Like most days during the summer of 1787, the large second-floor windows of the Pennsylvania Statehouse collected the sunlight and distributed it across a sea of papers on top of tables covered with green cloth. But on Friday, August 31, most delegates to the Constitutional Convention did not notice the sunlight. Inside the room, few were smiling.
For New Jersey delegate David Brearley and other proponents of a strong Constitution, Friday, August 31, was quite possibly the darkest day of the entire convention. From the opening gavel, the debate that day was marked by despair and doubt, as one delegate after another questioned whether the Constitution as written could win ratification — and, indeed, whether it should.
James Madison, who felt that the Constitution on which were they were working was far superior to the Articles of the Confederation, proposed that approval by a bare majority of states and population — “Any seven or more states entitled to thirty three representatives at least in the House of Representatives” — should be sufficient for ratification.
But Roger Sherman of Connecticut said it would be ”a breach of faith” to require ratification by any fewer than all 13 states, given the unanimity required under the current Articles of Confederation. “Perhaps all the States may concur,” he said hopefully, conveniently ignoring Rhode Island’s boycott of the Convention and New York’s walkout.
Luther Martin punctuated a lengthy debate over whether ratification should be required by state conventions or left up to state legislatures with the observation that in his state of Maryland, it it didn’t matter “whether the Legislature or the people should be appealed to. Both of them would be generally against the Constitution.”
Elbridge Gerry of Massachusetts denounced the system being established under the new Constitution as “full of vices” and said it would be improper to destroy “the existing Confederation, without the unanimous consent of the parties to it.”
Gerry urged postponement of the whole question of ratification, and his motion was seconded by the influential George Mason of Virginia, “declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands.” Mason wanted the outstanding issues resolved, and if he did not agree with the solution, he wanted another Convention.
Gouverneur Morris of Pennsylvania said he was ready for postponement to another Convention “that will have the firmness to provide a vigorous Government, which we are afraid to do.”
Finally, Virginia’s Edmund Randolph, who had worked with Madison to create the Constitutional Convention, said that if “the final form of the Constitution should not permit him to accede to it, that the State Conventions should be at liberty to propose amendments to be submitted to another General Convention which may reject or incorporate them” — a proposal that raised the possibility that a new Convention could undo all the work of the current Convention, even if the states somehow ratified the Constitution.
At the end of the day, after voting to allow ratification by conventions of nine states, the exhausted delegates agreed to a suggestion by Roger Sherman to refer all remaining unresolved issues, including how to elect a President, to a new Committee on Unresolved Disputes, made up like all other committees of one delegate from each state.
The day’s debate had underscored the fragility of the compromises worked out so far and the importance of the compromises to come, and that was reflected in the choice the various state delegations made. This new Committee of Eleven would be a particularly strong committee, and it would be made up of proponents of a strong Constitution.
The committee included such leading lights as Sherman, Gouverneur Morris, and <a href=http://www.army.mil/cmh-pg/books/RevWar/ss/dickinson.htm>John Dickinson</a> of Delaware. But just as important were those left off.
Virginia would be represented by Madison, not by the angry Randolph or the hostile Mason.
Maryland’s committee member would be Daniel Carroll, not the irascible and verbose Luther Martin.
Massachusetts would be represented by Rufus King, not the uncompromising Gerry.
Consciously or not, the state delegations were putting together a committee not only capable of, but committed to, reaching the difficult compromises needed to avert another Convention.
New Jersey’s choice was easy: It was David Brearley, who not only had been there from the beginning, but had proved his ability to work with delegates from other states to forge new coalitions in developing the New Jersey Plan and ultimately incorporating its main principles into the Constitution that now had to be saved.
The choice of a chairman was left up to the committee members, and their choice was Brearley.
The selection of Brearley as chairman reflected the emergence of a new majority coalition of seven states committed to a strong national government, but only within a federal context that recognized the rights of individual states. New Jersey, Connecticut, Maryland, and Delaware, who had developed and fought for the New Jersey Plan, now made up the core of a bloc that also included Massachusetts, Georgia, and newly arrived New Hampshire. Madison’s Virginia, along with Pennsylvania and the Carolinas, was now in the minority.
Considering the importance of the committee, Brearley’s selection as chairman also was a mark of the respect he had earned during the preceding three months, not for his oratorical skills, which were admittedly modest, but for his ability to develop alternative solutions to complex problems. He had worked with delegates from four other states with very different interests in developing the New Jersey Plan, and his fellow delegates knew that he was the one who ran the numbers used to determine representation under various models. Brearley did his best work in small committees and small groups. He was a good listener, and his judicial precision would be needed in drafting the compromises to be presented to the full Convention. His leadership in the Masons and the Society of the Cincinnati provided important fraternal ties in almost every state delegation. Finally, Brearley’s willingness to carry out his duties quietly and without braggadocio, which he demonstrated throughout his career, made him well-liked in a Convention filled, as would be expected, with giant egos.
Like Madison, Brearley, at age forty-two, was one of the younger generations of delegates, but he was, almost literally, born to revolution. Brearley was just two years old when his father, David Brearley Sr., was charged with high treason for his leadership role in the land riots against Crown and Proprietary interests that swept New Jersey in the mid to late 1740s. Brearley was arrested and jailed in Trenton, but a mob of supporters “armed with Clubs and Cudgells” broke into the prison and freed him.
David Brearley Jr. became a lawyer and opened a practice in Allen’s Town (now Allentown), where he served as Monmouth County surrogate of wills and deeds under a commission from Royal Governor William Franklin. He married Elizabeth Mullen, a Trenton beauty who came with a six-year-old daughter she had had out of wedlock with a British ensign of noble birth who had been stationed at the Old Barracks.
Brearley was commissioned a lieutenant-colonel in the Monmouth County Militia in 1775. He would have served as a delegate to the New Jersey Convention that met in June 1776 to draft the first state constitution, but he spent the month suppressing a nascent Tory uprising in Monmouth County. In July, he joined Washington’s Army as a lieutenant-colonel in the newly formed New Jersey Brigade.
For three years, Brearley served as lieutenant-colonel of the prestigious First Battalion under Brigadier-General William Maxwell and Colonel Matthias Ogden, serving in the battles of Brandywine, Germantown, and Monmouth, He put his legal training to use at Valley Forge, presiding over at least two courts-martial. He was an advocate for his soldiers, firing off a letter co-signed by Colonel Israel Shreve to Governor William Livingston in 1778 complaining that:
The condition of the New Jersey troops is such that it would be criminal to keep silent longer… four months’ pay for a private will not procure his wretched wife and children a single bushel of wheat…. New Jersey soldiers are as brave as any. Why they should be neglected is a problem in politics hard to explain.
Brearley’s competence attracted the attention of General Washington. When Washington wrote to Maxwell in August 1778 urging that a very vigilant, intelligent officer should be dispatched with 50 men to monitor the British fleet at Sandy Hook, he suggested that Brearley “would be very proper for this business.”
Brearley’s competence also had drawn the attention of Livingston and the New Jersey Legislature, though. On June 10, the thirty-four-year-old Brearley was selected to serve as the second Chief Justice of the New Jersey Supreme Court. Brearley, who was with his troops in the Wyoming Valley preparing to march against the Iroquois, wanted to stay in the army and ignored the first letter. But when Livingston wrote to him a second time, he reluctantly agreed to serve.
He opened his first Court of Oyer and Terminer on July 27, 1779, at the Monmouth County Courthouse in Freehold, just a few miles from the battleground where he and Ogden had helped to cover General Charles Lee’s retreat just 13 months before.
Brearley quickly established a reputation for judicial independence, issuing the most important ruling of his career on September 7, 1780, in Trenton. In what was probably an oral opinion,
Brearley overturned the convictions of two Monmouth County men who had been charged with trading with the enemy after being seized with $70,000 worth of fine silks and other goods. Brearley ruled that the law passed by the Legislature allowing trials in contraband cases by a jury of six violated the New Jersey Constitution of 1776 that required trial by a jury of twelve.
Holmes v. Walton was the first case in the history of the United States in which a law was declared unconstitutional, coming six years before the 1786 Rhode Island decision in Trevett v. Weeden and seven years before the North Carolina ruling on Bayard v. Singleton. It would be cited by Gouverneur Morris in a Pennsylvania debate in which he warned his fellow legislators against the danger of passing unconstitutional laws. And it was the first precedent for U.S. Chief Justice John Marshall’s landmark ruling in Marbury v. Madison, a decision he made with Associate Justice William Paterson, who was New Jersey’s attorney-general at the time of Brearley’s decision, at his side.
Politically, Brearley’s decision overturning the convictions of the two smugglers aroused an uproar, but Brearley’s personal popularity in Monmouth County and his war record defused some of the criticism. Livingston and the Legislature passed new legislation requiring trial by a jury of twelve — a decision that effectively recognized the power of the courts to declare laws unconstitutional — but with a provision suggested by the savvy Brearley allowing those whose convictions were overturned under the old law to be retried.
In the middle of the furor over Holmes v. Walton, Brearley was nominated for governor and finished second with six votes to Livingston’s twenty-eight. Because Livingston was a generation older, the potential political rivalry did not affect the close working relationship they developed.
Brearley, Paterson, and William Churchill Houston, a former professor at The College of New Jersey (now Princeton University) who served as Clerk to the Supreme Court under Brearley, made up New Jersey’s initial delegation to the Constitutional Convention in Philadelphia. When Houston became too ill to serve, Livingston and young Jonathan Dayton were added to the delegation.
Paterson and Brearley worked as a team for six weeks to defeat the centerpiece of Madison’s “Virginia Plan,” which called for representation in both houses of the new Congress to be based on population, a system under which Virginia, Pennsylvania, Massachusetts, and New York would have dominated the new government.
Brearley did not argue in debate that giving each state an equal vote was fair. Instead, he proposed a radical solution:
If we must have a national government, what is the remedy? Lay the map of the confederation on the table, and extinguish the present boundary lines of the respective state jurisdictions, and make a new division so that each state is equal — then a government on the present system will be just.
The rival “New Jersey Plan” that Brearley and Paterson developed with delegates from Delaware, Maryland, Connecticut, and New York called for equal votes for each state in a single-house Congress, but Brearley and Paterson were more than happy to agree to the “Connecticut Compromise” ultimately advanced by Sherman that gave each state equal representation in the Senate in exchange for representation by population in the House.
On broader issues, Brearley, Paterson, and Livingston were committed to the need for a new Constitution and favored greater power and independence for the executive and judicial branches than the Virginia Plan originally envisioned. Brearley, Paterson, and Livingston all had bridled under the legislative dominance written into the New Jersey Constitution of 1776, and Brearley, as the author of Holmes v. Walton, was determined to defeat Madison’s proposal to have a “Council of Revision” including members of the executive branch rule on the constitutionality of laws before they were enacted. In this, as in most of his goals for the Convention, he succeeded.
Brearley wasted no time in getting the newly formed Committee on Postponed Matters to work, calling a meeting that night. “Chaired by the faithful Judge Brearly,” historian Clinton Rossiter wrote, “this admirable committee moved in as a rescue party to make up the Convention’s mind.”
The following morning, Saturday, June 1, Brearley reported to the Convention that his Committee of Eleven had already reached agreement on one issue. He read the proposed language: “That in lieu of the 9th section of article 6, the words following be inserted viz. ‘The members of each House shall be ineligible to any civil office under the authority of the U.S. during the time for which they shall respectively be elected, and non person holding an office under the U.S. shall be a member of either House during his continuance in office.”
Checks and balances required clear delineation among the executive, legislative and judicial branches, and this proposal would see to it by “ruling out any possibility of a parliamentary cabinet like those in Britain.”
South Carolina’s John Rutledge then made a similarly brief report from his committee on a proposed change to establish uniform bankruptcy laws, and the Convention adjourned without debating either committee report.
As James McHenry reported taciturnly in his only note on the day’s proceedings, “Adjourned to let the committee sit.” The Brearley Committee had work to do.
While Madison, the convention’s unofficial historian, and Rufus King of Massachusetts, who also kept periodic notes of convention debates, both sat on Brearley’s committee, neither kept notes of the critical discussion, debate, deliberation and compromise that shaped the committee’s wide-ranging and often imaginative recommendations.
For constitutional scholars, Madison’s failure to do so, coupled with the absence of Brearley’s papers on the subject, is frustrating, although it is often possible to reconstruct the likely committee battle lines based on both prior and subject debates on the convention floor and on the votes of individual states on proposed amendments to the committee’s recommendations.
Brearley’s committee made no further report when the Convention reconvened Monday, September 3, at 10 a.m., but most of the day’s debate focused on the recommendation his committee had made Saturday to ban members of Congress from serving in any other federal office — which had been a highly controversial proposal to put before a Convention in which forty-two of the fifty-five delegates had served in Congress and might plan to serve again. No state government put such a prohibition on its state legislators.
King, Gouverneur Morris, and <a href=http://www.army.mil/cmh-pg/books/RevWar/ss/wiliamson.htm>Hugh Williamson</a> of North Carolina, all members of Brearley’s committee, made it clear that they favored allowing members of Congress to fill positions that opened up in the executive branch.
Connecticut’s Sherman worried that making members of Congress eligible to fill appointed positions “would give too much influence to the Executive” who controlled those jobs. Ultimately, though, it was Sherman who proposed the eventual compromise, under which members of Congress must give up their seats to fill executive or judicial branch vacancies, and are barred from appointment to any new position or any position whose salary had been increased while they had served in office.
As the chairman charged with bringing resolution to some of the convention’s thorniest issues, Brearley did not participate in the convention debates on his committee proposals. He had a role model to follow in George Washington, who chaired the full Convention with an even hand by steering clear of divisive debate.
It is clear, however, that Brearley favored the stronger language his committee originally proposed that would have barred members of Congress from filling any other federal position during the term to which they had been elected: New Jersey’s delegation of Brearley, Livingston and Dayton voted with Connecticut, Maryland and South Carolina against all three motions to water down the ban.
The committee meeting that followed Monday’s session was one of the most productive and important committee meetings of the entire convention.
This quickly became clear shortly after 10 a.m. on Tuesday, September 4, when Brearley stood at his seat and began to read from his own familiar handwriting:
The Committee of Eleven to whom sundry resolutions &c. were referred on the 31st. of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz.
(1) The first clause of sect: 1. art. 7 to read as follow -- “The Legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the U.S.” ...
For Brearley and the New Jersey delegation, announcement of this clause represented a matter of both personal and state triumph. New Jersey had sharply criticized the <a href=http://college.hmco.com/history/readerscomp/rcah/html/ah_005400_articlesofco.htm>Articles of Confederation</a> for failing to give Congress the power to tax and regulate trade. Rhode Island’s refusal to grant the 13th vote needed to give Congress that power in 1783 and the subsequent refusal of New York and Georgia to approve a similar proposal in the years that followed led directly to the Annapolis Convention of 1786, which Randolph and Madison had convened in an effort to break the deadlock that denied Congress the power to tax and regulate trade. The “New Jersey Idea” to broaden the scope of the Annapolis Convention to include “other important matters” flowed directly out of the state’s frustration with Congress’ inability to pay interest on a war debt that was held disproportionately by New Jersey’s citizens.
The New Jersey state government had struggled to raise the taxes necessary to take on those interest payments when New York, in particular, was forcing New Jersey citizens to pay New York State duties on imports that came through its port. Giving Congress the power to tax trade had been a centerpiece of the New Jersey Plan developed by Paterson and Brearley in June. And now, with the anti-Federalist two-thirds of New York’s delegation long departed for home, New York did not even have the necessary quorum to cast a vote against it.
Madison’s unbound papers included his own copy of the “Reptt. of Come. of 11” on which Madison indicated that the power to tax trade to pay off the debt and provide for the “Common defence & Genl. welfare passed nem: con: and, as appears, without debate.”
A month or two earlier, this clause would doubtless have engendered a long and bitter debate. But on Tuesday, September 5, its importance paled in comparison to what was to come. Brearley offered a short clause giving Congress the power to regulate commerce” with the Indian tribes,” in addition to foreign governments and the state governments, as previously agreed.
Then, in rapid succession, Brearley laid out a series of recommendations to select the president through an electoral college (the latest small state/large state compromise), to create a vice-president, to give the president the power to make treaties and to appoint Supreme Court justices, ambassadors, and the entire executive branch of government, to allow the president and vice-president to serve successive four-year terms, and to provide a process for their impeachment and removal from office.
Brearley began innocuously, reading undoubtedly in the same judicial tone he used to deliver judgments from the Supreme Court bench, and mentioned the Vice-Presidency for the first time almost in passing as he proceeded to unveiled what would prove to be a controversial, yet “ingenious mechanism” for the election of the President. “After the word ‘Excellency’ in sect. I. art. 10. to be inserted,” Brearley read,
He shall hold his office during the term of four years, and together with the vice-President, chosen for the same term, be elected in the following manner, viz. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Genl. Government.... The President of the Senate shall in that House open all of the certificates; and the votes shall then & there be counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors, and if there be more than one that have such a majority, and have an equal number of votes, then the Senate shall choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President. And in every case after the choice of the President, the person having the greatest number of votes shall be vice-president ...
Brearley provided no rationale for the electoral college or the vice-presidency, but continued reading. The Brearley committee’s next major recommendation required the president to be at least 35 years of age, a natural born citizen of the United States, or a citizen at the time of the adoption of the Constitution — a concession to the eight delegates born abroad, including Franklin, Randolph, and Gouverneur Morris.
As to the duties of the vice-president, which had not existed before that morning, Brearley read:
The vice-president shall be ex-officio President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside, and excepting also when he shall exercise the powers and duties of President, in which case & in case of his absence, the Senate shall chuse a President pro tempore. -- The vice President when acting as President of the Senate shall not have a vote unless the House be equally divided.
The Brearley committee, which had been stacked with some of the staunchest nationalists at the convention, clearly intended to strengthen the office of the president at the expense of the Congress, as Brearley’s next clause showed:
The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and all other public Ministers & consuls [Brearley interlined the words “& consuls” above “Ministers” on his copy], Judges of the Supreme Court, and all other Officers of the U--S--, whose appointments are not otherwsie herein provided for. But no Treaty except treaties of peace [“except treaties of peace” is interlined by Brearley as a late addition] shall be made without the consent of two thirds of the members present.
Finally, after giving the President the power to demand reports in writing from any of his Cabinet officers, Brearley concluded by enumerating the grounds for impeachment of the president:
He shall be 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 or duties of his office, the vice-president shall exercise those powers and duties until another president be chosen, or until the inability of the President be removed.
When he had finished, Brearley strode to the front of the room and handed the report to William Jackson, the convention secretary, who then read in aloud again. The contents of the Brearley Committee report may not have come as a surprise to the gathered delegates, each of whom had a colleague representing his state on the committee of eleven. Nevertheless, the breadth and sweep of the recommendations, read aloud twice in succession, undoubtedly excited the same mixture of exhilaration and trepidation that greeted Randolph when he unveiled the Virginia Plan more than three months before.
The delegates launched into what would prove to be a five-day debate over the electoral college, presidential and congressional powers, the need for a vice-president, and the impeachment process.
“The complexity of the scheme, as every delegate surely understood, stemmed in part from the Convention’s rejection of such simpler methods as direct election of the President by the people or by a joint session of Congress,” William Peters noted in his bicentennial analysis,A More Perfect Union.“But the Committee on Postponed Matters had also attempted, by involving the Senate, to steer a political course midway between the interests of the large and the small states.”
Winton U. Solberg, in his 1958 study The Federal Constitution and the Formation of the Union of the American States, noted that “the settlement from the Committee of Eleven contained something for everyone.... The new method of selecting a President conciliated republicans who feared aristocracy in the election of an executive, while awarding small states an advantage in the composition of presidential electors and in case the ballot went to” the Senate, where each state had equal votes.
Brearley’s hand can clearly be seen in the small-state/large-state compromise that gave New Jersey and Delaware three times the voice in the selection of the President and Vice-President that they should have received based strictly on population in 1787.
But that point of relative unfairness had already been debated and resolved in the minds of most delegates during the July debate in which they had agreed to a more egregiously disproportionate power-sharing in the Senate as the price for keeping the small states in the union.
The debate over the electoral college focused not on “one man, one vote” issues of electoral fairness, but on what would happen when the electoral college inevitably failed to give a majority to any candidate.
While it was tacitly understood that the man who chaired their debate, George Washington, would be elected overwhelmingly as the first President, the delegates failed to foresee the rise of national political parties and therefore failed to see how any candidate other than Washington could muster the national support needed to win a majority in the electoral college.
Brearley’s committee assumed that electors from the large states, in particular, would vote for “favorite son” candidates. In fact, the Office of the Vice-President had been created not to ensure proper succession, but was “introduced only as a valuable mode of election which required two to be chosen at the same time,” Williamson, the committee member from North Carolina, acknowledged. By requiring electors to vote for at least one candidate from another state, the Brearley Committee hoped at least one candidate would win a majority and be elected president independent of the Congress, which was the purpose of creating the electoral college in the first place.
Gouverneur Morris defended the new system on behalf of the committee, citing “the indispensable necessity of making the Executive independent of the Legislature,” and Abraham Baldwin, the committee member from Georgia, asserted that “increasing intercourse among the people of the States, would render important characters less & less unknown; and the Senate would be less & less likely to have the eventual appointment thrown into their hands.”
Many delegates were not convinced, however. “Nineteen times in twenty,” Mason predicted during the first day of debate, “the President would be chosen by the Senate, an improper body for the purpose.”
That evening, after a full day of debate, the Brearley Committee met for a final time to wrap up its work. Brearley opened the Wednesday session as he had the Tuesday session by reading his committee’s report, then handing it to the secretary for a second reading.
The committee added to the Senate power “to declare war” the right to “grant letters of marque and reprisal” to American privateers; authorized Congress to appropriate funds “to raise and support armies” for up to two years, rather than one year; established a patent system for authors and inventors; and gave the national government authority over forts, dockyards, other military installations, and up to a 10-mile-square cession of territory for a new national capital that Brearley hoped would be situated in Trenton.
The most important new provision, Brearley believed, was intended as a concession to the larger states, whose delegates had raised the most questions about the compromises developed by the Committee of Eleven the day before: All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments in the Senate. No money shall be drawn from the Treasury, but in consequence of appropriations made by law.
The new provision gave the large states, which would be paying the bulk of the taxes, control over how their taxes would be spent. But it did little to tone down the debate over the election of the president.
“We have in some revolutions of this plan made a bold stroke for monarchy,” Virginia’s Edmund Randolph warned, referrring to the proposal to allow the President to serve consecutive four-year terms, rather than being limited to one seven-year term, as the Convention had been tentatively agreedto do in July. “We are now in doing the same for an aristocracy,” he said, arguing that giving the Senate the power to elect the President would “convert that body into a real and dangerous Aristocracy.”
Mason and two influential South Carolina delegates, John Rutledge and Charles Pinckney, agreed that the Senate would be too powerful, with Mason saying he “would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.”
Maryland’s James McHenry aptly summarized Wednesday’s debate in a single sentence in his journal: “The greatest part of the day spent in desultory conversation on that part of the report respecting the mode of chusing the President — adjourned without coming to a conclusion —”
James Wilson of Pennsylvania focused Thursday’s debate with a long speech in which he argued that the net effect of the Brearley committee’s recommendations was to create “a dangerous tendency to aristocracy” and to throw “a dangerous power into the hands of the Senate.” Wilson noted that the Senate would not only have the power to elect the President if the Electoral College failed to achieve a majority, but also to rule on appointments of Executive cabinet officers and judges, to make treaties, and to be the court of impeachments. The Brearley Committee had actually taken away the power of the Senate to make executive and judicial appointments unilaterally, and given the power to nominate candidates to the president, but the convention was clearly determined to place further limitations on the Senate’s power.
Once again, it was Roger Sherman, who had suggested the creation of the Brearley committee, who came up with the critical compromise, suggesting that the power to select a President be shifted from the Senate to the House of Representatives, but with each state having one vote. The motion passed 10-1, with only Delaware in opposition.
Friday’s debate focused on the Brearley committee’s second major surprise: the creation of the v vice-presidency. Gerry, Mason and Randolph once again were the principal objectors, arguing that making the vice-president serve as president of the Senate, with the power to break tie votes, was an unacceptable executive branch encroachment on the powers of Congress.
“We might as well put the President himself at the head of the Legislature,” Gerry said. “The close intimacy that must subsist between the President & vice-president makes it absolutely improper.”
“The vice president then will be the first heir apparent that ever loved his father,” Gouverneur Morris shot back. “If there should be no vice president, the President of the Senate would be the temporary successor, which would amount to the same thing.”
The Brearley Committee’s creation of the Office of Vice-President survived, as did the president’s power to nominate and the Senate to confirm executive and judicial appointments, the Senate’s power to make treaties, the impeachment process, and the House of Representative’s power to initiate tax and appropriations measures.
By the end of Saturday’s session, a five-member Committee of Revision was appointed to make a final version of the Constitution, which, thanks to the recommendations of the Brearley Committee, now included a president and vice-president who would serve four-year terms and be eligible for reelection, a presidency strengthened by the power to nominate cabinet officers and judges, and an electoral college that balanced the interests of large and small states in the election of the president.
The following day, on September 9, Jonathan Dayton was able to write to his father, Elias:We have happily so far finished our business, as to be employed in giving it its last polish and preparing it for the public inspection. This, I conclude, may be done in three or four days, at which time the public curiousity and our desire of returning to our respective homes, will equally be gratified.
As with every piece of convention business, the final polish also took longer than promised.
The convention continued to debate potential changes, vote again on proposals that had been voted down before, and go over language submitted by the Committee of Revision on Monday, Wednesday, Thursday, Friday, and Saturday of the following week.
One of the language changes that Brearley and the New Jersey delegation found most satisfying was the explicit strengthening of Article 1, Section 10, September 12-15 to read: “No State shall, without the consent of Congress lay imposts or duties on imports or exports.”
Finally, on Monday, September 17, the convention met for the last time. Brearley, Livingston and Dayton were in their usual chairs, and Paterson, who had done so much to push the New Jersey Plan, had returned after a two-month absence for the signing.
Wilson read a long speech written by Benjamin Franklin, aimed clearly at those delegates who remained dissatisfied with the compromises contained in the new Constitution, two copies of which sat in the front of the room. Franklin was ailing, but his words were strong:
... I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years ... I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly, can a perfect production be expected?It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does ...
Franklin then suggested that the Constitution be signed by each of the members as representing “the unanimous consent of the States,” in the hopes that this would enable dissenting members to affix their names to the document.
Franklin’s hopes were quickly dashed, however, first by Randolph, then by Gerry, and finally by Mason.
Randolph said that “in refusing to sign the Constitution, he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change.” He repeated his contention that asking state conventions to ratify the Constitution as is, without making provisions for amendments, was an invitation to “anarchy & civil convulsions.”
“Nine States will fail to ratify the plan, and confusion must ensue,” Randolph predicted. He said he would keep an open mind about whether to oppose the Constitution publicly.
Gerry and Mason left no doubt where they would stand publicly. Gerry warned:
A Civil war may result from the present crisis of the U.S. — In Massachusetts particularly he saw the danger of this calamitous event — In that State there are two parties, one devoted to Democracy, the worst he thought of all political evils, the other as violent in the opposite extreme. From the collision of these in opposing and resisting the Constitution, confusion was greatly to be feared.
While the opposition of Gerry, Randolph and Mason portended a difficult ratification fight ahead, particularly in their home states of Massachusetts and Virginia, Brearley and his fellow New Jersey delegates had no such qualms.
They signed the Constitution, like Franklin, with the conviction that they were looking toward “a rising and not a setting Sun.”
This article, which appeared in the Winter 2005 issue of New Jersey Heritage, was adapted from an early draft chapter of Donald Scarinci’s David Brearley and the Making of the United States Constitution. Scarinci, Founding Partner of the Scarinci & Hollenbeck law firm in Lyndhurst, began work on the book while serving as Counsel to former Governor Jim McGreevey’s transition team during the winter of 2001-2002. He was elected to the Board of Trustees of the Public Policy Center of New Jersey in January.