ngt capable to devise the proper means of
attaining it.

 

'24Ibid.. pp. 327-328.

'251bid., p. 328.

396

Apparently while Madison had definite ideas as to the
composition of the state executive he was not as yet ready to transfer
those ideas in total to a national executive. Also one might infer
from his discussion of the executive departments that they were a
separate entity from any national executive which might be established
though not totally devoid of any contact.

Other individuals were not as constrained about their ideas
for a national executive. In a published essay on the problems of the
Confederation, Benjamin Rush premised his discussion on the assumption
that the American Revolution was not over. "There is nothing more
common," he wrote,

than to confound the terms of the American revolution with
those of the late American war. The American war is over;
but this is far from being the case with the American revolu-
tion. On the contrary, nothing but the first act of the
great drama is closed. It remains yet to establish and per-
fect our new forms of government, and to prepare the prin-
ciples, morals, and manners of our citizens for these forms
of government after they are established and brought to
perfection.1

Rush thought that the Annapolis Convention, convened to dis-
cuss problems of commerce, was too limited in its scope and he urged a
greater reform of the Confederation than merely giving Congress power
over commerce. Rush's plan for a national government consisted of a
bicameral legislature, one house of which would be called the Council

of States with each state having one representative. The national

executive would be called "President" and be chosen annually by both

 

126Quoted by David F. Hawke, Benjamin Rush: Revolutionary
Gadfly (Indianapolis, 1971), p. 341.

 

397

houses. He would "possess certain powers, in conjunction with a Privy
Council, especially the power of appointing most of the officers of the
United States." Rush avoided discussing the division of powers within
the national government but spent most of his argument on the question
of state sovereignty. In the end, however, the false starts and mis-
steps toward reform of the Confederacy led Rush to observe to his
friend, Richard Price, that

The kingdoms of Europe have traveled into their present state

of boasted tranquility through seas of blood. The republics

of America are traveling i127 order and wise government only

through a sea of blunders.

By 1786 the problems facing the Confederacy were reaching
such a point that many feared an impending crisis. Otto reported to
Vergennes that

The low condition into which congress has fallen since the
peace begins to excite the attention of true patriots. They
see that the federal government cannot remain in its present
inaction without endangering the reputation of the United
States, and even their independence.
He went on to note that the
most urgent recommendations of that body are treated by a
majority of the states with an indifference which causes
lamentations from those who are least susceptible of an
interest in public affairs.
He noted that the "department of finance has never been so destitute
as at this moment, and one of the commissioners has assured me that he
has not the means of meeting current expenses.“ On the brighter side

he reported that the

 

127I

0"

id., p. 343.

398

most important members of congress are doing all in their
'power to add to the act of confederation some articles which
the present situation of affairs appears to render indispens-
able. They propose to give to congress executive powers,

and the right to make exclusively emissions of paper money
and of regulating commerce. They desire, further, the divi-
sion of that body into two chambers, to prevent an eloquent
and ill-intentioned member from carrying away the majority.

More important, he pointed out, was the lack of an executive power and
he concluded that "the confederation will always be unstable until con-
gress shall have carried this important point." Moreover,

the inconsistency of the idea of a sovereign body which has
no right but to deliberate and to recommend, in spite of the
jealousy of a large number of individuals in America, cannot
be concealed. The constant rotation of members of congress
is another disadvantage, whose fatal effects are felt more
and more; it is difficult for men who merely travel from one
end of the continent to the other, and who remain but a few
weeks in New York, to master the course of affairs.

"Be this as it may," he concluded, "it will require much time and nego-
tiations to correct these defects, and it is impossible to forsee the

end of the present embarrassments."128

Thus the problems of the Con-
federacy were fairly apparent to those with experience in such matters,
but the solutions were by no means that clear or readily acceptable.
William Grayson's comments probably represent the thinking

of those who realized that the Confederation was in trouble but were
uncertain how to proceed with a remedy. He wrote to Madison that

There have been some serious thoughts in the minds of some

of the members of congress to recommend to the states the

meeting of a general convention, to consider of an altera-

tion of the confederation, and there is a motion to this
effect now under consideration.

 

128Bancroft, The History_of the Constitution, 1. 511-

399

Moreover, he continued,

It is contended that the present confederation is utterly
inefficient, and that, if it remains much longer in its
present state of imbecility, we shall be one of the most
contemptible nations on the face of the earth. For my own
part,

he said,

I have not yet made up my mind on the subject; I am doubtful
whether it is not better to bear those ills we have than fly
to others that we know not of. I am, however, in no doubt
about the weakness of the federal government, if it was
weaker notwithstanding, it would answer, if the states had
power, as in the United Netherlands. The federal government
is weak, but the individual states are strong. It is no
wonder our government should not work well, being formed on
the DUtTB model, where circumstances are so materially dif-
ferent. 9

George Washington remained consistent in his efforts to revise
and strengthen the federal government. To Henry Knox he wrote, "My
opinion of the energetic wants of the federal government are well known;
publicly and privately I have declared it."130

Besides the lack of energy in the federal government, he was
concerned most with the failure to separate the various functions of
government. However, prior to the Convention, he did not outline in
any detailed form what structure the various branches ought to take.
Like most of the other delegates, Washington brought to the Convention

a familiarity with the problems that needed solution but was uncertain

how best to organize the powers.

 

'29Ibid., pp. 491-492.

130Fitzpatrick, ed., Writings of Washington, XXIX. 152-

400

The experience with the state constitutions proved to be a
continuing source of discussion among those advocating reform of the
Confederation. Benjamin Franklin expressed his optimism when he wrote:

We are, I think, on the right Road of Improvement, for we are
making Experiments. I do not oppose all that seem wrong, for
the Multitude are more effectually set right by Experience,
than kept from going wrong by Reasoning with them. And I
think we are daily more and more enlightened; so that I have
no doubt of our obtaining in a few Years as much public
Felicity, as good Government is capable of affording.131

Others were not so sanguine. Luzerne wrote to Vergennes that

the state

governments are as yet scarcely organized. In wishing to put
them beyond danger from arbitrary power, their legislatures
have gone beyond their object, and have formed constitutions
without energy, without vigor, in which the powers are so
balanced as to be without action, where the counterpoises,

by their heaviness and by contingg} opposition of forces,
keep it in permanent inactivity.

Edward Bancroft contended that "In every one of the states government

133 Madison

is too feeble to command either respect or obedience."
argued that many of the problems with the Virginia Constitution "may
‘turn the edge of some of the arguments which ought to be laid to its

root. . . ."134

In discussions about both the state and national constitutions,

the main emphasis was over the proper distribution of powers and what

 

13lFranklin to Jonathan Shipley, Writings, February 24: 1785
(Bigelow, ed.), IX, 489.

132Bancroft, The History of the Constitution, 1, 325-325-

133Ibid., p. 369.

134Madison, Letters and Other Writings, I, 289.

401

kind of limitations to place on the legislative branch. For example,
John Jay wrote to Francis Hopkinson of Pennsylvania arguing that it was
difficult to tell whether that state's single assembly constitution
"gets on with one leg, or runs on those of the Executive Council." He
preferred the New York Constitution "because in my opinion it is more
capable of being well administered, and less capable of being ill
administered."135

As early as 1782, the state courts began to question the
limits of the legislative power. In Virginia, the court ruled in the
case of Commonwealth v. Caton, et al. that it had the power to pass on
the constitutionality of properly passed legislation. In his opinion,

the judge wrote that

I have heard of an English chancellor who said that it was his
duty to protect the rights of the subject against the encroach-
ments of the crown; and that he would do it at every hazard.
But it was his duty to protect a solitary individual against
the rapacity of the sovereign, surely it is equally mine to
protect one branch of the legislature and, consequently, the
whole community, against the usurpations of the other; and
whenever the proper occasion occurs, I shall feel the duty;

and fearlessly perform it.

Moreover, he continued,

if the whole legislature, an event to be deprecated, should
attempt to overleap the bounds prescribed to them by the
people, I, in administering the public justice of the country,
will meet the untied powers at my seat in this tribunal; and,
point to the constitution, will say to them, here is the limit
of your13gthority; and, hither shall you go, but no further

 

135Johnston, Correspondence of Jay, III, 188.

136Virginia Reports (1782), IV Call 5, reprinted in Confedera-
tion and Constitution 1781-1789, Forrest McDonald, ed. (New York, 1968),
p. 100.

402

Thus, it was evident that some restraint independent of the legislature
was necessary to protect liberty.

The lack of an adequate executive power to counter-balance
the legislature proved to be another major problem. In Pennsylvania
the council-type of executive failed so much that it created a political
crisis causing Congress to leave the state. Madison observed that the

Legislature of P[ennsylvani]a have taken every possible step
to expiate the default of the Executive short of an impeachment
of its members, which the rigor of some members of Cong[res]s
included among the terms of reconciliation with the State.
They have expressly invited Cong[res]s back, assured them of
‘honorable protection, and given up thg State-House with the
appendages for their temporary uses. 7
However, a year later the Pennsylvania Council of Censors was forced to
act against the legislature. Their report concluded, in part, that
In Pennsylvania we have not a sole executive officer of
permanency and weight, sufficient to restrain, and whose
interest it is to keep those communities in awe; they may,
therefore gradually produce an indirect, yet firm arggtocracy
over the state, before we be aware of the mischief.
Thus, faulty organization of the state constitutions, especially Pennsyl-
vania's, was creating a situation which endangered the ideals of the
Revolution.

Madison with his usual perception pinpointed the problem of
limiting the legislative branch within the context of the colonial and
Revolutionary experience. In a letter to Caleb Wallace on revising

the Virginia Constitution, he observed that

 

'37Hunt, ed., Writings of Madison, II, 16.

138Journal of the Council of Censors, II, August 27, 1784 in
the Public Records Division, Harrisburg, Pa., reprinted in Confedera-
tion and Constitution, McDonald, ed., p. 102.

 

403

The Legislative Department ought by all means, as I think to
include a Senate constituted on such principles as will give
wisdom and steadiness to legislation. The want of these
qualities is the grievance complained of in all our republics.
The want of fidelity in the administration of power having
been the grievance felt under most Governments, and by the
American States themselves under the British Government, it
was natural for them to gave too exclusive an attention to
this primary attribute.1

By 1786 the problems with the state constitutions were begin-
ning to affect the stability of the Confederation. Otto reported to

' Vergennes that

The want of energy in the separate government of the states

had till now occasioned few commotions injurious to the repose
and to the security of the citizens, and it was hoped that
congress would insensibly take the stability that was supposed
to be observable in the interior organization of the states;

but the licentiousness of a greedy populace has just shaken

the basis of the government, which had hitherto been regarded

as the most solid and the most perfect of the whole confedera-
tion, and it is seen too late that the American constitutions

so generally admired, are far from being exempt from defects.140

This reference to Shay's Rebellion was indicative of the fear expressed
about domestic tranquility.

Though Shay's Rebellion was not a major factor in causing
many influential people to change their minds about reform of the Con-
federacy, it was viewed as a reason for speeding up the process.141

As William Grayson noted, "The disturbances in Massachusetts bay (sic)

have been considerable, and absolutely threaten the most serious

 

#

'39Hunt, ed., Writings of Madison, II, 167.

140Bancroft, The History of the Constitution, II, 395.

14‘See Robert A. Feer, "Shays Rebellion and the Constitution,"
New England Quarterly (September, 1969), XLII, 388-410.

404

consequences."142 Henry Lee, Jr. wrote to Washington that "We are all

in dire apprehension that a beginning of anarchy with all its calami-

ties has approached, and have no means to stop the dreadful work."143

Washington concluded that

Our affairs seem to be drawing to an awful crisis; it is
necessary, therefore, that the abilities of every man should
be drawn into action in a'publii line, to rescue them, if
possible, from impending ruin. 4

Madison perhaps best expressed the reformers' fears of poli-
tical unrest when he wrote that

The late turbulent scenes in Massachusetts, and infamous
ones in Rhode Island, have done inexpressible injury to the
republican character in that part of the United States, and
a propensity towards monarchy is said to have been produced
by it in some leading minds. The bulk of the people will
probably prefer the lesser evil of a paction of the Union
into three more practicable and energetic governments. The
latter idea, I find, after long confinement to individual
speculations and private circles, is beginning to shew it-
self in the newspapers. But though it is a lesser evil, it
is so great a one that I hope the danger of it will rouse
all the real friends of the Revolution to exert themselves
in favor of such an organization of the Confederacy as will
perpetxgte the Union and redeem the honor of the Republican
name.

The defect in the state constitutions which allowed this
crisis to develop was the lack of energy and an adequate restraint in
the legislature. Otto reported to Vergennes the "reflections of the

most enlightened patriots on this factious event." He wrote that

 

142Bancroft, The History of the Constitution. 11. 405~
'43Ibid., p. 402.

144Ibid., p. 404.

145Madison, Letters and Other Writings, I, 280.

405

They perceive that in forming the different constitutions
'they had too great need of the assistance of the common peo-
ple not to grant to them much more than the repose of the
republic, the security of the citizen, and the energy of the
government can sustain; that an entire and unlimited liberty
is a phantom which has never been able to exist but at the
expense of public tranquility; that the theory of the three
powers equally distributed is sublime, but the practice
offers a thousand difficulties which ought to have been for-
seen; that the executive power is much too weak in America;
that the simplicity of the chief renders them contemptible
in the eyes of the multitude, which judges only by the
senses, and that there is need of strokes of authority, of
arms, and of lictors (sic), to the government respected.
These principles are confirmed by a scene like thag in
Massachusetts which took place in New Hampshire. 4

Otto went on to show how the weakness of the states severely
undermined the Confederation. Episodes like the Massachusetts incident

prove but too much the inability of the United States to
fulfill at this time their engagements to France. Not only
congress has not power to collect sums called for in its

' different requisitions, but the separate states are deprived
of the vigor necessary to constrain their citizens, and they
themselves have not the means of paying in specie the moderate
taxes which are imposed on them. The exhaustion of the federal
treasury is carried to an inconceivable point. It has not
been possible to pay me ieveral infinitely small pittances
due to French officers.1

Moreover, some argued that it was the duty of Congress to
guarantee the stability of the state governments and the events in
Massachusetts were a further glaring admission of the weakness of the
Confederation. Mr. David Humphreys wrote to Washington that

You will have seen the speech by Mr. King before that legis-
lature that congress consider themselves as the guarantees

of each state government, and bound t2 interfere in its
support under certain circumstances. 8

 

146
147

Bancroft, The History of the Constitution, II, 395-396.

 

Ibid., p. 396.

'48Ibid., p. 403.

406

A short time later Washington wrote that

The want of energy in the federal government; the pulling of
one state and parts of states against another; and the commo-
tions among the eastern people, have sunk our national charac-

‘ ter much below par, and have brought our politics and credit
to the brink of a precipice. A step or two more must plunge
us into inextricable ruin. Liberality, justice, and unanimity
in those states which do not appear to have drunk so deep of
‘the cup of folly may yet retrieve our affairs, Rat no time is
to be lost in essaying the reparation of them.1

To David Stuart he wrote:

However delicate the revision of the federal system may
‘appear, it is a work of indispensible necessity. The present
constitution is inadequate; the superstructure is tottering
to its E8undation, and without help will bury us in its
ruins.1

To Jabez Bowen he reported that
the want of power and energy in that body has been severely
felt in every part of the United States. The disturbances
in New England, the declining state of our commerce, and the
general languor which seems to pervade the union, are in a
great measure (if not entirely) owgng to the want of proper
authority in the supreme council.
Thus, the reformers argued that the key to general stability within the
society was a strengthened national government.

Moreover, the federal government needed coercive power over
the states. Madison, commenting on New Jersey's withholding her assess-
ments for the Confederation, noted that

In one point of view . . . it furnishes a salutory lesson.
Is it possible with such an example before our eyes of impo-

tency in the federal system, to remain skeptical with regard
to the necessity of infusing more energy into it? A

 

'49 bid.

150Ibid., p. 404.

H

407

Government cannot long stand which is obligated in the
ordinary course of its administration to court a compliance
with its constitutional acts, from a member not of the most
powerful order, situated within the immediate verge of autho-
rity, and apprised of every circumstance which should remon-
strate against disobedience.

He concluded that the

question whether it be possible and worth while to preserve
the Union of the States must be speedily decided some way or
other. Those who are indifferent to its preservation would
do well to look forward to the consequences of $55 extinction.
The prospect to my eye is a gloomy one indeed.1

The problem facing the reformers was twofold in nature. The

first was to endow the national government with sufficient powers and
secondly to protect the liberty of the citizens. For men like Washing-

ton, the latter could only be protected with the former. As he noted

that

The extreme jealousy that is observed in vesting the congress
with adequate powers has a tendency rather to destroy than
confirm our liberties. The wisest resolutions cannot produce

any good unless they are supporggd with energy; they are only
applauded, but never followed.

Jay noted to John Adams that "For my own part I am convinced that a

national government as strong as may be compatible with liberty, is

"154

necessary to give us national security and respectability. French

Representative Otto wrote to Vergennes that
For a very long time . . . the necessity of imparting to the

federal government more energy and vigor has been felt, but
it has also been felt that the excessive independence granted

 

152Hunt, ed., Writings of Madison. 11. 234'235-

153Bancroft, The History of the Constitution. 11. 403-

154Johnston, ed., Correspondence of Jay, III, 248-249.

408

to the citizens, as regards the states, and to the states as
regards congress, is too dear to individuals for them to be
’ deprived of it without great precautions.

He went on to add:
It is, however, for the interest of the people to guard as
much as possible the absolute freedom granted them in a time
when no other law was known but necessity, and when an English
army, as it were, laid the foundation of the political con-
stitution.

However, he concluded,
In those stormy times it was necessary to agree that all power
ought to emanate only from the people; that everything was
subject to its suprgge will, and that the magistrates were
only its servants.

In short, the conditions had changed but the problem remained the same,

the protection of liberty.

How to proceed and with what safeguards occupied much of the
discussion in the two years prior to the Constitutional Convention.
Washington made it clear that any government must have a solid founda-
' tion to survive. In response to a request that he exert some influence
to help quell the disturbances in Massachusetts, he replied,

‘You talk, my good sir, of employing influence to appease
the present tumults in Massachusetts. I know not where
that influence is to be found, or, if attainable, that it
would be a proper remedy for the disorders. Influence is
no government. 55
Moreover, Washington had called for a thorough restructuring of the

federal government. To Madison he wrote,

 

155Bancroft, The History of the Constitution, 11, 415.

156Ibid., p. 402. nl.

409

My wish is that the convention may adopt no temporizing
expedients, but probe the defects of the constitution to
the bottom and provide a radical cure, whether agreed to

or not. A conduct of this kind will stamp wisdom and dig-
nity on their proceedings, and holg7up a light which sooner
or later Will have its influence.

In short, the experiences of the Confederation period made
it clear to men like Washington that a strengthened national government
was paramount to saving the ideals of the Revolution. Most, however,
were advancing schemes to strengthen the Articles of Confederation, not
reform the government entirely. To others, only a major restructuring
of the government would solve the problems. Yet, few were certain how
to proceed, or what form a new government should take.

When proposing a new government, few individuals were willing
to venture an opinion as to how the executive branch ought to be organ-
ized. Most were willing to concede, however, that an executive was an
essential part of any new government. What models there were in this
period were, for the most part, unsatisfactory. The President of Con-
gress had limited power and was a creature of the legislature. The
executive departments of Congress, on the other hand, reached a level
of organization that was satisfactory to most. In fact, the evolution
into single department heads who were not members of Congress gave that
body a degree of administrative efficiency and continuity hitherto
unknown. Some even considered one department head, John Jay, the ge_

facto chief executive of Congress. This was a valuable lesson in the

administrative efficiency of a unitary executive. Moreover, the model

 

157Sparks, ed., Writings of Washington, IX, 250.

410

of a plural executive, in the Committee of States, had been an
unqualified disaster.

On the state level, many were becoming disenchanted with
legislative dominance. Moreover, with the possible exception of New
York and Massachusetts, most state governors were inadequately pro-
tected from legislative encroachments.

One individual who remained in the national eye was George
Washington. Though he considered himself retired from active public
‘involvement, he was nonetheless drawn into the nation's political
problems. His stature, presence, and diplomatic tact helped avert a
serious problem in the Newburg Affair, and his withdrawal of support
from the Society of Cincinnatus helped lead to its demise. Moreover,
he was in the forefront of those advocating the necessary reforms of
Congress or its reorganization into a new national government. As the
symbol of the Revolution, Washington would come to play an increasingly
’important role in the writing of the Constitution and establishing the
new government.

Finally, the problems on both the national and state levels
'were causing some individuals to view favorably the idea of establish—
ing a monarchy. Though there was no reason to suspect that they could
possibly have done so, that threat did serve to motivate those seeking
reform to act with greater dispatch.

In summary, the Confederation era demonstrated the need to
revise the authority and structure of the national government. Most who

advocated this change saw the need for a national executive power,

411

though few ventured to outline its structure and organization. That

would have to be left to the Constitutional Convention of 1787.

CHAPTER VIII

THE CONSTITUTIONAL CONVENTION:

The Preliminary Considerations

The Constitutional Convention of 1787 was the culmination of
nearly two centuries of American theorizing and experimenting with
various forms of political organization. It was an especially impor-
tant time for American executive theory as this was the first chance
that Americans had to fashion a permanent national executive. This
chapter examines the preliminary considerations and fundamental assump-
tions of the delegates prior to the actual Convention debates over the
organization of the executive branch. Also, it discusses the role of
George Washington in an effort to assess his impact on the Convention
as a prelude to an analysis of his influence on the creation of the
presidency.

On the eve of the Convention, public expectation was running
high that some solution to the nation's problems could be found. David
Ramsay wrote to Jefferson explaining that'

Our eyes now are fixed on the continental convention to be
held in Philadelphia. . . . Unless they make an efficient
federal government, I fear that the end of the matter will

be an American monarchy, or rather three or more confeder-
acies. In either case we have not labored in vain in

412

413

effecting the late revolution, for such arrangements might
be made as would secure our happiness.

George Mason reflected a similar concern. He noted that the

expectations and hopes of all the union centre in this con-
vention. God grant that we may be able to concert effectual
meags of preserving our country from the evils which threaten
us.

Another time he wrote that

The eyes of the United States are turned upon this assembly,
and their expectations raised to a very anxious degree. . . .
The revolt from Great Britain and the formations of our new
governments at that time, were nothing compared to the great
business before us; there was then a certain degree of enthu-
siasm, which inspired and supported the mind; but to view,
through the calm, sedate medium of reason the influence which
the establishment now proposed may have upon the happiness or
misery of millions yet unborn, is an object of such magnitude,
as absorbs, and in a manner suspends the operations of the
human understanding. . . .3

Madison, on the other hand, was uncertain as to what the Con-
vention would bring. "What may be the result of this political experi-
ment cannot be foreseen," he informed Jefferson. Moreover, he continued,

The difficulties which present themselves are, on one side,
almost sufficient to dismay the most sanguine, whilst on the
other side the most timid are compelled to encounter them by
the mortal diseases of the existing Constitution. . . . Suf-
fice it to say, that they are at present marked by symptoms
which are truly alarming, which have tainted the faith of the
most orthodox republicans, and which challenge from the
votaries of liberty every concession in favor of stable
Government not infringing fundamental principles, as the only
security against an opposite extreme of our present situation.

 

1Bancroft, The History_of the Constitution, II, 417.
2Ibid., p. 421.

3Max Farrand, ed., The Records of the Federal Convention of
1787 (New Haven, 1966), III, 32-33.

4Hunt, ed., Writings of Madison, II, 326.

414

However, one person was instrumental in helping to assure a
successful undertaking as George Washington's presence did guarantee
a note of gravity to the proceedings. Washington had not originally
planned to attend the Convention, wishing instead to retire from public
life. Madison wrote to Jefferson saying that "General Washington has
prudently authorized no expectations of his attendance, but has not
either precluded himself absolutely from stepping into the field if the
crisis should demand it."5

Later Washington was persuaded that his attendance would be
beneficial. Writing to Arthur Lee, he said, "I have yielded to what
appeared to be the wishes of many of my friends, and am now here as a
delegate to the Convention." To LaFayette Washington wrote that

the pressure of the public voice was so loud, I could not
resist the call to the convention of the States which is to
determine whether we are to have a Government of respecta-
bility under which Life--liberty, and property will be
secured to us, or are to submit to one which may result of
chance or the moment, springing perhaps by some aspiring
demagogue who will not consult the Enterest of his Country
so much as his own ambitious views.

Madison was concerned that Washington not be involved in any
abortive undertakings which might jeopardize his esteemed reputation.
He wrote to Randolph noting that

the probability of General Washington's coming to Philadelphia
is, in one point of view, flattering. Would it not, however,
be well for him to postpone his actual attendance, until some
judgment can be formed of the result of the meeting? It ought

not to be wished by any of his friends that he should partici-
pate in any abortive undertaking.

 

5Ibid., p. 325.

6Farrand, ed., Records, III, 34.

415

On the other hand, Madison noted that
It may occur, perhaps that the delay would deprive the
Convention of his presiding auspices, and subject him, on
his arrival, to a less conspicuous point of view than he
ought on all occasions to stand in. Against this difficulty
must be weighed the consideration above mentioned, to which
may be added the opportunity which Pennsylvania, by the
appointment of Doctor Franklin, has afforded of putting
sufficient dignity into the Chair.

Once Washington decided to attend the Convention, Madison
expressed the expectations of many of the delegates. In a letter to
Jefferson, he wrote that

The attendence of Genl. Washington is a proof of the light
in which he regards it. The whole Community is big with
expectation. And there can be no doubt but that the result
will in some way or other have a powerful effect on our
destiny.

Soon after the first delegates assembled, Madison noted that
Among the few is Genl. Washington who arrived on sunday (sic)
evening amidst the acclamations of the people, as well as
more sober marks of the affection an veneration which con-
tinues to be felt for his character.

Thus it was clearly anticipated that Washington would play a key role

in the success or failure of the Convention.

The question of Washington's influence on the shaping of the
presidency during the Convention is an issue that has intrigued scholars
since the writing of the Constitution. It was clear that Washington
was regarded as the "first citizen" of the United States after the
Revolution. Luzerne wrote to Vergennes at the conclusion of the Revolu-

tion that

 

7Hunt, ed., Writings of Madison, II, 341.
8

 

Farrand, ed., Records, III, 20.

416

General Washington conducts himself with his usual wisdom.

It conciliates to him more and more the respect and affection
of the people. After a war of eight years, during which he
has scarcely ever left his army, and has never taken any
repose, he has received the news of peace with the greatest
joy. It made him shed tears, and he said it was the happiest
hour of his life. It will be in vain for him to wish to con-
ceal himself and to live as a private man. He will always

be the first citizen of the United States; and, although
military men are not agreed to his military talents, all the
world is agreed . . . [on] his republican virtues, and agreed
that there is no character more emigent among those who have
taken part in his grand revolution.

As noted in the last chapter, Washington's voluminous corres-
pondence kept his concern for the direction of the country in the fore-
front of many of the minds of leading political figures of that period.
Therefore, when it came time to select the Virginia delegates to the
Convention, the problem was how best to use his reputation. In Decem-
ber, 1786 Madison wrote to him discussing the political dilemma Washing-
ton found himself in with respect to his recent refusal to stand for
re-election as president of the Order of Cincinnati on the grounds of
health and his desire to retire from public life. In actuality, he
did not want to become involved in a dispute over proposed changes
within that organization. For him to attend the Convention in Phila-
delphia might, in light of his refusal to participate with the Order
of Cincinnati, place him in a difficult position politically. Madison
counseled that he was

still inclined to think that the posture of our affairs, if
it should continue, would prevent every criticism on the

situation which the contemporary meetings would place you
in; and that at least a door could be kept open for your

 

9Bancroft, The History of the Constitution, I, 301.

 

417

acceptance hereafter, in case the gathering clouds became
so dark & menacing as to supersede every consideration but
that of our national existence & safety.
Moreover, he continued,
A suspence (sic) of your ultimate determination would be
nowise (sic) inconvenient in a public view, as the Executive
[governors] are authorized to fill vacancies; and can fill
them at any time; and, in any event, three out g5 seven
deputies are authorized to represent the State.
Thus Washington was regarded as a personality whose opinion and pre-
sence carried significant influence prior to the Convention.

A month before the delegates assembled at Carpenters' Hall
in Philadelphia, discussions began about electing Washington as the
presiding officer if he decided to attend. David Humphreys wrote to
him outlining the importance of his presence during the deliberations.
"Should you think proper to attend," he noted, "you will indisputably
be elected president. This would give the measures a degree of national
consequence in Europe and with posterity." Humphreys then refused to
assess what influence Washington might exercise over the actual pro-
ceedings, by saying

But how far (under some supposable case) your personal influ-
ence, unattended with other authority, may compose the jarring
interests of a great number of discordant individuals and
control events, I will not take upon me to determine.1
Thus prior to the Convention, Washington's presence was viewed as giving
the proceedings a legitimacy and weight which they might not otherwise

have had if someone of lesser stature were elected presiding officer.

10Hunt, ed., Writings of Madison, 11, 300-301.

nBancroft, The History of the Constitution, II, 417.

418

Humphreys' contention about Washington's influence in Europe
was supported by the French representative in a letter to Vergennes.
He wrote that “General Washington, Doctor Franklin, and a great number
of other distinguished personages, though less known in Europe, have
been called thither." He concluded by noting that "No doubt the inte-
rest of the confederation will be more thoroughly discussed than ever
before."12

Others agreed that Washington possessed great influence but
disagreed as to whether it was sufficient to make the people change
their minds. For example, William Grayson suggested to James Monroe
that the Convention would ultimately fail because the people were not
willing to support substantial changes in the government. He then
observed that the "weight of General Washington, as you justly observe,
is very great in America, but I hardly think it sufficient to induce
the people to pay money or part with power."13

Finally, Edward Carrington summed up the factors surrounding
the Convention which placed Washington in such a conspicuous position.
In a letter to Jefferson, he concluded that the sentiment and the autho-
rity for a thorough reform of the Confederation opened the door to
Washington's prestige. "The latitude thus given," he contended,

together with the generality of the commission from the states,
have doubtless operated to bring General Washington forward.

In every public act he hazzards (sic) without a possibility
of gaining reputation; he already possesses everything to be

'3Ibid., p. 424.

'ZIbid.. pp. 417-418.

419

derived from the love or confidence of a free people, yet it
seems that it remained for himself to add a lustre to his
character by this patriotic adventure of all for his country's
good alone. 4

William Pierce's description of the Convention delegates noted that

Washington was
well known as the Commander in chief of the late American
Army. Having conducted these states to independence and
peace, he now appears to assist in framing a Government to
make the People happy. Like Gustavus Vasa, he may be said
to be the deliverer of his Country;--1ike Peter the great
he appears as the politician and the States-man; and like
Cincinnatus he returned to his farm perfectly contented with
being only a plain citizen, after enjoying the highest honor
of the Confederacy.--and now only seeks for the approbation
of his Country-men by being virtuous and useful. The General
was conducted to the Chair aS'Presidgnt of the Convention by
the unanimous voice of its Members.

It was clear that most of Washington's contemporaries con-
sidered him to be a significant factor in legitimizing what the Conven-
tion accomplished in addition to bringing the necessary gravity to its
‘proceedings. However, what role he played during the proceedings with
respect to the formation of the presidency remains in doubt. As dis-
cussed later in the next chapter, he did exert a subtle influence over
the tone and temper of the debates. His significance for the presidency
came primarily after the Convention in helping shape the character of
the office as it began its operations.

Before turning to the debates during the Convention, several
(other points need to be established. As noted in previous chapters,
t>oth the state and national experience indicated that a well constructed

'4Ibid., p. 426.

15Farrand, ed., Records, III, 94.

420

government needed to have its power divided and balanced to keep any
one segment from dominating the others and hence tyrannizing the rights
of the citizens. In line with the Enlightenment view of the world,
the framers of the Constitution sought to construct a government in
‘which the major departments possessed sufficient power and authority
to carry out their functions and yet protect themselves from encroach-
ments by the other branches. The analogy implicit in the debates and
discussions was that of a machine or great clock in which each weight
would have a counter-weight, each thrust a counter-thrust, and so on.
This mechanistic conception of government was expressed in

the belief that there were certain political principles which, when
followed, would provide the desired results of a republican government
with adequate power to carry out its functions while protecting liberty.
Elizur Goodrich in his book,Principles of Civil Union, argued that God
established certain laws "in order to promote . . . true happiness,
in . . . transactions and intercourse." "These laws," he continued,

may be considered as principles, in respect of their fixedness

and operation; and as maxims, since by the knowledge of them,

we discover those rules of conduct, which direct mankind to

the highest perfection, and supreme happiness of their nature.

They are as fixed and12nchangeable as the laws which operate

in the natural world.

'Thus Goodwin was applying the Newtonian model of fixed physical laws

vvhich govern the operation of the universe to the idea that there were

16E1izur Goodrich, Principles of Civil Union (Hartford, l787),

421

fixed political principles which govern the operation of societies and

governments.17

American writers argued that these principles of government
were dependent upon the conditions within each political society. Since
the American society was far different from those of Europe, it meant
that the principles upon which they operated did not necessarily apply
to the American condition. Noah Webster, after comparing the two poli-
tical environments, concluded in 1785 that Americans

must therefore search for new principles in modeling our

political system. The American constitutions are founded
on principles different from those of all nations, and we
must fgnd new bonds of union to perpetuate the confedera-
tion.

Many political treatises were written to identify and explain
the fundamental political principles upon which a government could be
built. ‘For example, Joseph Galloway, after reflecting on the American
Revolution, concluded that there were three basic principles necessary
to the organization of a civil society.

1. That there must be some supreme will, or legislative
authority, competent to the regulation and final decision
of every matter susceptible of human direction, which re-
lates to the safety and happiness of the society. 2. That
every member and part of the society, whether corporate,
official, or individual, must be subordinate and subject

to this supreme will and direction. 3. That there must
also be a supreme executive power, to superintend apg en-
force the administration and execution of the laws.

17See James A. Robinson, "Newtonianism and the Constitution,"
ELid-West Journal of Politics, I (1957), pp. 252—266; and Martin Landau,
"(3n The'Use of Metaphor In Political Analysis," Social Research, XXVIII
('1961), pp. 331-353.

18Noah Webster, Sketches of American Policy (Hartford, 1785),

 

P- 30.

'gdoseph Galloway, Political Reflections on the Late Colonial
Governments (London, 1783), p. 3.

422

Noah Webster outlined his principles from a different approach.

The greatest "fundamental principle" upon which "a free government can
be founded and by which alone the freedom of a nation can be rendered
permanent, is an equal distribution of property," he wrote. In other
societies three principles have operated to "preserve union and subor-
dination in society." They were "the power of a standing army, the
fear of an external force, and the influence of religion." However,
in America these principles were not applicable because the conditions
were different. He went on to note that American

constitutions of civil government have been framed in the most

enlightened period of the world. All other systems of civil

policy have been begun in the rude times of ignorance and

savage ferocity; fabricated at the voice of necessity, without

science and without experience.
However, he concluded, "America, just beginning to exist in an advanced
period of human improvement, has the science and the experience of all
nations to direct her in forming plans of government." Moreover, he
continued, "By this advantage she is enabled to supply the defects and
avoid the errors incident to the policy of uncivilized nations, and
then lay the broad basis for the perfection of human society."20

These were only two of numerous examples of contemporary dis-

cussions which attempted to identify the basic principles of political
union. In the latter example, Webster typified the belief among many
of his contemporaries that governments could be rationally constructed
lay a "scientific" use of historical experience. Coupled with the New-
t:onian view of the universe, as a balanced and ordered mechanical entity,

20Webster, Sketches of American Policy, pp. 18, 12, 23.

423

it was not difficult to see how political theorists of that age
concluded that the problem before them was to apply the proper politi—
cal principles, based on past experience, to the conditions of American
society to create the great machine of government. The task before the
Constitutional Convention was to select and mesh the political princi-
ples which proved workable on the state and national levels into one
document which would provide the framework for an adequate and workable
government within the confines of a durable union.

In spite of the differences of opinion over various political
principles, one common assumption was evident in most discussions about
the formation of any government. That assumption was that the major
function of government was to check the tendencies of human nature
toward corruption and selfish interests. Writing to Jay in 1786,
Washington probably summarized the sentiment of many when he said,

We have errors to correct. We have, probably, had too good
an opinion of human nature in forming our confederation.
Experience has taught us, that men Will not adopt, and carry

into execution, measures the best calculated foE their own
good, without intervention of a coercive power. 1

 

John Jay concluded that "Our Governments want energy, and there is rea-
son to fear that too much has been expected from the virtue and good

sense of the people."22

This, then, was one side of the human nature
problem; that is, the new government had to have sufficient coercive
power to chart and enforce policies beneficial to the well being of
the entire union.

21Johnston, ed., Correspondence of Jay, III, 208.

 

22Ibid., p. 231.

424

The other side of the problem was how best to frustrate the
natural tendencies of people to abuse and corrupt society for their
own selfish interests. Elizur Goodwin noted that if the "law of reason
and love directed and influenced all the views and actions of mankind,
there would be no necessity for the coercion of civil government."
However, he noted,

In the present depraved state of human nature, the various
dispositions and the differing pursuits, the jarring interest,
and the unruly passions, the jealousies and misapprehensions
of the neighbors would spoil their harmony and good agree-
ment; and, when disputes arose, there would be no common
judge, to whom they might refer their difference; but every
one would be an avenger of his own wrong: This would soon
end in a state of hatred and war; and destroy all human peace
and happiness.

Therefore, he concluded, the function of government is "to prevent

this mischief, and to secure the enjoyment of rational liberty."23

Another writer claimed that the "general object" of govern-
ment was "the security and promotion of the temporal interest and happi-
ness of the people,“ which was "occasioned by the evil dispositions of
mankind; (the only source of human misery)." Moreover, he continued,
if humans were

suitably disposed, to observe the rules of justice, the
principles of humanity and dictates of conscience, govern-
ment would be unnecessary; but as this is a state of per-
fection, this world never has, since the apostacy and
probably never will enjoy, human authority became necessary,

to restrain the turbulent passions of mankind, dispense 24
justice, and support order and regulation in society. . . .

23Goodrich, Principles of Civil Union, pp. 10-11.

 

24Edmund S. Morgan, ed., "The Political Establishments of the
Uriited States, 1784," William and Mary Quarterly, 3d ser., XXIII (April,
1966), p. 291.

 

425

Even Jefferson blamed the abortive attempt to create a
national executive by the Committee of States under the Confederation
on the problem of human nature. He recounted the events surrounding
the demise of the committee and noted that its failure was "imputed to
the temper of two or three individuals; but the wise ascribe it to the
nature of man."25

These, then, were a few of the current assumptions which
helped set the framework in which the writing of the Constitution must
be viewed. First, human nature required that governments be fashioned
to protect the society from the selfish and corrupting influences of
those not only in power, but from those in the society at large.
Secondly, governments could be constructed by rationally applying past
experience with certain fundamental principles, such as the separation
of the departments of government, to form a government consistent with
particular conditions of American society. Finally, that the govern—
ment created should resemble a well-ordered and balanced machine in
which the interaction of the various elements would provide the energy
to operate it as well as providing the counter-balance to prevent its
excesses.

As discussed in the previous chapters, Americans had been
debating the proper formulation of government for the past decade. One
anonymous pamphlet published in l784 neatly summarized the pervading
assumptions of those delegates attending the Convention three years

later. "With regard to a form of government," the author wrote,

 

25Jefferson to M. Destutt Tracy, Writings, Ford, ed., V, 567.

426

I will only observe, that a democracy appears the most
agreeable to the present view of the Citizens of America,

and is probably a form, the best calculated to promote the
equal good of the people; yet as it is the most difficult

to frame, easily disordered, and not readily rectified;

so, on these accounts, there are none [that] requires a
foundation so judiciously laid,--It is a form which novel-
ties and refinements injure; its materials should be calcu-
lated to answer their particular purposes, not for ornament,
but real use,--The more simple its construction (so it be
competent to its purposes) the more secure.--The dignity
which is thought to be so essential in government, in this
form, does not consist in the splendors of a court, nor
terrors of an army, but in the excellency of its constitu-
tion, wisdom of its political measures, justice of its laws,
and abilities and fidelity of its executive authority. When-
ever a democratical government is established, and exercised
on the principles of justice and sound policy, it is undoubt-
edly the best form that can be instituted, because it makes
the laws, and not men supreme, and the equal good of the
people its object.--Is by being thus founded, in no danger
of falling into contempt, and always sure of the best support
a government can have, viz. the approbation, and mutual aid
of the people.25

Formation of the new government was fraught with many serious
problems as the delegates to the Convention soon found. A major problem
was the possible over-reaction to the excesses experienced by the states
in the past decade. George Mason noted that

Men disappointed in expectations too hastily and sanguinely
formed, tired and disgusted with the unexpected evils they
have experienced, and anxious to remove them as far a? pos-
sible, are very apt to run into the opposite extreme. 7
Later he observed,
When I first came here [the Convention], judging from casual
conversations with gentlemen from the different States, I
was very apprehensive that soured and disgusted with the

unexpected evils we had experienced from the democratic
principles of our governments, we should be apt to run into

 

26Morgan, ed., "Political Establishments," p. 308.

27Farrand, Records, III, 24.

427

the opposite extreme and in endeavoring to steer too far
from Scylla, we might be drawn into the vortex of Charybdis,
of which I still think there is some danger, though I have
the pleasure to find in the convention, many men of fine
republican principles.
He went on to add that
America has certainly, upon this occasion, drawn forth her
first characters; there are upon this Convention many gentle-
men of the most respectable abilities, and so far as I can
discover, of the purest intentions. The eyes of the United
States are turned upon this assembly, and their expectations
raised to a very anxious degree.
Thus, one of the major concerns among some of the delegates was to keep
the Convention from adopting any extreme measures, while maintaining a
proper balance between liberty and authority.

What ideas the delegates brought to the Convention for revi-
sion of the government varied in the specifics though there was common
agreement about the general organization they wished to establish.
Most, for example, saw the necessity of a division of powers into the
three great branches, legislative, executive, and judicial. Other than
the authors of the Virginia and New Jersey Plans, which were introduced
as proposed models, many of the delegates had read widely in political
theory in preparation for the Convention. One work that was especially
useful was John Adams' Defense of the Constitutions of the United

29

States. As Benjamin Rush wrote to Richard Price, “Mr. Adams's book

has diffused such excellent principles among us, that there is little

 

28Ibid., p. 32.

29Adams, ed., Works of John Adams, IV.

428

doubt of our adopting a vigorous and compounded federal

legislature."30

Since Adams was apparently instrumental in focusing many of
the delegates' attention on certain fundamental constitutional princi-
ples, it is necessary to examine briefly his major conclusions. Adams
summarized the American experience in constitution-making during the
Revolutionary era as having clearly established certain principles of
governmental organization. He concluded that the

three branches of power have an unalterable foundation in
nature; that they exist in every society natural and arti-
ficial; and that if all of them are not acknowledged in any
constitution of government, it will be found to be imperfect,
unstable, and soon enslaved; that the legislative and execu-
tive authorities are naturally distinct; and that

liberty and the laws depend entirely on a separation of

them in the frame of government; that the legislative power
is naturally and necessarily sovereign and supreme over the
executive; and, therefore, that the latter must be made an
essential branch of the former, even with a negative, or it
will not be able to defend itself, but will be soon invaded,
undermined, attacked, or in some way or other totally ruined
and annihilated by the former.

This, he concluded, I'is applicable to every state in America, in its
individual capacity."31
On the national level, the experience was different, Adams
observed. There the people and their delegates to the Congress were
of the opinion
that a single assembly was every way adequate to the manage-
ment of all their federal concerns; and with good reason,

because congress is not a legislative assembly, nor a repre-
sentative assembly, but only a diplomatic assembly. A single

 

30Farrand, ed., Records, III, 33.

31Adams, ed., Works of Adams, IV, 579.

 

429

council has been found to answer the purposes of confederacies
very well. But in all such cases the deputies are responsible
to the states; their authority is clearly ascertained; and the
states, in their separate capacities, are the checks. These
are able to form an effectual balance, and at all times to
control their delegates. The security against the dangers of
this kind of government will depend upon the accuracy and deci-
sion with which the governments of the separate states have
their own orders arranged and balanced.

However, when it came to establishing a national government
to replace the "diplomatic assembly," Adams strongly advocated adopting
three branches, “and a balance by an equal negative, in all the separate
governments."32

Adams continued by discussing the general nature of the execu-
tive branch. "The executive power," he observed, "is properly the
government; the laws are a dead letter until an administration begins
to carry them into execution." An executive chosen by the assembly
might make him

liable to daily motions, debates, and votes of censure.

Instead of thinking of his duty to the people at large, he

will confine his attention chiefly to the assembly, and

believe, that if he can satisfy them, or a majority of them,

he has done his duty.
Moreover, an assembly-appointed executive deprives the citizens of
their "only defense which they or their representatives can have against
the avarice and ambition of the rich and distinguished citizens. . . ."
Furthermore, people tend to "believe that the evils they feel are

brought upon them by the executive power." In short, he concluded,

How easy is it, then, for a few artful men among the aris-
toctical body to make a president, thus appointed and

 

32Ibid., pp. 579-580.

430

supported, unpopular, though he conducts himself gith all the
integrity and ability which his office requires?3

In organizing the executive, Adams called for a unitary as
opposed to a plural executive.

I had almost ventured to propose a third assembly for the
executive power; but the unity, the secrecy, the dispatch

of one man has no equal; and the executive power should be
watched by all men; the attention of the whole nation should
be fixed upon one point, and the blame and censure, as well
as the impeachments and vengeance for abuses of this pgfier,
should be directed solely to the ministers of one man.

In closing his work, Adams reiterated the need for a balanced
national constitution. He noted that

in the present state of society and manner in America, with
a people living chiefly by agriculture, in small numbers,
sprinkled over large tracts of land, they are not subject
to those panics and transports, those contagions of madness
and folly, which are seen in countries where large numbers
live in small places, in daily fear of perishing for want.

He observed that people can "live and increase" under any kind of gov-
ernment "or without government at all." However, he argued

it is of great importance to being well; misarrangements now
made, will have great, extensive, and distant consequences;
and we are now employed, how little soever we may think of
it, in making establishments which will affect the happiness
of a hundred millions of inhabitants at a time, in a period
not very distant.

Finally, he said,

All nations, under all governments, must have parties; the
great secret is to control them. There are but two ways,
either by a monarchy and standing army, or by a balance in
the constitution. Where the people have a voice, and there

 

33Ibid., pp. 581-585.

34Ibid., p. 585.

431

is no balance, there will be everlasting fluctuations,
revolutions, and horrors, until a standing army, with a
general at its head, commands the peace, or the necessity
of an eggilibrium is made to appear to all, and is adopted
by all.

These, then, were some of the thoughts which the delegates
pondered as they began the task of writing the Constitution. Like
Adams, most agreed that any new government must be divided and balanced.
However, there was much disagreement over how best to divide and
organize specific powers and duties. This was especially true of the

executive branch.

 

35Ibid., pp. 587-588.

CHAPTER IX

CREATION OF THE PRESIDENCY:

The Convention Debates

The Constitutional Convention debates on the creation of the
presidency provide a comprehensive summary of American thinking on
executive theory in the eighteenth century. This chapter examines the
step-by-step process by which the delegates selected and arranged the
elements of the executive branch of the Constitution.

Once the Convention delegates decided to scrap the Articles
of Confederation and write a whole new constitution, they faced the
difficult problem of how to organize the executive branch. The Con-
vention agreed early in its proceedings that an executive was necessary
to any well-constructed government. However, past models of the Eng-
lish monarchy, colonial governor, and early state governors each
possessed problems which made it unwise to adopt them on a national
scale without major modifications.

The initial proposal presented for consideration by the Con-
vention provided for a limited executive. The Virginia Plan outlined
an executive elected by the national legislature for an undetermined
number of years, ineligible thereafter, with a fixed and unalterable
salary, with the "general authority to execute the National laws, [and]

. to enjoy the Executive rights vested in Congress by the Confedera-
tion." Additionally, the executive "and a convenient number of the

National Judiciary" would be a council of revision whose veto over

432

433

“every act of the National Legislature" or "a particular Legislature"
would be final unless repassed by an undetermined number of the legis-
lature. All references to the executive were phrased with the pronoun
"it" to avoid the issue of whether the executive ought to be singular
or plural in structure.1
In presenting his plan to the delegates, Edmund Randolph

outlined the defects in the past constitutional experience he was try-
ing to remedy. "Our chief danger," he said,

arises from the democratic parts of our constitution. It is

a maxim which I hold incontrovertible, that the powers of

government exercised by the people swallows up the other

branches. None of the constitutions have provided sufficient

checks against the democracy. This feeble Senate of Virginia

is a phantom. Maryland has a more powerful senate, but the

late distractions in that State, have discovered that it is

not powerful enough. The check established in the constitu-

tion of New York and Massachusetts is yet a stronger barrier

against democracy, but they all seem insufficient.
Here, then, was one of the principles, as discussed by Adams and others,
that government ought to be balanced so that no part might interfere
with the operation of the others to the detriment of society.2

On May 30, the Convention agreed to establish a national

government consisting of "a supreme Legislative, Judiciary, and Execu-
tive." During the discussion, Governeur Morris defined the terms
federal and national, as opposed to a supreme government. The former,

he said, were mere compacts "resting on the good faith of the parties,"

 

1Max Farrand, ed., Records of the Federal Convention of 1787,
I, 20.

2Ibid., PP. 26-27.

434

while the latter had "a complete and compulsive operation."3 Thus, the
Convention agreed to give the new government supreme and compulsive
power over the states.

Once that was settled, the Convention turned to the problem
of how best to constitute the new government. During the debate over
the composition of the national legislature, Elbridge Gerry raised the
issue of securing the administrative part of government. He cited the
problems in Massachusetts whereby "the popular clamour . . . [demanded]
the reduction of salaries . . . [and attacked the power of] the Gov-
[erno]r though [it was] secured by the spirit of the Constitution it-
self." He said that "One principal evil arises from the want of due
provision for those employed in the administration of Government." In
the past he said that he had been too republican and while he was still
republican he "had been taught by experience the danger of the levelling
spirit." Madison responded that "we had been too democratic but was
afraid we s[houl]d incautiously run into the opposite extreme.“ He
proposed that the Convention protect the rights of "every class of
people."4 Here again the principles of using the executive to check
and balance the legislative branch were outlined. This, as shown
later, becomes one of the predominant functions of the executive in
the eyes of the Convention.

In the early days of the Convention, discussions about the

executive revolved around three interrelated issues. Overall, most

 

435

agreed that the executive must possess adequate power and authority

to act vigorously, defend itself from encroachments, while at the same
time not become despotic. Therefore, the Convention was faced with
how best to achieve this end by defining and organizing its powers and
duties; whether to entrust it to a single or plural executive; and
finally, by what mode of election the executive could be best kept
responsible.

The Virginia Plan aimed at creation of an executive that
would solve the problems inherent in the Articles of Confederation
while at the same time not interfering with the supremacy of the legis-
lature. Under this scheme the legislature would make policy and the
executive would enforce it. However, as soon as the Convention tried
to clarify and define the important elements of the executive, signifi-
cant divisions appeared among the delegates.

On June 1 the first major discussion of the organization of
the national executive occurred. Charles Pinckney wanted a vigorous
executive, but one which did not possess the powers of war and peace,
which, he said "would render the Executive a Monarchy, of the worst
kind, towit an elective one." Then James Wilson moved that the execu-
tive consist of one person, which Pinckney seconded. James Madison
observed that "A considerable pause" ensued and Benjamin Franklin then
requested that the delegates "deliver their sentiments on it before
the question was put." The discussion that followed indicated a wide

. . . . 5
range of opinions concerning the nature of the executive.

 

5Ibid.. pp. 64-65.

436

Both John Rutledge and James Wilson preferred a single
executive "as giving the most energy dispatch and responsibility to
the office." Wilson went on to disavow using the prerogatives of the
British monarch as a model since many of them were legislative in
nature. He wanted only those powers which were clearly executive in
nature to be included. These he conceived to be execution of the laws
and appointing officers not appointed by the legislature.6

Roger Sherman thought the executive should be a creature of
the legislature. The executive, he said, is

nothing more than an institution for carrying the will of

the Legislature into effect, that the person or persons

ought to be appointed by and accountable to the Legislature

only, which was the depository of the supreme will of the

Society.
Since the legislature was the best judge of what ought to be done by
the executive, he advocated that the number be left open so that "the
legislature should be at liberty to appoint one or more as experience
might dictate."7

Edmund Randolph also strenuously opposed a single executive
as being the "foetus of monarchy." While the English Constitution
was an excellent one, he argued, he saw no reason to copy it because
the "fixt (sic) genius of the people of America required a different

form of Government." He thought the executive ought to be independent

and saw no reason why energy, vigor, and dispatch necessary to a

 

437

strong executive could not be found in three individuals as well as
one.8

Wilson answered Randolph by disclaiming any comparison with
the British Constitution and agreed that American circumstances were
far different. However, he said, the single executive was far from
"being the foetus of Monarchy," rather it "would be the best safeguard
against tyranny." Moreover, the "people of Amer[ica] did not oppose
the British King but the parliament—-the opposition was not ag[ainst]
an Unity but a corrupt multitude--." Then Wilson again moved to adopt
a single executive and the Convention deferred action once more.9

Madison then recommended that the Convention ought to "fix
the extent of the Executive authority" before deciding on a single or
plural executive. He contended that since there were certain powers
which were executive in nature and "a definition of their extent would
assist the judgment in determining how far they might be safely
entrusted to a single officer." The powers listed were the same cited
by Wilson with the addition of the execution of "such other powers
(not Legislative nor Judiciary in their nature) as may from time to

time be delegated by the national Legislature."10 This was approved

by the Convention.

 

438

The next issue was the method of appointment and duration
of the executive's term. Wilson said that in theory he was for people
electing the executive. He noted that the
Experience, particularly in N. York & Massts. shewed that an
election of the first magistrate by the people at large, was
both a convenient & successful mode. The objects of choice
in such cases must be persons whose merits have general
notoriety.
Later in the debate, he added that election by the people of both the
legislature and executive would "make them as independent as possible

11 He also wanted a short

of each other, as well as of the States."
term of three years with re-eligibility. Others wanted a longer term
and no re-eligibility. That, George Mason argued, was the
best expedient both for preventing the effect of a false
complaisance on the side of the Legislature towards unfit
characters; and a temptation on the side of the Executive
to intrigue with the Legislature for a re-appointment.
At this stage, the Convention voted to grant the executive a term of
seven years by a vote of six to four, with one divided. As the vote
indicated, this issue would continue to be the subject of much dis-
cussion. The next day the mode of election was temporarily resolved
by an eight to two majority in favor of election by the legislature.12
Franklin then proposed that the executive not be offered any
salary. He based his argument on the two passions that "have a power-
ful influence of the affairs of men." These were "ambition and avarice;

the love of power, and the love of money." When "united in view of the

 

11Ibid., pp. 68-69.

12Ibid.

439

same object, they have in many minds the most violent effects." If
one places before these men "a post of ngnggr that shall at the same
time be a place of prgfjt, and they will move heaven and earth to
obtain it." That was the problem with the British Constitution, he
concluded. He cited the example of Washington serving as commander-in-
chief of the army for expense money only. He had no doubts that there
would be a sufficient number of "wise and good men to undertake and
execute well and faithfully the Office in question." His motion was
seconded by Alexander Hamilton and then tabled. No debate ensued and
Madison reported that "It was treated with great respect, but rather
for the author of it, than from any apparent conviction of its expedi-
ency or practicability."13
The next point of contention was over the removal of the
executive. John Dickinson moved to make him removable by the national
legislature on petition of the majority of the state legislatures.
This touched off a debate on the principles of government. Those who
opposed it argued that it made the executive dependent on the legisla-
ture. Moreover, it was unwise to mix the state and national government
in such a manner. Finally, it gave to the small states too much power
by placing them on an equal footing with the larger ones which might
allow for the executive to bribe a minority to prevent the majority

from removing him.14

 

440

Dickinson responded with a lengthy discussion on the nature
of government. He agreed that the three branches ought to be as sepa-
rate as possible, but the executive as envisioned by some delegates
was not consistent with a republic. He was convinced that a firm
executive could only be found in limited monarchy because of the weight
the executive has from his prerogatives and other attachments. However,
he noted as before, a monarchy was not consistent with the American
experience. Though a limited monarchy might be the best form of govern-
ment, Americans should not despair but seek solutions to remedy the
"diseases" of the ancient republics in an attempt to find an ideal
government like a limited monarchy but suited to American circumstances.
In the end, Dickinson's motion to have the president removable by the
legislature was defeated.15

The Convention then voted to make the executive ineligible
after seven years and "to be removable on impeachment & conviction of
mal-practice or neglect of duty." Pinckney followed with a motion to
make the executive "one person." As expected, this raised the fears
of those opposed to a unitary executive.16

Randolph again took the lead in opposing the amendment. He
felt compelled to oppose any semblance of monarchy and reiterated his
plea for a tripartite executive. A unitary executive would never have

the public confidence and would more than likely come from the center

of the community which would leave the extremes unrepresented. A

 

151bid.. pp. 86-87.

151bid., p. 87.

441

three-headed executive would represent each region equally. Pierce
Butler countered that a single executive would be responsible for all
the sections. If there were several executives they would constantly
be struggling for local advantages.17
On June 4 the discussion continued with Wilson answering

Randolph. He claimed that there was none of the "alledged antipathy
of the people” toward unity in the executive since “All know that a
single magistrate is not a King." He then cited the fact that the
thirteen state constitutions

tho' agreeing in scarce any other instance, agree in placing

a single magistrate at the head of the Government. The idea

of three heads has taken place in none. The degree of power

is indeed different; but there are no co-ordinate heads.
Moreover, it would add to the "tranquility not less than the vigor of
the Govt."18

Sherman raised the question of a council if there was to be

a single executive. Using Wilson's example of the state constitutions
he reminded the Convention that all had councils of advice, "without
which the first magistrate could not act." He thought a council neces-
sary before the people would accept a single executive, citing the fact
that even the king of Great Britain had a council, "and though he
appoints it himself, its advice has its weight with him, and attracts

the Confidence of the people."19

 

17Ibid., pp. 88-89
181 id., p. 96
19

442

The motion for a single executive carried by a vote of seven
to three. Washington voted yes in one of the few incidences where the
record indicated he did vote. Then the Convention examined the idea
of a council, but tabled it to settle the matter of what kind of nega-
tive the executive ought to be allowed over the legislature.20

Delegates differed over the type of veto to include. Both
Wilson and Hamilton argued for an absolute veto contending that without
"such a self-defense the Legislature can at any moment sink it into
non-existence." Hamilton contended that there was nothing to fear from
such a veto "being too much exercised . . . [since] the King of G[reat]
B[ritton] had not exerted his negative since the Revolution." Gerry
thought that there was "no necessity for so great a controul over the
legislature as the best men in the Community would be comprised in the
two branches of it." Franklin was not so sure, arguing that in Pennsyl-
vania the executive had used the threat of the veto to extort money
from the legislature for personal gain. If there was a council to tem-
per the executive use of it he might be more favorably disposed to
support it. He thought the reason the English monarch did not use the
veto was because of the "bribes and emoluments now given to the members
of Parliament rendered it unnecessary, everything being done according
to the will of the Ministers." Sherman opposed it on the grounds that

"No one man could be found so far above all the rest in wisdom." The

 

201bid., pp. 97-98.

443

executive ought to be listened to in revising legislation, "but not
permit him to overrule the decided and cool opinions of the Legislature."21
Madison proposed a compromise in which a certain number of
each house could overrule the objections of the executive. That, he
said, would "answer the same purpose as an absolute negative." Rarely,
he concluded, could an executive like the one proposed have the firmness
to "resist the Legislature, unless backed by a certain part of the body
itself." To give an absolute veto to the executive would certainly be
"obnoxious" to the "temper of the country."22
However, fears of executive tyranny were not so easily dis-
pelled in the minds of a number of delegates. Butler said he would not
have supported a single executive had he known how extensive a negative
over the legislature some members wanted to grant him. He noted "that
in all countries the Executive power is in a constant course of increase
Gentlemen seem to think that we had nothing to apprehend from
an abuse of the Executive power." Mason continued the attack, arguing
that the Convention was going beyond even the British Constitution by
setting up an elective monarchy. Franklin concluded the debate over
an absolute veto by making a veiled reference to the first executive

and problems of his successors. He said, probably referring to Wash-

ington, "The first man, put at the helm will be a good one. No body

 

21Ibid., pp. 98-99.

22Ibid., pp. 99-100.

444

knows what sort may come afterwards. The Executive will always be
increasing here, as elsewhere, till it ends in a monarchy.“23
The resolution for an absolute negative failed unanimously.
The proposal to grant the executive power to suspend laws for a limited
time also failed, the objection being that it "might do all the mischief
dreaded from the negative of useful laws; without answering the salutory
purpose of checking unjust or unwise one[s]." The Convention finally
settled on the right of two-thirds of the legislature to override.24
During the debate on the veto, Mason raised a number of issues
concerning the executive, which he presented to the Convention for their
lOng-term analysis. The most significant one was the question of an
executive council. Something must be done to take care of executive
incapacity, he argued. He also assumed that any such body would serve
as a council of revision. If that were the case, he strongly recommended
against using the executive department heads as the council noting that
"we can hardly find worse materials out of which to create a council of
revision, or more improper or unsafe hands in which to place the power
of a negative upon our laws." He recommended that it be composed of
members of the judiciary branch along with the executive. That idea
found the support of a number of delegates.25

Later in his analysis of the executive power, Mason assessed

the Convention's sentiment toward a strong executive. He noted that

 

23Ibid., pp. 100-103.

24Ibid., pp. 103-104.

Ibid., p. 111.

445

We have not yet been able to define the powers of the Executive,
and however moderately some gentlemen may talk or think upon
the subject, I believe there is a general tendency to a strong
Executive, and I am inclined to think a strong Executive neces-
sary. If strong and extensive powers are vested in the Execu-
tive, and that executive consists only of one person, the
government will of course degenerate (for I will call it
degeneracy) into a monarchy--a government so contrary to the
geniuszgf the people that they will reject even the appearance
of it.
Thus, early in the Convention there appears to have been general agree-
ment among many of the delegates that a strong executive was essential
to any new government.

On June 6, Wilson again raised the issue of a council composed
of the executive and judicial branches. Madison seconded the motion
and went on to explain his thinking on the matter. He said that the
nature of republican governments made it difficult for a single indi-
vidual to attain that "settled pre-eminence in the eyes of the rest,
that weight of property, that personal interest ag[ain]st betraying
the National interest, which appertain to an hereditary magistrate.“
Moreover, "In a Republic personal merit alone could be the ground of
political exaltation, but it would rarely happen that this merit would
be so pre-eminent as to produce universal acquiescence." This would
leave the executive open to being "envied & assailed by disappointed
competitors: His firmness therefore w[oul]d need support." By com-
bining the executive and judicial branches, it would protect both from
legislative encroachment and give the necessary strength and support

to the executive, Madison concluded.27

 

27

26Ibid., p. 113.
Ibid., p. 138.

446

Madison then went on to anticipate some of the objections

that might be raised to this combination. He said it was not an "im-
proper mixture of these distinct powers in the present case" because,
as in the case of the British Constitution, where the monarch had an
absolute veto, and the supreme tribunal of Justice (the House of Lords)
was one branch of the legislature, their function was the same. There-
fore, he concluded,

whether the object of the revisionary power was to restrain

the Legislature from encroaching on the other co-ordinate

Departments, or on the rights of the people at large; or

from passing laws unwise in their principle, or incorrect

l? iii'fi.§i£‘ia.§“i."ill‘°3.233132932233“infilii‘é'é'tiflieliig1"

Gerry, King, Pinckney, and Dickinson all opposed the idea of

combining the executive and judiciary in a council of revision. Gerry
said that a unitary executive would be more impartial than he could be
when "covered by the sanction & seduced by the sophistry of the Judges."
King noted that if a single executive gives responsibility, "the policy
of it is as applicable to the revisionary as to the Executive power."
Pinckney at first wanted the executive heads as the council of revision,
but since the executive could call on them at any time, he concluded
that the revisionary power ought to be solely in the hands of the execu-
tive. Mason argued for

iving all possible weight to the revisionary institution

[because] . . . the Executive power ought to be well secured

ag[ain]st Legislative usurpations on it.

Dickinson noted that

 

28Ibid., p. 139.

447

Secrecy, vigor & dispatch are not the principal properties

req[uire]d in the Executive. Important as these are, that

of responsibility is more so, which can only be preserved;

by leaving it singly to discharge its functions.
He, therefore, thought that such a combination was an "improper mixture
of powers." To that, Wilson remarked "that the responsibility required
belonged to his Executive duties. The revisionary duty was an extrane-
ous one, calculated for collateral purposes.“ The final vote, however,
rested with the opponents who won by an eight-to-three margin.29

Prior to the introduction of the New Jersey Plan on June 15,

the Convention had reached several conclusions about the national execu-
tive. He was to be "a single person" with the power "to carry into
execution the national laws; to appoint offices not otherwise provided
for." He was "to be chosen by the national Legislature for a term of
seven years . . . to be ineligible a second time; and; to be removable
on impeachment and conviction of mal-practice, or neglect of duty."
Finally, the Convention resolved that "the national Executive shall
have a right to negative any legislative act; which shall not be after-
wards passed unless by two thirds parts of each branch of the national
Legislature." Thus, in the first two weeks of debate, the Convention
had decided on making the executive independent of the other branches,
limited to its own sphere of authority which allowed it to be vested
in a single individual. Only Sherman, of all the delegates, consis—

tently argued for a dependent executive.30

 

291bid.. pp. 139-140.

30Ibid., pp. 225-226.

g

448

The one major concern expressed by nearly everyone who had
participated in the discussion about the executive was how to prevent
past executive excesses from occurring again. The Convention there-
fore concluded that the executive must have authority limited to purely
"executive matters" to maintain the proper division of powers and pre-
vent encroachments on the other branches. On the reverse side was the
Convention's concern that the executive be made strong enough to with-
stand the pressures exerted by the legislative branches. Thus, to this
point it was clear that the Convention had reached a consensus about
the executive authority. It was to be limited in nature, yet endowed
with sufficient power to protect itself from encroachment. This
general assumption about executive authority was not seriously ques-
tioned for the rest of the debate, though there was extended debate
over the specific points to be enumerated, and the general character
of the office.

The New Jersey Plan was offered by William Patterson to
ensure the rights of the smaller states. With respect to the executive,
he called for a plural executive holding power for an undetermined
number of years with a fixed salary. Persons in the executive branch
would be ineligible for a second term and were barred from "holding
any other office or appointment during their time of service" and for
an undetermined number of years thereafter. Moreover, they were remov-
able by the legislature "on application by a majority of the Executives
of the several States." Their duties were to execute the laws and
appoint officers not otherwise provided for. However, unlike the Vir-

ginia Plan, they were

449

to direct all military operations; provided that none of the
persons composing the federal Executive shall on any occasion
take command of any troops, so as personally to Sgnduct any
enterprise as General, or in any other capacity.

In the ensuing debate over the New Jersey Plan, Wilson ad-
vanced a single executive. After listing the specific terms of each
kind regarding the executive, he concluded that

In order to controul the Legislative authority, you must

divide it. In order to controul the Executive you must

unite it. One man will be more responsible than three.

Three will contend among themselves till one becomes the

master of his colleagues.
He cited the "Kings of Sparta, & Consuls of Rome" to prove "the factious
consequences of dividing the Executive Magistracy."32

Before any action was taken on the New Jersey Plan, Hamilton
argued against provisions for the executive in both plans. In a lengthy
speech he reviewed the major issues before the Convention and concluded
that neither the Virginia nor New Jersey Plans adequately resolved them.
"As to the Executive," he said, "it seemed to be admitted that no good
one could be established on Republican principles." Then he asked,

"Was not this giving up the merits of the question; for can there be
a good Gov[ernmen]t without a good Executive?" The English model was
the only good one on this subject, he concluded.

The Hereditary interest of the King was so interwoven with

that of the Nation, and his personal emoluments so great,

that he was placed above the danger of being corrupted from

abroad--and at the same time was both sufficiently indepen-

dent and sufficiently controuled, to answer the purpose of
the institution at home.

 

450

Moreover, he noted, "one of the weak sides of Republics was their
being liable to foreign influence & corruption. Men of little charac-
ter, acquiring great power become easily the tools of intermedling
neibours (sic)." He cited a number of historical examples, and con-
cluded that

we ought to go as far in order to attain stability and

permanency, as republican principles will admit. Let one

branch of the Legislature hold their places for life or

at least during good behaviour. Let the Executive also

be for life.
He questioned whether a seven-year term was sufficient to attract indi-
viduals to "induce the sacrifices of private affairs which an acceptance
of public trust would require, so . . . as to ensure the services of
the best Citizens."33

Hamilton's comments, like many of his fellow delegates, were

directed at securing the maximum degree of responsibility in the execu-
tive. Once he presented his proposals to the Convention, he developed
the rationale behind them. Human nature, being what it was, would
induce the executive to want to "prolong his power," he said, and in
case of a war, "he would avail himself of the emergence (sic), to evade
or refuse a degradation from his place." However, "An executive for
life has not this motive for forgetting his fidelity, and will there-
fore be a safer depository of power."34

Hamilton then answered what he thought would be the objec-

tions to his proposal. On the method of selection, he wanted an

 

33Ibid., p. 289.

34Ibid., p. 290.

451

elective executive. He noted that the phrase “elected Monarchy" conjured
up visions of horror among some of his colleagues, but, he said, the term
"'Monarch' is an indefinite term. It marks not either the degree or
duration of power." He then compared his model executive with the one
outlined by the Committee of the Whole. His would be for life, while
the Committee's would be for seven years, since "the circumstances of
being elective was also applicable to both."35
Then Hamilton attacked the fundamental objection to an elec-
tive monarch. He cited the observations by "judicious writers“ that
elective monarchies would be the best government "if they could be
guarded ag[ain]st the tumults excited by the ambition and intrigues of
competitors." He doubted whether "tumults were an inseparable evil."
Moreover, he thought opinions about an elective monarchy "had been taken
rather from particular cases than from general principles." After cit-
ing a number of examples he asked, "Might (not) such a mode of election
be devised among ourselves as will defend the community ag[ain]st these
effects in any dangerous degree?"36
In concluding his remarks, Hamilton presented the Convention
with a plan of government not "as a proposition to the Committee," but
"only to give a more correct view of his ideas, and to suggest amendment

to the plans under discussion." His proposal for the executive power

included the following: that

 

35I

lo-

0.

'l .

36I

0'

id.. PP. 290-291.

452

the supreme Executive authority of the United States be vested

in a Governour to be elected to serve during good behaviour--

the election to be made by Electors chosen by the people in the

Election District aforaid.
The authority and function of the executive included a

negative on all laws about to be passed, and the execution of

all laws passed, to have the direction of war when authorized

or begun; to have with the advice and approbation of the Sen-

ate the power of making all treaties; to have the sole appoint-

ment of the heads of chief officers of the departments of

Finance, War and Foreign Affairs; to have the nomination of

all other officers (Ambassadors to foreign Nations included)

subject to the approbation of rejection of the Senate; to have

the power of pardon without the approbation of the Senate.
Moreover, the Governor, Senators, and all officers of government would
be "liable to impeachment for mal-—and corrupt conduct" by a court
consisting of chief judges of the "Superior Court of Law of each State,
provided such Judges shall hold his place during good behavior, and
have a permanent salary."37

While Hamilton's proposals for an executive for life were

not purposefully considered by the Convention, the principles he
addressed himself to were taken seriously. His notes used in deliver-
ing the speech indicate that he admired the British Constitution for
its efficiency in organizing the administrative arm of government. He
noted that the effect of the English government was to assure "A vigor-
ous execution of the laws--[which resulted in] a vigorous defence (sic)
of the people." Furthermore,

it is said a republican government does not admit a vigorous

execution. It is therefore bad; for the goodness of a gov-
ernment consists in a vigorous execution. The principle

 

37Ibid., pp. 292-293.

453

chiefly intended to be established is this--that there must

be a permanent will.38
Though sympathetic to his objectives, his colleagues were in agreement
that any semblance of an executive monarchy would not be accepted by
the people as it was against the American temperment.

For the next week the Convention debated the merits of the

Virginia and New Jersey Plans. By June 26 the Convention was ready to
vote on a number of points that had been under discussion. The day
before the voting, Pinckney gave a detailed analysis of the problems
before them and the conditions within which the Convention must operate
to reach a consensus on a government that would be accepted by the
people. He observed that the conditions of American society made it
unique among nations because there

are fewer distinctions of fortune & security; and a very

moderate share of property entitles them to the possession

of all the honors and privileges the public can bestow;

hence arises a greater equality, than is to be found among

the people of any other country, and an equality which is

more likely to continue
because of the immense tracts of unpopulated land. Moreover,

every member of the Society almost, will enjoy an equal

power of arriving at the supreme offices & consequently

of directing the strength & sentiments of the whole Com-

munity. . . . The whole community will enjoy in the

fullest sense that kind of political liberty which con-

sists in the power the members of the State reserve to

themselves, of arriving at the public offices, or at 1eas§9

of having votes in the nomination of those who fill them.

Pinckney then went on to argue that Americans could not use

the British Constitution as a model. While he thought it "to be the

 

38Ibid., p. 310.

39Ibid., p. 598.

454

best constitution in existence; but at the same time I am confident
it is one that will not or can not be introduced into this Country,
for many centuries." Specifically, he noted, the

balance between the Crown & the people can not (sic) be made
a part of our Constitution.--that we neither have or can have
the members to compose it, nor the rights, privileges & pro-
perties of so distinct a class of Citizens to guard.--that
the materials for forming this balance or check do not exist,
nor is there a necessity for having so permanent a part of
our Legislative, until the Executive power is so constituted
as to have something fixed & dangerous in its principle--%y
this I mean a sole, hereditary, though limited Executive.

He then recounted a detailed analysis of the conditions in England and
how they created the present British system.

Then Pinckney turned his attention to the problem facing the
Convention. He noted that they

must as has been observed suit our Government to the people

it is to direct. These are I believe as active, intelligent

& susceptible of good Gov[ernmen]t as any people in the world.
The Confusion which has produced the present relaxed State is
not owing to them. It is owing to the weakness & (defects)

of a Gov[ernmen]t incapable of combining the various interests
it is intended to unite, and destitute of energy.--All that

we have to do then is to distribute the powers of Gov[ernmen]t
in such a manner, and for such limited periods, as while it
gives a proper degree of permanency to the Magistrate, will
reserve to the people, the right of election the will not or
ought not frequently to part with.--I am of [the opinion that
this may be easily done; and that with some amendments the 4]
propositions before the Committee will fully answer this end.

For the following few days the Convention labored over con-
struction of the legislative branch. Luther Martin expressed the con-

cern that if the election of that branch were not properly constructed

 

’35.: ”on. .
h

455

it would prove to be a threat to the states. He raised the spector of
a combination of ten states which passed a law, only to have the execu-
tive veto it. The law is "totally lost, because those states cannot
form two thirds of the legislature." He concluded that he was "willing
to give up private interest for the public good--but I must be satisfied
first, that it is the public interest-~and who can decide this point?
A majority only of the union."42
The whole question of the role to be played by the states in
any new government kept the question of the executive a live issue.
George Read was concerned that the large states would “stick together,
and carry every thing before them." Moreover, he said, the "Executive
also will be chosen under the influence of this partiality, and will
betray it in his administration." Therefore, the states must be abol-
ished, he concluded.43
Madison undertook the defense of a mixed system based on both

the states and national government. He attacked the notion of a con-
federacy as a basis of the new government. He feared that the states
might individually have too much power, especially a standing army to
protect themselves from their stronger neighbors.

The example w[oul]d be followed by others, and w[oul] soon

become universal. In time of actual war, great discretionary

powers are constantly given to the Executive Magistrate.

Constant apprehension of War, has the same tendency to render

the head too large for the body. A standing military force,
with an over-grown Executive will not long be safe companions

 

42Ibid., pp. 440-441.

43Ibid., p. 441.

456
to liberty. The means of defence (sic) ag[ain]st foreign 44
danger, have been always the instruments of tyranny at home.

At a later date Wilson picked up the argument. He said that
much has been said of an imaginary combination of three States.
Sometimes a danger of monarchy, sometimes of aristocracy has
been charged on it. No explanation, however, of the danger
has been vouchsafed. It would be easy to prove both from
reason & history that rivalships would be more probable than
coalitions; and that there are no coinciding interests that
could produce the latter.

He went on to ask if the
Executive Magistrate be taken from one of the large States
would not the other two be thereby thrown into the scale
with the other States? Whence then the danger of monarchy?
Are the people of the three large States more aristocratic
than tagse of the small ones? It is all a mere illusion of
names.

On July 17 discussion of the executive moved back into the
forefront of the Convention's debates. The issue was the method of
selection of the executive. The arguments for and against election by
the legislature were reiterated. Then they debated the question of
election by the people at large. This was objected to on a number of
accounts. One was the fact that the people could not know all the
candidates, nor, in the words of Mason, could they choose an executive
any better than referring "a trial of colours to a blind man. The
extent of the Country renders it impossible," he said, "that the people
can have the requisite capacity to judge of the respective pretensions
of the Candidates." However, what may be the key to understanding the

problems was raised by Hugh Williamson. First he said

 

44Ibid., p. 465.

45Ibid., p. 483.

457

There are at present distinguished characters, who are known
perhaps to almost every man. This will not always be the case.
The people will be sure to vote for some man in their own
State, and the largest State will be sure to succeed.

Then he said that this would not be Virginia as "Her slaves will have

46 Slavery became a major stumbling block not only in

no suffrage."
the election of the legislature, but the executive as well. If the
executive was to be elected by the people at large, then there would
have to be some national statement on suffrage requirements. The three-
fifths compromise solved the problem for the legislature, but it was
not adequate to overcome the problem of popular election of the execu-
tive.
Debate over the process of selecting the executive opened

the issues of executive tenure and the separation of powers again.
After there had been some discussion of the previous debates on the
subject, Madison sought to assure the Convention that he had no wish to
introduce a monarchy, but rather he wanted to prevent one from being
established. He said that

Experience has proved a tendency in our governments to throw

all power into the Legislative vortex. The Executives of the

States are in general little more than Cyphers; the legis-

latures omnipotent. If no effectual check be devised for

restraining the instability & encroachments of the latter,

a revolution of some kind or other would be inevitable.
Therefore, he concluded, the "preservation of Republican Gov[ernmen]t

. required evidently at the same time that in devising it, the

genuine principles of that form should be kept in view." Morris con-

curred with Madison's opinion that the only way to prevent a monarchy

 

46Ibid., II, 31-32.

458

was to create a republican substitute. If a republican government
could be established that would "make the people happy" it would l'pre-
vent a desire of change," he concluded.47
Dr. James McClurg was more cautious in expressing his opinion.

He said he was

not so much afraid of the shadow of monarchy as to be unwilling

to approach it; nor so wedded to Republican Gov[ernmen]t as

not to be sensible of the tyrannies that had been & may be

exercised under that form.
However, since the Convention had voted to deny the executive re-

1

eligibility, he thought the only way the executive could maintain his
independence was to be appointed “during good behavior."48
The next day the Convention tackled the problem of whether
the executive or the Senate should make appointments to the judicial
branch. Again the discussion revolved around the question of whether
the executive or the Senate would be less likely to corrupt the appoint—
ment process. They finally rejected exclusive executive appointment
by a vote of six to two. -Further consideration of this issue was post-
poned until later.49
On July 19 the whole question of the structure of the execu-
tive was re-opened. In the extensive debate that followed, many
fundamental assumptions about the executive emerged. The first point

was on the question of re-eligibility. Governeur Morris opened the

discussion by saying it was

 

47Ibid., pp. 35-36.

48Ibid., p. 36.

491 id., pp. 43-44.

459

necessary to take into one view all that relates to the
establishment of the Executive; on the due formation of
which must depend the efficacy & utility of the Union among
the present and future States.

He noted that it had been a maxim in political science that "Republican
Government is not adapted to a large extent of Country, because the
energy of the Executive Magistracy can not reach the extreme parts of
it." Since the United States was an extensive country, he thought the
Convention faced two alternatives. "We must either then renounce the
blessings of the Union, or provide an Executive with sufficient vigor
to pervade every part of it."50
Morris then proceeded to examine the function of the execu-

tive. He said the

One great object of the Executive is to controul the Legis-

lature. The Legislature will continually seek to aggrandize

& perpetuate themselves; and will seize those critical moments

produced by war, invasion or convulsion for that purpose. It

is necessary then that the Executive Magistrate should be the

guardian of the people, even of the lower classes, ag[ain]st

Legislative tyranny, against the Great & wealthy who in the

course of things will necessarily compose--the Legislative

body.
Therefore, he concluded, "The Executive . . . ought to be so consti-
tuted as to be the great protector of the Mass of the people." One of
the great duties of the executive in protecting the people, Morris
contended, was the appointment of individuals to protect and administer
the country. The people must therefore ultimately be the judge of how

well he did this.51

 

50Ibid., p. 52.

51Ibi .. pp. 52-53.

460

Morris further contended that to make the executive ineligible
for a second term destroys his ability to protect the people. It
reduced the incentive "to merit public esteem by taking away the hope
of being rewarded with a reappointment." Moreover, "It may give a
dangerous turn to one of the strongest passions in the human breast
. . . [for] the love of fame is the great spring to noble & illustrious
actions." If denied by civil means, "he may be compelled to seek it by
the sword." Finally, I'It will tempt him to make the most of the Short
space of time allotted him, to accumulate wealth and provide for his
friends," and "It will produce violations of the very constitution it
is meant to secure." Then in a very insightful observation he said,
"In moments of pressing danger the tried abilities and established
character of a favorite Magistrate will prevail over respect for forms

of the Constitution."52

In the last analysis, even the impeachment of
the executive destroys his protective functions by making him dependent
upon the legislature.

To remedy the defects in the executive structure, Morris
offered several specific suggestions. First, the executive should be
appointed by the people since he was their guardian. Second, “Let him
be of short duration, that he may with propriety be re-eligible."
Finally, with respect to candidates being known by the people,

If they be known to the Legislature, they must have such a
notoriety and eminence of Character, that they cannot pos-

sibly be unknown to the people at large. It cannot be
possible that a man shall have sufficiently distinguished

 

52Ibi ., p. 53.

461
himself to merit this high trust without paving his character
proclaimed by fame throughout the Empire.

By making the executive unimpeachable, he could not be re-
garded as a formidable danger to liberty, Morris contended. Since
there must be "certain great officers of State, a minister of finance,
of war, of foreign affairs &c who operate in subordination to the
executive, and who will be amenable by impeachment to the public Jus-
tice," the executive will be adequately checked since "without these
ministers the Executive can do nothing of consequence." The only way
Morris thought the executive could be made independent was to either
make him executive for life "or make him eligible by the people." He
recommended a two-year term with re-eligibility as the surest way to
make him responsible. Additionally, the "extent of the Country would
secure his re-election ag[ain]st the factions & discontents of parti-
cular States."54

Thus, the two key questions which emerged in the debate over
structuring the executive were how to make him independent and respon-
sible. During the July 19 discussion, Wilson noted that there seemed
"to be the unanimous sense that the Executive should not be appointed
by the Legislature, unless he be rendered in-eligible a 2d time."
Moreover, he "perceived with pleasure that the idea was gaining ground,
of an election mediately or immediately by the people." Just prior to

that, King and Patterson had suggested that "an appointment by electors

 

462

chosen by the people for the purpose [of electing the executive],

would be liable to [the] fewest objections." This was gradually becom-

ing the consensus of the Convention.55
Madison then undertook a review of the principles relevant

to maintaining the independency of the executive. He said “If it be a

fundamental principle of free Gov[ernmen]t that the Legislative, Execus

tive & Judiciary powers should be separately exercised; it is equally

 

so that they be independently_exercised." Therefore, he said, "It is
essential then that the appointment of the Executive should either be
drawn from some source, or held by some tenure, that will give him a

free agency with regard to the Legislature." He recommended that the

people,at large were . . . [the best solution because] it
would be as likely as any [method] that could be devised

to produce an Executive Magistrate of distinguished Charac-
ter. The people generally could only know & vote for some
Citizen whose merits had rendered him an object of general
attention & esteem.

Then he raised the problem of establishing national voting standards.
He observed that

there was one difficulty, however of a serious nature attending
an immediate choice by the people. The right of suffrage was
much more diffusive in the Northern than the Southern States;
and the latter could have no influence in the election on the
score of the Negroes.

Therefore, he concluded the "substitution of electors obviated this
difficulty and seemed on the whole to be liable to the fewest objec-

tions."56

 

56Ibid.. pp. 56-57.

55Ibid., p. 56.

463

The next question was how best to choose the electors. Gerry
proposed that they be appointed by the state executives. Ellsworth
moved they be appointed by the state legislatures on the ratio of one
elector for each 100,000 inhabitants. On separate votes, the Convention
supported by a six-to-three margin the idea of election by electors.
They also approved their election by the state legislatures by an
eight-to-two margin. A decision on the number of electors for each
state was left to a later date.57
Then in a flurry of voting the Convention settled several
other matters. They voted down by a margin of eight to two an attempt
to make the executive ineligible for a second time. This was followed
by defeating a proposal to make his term seven years by a vote of five
to three, with two divided. Morris wanted a short term "in order to
avoid impeach[men]ts which w[oul]d be otherwise necessary." Ellsworth
countered by observing that if elections were too frequent,
the Executive will not be firm eno[ugh]. There must be duties
which will make him unpopular for the moment. There will be
ggts_as well as ins, His administration therefore will be
attacked and misrepresented.

Williamson supported this idea noting that
The experience will be considerable & ought not to be neces-
sarily repeated. If Elections are too frequent, the best men
will not undertake the service and those of an inferior charac-
ter will be liable to be corrupted.

He therefore recommended that the term be six years. This passed by a

majority of nine to one.58

 

571bid., p. 57.

58Ibid., pp. 58-59.

464

The next day saw another vigorous debate over how best to
make the executive responsible. The issue was over whether the execu-
tive should be liable to impeachment and under what conditions. Madi-
son summed up the issue by noting that the "limitation of the period of
his service, was not a sufficient security . . . for defending the
Community ag[ain]st the incapacity, negligence or perfidy of the chief
Magistrate." Franklin argued for impeachment as the "best way . . .
to provide . . . for the regular punishment of the Executive when his
misconduct should deserve it, and for his honorable acquittal when he
should be unjustly accused."59

Those who opposed the inclusion of impeachment contended that
it would undermine the independence of the executive. Pinckney argued
that the legislature would hold it as "a rod over the Executive and by
that means effectually destroy his independence." Moreover, he said,
"His revisionary power in particular would be rendered altogether insig-
nificant." King expressed his fear that “extreme caution in favor of
liberty might enervate the Government." He argued that the executive
ought not to be impeached unless he held his office during good beha-
vior. In either case, he was adamant against the legislature having
the power to impeach because this "would be destructive of his indepen-
dence and of the principles of the Constitution" and advocated and
relied "on the vigor of the Executive as a great security for the pub-

lic 1iberties."60

 

601b1d . pp. 66-67.

59Ibid., p. 65.

465

Randolph charted a middle course between the extremes. He
saw the propriety of impeachments because "Guilt wherever found ought
to be punished." The executive, he noted, "will have great opportun-
ities of abusing his power; particularly '01 time of war when the mili-
tary force, and in some respects the public money will be in his hands."
He saw the need for "proceeding with a cautious hand, and excluding
with a cautious hand, and of excluding as much as possible the influ-
ence of the Legislature from the business." He supported Hamilton's
plan for an impeachment court made up of judges from the state courts.61

Gerry injected his apprehension of the Convention's adopting
the English constitutional maxim that "the chief Magistrate could do
(no) wrong." He said a good magistrate will not fear impeachment and
a bad one "ought to be kept in fear of them."62

After listening to the debate, Morris changed his opinion
on the question of impeachment. He saw the necessity of impeachment
for an executive who held power for any length of time. He observed
that "Our Executive was not like a Magistrate having a life interest,
much less like one having an hereditary interest in his office." He
was fearful that he might be bribed by foreign governments citing the
example of Charles II, who was bribed by Louis XIV, even though most
thought the English monarchy was "well secured ag[ain]st bribery." He
thought the executive ought to be impeached for "treachery; Corrupting

his electors, and incapacity." For the latter, he should only be

 

466

punished as an officer, not as a man, by removal from office. He
concluded by saying that this "Magistrate is not the King but the
prime-Minister. The people are the King.” Then the Convention voted
to make the executive subject to impeachment by a vote of eight to
two.63

On July 21 the question of the executive's revisionary power
was raised again. Wilson had moved to amend that section to include
the judiciary. Even though the Convention had rejected this proposal
earlier, Wilson, after reflection, "thought it incumbent on him to make
another effort." His reasoning was that the judges ought to have a
chance to disapprove a law in a manner other than a case before them,
because a law may be "unjust, may be unwise, may be dangerous, may be
destructive; and yet not be so unconstitutional as to justify the Judges

in refusing to give them effect."64

Therefore, combining the executive
and judiciary in a council of revision would not only give the judges
the chance to counteract bad legislation, but would strengthen the
defenses of both the executive and judicial branches against legislative
encroachments.

Wilson's motion reopened the whole question of checks on the
legislature and the separation of powers doctrine. Nathaniel Gorham
contended that this was an improper use of the judges. Gerry thought

it would establish an improper coalition between the executive and

judiciary. Moreover, it was making the judges the guardian of the

 

63Ib1d., p. 69.

64Ibid., p. 73.

467

"Rights of the people.‘I He argued that this function belonged to the
”Representatives of the people as guardians of their Rights and inte-
rests." Caleb Strong agreed, noting that the "power of making ought
to be kept distinct from that of expounding, the laws."65
On the supporting side, Madison considered the purpose of
the motion to be of "great importance to the meditated Constitution."
He said it would give additional weight to the judicial branch to pro-
tect itself from the legislature, it would inspire the executive with
"additional confidence & firmness in exerting the revisionary power,"
and it would give the legislature valuable assistance in “preserving
a consistency, conciseness, perspicuity & technical propriety in the
laws, qualities peculiarly necessary; & yet shamefully wanting in our
republican Codes.” The only solid argument he could see against such
an arrangement was the "supposition that it tended to give too much
strength either to the Executive or Judiciary." However, he said,
there was "much more to be apprehended that . . . the Legislature would
still be an overmatch for them." He noted that "Experience in all the
States had evinced a powerful tendency in the Legislature to absorb all
power into its vortex." This, he said, "was the real source of danger
to the American Constitutions." Therefore, he concluded, there must
be given "every defensive authority to the other departments that was

consistent with republican principles."66

 

468

Governeur Morris took a more cautious approach. He argued
that there must be some check on the legislature, but "the question is
in what hands it should be lodged." He cited the extensive powers
lodged in the British monarch for defending himself against encroach-
ment, but noted that the "interest of our Executive is so inconsiderable
& so transitory, and his means of defending it so feeble, that there is
the justest ground to fear his want of firmness in resisting incroach-
ments." However, he thought the addition of the judiciary was not
sufficient weight to remedy the problem. He also thought that the
greatest danger to public liberty was from the legislature. The issue
was whether "bad laws will be pushed or not." If the legislature is
the best guardian of the public liberties, then no check was necessary.
If it was not, then "a strong check will be necessary."67

Luther Martin considered the union of the executive and judi-
cial departments to be "a dangerous innovation; as well as one which
could not produce the particular advantage expected from it." Moreover,
he said, "A knowledge of mankind, and of Legislative affairs cannot be
presumed to belong in a higher degree to the Judges than to the Legis—
lature." If the judges joined the executive in vetoing laws they would
have a double negative, he said. Finally it was necessary "that the
Supreme Judiciary should have the confidence of the people. This will

soon be lost, if they are employed in the task of remonstrating

 

ag[ain]st popular measures of the Legislature."68
67Ibid., p 76
68

469

Madison responded that he could find no violation of the
principle of the separation of powers. In fact he considered it to be
"an auxiliary precaution in favor of the maxim." If a "Constitutional
discrimination of the departments on paper were a sufficient security
to each ag[ain]st encroachments of the others, all further provisions
would indeed be superfluous," he said. However, experience had "taught
us a distrust of that security; and that it is necessary to introduce
such a balance of powers and interests, as will guarantee the provisions
on paper." Therefore, he argued, instead of "contenting ourselves with
laying down the Theory in the Constitution that each department ought
to be separate & distinct," they ought to add a "defensive power to
each which should maintain the Theory in practice." He then cited the
British example of admitting judges to legislative and executive coun-
cils. He concluded that the objection to uniting the executive and
judiciary for negating laws had either "no foundation or was not carried
far enough." If this proposal

was inconsistent with the Theory of a free Constitution, it
was equally so to admit the Executive to any participation
in the making of laWS° and the revisionary plan ought to be
discarded altogether.89

Mason noted that the revisionary power was not solely intended
to be an executive check on the legislature. He fully expected the
national legislature to do what the state legislatures had a history

of doing; that is, frequently passing "unjust and pernicious laws."

Thus, the restraining power was essential to prevent demagogues "from

 

470

attempting to get them passed." Moreover, he agreed with Martin that
combination of the executive and judicial departments would undermine
the judges' basic function of "considering laws in their true princi-
ples, and in all their consequences" and would give them a double
negative. Wilson answered that "the separation of the departments did
not require that they should have separate objects but that they should
act separately tho' on the same object." He cited the fact that the
two branches of the legislature are separate, while both acted on
legislation.70
As the debate continued, Gorham sought to bring it back to
the two fundamental objections against combining the executive and
judiciary branch. The first was that "Judges ought to carry into the
exposition of the laws no prepossessions with regard to them," and
secondly, that the judges would outnumber the executive which would
take the revisionary check entirely out of the hands of the executive,
and instead of enabling him to defend himself, would enable the Judges
to sacrifice him." Wilson answered the objections saying that both
branches were necessary to counterweight the legislature, and that a
system of voting could be established to guard against the executive
being outvoted. However, the Convention rejected Wilson's amendment
in a four-to-three vote.71

Then the Convention returned to the question of executive

appointment of judges. The motion was to make all nominees appointments

 

471

unless two-thirds of the second branch of the legislature disagreed.
The debate centered around whether the executive could be trusted to
have the knowledge and ability to select competent individuals and how
to prevent his abusing that power. As Oliver Ellsworth argued,

The Executive will be regarded by the people with a jealous

eye. Every power for augmenting unnecessarily his influence

will be disliked. As he will be stationary it was not to be

supposed he could have a better knowledge of characters.
He will be more open to caresses & intrigues than the Senate.

72
Madison and Morris countered that if the Senate had the exclu-
sive power of appointment, more than likely judges would be appointed
by the populous states. On the other hand, the "Executive in the
necessary intercourse with every part of the U.S. required by the nature
of his administration, will or may have the best possible information."
Moreover, if the executive can be trusted with command of the army,
"there can not surely be any reasonable ground of Jealousy in the pre-
sent case." In the final analysis, the Convention voted to defeat the
proposal for executive appointment of judges with a two-thirds vote by
the Senate, in favor of their previous stand.73
On July 24 the Convention returned to the question of select-
ing the executive. By a vote of seven to four, they rescinded their
previous proposal to elect him by electors chosen by the state legis-
latures in favor of election by the national legislature. Once again

the previous arguments respecting both sides of the issue were aired.

Wilson, in an attempt to offer a compromise, suggested that the executive

 

472

be selected by fifteen members of the legislature chosen by lot. In
the middle of the debate Gerry expressed the delegates' frustration.
He said "We seem to be entirely at a loss on this head.“ He suggested
that it might be "advisable to refer the clause relating to the Execu-
tive to the Committee of detail to be appointed." "Perhaps," he con-
cluded, "they will be able to hit on something that may unite the
various opinions which have been thrown out."74
Morris reviewed the situation and concluded that "Our Presi-

dent will be the British Minister, yet we are about to make him
appointable by the Legislature." He pointed out that "something had
been said of the danger of Monarchy--If a good government should not
now be formed, if a good organization of the Executive should not be
provided," he was doubtful whether "we should not have something worse
than a limited Monarchy.‘I To rid the executive of his dependence on
the legislature the notion of ineligibility was introduced. He expressed
fear that the executive would not quietly turn over power to his suc-
cessor since he had control of the military, and any civil war that
ensued would make the winning general "the despot of America." There-
fore, he concluded, the Convention ought to be very careful about
constituting the executive. "The vice here," he noted,

would not, as in some other parts of the system be curable--

It is (the) most difficult of all rightly to balance the

Executive. Make him too weak: The legislature will usurp

his powers: Make him too strong. He will usurp on the
Legislature.7

 

74

751b1d., pp. 104-105.

Ibid., pp. 97-103.

473

The next day the debate over the selection of the executive
continued. Madison reviewed all the proposals so far offered and the
objections to each. Then he added that if the executive were elected
by the legislature it would give foreign powers a chance to "mix their
intrigues & influence with the Election." He noted that

Limited as the powers of the Executive are, it will be an
object of great moment with the great rival powers of Europe
who have American possessions, to have at the head of our
Governm[en]t a man attached to their respective politics &

interests. No pains, nor perhaps expence (sic), will be
spared, to gain from the Legislature and appointm[en]t.

He cited Germany and Poland as examples of where this happened.76
Madison's lengthy discussion narrowed to two alternatives--
direct election by the people, or election by electors. He favored
the latter, but was concerned that electors would prefer someone from
their own state and this would be disadvantageous to the smaller states.
The key objection was the disproportionate number of qualified voters
in the north and south. He foresaw the increase in republican laws
and population in the south and in time he implied that this would
equalize the situation. The other concern was inducing states to give
up local interest to the national interest. He concluded by saying,
"As an individual from the S. States he was willing to make the sacr-
fice."77
The debate continued over the selection of the executive

with no resolution. Pinckney moved that no person should "serve in the

Executive more than 6 years in 12 years," but the motion was defeated

 

76Ibid., p. 109.

771 id.. pp. 110-111.

474

six to five. Gerry and Butler moved to refer the proposed section on
the executive to the Committee of Detail. Wilson opposed it saying
that "so important a branch of the System w[oul]d not be committed
until a general principle sh[oul]d be fixed by a vote of the House."78
On July 26 the final debate occurred prior to sending the

report to the Committee of Detail. Again the discussion revolved
around the executive. Mason began the debate by noting that

In every State of the Question relative to the Executive,

the difficulty of the subject and the diversity of the opin-

ions concerning it have appeared. Nor have any of the modes

of constituting that department been satisfactory.
He then reiterated all of the proposals and the objections to them
regarding the selection of the executive. He concluded that election
by the legislature was liable to fewest objections. He moved that the
executive be appointed for seven years and be ineligible for a second
time. This passed by a vote of seven to three.79

The final resolution as amended which was sent to the Com-

mittee on Detail proposed that executive power be constituted as fol-
lows:

that a National Executive be instituted--to consist of a

single person--to be chosen by the Natl. legislature--for

a term of seven years--to be ineligible a 2d. time--with

power to carry into execution that nat[iona]l. laws--to

be removeable on impeachment & Conviction of mal-practice

or neglect of duty--to receive a fixt compensation for the

devotion of his time to the public service, to be paid out
of the Nat[iona]l Treasury.

 

475

In this form the resolution passed by a vote of six to three, with one
divided and one absent.80
Next Mason moved to have the Committee on Detail include

property requirements for office holding on the national level, and to
exclude individuals ”having unsettled accounts" with the government
from holding office. During the debate Morris reiterated an experience
about General Washington which illustrated his opposition to that prac-
tice. When Washington presented his account for "secret service,"
which he noted was so

moderate that every one was astonished at it; and so simple

that no doubt could arise on it. Yet had the Auditor been

disposed to delay the settlement, how easily might he have

affected it, and how cruel w[oul]d it be in such a case to

keep a distinguished & meritorious Citizen under a temporary

disability & disfranchisement.
The Convention finally adopted the proposal to require property and
citizenship, though declined to limit the property qualification to
"landed" property because of the difficulty of "forming any uniform
standard that would suit the different circumstances & opinions pre-
vailing in the different States.”81

On the issue of unsettled accounts with the government as a

bar to holding office, the Convention was divided. Wilson opposed
giving that much power to the "Auditors, who might combine with rivals

in delaying settlements in order to prolong the disqualifications of

particular men." He cautioned the Convention that they were "providing

 

80Ibid., pp. 120-121.

Ibid., pp. 121-124.

81

476

a Constitution for future generations, and not merely for the peculiar
circumstances of the moment." The Convention finally resolved the
issue by voting down the resolution.82
The Convention appointed five members to a Committee of
Detail. They were John Rutledge, James Wilson, Oliver Ellsworth, Ed-
mund Randolph, and Nathaniel Gorham. Each had expressed a variety of
opinions on the formulation of the executive. However, all except
Randolph agreed that the executive branch ought to be a separate, inde-
pendent, and energetic institution. Randolph had opposed a unitary
executive arguing that a three-man executive could be as responsible,
effective, and energetic as one. On the other hand, all were concerned
about keeping the executive from becoming too powerful.83
Notes from the Committee of Detail indicate two general con-

cerns which guided the Committee's efforts to draft a constitution.
The first was to "insert essential principles only, lest the opera-
tions of government should be clogged by rendering those provisions
permanent and unalterable, which ought to be accommodated to times and
events." Secondly, to

use simple and precise language, and general propositions,

according to the examples of the (several) constitutions of

iifinsfiiefiileZEZf-iii 1'9”)'3‘?r$°"“¥“c“22 2' .3 i°°"i§1““'

y s1c l ers rom a o aw.

These two points are essential to understanding the final wording of

the language in creating the presidency. They also go far in

 

82Ibid., p. 125.
83Ibid., p. 129.
84Ibid., p. 137.

477

establishing a useful guideline in interpreting the language of that
section.

The first draft the Committee examined was written by Edmund
Randolph. The executive he outlined was termed "Governor of the united
People & States of America." He would be elected by joint ballot and
each house would have a negative on the other. His term was "(six)
seyenf years and he would be ineligible thereafter. He would be em-
powered to execute laws, "(command and superintend the militia,) (To
be Commander in Chief of the Land & Naval Forces of the Union & of the
Militia of the several states)." He was also to supervise their dis-
cipline and "to direct the executives of the states to call them or any

85 He also had the

part for the support of the national government."
power to "appoint to offices not otherwise provided for" and was
required to "Propose to the Legisl[atur]e from Time to Time by Speech
or Mess[age] such Mea[sure]s as concern this Union." He was removable
on impeachment, I'made by the house of representatives and (on) convic—
tion (of malpractice or neglect of duty); before the supreme judiciary
(of Treason Bribery or Corruption)." He was to receive a fixed compen-
sation

for the devotion of his time to public service the quantum

of which shall be settled by the national legislature to be

paid out of the national treasury (no increase or decrease

during the Term of Service of the Executive).
He would have a negative on all legislative acts "so as to require

repassing by 2/3," and "shall swear fidelity to the union, (as the

legislature shall direc[t]) (by taking an oath of office).“ Finally,

 

85Ibid., pp. 145-146.

478

he would be empowered to receive ambassadors, commission officers,
convene the legislature, and have the power to pardon, except in cases
of impeachment. The President of the Senate would succeed to the
"Executive in Case of (death) Vacancy until the Meeting of the Legis-
l[atur]e."86 Thus, the Randolph draft included the traditional execu-
tive duties, i.e., to command and superintend the militia, convene the
legislature, receive ambassadors, and commission officers. The amended
version gave the executive control over both the state and national
military forces, which increased his and the national government's power
considerably. Moreover, he had the power to recommend legislation, as
found in the commissions of the colonial governor, and in the Constitu-
tion of the state of New York.

The second draft produced by the Committee of Detail was
written by James Wilson and enumerated the executive powers still fur-
ther. He called the executive a President, "in which the Executive
Authority of the U.S. shall be vested." He then enumerated the specific
powers and duties. The phrasing was significant because it was the
first time the executive was entitled President in any formal proposal,
though it was not a new term to the Convention or state constitutions.
Moreover, the way it was phrased helps to understand the thinking of
the Committee with respect to their intentions. It appears that the
Committee was following the eighteenth-century American constitutional

tradition of identifying the source of executive power and then listing

his powers and duties. There was no indication that the phrase

 

86Ibid., p. 146.

479

identifying the source of executive power was intended to be a grant

of power in and of itself. This is a significant point to note when

comparing each of the successive drafts written by the Committee to

understand what was intended in the final draft approved by the Con-

vention.

87

The second draft further enumerated the executive's powers.

It required him to

inform the Legislature of the Condition of [the] U.S. so far
as may respect his Department--to recommend Matters to their
Consideration--to correspond with the Executives of the
several States-~to attend to the Execution of the Laws of

the U.S.--to transact Affairs with the Officers of Government,
civil and military--to expedite all such Measures as may be
resolved on by the Legislature-~to inspect the Departments of
foreign Affairs--War--Treasury--Admiralty--to reside where
the Legislature shall sit--to commission all Officers, and
keep the Great Seal of the U.S.--He shall, by Virtue of his
Office, be Commander in chief of the Land Forces of U.S. and
Admiral of their Navy--He shall have Power to convene the
Legislature on extraordinary Occasions--to prorogue them,
provided such Prorogation shall not exceed Days in the
space 8f any --He may suspend Officers, Civil and mili-
tary.8

Many of the specific duties included in this draft were taken from the

constitutions of New York and Massachusetts. As in the earlier draft,

it included nothing that was not well within the American concept of

limited executive authority as outlined in the state constitutions.

The Committee examined Wilson's draft carefully and made

several minor changes mostly in the phraseology, but retained the sub-

stance established in the first two drafts. The phrase identifying the

 

87Ibid.. p. 158.

88Ibid.

480

source of executive power was altered to read "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.'" Again, it is clear that the Committee
intended no grant of power in the title, but merely to identify the
source of executive power.89
Thus, the Committee of Detail's recommendation to the Conven-
tion outlined an executive authority clearly within the guidelines of
American executive experience. It was limited in scope by the enumera-
tion of specific duties and responsibilities, all of which appeared in
one or more of the state constitutions, but primarily those of New York
and Massachusetts. His major duties were execution of the laws and the
military duties of commander-in-chief, both of which were the primary
requirements of most of the state constitutions. He was elected by the
legislature and ineligible for a second term. He was given the power
to pardon, except in cases of impeachment, and had control over the
national military and state militias. He had a fixed salary unalter-
able during his term, and was required to take an oath to "faithfully
execute the Office of President." He was impeachable by the House of
Representatives and subject to "Conviction in the Supreme (National)
Court, of Treason (or) Bribery or Corruption."90

Discussion of the Committee of Detail's proposed draft re-

vealed that there were still significant areas of strong disagreement

 

89Ibid., p. 172.

*

90Ibid., p. 172.

w

481

among the delegates on various fundamental aspects of the executive
power. Questions concerning the selection, re-eligibility, term, and
removal of the executive caused the most discussion about the structure
of the office. The executive's appointing power caused the most diffi-
culty among the various powers assigned him. Underlying both of these
areas of concern was the relationship between the executive and the
legislature.

Some delegates, like Morris, contended that the proposed
arrangement made the executive too dependent on the legislature. He
moved that the Convention reverse itself and make the selection of the
executive by electors, rather than by the legislature. He feared that
the executive might court "popularity in the Legislature by sacrificing
his Executive rights; & then he can go into that Body, after the expira-
tion of his Executive Office, and enjoy the fruits of his policy."91
However, the delegates held fast and defeated his motion by a vote of
six to five, indicating that they were still far from totally satisfied
with election by the legislature. Debates regarding the rest of the
Committee of Detail's proposed draft of the structure of the executive
power followed much the same course as they had since the beginning of
the Convention, with each side reiterating their arguments.

The Convention, however, did alter the executive's military
powers slightly. His command of the state militia was limited to only
when they had been called into actual service of the United States.

The other area was whether the executive would be allowed to "make war."

91Ibid., p. 404.

482

Most opposed vesting this in the legislature because, as Pinckney
noted, "Its proceedings were too slow." Madison and Gerry moved to
replace the word "make" with "declare" in order "to allow the Executive
the power to repel sudden attacks." Sherman said this limited his
power too much since the executive should "be able to repel and not to
commence war." Gerry responded that he "never expected to hear in a
republic a motion to empower the Executive alone to declare war." Ells-
worth noted that "there is a material difference between the cases of
making gar, and making pegge," It should "be more easy to get out of
war, than into it," he said. "War also is a simple and overt declara-
tion," he observed, but peace is "attended with intricate & secret
negociations(sic)." Madison ended the debate contending that he was
against "giving the power of war to the Executive, because [he could]
not (safely) . . . be trusted with it; or to the Senate, because [it
was] not so constructed as to be entitled to it." He was, he said,
"for clogging rather than facilitating war; but for facilitating peace."
The amendment was passed by a vote of eight to two. Ellsworth switched
his vote to aye when King explained "that 'make' war might be under-
stood to [mean] 'conduct' it which was an Executive function."92
The executive's appointing power remained a controversial
point among the delegates. They did not wish to entrust this authority
solely to either the executive or the legislature. Morris was opposed

to giving it to the Senate contending that "the body was too numerous

for'the purpose; as subject to cabal; and as devoid of responsibility."

92Ibid., pp. 118-122.

483

Lodging his power solely in the hands of the executive, he argued,
might lead to the corruption of government as had happened in England.
Sherman admitted that the executive would have to appoint a number of
the executive officers, but the major offices of government and the
military ought not to be solely in his hands. Moreover, the wording
of the Committee of Detail's proposal raised fears that the exchtive
might be able to appoint individuals to offices that had not been
created, thus giving him the power to create offices. This was reme-
died by changing the phrase "officers'I to "officer" and adding the
words "in all cases not otherwise provided for by this Constitution,
except in cases herein otherwise provided for, and to all offices which
may here after be created by law." Some were still not satisfied with
the appointing power and the matter was referred to the Committee of
Eleven for final analysis.93 1
The last change made at this stage was to delete the require—
ment that the executive correspond with the state governors. Morris
said this implied "that he could not correspond with others." The
Convention agreed and voted nine to one to remove the clause.94
Issues that the Convention still had not fully resolved were
given to a Committee of Eleven for further study. On September 4 the
Committee reported its deliberation to the Convention. It reversed

the method of selecting the executive from the legislature to a system

of electors, chosen in a manner prescribed by the state legislatures.

 

93Ibid., pp. 389, 405.

94Ibid., p. 419.

484

They further required the executive be a natural-born citizen, or one
who was a citizen at the time of the adoption of the Constitution,
thirty-five years of age, and a resident for fourteen years. They
divided the treaty-making power between the executive and Senate as
well as the appointment of "Ambassadors and other public Ministers,
Judges of the supreme (sic) Court, and all other officers of the U.S.
whose appointments are not otherwise herein provided for." Thus, the
executive would recommend treaties and nominees for the Senate's advice
and consent. They also added that no treaties, and later amended it
to read "except Treaties of peace," were to be made "without the con-
sent of two thirds of the Members present." Finally, they gave the
executive the power to "require the opinion in writing of the principal
officer in each of the executive departments, upon any subject relating
to the duties of their respective offices."95
The Committee also established a vice president whose duties
would be to preside over the Senate. He was to be selected from the
presidential candidates as the one having the second highest number of
votes for president. If no person had a majority of electoral votes
for president, the Senate would be empowered to select one to be presi-
dent, and if two were tied for the second place, then the Senate would
select the vice president."96

Finally, the Committee clarified the impeachment process.

They recommended that the President be

 

95Ibid., p. 495.

96Ibid., p. 494.

485

removed from his office on impeachment by the House of
Representatives, and conviction by the Senate, for treason

or bribery, and in case of his removal as aforesaid, death,
absence, resignation or inability to discharge the powers

and duties of his office the Vice President shall exercise

those powers and duties of his office until another President 97
be chosen, or until the inability of the President be removed.

In the discussion that followed the presentation of the report
to the Convention, members of the Committee tried to justify the changes
they had made. In response to a question on making the person with the
second highest electoral vote, even though he may have less than a
majority, Vice President without a vote by the Senate, Sherman noted
that the object was to make the executive independent of the legisla-
ture. Since the choice was to be made from the five highest candidates,
"obscure characters were sufficiently guarded against." If a candidate
had no clear second place standing, he saw no reason why the Senate
could not choose the Vice President. Madison was apprehensive that the
electors would be more concerned with I'making candidates instead of
giving their votes in order to a definitive choice. Should his turn
be given to the business," he said, "the election would in fact be con-
signed to the Senate altogether. It would," he concluded, "have the
effect at the same . . . of giving the nomination of the candidates to
the largest States."98

Governeur Morris defended the Committee's recommendation and

(rited their reasoning. He argued that the "dagger of intrigue & fac-

titan" in appointment by the legislature required that the president be

98Ibid., p. 499.

97Ibid., pp. 499-500.

486

ineligible for a second term. Another problem was the difficulty of
creating a court of impeachment which would be fair and consistent
under a system of legislative appointment. Moreover, "No body (sic)
had appeared to be satisfied with an appointment by the Legislature,”

and finally, "Many were anxious even for an immediate choice by the

 

people." Therefore, making the President independent of the legisla-
ture required that he be elected outside of it. If the electors were
required to vote at the same time throughout the United States, "and
at so great a distance from each other, the great evil of cabal was
avoided. It would be impossible to corrupt them.“99
Mason said the plan removed some of the major objections but
that it would more often than not allow the Senate to select the Presi-

dent. That, he said, was "an improper body for the purpose."100

Others
expressed similar concerns.
Wilson probably best expressed the Convention's sentiment

when he said that this "subject has greatly divided the House, and will
also divide the people out of doors. It is in truth," he confessed,
"the most difficult of all on which we had to decide." While he was
not totally satisfied with it, he concluded that it was a "valuable"
improvement over the other plan. He said that it

gets rid of one great evil, that of cabal & corruption; &

Continental Characters will multiply as we more & more

coalesce, so as to enable the electors in every part of
the Union to know & judge of them.

1001bid , pp. 500-501.

99Ibid., p. 500.

IE“ “-
.L- nu—

487

Moreover, “It clears the way also for a discussion of the question of
re-eligibility on its own merits. . . ." He thought it might be im-
proved if the eventual decision, if the election went to the legisla-
ture, was handled by the House rather than the Senate. Also, this
method would minimize the problems of cabal

as it would be restrained to certain designated objects of

choice, and as these must have had the previous sanction of

a number of the States: and if the election he made as it

ought as soon as the votes of the electors are opened & it

is known that no one has a majority of the whole, there can
be little danger of corruption.

 

Moreover, the House would be constantly changing its membership and 1
would therefore be "free from the influence & faction to which the

permanence of the Senate may subject that branch."101

The Convention,
however, postponed a final decision until the delegates had time to
study the proposal.

The next day a motion by Rutledge to re-adopt the original
method of selecting the executive was defeated in an eight-to-two vote.
Afterwards a discussion ensued on the mathematical combinations the
Committee's recommendation might pose. On the question of substituting
the House for the Senate as the body selecting the President, the vote
went seven against, three for, and one divided. Several other votes
to strike a balance between the large and small states' influence in
selecting the executive failed. The Convention adjourned for the day

without resolving the issue.102

 

101Ibid., pp. 501-502.

102Ibid., pp. 511-515.

488

The debate continued on the following day with the Convention
approving a motion to prohibit any member of the legislature or other
office holder in the federal government from becoming electors. Then
Wilson outlined his objections in a lengthy statement which essentially.
expressed his concern that the Senate had too much power already with-
out adding selection of the executive to it.103

The Convention then voted down attempts to make the executive's
term seven and six years respectively. All but North Carolina supported
the motion to make it four years. This was followed by several motions
clarifying the selection and voting of presidential electors. Then the
Convention returned to the difficult question of whether the ultimate
choice of President would remain in the hands of the Senate. Sherman
moved to substitute "The House of Representatives shall immediately
choose by ballot one of them for President, the members from each State
I having one vote." This passed ten to one. Madison pointed out that
it was possible for two states to elect the President if they were the
only ones in session and could provide a quorum. This was remedied by
adding that the "eventual election of [the] Presid[en]t in case of an
eguality of the votes of the electors be referred to the House of
Rep[resentative]s." This passed eight to three.104

September 7 was taken up with the question of the nature and

function of the Vice President. In spite of those who criticized the

concept of making the Vice President, President of the Senate as mixing

 

1°3Ibid., p. 517.

104Ibid., pp. 526-527.

1'?

vii-u

489

the legislative and executive powers too much, the Convention voted
to do so by an eight-to-two margin. The same objection was raised by
Wilson when the Convention moved to grant the President the power to
appoint ambassadors and other high officials with the advice and con-
sent of the Senate. This, he said, would destroy the responsibility
for appointments. Morris disagreed, saying that since the President
"was to nominate, there would be responsibility, and as the Senate was
to concur, there would be security.”05
The Convention then debated the procedure for ratifying
treaties. The delegates agreed that there should be a two-thirds
majority of those present except in treaties of peace, which, as Madi-
son said, should "be made with less difficulty than other treaties."
This carried by an eight-to-three majority. Madison, who feared that
the President might retard a peace treaty because the state of war
would augment his powers, recommended that the Senate be allowed to
conclude peace treaties on their own. Morris thought the power "in
this case harmless, and that no peace ought to be made without the
concurrence of the President, who was the general Guardian of the
National interests." The delegates thought otherwise and defeated the
motion eight to three.106
On the question of the President's power to command written

reports from the executive departments, there were mixed feelings over

whether the President ought to have a council. Mason said "that in

 

1°51bi .. pp. 535-539.

1061bid., pp. 540-541.

1?“ n
. L... __

490

rejecting a Council . . . we were about to try an experiment on which
the most despotic Governments had never ventured--even The Grand Signor
himself had his Divan." He recommended a six-member council made up
of two members from each region. Franklin seconded the motion noting
that

We seemed . . . too much to fear cabals in appointments by a

number, and to have too much confidence in those of single

persons. Experiences, shewed (sic) that caprice, and intrigues

of favorites & mistresses, &c were nevertheless the means most

prevalent in monarchies.
He cited the number of bad governors appointed by England for the colo-
nies, and concluded that "a Council would not only be a check on a bad
President but be a relief to a good one.II The idea of a council was
defeated by an eight-to-three vote.107

On September 8 the Convention discussed the impeachment pro-
cess and defeated a motion to make the Supreme Court the court of
impeachment. Also they granted the President the power to convene the
legislature "on extraordinary occasions." Then they appointed the
"Committee on Style” to "arrange the articles which had been agreed to
by the House." Its members were Johnson, Hamilton, Morris, Madison,
and King.108
The Committee on Style presented its report to the Convention

on September 12. The letter which accompanied the report outlined the

ideas which guided the Committee's deliberations about the arrangement

of powers. It noted in part that the

 

107

Ibid., pp. 541-542.
'08Ibid.. pp. 550-553.

491

Friends of our Country have long seen and desired that the

Power of making war Peace and Treaties, that of levying Money

& regulating Commerce and the corresponding executive and

judicial Authorities should be fully and effectually vested

in the general Government of the Union.
However, it continued, "the Impropriety of delegating such extensive
Trust to one Body of Men is evident. Hence results the Necessity of
different Organizations." It went on to argue that the states must
give up some rights for the common good of all. Therefore, the report
noted,

In all our Deliberations on this Subject we kept steadily in

our view that which appears to us the greatest Interest of

every true American The Consolidation of our Union in which

is involved our ProsBerity Felicity Safety perhaps our

national Existence.1 9

The Convention first voted to change the number of each branch

of the legislature needed to override the executive's veto from three-
quarters to two-thirds. Williamson and Sherman both thought the former
gave too much power to the President. Morris and Hamilton disagreed,
pointing to the experience in New York. Morris said that the “excess
rather than the deficiency of laws was to be dreaded," and "the example
of N. York shows that 2/3 is not sufficient to answer the purpose." In
rebuttal Gerry argued that the ”primary object of the revisionary check
in the President is not to protect the general interest, but to defend
his own department." Madison raised the point that when the three-
quarters decision was made,'WflK!President was to be elected by the

Legislature and for seven years-~He is now to be elected by the people

and for four years." He went on to say that the purpose of the

 

1091bid.. pp. 583-584.

492

revisionary check was two-fold. It was designed to "defend the
Executive Rights," and "prevent popular or factious injustice." He
then went on to discuss the state experience in which "It was an impor-
tant principle in this & in the State Constitutions to check the legis-
lative injustice and encroachments." Moreover, the "Experience of the
States had demonstrated that their checks are insufficient." Therefore,
"We must compare the danger from the weakness of 2/3 with the danger
from the strength of 3/4." He concluded that "on the whole the former
was the greater," and "As to the difficulty of repeals, it was probable
that in doubtful cases the policy would soon take the place of limiting
the duration of laws so as to require renewal instead of repeal." In
the final voting, Washington was listed as voting against the change,
which was one of the few times his vote was recorded.110
The Committee on Style reorganized the Convention's thinking
about the executive into a format which identified the source of the
executive authority, method of selection, requirements for office,
method of removal, and his powers and duties. The only change of sig-
nificance was in the opening paragraph identifying the executive autho-
rity. The Committee reduced the original statement that "The Executive
power of the United States shall be vested in a single person. His
style shall be, 'The President of the United States of America'; and
his title shall be, 'His Excellency,'" to the simple declarative sen-

tence that "The executive power shall be vested in a president of the

United States of America." Again there was nothing in the Committee's

 

noIbid., pp. 585-587.

493

report or subsequent debate to indicate that the phrase itself was
intended to be a grant of power, but rather, only to be a means of
identifying the source of executive power.111
On September 14 Madison expressed his displeasure on the
question of presidential impeachment. He argued that the "President
is made too dependent already on the Legislature, by the power of one
branch to try him in consequence of an impeachment by the other." On
the issue of whether the President should be suspended while under
impeachment, he noted that
This intermediate suspension, will put him in the power of
one branch only--They can at any moment, in order to make
way for the functions of another who will be more favorable
to their views, vote a temporary removal of the existing
magistrate.
The Convention agreed and voted down any attempt to make suspension
mandatory.112
The next day the Convention voted down an attempt by Randolph
to limit the President's power to pardon in cases of treason. A1so
Pinckney became the first to mount an attack on the proposed final
draft for the executive power, citing "the contemptible weakness &
dependence of the Executive." Gerry, on the other hand, still opposed
making the Vice President head of the Senate as being too dangerous.113
The most extensive criticism of the proposed Constitution's

grant of executive power came from Mason. His major concern was that

 

1'1Ibid., pp. 573-577.

112Ibid., p. 612.

Ibid., pp. 626-636.

494

the President had no "Constitutional Council, a thing unknown in any
safe and regular government." Without a council, he said, the Presi-
dent will

be unsupported by proper information and advice, and will

generally be directed by minions and favorites; or he will

become a tool to the Senate--or a Council of State will grow

out of the principal (sic) officers of the great departments;

the worst and most dangerous of all ingredients for such a

Council in a free country; (for they may be induced to join

in any dangerous or oppressive measures, to shelter themselves,

and prevent an inquiry into their own misconduct in office.
All of this would be avoided had the Convention created a council as
recommended earlier. The Vice President could have served as President
of such a council. However, he noted,

from this fatal defect has arisen the improper power of the

Senate in the appointment of public officers, and the alarming

dependence and connection between that branch of the legis-

lature and the supreme Executive.
Moreover, it made the Vice President, I'for want of other employment,"
President of the Senate which again dangerously mixed the executive
and legislative powers, "besides always giving to some one of the
States an unnecessary and unjust preeminence over the others."114

Mason also objected to the pardon and treaty-making powers

as they were established in the Constitution. By giving the President
power to pardon treason, he might sometimes exercise that power “to
screen from punishment those whom he had secretly instigated to commit
the crime, and thereby prevent a discovery of his own guilt." Addi-

tionally,

 

114Ibid.. pp. 638-639.

495

By declaring all treaties supreme laws of the land, the
Executive and the Senate have, in many cases, an exclusive
power of legislation; which might have been avoided by pro-
per distinctions with respect to treaties, and requiring
the assent of the House of Representatives, where it could
be done with safety.

In light of these and other criticisms, Mason thought the Convention
had created a government by a "moderate aristocracy." At present, he
said, it is "impossible to foresee whether it will, in its operation,
produce a monarchy, or a corrupt, tyrannical (oppressive) aristocracy."
He concluded by contending that "it will most probably vibrate some
years between the two, and then terminate in the one or the other."115
On September 17 the Convention convened for the last time.

Franklin presented his thoughts on the Convention's accomplishments,
noting that

because I think a general Government necessary for us, and

there is no form of Government but what ma be a blessing

to the people if well administered, and [I believe farther

(sic) that this is likely to be well administered for a

course of years, and can end in Despotism, as other forms

have done before it, when the people shall become so cor-

rupted as to need despotic Government, being incapable of

any other. 5

One interesting event did take place on this last day. Wash-

ington spoke from the chair in support of a motion by Gorham to alter
the House of Representatives' representation from forty thousand to
thirty thousand. He said that

although his situation had hitherto restrained him from

offering his sentiments on questions depending (sic) in the
House, and it might be thought, ought now to impose silence

 

1151bid.. pp. 639-640.

 

1161bid., p. 642.

496

on him, yet he could not forbear expressing his wish that

the alteration proposed might take place.
He noted that "the smallness of the proportion of Representatives had
been considered by many members of the Convention, an insufficient
security for the rights & interests of the people," and he concurred
with that opinion. He expressed his wish that the document be amended
even at that late date. The Convention approved the motion unani-

mously.“7

Once the final appeals for support were made, all the mem-
bers signed the document, except for Randolph, Mason, and Gerry.

In the final analysis, what conclusions can be drawn about
the Constitutional Convention's effort to create a national executive?
Their primary goal in structuring the government was to "unite a proper
energy in the Executive, and a proper stability in the Legislative

departments."118

Most delegates agreed that the nation needed energy
in the executive department for a proper administration of government
and as a check against legislative usurpations of the people's liberty.
Yet, an energetic executive without the proper safeguards was just as
dangerous to society as an unchecked legislature. The problem was how
to constrict an executive with the necessary energy and adequate safe-
guards.
The major disputes among the delegates in the construction

of the executive occurred over five basic questions: whether it ought

to consist of a singular or plural executive; the method of appointment;

 

117Ibid., p. 644.

118Madison, Writings (Hunt, ed.), v, 19.

497

the period of duration in office; re-eligibility; and the degree of
power it ought to possess. The delegates debated extensively over the
first four and then decided to settle the nature and extent of the
executive's power and return to structuring the office. On the ques-
tion of how much power to give the executive, the Convention disagreed
about the amount of authority the executive should exert over appoint-
ments and control of the legislature. To give the executive absolute
power of appointment would lead to corruption of the legislature. To
give that power to the legislature would be inefficient. Therefore,
it was divided between the executive, who had the power to nominate,
and the Senate, the most stable part of the legislature, which had the
power to confirm.

Likewise, the executive's negative over legislative acts
raised the question of how much control he ought to have over the legis-
lative branch. The veto was necessary to protect the executive from
legislative encroachments as well as protect the public from ill-
conceived legislation. Again, a compromise was reached giving the
executive a qualified veto by allowing two-thirds of each house to
override it.

The treaty-making power also proved to be a major point of
contention. The delegates did not want to lodge it solely in the
executive for fear it might be abused. The legislative body was too
inefficient to handle foreign affairs with the secrecy and dispatch
needed. Again, they compromised and lodged what could best be done
by the President in the executive branch and secured the final approval

of treaties in the most stable element of the legislature--the Senate.

498

Toward the end of the Convention, the delegates rejected the
idea of the legislature electing the executive in favor of the elec-
toral college system. By this method the selection of the executive
would be based on the people, which would make him independent of the
legislature. Moreover, the electoral college would eliminate the need
for a national standard of suffrage, which allowed the Convention to
by-pass the slavery issue with respect to the executive branch. Finally,
the system would insure, they thought, the selection of the best pos-
sible persons for the office of President, since the selection would be
made by those best qualified from each state. If, however, they were
unable to select a candidate, their favored choices would be placed
before the House of Representatives, where each state had a vote,
thereby eliminating the inequities between the large and small states.

Once the method of selection had been settled, the question
of re-eligibility was re-opened. Here the delegates thought the people
would be the best judge on whether to re-elect the executive since they
now chose him originally. Re-eligibility was thought dangerous under
the system of legislative election because the delegates feared the
executive might corrupt the legislature into re-election for life.
Moreover, an election based on the people with re-eligibility provided
an incentive for the executive to earn another term by his proper
conduct.

In the end, most of the delegates were satisfied that they
had achieved a sufficiently energetic executive within the confines of
republican principles. Was there a model the delegates used to fashion

the presidency? The debates make it clear that those who supported the

499

final version of the office looked to the state constitutional
experience for examples of what did and did not work. The New York

and Massachusetts constitutions appeared to have exerted the most influ-
ence on the basic nature of the office the Convention tried to create;
that is, they were the best models of unitary, independent and ener-
getic executives. However, they were by no means the exclusive source
of precedent. Virtually all the executive articles in the state con-
stitutions were cited to show what ought to be included or avoided.

More importantly, the constitutional experiences of the
states were the most significant factor considered by delegates in
framing the presidency. Those who later came to oppose the Constitu-
tion most often cited the maxims of the great theoreticians like
Montesquieu and Locke, and then sought to write constitutional provi-
sions to ensure that they were carried out. The other delegates more
often than not looked to the state experiences and inductively drew
their conclusions based on American historical precedent. When needed,
some delegates cited examples from European or ancient history to bol-
ster the principles which they derived first from the American experi-
ence. Then, and only then, did they cite the political maxims of the
Montesquieu and other thinkers as added support.

One historical example was continually cited by friend and
foe of the Constitution alike, as a model to be avoided at all costs.
That was the British monarchy. Throughout the debates, constant refer-
ence was made to proposed ideas as being too much like the monarchy in
various respects. This was a tactic especially used by those who

opposed the final formulation of the executive. The monarchy was

500

definitely not the model on which the presidency was based, though, as
delegates like Wilson pointed out, it did contain elements which were
considered to be essential to all executive offices irrespective of
the form of the overall government.

What was George Washington's influence on the final form of
the presidency? Clearly his role as commander-in-chief during the
Revolution had made him a ge’fagtg_national executive and clearly the
most respected symbol of American ideals in that era. His unchallenged
selection as the chairman of the Constitutional Convention showed the
esteem in which the delegates held him. While it is difficult to deter-
mine whether many delegates viewed Washington as the probable first
executive of the nation during the Convention, it is not the most
important consideration. The delegates were, for the most part, prac—
tical politicians who looked beyond the occupant of an office to whether
the office possessed the requisite constitutional elements necessary to
give it energy and protect the people from abuse of its powers. Thus,
while Washington might have been considered the ideal first choice for
the office, the delegates were more concerned with what would happen
later. Washington's reputation and any precedents he might set were
not sufficient to prevent a future occupant from abusing his powers.
The prime concern was, therefore, the proper structure of the office,
irrespective of who might be the first to occupy it.

Did the Convention provide a guide as to how future genera-
tions might interpret the constitutional phrases in Article II? Pro-
bably the best answer to this, as noted earlier, were the guidelines

used by the Committee of Detail to draft the wording of the various

501

clauses. They recommended that only essential principles be used to
prevent the government from becoming clogged by permanent and unalter-
able details which would become dated if conditions changed. Secondly,
they recommended that simple and precise language phrased in general
propositions be used as had been done by the drafters of the state
constitutions. The reason for this approach consisted of the fact that
constitutions were the embodiment of principles, while laws were written
for specific purposes and were meant to be altered to meet changing
conditions. Constitutions were designed to be difficult to amend since
they embodied general principles which were not expected to change.

Using these ideas as a guide to interpretation, what can be
concluded about the most disputed phrase of Article II? The words ''The
executive power shall be vested in a President of the United States"
are considered to be a general grant of executive power by some scholars
and politicians. The weight of the evidence is against this interpreta-
tion. The phrase appeared to be only used to identify the source of
the executive power, in a manner similar to the phrasing of the state
constitutions. Thus, the executive's formal authority consisted only
in the delegated powers and duties assigned to the President by the
Constitution and any additional statute authority Congress saw fit to
bestow on him.

In conclusion, the Constitutional Convention intended the
President to possess sufficient authority to vigorously carry out his
duties and to defend himself and the people against legislative encroach-
ments within the context of a balanced constitution. The elements which

made up the institution were drawn from the state constitutions and

502

arranged in a manner consistent with the successful aspects of the
state experience. In short, the presidency was derived from American
experience and designed to operate within the American tradition of a

limited responsible executive.

CHAPTER X

THE RATIFICATION DEBATE:

Interpreting the Presidency

Once the Constitution was presented to the people for their
approval, the major issue became whether or not the Constitutional
Convention had succeeded in remedying the defects of the Confederation
for the protection of liberty in a manner consistent with republican
principles. This chapter examines the ratification debate as it re-
lates to the acceptance of the executive sections of the Constitution.
It also examines George Washington's attitudes about the nature and
operation of the new government as he realized the likelihood of his
becoming its first president with the final adoption of the Constitution.

Opponents of the Constitution, or the anti-Federalists, con-
tinued and developed the line of argument enunciated by Mason, Randolph
and Gerry, who were strongly opposed to many features of the Constitu-
tion as they evolved during the Convention. These men and other anti-
Federalists held certain assumptions about government and its operation
which help explain why they opposed the Constitution. At the base of
the anti-Federalist view of government was their concept of human
nature. Like the Federalists they mistrusted people's use of power,
fearing that if left to their own devices, they would exert every effort

to augment and increase their power in a manner inconsistent with the

503

504

common good. Patrick Henry, for example, dreaded "the depravity of
human nature," and argued that it must be subject to every possible
check. One must "trust nothing to accident or chance," he said.
"Since the depraved nature of man is well known," he continued, ". . .
[man] has a natural bias towards his own interest, which will prevail

1 Others referred

over every consideration, unless it be checked."
continually to "the natural lust of power so inherent in man,"2 or to
the "predominant thirst of dominion which has invariably and uniformly

prompted rulers to abuse their power,"3

or to the "ambitions of man,
and his lust for domination."4 In short, as Samuel Adams concluded,
"Few men are contented with less power than they have a right to exer-
cise."5
The difference between the anti-Federalists and the Federal-
ists' view of human nature rested in the degree of their mistrust of
it. The anti-Federalists saw no hope for a system of government which
did not spell out in careful detail all the limitations and checks to
be placed on those who held the powers of government. Therefore, as

discussed later, they advocated that nothing be left to chance and

 

1Johnathan Elliot, ed., The Debates of the Conventions in
the Several States on the Adoption of the Federal Constitution (Phila-
delphia, 1830), III, 326-327.

2Ibid., p. 326.

3Ibid., p. 436.

4Paul Leicester Ford, ed., Essays on the Constitution of the
United States (Brooklyn, N. Y., 1892), p. 378.

5Sam Adams to Richard Henry Lee, April 22, 1789, Writings,
Cushington, ed. (New York, 1904), IV, 327.

 

505

demanded that all the possible contingencies of rulers abusing their
power be provided for in the Constitution. The Federalists, on the
other hand, were generally satisfied with the checks placed on the
rulers which gave them sufficient latitude to carry out their functions,
yet remain within the republican boundaries established by the Consti-
tution. If they should overstep these boundaries, the checks within

the system would be sufficient to prevent them from destroying the
system entirely. These ideas are developed further in a later discus-
sion.

A second fundamental assumption of the anti-Federalists was
their belief that no system of republican government could be devised
which would operate on such a large geographic area as the United States.
James Winthrop argued that

The idea of an uncompounded republick, on an average one

thousand miles in length, and eight hundred in breadth, and

containing six millions of white inhabitants all reduced to

the same standard of morals, of habits, and of laws, is in

itself an absurdity, and contrary to the whole experience

of mankind. The attempt by Great Britain to introduce such

a system, struck us with horrour. . . .
Winthrop concluded that such a diverse nation must of necessity have a
diversity of governments. Since “one code of laws" was difficult, if
not impossible, to write "to suit Georgia and Massachusetts," and since
the diverse but complementary interests of the thirteen states was the
principle bond among them, the states "must, therefore, legislate for

themselves."6

 

6James Winthrop, "Agrippa," ssays, Ford, ed., pp. 64-65.

506

Instead of a federated or confederated government, the
anti-Federalists argued that the Constitution created a consolidated
government. The power given to Congress to raise taxes, and in associa—
tion with the President, the power to raise and maintain a standing
army, was an unconscionable threat to liberty, they argued. This, in
addition to the "elastic“ clause in Article I, Section 8, which gave
Congress the power

To make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof,
caused great alarm among the anti-Federalists. However, the section of
the Constitution related to the executive, which caused the most con-
sternation among the anti-Federalists was the one which gave the power
to negotiate and ratify treaties to the President and Senate respec-
tively. This section, as discussed later, received the harshest criti-
cism of the anti-Federalists. Given the anti-Federalists' view of the
Constitution as creating a consolidated government it is easier to
understand their fear that it would threaten the liberty of Americans.

Another major difference between the anti-Federalists and
Federalists was their method of analyzing the Constitution. As evi-
denced in the debates during the Constitutional Convention and ratifi-
cation period, two thought processes were apparent. The anti-Federalists
were in the rationalist tradition, which argued from principles to
particulars. They took as gospel truth the political maxims of Harring-

ton, Locke, and Montesquieu. Therefore, the function of those writing

a new constitution ought to be the creation of a perfect system of

507

government. Though it was difficult, it was possible, they argued.
In short, as one historian concluded,
since reason would show that any imperfect form (whether
democratic, aristocratic, or monarchistic) would inevitably
degenerate into tyranny, it was better to make do withgut
a national government than to create an imperfect one.
However, if a Constitution were to be written, care had to
be taken not to leave much to chance. Therefore, they argued, limit
discretion by those who held power to a minimum by eliminating vague-
ness from the language of the Constitution. One critic noted "a certain
darkness, duplicity and studied ambiguity of expression running through

"8

the whole Constitution, while another complained that there did not

exist "a social compact on the face of the earth so vague and so indef-
inite as the one now on the table."9
Furthermore, the anti-Federalists were more concerned with
what might be than what actually was. When a principle of action was
proposed, they were concerned most with what dangerous precedents it
might create. This strain of thought was evident throughout the entire
colonial-Revolutionary period of American history. For the most part,
Americans thought carefully and prudently about the logical implications
of policies and principles under consideration. During the ratification

debate, the anti-Federalists were most vocal in pointing to the future

dangers they perceived the Constitution might create, especially when

 

7Cecelia A. Kenyon, ed., The Antifederalists (Indianapolis,
Indiana, 1966), p. 209.

8Cited by Ibid., p. lxxv.

9Elliot, ed., Debates, III, 583.

 

nu lit-151‘ .

 

.N 1.11

.. .a ifi" JV.- .oi .

508

they realized, as John Williams of New York was quick to note, that
they were debating the establishment "of a constitution which is not
only to operate upon us, but upon millions yet unborn."10
The Federalists, on the other hand, looked to experience as
the best guide to future action. John Dickinson probably best sum-

ll-l‘I As

marized this when he said "Experience must be our only guide.
such, the Federalists sought to illustrate that the provisions of the
Constitution the anti-Federalists criticized were well within the prin-
ciples established by the constitutional experience of the states.

This point is discussed in detail later in the Federalists' response

to criticism of the presidency. In short, as historian Forrest McDonald
concluded, the "Federalists viewed themselves as friends of the nation;

"'12 It

anti-Federalists depicted themselves as friends of the people.
is within that context that the ratification debate can best be under-
stood; that is, the anti-Federalists' greatest concern was that the
Constitution as presented to the people was a threat to their liberties
unless it was amended in some fundamental ways. The Federalists con-
tended that only when a secure and energetic national government was
established could the liberties of the people be protected.

Turning to the ratification debate over the executive section

of the Constitution, what were the major points of contention? The

general consensus reached at the Convention, as discussed in the last

 

10

Ibid., II, 339.
11Cited by Forrest McDonald, "The Anti-Federalists, 1781-
1789," Wisconsin Magazine of History, XLVI (1963), 209.

121bid., p. 211.

509

chapter, provided for an executive headed by a single individual,
institutionally independent of the other two major branches of govern-
ment and operating within its own sphere of authority. Moreover, to
secure responsibility within the executive branch, its powers were
shared, like the other two branches, so that there was a mixing of
powers in an effort to balance and check the ability of any branch to
impose or usurp the authority of the other two. Thus, while there was
only one executive, the President, he shared his powers with the other
two branches while at the same time he played a role in the legislative
and judicial processes. The object was for three independent institu-
tions, sharing overlapping powers, to operate in a system which would
be mutually balanced in an effort to check the excesses of any one
branch while providing the requisite energy to establish a vigorous
but republican government. The debate, therefore, revolved around the
question of whether the presidency was itself a republican institution
and whether its arrangement of powers was consistent with republican
principles in such a manner which would prevent it from endangering
the people's liberty.

The general criticism of the presidency by the anti-Federalists
was that it was basically a monarchy in republican trappings. Elbridge
Gerry argued that the whole Constitution was a "Republican fgrm_of gov-

13 The author of the

ernment, founded on the principles of monarchy."
"Philadelphiensis" argued that "Our thirteen free commonwealths are to

be consolidated into one despotic monarchy," with the President being

 

13Elbridge Gerry, “Observations," amphlets, Ford, ed., p. 7.

510

14

"a military king." William Findley contended that the "most important

 

branches of the executive department are to be put into the hands of a

15

single magistrate, who will in fact be an elective king." Patrick

Henry accused the Convention of creating a "mighty President, with very

n16

extensive power--the powers of a king. However, one of the most

scathing criticisms of the executive noted that the "President-general
. who is to be our king . . . is vested with powers exceeding those

of the most despotic monarch we know of in modern times."17

 

Beneath the general criticism of the presidency, the anti-
Federalists enunciated their theory of leadership. Unlike the Federal-
ists, the anti-Federalists never developed or articulated a theory of
republican leadership in any consistent manner. Rather, they were more
concerned with the possible evils they envisioned under the proposed
Constitution. They combined their mistrust of human nature with their
general fear of government and added the fears that the new government
would be staffed by unknown persons. John DeWitt, writing in the
American Herald, said that

In considering the present Government before us, we therefore
certainly ought to look upon those who are to put it into

motion, as our enemies--to be careful what we give--to see
what use it is to be put to--and where to resort for a remedy,

 

14Reprinted in Kenyon, The Antifederalists, p. 71.

15William Findley, "Letter of an Officer of the Late Contin-
ental Army," November 3, 1787, reprinted in Anti-Federalists Versus
Federalists, edited by John D. Lewis (Scranton, Pa., 1961), 135.

16

17Workman, "Philadelphiensis," in The Antifederalists, Ken-
yon, ed., p. 77.

 

Elliot, ed., Debates, III, 56.

that

511

if it is abused.--Every door unguardedly left open, they
will take care we never shall thereafter shut-~every link
in the chain unrivetted, they will provide shall always
remain so. 8

George Clinton as "Cato" developed the idea further. He noted

Before the existence of express political compacts it was
reasonably implied that the magistrate should govern with
wisdom and justice; but mere implication was too feeble to
restrain the unbridled ambition of a bad man, or afford
security against negligence, cruelty or any other defect
of mind.

He disputed the idea that Americans, by their character, ”are capable

to resist and prevent an extension of prerogative or oppression" because

opinions and

manners are mutable, and may not always be a permanent
obstruction against the encroachment of government; that
the progress of a commercial society begets luxury, the
parent of inequality, the foe to virtue, and the enemy to
restraint; and that ambition and voluptuousness, aided by
flattery, will teach magistrates where limits are not expli-
citly fixed to have separate and distinct interests from

the people.

Therefore, he concluded, "a general presumption that rulers will govern

well

gation to provide for the safety of . . . [its] posterity.

is not a sufficient security." Society was under "a sacred obli-
1119

Clinton then questioned whether Americans could "precipitate"

themselves "into a sea of uncertainty, and adopt a system so vague, and

which has discarded so many of . . . [their ] valuable rights?" Was it

because they did not believe "an American can be a tyrant?" If that

were

the case, he concluded, it was a weak argument because

 

18Cited by Kenyon, Ibid., p. lxii.

19Clinton, "Cato," ssays, Ford, ed., p. 266.

512

Americans are like other men in similar situations, when the

manners and opinions of the community are changed . . . and

your political compact inexplicit, your posterity will find

that great power connected with ambition, luxury and flat-

tery, will as readily produce a Caesar, Caligula, Nero and

Domitaig in America, as the same causes did in the Roman

Empire. 0

Uppermost in the minds of the anti-Federalists was the fear
of potential tyranny, irrespective of the method of election or the
checks placed on the office holder. As one Massachusetts delegate
cautioned, "We ought to be jealous of rulers, All the godly men we
read of have failed; nay, he would not trust a 'flock of Moseses
(sic).'"21
The anti-Federalists' fear of executive tyranny was expressed

in numerous ways. Their major concern was that the President might
combine with the Senate to upset the balance of power. George Mason
noted that it had been "observed that the Constitution has married the
President and Senate--has made them man and wife." Moreover, he said,
"They will be continually supporting and aiding each other; they will
always consider their interest as united."22 This was especially cru-
cial in the area of treaty-making. George Clinton, for example, argued
that

Complete acts of legislation, which are to become the supreme

law of the land, ought to be the united act of all the

branches of government; but there is one of the most impor-
tant duties, which may be managed by the Senate and executive alone,

 

20Ibid., p. 267.

21Elliot, ed., Debates, II, 28.

22Ibid., III, 493.

513

and to have all the force of law paramount without the aid

or interference of the House of Representatives; that is the

power of making treaties.
He went on to illustrate how this power may be abused "so as to affect
your person and property, and even the domain of the nation." "By
treaties," he wrote,

you may defalcate part of the empire; engagements may be made

to raise an army, and you may be transported to Europe, to

fight the wards of ambitious princes; money may be contracted

for, and you must pay it; and a thousand other obligations

may be entered into; all which will become the supreme law

of the land, and you are bound to it.
Moreover,

If treaties are erroneously or wickedly made who is there to

punish,--the executive can always cover himself with the plea

that he was advised by the senate, and the senate being a

collective body are not easily made accountable for mal-

administration.
He concluded that all of this is similar to the monarch of England,
whereby he was placed in a position where he can do no wrong. However,
in the proposed American Constitution, he noted, "infallibility per-
vades every part of the system, and neither the executive nor his coun-
cil, who are a collective body, and his advisors, can be brought to
punishment for mal-administration."23

An allied fear of the anti-Federalists was that the treaty-

making power would be used to alter or amend the Constitution, thereby
endangering liberty. Randolph decried the lack of any limitations on
the treaty-making power, asking whether the President and Senate,

"Being creatures of that Constitution, can they destroy it?" "Can any

 

23"Cato," ssays, Ford, ed., p. 274.

514

particular body, instituted for a particular purpose," he asked,
''destroy the existence of the society for whose benefit it is created?"24
Mason followed by pointing out that "Though the English king can make
treaties, yet he cannot make a treaty contrary to the constitution of
his country." That, he said, was based "on a number of maxims, which,
by long time, are rendered sacred and inviolable." However, he asked,
"Where are there such maxims in the American Constitution?"25 Patrick
Henry noted the possibilities of treaties being made which violated
citizens' rights by citing that

When you yourselves have your necks so low that the President

may dispose of your rights as he pleases, the law of nations

cannot be applied to relieve you. Sure I am, if treaties are

1‘13?23:32.1221.321612191193111; 21.813.125.336“ 1° 5”

The anti-Federalists cited numerous fears that the treaty-
making powers would be abused. Many southern anti-Federalists, for
example, feared that a northern president might not call southern Sena-
tors to a session to ratify a treaty which adversely affected their
interests, or as William Grayson suggested, "If the senators of the
Southern States be gone but one hour, a treaty may be made by the

27

rest." Another fear was that the treaty power might be used to "make

 

24E11iot, ed., Debates, III, 504.

25Ibid., p. 508.

26Ibid., p. 503.

27Eiiiot, ed., Debates, III, 499, 502.

515

a treaty engaging with foreign powers to adopt the Roman Catholic

religion in the United States."28

Probably the greatest fear of the anti-Federalists was that
treaty-making power would be used to destroy state laws and constitu-

tions. Richard Lee noted that the

president and two-thirds of the senate will be empowered to
make treaties indefinitely, and when these treaties shall
be made, they will also abolish all laws and state consti-
tutions incompatible with them.

Moreover, this power in the President and Senate

is absolute, and the judges will be bound to allow full force
to whatever rule, article or thing the president and senate
shall establish by treaty, whether it be practicable to set
any bounds to those who make treaties, I am not able to say;

if not, 9t proves that this power ought to be more safely
lodged.2

The Senate was the institution most feared by the anti-
Federalists because it was viewed as an aristocracy which controlled
not only half the legislative process but the President as well. Lee
noted that

when we examine the powers of the president, and the forms
of the executive, we shall perceive that the general govern-
ment, in this part, will have a strong tendency to aristo-
cracy, or the government of the few.

"The executive," he pointed out,

is, in fact, the president and senate in all transactions of
any importance; the president is connected with, or tied to
the senate; he may always act with the senate, but never can
effectually counteract its views: The president can appoint

 

28Ibid., Iv, 191-192.

29R. H. Lee, "Letters of a Federal Farmer, Letter IV,"

printed in Pamphlets on the Constitution, edited by Paul L. Ford
(Brooklyn, 1892), p. 312.

516

no officer, civil or military, who shall not be agreeable

to the senate; and the presumption is, that the will of so

important a body will not be very easily controuled, and

that it will exercise its powers with great address.30

Throughout the discussion on the relationship between the

President and Senate, most anti-Federalists thought the President lacked
sufficient strength to be independent of any undue influence by the
Senate. Patrick Henry compared the President's power in making treaties
"as distinguished from the Senate, is nothing."31 The "Centinel" of
Pennsylvania argued that the President did not possess enough power to
resist pressures from the Senate and would finally join with them as

"the head of the aristocratic junto."32

William Grayson argued that
the President's lack of weight would force him into an alliance with
the "seven Eastern States," whereby "He will accommodate himself to
their interest in forming treaties, and they will continue him perpetu-
ally in office."33
George Clinton of New York was one of the few anti-Federalists
who did not believe the President possessed less power than the Senate.
He argued that the executive had extensive powers, which when combined
with his long tenure of office and powers of appointment, "if the Presi-

dent is possessed of ambition," gave him "power and time sufficient to

ruin his country." Moreover, since he had no council to give "proper

 

30Ibid., Letter III, 298.

31E1iiot, ed., Debates, III, 353.

32Cited by Kenyon, Antifederalists, p. lxxx.

 

33E11iot, ed., Debates, III, 492.

517

information and advice,‘I he "will generally be directed by minions and
favorites, or a council of state will grow out of the principal offi-
cers of the great departments, [which is] the most dangerous council
in a free country."34
The anti—Federalists also cited the union of the executive

and Senate as being a "dangerous mixture of the powers of government"
which violated the celebrated maxims of Montesquieu. The minority
report in the Pennsylvania Convention, e.g., quoted lengthy passages
from his work on the danger and tyranny of such a union and concluded
that under the Constitution the "president general is dangerously con-
nected with the senate" since

his coincidence with the views of the ruling junto in that

body, is made essential to his weight and importance in the

government, which will destrgy all independency and purity

in the executive department.
Mason predicted the union between the Senate and executive whereby
"They will be continually supporting and aiding each other: they will
always consider their interest as united. . . . The executive and
legislative powers, thus connected, will destroy all balances."36
Elbridge Gerry claimed that

The Executive and the Legislative branches are so dangerously

blended as to give just cause of alarm, and everything rela-
tive thereto, is couched in such ambiguous terms--in such

 

34Printed in Essays, Ford, ed., pp. 261-262.

35"The Address and Reasons of Dissent of the Minority of the
Convention of the States of the State of Pennsylvania to their Constit-
uents," reprinted in Kenyon, Antifederalists, pp. 52-53.

36

 

Elliot, ed., Debates, III, 493-494.

518

vague and indefinite expression, as in a sufficient ground
11.2“23113?! 32312121852512: L‘efii‘é‘éitifiieiif 115% that
ga ion.
Overall, however, re-ordering the balance between the executive and
Senate was one of the few structural changes the anti-Federalists wished
to see made in the Constitution.

One of the basic safeguards written into most of the state
constitutions was the compulsory rotation in office. This concept was
an article of faith among the anti-Federalists and they sought to have
it part of the Constitution as one check against the dangers arising
from any union between the executive and the Senate. As George Mason
asserted, "Nothing is so essential to the preservation of a republican

1138

government as a periodical rotation [in office]. William Findley

noted that "Rotation, that noble prerogative of liberty, is entirely

excluded from the new system of government, and the great men may and

39

probably will be continued in office during their lives." Another

writer, probably Gerry, lamented that
There is no provision for a rotation, nor anything to prevent
the perpetuity of office in the same hands for life; which
by a little well-timed bribery, will probably be done, to the
exclusion of men of the begs abilities from their share in
the offices of government.
George Mason was content with the presidential and senatorial

terms, but without rotation the government would become "an elective

 

37Elbridge Gerry, "Observations," amphlets, Ford, ed., p. 9.

38Eiiiot, ed., Debates, III, 485.

39

40Ibid., p. 184.

Reprinted in Anti-Federalists, Lewis, ed., p. 135.

519

monarchy" since the President would be able to perpetuate himself in
office indefinitely, as Mason assumed that the election would always
be thrown into the House of Representatives. Then with the use of
corruption, intrigue, foreign influence and, above all, patronage, the

President could make himself executive for life. Moreover, he con-

 

tinued, if the Americans wish to change presidents, "the great powers
in Europe will not allow us" as they do not allow kings to be displaced
so easily in Europe. This will lead "the powers of Europe‘ to inter-
pose, and we shall have a civil war in the bowels of our country, and
be subject to all the horrors and calamities of an elective monarchy.“
On the other hand, he contended,

Nothing so strongly impels a man to regard the interest of

his constituents as the certainty of returning to the general

mass of the eo 1e, from whence ge was taken, where he must

participate [ing their burdens.4

Even Thomas Jefferson was fearful of what elimination of the

rotation concept might bring. In a letter to Madison, he wrote: "The
second feature I dislike, and greatly dislike, is the abandonment in
every instance of the necessity of rotation in office, and most parti-
cularly in the case of the President." "Experience concurs with rea-
son," he concluded,

that the first magistrate will always be re-elected if the

Constitution permits it. He is then an officer for life.

This once observed, it becomes of so much consequence to

certain nations to have a friend or a foe at the head of our

affairs that they will interfere with money & with arms.

Moreover,

 

41Elliot, ed., Debates, III, 484-485.

520

if elections are to be attended with these disorders, the
seldomer (sic) they are renewed the better. But experience
shows that the only way to prevent disorder is to render
them uninteresting by frequent changes. An incapacity to
be elected a iscond time would have been the only effectual
preventative.

The failure to include rotation in the Constitution led
Edmund Randolph to propose it be amended to make "the president ineli-
gible after a given number of years," though he did not specify how
many.43

Allied with the rotation issue was the method of electing
the President and the length of his term. The anti-Federalists argued
that frequent elections were necessary, in addition to rotation of
office, to check the corrupt designs of rulers. As William Findley
noted: "Annual elections are abolished, and the people are not to re-
assume their rights until the expiration of two, four and six years."44
Historian Cecelia M. Kenyon observed that the anti-Federalists were
willing, by and large, to concede the difficulty of staging annual
elections given the vast distances the representatives would be forced

45

to travel. However, there were some who staunchly advocated that the

President "be chosen annually" and "serve but one year" and "be chosen

successively from the different states, changing every year."46

 

42Jefferson, Writings, Ford, ed., IV, 473.

43Ford, ed., Pamphlets, p. 275.

44Findley, "Letter," Anti-Federalists, Lewis, ed., pp. 120-

 

121.

45Kenyon, ed., The Antifederalists, p. lvi.

46"Agrippa," ssays, Ford, ed., p. 119.

521

One of the most vocal of the anti-Federalists on the length
of the President's term was William Grayson. After discussing the
method of electing the President and its inherent evils, he asked,
"Whence comes this extreme confidence, that we disregard the example
of ancient and modern nations?" He contended that "aristocracies never
invested their officers with such immense powers," nor had Rome where
"consuls were in power only two years.“ He concluded that

This quadrennial power cannot be justified by ancient history.

[and] There is hardly an instance where a republic trusted

its executive so long with much power; nor is it warranted

by modern republic, [because the] . . . delegation of power

is, in most of them, only for one year.
Moreover, he contended, when there was a "strong democratical and a
strong aristocratical branch, you may have a strong executive." How-
ever, if the first two branches are weak, "the balance will not be
preserved, if you give the executive extensive powers for so long a
time." Therefore, "As this government is organized, it would be dange-
rous to trust the President with such powers" for that length of time.47

On the whole, the actual election process was greeted with
mixed sentiment by the anti—Federalists. On the one hand, Richard
Henry Lee concluded that the election of the Vice President and Presi-
dent "seems to be properly secured."48 However, Clinton attacked the
indirect method of election, though he did not propose direct election.

He first pointed out that the section of Article II relating to the

election of the President was vague on the question of an election "in

 

47
48

Elliot, ed., Debates, II, 491.

Lee, "Letters," amphlets, Ford, ed., p. 298.

522

case of expiration of their offices, subsequent to the election which
is to set this political machine in motion." In the state constitution
of New York, he noted, it provided that "once in every four years, and
as often as these offices shall become vacant, by expiration or other-
wise, as is therein expressed, an election shall be held as follows,
&c." He concluded that "this inexplicitness perhaps may lead to an
establishment for iiie."49

Clinton then turned to the method of electing the executive
officers. He observed that

it is a maxim in republics that the representative of the
people should be of their immediate choice; but by the man-
ner in which the president is chosen, he arrives to this
office at the fourth or fifth hand, nor does the highest
vote, in the way he is elected, determine the choice, for
it is only necessary that he should be taken frgg the high-
est of five, who may have a plurality of votes.

Elbridge Gerry complained that the electoral college system
might be perverted to where the election of the President would be taken
away from the people. He wrote that

If the sovereignty of America is designed to be elective,
the circumscribing the votes to only ten electors in this
State, and the same proportion in all the others, is nearly
tantamount to the exclusion of the voice of the people in
the choice of their first magistrate.
Moreover, "It is vesting the choice solely in an aristocratic junto,
who may easily combine in each State to place at the head of the Union

the most convenient instrument for despotic sway."51

 

49"Cato," _§§gy§, Ford, ed., p. 261.
50Ibid., p. 363.

Ibid., p. 12.

51

523

William Grayson continued the argument by noting that the
election principle changes when one individual does not get a majority
of electoral votes. The device of the House of Representatives electing
the President when that happened was, he said, "founded more on accident
than any principle" he had heard of before. In either case, he was
convinced that foreign powers would interfere with the process. Addi-
tionally, with the President's power of appointment and with his pos-
sible collusion with the Senate, he "will be continued in office for
1ife."52

Overall, however, the indirect method of election did not
prove to be a major concern of the anti-Federalists as no one called
for the direct election of either the President or Senate. Rather it
was the lack of a guaranteed rotation or limit to re-eligibility that
concerned most writers who criticized the system. Even the term of
four years seemed satisfactory to most anti-Federalists as only a few
called for annual elections.

On the other hand, the President's powers came under varied
attack by the anti-Federalists. As noted, the most feared powers were
those he shared with the Senate. Allied with this was his control of
the military, especially with congressional power to raise funds for a
standing army. As the Albany Manifesto observed,

The power to raise, support, and maintain a standing army 1n
t1me gf peage [is] The bane of a republican government; by a
standing army most of the once free nations of the globe have

been reduced to bondage; and by this Britain attempted to
inforce (sic) her arbitrary measures.

 

52E1iiot, ed., Debates, III, 490-491.

 

524

Moreover, it continued, the President was empowered to "call forth the
militia to any part of the continent, without any limitation of time
or place."53
Patrick Henry argued that a standing army could be used to

"execute the execrable (sic) commands of tyranny." He contended that

If your American chief be a man of ambition and abilities,

how easy is it for him to render himself absolute! The army

is in his hands, and if he be a man of address, it will be

attached to him, and it will be the subject of long medita-

tion with him to seize the first auspicious moment to accom-

plish his design.
If America had a king, it could "prescribe the rules by which he shall
rule his people, and interpose such checks as shall prevent him from
infringing them." However, a President, "in the field, at the head of
his army, can prescribe the terms on which he shall reign as master,
so far that it will puzzle any American ever to get his neck from under
the galling yoke." Even if the nation tries to punish him he can use
the army to “beat down every opposition." Then the record indicated
that Mr. Henry "strongly and pathetically expatiated on the probability
of the President's enslaving America, and the horrid consequences that
must result."54

George Clinton characterized the President as the "general-

issimo of the nation, and, of course, he has the command and control of

the army, navy and militia." How does one protect liberty from the

abuse of this power? he asked. In this case, as with the other aspects

 

53"The Albany Manifesto," reprinted in The Antifederalists,
Kenyon, ed., pp. 361-362.

54Eiiiot, ed., Debates, III, 59-60.

525

of the executive, he concluded, that there were not sufficient checks
on a President's possible abuse of power.55
The President's veto power also came in for criticism. Most
anti-Federalists were not opposed to a veto, but rather questioned the
necessary number of each branch of the legislature needed to override
it. One delegate to the North Carolina Convention argued a hypothetical
case in which a bill passed the House of Representatives unanimously
and the Senate by a large majority, whereupon it was vetoed by the
President. If it could not get the necessary two—thirds support in
the Senate, the House would never have a chance to consider it again.
That, he said, "is giving a power to the President to overrule fifteen
members of the Senate and every member of the House of Representatives."56
Likewise, Richard Henry Lee thought the President's role in

legislation was liable to corruption. He wrote that the “power of mak-
ing any law will be in the president, eight senators, and seventeen
representatives, relative to the important objects enumerated in the
constitution." Therefore,

Where there is a small representation, a sufficient number

to carry any measure, may, with ease, be influenced by

bribes, offices and civilities; they easily form private

juntoes, and out-door meetiggs, agree on measures, and

carry them by Silent votes.

The President's power to pardon was another area the anti-

Federalists thought would be greatly abused. What they feared most

 

55"Cato," ssays, Ford, ed., p. 264.

56E11iot, ed., Debates, Iv, 214.

57Lee, "Letters," amphlets, Ford, ed., p. 300.

526

was the President's ability to pardon for treason. Mason, for example,

contended that the
President . . . has the unrestrained power of granting
pardons for treason; which may be sometimes exercised to
screen from punishment those whom he had secretly insti-
gated to commit tgg crime, and thereby prevent a discovery
of his own guilt.

Given the anti-Federalists' overwhelming belief that the
executive powers under the proposed Constitution would be used to
undermine the security of society, it only followed that they believed
that the mechanism designed to keep the executive responsible was hardly
adequate to do the job. They saw the impeachment power nullified by
the President's connection with the Senate. Samuel Spencer, for example,
noted that the Senate,

who are to advise the President, and who, in effect, are
possessed of the chief executive powers, let their conduct
be what it will, are not amenable to the public justice of
their country: if they may be impeached, there is no tri-
bunal invested with jurisdiction to try them.
Likewise, when the President is tried, the Chief Justice presides, but,
he said, "I take this to be very little more than a farce." "What
can the Senate try him for?" he asked. "For doing that which they
have advised him to do, and which,without their advice, he would not
have done," he concluded. Therefore, he doubted
that the President can ever be tried by the Senate with any
effect, or to any purpose for any misdemeanor in his office,
unless it should extend to high treason, or unless they

should wish to fix the odium of any measure on him, in
order to exculpate themselves.

 

58James Iredell, "Answers," Ibid., p. 350.

59Ei1iot, ed., Debates, IV, 117.

527

Richard Henry Lee was also doubtful that impeachment would
work. Since the process needed two-thirds of the Senators to agree
for a conviction, he concluded that

Under these circumstances the right of impeachment, in the

house, can be of but little importance; the house cannot

expect often to convict the offender; and, therefore, pro-

bably, will but seldom or never exercise the right.
Moreover, he added, given the structure of the proposed government, it
was "extremely difficult to secure the people against the fatal effects

of corruption and influence."60

Impeachment was, therefore, hardly
adequate to protect the people's liberties.

One way to make the President more responsible was to esta-
blish an executive council. On that point most anti-Federalists could
agree. George Clinton observed that though the President was assisted

during the sitting of the legislature . . . he is yet without
a constitutional council in their recess; he will therefore
be unsupported by proper information and advice, and will
generally be directed by minions and favorites, or a council

of state will grow out of the principal officers of the
great departments,

which, he said, was the "most dangerous council in a free country."61
George Mason was even more emphatic about his fear of an
executive without a council. He contended that such a situation was
"unknown in any safe and regular government." If a council had been
created with the same rotation in office as the Senate, with one repre-

sentative from each state, then, he claimed, the President “would always

have had safe and proper information and advice." Moreover,

 

60
61

Lee, "Letters," amphlets, Ford, ed., p. 300.
"Cato," ssays, Ford, ed., p. 262.

528

From this fatal defect of a constitutional council, has arisen
the improper power of the Senate, in the appointment of the
public officers, and alarming dependence and connexion (sic)
between that branch of the legislature and the supreme execu-
tive.
It also gave rise to the Vice President,
who, for want of other employment, is made President of the
Senate; thereby dangerously blending the executive and legis-
lative powers; besides always giving to some one of the Etates
an unnecessary and unjust pre-eminence over the others.6
The anti-Federalists did not propose to make the council
representative of the people, nor were they clear on the method of its
selection, which the Federalists were quick to seize on in criticizing
the proposal. Its major function was to check the executive and not
apparently to make him more responsive to the popular national will.63
In assessing the criticism of the anti-Federalists, what
conclusions can be drawn about their conception of the presidency under
the Constitution? Most argued that it possessed tremendous power with-
out adequate responsibility. If it was not a monarchy to begin with,
it would soon become one once the Constitution went into effect, they
concluded. Moreover, structural deficiencies created an improper separa-
tion of powers between the President and Senate, which would result in
an unholy "marriage" between the two for their mutual aggrandizement

to the detriment of liberty. The President could, by use of the mili-

tary, while protecting himself from impeachment by bribing the Senate,

 

62George Mason, "Objections," amphlets, Ford, ed., p. 330.

63For a full discussion of this, see Kenyon, ed., The Anti-
federalists, p. cii.

 

529

create a monarchy or dictatorship, and there was no way the people
could prevent it. Therefore, they proposed to introduce compulsory
rotation in office and add a council to perform the advice and consent
functions of the Senate as a way of checking the executive. As his-
torian Cecelia Kenyon concluded, the fear of the executive came not
from the fact that it was unrepresentative of the people, "but from
doubts about the accountability of the occupant." The anti-Federalists
did not view the executive as the "symbol and focus of national senti-
ment," run“ did many of the delegates at the Constitutional Convention.
Rather, the anti-Federalists' overriding concern "was to prevent an
abuse of power," not to make the President "a great and responsive
instrument of the national will." Underlying that was the anti-
Federalist belief that it was impossible to create "a Single republican

64

government operation over the entire nation." This also helps explain

why they painted the possible presidential abuses of power in such
vivid terms.

The author of "Philadelphiensis" captured the spirit and
essence of the anti-Federalist attitude toward the presidency in his
final essay. He said,

the president is a King to all intents and purposes, and at
the same time one of the most dangerous kind too--an elective
King, the commander in chief of a standing army, etc, and to
these add, that he has a negative over the proceedings of
both branches of the legislature: and to complete his uncon-

trouled sway, he is neither restrained nor assisted by a
priry council, which is a novelty in government. I challenge

 

 

64Ibid.

——_

530

the politicians of the whole continggt to find in any period
of history a monarch more absolute.

Not content just to state his objections, the author flam-
boyantly exhorted his readers to remedy the situation by demanding a
second constitutional convention. "Who," he asked,

is so base as not to burn with resentment against the
conspirators, who have dared to establish such a tyrant
over his life, his liberty and property? Is the flame of
liberty so entirely extinguished in the American breast as
not to be kindled again? No; you mistaken despots, do not
let such a preposterous thought madden you into persever-
ance, lest your persons fall sacrifice to the resentment
of an injured country.

He then called for a second convention to frame a government "fitted
to the pure principles of the Revolution" while possessing "ample

gflgrgy and respectability among the nations of the earth.n66

 

Turning to the Federalists, what answers did they offer the
critics of the Constitution and what conception of the presidency did
they hold? By and large, the Federalists operated from a different
set of basic assumptions than the anti-Federalists. As mentioned
earlier, the Federalists believed that politics could be discussed
rationally and if they applied the principles derived from historical
experience, they could construct a government which would protect
liberty yet possess the requisite energy necessary to accomplish the
ends of government. Like the anti-Federalists, they mistrusted people

in power, though to a degree much less than most anti-Federalists.

 

65"Philadelphiensis,” reprinted in The Antifederalists, Ken-
yon, ed., p. 87.

66Ibid.

 

531

Given adequate checks, significant power could be concentrated or
lodged in the hands of those who held office, they argued. In fact,
the failure to grant sufficient power to the government in general was
just as unwise as granting it too much. George Washington neatly sum-
marized the Federalist sentiment on this point when he wrote,

No man is a warmer advocate for proper restraints and whole-

some checks in every department than I am; but I have never

yet been able to discover the propriety of placing it abso-

lutely out of the power of men to render essential services,

because a possibility remains of their doing ill.

The Federalists contended that the basic task of the Consti-
tutional Convention was to create a government grounded on the citizens
directly and not the states. Once this had been decided, the Convention
was faced with four tasks, Madison explained. The first was to "unite
a proper energy in the Executive, and a proper stability in the Legis-
lative departments, with the essential characters (sic) of Republican
Government." Secondly, it had to

draw a line of demarkation which would give to the General

Government every power requisite for general purposes, and

leave to the States every power which might be most bene-

ficially administered by them.
Thirdly, it had to "provide for the different interests of different
parts of the Union." And finally, it had "to adjust the clashing pre-
tensions of the large and small States."68

Madison characterized the construction of the executive as

being "peculiarly embarrassing" as he reiterated the steps of its

 

67Washington, Writings, Fitzpatrick, ed., XXIX, 312.

68Madison, Writings, Hunt, ed., V, 19-20.

532

formation in a letter to Thomas Jefferson.69 However, once the final
construction was agreed on, the Federalists were satisfied with its
basic outline. It now was their task to explain to the citizens how
the office was consistent with republican principles and the established
traditions of American executive theory.

The most important writings to appear during the ratification

debate were the Federalist. Papers, written by Hamilton, Madison, and

 

Jay. Presented as an answer to the critics of the Constitution, these
essays expounded the theory and assumptions upon which that document
was based. Before examining the Federalist thinking about the execu-
tive, it is necessary to identify several major assumptions which serve
as a guide to understanding the Federalists' interpretation of the
executive clauses in the Constitution.

As noted before, the Federalists held a much different opin-
ion on the basic nature of man than did the anti-Federalists. The
latter viewed people in power as not to be trusted and sought ways to
check and retard their ability to do evil in as explicit a manner as
could be achieved in a written constitution. The Federalists, on the
other hand, recognized the potential for evil behavior, but also saw
"other qualities in human nature which justify a certain portion of
esteem and confidence."70 Hamilton, for example, wrote that the

"supposition of universal venality in human nature is little less an

 

69Ibid., p. 20.

70The Federalist Papers (New York, 1981): Federalists 55’

 

 

346.

 

If. an s) ll....1l. .

533

error . . . than the supposition of universal rectitude." He sought
to view "human nature as it is, without flattering its virtues or
exaggerating its vices."71
Since humans have the potential of doing both good and evil,
it was necessary to construct a government which offered incentives for
the good and check and retard the ability to do evil. Hamilton con-
cluded that "the desire of reward is one of the strongest incentives
of human conduct" and if "the best security for the fidelity of mankind
is to make their interest coincide with their duty," then "the love of
fame, the ruling passion of the noblest minds . . . would prompt a man
to plan and undertake extensive and arduous enterprises for the public

benefit."72

Thus, the well-constructed government provides both the
incentives and the checks in the interest of public security.

A second theme running throughout the Federalist Papers is
the use of history. As noted before, the anti-Federalists cited the
principles of Montesquieu, Locke, and others and then sought to esta-
blish the constitutional elements to secure them. The Federalists
looked to history and inductively drew their conclusions on what had
worked or not worked and then tried to fashion the constitutional lan-
guage to carry out the desired objective. The constitutional experience

of the states was by far the most cited source of experience by the

writers of the Federalists. As discussed later, Hamilton, time and

 

7'Federaiist 76, 495-496.

 

72Federalist 72, 437.

 

534

again, showed how practically all the provisions of the executive
power under the Constitution were derived from the state experience.
Madison set the stage for Hamilton's analysis of the execu—
tive by combining the above two assumptions in his discussion of the
separation of powers concept. He noted that the state constitutions
"carry the strong marks of the haste, and still stronger [mark] of the
inexperience, under which they were framed." In some instances, he
said, they violated the principle by "too great a mixture, and even an
actual consolidation of the different powers" in some states. While
it would be unwise to totally separate the three branches, it also
would be unwise to improperly blend them. However, the Constitution,
he said, properly blended and balanced them in such a manner as to
prevent one branch from usurping the others. No one, he claimed, will
deny that "power is of an encroaching nature and that it ought to be
effectually restrained from passing the limits assigned to it." That
was not to be accomplished by mere "parchment barriers" as "relied
on by the compliers of most of the American constitutions." Moreover,
"experience assures us that . . . some more adequate defense is indis-
pensably necessary for the more feeble against the most powerful mem-
bers of the government." This was especially true of the decade prior
to the Constitutional Convention where "the legislative department is
everywhere extending the sphere of its activity and drawing all power

into its impetuous vortex."73

 

73Federa1ist 47, 307.

 

535

Madison then summed up the constitutional history of America
during the Revolutionary period. "A respect for the truth," he said,
"obliges us to remark" that the Revolutionary constitution makers

seem never for a moment to have turned their eyes from the
danger, to liberty, from the overgrown and all-grasping pre-
rogative of an hereditary magistrate, supported and fortified
by an hereditary branch of the legislative authority.
They have overlooked ”the danger from legislative usurpations, which,
by assembling all power in the same hands, must lead to the same tyranny
as is threatened by executive usurpations." On the other hand, he
said, in a
representative republic where the executive magistracy is
carefully limited, both in the extent and the duration of
its power; and where the legislative is exercised by an
assembly, which is inspired by a supposed influence over
the people with an intrepid confidence in its own strength;
which is sufficiently numerous to feel all the passions which
actuate a multitude, yet not so numerous as to be incapable
of pursuing the objects of its passions by means which reason
prescribes; it is against the enterprising ambition of this
department that the people ought t9 indulge all their jealousy
and exhaust all their precautions. 4

Madison then went on to document the abuses of the legisla-
tive power in the states. However, the legislatures were not the only
branch to exceed their proper boundaries. He cited the breaches by the
executive branch in Pennsylvania, but cautioned that the criticism must
be tempered by three facts. First, "a great proportion of the instances
were either immediately produced by the necessities of the war, or

recommended by Congress or the commander-in-chief;" and secondly,

 

74Federalist 48, 308-309.

 

536

in most of the other instances, they conformed either to the
declared or the known sentiments of the legislative depart-
ment; third, the executive department of Pennsylvania is
distinguished from that of the other States by the number
of members composing it. In this respect, it has as much
affinity to a legislative assembly as to an executive coun-
cil. And being at once exempt from the restraint of an
individual responsibility for the acts of the body, and
deriving confidence from mutual example and joint influence,
unauthorized measures would, of course, be more freely
hazarded, than were the executive department is administered
by a Single hand, or by a few hands.

The principle he drew from all of this was
that a mere demarcation on parchment of the constitutional
limits of the several departments is not a sufficient guard
against those encroachments which lead to a tyrannical con-
centration of all the powers of government in the same hands.
Not only had Madison identified that dilemma, but he had summarized the
essential problem of the state constitutions; that is, the imbalance of
power between the branches.75
In the fifty-first Federalist, Madison outlined the principle
remedy to prevent one branch from encroaching on another. He said that
the great security against a gradual concentration of the
several powers in the same department consists in giving
to those who administer each department the necessary con-
stitutional means and personal motives to resist encroach-
ments of the others.
Then in a key statement, he said: "The provision for defense must in
this, as in all other cases, be made commensurate to the danger of
attack." This meant that the "interests of the man must be connected
with the constitutional rights of the place." This simply reflected

human nature, he said, for

 

75Ibid., 312-313.

537

what is government itself but the greatest of all reflections

on human nature? If men were angels, no government would be

necessary. If angels were to govern men, neither external

nor internal controls on government would be necessary.
When a society frames a government "which is to be administered by men
over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to
control itself." For that, he concluded, "a dependence on the people
is, no doubt, the primary control on the government; but experience
has taught mankind the necessity of auxiliary precautions."76

When constructing the frame of government, Madison contended

it was impossible to give each branch "equal power of self-defense,"
since in republican governments I'the legislative authority necessarily
predominates." Therefore, the legislature must be divided I'into dif-
ferent branches'I and made as little connected with each other as their
separate modes of elections and functions will allow. Since the weight
of the legislature requires that it be divided for security, the weak-

ness of the executive must "be fortified," he said.77

Thus, Madison
argued that a strong executive was an integral and necessary part of
any well-balanced constitution which sought to maximize the protection
of liberty.

It fell to Hamilton to undertake the major defense of the

presidency in the Federalist Papers. In number sixty-seven, he at-

 

tacked the anti-Federalist characterization of the presidency as a

 

76Federa1ist 51, 321-322.

77Ibid., p. 322.

538

monarchy. He accused them of ”Calculating upon the aversion of the
people to monarchy." They tried "to enlist all their jealousies and
apprehensions in opposition to the intended President of the United
States; not merely as the embryo, but as the full-grown progeny of
that detested parent." He then compared the presidency to the office
of governor in New York saying that, "the authorities of a magistrate,
in few instances greater, in some instances less, than those of a gov-
ernor of New York, have been magnified into more than royal preroga-
tives." These remarks were aimed specifically at New York Governor
George Clinton, the anti-Federalist who was writing under the name of
Cato, and who was especially critical of the executive power in the
Constitution. Hamilton cited how Cato and others had, in his opinion,
deliberately misrepresented the authority to fill Senate vacancies
between elections, in an effort to Show how the President could control
the Senate. Hamilton quoted the relevant clauses to show that the
executive power referred to in the Constitution regarding this power
was the state executives, not the President. He then said that Clin-
ton's essays were examples of the "unwarrantable arts which are prac-
ticed to prevent a fair and impartial judgment of the real merits of
the Constitution."78
Hamilton next examined the election procedure to show how
its democratic nature operated. He cited the fact that there had been
little criticism of the electoral college concept by the opponents of

the Constitution, and agreed that while it was not perfect, it was "at

 

78Federaiist 67, 407-411.

 

539

least excellent." "It was desirable," he noted, "that the sense of
the people Should operate in the choice of the person to whom so impor-
tant a trust was to be confided." Therefore, it was wise not to trust
such a selection to any pre-existing body of men, but rather, "to men
chosen by the people for the special purpose" of electing the President.
This would reduce the risk of the executive being able to tamper with
the voting procedure since all votes would be cast on one day over a
wide geographic area. The other reason this was a desirable method was
that it made the executive independent of the legislative branch which
made him dependent on the people for his re-election. In short, "the
electoral process affords a moral certainty that the office of President
will never fall to the lot of any man who is not in an eminent degree
endowed with the requisite qualifications." While "talents for low
intrigue, and the little arts of popularity, may alone suffice to ele-
vate a man to the first honors in a single State,“ it will take "other
talents, and a different kind of merit to establish him in the esteem
and confidence of the whole Union."79
Hamilton used the next eight essays to develop the Federalist
theory of leadership in a democratic society, a task ignored by the
anti-Federalists. In this essay, he briefly compared the major powers
of the President with those of the British monarch and the New York
governor to show that the President was in no way comparable to the

monarchy and clearly in line with the state constitutional experience.

 

79Federa1ist 68, 412-414.

 

540

The first attribute of republican executives was unity, he
said. However, this was scarcely a point "upon which any comparison
can be grounded." The President's four-year term with unlimited re-
eligibility was consistent with the state experience given the fact
that he thought it was much easier to establish "a dangerous influence
in a single State than for establishing a like influence throughout the .
United States." Therefore, he concluded, the duration of four years
was "less to be dreaded in that office, than a duration of three years
for a corresponding office" in the states. Moreover, the President
was liable to be impeached, tried and upon conviction, removed from
office and made subject to the "prosecution and punishment in the
ordinary course of law.‘I Unlike the British monarch, who was not amen-
able to any constitutional body for his actions and could not be
punished "without involving the crisis of a national revolution," the
President was subject to all the safeguards contained in the state
constitutions. Moreover,

in this delicate and important circumstance of personal
responsibility, the President of Confederated America would
stand upon no better ground than a governor of New York,
and upon ggrse ground than the governors of Maryland and
Delaware.

The President's veto power was well within the republican
principles established in the states. Even though the British monarchy

had not used his absolute veto power over acts of Parliament, it

does affect the reality of its existence and is to be
ascribed wholly to the crown's having found the means of

 

80Federa1ist 69, 415-416.

 

541

substituting influence to authority . . . to the necessity

of exerting a prerogative which could seldom be exerted

without hazarding some degree of national agitation.
Therefore, the President's qualified negative cannot be compared with
the monarch's, but "tallies exactly with the revisionary authority of
the council of revision of . . . New York of which the governor is a
constituent part." However, the President's power exceeds

that of the governor of New York, because the former would

possess, singly, what the latter shares with the chancellor

and judges; but it would be precisely the same with that of

the governor of Massachusetts, whose constitution, as to this

article, seems to hay? been the original from which the con-

vention have copied.

Militarily, the President had less power than the monarch or
governor of New York, Hamilton contended. Even though he has command
of the state militias when called into actual service of the United
States, it is only "occasional command of such part of the militia of
nation as by legislative provision may be called“ in military service.
Therefore, the President's authority was "inferior to that of either
the monarch or the governor." Moreover, while the President Was to be
commander-in-chief of the army and navy, a power "nominally the same"
as that of the monarch, this authority was actually less than the
monarch's, since it means that the President is "first general and
admiral of the Confederacy." The monarch's authority extended to both

declaring war and raising fleets and armies, powers which are confined

to the legislative branch in America. Furthermore,

 

81Ibi

Q.

., p. 417.

542

the state constitutions declare their governors to be

commander-in-chief, as well of the army as navy; and it may

well be a question whether those of New Hampshire and

. Massachusetts, in particular, do not, in this instance,
confer larger powers upon their respective governors than
could be claimed by a President of the United States.82
The power of impeachment vested in the President was also
well within the limits set by the state constitutions. In fact, the
governor of New York possessed the power to pardon all cases except
treason and murder, but did have the power to pardon impeachments, a
power denied the President. Hamilton asked, "is not the power of the
governor, in this article, on a calculation of political consequences,
greater than that of the President?" If the New York governor led a
conspiracy, he had the power to "insure his accomplices and adherents
an entire impunity" until it had "ripened into actual hostility." The
President, on the other hand, "though he may even pardon treason, when
prosecuted in the ordinary course of law, could shelter no offender,
in any degree, from the effects of impeachment and conviction."83
Finally, the President is limited to adjourning the legisla-

ture only in cases of disagreement between the two houses over the time
of their adjournment. The British monarch not only can prorogue but
even dissolve the Parliament. Hamilton then pointed to the power of
the New York governor to "prorogue the legislature . . . for a limited
time; a power which, in certain situations, may be employed to very

important purposes."84

 

82Ibid., pp. 417-418.

83 bid., pp. 418-419.

H

 

84Ibid., p. 420.

543

The other powers listed in Article II of the Constitution
also were well within the state experience, except the authority to
conclude treaties. While the British monarchy could conclude treaties
on his own, the American President can only do so with the concurrence
of two-thirds of the Senate. Hamilton admitted that "in this instance
the power of the federal executive would exceed that of any State
executive." This was explained as arising "naturally from the sovereign
power which relates to treaties," and if the Confederacy were dissolved,
Hamilton noted, "it would become a question whether the executives of
the several States were not solely invested with that delicate and
important prerogative."85
On the question of the President's authority to receive
ambassadors, Hamilton thought this "more a matter of dignity than of
authority." He predicted that it would be
a circumstance which will be without consequence in the
administration of government; and it was more convenient that
it should be arranged in this manner than that there should
be a necessity of convening the legislature, or one of its
branches, upon the arrival of a foreign minister, thoughggt
were merely to take the place of a departed predecessor.
Likewise, the President's power to nominate, and with the
advice and consent of the Senate, make appointments to major offices
was also limited. When compared to the power and authority vested in

the British monarch in this area, the President's grant was mea-

ger indeed. The monarch was "emphatically and truly styled the

 

85Ibid.

86Ibid.

544

fountain of honor," since he could not only appoint, but create
offices, titles, and "church preferments." Even when compared to the
governor of New York, the President possessed less authority. In that
state the power of appointment was lodged in a council composed of the
governor and four members of the Senate, chosen by the assembly. Hamil-
ton noted that the New York governor claimed, and "has frequently
exercised, the right of nomination," and was "entitled to a casting
vote in the appointment." He concluded that if the governor "has the
right of nominating, his authority is in this respect equal to that of
the President, and exceeds it in the article of the casting vote."87
Hamilton summarized his comparison of the President's powers
with those of the British monarch and the governor of New York by con-
cluding that, except for the treaty-making provisions possessed by the
President, ”it would be difficult to determine whether that magistrate
would, in the aggregate, possess more or less power than the governor
of New York." Moreover, "it appears yet more unequivocally that there
is no pretense for the parallel which has been attempted him and the
king of Great Britain." He then reiterated the dissimilarities between'
the monarch and President and asked, "What answer shall we give to
those who would persuade us that things so unlike resemble each other?"
He answered it by saying,
The same that ought to be given to those who tell us that a
government, the whole power of which would be in the hands

of the elective and periodical servants of the people, is an
aristocracy, a monarchy, and a despotism.

 

87Ibid., p. 421.

88Ibid., pp. 422-423.

545

The second element in the Federalist concept of leadership
in a representative government was the necessity of a vigorous execu-
tive. In essay number seventy, Hamilton answered the fears of those
who thought "that a vigorous executive is inconsistent with the genius
of republican government." His reply was that
Energy in the executive is a leading character in the defini-
tion of good government. It is essential to the protection
of the community against foreign attacks; it is not less
essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of
justice; to the security of liberty against the enterprises
and assaults of ambition, of faction, and of anarchy.

In short, he concluded,
A feeble executive implies a feeble execution of the govern-
ment. A feeble execution is but another phrase for a bad
execution; and a government ill-executed, whatever8§t may be
in theory, must be, in practice, a bad government.

Next Hamilton discussed the ingredients which comprise an
energetic executive. They were "unity, duration, an adequate provision
for its support; and competent powers." To make the executive safe
"in the republican sense," he must have "a due dependence on the peo-

90

ple, and a due responsibility." In those few words, Hamilton had

summarized the results of the previous two centuries' experience Ameri-
cans had had in evolving the essential elements necessary for a model

of a republican executive.

It was a fact, Hamilton noted, that "those politicians and

statesmen who have been the most celebrated for the soundness of their

 

89Federalist 70, 423.

90Ibid., p. 424.

546

principles and for the justness of their views have declared in favor
of a single executive and a numerous legislature." Unity in the execu-
tive was essential for energy since

decision, activity, secrecy, and dispatch will generally

characterize the proceedings of one man in a much more

eminent degree than the proceedings of any greater number;

and in proportion as the number is increased, these quali-

ties will be diminished.
Unity could be destroyed, he said, by making two magistrates of equal
power, as in Rome, or making a single magistrate, in whole or in part,
subject "to the controul and cooperation of others, in the capacity of
counselors to him." He observed that of all the states only New York
and New Jersey were ones "which have intrusted the executive authority

91 He then illustrated the necessity of unity

wholly to single men."
in the executive by citing historical examples where a plural executive
led to problems.

Above all, the most significant objection to a plural execu-
tive rested in the inability to make it responsible, because of the
tendency of groups "to conceal faults and destroy responsibility."
Hamilton outlined two kinds of responsibility, "--to censure and to
punish." The most important was the first, "especially in an elective
office," since individuals in public trust "will much oftener act in
such a manner as to render them unworthy of being any longer trusted,
than in such a manner as to make them obnoxious to legal punishment."

After citing a number of historical examples, he concluded that eXecu-

tive plurality "tends to deprive the people of the two greatest

 

91Ibid.

547

securities they can have for the faithful exercise of any delegated
power." First, the "restraints of public opinion, which lose their
efficacy, as well on account of the division of the censure attendant
on bad measures among a number as on account of the uncertainty on whom
it ought to fall"; and second, "the opportunity of discovering with
facility and clearness, the misconduct of the persons they trust, in
order either to their removal from office or to their actual punishment
in cases which admit of it."92
In answer to those anti-Federalists who wanted a council
added to the executive branch to make it more responsible, Hamilton
cited the historical reasons behind the need for a council. In the
British model of government, the monarch was "a perpetual magistrate"
and his person sacred, and therefore, he was not considered accountable
for his administration, "for the sake of public peace." A council was
therefore necessary which was responsible to the nation for the advice
they gave to the king, as a means of guaranteeing some responsibility
in the executive branch, even though the monarch was free to ignore
their advice. The American state constitutional experience, from which
much of the demand for a council is derived, was based on the maxim
"of republican jealousy which considers power as safer in the hands of
a number of men than of a Single man." He then cited DeLolme'S maxim
that "'the executive power is more easily confined when it is ONE.'"
Therefore, he concluded, "it is far more safe there should be a single

object for the jealousy and watchfulness of the people; and, in a word,

 

92Ibid., 427-429.

548

that all multiplication of the executive is rather dangerous than
friendly to liberty." In closing his essay, Hamilton noted that

prior to the appearance of the Constitution I rarely met with
an intelligent man from any of the States, who did not admit,
as the result of experience, that UNITY of the executive of
this State [New York] was of She best of the distinguishing
feature of our Constitution.9

In his next essay, Federalist number seventy-one, Hamilton

 

examined the problem of duration in office as the second essential
ingredient to energy in the executive office. The question of duration
consists of two objects: "to the personal firmness of the executive
magistrate in the employment of his constitutional power, and to the
stability of the system of administration which may have been adopted
under his auspices." With respect to the first, "it must be evident
that the longer the duration in office, the greater will be the proba-
bility of obtaining so important an advantage." He referred to "the
general principle of human nature" which contends that a man will be
interested in "whatever he possess, in proportion to the firmness or
precariousness of the tenure by which he holds it." The inference he
drew was that

the man acting in the capacity of chief magistrate, under a

consciousness that in a very short time he mgst_lay down

his office, will be apt to feel himself too little interested

in it to hazard any material censure or perplexity from the

independent exertion of his powers.
Moreover, he continued, the republican principle demands that the

deliberate sense of the community should govern the conduct of those

to whom they entrust the management of their affairs; but it does not

 

93Ibid., 429-431.

549

require an unqualified compliance to every sudden breeze of passion,
or to every transient impulse which the people may receive from the
arts of men, who flatter their prejudices to betray their interest.
While the people "commonly inteng_the PUBLIC GOOD," they "know from
experience that they sometimes err." Therefore, the President must be
given adequate duration in office since "it is the duty" of the persons
whom the people have "appointed to be the guardians" of their interests
"to withstand the temporary delusion in order to give them time and
opportunity for more cool and sedate reflection."94
A second consideration developed by Hamilton on the question
of duration was that of reinforcing the doctrine of the separation of
powers. "To what purpose separate the executive or the judiciary from
the legislative, if both the executive or the judiciary are so consti-
tuted as to be at the absolute devotion of the legislative?" he asked.
It was one thing to "subordinate to the laws, and another to be depen-
dent on the legislative body," he said. "The first comports with, the
last violates, the fundamental principles of good government; and,
whatever may be the forms of the Constitution, unites all power in the
same hands." He then went on to reiterate a theme repeated often in
the Federalist, ‘that of the “tendency of the legislative authority to
absorb every other" branch of the government. This was especially
true "in governments purely republican” in which "this tendency is

almost irresistable." He noted that

 

94Federa1ist 71, 431-432.

qr?“ 7837.71

550

the representatives of the people, in a popular assembly, seem

sometimes to fancy that they are the people themselves, and

betray strong symtoms of impatience and disgust at the least

sign of opposition from any other quarter; as if the exercise

of its rights, by either the executive or judiciary, were a

breach of their privilege and an outrage to their dignity.
The actions of the legislative branch were, at times, he said, "such
as to make it very difficult for the other members of the government
to maintain the balance of the Constitution."95

Though a term of four years may not be the final answer in

aiding the executive to check the ambitions of the legislative branch,
it appeared to satisfy all the basic requirements attendant to a repub-
lican executive, Hamilton contended. On the one hand,

a duration of four years will contribute to the firmness of

the executive in a sufficient degree to render it a very

valuable ingredient in the composition, so, on the other,
it is not enough to justify any alarm for the public liberty,

he concluded.96

Federalist essay number seventy-two was concerned with the
question of re-eligibility. Hamilton begins by describing the nature
of the executive function in government. In the broadest sense, the
administration of government comprehends "all the operations of the
body politic, whether legislative, executive, or judiciary." However,
in "its most precise Significance" the administration of government

”is limited to executive details, and fails peculiarly within the

province of the executive department.“ The executive is charged with

 

95Ibid., p. 433.

96Federaiist 72, 435.

 

551

the actual conduct of foreign negotiations, the preparatory

plans of finance, the application and disbursement of the

public moneys in conformity to the general appropriations of

the legislature, the arrangement of the army and navy, the

direction of the operations of war--these, and other matters

of a like nature, constitute what seems to be most properly

understood by the administration of government.
Since most of these duties will be handled by the President's subordin-
ates, subject to his supervision, it was evident to Hamilton that there
was a direct "connection" between the duration of the executive magis-
trate in office and the stability of the system of administration.97

Hamilton illustrated the need for executive re-eligibility

by citing five problems attendant to limiting the executive eligibility
to a fixed number of years. The first was that "exclusion would be a
diminution of the induements to good behavior," whereby the office-
holder is deprived of the hope of another term to spark his fidelity
to the public good. The second problem a limited re-eligibility brings
was that an avaricious man bent on maximizing his use of the office for
personal gain would be stimulated to increase his efforts knowing that
he would possess the office and its advantages for only a Short time.
A third problem would be "depriving the community of the advantage
of the experience gained by the Chief Magistrate in the exercise of
his office," and why deprive the community of good leadership just
because the leader has served the maximum number of years allowed by
the law? The fourth reason against exclusion was that it would banish

"men from stations in which, in certain emergencies of the State, their

presence might be of the greatest moment to the public interest or

 

97Ibid.. pp. 435-436.

552

safety." Lastly, limiting re-eligibility "would operate as a
constitutional interdiction of stability in the administration," by
"necessitating a change of men, in the first office of the nation,"
which would "necessitate a mutability of measures," because it was not.
to be expected that if the men vary the measures will remain uniform.
To counterbalance these problems, unlimited re-eligibility would first
give greater independence to the executive, and secondly, greatly
increase the security of the people, who have the possibility of per-
petuating good men in office "by the voluntary suffrages of the com-
munity exercising a constitutional privilege."98
The next Federalist essay considered the necessity of ade-
quate support for the executive to maintain his independence. Citing
the often proved maxim in American colonial history that "in the main
it will be found that a power over a man's support is a power over his
Will." Hamilton defended the Constitution's granting of a fixed salary.
Moreover, the President was not at liberty to accept any other emolu-
ments not provided by law so that he has "no pecuniary inducement to
renounce or desert the independence intended for him by the Constitu-
tion."99
Hamilton spent the remainder of that essay on the last requi-
site necessary for energy in the executive office; that is, that the

President possess competent powers. He cited the veto, whose function

was to first protect the executive from legislative encroachment and

 

98Ibid., p. 440.

 

99Federa1ist 73, 442.

 

 

553

secondly to ”increase the chances in favor of the community against
the passing of bad laws, through haste, inadvertence, or design.“
Hamilton thought the executive would use the veto sparingly citing the
lack of the British monarch's use of his veto. He argued that

if a magistrate so powerful and so well fortified as a British

monarch would have scruples about the exercise of the . . .

veto, how much greater caution may be reasonably expected in

a President of the United States, clothed for the short period

of four years with the executive authority of a government

wholly and purely republican?
The Constitutional Convention, he pointed out, sought to pursue

a mean in this business, which will both facilitate the exer-

cise of the power vested in this respect in the executive

magistrate, and make its efficacy to depend on the sense of

a considerable part of the legislative body.
Thereby they gave two-thirds of the legislature the power to override
the President's veto. This figure was adopted because it was "to be
hoped that it will not often happen that improper views will govern so
large a proportion as two-thirds of both branches of the legislature
at the same time."100

In the next essay, Hamilton examines the military, admini-

strative, and pardoning powers of the President. The commander-in-
chief was necessary, he said, since military matters require that power
be concentrated in the hands of a single individual, because the
"direction of war implies the direction of the common strength; and
the power of directing and employing the common strength forms a usual

and essential part in the definition of the executive authority." With

respect to the constitutional requirement that department heads be

 

1°°Ibid., pp. 442-446.

554

required to issue written reports to the President upon demand,
Hamilton thought this "a mere redundancy in the plan, as the right for
which it provides would result of itself from the office." He noted
that the pardoning power was only objected to, by and large, in the
area of treason. He contended that it was given to the President
because

in seasons of insurrection or rebellion, there are often

critical moments when a well-timed offer of pardon to the

insurgents or rebels may restore the tranquility of the

commonwealth; and which, if suffered to pass ugamproved,

it may never be possible afterwards to recall.

The treaty-making power was the subject of the seventy-fifth
Federalist paper. Hamilton declared that this was one of the "best
digested and most unexceptional parts of the" Constitution. The anti-
Federalists had criticized it for an improper mixture of the executive
and legislative powers. However, Hamilton noted treaty—making does not
fall exclusively under either the executive or legislative purview,
Since the function of the legislature was to enact laws and the execu-
tive to execute them. Treaties, he said, are

CONTRACTS with foreign nations which have the force of law,
but derive it from the obligations of good faith. They are
not rules prescribed by the sovereign to the subject, but
agreements between sovereign and sovereign.
In short, treaty-making forms a "distinct department." On the one Side,
the executive is best able to manage foreign affairs, "while the vast

importance of the trust and the operation of treaties as laws plead

strongly for the participation of the whole or a portion of the

 

101Federalist 74, 447-448.

 

555

legislative body in the office of making them.". Therefore, it was
clear that "the joint possession of the power in question by the Presi-
dent and Senate, would afford a greater prospect of security than the
separate possession of it by either of them." In fact, he said, when
all the factors are considered,

we Shall not hesitate to infer that the people of America

would have greater security against an improper use of the

power of making treaties, under the new Sgnstitution, than

they now enjoy under the Confederation.1

John Jay had covered many of the same points in the sixty-

fourth Federalist concerning the treaty-making powers. Like Hamilton,

 

he stressed the need for two separate steps in the formation of treaties.
The executive offered "that perfect secrecy and immediate dispatch"
that were necessary to the negotiation of a treaty and the conduct of
foreign affairs, while at the same time he had to "act by the advice
and consent of the Senate." This allowed him "to manage the business
of intelligence in such a manner as prudence may suggest." Moreover,
"should any circumstance occur which requires the advice and consent
of the Senate, he may at any time convene them," he said. In Short,
"the Constitution provides that our negotiations for treaties shall
have every advantage which can be derived from talents, information,
integrity, and deliberate investigations," on the one hand, "and from

secrecy and dispatch on the other."103

 

102Federalist 75, 451-452.

Federalist 64, 392-393.

 

103

 

556

Jay also pointed out the Constitutional Convention took
pains to assure that the treaty-making power "will be exercised by men
the best qualified for the purpose, and in the manner most conducive
to the public good." The selection of the Senate by the state legis-
latures was designed to produce the best from each state, as was the
electoral college designed to produce the most qualified individual
for President. Since these two institutions were to be directed by
"those men only who have become the most distinguished by their abili-
ties and virtue, and in whom the people perceive just grounds for
confidence," the treaty-making power was guaranteed to be in the hands
of those best able to exercise it. Moreover, he said, the Constitution
"manifests very particular attention to this object" since it excludes
persons under thirty from sitting in the Senate and persons under
thirty-five from becoming President. In the case of the latter, “it
confines the electors to men of whom the people have had time to form
a judgment," and renders them less liable "to be deceived by those
brilliant appearances of genius and patriotism" which sometimes appear,
"like transient meteors," to mislead the people. In Short, a President
and Senate so chosen "will always be of the number of those who best
understand our national interests, whether considered in relation to
the several states or to foreign nations," and who "are best able to
promote those interests" by their reputation and integrity. Therefore,
he concluded, "with such men the power of making treaties may be

safely lodged."104

 

1°4Ibid.. pp. 390-391.

557

In the seventy-sixth Federalist, Hamilton examined the
appointing power. He cited the maxim that "'the true test of a good
government is its aptitude and tendency to produce a good administra-
tion.'" If this were the case, he said, then the clause empowering
the President to nominate men to office, with the advice and consent
of the Senate, must "be entitled to particular commendation." Hamil-
ton premised his argument on the belief that I'one man of discernment
is better fitted to analyze and estimate the peculiar qualities adapted
to particular offices than a body of men of equal or perhaps even of
superior discernment." Moreover, he said, "the sole and undivided
responsibility of one man will naturally beget a livelier sense of
duty and a more exact regard to reputation." Requiring Senate approval
of nominees provides "an excellent check upon a spirit of favoritism
in the President," while retarding greatly "the appointment of unfit
charactersihtmistate prejudice, from family connection, from personal
attachment, or from a view to popularity." Finally, the Senate's
involvement "would be an efficacious source of stability in the admini-
stration" of the nation.105

Hamilton answered those who argued that the President might
corrupt the Senate by pointing to human nature. He said that

A man disposed to view human nature as it is, without either
flattering its virtues or exaggerating its vices, will see

sufficient ground of confidence in the probity of the Senate
to rest satisfied, not only that it will be impracticable to

the executive to corrupt or seduce a majority of its members,
but that the necessity of its cooperation in the business of

 

105Federaiist 76, 455-458.

 

 

558
:ppointments will be a conSiderable 138 salutory restraint
pon the conduct of that magistrate.
A further restraint was the prohibition outlined in Article I of the
Constitution which prohibited the appointment of any senator or repre-
sentative to any civil office during the time of his election to Con-
gress.

The final Federalist essay devoted to the presidency was
concerned with the relationship between the President and Senate. Here
Hamilton sought to allay the fears of those who thought each branch
would exercise an unhealthy influence over the other. He summarized
the opposition by noting its inherent contradictions; "the President 1

would have an improper influence over the Senate, because the Senate

 

would have the power of restraining him." "It cannot," he said, "admit

 

of a doubt that the entire power of appointment would enable him much
more effectually to establish a dangerous empire over that body than a
mere power of nomination subject to their control." In the end, he
said, the public will punish either the President for a bad nomination,
or the Senate for confirming him. Giving the President a council will
not alleviate the problem, since, ”however constituted, it will be a
conclave in which cabal and intrigue will have their full scope.“ On
the other extreme, uniting the House of Representatives with the Senate
in the nominating process would cause even more hardships, because "a
body so fluctuating and at the same time so numerous can never be deemed

proper for the exercise of that power." Moreover, "all the advantages

 

106Federaiist 77, 459.

 

559

of the stability, both of the Executive and of the Senate, would be
defeated by this union, and infinite delays and embarrassments would
be occasioned."107
The remaining powers listed in Article II of the Constitution

were not attacked by the critics of the document and Hamilton merely
listed them as necessary to the operation of the executive. These were
convening houses of the legislature, receiving ambassadors and the like.
Hamilton closed his discussion of the presidency by showing how the
institution was a responsible institution in the republican sense. He
said that it "combines, as far as republican principles will admit, all
the requisites to energy," and also does in a way to insure a "due
dependence on the people." The President is elected

by persons immediately chosen by the people for that purpose,

and from his being at all times liable to impeachment, trial,

dismission from office, incapacity to serve in any other, and

to forfeiture of life and estate by subsequent prosecution in

the common course of law.
Moreover, the only areas "which the abuse of the executive authority
was materially to be feared," the President was restrained by a branch
of the legislative body. In short, he concluded, "What more can an
enlightened and reasonable people desire?" Other Federalists, by and
large, argued along lines similar to those expressed by the authors of

the Federalists Pap_ers.108

 

In the final analysis, the ratification debate reflected the

conflicting concerns of the anti-Federalist and Federalist with respect

 

1°7Ibid., 462.

108 bid., 464.

0—0

560

to the interpretation of executive features of the Constitution. The
Federalists argued that the Constitutional Convention had achieved the
best possible model of a vigorous and responsible executive within the
confines of a republican government. They sought to show that all its
features, with the possible exception of the electoral college, were
derived from and well within the constitutional experiences of the
states. Moreover, it possessed the necessary vigor to protect American
interests in the conduct of foreign affairs and internal security,
while at the same time its constitutional powers were limited and
checked in such a manner as to make it consistent with republican prin-
ciples. Aside from the executive's administrative duties, his major
function was to counter-balance the legislative branch to prevent its
excesses from endangering the liberties of the people. In short, the
Federalists were pleased with the Constitutional Convention's efforts
to provide the country with an adequate and responsible executive.

The anti-Federalists also agreed that there must be an execu-
tive in any new form of government that might be proposed to replace
the Confederacy. However, their view of human nature led them to mis-
trust the form it took in the proposed Constitution because they feared
it did not possess sufficient checks to prevent it from becoming an
elected monarch, the worst of all forms of government in their opinion.
No executive would be safe in a republic, they argued, unless his powers
were more explicitly limited or checked in the constitutional phrase-
ology. No contingency ought to be left to chance, they maintained,
because any vagueness in the constitutional language would lead to

executive usurpation which might not be able to be checked.

561

The fundamental difference between the Federalists and their
opponents rested on their view of human nature. The Federalists con-
tended that the Constitution offered the rewards which impelled men to
do the public business, while providing sufficient safeguards against
their possible abuse of the public trust. The Federalists did not
argue that either extreme of the human nature continuum was correct,
but that human nature was somewhere between, not wholly good or entirely
evil. They were therefore willing to support a Constitution which
spelled out in general terms the objects of government and their method
of attainment. The anti-Federalists viewed human nature in its worst
light. Therefore, man was not to be trusted with any power unless its
exact use and limitations were spelled out in detail. That, they
argued, was the safest way to protect society from the designs of those
who held power. The Federalists disagreed, saying that experience had
shown that mere paper delineations or checks were useless unless each
branch of government were given adequate powers to check the others in
their own self-defense. James Iredell summarized the Federalists'
position by saying about the possible abuse of power that it
will reach all delegation of power since all power may be
abused when fallible beings are to execute it; but we must
tgke as much caution as we can, being careful agoghe same
time not to be too Wise to do any thing at all.

Thus, the disagreement over human nature led to opposing answers on

the question of whether the Constitutional Convention had succeeded in

creating an executive sufficiently empowered to carry out the executive

 

1091redell, "Answers," amphlets, Ford, ed., P- 342-

562

functions within the context of a republican form of government. The
Federalists concluded that it did, while the anti-Federalists contended
it did not.

Before concluding this study on the origin of the presidency,
one final point needs to be clarified; this is, what was George Washing-
ton's concept of the presidency prior to his taking office? Some have
argued that the office was molded to fit his actions as the geDfagtg_
leader of the nation during the Revolutionary War. As argued in the
previous two chapters, this may have been a subtle influence on the
delegates; however, most were too politically sophisticated to base
such important an office on so little historical experience. On the
other hand, few will argue that Washington did not play a significant
role as the first person to hold the presidency under the new govern-
ment. Too much was left unsaid in the wording of Article II to make
it a precise guide for the daily activity of the incumbent. That would
be left for experience to fill in the areas not covered in the specific
language. It is important, therefore, to see what Washington's expecta-
tions for the office were, prior to his being sworn in as President.

It was expected by many that Washington would be the first
President. Even before the Convention completed its work, some con-
cluded that Washington would be at the head of any new government.
Benjamin Rush wrote to Timothy Pickering that "General Washington it
is said will be placed at the head of the new Government, or in the

"110

stile of my simile, will drive the new wagon. Hardly had the ink

 

110Farrand, ed., Records of the Federal Convention, IV, 75.

 

563 1

dried at the signing of the Constitution when the speculation began in
earnest. By October, Jefferson was concluding that "General Washington
lives; & as he will be appointed President, jealousy on this head
vanishes, referring to debate over the adoption of the Constitution."111
As the Constitution moved toward ratification, more people became con-
vinced that Washington was the logical choice for chief executive of
the new nation.

Washington, however, was reluctant to end his retirement and
return to active political life. In letter after letter, he repeated
this sentiment to his friends. A letter to Henry Lee on September 22,
1788 probably best explains his thinking. He recounted the difficulties
that faced the nation since the end of the Revolution and expressed his
hope that with the adoption of the Constitution they might at least
begin to be resolved. He warned that the opponents of the Constitution
might "stifle the government in embrio (sic)." Therefore, "prudence,
wisdom, and patriotism were never more essentially necessary than at
the present moment."112

Turning to the problem raised by Lee, of those who wanted to
put his name in nomination for the presidency, Washington said that it
was "a point of great delicacy; in so much that I can scarcely, with-

out some impropriety touch upon it." He reitereated his "attachment

to domestic life'I and his wish to "continue in the enjoyment of it,

 

111Ibid., 111,105.

112Washington, Writings, Fitzpatrick, ed., XXX. 95'95-

564

solely until my final hour." However, if he was to change his mind,
the world would not be "so candidly disposed as to believe me uninflu-
enced by sinister motives, in case any circumstance should render a

deviation from the line of conduct I had prescribed to myself indis-

pensable."113

Washington then rhetorically asked Lee how this would be
viewed by the world. He pondered the fact that

Should the contingency you suggest take place, and (for
argument sake alone let me say it) should my unfeigned
reluctance to accept the office be overcome by a deference
for the reasons and opinions of my friends; might I not,
after the Declarations I have made (and Heaven knows they
were made in the sincerity of my heart) in the judgment of
the impartial World and of Posterity, be chargable with
levity and inconsistency; if not with rashness and ambition?

He then offered that "justice to myself and tranquility of conscience
require that I should act a part, if not above imputation, at least
capable of vindication." Therefore, "if I know myself, I would not
seek or retain popularity at the expense of one social duty or moral

I.114

virtue. Thus, Washington was acutely aware of his public standing

and sought to avoid any hint of ambition on his part for the presidency.

Yet, in Spite of protestations on his part, Washington
realized that in all likelihood, he would be the first President. In
his letter to Lee, he continued by saying,

While doing what my conscience informed me was right, as it

respected my God, my Country and myself, I could despise all
the party clamor and unjust censure, which must be expected

”If “.1

565

from some, whose personal enmity might be occasioned by

their hostility to the government.
While he was not afraid of "unmerited reproach," he concluded that his
actions ought to be governed as follows: "whensoever I shall be con-
vinced the good of my country requires my reputation to be put in
risque (sic); regard for my own fame will not come in competition with
an object of so much magnitude." However, if he declined the presi-
dency, it would not be for the number of personal reasons he cited to
Lee, "but a belief that some other person, who had less pretense and
less inclination to be excused, could execute all the duties full as
satisfactorily as myself." Then he said: "To say more would be indis-
creet; as a disclosure of a refusal beforehand, might incur the appli-
cation of the Fable, in which the Fox is represented as undervaluing
the grapes he could not reach.'I He cautioned Lee to keep this letter
confidential and concluded that

my inclinations will dispose and decide me to remain as I am;

unless a clear and insurmountable conviction should be im-

pressed on my mind that some very disagreeable consequences

must in a111guman probability result from the indulgences of

my Wishes.
Thus Washington, the consummate statesman that he was, sought to avoid
the political pressures forcing him back into the political arena, but
was ready to serve if this was best for the country.

Washington viewed the proposed Constitution with satisfaction

though he did admit that it was not perfect. However, it was the "best

 

1151bid., xx1x, 278.

 

566

that could be obtained at this time." He saw the document as

entrusting power

for certain purposes, and for a certain limited period,
to representatives of their own chusing (sic); and whenever
it is executed contrary to their Interest, or not agreeable
to their wishes, their Servants can, and undoubtedly will
be, recalled.

He contended that all agreed that "no government can be well-administered

"116

without powers. Another time he characterized the government as

not invested with more Powers than are indispensably neces-

sary to perform the functions of a good Government; and,

consequently . . . no objection ought to be made against

the quantity of Power delegated to it.
Moreover, these powers

are so distributed among the Legislative, Executive, and

Judicial Branches . . . that it can never be in danger of

degenerating into a monarchy, Oligarchy, an Aristocracy, or

any other despotic or oppressive form, so long as there

shall remain any virtue in the body of the People.
In short, the Constitution was "provided with more checks and barriers
against the introduction of Tyranny, and those of a nature less liable
to be surmounted, than any Government hitherto instituted among mortals."117

On the composition of the presidency, Washington disagreed with

Jefferson's proposal for a rotation in office. He opposed limiting re-
eligibility saying that the Constitution was so well guarded against
corrupting influences in the selection of the President that there was

not the need for limiting re-eligibility. He said that there cannot,

 

116Ibid.. pp. 311-312.

1'7Ibid., pp. 410-411.

567

in my judgement, be the least danger that the President will

by any practicable intrigue ever be able to continue himself

one moment in office, much less perpetuate himself in it;

but in the last stage of corrupted morals and political de-

pravity: and even then there is as much danger that any other

species of domination would prevail.
In the final analysis, "when a people shall have become incapable of
governing themselves and fit for a master, it is of little consequence
from what quarter he comes." Therefore, he could see no reason for the
nation to preclude "the services of any man, who on some great emergency
shall be deemed universally, most capable of serving the public."118

Taken as a whole, Washington's concept of the presidency prior

to his taking office was that it was a republican institution responsible
to the people, empowered with sufficient energy and authority to carry
out the limited objects of government, but not capable of overstepping
its bounds without bringing public censure and the checking influences
of the other branches into operation. Other than the re-eligibility
issue, Washington did not express his thinking on any Specific organi-
zational aspect of the office prior to his inauguration. He did, how-
ever, express his concern over the influence the first occupants of the
office would exert on the future of the government. He wrote that,

I have no doubt but . . . those persons who are chosen to

administer it will have wisdom enough to discern the influ-

ence which their example as rulers and legislators may have

on the body of the people, and will have virtue enough to

pursue that line of conduct which will most conduce to the

happiness of their Country; as the first transactions of a

nation, like those of an individual upon his first entrance

into life, make the deepest impression, and are to form the
leading traits in its character, they will undoubtedly pursue

 

'18Ibid., p. 479.

568

those measures which will best tend to the restoration of
public and private faith and of consequence proggge our
national respectability and individual welfare.

As it became clear that Washington would be the nation's
choice for the presidency, he began to face the practical problems of
the task. The one he dreaded most was that of filling the posts open
to presidential nomination. He feared that "there will be at least a
hundred competitors for every office of any kind of importance." How-
ever, the

number of offices will, in our oeconomical (sic) management

of the affairs of the Republic, be much fewer, as I conceive,

and the pretentions of those who may wish to occupy them much

more forcible; than many well informed men have imagined.
Then he added that he had "no conception of a more delicate task, than
that, which is imposed by the Constitution on the Executive." Since
republicans, by nature, were

extremely jealous as to the disposal of all honorary or

lucrative appointments . . . I am convinced . . . that, if

injudicious or unpopular measures should be taken by the

Executive under the New Government with regards to appoint-

ments, the Government itself would be in the utmost danger

of being utterly subverted by those measures.
He then concluded that it was so necessary at this point "to conciliate
the good will of the People," because it was, in his judgment, impos-
sible "to build the edifice of public happiness, but upon their affec-
tions." He, therefore, wished to enter the presidency "without being

under any pre-engagements, to any person, of any nature whatsoever."120

 

1191bid., p. 465.

1201bid., xxx, 239-241.

569

The appointing power troubled Washington considerably. He

said he could

conceive that the general principles on which nominations

ought in good policy and equity to be made, may be easily

ascertained; still I cannot possibly form a conception of

a more delicate and arduous task, than the particular appli-

cation of those principles to practice.
Generally, the "fitness" and the “comparative validity of the claims
of different Candidates, together with, perhaps, some political con-
siderations of a local nature," are the objects on which to base the
general principles, he concluded. Yet, it was impossible "to give
universal satisfaction." To one office seeker he wrote: “I may be
under the necessity of adopting a system of public conduct altogether
from reasons of State" though he would pay "particular attention to
distinguished talents and merits." Later, he said, only one rule would
guide him in this matter; that was, "that in all appointments to
offices . . . only the fitness of characters and the public good,"
would be considered, not personal friendships, "however great my inclina-
tion towards" my friends.121

When the call finally came for Washington to take the reigns

of government, he began by paying meticulous attention to his actions.
On the question of lodging, he declined all offers to reside in private
homes seeking "none but hired ones," for it was his wish "and intention
to conform to the public desire and expectation, with respect to the

style proper for the Chief Magistrate to live in."122

 

121

Ibid., p. 270.

122Ibid , p. 255.

 

570

Washington compared his "movements to the chair of Government"
as being “not unlike those of a culprit who is going to the place of
his execution." Once again he expressed his reluctance to leave the
quiet tranquility of private life "for an Ocean of difficulties, with-
oUt that competency of political skill, abilities and inclination which
is necessary to manage the helm." Then he stated his concern for the
task upon which he was about to enter. "I am sensible," he said, "that
I am embarking the voice of my Countrymen and a good name of my own,
on this voyage, but what returns will be made for them, Heaven alone
can foretell." He then promised "Integrity and firmness" whether his
voyage "be it long or short."123
When Washington faced the nation for the first time as Presi-

dent, he spoke of his hopes for the new undertaking. His Simple elo-
quent statement honoring those elected to serve in the new government
probably best summarized his idea for the role of the presidency. He
said:

I behold the surest pledges, that as on one side, no local

prejudices, or attachments; no seperate (sic) views, nor

party animosities, will misdirect the comprehensive and

equal eye which ought to watch over this great assemblage

of communities and interests: so, on another, that the

foundations of our National policy will be laid in the

pure and immutable principles of private morality; and the

pre-eminence of a free Government, be exemplified by all

the attributes which can win the affections gfi its Citi-
zens, and command the respect of the world.1

 

123Ibi

mm

D.

., p. 268.

Q.

., p. 294.

 

571

Thus, the President and the presidency were to be the beacon to guide
the nation. Rarely in history would a man so honor an office, or an

office so honor a man, as did the figure who symbolized that era.

 

11.8.5.1: .' Il...‘.¢ ll:

CHAPTER XI

CONCLUSIONS

From the evidence presented in the foregoing study, what
conclusions can be drawn about the evolution of American executive
theory and its embodiment in the creation of the presidency? There
appear to be three distinguishable periods which contributed to the
formulation of basic American attitudes toward the executive power:
From the founding of the colonies to the Declaration of Independence;
from 1776 to the writing of the Constitution in 1787; and finally, from
the Constitutional Convention to the beginning of George Washington's
first administration. The common theme predominant in all three eras
was the struggle to make the executive accountable and responsible to
the people or their representatives. The methods of achieving it
differed in each era because of the different circumstances under which
the executive operated.

In the first era, the colonial government was a function of
the executive; that is, the governmental authority was primarily in the
hands of the executive. Early in the seventeenth century the governors
possessed wide-ranging grants of general executive authority. For the
most part, their powers were based more on commercial expediency than
on any political or constitutional theory. Gradually, as the early

colonial commercial companies became political entities, and as their

572

573

governor's authority was altered to meet changing needs, popular
restrictions began to be imposed on a governor's exercise of his powers.
Through the development of representative assemblies, the people sought
to confine executive discretion and authority within popularly accepted
boundaries.

The seventeenth century also established certain fundamental
principles regarding the executive which were carried over and rein-
forced in the eighteenth century. They were: unity in the executive,
a written delegation of powers, and the belief that the executive was
responsible for his actions.

By and large, however, the seventeenth-century governor was
a strong independent executive who possessed the bulk of governmental
powers and discretion. He was checked in his use of that power, for
the most part, more by his superiors than by popular restraint.
Massachusetts was the most notable exception inasmuch as its charter,
the source of power, was in the colony, and not England, and the people
elected their leaders.

As the colonies were converted into royal colonies, the
source of executive power became the governors' commissions and instruc-
tions. Again, the primary object of the governors' delegated power was
the protection of the king's prerogative and English commercial inte-
rests. Colonial concerns came second if there was a conflict. Gradu-
ally, the assembly developed as the popular check on the executive.
Once they became a firm fixture in the colonial constitutions, they
slowly learned how to retard or avoid adverse colonial policies by

employing, among other things, various financial restraints on the

574

governors' power to enforce English colonial policy. By far the most
effective measure was control of the governors' salary.

By the reorganization of the British empire in l763, colonial
governors were forced to serve two masters in a manner which doomed
them to failure. While they were expected to use their ample authority
to defend the prerogative, the Americans had devised methods to keep
them restrained and responsible to colonial needs. Throughout this
period the royal governors remained powerful in a constitutional sense,
but their attempts to enforce British policies, which inflamed the
colonists, severely eroded their political power to carry out their
constitutional authority.

In the struggle between England and the colonists, the gov-
ernor became irrelevant. The Americans had developed their own parallel
systems of colonial government in the provincial assemblies, which
completely bypassed the need for English officials. The committees of
correspondence and safety became the acting colonial executive in the
transition from colonial governments to the first state constitutions.
They were patterned after the legislative committees which had exercised
executive functions at various times during the colonial period.

Also, during the period prior to the Revolution, a number of
attempts were made to unite two or more colonies under a common execu-
tive. Aside from the various political or military factors which
militated against such unions, there was the problem of having a common
executive over colonies with different constitutions. The executive's

military powers could be delegated to another officer, but Americans

575

were unwilling to let an outside executive operate without the
requisite constitutional safeguards.

The second major period in the development of American execu-
tive theory, from the Declaration of Independence to the Constitutional
Convention, saw the executive and legislative roles reversed. Now the
legislative branch was the engine of government and the executive
played a secondary role. Constitutionally, the executive was given
just enough authority to carry out his duties. In time of crisis, this
was augmented with statutory power, which, in some cases, was almost
dictatorial in nature. The state constitutions were considered tempo-
rary in nature and therefore written to meet the military crisis, which
was paramount at the time. Later, it was argued, they could be revised
to meet the new conditions. If the writers of the state constitutions
erred in organizing the executive sections of the constitutions, the
Americans thought it best to err on the side of too little authority,
since it could always beincreased by amendment or statute. By and
large these early attempts at writing constitutions led to legislative
dominance. The New York and Massachusetts constitutions were notable
exceptions. The first emerged from a tradition of strong executive
leadership throughout the colonial period, and the latter, only after
four years of experimenting during the Revolution.

On the national level the Continental Congress faced tremen-
dous organizational difficulties. The executive authority was primarily
exercised by committees in a very inefficient manner. Gradually the
major committees were transformed into the executive departments which

were headed by unitary executives who were not members of Congress.

576

Two department heads, John Jay and Robert Morris, exerted tremendous
influence over Congress, and Jay became, in effect, the powerful ge_
fagtg executive of Congress.

The office of President of Congress had little power, but
served to focus attention on one person as the official representative
of Congress and the nation. Jefferson's attempt to provide Congress
with executive leadership through the Committee of States was an unquali-
fied disaster since Congress would not trust such a committee with the
necessary powers without crippling it by restrictions to prevent any
abuse of its powers.

The most significant executive in this period was General
George Washington in his role as commander-in—chief. He was the ge_
fagtg national executive because he linked the civilian and military
authority, tied the war effort together in the states, and was the
major source of communication between the state executives and Congress.
At times, Congress granted him dictatorial powers. His restrained use
of them provided a model of executive behavior and reinforced Congress'
willingness to grant the necessary authority to successfully conclude
the war. Moreover, he showed the dispatch and efficiency inherent in
a unitary executive.

Peacetime brought only more trouble for Congress. Trade and
commercial problems only accentuated its inability to adequately govern
the nation with the authority granted under the Articles of Confederation.
Finally enough people were concerned to attempt to remedy the defects.
After several unsuccessful efforts, the Constitutional Convention of

1787 was called.

577

The Convention began the third phase in the development of
American executive theory. The delegates agreed that the nation needed
a fairly strong executive to both administer the laws and to check the
excesses of the legislative branch. They looked to the American
political-constitutional tradition, especially the state experiences,
and selected and arranged the elements they thought would achieve a
vigorous but responsible executive within the context of a divided and
balanced constitution. All of the elements were taken from the state
constitutions, with the possible exception of the electoral college.
The essential nature of the office appears to be modeled on the govern-
orships of New York and Massachusetts which were fairly strong and
independent. However, these two were by no means the exclusive models,
as the elements which comprise the executive authority in the Constitu-
tion can be found in the other state constitutions as well. Moreover,
the state experience also showed the delegates what to avoid by illus-
trating what had not worked before. In short, the powers of the presi-
dency were well within the executive experience of the states, but
arranged in such a manner as to insure the most vigorous action com-
patible with maximum responsibility within the republican model of an
institution firmly based on the people.

The ratification debate was carried on within the context of
whether the Convention had succeeded in achieving the proper balance
between vigor and security. The anti-Federalists argued that it had
achieved the vigor but was not sufficiently restrained to prevent a

president from endangering liberty. The Federalists argued that it had

578

achieved the proper balance and was completely compatible with the
republican principles America had been operating under for over a cen-
tury.

Finally, even before the Convention had finished its delibera-
tions, it was clear to many that Washington would be the first chief-
executive of any new system. His presence had helped legitimize the
Convention's deliberations and his influence was now expected to
legitimize its results. No other American was as uniquely qualified
as he was, given his experience, perspective, temperament, and charac—
ter. As the symbol of the Revolutionary generation, he served to unite
the divisions caused by the ratification struggle and allayed the fears
of those who thought the presidency was too powerful an institution to
be trusted to one individual. In short, Washington was the ideal choice
for President. In the end, his patriotism and devotion to the success
of the new nation would provide that element of leadership which could

not be guaranteed by constitutional phraseology.

 

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