Union and Democracy

by Allen Johnson

On the 30th of April, the Senate and House in joint session received the President-elect. With simple ceremonies as befitted the occasion, the inauguration of our first President was consummated. Stepping from the Senate chamber upon the balcony, Washington looked out upon the crowds which thronged Wall Street. The Chancellor of New York administered the oath, the populace shouted, "Long live George Washington, President of the United States!" and then the President withdrew to deliver his inaugural address.

When the minutes of the Senate were read next day an incident occurred, which, trivial as it seems, was indicative of a spirit that may be truly characterized as American. The President's address was referred to as "His most gracious Speech." In a moment the doughty Maclay, of Pennsylvania, sprang to his feet with a vigorous protest. These were words which savored of kingly authority and which were odious to the people. He moved that they be struck out. Vice-President John Adams remonstrated mildly; he saw no objection to borrowing the practices of a government under which we had lived so long and happily. Senator Maclay was on his feet at once with the declaration that the sentiments of the people had undergone a change adverse to royal government. Such a phrase on the minutes of the Senate would immediately be represented as "the first rung of the ladder in the ascent to royalty." Maclay had his way and the offensive phrase was erased. Much the same republican spirit appeared in the debate on titles. The Senate would have preferred to address the President as "His Highness, the President of the United States and Protector of their Liberties"; but the House insisted on having the plain title, "President of the United States."

Even before the inauguration, the House of Representatives had entered upon its first tariff debate, for an immediate revenue was needed if the wheels of government were to move. Madison was ready with a scheme of customs duties patterned very largely after the ill-fated project of 1783. On all sides it was agreed that taxes should be external rather than internal, upon foreign rather than domestic commerce. Madison advocated duties upon "articles of requisition likely to occasion the least difficulty," such as spirituous liquors, molasses, wines, tea, coffee, cocoa, pepper, and sugar. But almost at once the idea was broached that indirect aid should be given to certain industries. The clash of opposing sectional interests appears even in this first debate. In the end Madison's simple revenue measure was set aside. Specific duties were levied on more than thirty articles, and ad valorem duties ranging from five to fifteen per cent on all others. Revenue was still the main object, but protective duties were deliberately grafted upon the bill. Tonnage dues were fixed in a separate act, while still another act laid the foundations of our national fiscal administration. In every State, side by side with local officials, yet independent of state control, there were to be collectors, surveyors of ports, inspectors, weighers, gaugers, measurers,—in short, so many living witnesses to the existence of a self-sufficient central government.

When Congress addressed itself to the work of establishing the executive departments, questions of constitutional interpretation thrust themselves into the foreground. Experience under the Confederation proved the need of at least the three departments of foreign affairs, war, and treasury. Bills to establish these departments were at once framed and favorably considered, but exception was taken to the provisions making the heads of these departments, who were appointed by the President and Senate, removable by the President alone. It was finally agreed to assume that the President had the power to remove from office. The act was therefore made to read, "Whenever said principal officer shall be removed by the President." In this wise, by legislative construction, the Constitution was expanded at many points in the early years of the new Government.

The bill to establish the Treasury Department was drawn in accordance with the ideas of Hamilton, for it was expected that he would be the first incumbent of the office. It may have been his well-known partiality for British institutions that caused the House to mistrust the phrase which made it the duty of the Secretary "to digest and report plans for the improvement and management of the revenue, and the support of the public credit." "If we authorize him to prepare and report plans," argued Tucker, of Virginia, voicing that fear of executive authority which was then instinctive, "it will create an interference of the executive with the legislative powers; it will abridge the particular privilege of this House.... How can business originate in this House, if we have it reported to us by the Minister of Finance?" The House was not minded to make Alexander Hamilton a Chancellor of the Exchequer. The bill was amended to read, "digest and prepare." Subsequently the House showed unmistakably its determination to assume direction of the national revenues and expenditures.

One of the first concerns of Congress was to give substance to the colorless statement of the Constitution that there should be one supreme court and such inferior courts as Congress should ordain and establish. On the day following its organization, while the House was grappling with the question of revenue, the Senate appointed a committee to bring in a bill to establish the federal courts. The chairman of this committee was Oliver Ellsworth, of Connecticut, who had sat on the bench of the Court of Appeals under the Confederation and who had been an influential member of the Federal Convention. The bill reported by the committee was substantially his work. It provided for a supreme court bench of six judges—a chief justice and five associates; for thirteen district courts, each with a single judge; and for three circuit courts, each of which was to consist of two justices of the Supreme Court and a district judge. Lengthy provisions in the act carefully delimited the jurisdiction of these courts, and laid down the modes of procedure and practice in them. Of great importance was the twenty-fifth section, which provided for taking cases on appeal to the Supreme Court from the lower federal and state courts. The words of the act, by a fair implication, would seem to confer upon the Supreme Court the power to review the decision of a state court holding an act of the United States unconstitutional. It would seem to follow logically that the Supreme Court might do also directly what it might do indirectly—declare an act of Congress void by reason of its repugnance to the Constitution. Ellsworth, at least, held that in the discharge of their ordinary duties, the judges of the federal courts would have the right to pronounce acts of Congress void when they stood in conflict with the Constitution. Attempts were made, in the course of the debate on the Judiciary Act, to strip the federal courts of all jurisdiction except in admiralty and maritime cases. Many members of Congress agreed with Maclay in thinking that the Judiciary Act was calculated to draw all law business into the federal courts. "The Constitution is meant to swallow all the state constitutions, by degrees," averred the worthy Senator from Pennsylvania; "and this [bill] to swallow, by degrees, all the state judiciaries."

The wisdom of the new President appeared in his appointments to office. Concerned solely with the fate of the federal experiment, he sought consistently the support of those who would add weight to the new Government, and who were Federalists in politics. Not only personal fitness but sectional interests had to be taken into consideration. Washington was solicitous to draw "the first characters of the union" into the judiciary, particularly those who had served in the state courts and commanded public confidence. His choice for Chief Justice fell upon John Jay. Rutledge, of South Carolina, Wilson, of Pennsylvania, Cushing, of Massachusetts, Harrison, of Maryland, and Blair, of Virginia, were first named as Associate Justices. Washington chose his chief advisers also from different sections. Thomas Jefferson was invited to become Secretary of State—a post which he accepted somewhat reluctantly. Hamilton did not have to be urged to take the headship of the Treasury. Knox was given the superintendence of a military establishment which then numbered only a few hundred men. Edmund Randolph was appointed Attorney-General.

Before Congress adjourned in the fall, it adopted and sent to the States for ratification twelve amendments to the new Constitution. There were those who thought this action precipitate. Why tinker with a constitution which had hardly been tried? To all such Madison replied cogently that the amendments which his committee reported did not alter the framework of the instrument, but added only certain safeguards to individual rights. The lack of a declaration of rights had been deplored in every convention and had cost the support of many respectable people. Moreover, two communities had not yet "thrown themselves into the bosom of the Confederacy." The wisdom of this course was attested by the prompt ratification of ten of the twelve proposed amendments.

On November 21, 1789, North Carolina ratified the Constitution, leaving Rhode Island to a position of hazardous isolation. Congress was considering a bill to cut off the commercial privileges of the State, by putting her on the footing of a foreign nation, when news came that a convention at Newport had ratified the Constitution by the narrow margin of two votes. In the following year the number of States was increased by the admission of Vermont. The admission of Kentucky followed in 1792; and Congress paved the way for the entrance of other States into the Union by organizing the Southwest Territory out of Western lands ceded by the three southernmost States. The expansion of the United States had begun, bringing with it unforeseen problems.

The severest labors of Congress began in the second session, when the new Secretary of the Treasury presented his first report on public credit. Shortly after the Convention of 1787, Hamilton had expressed his belief that one of the great dangers which threatened American society was "the depredations which the democratic spirit is apt to make on property." Distrusting the political capacity of the people, whom in private he called "a great beast," he believed that the new Government would succeed or fail in just the proportion that it enlisted the support of the influential and wealthy classes. He set himself deliberately to the task of identifying the interests of the propertied classes with those of the Government.