CHAPTER XII

THE ESTABLISHMENT OF THE NATIONAL GOV

ERNMENT

ORGANIZATION OF THE GOVERNMENT

When formal notice reached Congress that the ninth state had ratified the Constitution, it took steps to prepare for the new régime. The first Wednesday in January, 1789, was fixed as the time for choosing presidential electors, and the first Wednesday in February as the day for casting their ballots. The first Wednesday in March was set for the meeting of Congress, with New York as the place.

The Antifederalists made efforts in some states to elect members of Congress. In Virginia they controlled the legislature and chose both senators. The great majority of the members of the first Congress, however, were Federalists, so that the new government was in the hands of its friends.

It was April before a quorum of members arrived in New York and the houses organized. The Constitution empowered the House of Representatives to choose its own presiding officer, or "Speaker," but assigned the duty of presiding over the Senate to the Vice-President. To act until the result of the electoral vote should be known the Senate chose a president pro tempore. The rules of procedure in both houses were adapted in the first place from the practices of the state legislatures and the Confederation Congress.

As soon as the work of internal organization had been done the houses turned to the business of counting the electoral vote. The constitutional provision for the choice of the President gave each state a number of electors equal to the sum of its representatives and senators, to be chosen as its legislature might prescribe. Several methods were used in the first election: three states used the general ticket; in five the legislatures made the

choice; the rest divided the state into districts and allowed the voters in each to choose one elector. The first of these methods eventually became universal, but for many years the second was generally used.1

The electors met in their own states on the day appointed and each voted for two persons, one at least a non-resident of the state. The Constitution did not provide for any indication of preference for the Presidency. From each state a certified list of the votes was to be sent to the President of the Senate, who was to open them in the presence of both houses. If a majority of the electors had voted for the same man, he was to be the President. In case of a tie, or of no person having a majority, the House of Representatives was to make the choice, each delegation voting as a unit to preserve the equal influence of the small states as under the Confederation. If no person had a majority, the names of the five leading candidates were to come before the House. After the President was chosen the candidate having the next largest vote was to become Vice-President. In case of a tie vote for the second place, the choice devolved upon the Senate.

This cumbrous machinery, which gave the Convention so much satisfaction, was expected to serve as a kind of nominating device. It was not expected that electors would often coincide in their judgment sufficiently to cast a majority for one man, hence the choice was expected to come to the House rather regularly. The framers of the Constitution failed to foresee the effect which the rise of political parties would have upon this system. The provision worked so badly that it was modified by one of the early amendments (the twelfth).

In the first election, however, no difficulty was encountered, for Washington's name was found upon the ballot of every elector. Their second votes were scattered among several men, but John Adams had more than any other candidate, although less than half of the total number.

Messengers were dispatched to notify Washington and Adams of their election, and to invite them to New York to take office. Washington, enjoying the life of a country gentleman at Mt.

New York lost its vote in 1789 through a disagreement in the legislature as to the best method of choosing electors.

Vernon, and weary of public duties, was extremely reluctant to abandon his plantation. Nevertheless he set out for New York, greeted everywhere by the plaudits of the people, who made of his journey a veritable triumphal procession; and upon arrival took up his abode in a house so small - sad contrast with the spacious mansion on the Potomac - that three of his secretaries had to share one room. On April 30 he was inaugurated with great ceremony. Adams took his seat as President of the Senate, and the government was ready for work.

New York, now a bustling town of thirty thousand people, ambitious to retain the government in its midst, presented to Congress a hall designed by the Frenchman, Charles l'Enfant, which excelled in architectural beauty any public building so far erected in the United States. In this "Federal Hall" Congress held its sessions until the government was removed to Philadelphia, in 1791.

The work of the first Congress was second in importance only to that of the Constitutional Convention. The Constitution, after all, was but a framework or skeleton which awaited the action of Congress to give it life. Its provisions were not selfexecuting, but needed legislation to put them into effect. The decisions involved were momentous, for they set precedents of almost constitutional force.

The Constitution referred only incidentally to "Executive Departments" and "Heads of Departments.' It rested with Congress to decide what offices were needed, to create them by law, and to define the duties of the officials. During the summer and early fall Congress passed bills creating three departments. First came the Department of Foreign Affairs (unfortunately renamed the Department of State). Then came the Department of War, followed by the Department of the Treasury. The head of each Department was to be a "secretary." In addition the offices of Attorney-General and Postmaster-General were established.

Under the Articles all civil officers had been appointed by Congress and were responsible to it. By the Constitution the power of appointment was vested in the President "by and with the advice and consent of the Senate." Washington offered the post of Secretary of State to John Jay, the associate of Franklin

and Adams in the diplomacy of the Revolution, and Secretary of Foreign Affairs during the Confederation. The choice was a fitting one, since Franklin had passed the age for active service and Adams was Vice-President. When Jay declined, Washington turned to Jefferson, our representative in France. For the War Department he chose Henry Knox, of Massachusetts. This was a virtual continuation in office, since Knox held the corresponding post under the Confederation. Hamilton became Secretary of the Treasury and Edmund Randolph, Attorney-General.

Although the Constitution authorized the President to require the written opinions of heads of departments upon subjects relating to their respective offices, it said nothing about a cabinet. In making appointments and treaties the Senate was designed to be an advisory council. Washington's attempt to consult the Senate on an Indian treaty proved embarrassing, however, both to himself and to the members of that body. "A shamefacedness, or I know not what, flowing from the presence of the President, kept everybody silent," wrote Senator William Maclay, of Pennsylvania, in his Journal. After the one effort the President adopted the practice of submitting business requiring the Senate's advice and consent in a written message, leaving it to deliberate at its convenience.

The failure of the upper house to function as an advisory body led Washington to create his own by calling upon the three secretaries and the Attorney-General for their opinions when matters of importance were to be decided. In this and other ways the first President, like the first Congress, created precedents which have become to all intents and purposes parts of our constitutional system.

While the Constitution expressly vested the appointing power in the chief executive and Senate, it was not clear on the matter of removals. Some congressmen thought that the power of removal was incidental to that of appointment, and belonged to the President with the Senate's consent. The view prevailed that administrative officers, from heads of departments down, were subordinates of the chief executive, and that the power of removal inhered in his office. Another precedent was set by this decision, but it did not escape challenge in later times when President and Congress were at odds.

The fundamental law vested the judicial power of the United States in "one supreme court" and such inferior courts as Congress might deem necessary. It also specified the cases in which the jurisdiction of the Supreme Court should be original. Here again much discretion was left to Congress, and the framing of the Judiciary Act of 1789 was an important part of its work of organizing the government. One group of congressmen disliked the idea of creating inferior federal courts, preferring to utilize the courts of the states in federal cases, with provision for appeals to the Supreme Court. They were outvoted by those who desired a complete federal system.

The Act provided for thirteen district courts, roughly one for each state, grouped in three circuits. For each district there was to be a judge. Appeals from a district court went to the circuit court. A session of this intermediate tribunal was to be held in turn in each district of the circuit, by the judge of the district and two Supreme Court justices. The Act fixed upon six justices for the Supreme Court, one to be Chief and the others associates. As few cases were expected to reach the highest tribunal, it was not thought to be unfair to require the justices to make the round of the circuits periodically, a pair going to each annually.

An important section determined that whenever a case before a state court involved federal law an appeal should lie to the federal courts unless the decision upheld the federal law. This clause gave great offense to the friends of state rights.

Washington found at the very beginning of his term that he must protect his work from interruption by visitors. "I had no leisure to read or answer the dispatches that were pouring in upon me from all quarters," he declared. Desiring "to demean himself . . . in such a manner as to maintain the dignity of his office, without subjecting himself to the imputation of superciliousness or unnecessary reserve," he sought the advice of several men, among them Madison, Hamilton, and Adams, as to the official etiquette which would be suitable. Adams advised "splendor and majesty" to support "dignity and authority.' Hamilton thought there was danger of "too much ceremony for the character of our government," and favored a simple manner to avoid exciting "dissatisfaction and cabal" in a country where