On Friday, James McHenry left the Convention due to his brother’s illness. The next day, the second of Maryland’s five delegates, Daniel of St. Thomas Jenifer, arrived. Fortunately, instructions from Maryland require that only one must be present.
Jenifer (no one knows why his middle name is St. Thomas!) is one of the elder statesmen at the Convention. At sixty-four, he is third oldest in attendance after Benjamin Franklin and Roger Sherman. Little is known of his early years, but he successfully managed his father’s plantation and collected rents, settled boundary disputes, and participated on the committee that established the Mason-Dixon Line. Named after Charles Mason and Jeremiah Dixon, the Line is the demarcation between four States, forming part of the borders of Maryland, Delaware, Pennsylvania, and the portion of Virginia which later became West Virginia. Years from now, it will become the informal border between free (Northern) and slave (Southern) States and part of the debate preceding approval of the Missouri Compromise. “Dixie,” after Jeremiah Dixon, will become a popular nickname to represent the South.
Jenifer was sitting on the Maryland Royal Governor’s Council when the Revolutionary War broke out but chose the Patriot cause. In 1775-1777 he served as President of Maryland’s committee of safety, then as President of the first State Senate, member of the Continental Congress, and State revenue and financial manager. The affable bachelor is described by William Pierce as “a gentleman of great fortune; always in good humor, and never fails to make his company pleased with him…From his long continuance in single life, no doubt but has made the vow of celibacy. He speaks warmly of the ladies notwithstanding.” As usual, President Washington turned the meeting over to Nathaniel Gorham and the Committee of the Whole took up where it left off on Saturday – to consider whether the executive should be singular or plural. James Wilson spoke first, favoring a single executive. All of the thirteen States have a single executive, he said, and there has been no movement in any of them to replace it with three executives. Three executives would simply result in confusion and animosity.
Roger Sherman disagreed. The States may have a single executive, he said, “but then it should be also remarked that in all the States there [is] a Council of advice, without which the first magistrate could not act.” Elbridge Gerry (Mass.) said a plural executive would be like “a general with three heads.” When the vote was taken, proponents of a single executive won; only New York, Delaware, and Maryland voted “nay.”
The next issue to be considered, Proposition 8 in the Virginia Plan, proposes to create a Council of Revision composed of “the executive and a convenient number of the national judiciary” with power to “negative,” that is, veto, acts of the legislature. Gerry argued the judiciary should not be a part of it. “They will have sufficient check against encroachments on their own department by the exposition of the laws, which involved a power on deciding their constitutionality. In some States the judges had (actually) set aside laws as being against the Constitution.”
In some respects, Gerry’s comment was quite extraordinary. Later known as “judicial review,” the authority of courts to invalidate laws because they are contrary to the Constitution would not be settled until 1803 when the Supreme Court would declare null and void Article 13 of the Judiciary Act of 1789. But that is getting ahead of our story.
No one contradicted or corrected Gerry, and the debate continued. Wilson and Alexander Hamilton proposed that the executive be given an “absolute negative on the laws.” Benjamin Franklin vigorously objected. In a lengthy discourse, he recounted the situation in Pennsylvania before the revolution when the governor constantly used the veto power to “extort money. An increase of his salary, or some donation, was always made a condition. No good law whatever could be passed without a private bargain with him.” If the executive had a council, he advised, the power would be less objectionable.
Sherman quickly agreed. “No one man,” he said, “could be found so far above all the rest in wisdom.” But Wilson countered. “The case of Pennsylvania formerly was very different from the present case.” Not only was the State now a republic, but “the salary is now fixed.”
At this point, some were having second thoughts. Pierce Butler (S. Carolina) said he had supported a single executive, but if the idea had been presented that the executive could have a complete negative on the law, he would have voted differently. Mason observed that the vote had already passed for a single executive, but he had “been out at the time.” He “never could agree to give up all the rights of the people to a single magistrate.” As for a Council of Revision to include judges, well, that is simply impractical. Federal judges would be dispersed throughout the country. Convening them regularly to review legislation is simply unworkable. He is “inclined to think a strong executive is necessary,” but a single executive “will degenerate into a monarchy.” Ah, but an executive of three persons, one from each region of the United States – north, middle, and south – will “quiet the minds of the people” and assure proper attention will be paid to their separate concerns. But the Committee had already voted – for single executive.
Madison suggested a different approach. What if a “proper proportion of each branch of the legislature” could overrule an executive veto? The concept quickly garnered support. When Gerry finally proposed the executive alone have veto power and the proportion be two-thirds of each house to override, the motion carried 8 – 2, Connecticut and Maryland voting “nay.”
Before adjourning for the day, the Committee agreed, without debate, to establish a national judiciary “composed of one supreme tribunal and more or one inferior courts.”