JFC2017 – Page 17 – Warren Throckmorton

The 1787 Constitutional Convention – Without the Help of Moses, the Delegates Debated Judges

June 5, 1787
In a busy session, the delegates debated multiple facets of the judiciary. They agree on a Supreme Court and inferior courts but declined to have the legislature approve them. The delegates debated various aspects of forming an interim government and agreed on a policy of admitting new states into the union.
The delegates cited experience, Scotland, and Athens as foundations for their positions.

Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was, that officers might be appointed by a single, responsible person.
Doctor FRANKLIN observed, that two modes of choosing the Judges had been mentioned, to wit, by the Legislature, and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then, in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves. It was here, he said, the interest of the electors to make the best choice, which should always be made the case if possible.

South Carolina delegate Pierce Butler appealed to the Athenian lawmaker Solon to support Butler’s view that the people wouldn’t favor a federal judiciary.

Mr. BUTLER. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive.

If the delegates wanted to go to Moses and Exodus 18, today would have been a good day for it since they debated the creation of a judicial system throughout the nation. However, there was no mention of Moses or his scheme for addressing the disputes of the Jewish people.

To read all of the posts in this series from May 25 to the present, click here.

Benjamin Franklin's Prophecy about Those Who Seek To Be President

On June 2, 1787, PA delegate James Wilson read a paper written by the elder statesman of the Constitutional Convention, Benjamin Franklin, which made a case against paying the chief executive a salary. While Franklin thought the executive should be reimbursed for expenses incurred while serving, he did not believe a salary would bring out the best candidates. In fact, he was direct about the kind of people who would seek an office promising power and money.

And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your government, and be your rulers. And these, too, will be mistaken in the expected happiness of their situation: for their vanquished competitors, of the same spirit, and from the same motives, will perpetually be endeavoring to distress their administration, thwart their measures, and render them odious to the people.

Franklin’s prophecy seems remarkably accurate regarding the present occupant of the White House. Franklin is correct that some who oppose Trump now do so because of similar motives. However, Trump hasn’t needed much of their help to “distress” his administration and render himself “odious to the people.”
The president’s salary isn’t high enough now to compete with private sector work but in our day the payoff comes in other ways. Trump’s position has already benefited his family and charges of kleptocracy are not far fetched. Former presidents (e.g., Clinton) have used their influence and position to tally up millions in speeches. One crisis of the last election was that so many people didn’t want to vote for either candidate. I hope we have a better choice next time around.

June 2, 1787 in Constitutional Convention – Should the Executive Be Paid?

June 2, 1787
Today, the delegates decided that the Executive should be elected by the legislature for one seven year term. Benjamin Franklin made an passionate appeal not to pay the Executive a salary but his motion was postponed.
Regarding expressed influences on the content of the Constitution, the Bible and Christianity again didn’t explicitly come to bat. However, some who are inclined to see interpret the founders as expressing Christianity in coded messages might see an influence in Franklin’s speech (a paper read by delegate James Wilson) opposing a salary for the chief executive (what became the office of the president).

Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. place before the eyes of such men a post of honour that shall at the same time be a place of profit, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all those factions which are perpetually dividing the Nation, distracting its councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace.

Although Franklin didn’t cite I Timothy 6:10 – “For the love of money is the root of all evil: which while some coveted after, they have erred from the faith, and pierced themselves through with many sorrows.” – he did use a phrase from the verse. Overtly, however, he referenced the problems experienced in the British government rather than use a religious foundation.
Franklin invoked history and more specifically cited the Egyptian Pharoah

Hence as all history informs us, there has been in every State & Kingdom a constant kind of warfare between the Governing & Governed: the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes or enslaving of the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partizans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in a hundred who would not, if he could, follow the example of Pharoah, get first all the peoples money, then all their lands, and then make them and their children servants forever. 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.

I believe the mention of Pharaoh would have conjured up images of Old Testament stories of Jewish slavery and redemption. Here Franklin used biblical imagery as illustration rather than blueprint.
So where did Franklin go for his recommendations about proper policy?

The high Sheriff of a County in England is an honorable office, but it is not a profitable one. It is rather expensive and therefore not sought for. But yet, it is executed and well executed, and usually by some of the principal Gentlemen of the County. In France the office of Counsellor or Member of their Judiciary Parliaments is more honorable. It is therefore purchased at a high price: There are indeed fees on the law proceedings, which are divided among them, but these fees do not amount to more than three per Cent on the sum paid for the place. Therefore as legal interest is there at five per Ct. they in fact pay two per Ct. for being allowed to do the Judiciary business of the Nation, which is at the same time entirely exempt from the burden of paying them any salaries for their services. I do not however mean to recommend this as an eligible mode for our Judiciary department. I only bring the instance to shew that the pleasure of doing good & serving their Country and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the Public, without the mean inducement of pecuniary satisfaction.

Franklin looked to local offices in England and judges in France where service to country is sufficient to attract people of high quality.
Taking an example from his home state, Franklin then extolled the virtues of service as found in the Quaker tradition.

Another instance is that of a respectable Society who have made the experiment, and practiced it with success more than an hundred years. I mean the Quakers. It is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly and yearly meetings. Committees of these sit with patience to hear the parties, and spend much time in composing their differences. In doing this they are supported by a sense of duty, and the respect paid to usefulness. It is honorable to be so employed, but it was never made profitable by salaries, fees, or perquisites. And indeed in all cases of public service the less the profit the greater the honor.

Franklin then paid George Washington a compliment by using him as an example of someone who served without salary.
Despite Franklin’s good reputation and use of biblical imagery, the motion was politely postponed without debate. Madison wrote:

The motion was seconded by Col. Hamilton with the view he said merely of bringing so respectable a proposition before the Committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition was postponed for the consideration of the members. It was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability.

Other influences referred to in this session include “antient republics.” Lauding state governments, Dickinson said:

If antient republics have been found to flourish for a moment only & then vanish forever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. One of these remedies he conceived to be the accidental lucky division of this country into distinct States; a division which some seemed desirous to abolish altogether.

On the question of how many people should hold the position of Executive, delegate Butler said:

He said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted Holland when threatened with invasion by the imperial troops. One man was for directing the force to the defence of this part, another to that part of the Country, just as he happened to be swayed by prejudice or interest.

Heterodox Ben Franklin was the first to hint at Christianity to illustrate a point he wished to make. While interesting as a matter of rhetoric, his warning about “love of money” and use of the Quakers as a positive example cannot be seen as a blueprint for governance from the Bible.

June 1, 1787 in Constitutional Convention – Debating the Executive Branch

June 1, 1787
The delegates discussed the role of the Executive branch of the new government. The delegates decided on a seven year term but did not decide how the person(s) should be chosen. Some wanted the Executive appointed by the legislature and others wanted a popular vote to decide.
As the day before, delegates used the British experience as a caution against making their mistakes:

Mr. WILSON preferred a single magistrate, as giving most energy, dispatch, and responsibility, to the office. He did not consider the prerogatives of the British monarch as a proper guide in defining the executive powers. Some of these prerogatives were of a legislative nature; among others, that of war and peace, &c. The only powers he considered strictly executive were those of executing the laws, and appointing officers, not appertaining to, and appointed by, the legislature.

and

Mr. RANDOLPH strenuously opposed an unity in the executive magistracy. He regarded it as the fœtus of monarchy. We had, he said, no motive to be governed by the British government as our prototype. He did not mean, however, to throw censure on that excellent fabric. If we were in a situation to copy it, he did not know that he should be opposed to it; but the fixed genius of the people of America required a different form of government. He could not see why the great requisites for the executive department, vigor, despatch, and responsibility, could not be found in three men, as well as in one man. The executive ought to be independent. It ought, therefore, in order to support its independence, to consist of more than one.
Mr. WILSON said, that unity in the Executive, instead of being the fœtus of monarchy, would be the best safeguard against tyranny. He repeated, that he was not governed by the British model, which was inapplicable to the situation of this country; the extent of which was so great, and the manners so republican, that nothing but a great confederated republic would do for it.

Wilson favored an election by the people as was the case for choosing a governor in New York and Massachusetts. In Ferrand’s compilation, Pierce quotes Wilson using Athens and Rome as negative examples.

Mr. Wilson said that in his opinion so far from a unity of the Executive tending to progress towards a monarchy it would be the circumstance to prevent it. A plurality in the Executive of Government would probably produce a tyranny as bad as the thirty Tyrants of Athens, or as the Decemvirs of Rome.

What did not come up was Moses or Exodus 18.

May 31, 1787 In Constitutional Convention – Were the Founders Influenced by the Hebrew Republic?

May 31, 1787
On this day in Convention, the delegates voted to make the legislature bicameral. Although there was some disagreement, they also agreed that one body should consist of representatives elected by the people. As to the Senate, the delegates could not decide how to comprise that branch. Madison recorded that “a chasm [was] left in this part of the plan.” They also agreed that either house could introduce legislation.
I find the delegate’s discussion relevant to a claim made often by David Barton and more recently by American University historian Daniel Dreisbach. Speaking recently on Barton’s Wallbuilders Live program, Dreisbach claimed that the founders were influenced by the “Hebrew Republic” of Moses. Rick Green is the host to which Dreisbach responded:

The Origins Of Our Republic
Rick:
And you mentioned that earlier even the idea of a republic or a representative government, where did they draw from in the Bible on those types of things?
Daniel:
Well, this is interesting. So one thing we can say about the Founding generation is that they were all Republicans. They wanted to create a political system that was Republican in nature.
Now, Republicanism always meant two things to the Founders. It meant government by consent of the governed and it meant representative government. They drew on diverse traditions including the ancients, the Romans for example.
The one example that I think they come back to time and time again is the example of the Hebrew Republic. What they read about in the Books of Moses. You remember the children of Israel crossed over the Red Sea and all the responsibilities of government fall on the shoulders of Moses. And his father in law Jethro comes to him and says, “Moses you’re going to need some help in governing this tribe, these children of Israel.” And so Moses with divine providence begins to flesh out a form of government.
Now, Americans in the 18th Century read about this government in the books of Moses and in the books of Judges and Joshua and they see in that a model of Republican government. And they want to emulate that in their own system.

In Search of Biblical Principles

In addition to a search for David Barton’s biblical principles in “every clause” of the Constitution, another reason I am reading the entire Convention debate this summer is to look for evidence that the framers “came back to” the example of Moses “time and time again.”
In the discussion and debate of May 31, Moses wasn’t mentioned. The British government was invoked as a negative example (“The maxims taken from the British constitution were often fallacious when applied to our situation, which was extremely different.” Elbridge Gerry).
I was interested to learn that one of the most orthodox Christian of the founders – Roger Sherman of CT – didn’t want the people to vote for their representatives. Sherman said:

Mr. SHERMAN opposed the election by the people, insisting that it ought to be by the State Legislatures. The people, he said, immediately, should have as little to do as may be about the government. They want information, and are constantly liable to be misled.

In any case, this debate surrounding the legislature and republican government didn’t invoke the Bible one time.
Read all of the posts in this Constitutional Convention series here.