“Apprehensive, that the Government of these States, may in future times, end in a Monarchy”

Last month the Journal of the American Revolution published Ray Raphael’s article “A Kingly Government?: Benjamin Franklin’s Great Fear.”

Franklin and James Madison were among the most vocal of the men at the Constitutional Convention wary of assigning too much power to the executive branch, or investing too much of that power in one man.

Ray Raphael writes:

Madison opened the bidding. Wouldn’t it be “proper,” he asked, “before a choice should be made between a unity and plurality in the Executive, to fix the extent of the Executive authority?” Madison proposed minimal powers: “to carry into execution the national laws” and “to appoint offices in cases not otherwise provided for.” With little dissent, state delegations agreed. Executive authority was subservient to legislative demands, save only for some lesser appointments. Most significantly, he/they would not possess the “powers of war and peace.”

Later the debate turned to whether there would be a single executive and how long one man would hold that office:

Franklin stewed over the prospect of a single executive serving for seven years. “Being very sensible of the effect of age on his memory,” he told the Convention the next morning, he carefully wrote down his objections. Saddled with a weakened voice and failing eyes, he would find it difficult to read aloud what he had just penned, so James Wilson offered to read it for him:

It will be said, that we don’t propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy.

I’d like to refute Franklin’s belief in “a natural inclination in mankind to Kingly Government.” However, too many people speak of U.S. Presidents as solely responsible for laws, court decrees, wars, and other actions that the Constitution explicitly assigns to other branches. And a smaller but still too large number of people are attracted to obvious strongmen.

Back in 1787, as the convention went on, however, most delegates seem to have let those worries subside a bit. The example of George Washington in the chair probably had an influence. No better solutions presented themselves.

We know that Franklin and Mason opposed a single executive, fearing the extent of his powers. They had sounded the alarm at the outset of the convention, and [George] Mason’s opposition to ratification would highlight the dangers of a single executive as well as the absence of a bill of rights. But Madison’s concern has received scant attention. A chief architect of the Constitution’s checks and balances, he failed to gain traction for this protection against an executive who put himself over country. Convention fatigue might well have played a role.

The Constitution did explicitly reserve “powers of war and peace” for the legislature, and limited the single executive to a four-year term. While the British Crown could veto legislation, a U.S. President’s veto could be overridden. Still, the fear of a President taking on monarchical powers and the rest of the government being unable or unwilling to stop it remained.

Ray Raphael’s article ends with Franklin’s exchange with Elizabeth Powel, as recorded by James McHenry:

Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.

(I’ve discussed that anecdote at length since 2017.)

“The unanimous assent of 11 States and Colonel Hamilton’s”

The Statutes and Stories blog has a couple of new posts detailing an archival discovery related to the New York delegation to the Constitutional Convention.

The first article by University of Wisconsin professor John Kaminski, attorney Adam Levinson, and Sergio Villavicencio of the Alexander Hamilton Awareness Society is a bit breathless for my taste, but the second steps back and raises a lot of thoughtful questions about how to interpret incomplete evidence.

The background of this story is that the state of New York sent three delegates to the Philadelphia Convention of 1787, aimed at revising the Articles of Confederation. One of those men was a leading proponent of having that meeting, Alexander Hamilton. You may have heard of him.

The other two were judge Robert Yates (1738-1801) and his former trainee, attorney John Lansing, Jr. (1754-1829?), both from Albany. The two men were related by marriage and also allied in politics. Like Gov. George Clinton, they opposed strengthening the national government. In sum, they went to Philadelphia to outvote Hamilton on the state’s delegation.

Around 30 June, after the convention had met for a little more than a month, Hamilton went home to New York City. He was getting to propose his ideas, but he couldn’t even get his own state to support them.

Yates and Lansing followed about 10 July. They could see that the convention was moving toward creating a constitution for a stronger federal government, and they didn’t want any part in that.

As the blog posts explain, on 20 August Hamilton told his fellow Federalist Rufus King:

I have written to my colleagues informing them, that if either of them would come down I would accompany him to Philadelphia. So much for the sake of propriety and public opinion.

No one has found Hamilton’s actual letter, so we don’t know how he phrased that offer. As the three authors ask, “Did Yates and Lansing understand Hamilton’s letter to mean that he would only go back to Philadelphia if one of them joined him?” The comment “So much for the sake of propriety and public opinion” suggests Hamilton wrote to the two men purely as a political move.

In any event, Hamilton did go back to participate in the closing sessions. He couldn’t vote on behalf of New York since that state had required all three of its delegates to be present for votes. But he was talking.

In early September the meeting approved a new draft Constitution for the U.S. of A., totally rebuilding the national government. On 17 September the chairman of what had become a Constitutional Convention, George Washington, wrote in his diary:

Met in Convention, when the Constitution received the unanimous assent of 11 States and Colonel Hamilton’s from New York.

Washington distinguished between the eleven states that had a quorum of delegates at the convention and the lone voice from New York piping up unofficially. (Rhode Island wasn’t there at all.) Everyone knew Hamilton didn’t represent his colleagues’ views. Nonetheless, New York didn’t oppose the new document.

Proponents of the new Constitution emphasized that seemingly unanimous vote of the states. Hamilton insisted that every delegate present should sign it. Gouverneur Morris came up with language to indicate the men were signing as witnesses to the state votes, not to endorse the new document personally. Even so, Elbridge Gerry, George Mason, and Edmund Randolph refused to sign.

The new archival discovery is an expense report from Robert Yates to the government of New York for his service as a delegate, including “May June & July 1787 59 Days at 32s pr Day.” At the bottom of that document is the entry:

To my Comming as far as New York in my Way to Philadelphia for the Same purpose where I heard that the Convention rose [i.e., adjourned] a Day after my arrival and my return home 12 Days at the Same rate

As Kaminski, Levinson, and Villavicencio point out, this record shows Yates was on his way to Philadelphia as the convention was completing its work. Had he arrived in early September, his voice would have canceled out Hamilton’s approval of the Constitution. He could have added to the chorus protesting the document and refusing to sign. He could even have sent for Lansing and turned New York’s vote to a no.

Instead, Yates got as far as New York City, learned the convention was done, and went back home. He and Lansing both argued against ratifying the proposed Constitution at New York’s state convention. Their side lost narrowly, 30 votes to 27.

The Statutes and Stories blog posts discuss other small revelations coming out of these expense records, as well as questions they don’t answer but other documents might. It’s a good example of how even mundane bureaucratic documents can reveal crucial facts.

“A large Collection of interesting Papers”

In 1843, the London bookselling firm of Thomas Thorpe issued its catalogue of manuscripts for sale, “Upon Papyrus, Vellum, and Paper, in Various Languages.”

Among those items was “A large Collection of interesting Papers, formed by the late George Chalmers, Esq., relating to New England, from 1635 to 1780, in 4 vols. folio, neatly bound in calf, £21.”

Chalmers (1742-1825, shown here) was born in Scotland and at age twenty-one settled in Maryland as a young lawyer. In early 1776 he published Plain Truth, a point-by-point riposte to Thomas Paine’s Common Sense. That went over so well that Chalmers soon moved back to Britain.

In 1780 Chalmers published Political Annals of the Present United Colonies from Their Settlement to the Peace of 1763. Or rather, he published the first volume of documents about the colonial governments, tracing the history up to 1688, but never produced the second.

In 1786 Chalmers became a secretary to Britain’s privy council, and he kept that postion for decades. It provided him with the income and access he needed to collect manuscripts and write books and pamphlets about the history of Scotland, Shakespeare, other authors, controversial issues of the day, and much more.

In 1796, as Britain fought Revolutionary France, the government paid Chalmers to write a critical biography of Paine. He issued that under the pseudonym of Francis Oldys, supposedly a graduate of the University of Pennsylvania. Otherwise, he focused mainly on British topics, particularly the long history of Scotland.

Nevertheless, Chalmers’s manuscript collection shows that he never gave up on accumulating material about the old North American colonies. After his death, his papers went to a nephew, and two years after that man died in 1841, they were on the market.

Here’s a sample of what the collection included from the Revolutionary years, according to the bookseller’s catalogue:

• Various papers relating to the paper currency in the colonies, 1740-60.
• Account of the dispute at New London, at the burial of a corpse, 1764.
• List of graduates in Harvard College, who have made any figure in the world.
• Part of Mr. Otes’s speech in the general assembly at Boston, in 1768.
• Autograph letter from W. Molineux, relating to the riots at Boston, 1768.
• Letters relating to the seizure of the sloop Liberty, 1768, very curious.
• Information of Richard Silvester, of the speeches of the Boston leaders, 1769.
• Declaration of Nathaniel Coffin to Governor J. [sic] Bernard, on the designs to drive off the Governor and Lieutenant Governor, 1769.
• Key to the characters published in the Boston Chronicle of Oct. 26, 1769, (The Boston patriots characterized.)
• Autograph letter from George Mason, containing an account of the riot and attack of Mr. Mein’s house, 1769.
• Copy of a curious letter from Boston, relating to Franklin’s duplicity, &c. 1769.
• Autograph letters from John Mein and George Mason to Joseph Harrison, concerning the riot at Boston, 1769.
• Papers relating to the outrage on Owen Richards, an officer of the customs at Boston, 1770.
• Copy of a letter from Lord Dartmouth to Dr. Benjamin Franklin, about presenting a remonstrance of the court to the king, 1773.
• Account of the proceedings of Governor Hutchinson, relating to Massachusetts, &c., 52 pages, 1774.
• Account of an attack that happened on His Majesty’s troops, by a number of the people of the province of Massachusetts Bay, 1775.

It looks like Chalmers obtained many of those documents from Joseph Harrison, a Boston-based Customs official, or his estate.

Prof. Jared Sparks (1799-1866) of Harvard College must have seen the bookseller’s listing. He apparently arranged for the college library to buy some of Chalmers’s papers in 1847 while he bought others for himself, leaving them to the library on his death. Thus, the papers listed above are now at the Houghton Library and digitized as part of the university’s Colonial North America project.

Ships, Fire, and Boston’s George Mason

In January 1770, as I mentioned back here, two sea captains were in Boston from Glasgow, trying to commission four new ships.

But because of the non-importation boycott against the Townshend duties, Boston’s business community wouldn’t let those Scotsmen sell the goods they had brought in to pay for those vessels.

On the morning of 20 January the two captains “set out for Newburyport to contract with the Mechanicks there for building their Ships.” Smaller ports didn’t have such strict non-importation movements.

The next morning brought an ominous discovery outside the building close to the Town House:

On Sunday early in the morning, several People observ’d a quantity of Charcoal lying under the Door of Mr. [William] Jacksons Shop, with some Chips that were partly burnt, the intent no doubt was to set his Shop on Fire, tho’ it very Providentially did not Succeed:

Their own Party say it was done by the Torys with a view to bring a Slur on the Characters of the Sons of Liberty, but I leave you to judge Sir, who are in reallity most capable of such a piece of notorious villainy.

Jackson was one of a handful of small merchants still defying the non-importation boycott. That said, trying to burn down his shop, or even just threatening arson by sticking burnt charcoal under his door, was especially ominous. As we learned from the Saga of the Brazen Head, the Jackson braziery (at a previous location) was where the town’s last huge blaze had started.

We don’t know the identify of the Crown informant whom I quoted about the non-importation meetings and other developments last week. But we do know who reported on the charcoal outside the Brazen Head. That man had arrived from Britain in late 1765 and placed this advertisement in the 18 November Boston Post-Boy:

George Mason, Limner, from LONDON, BEgs leave to inform the Public, That he draws Faces in Crayons, from one to two Guineas each; those Ladies and Gentlemen who are pleas’d to employ him, may depend on having a good Likeness. Specimens of his performance may be seen at Mrs Coffin’s Coffee-House, the bottom of King-street.

Neil Jeffares found Mason had advertised similar portraits plus art lessons in London the previous year (P.D.F. download).

Mason advertised again in the Boston Chronicle of June 7-11, 1768, still working out of Rebecca Coffin’s Crown Coffee-House:

George Mason, Limner, begs leave to inform the public (with a view of more constant employ) he now draws faces in crayon for two guineas each, glass and frame included. As the above mentioned terms are extremely moderate, he flatters himself with meeting some encouragement especially as he professes to let no picture go out of his hands but what is a real likeness. Those who are pleased to employ him are desired to send or leave a line at Mrs. Coffins near Green and Russel’s Printing Office and they shall be immediately waited upon.

In January 1769, a couple of months after the arrival of British army regiments, a South End innkeeper named Richard Silvester gave Lt. Gov. Thomas Hutchinson a deposition accusing Samuel Adams, Dr. Benjamin Church, and other Whig leaders of saying and doing treasonous things. I don’t find Silvester’s stories completely convincing, but he also swore that “George Mason the Painter” could vouch for them.

Sometime that year, Customs Collector Joseph Harrison recruited Mason as a direct source of information. There’s no indication of whether Harrison was paying the painter, appealing to his patriotism as a native Briton, or calling on some other connection. But on 20 October Mason began a letter to the Customs official: “In compliance with your request; I now transmit to you, the proceedings that have happen’d in Boston since your departure…” More letters of that sort followed and are now in the Sparks Collection at Harvard.

It’s easy to understand why Customs officers cultivated informants in waterfront towns—so they could stop smuggling and tariff evasion. But Mason the pastel portraitist wasn’t privy to that sort of information. Instead, he, like Silvester and the unnamed informant, reported on Boston’s political developments. That shows how the Boston Customs office wasn’t just trying to enforce the taxes that Parliament had enacted. It was also tracking the political opposition to those taxes, and its men in London, such as Harrison, were trying to influence the Crown response to that opposition.

As for George Mason, he entered the Boston almshouse on 7 June 1773 and died on 21 June.

TOMORROW: Another public meeting.

“A young Lad (belonging to the Office) fir’d a Gun”

The report of someone inside John Mein and John Fleeming’s print shop firing a gun at Boston’s first tar-and-feathers procession on 28 Oct 1769 raises a number of questions.

First is the matter of how many guns were involved. Edes and Gill’s Boston Gazette reported “a Gun was fired from thence and two others snap’d at them [i.e., someone fired blank shots] just as they got by.” However, the pro-governor Boston News-Letter stated simply that “a Gun was fired from one of the Windows.” So was there one shot or three?

A Crown informant named George Mason reported this version of events:

As soon as the Mob had got as far as Mr. Meins Printing Office and dwelling House (which is near Liberty Tree) they made a Halt, and as I’m very credibly informed endeavour’d to force the Door (I’m certain of this they broke the Windows) upon which a young Lad (belonging to the Office) fir’d a Gun loaded with nothing but Powder with a view to intimidate them from any further violence, this had not the desired effect, for immediately after they recover’d from their fright, they burst the Door open in earnest, and likewise forc’d the Locks and Doors of the inner appartments in search of Mein. Some mischief was done to his Books &c and two Guns were taken away by Persons in the Neighborhood who are well known to Mr. Meins Servants

The Boston Gazette stated: “they bro’t off three Guns, two of them well charg’d, as Evidence.” So it looks like both sides agree that at least one shot was fired, the crowd confiscated at least two guns, and no one was injured.

The next question is who fired that shot. Mason identified the shooter as “a young Lad (belonging to the Office)”—i.e., a printer’s apprentice or devil. The newspapers said the crowd found no one inside the house, so Mason apparently had inside information.

Isaiah Thomas wrote later that Nathaniel Mills was an apprentice to John Fleeming. He was a week shy of twenty years old during this riot, however, and therefore probably not still considered a “young Lad.”

Another possibility, though I’ve found no direct evidence, was John Howe (1754-1835). He had just turned fifteen in October 1769, still too young for militia service. I can’t show that he worked for Fleeming, but he did become a Sandemanian, and Fleeming was the only Boston printer of that faith. If I were writing a historical novel, I’d put young Howe into that building.

The Boston Gazette report is clear that the shot from the print shop caused people in the procession to break in. Mason’s account says the opposite: when members of the crowd “endeavour’d to force the Door,” a frightened boy inside fired the gun. Both sides had every reason to present themselves as the party under threat, indeed many incentives to think of themselves as the party under threat, so I don’t see any way to work that out.

It’s notable that the Boston Gazette made no mention at all of the merchants’ confrontation with John Mein earlier in the day. That makes that paper’s claim that someone fired a gun “for what Reason we know not, as no injury seemed designed them,” more than a little disingenuous. When the whole town was buzzing that your boss, already unpopular, had fired a pistol recklessly in public and was being hunted by the authorities, you could reasonably worry about being injured.

The Boston Post-Boy also declined to report in detail on the confrontation with Mein in its 30 October issue, saying, “as we are informed a Warrant has been issued upon the Occasion, we do not think it proper at present to give a particular relation of the Circumstances of that Affair.” That looks like a cop-out, but at least those printers gave a legal reason.

One last observation about the gunshot from the printing office: this was the third instance of gunfire in Boston in one week of October 1769. There would be more, most memorably in late February and early March of 1770. In all those cases, the shots were fired by employees or supporters of the Crown. Not until late 1774, as the Massachusetts Government Act provoked violence against mandamus Councilors, did any Whig or Patriot fire at a supporter of the royal government. (It’s not clear what James Otis, Jr., was shooting at when he fired out his windows in April 1770.)

That pattern reflects how the Crown supporters were heavily outnumbered. The soldiers marching home from the Neck on 24 October were under assault from a crowd, albeit one trying to enforce a writ. Four days later, John Mein was surrounded by a crowd. The young lad inside Mein’s office apparently felt threatened by a crowd. Months later, Ebenezer Richardson saw his house being attacked, and Pvt. Edward Montgomery had just been knocked down by something thrown from a mob when he shouted to his fellow soldiers to shoot on 5 Mar 1770.

Firing a single-shot musket without a bayonet was a desperate move. It raised the level of violence and the anger of the other side while leaving the shooter essentially defenseless for the next minute at least. Those gunshots show how desperate some Bostonians were feeling.

COMING UP: George Gailer’s experience.

A Sestercentennial Stand-Off on King Street

By publishing Customs house documents that embarrassed the Whig merchants of Boston, John Mein knew that he made himself unpopular.

In fact, a confidential informant, the painter George Mason, told Customs Collector Joseph Harrison on 20 Oct 1769 that Mein was “oblig’d to go Arm’d, and ’tis but a few Nights since that two Persons who resembled him pretty much were attack’d in a narrow Alley with Clubs, and would in all probability have lost their Lives if the Mistakes had not been timely discover’d.”

Mein’s insulting “Characters” of top Whigs, published in his Boston Chronicle newspaper on 26 October and republished in a pamphlet two days later, pushed some of those enemies over the edge. Toward the end of the day on Saturday, 28 October, Mein and his printing partner John Fleeming, were walking along King Street.

Merchant captain Samuel Dashwood (1729?-1792) confronted Mein, angry at being called “the Grunting Captain.” With him were other Whig merchants, such as William Molineux (1713?-1774), Edward Davis (1718-1784), and Duncan Ingraham (1726-1811). Two of those men were in their forties, the other two in their fifties, but they were about to behave like the twenty- and thirtysomething gentlemen who had thrust themselves into the Otis-Robinson fight the month before.

According to Mein, writing on 5 November:

Davis first made a push at me with his Cane which struck me on the left side of the belly, and has left a Bloody Contussion, which now, 8 days after, still remains with great hardness all round; on being struck I immediately took a Pistol out of my Pocket, cocked, and presented it; instantly a large Circle was formed

As one would expect.

Mein, pointing his pistol, backed toward the main guard near the Town House (now the Old State House). “I often told them I would shoot the first Man who touched me,” he declared. Fleeming followed. The crowd, still at a distance, grew larger. Shopkeeper and importer Elizabeth Cumings, visiting a friend on King Street, heard “a violent skreeming Kill him, kill him” outside. Mein said people were throwing things. He spotted selectman Jonathan Mason within the crowd.

The main guard was the building where the army organized its sentries and patrols, where soldiers on duty that night were gathered. As the printer approached, an officer recognized him and “desired the Centries to keep their Posts clear” of people. Those soldiers probably stepped forward and presented their bayonets. Mein began “cooly stepping up the Guardroom steps.”

Thomas Marshall (1719-1800, shown above) didn’t want to see Mein get away. He was a tailor with a shop on King Street, but he was better known in Boston as the colonel in charge of the town’s militia regiment. Mein listed Marshall among the men who had first confronted him, but it seems just as likely that he came out of his store after he heard the commotion.

The colonel grabbed “a large Iron Shovel” from the hardware shop of Daniel and Joseph Waldo, the sign of the Elephant. He slipped around the sentries and came at Mein from the rear, swinging the shovel. Mein stated, “the Blow cut thro’ my Coat & Waistcoat, and made a Wound of about two Inches long in my left Shoulder.”

And then a gun went off.

TOMORROW: Manhunt.

Clues to Young George’s Education

A couple of months back, the Oxford University Press blog ran an extract from Kevin J. Hayes’s George Washington: A Life in Books discussing the first President’s school days and early reading.

Here’s an extract from that extract:

Further evidence shows that at one point in his education Washington did attend school with other boys. Friend and fellow patriot George Mason mentioned to him a man named David Piper, whom he described as “my Neighbour and Your old School-fellow.” Like Washington, Piper would turn to surveying once he left school, becoming surveyor of roads for Fairfax County. He was also something of a bad boy. Piper was repeatedly brought to court on various civil and criminal matters. Together Washington and Piper could have attended school at the Lower Church of Washington Parish, Westmoreland County, where Mattox Creek enters the Potomac River, but there is no saying for sure. The story of Washington’s education is shrouded in mystery.

His school exercises indicate what he studied inside the classroom and out. They show him mastering many different subjects, learning what he would need to make his way through colonial Virginia whether that way took him down a deer track or up Duke of Gloucester Street. Some of the exercises are dated, revealing that this set of school papers as a whole ranges from 1743 to 1748, that is, from the year Washington turned eleven to the year he turned sixteen. Other evidence demonstrates that he continued his studies beyond the latest exercises in the manuscript collection. Altogether the exercises and the books Washington read during his school days reveal his early literary interests, his fascination with mathematics, and the genesis of his career as a surveyor.

Washington became curious about poetry in his youth, as two manuscript poems that survive with the school exercises reveal. When he first read these poems, he transcribed them to create personal copies he could reread whenever he wished. His copies reveal Washington’s ambition to excel in penmanship, and their texts shed light on his state of mind at the end of adolescence.

I’m not convinced about that last interpretation. A big part of a gentleman’s education in the eighteenth century was learning elegant handwriting, and boys learned that by copying models provided or written out by their teachers. These poems, which appeared in The Gentleman’s Magazine in 1734 and 1743, might therefore have been handwriting exercises, with their content mattering less than their form.

Certainly young George set down those two poems in a handsome hand. In the same copybook he wrote out twenty-one pages of legal forms, instructions “To Keep Ink from Freezing or Moulding,” and the famous “Rules…of Civility & Decent Behaviour in Company and Conversation.”

“Mr. Mason’s objection to the President’s power of pardoning”

Among George Mason’s objections to the proposed U.S. Constitution of 1787 was that it gave too much power to the President.

Specifically, Mason feared that a President would abuse the power to pardon criminals. On the back of a committee report, he wrote:

The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.

At the Virginia ratifying convention that began in June 1788 Mason expounded on that danger:

Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

By then Mason’s notes had been circulated and printed, so advocates for the Constitution were prepared for his argument. Early in the ratifying debate George Nicholas responded that the threat of impeachment was crucial to ensuring government officials, including the President, didn’t abuse their powers:

In England, very few ministers have dared to bring on themselves an accusation by the representatives of the people, by pursuing means contrary to their rights and liberties. Few ministers will ever run the risk of being impeached, when they know the king cannot protect them by a pardon. This power must have much greater force in America, where the President himself is personally amenable for his mal-administration; the power of impeachment must be a sufficient check on the President’s power of pardoning before conviction. 

James Madison made the same point at more length. As the record of that state convention says:

Mr. MADISON, adverting to Mr. Mason’s objection to the President’s power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate; because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity. It was an established practice in Massachusetts for the legislature to determine in such cases. It was found, says he, that two different sessions, before each of which the question came with respect to pardoning the delinquents of the [Shays] rebellion, were governed precisely by different sentiments: the one would execute with universal vengeance, and the other would extend general mercy.

There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

Madison thus declared that Congress could impeach the President not just if he pardoned someone to protect himself, but “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him.”

Madison also suggested something the Constitution didn’t have an explicit provision for at the time: suspending an impeached President and Vice President and replacing them with “a temporary appointment” until the Senate ruled on their guilt.

“The army shall not consist of more than — thousand men”

When John Francis Mercer arrived late at the Constitutional Convention on 6 Aug 1787, he was only twenty-eight years old—the second youngest man there. But he wasn’t shy about speaking up.

The day after Mercer signed in, James Madison’s notes portray the young Maryland delegate as saying, “The Constitution is objectionable in many points, but in none more than the present” issue. The next day: “Mr. MERCER expressed his dislike of the whole plan, and his opinion that it never could succeed.”

This Teaching American History profile says Mercer attended the convention until 16 August, but Madison recorded him speaking the following day as well. That was his last documented contribution to the debate. But did he stick around silently (or silently enough for Madison not to quote him)?

On Saturday, 18 August, George Mason and Elbridge Gerry (shown above) spoke at length about the danger of a standing (permanent) army and the value of a militia system. Madison’s notes say:

Mr. MASON introduced the subject of regulating the militia. He thought such a power necessary to be given to the General Government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The militia ought, therefore, to be the more effectually prepared for the public defence. . . .

Mr. GERRY took notice that there was no check here against standing armies in time of peace. The existing Congress is so constructed that it cannot of itself maintain an army. This would not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission. He suspected that preparations of force were now making against it. [He seemed to allude to the activity of the Governor of New York at this crisis in disciplining the militia of that State.] He thought an army dangerous in time of peace, and could never consent to a power to keep up an indefinite number. He proposed that there should not be kept up in time of peace more than — thousand troops. His idea was, that the blank should be filled with two or three thousand.

That seem to be the basis of the anecdote about George Washington that I quoted yesterday: “A member made a motion that congress should be restricted to a standing army not exceeding five thousand, at any one time.” Supposedly Washington, chairing the convention, whispered to a Maryland delegate “to amend the motion, by providing that no foreign enemy should invade the United States, at any one time, with more than three thousand troops.”

Mercer, uncle of the Virginia legislator who told that story in 1817, seems the most likely candidate to have been that Maryland delegate. However, Madison’s notes make no mention of Mercer in the discussion that followed:

Mr. L[uther]. MARTIN and Mr. GERRY now regularly moved, “provided that in time of peace the army shall not consist of more than — thousand men.”

General [Charles Cotesworth] PINCKNEY asked, whether no troops were ever to be raised until an attack should be made on us?

Mr. GERRY. If there be no restriction, a few States may establish a military government.

Mr. [Hugh] WILLIAMSON reminded him of Mr. MASON’S motion for limiting the appropriation of revenue as the best guard in this case.

Mr. [John] LANGDON saw no room for Mr. GERRY’S distrust of the representatives of the people.

Mr. [Jonathan] DAYTON. Preparations for war are generally made in time of peace; and a standing force of some sort may, for aught we know, become unavoidable. He should object to no restrictions consistent with these ideas.

The motion of Mr. MARTIN and Mr. GERRY was disagreed to, nem. con.

“Nem. con.” meant that motion to limit the army was voted down unanimously.

Was John F. Mercer even present that day? As I said above, Mercer doesn’t appear in Madison’s notes after 17 August, and he left the convention sometime before its end because he disagreed with its goal. But the anecdote about Washington’s whisper, if we believe it, hints that Mercer was still present on 18 August.

Dr. James McHenry, another Maryland delegate Washington may have addressed so frankly, definitely was present on 18 August. He wrote brief notes on the discussion. McHenry didn’t record anything about the size of the standing army, however. That might have been because he mostly wrote down when the convention agreed to amend its draft, not when it decided not to.

Either way, there was a moment when the Constitutional Convention discussed the possibility of a numerical limit on the size of the U.S. Army. And the anecdote about Washington’s whisper described that moment almost two decades before Madison’s notes were published.

TOMORROW: John F. Mercer’s objections.

[Who was the youngest delegate to the convention? Jonathan Dayton, who had the last word in that debate over the size of the U.S. army.]

The Juntocast Tackles the Bill of Rights

For folks interested in the recent postings on the genesis of the U.S. Bill of Rights, I recommend the latest podcast discussion from the Junto, released last weekend.

Ken Owen, Michael Hattem, and Roy Rogers discuss the development of those amendments to the Constitution and how their force has changed in American history.

One point they make well which I didn’t find an opening for was how much the Bill of Rights was a political football during the larger debate over the new, larger federal government:

• George Mason and Elbridge Gerry proposed adding one to the Constitution only in September 1787, at the end of a long summer of debate. By that time, it was pretty clear that neither of them was happy with the new national structure being proposed. And their colleagues at the convention might not have been too happy with them bringing up a new issue so late.
• The Constitution’s lack of a Bill of Rights was a cause that the disparate Anti-Federalists could agree on and use to bring others to their side. Otherwise, they had different and in some cases orthogonal reasons to oppose the new plan for government.
• For the Federalists, promising to add a (vaguely defined) Bill of Rights was an easy compromise that didn’t really affect the structure or size or the national government they wanted.
• When James Madison pushed a Bill of Rights in the first U.S. Congress, many Anti-Federalists opposed his bill because they didn’t think it went far enough. They feared (rightly) that the amendments would deflate their ongoing campaign to limit the federal structure. 
• The protections for individuals in the Bill of Rights were mainly symbolic for their first century or more anyway. States weren’t required to provide the same guarantees, and the federal government didn’t prosecute a lot of people (or quarter troops in homes outside of wartime).

The last point reminds me of how often people today will complain that a company is taking away their “First Amendment rights” of free expression, and then others will point out that the First Amendment applies to government, not private entities. From 1791 through at least 1900, the First Amendment didn’t apply to state or local governments, either. So unless your state’s constitution promised freedom of speech and freedom of the press, you didn’t have those rights.

James Madison’s Bill of Rights

On 8 June 1789 James Madison arose in the U.S. House of Representatives and stated that the time had come to discuss amending the Constitution that had created that legislative body. After all, it had been meeting for two months already.

There was immediately a long debate on whether the House should go into a committee of the whole to keep its discussions private, and how such amendments would work, and so on. Ten whole pages of the House record later, Madison finally got to propose his amendments.

And they started out this way:

First.
That there be prefixed to the constitution a declaration—That all power is orginally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Madison later said, “The first of these amendments, relates to what may be called a bill of rights…” So there we have it: Madison’s proposal for a Bill of Rights, derived mainly from George Mason.

That language looks nothing like what we know as the Bill of Rights. Even the ideas that the two texts express are quite different. (When we look for an official expression of the rights of “life and liberty” and the people’s power to “change their government,” we go back further to the Declaration of Independence.)

Obviously, when Madison thought of a Bill of Rights, he thought of a law expressing the fundamental relationship between people and government, not an enumeration of specific rights or legal protocols.

TOMORROW: So where did the U.S. Bill of Rights come from?

Robert Whitehill and the Campaign for a Bill of Rights

Robert Whitehill (1738-1813) was a farmer and politician from central Pennsylvania. He was in the group of democrats who created the state’s 1776 constitution, which started with a Declaration of Rights.

When Pennsylvania held a convention to decide whether to ratify the new U.S. Constitution of 1787, Whitehill opposed it, not wanting a stronger national government. He cited the lack of a Declaration or Bill of Rights on the federal level as a reason to vote against the new document, reading a petition from his home county specifying such rights. (He apparently wrote the petition.)

The Pennsylvanian convention’s delegates disagreed with Whitehill’s position, and some felt he was out of line suggesting such changes. The state approved the Constitution on 12 Dec 1787, delegates voting 46-23. Though that was a big majority, the votes in Delaware and New Jersey that same month were unanimous in favor of the new document, so that was the biggest opposition so far outside of Rhode Island.

Whitehill and twenty of his colleagues then issued a minority report and dissent, putting that petition into print. By that time, George Mason’s objections to the Constitution were already in print, and newspapers were publishing many essays about the issue.

The ratification process continued to roll through the U.S. until a close vote in the Massachusetts ratifying convention: 187-168. That vote was the result of a compromise allowing the dissenters to specify amendments they wanted to see. The Massachusetts objections said little about individual rights and were therefore not based on Whitehill’s or Mason’s main arguments.

When New Hampshire ratified the Constitution in June, nine of the thirteen states had assented to it. Under the rules the Constitutional Convention had stated and the Continental Congress approved, that meant the document was officially accepted. However, it got a big boost when Virginia, the biggest state, approved later in June with its own list of recommended amendments.

At that point, Whitehill realized that the Constitution would take effect. But he, and other opponents, still wanted to see a Declaration of Rights. So Whitehill and other dissenters in Cumberland County, Pennsylvania, gathered at James Bell’s tavern in what’s now Silver Spring Township.

They drafted this circular letter to like-minded men in other counties:

East Pennsborough, Cumberland, July 3, 1788.

SIR:

That ten states have already unexpectedly, without amending, ratified the constitution proposed for the government of these United States, cannot have escaped the notice of the friends of liberty. That the way is prepared for the full organization of the government, with all its foreseen and consequent dangers, is too evident, and unless prudent steps be taken to combine the friends to amendments in some plan in which they may confidently draw together, and exert their power in unison, the liberty of the American citizens must lie at the discretion of Congress, and most probably posterity become slaves to the officers of government.

The means adopted and proposed by a meeting of delegates from the townships of this county for preventing the alleged evils, and also the calamities of a civil war, are, as may be observed in perusing the proceedings of the said meeting herewith transmitted, to request such persons as shall be judged fit within the counties, respectively, to use their influence to obtain a meeting of delegates from each township, to take into consideration the necessity of amending the constitution of these United States, and for that purpose to nominate and appoint a number of delegates to represent the county in a general conference of the counties of this commonwealth, to be held at Harrisburg on the third day of September next, then and there to devise such amendments, and such mode of obtaining them, as in the wisdom of the delegates shall be judged most satisfactory and expedient.

A law will, no doubt, be soon enacted by the General Assembly for electing eight members to represent this state in the new Congress. It will, therefore, be expedient to have proper persons put in nomination by the delegates in conference, being the most likely method of directing the voices of the electors to the same object and of obtaining the desired end.

The society, of which you are chairman, is requested to call a meeting agreeable to the foregoing designs, and lay before the delegates the proceedings of this county, to the intent that the state may unite in casting off the yoke of slavery, and once more establish union and liberty.

By order of the meeting, I am with real esteem, sir,
Your most obedient servant,

BENJAMIN BLYTH, Chairman.

The letter didn’t mention a “Bill of Rights,” but that was the biggest change its authors wanted.

And that letter provides what significance in political history that partially demolished stone building beside the Harrisburg Pike has. It was where the men of Cumberland County called for a larger meeting of Pennsylvanians to organize a campaign for constitutional amendments and likeminded U.S. Congress candidates.

With Whitehill’s own estate gone (though noted with a historical marker), I think we can definitely say that the James Bell Tavern is the most important site in the campaign for the U.S. Bill of Rights in Cumberland County, Pennsylvania. Whether it’s the most important such site in Pennsylvania as a whole is another question. And on a national scale it’s just one of many places where people advocated for changes to the U.S. Constitution. The push for what became our Bill of Rights was a mass political movement, not the product of any single man or event.

It’s sometimes said (by Pennsylvanian authors) that James Madison drew on Whitehill’s writing when he proposed the Bill of Rights in the Congress in late 1789. However, his language came mostly from the Virginian convention, and it was influenced most by a fellow Virginian, George Mason.

TOMORROW: And what happened to that language, anyway?

The Father of the Bill of Rights

If we Google “Father of the Bill of Rights,” the name that pops up more than any other is George Mason of Virginia.

It’s true that ExplorePAHistory says of Robert Whitehill, “it is not too much of an exaggeration to call him the father of the Bill of Rights.” That formulation reminds me of Boston Globe columnist Alex Beam’s argument that the basic meaning of the word “arguably” is “even I don’t really believe this.” It’s no surprise that Whitehill, like that website, was Pennsylvanian.

Mason is often credited as “Father of the [U.S.] Bill of Rights” because he:

• drafted one of its major precedents, the Virginia Declaration of Rights of 1776.
• advocated adding clauses on individual and state rights to the Constitution during the drafting convention on 12 Sept 1787. (Massachusetts’s Elbridge Gerry proposed such a declaration and Mason seconded it.)
• refused to sign the final document after that proposal lost by a whopping 10-0. (Gerry refused, too, as did Luther Martin of Maryland.)
• published a pamphlet about how a Declaration of Rights should be part of the Constitution.
• proposed calling for a Declaration of Rights at the Virginia ratifying convention.
• sent those clauses to John Lamb in New York for that state’s convention.
• somehow also provided the model for the proposals from North Carolina and Rhode Island, too.
• was the author James Madison drew on when he made a formal proposal of amendments in the U.S. Congress on 8 June 1789.

All of which adds up to a mighty strong claim that Mason was the individual most responsible for those proposals.

TOMORROW: So what did Robert Whitehill do? And what does that have to do with that partly demolished tavern in central Pennsylvania?

Washington Orders More Sashes

In the fall of 1774, as they heard about the crisis in Massachusetts, George Mason and his Fairfax County neighbors organized an “independent” militia company outside Gov. Dunmore’s control. For their commander they naturally chose Col. George Washington, then away at the First Continental Congress.

When he received this news (probably not altogether unexpected), Washington bought new clothes. In a letter that appears to be lost, he sent to the Philadelphia merchant William Milnor for some of the insignia that a military officer needed. On 29 November, Milnor wrote back:

your favour of the 17th. Inst. [i.e., this month] came to hand on fryday last, I have made the strictest search, after a Sash and have sent the only one, that is to be had in this City, I am sorry to inform you, tis not intirely New tho’, not much changed. I have bought it Conditionally if not approved of, to be sir returned by the first post & taken again, I had no Alternative, as no Other Could be had…

It looks like Washington kept that “not intirely New” sash. Over the winter other Virginia counties also started to organize independent companies, and several applied to Washington to be their colonel and/or to order supplies for them. On 23 Jan 1775 he wrote to Milnor about muskets, cartouche boxes, and more:

I have lately received a request from the Officers of the Prince William Independant Company, for the following Articles;

4 Officers Sashes like the one you sent me...

But in Philadelphia those supplies were still hard to find. Having visited Mount Vernon early in the month, Milnor wrote back on 21 February:

As to Sashes, the Maker tells me, he thinks, he cannot get Silk Enough, for more than three, those he will have done in three weeks, they will come at Nine pounds each perhaps by the time they are done we may find more Silk—. The Gorgets, Shoulder Knots &c I have bespoke & will send all, as soon as possible—

But on 7 March:

I have Just to mention that the Sashes are all like to be done soon, Silk enough for the whole is procured, the Gorgets will be done about the same time the shoulder Knots are all finished, I hope I shall have them all to send by Peter Jones, he leaves this place on the 19th. Inst:

Jones probably didn’t bring the good news (or sashes) that Washington hoped for, and in early April  he evidently passed on the news of the shortage to William Grayson of Dumfries, Virginia, in Prince William County. On 5 April Grayson replied:

it is the desire of our Officers, that if they can’t be furnished with such sashes, as are proper; they would not incline to have any; but this matter is altogether left to yourself, as the person most capable of determining…

So everything was up to Col. Washington.

TOMORROW: What did Washington decide?