Mr. President (26 page)

For want of a single vote in the Senate, the presidency might have been fundamentally altered. Imagine the secretary of state and other cabinet officials responsible equally to the Senate and to the president. Although it is difficult to second-guess history, at the very least this would have led the Senate to become more involved in executive matters. Possibly, too, department heads would not have changed with each administration, and this continuity across administrations would naturally have diminished a president’s control over policy issues. That, in turn, might have lessened the politicization of executive matters, or
conversely it might have heightened politicization by involving the Senate. All this is conjectural, but this we know: the president’s cabinet, if it existed at all, would not be the same as it is today.
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The removal debate was truly a continuation of the Federal Convention. One-third of the men who had framed the Constitution took part in this unexpected sequel. Half of the Senate’s twenty members were convention veterans, along with eight representatives in the House. Of these eighteen men, twelve thought the president should have exclusive removal powers and six did not. Disagreement of this order was hardly new—most issues at the convention had been contested as well—but the notion that the Constitution had neglected to address an issue with such significant implications was unnerving. Yes, framers and other supporters of the Constitution had readily admitted that the document was not perfect and would probably have to be amended to suit future needs, but they thought they had provided clear enough instructions to start the government rolling, and they had not.
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Key to the problem was the Constitution’s vague term “Advice and Consent,” with no further exposition of what that might mean—how and when advice might be given, how and when consent was to be determined, a more precise stipulation of the extent of the powers the president and the Senate were to share, and some basic guidelines for their implementation. In retrospect, if not at the time, it is not surprising that the lack of clarity would lead to unresolved issues that required clarification.

Less than a month after the removal debate, the “Advice and Consent” clause was again put to the challenge. President Washington and his temporary secretary of war, Henry Knox, a holdover from the confederation government until Congress established a new Department of War, wanted to stabilize relations with Indian nations on the southern borderlands. Spain, which controlled the Mississippi River and was offering arms and trade to southern Indians, now presented a significant impediment to American expansion, so the neutralization of the Creeks, Cherokees, Chickasaws, and Choctaws was a top priority of the new American government. This was difficult, though, because white Americans were steadily encroaching on Indian lands from the east. Negotiations were in order. Treaties needed to be made and upheld, but according to the Constitution the president could only
“make Treaties … by and with the Advice and Consent of the Senate.” Today, we assume that the president first concludes a treaty and then brings it to the Senate for “consent.” At the time, though, Washington and anybody else who took the Constitution at face value reasoned that “by and with the Advice … of the Senate” required him to seek senatorial input before or during treaty negotiations, not just afterward.

That is why President Washington and Secretary Knox, on the morning of August 22, 1789, a Saturday, entered the Senate chamber to seek that body’s advice. Indian commissioners were scheduled to meet with Creek leaders on September 15, and before that meeting they needed instructions from those who set policy, the president and the Senate. To this end, Washington composed a letter explaining the recent history of white-Indian relations in the region, followed by an extensive list of specific questions he wished senators to consider. The problem, it seems, was that Creeks had supposedly ceded land in three treaties concluded with Georgia in 1783, 1785, and 1786; whites had then moved onto those lands, but Creek leaders now denied “the validity of the said treaties.” How should the commissioners proceed if they concluded the treaties had been “formed with an inadequate or unauthorized representation of the Creek Nation” or were signed “under circumstances of constraint or unfairness of any sort”? Should they insist on a new treaty, and if so, what concessions should they offer in return for land that was already being claimed by white Georgians? Washington posed a dozen such questions concerning the Creeks and three more that addressed ongoing relations with Cherokees, Chickasaws, and Choctaws.
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Again, we have only one full-throated account of what happened inside the Senate chamber that day, composed of course by William Maclay, whose journal so often mocked the official proceedings. Maclay never came down sternly on Washington, but he refused to accord the president the deference offered by others. He had described the president’s inaugural address in cartoonish terms—“agitated and embarrassed more than ever he was by the leveled cannon or pointed musket,” Washington had supposedly trembled, fidgeted with his fingers, and gestured with an awkward flourish, leaving “an ungainly impression”—and now too Maclay sought to reveal the comic elements in an allegedly staid and somber venue. This time Washington chose not to read his letter but handed it instead to Adams, who read it in his capacity as
president of the Senate. According to Maclay, Adams “hurried over the paper” in such a manner that nobody could hear: “Carriages were driving past, and such a noise, I could tell it was something about ‘Indians,’ but was not master of one sentence of it.” Robert Morris asked Adams to read the letter again, and then, immediately, Adams repeated the first item and “put the question: ‘Do you advise and consent, etc.?’ ” When nobody rose to speak, Maclay, the Senate’s designated gadfly, stepped up. If he had not done so, he worried, “we should have these advises and consents ravished, in a degree, from us.”

“The business is new to the Senate,” Maclay said. “It is of importance. It is our duty to inform ourselves as well as possible on the subject. I therefore call for the reading of the treaties and other documents alluded to in the paper before us.” Maclay thought Washington evinced “an aspect of stern displeasure” at his attempt to slow down the process, but the president’s feelings notwithstanding, the senator prevailed, and he and his colleagues began to consider the items point by point. There were so many documents to be read and points to be considered, however, that the Senate decided to send the matter to a committee and take it up at its next session on Monday, two days hence. According to Maclay, that proved too much for Washington. “This defeats every purpose of my coming here,” he supposedly said. He then “cooled by degrees,” but he departed soon thereafter with “a discontented air.”

Washington’s appearance on the Senate floor was a flop by anybody’s standards. Maclay thought it inappropriate for the president “to tread on the necks of the Senate”:

Undoubtedly, Washington was just as displeased with the encounter. He was no stranger to seeking advice, but not in a venue such as
this. On countless occasions during the Revolution the commander in chief had convened his war council; never did he take that body’s advice lightly, and often he allowed it to overrule him. Then, however, he was dealing with colleagues who shared both the information he had at his disposal and a certain level of professional expertise relevant to the items under consideration, whereas now members of the Senate were ill informed and not particularly conversant in the matters placed before them. Collectively, they saw themselves as a deliberative body; individually, each valued philosophical correctness and speechifying, sometimes at the expense of taking action. Was this really the right body to issue advice? And even if it were, what was to be gained by the president sitting through the arduous process?

The August 22 convergence of the executive and the legislative branches raised a serious question about the constitutional role of the Senate: Did it, or did it not, perform the function of an executive council? George Mason, at the Federal Convention and during the ratification debates, had lamented the absence of a separate and independent executive council, and here was a reason why. “Advice and Consent” might be a handy phrase, but this meeting revealed that offering advice and granting consent are two very different activities. If Washington sought only consent, he would have negotiated treaties first and then brought them to the Senate for ratification, as is done today, but the president asked for advice, as the Constitution stipulated, and to give advice, the Senate needed time to study the matter and engage in meaningful deliberations, which could not happen during one brief encounter. In this instance the Senate, with Washington again in attendance, resumed considerations two days later and responded to his questions, affirming his intentions on most but not all of the items, but the incident set a poor precedent. Would senators suspend their normal operations and take a rush course in diplomacy each and every time the executive department wanted to enter into negotiations with an Indian or European nation? How could they be kept apprised of the intricacies of international councils that might well occur on the other side of the Atlantic? Most critically, was this really the proper role of the upper house of the
legislature
?

The notion that the Senate would do the job of an executive council proved unworkable the first time it was put to the test. That body could serve as a check on the president’s power to negotiate treaties, but
it was not particularly suited to offer counsel. Fortuitously, by affirming the president’s right to remove department heads, Congress had just facilitated the creation of a separate body of advisers who
would
offer counsel: the president’s “Cabinet Council,” as it was called in the early Republic. Although the word “cabinet” did not enter common usage for another four years, the outcome of the removal debate confirmed that the president would be able to work closely with his department heads, who would function as his inferiors. Washington would make full use of these officers. Setting precedent in this as in all other matters, he would consult them frequently, using the expertise of each in his particular field while also seeking their collective advice on a host of issues. In today’s parlance, they would be his team, his administration.

First, though, the Congress needed to finish creating the various executive departments, Washington had to choose the men he wished to head them, and the Senate then had to confirm his nominations. This all happened at the tail end of Congress’s first session. For secretary of state the president chose his fellow Virginian Thomas Jefferson, the former governor of Virginia and experienced minister to France whom Washington had worked with in the Virginia House of Burgesses before the war. Henry Knox, who had served as Washington’s chief of artillery during the Revolution and succeeded him as commander in chief at war’s end, continued in his role as secretary of war. Washington offered the job of secretary of the Treasury first to the one and only “Financier,” Robert Morris, the nation’s most experienced administrator who had led the country out of bankruptcy at the close of the war; when Morris declined, he tapped the prodigy Alexander Hamilton, the general’s former aide-de-camp who had served under Morris during the Financier’s “reign” and who would pursue Morris’s nationalistic economic agenda. The last major position, attorney general, went to Edmund Randolph, who had been Virginia’s attorney general for a decade before he became its governor; although Randolph had not signed the Constitution, his support for ratification had been critical at the Virginia convention the following year. (Absent from the list was James Madison, certainly one of Washington’s closest advisers, who was invaluable to the president as an emissary in the House of Representatives.) Although highly consequential, Washington’s selections provoked no immediate controversy, and senatorial confirmations proceeded smoothly. Even Hamilton, who had aroused some controversy
during the ratification debates for his allegedly monarchical views and whose policies would soon prove so divisive, breezed through the Senate without opposition.

By September 29, when Congress adjourned its first session, two branches of the new government had performed the jobs expected of them. Washington had set the tone, established protocols and precedents, and appointed the team that would anchor his administration. Congress, faced with a heavier agenda, had set import duties, sent a Bill of Rights to the states for ratification, settled the delicate constitutional issue of removal, established executive departments and a federal judicial system that included district courts to maintain local integrity, and confirmed Washington’s appointments to his cabinet and to the Supreme Court. The judiciary still existed on paper only, but the legislative and executive branches of government were up and running. Two weeks later Washington reported to Gouverneur Morris, who was tending to business in London and Paris, “It may not be unpleasing to you to hear in one word that the national government is organized, and as far as my information goes, to the satisfaction of all parties—That opposition to it is either no more, or hides its head.” This was Washington’s dream: a nation coming together around shared principles. To achieve such a result was the very reason he had accepted the presidency.
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Six days after Congress’s adjournment, Washington noted in his diary: “Had conversation with Colo. Hamilton on the propriety of my making a tour through the Eastern states during the recess of Congress to acquire knowledge of the face of the Country the growth and agriculture there of and the temper and disposition of the inhabitants towards the new government.” Hamilton “thought it a very desirable plan and advised it accordingly,” as did Knox the following day. Left unsaid, but certainly understood: the tour would undoubtedly
promote
a positive “temper and disposition” of New Englanders “towards the new government.” Knowing he would enhance national unity by his very presence, Washington traveled more than five hundred miles on dirt and stone-studded roads, viewed the countryside, and visited sixty cities and towns in Connecticut, Massachusetts, and New Hampshire from mid-October to mid-November. In each one, proud Americans celebrated the new president and by implication the new government. It was a triumphal tour. While celebrants thought they were honoring
their great leader, that leader treated their celebration as one more affirmation that the Constitution was working.
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