“He would produce a better one”

In investigating the anecdote about George Washington’s whisper at the Constitutional Convention, I started to wonder about the political views of Maryland delegate John Francis Mercer.

Mercer arrived at the Philadelphia convention on 6 Aug 1787. On that day he told his fellow Marylanders that he didn’t think the government set up by the Articles of Confederation “was susceptable of a revision which would sufficiently invigorate it for the exigencies of the times.”

But a couple of days later Mercer told James McHenry “that he did not like the [newly proposed] system, that it was weak—That he would produce a better one since the convention had undertaken to go radically to work, that perhaps he would not be supported by any one, but if he was not, he would go with the stream.”

Remember that Mercer was only twenty-eight years old, younger than all but one delegate, and he had arrived after the other men had been working out issues and compromises for months. I can’t imagine his brand-new proposals were welcomed with any enthusiasm.

Mercer is often grouped with the Anti-Federalists who preferred to keep more power with the states, such as his Maryland colleague Luther Martin. But at the convention, Mercer’s big complaints had to do with the relationship between the branches of the federal government. At times he argued for strict separation of powers, speaking out against Senate approval of treaties (an executive function, he said) and judicial review of laws (a legislative function).

On 14 August, the debate focused on what might seem like a quaint question: whether the President could appoint legislators to positions in the government. On that question, Mercer didn’t want to maintain the separation between executive and legislative. He delivered his longest argument to get into James Madison’s notes, revealing his political philosophy:

It is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. Elective governments also necessarily become aristocratic, because the rulers being few can and will draw emoluments for themselves from the many. The governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the governors, not of the people. The people are dissatisfied, and complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability and uncertainty to their other evils.

Governments can only be maintained by force or influence. The Executive has not force,—deprive him of influence, by rendering the members of the Legislature ineligible to Executive offices, and he becomes a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder.

The Legislature must and will be composed of wealth and abilities, and the people will be governed by a junto. The Executive ought to have a Council, being members of both Houses. Without such an influence, the war will be between the aristocracy and the people. He wished it to be between the aristocracy and the Executive. Nothing else can protect the people against those speculating Legislatures, which are now plundering them throughout the United States. . . .

Mr. MERCER was extremely anxious on this point. What led to the appointment of this Convention? The corruption and mutability of the legislative councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities, to support and enforce it: nor will the best part of our citizens exert themselves for the purpose.

It is a great mistake to suppose that the paper we are to propose will govern the United States. It is the men whom it will bring into the Government, and interest in maintaining it, that are to govern them. The paper will only mark out the mode and the form. Men are the substance, and must do the business.

All government must be by force or influence. It is not the King of France, but 200,000 janissaries of power, that govern that kingdom. There will be no such force here; influence, then, must be substituted; and he would ask, whether this could be done, if the members of the Legislature should be ineligible to offices of State; whether such a disqualification would not determine all the most influential men to stay at home, and prefer appointments within their respective States.

Madison added, “On these points he was opposed by Elbridge Gerry.” Gerry was another of the convention’s champions of keeping more power in the states and of limiting the executive power.

Mercer left the convention early and opposed ratification of the Constitution. When the nation ratified the plan anyway, he served some terms in the U.S. Congress, allying himself with the Jeffersonian party that included Martin and Gerry. But I don’t think Mercer was with them during the convention.

“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.]

Washington’s Whisper

In 1817, the Philadelphia Federalist magazine The Port Folio (possibly cribbing from an unnamed newspaper) published this anecdote about the Constitutional Convention:

Anecdote of [George] Washington.—In debate, in the house of delegates of Virginia, 1817, on the bill relative to a map of the state, in which something was said of military roads, Mr. Mercer, (L) related and applied an anecdote of general Washington, which he had received from a member of the convention that formed the constitution of the United States.

The subject of power to be given the new congress, relative to a standing army, was on the tapis. A member made a motion that congress should be restricted to a standing army not exceeding five thousand, at any one time. General Washington, who, being chairman, could not offer a motion, whispered to a member from Maryland, 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.

This story struck me as odd for Washington. If we’d heard about that quip without knowing who said it, we’d ascribe it to Benjamin Franklin or Gouverneur Morris or someone else known for sarcastic wit. Washington was indeed a stickler for protocol as chairman—so much so that I was surprised that he might violate neutrality even in this whispered way. So I got curious about whether I could tease out any more information about this story’s provenance.

During the 1816-17 legislative session, the Virginia House of Delegates did indeed debate a bill about “a map of the state.” Formally it was “An act ‘to repeal in part an act entitled “an act to provide an accurate chart of each county, and a general map of the territory of this Commonwealth,”[’”] but some earlier law needed amending in order to get the work done.

The reference to “Mr. Mercer, (L)” confused me until I figured out there were two men named Mercer in the Virginia House of Delegates that term. John Mercer represented Spottsylvania County, and Charles Fenton Mercer represented Loudoun County. The “(L)” stood for Loudoun and was a way to designate the right man.

Charles Fenton Mercer was a nephew of John Francis Mercer (1759-1821), who spent a couple of weeks at the Constitutional Convention in August 1787 representing Maryland—and thus fits the description of the source for this story.

Washington was well acquainted with John F. Mercer, having employed his older half-brother George as an aide de camp during the Seven Years’ War. (George Mercer’s career in Virginia ended after he accepted the job of stamp master in 1765.) John F. Mercer himself served in the Revolutionary War as an officer under the general’s second cousin William Washington, as an aide to Gen. Charles Lee in 1778-79, and finally as a cavalry officer at Yorktown.

The Mercers owed Washington money, resulting in a long correspondence from 1783 on. In 1786, for instance, Washington wrote a letter to John F. Mercer with a notable remark on slave-trading. They also discussed the debt in Philadelphia during the summer of 1787.

TOMORROW: When could this exchange about a standing army have happened?