and talked over at this stage. Reread 324, 330-332, on the weak
nesses of the Articles of Confederation, and find in the Constitution the
clauses that remedy each of those weaknesses.
The clever use of the word federal by the Nationalists has made much
trouble for students. The proper name for our government and for its
branches, down to the Civil War, is "Federal," not "National,"
Federal government, federal judiciary, and so on. But to guard against
still more confusing errors, it seems necessary at times, even for the early
period, to use the term National, as in 345.
GROWTH OF THE CONSTITUTION
363. SEPTEMBER 13, 1788, the dying Continental Congress pro
vided for elections under the new Constitution. Nine States
were present when that vote was taken. A week later, the
attendance had sunk to six States. Thereafter, to keep up a
shadow of government, a few delegates met day by day, had
their names recorded in the journal, and then adjourned to
some favorite tavern. Congress expired for want of a quorum
seven months before the new government was organized.
364. The elections that made Washington President were
very different from elections in a presidential campaign now. In
six States out of the ten 1 that took part the legislatures
chose the presidential electors. Pennsylvania, Maryland, and
Virginia chose them by popular vote, in districts. Massachusetts
used a quaint union of these two methods. 2 In no State did the
people elect directly, on one general ticket, as is almost always
365. Two legislatures gave forceful illustrations of the bitter
ness of party spirit and of disregard of the people's will by
" delegated " government. In elections by legislatures, custom
1 Account for the other three States with the help of the section helow.
2 The people in each Congressional district nominated three electors, from
whom the legislature chose one with two more at large to make up the
favored a joint ballot (the two Houses voting as one body) ; and
this method was used without question in five States which
chose electors by legislatures. But in New Hampshire, the
upper House was Federalist, while the more numerous and
more representative lower House was Antifederalist. The
Senate insisted upon election by concurrent vote as ordinary
bills are passed so that
it might have a veto on
the other House. The
wrangle lasted for weeks.
At the last moment, the
larger House surrendered,
and chose electors accept
able to the smaller one.
In New Yorkjthe situa
tion was similar; but
there the Antifederalist
House refused to yield its
right. So that State lost
366. There had been no
formal nominations. Wash
ington received the 69
votes cast for President.
For Vice President there
was no such agreement.
Some of the Antifederal-
GEOBGE WASHINGTON. From a portrait
by Peale, now in the Pennsylvania
Academy, Philadelphia. Washington was
president of the Federal Convention and
exercised great influence in that body,
though he made no formal speech in its
ists hoped to elect George
Clinton of New York, Hamilton's chief adversary there ; but
the plan fell to pieces when New York failed to take part in the
election. Eleven names were voted for by the 69 electors. John
Adams was elected, but by only 34 votes, one less than half. 1
367. The Continental Congress had named the first Wednes
day in March for the inauguration of the new government at
1 Such a vote would not elect to-day. Why did it then ?
368] THE STRUGGLE FOR SIMPLICITY 315
New York City. On that day, however, only 8 Senators (out
of 22) and 13 Representatives (out of 59) had arrived ; and the
electoral votes could not be counted. The two Houses met from
day to day, for roll call, and sent occasional urgent entreaties
to dilatory members in neighboring States ; but not till almost
five weeks later (April 6) was the necessary quorum secured.
On April 30, Washington was inaugurated with great state
and solemnity. It helps us to understand one reason for these
delays when we remember that Washington, now nearly sixty
years old, had to make the journey from Mount Vernon to
New York on horseback.
368. For nearly three weeks, Congress wrangled over matters
of ceremony. After solemn deliberation, the Senate recom
mended that Washington be styled " His Highness, President
of the United States of America and the Protector of the Lib
erties of the Same." The more democratic Representatives in
sisted on giving only the title used in the Constitution
" President of the United States." Finally this House sent an
address to Washington by this title ; and the Senate had to lay
aside its tinsel.
During the debate, one particularly quaint episode occurred.
The Senate minutes referred to the speech with which Wash
ington had " opened " Congress as " His most gracious speech."
This was the form always used in the English parliament re
garding the speech from the Throne. Senator Maclay objected
to the phrase, and finally it was struck from the record. Vice
President Adams, however, defended it hotly, declaring (ac
cording to Maclay) that if he could have foreseen such agita
tion, he " would never have drawn his sword " against England
in the Revolution.
Maclay tells 1 us, too, that Adams (presiding in the Senate)
1 The Journal of William Maclay is a curious work which should be ac
cessible to every student of this period. Maclay, from Pennsylvania, was one
of the few democratic Senators. He was an honest, well-meaning, rather
suspicious man, without breadth of view, or social graces, but with an ardent
belief in popular government. He was no hero worshiper. John Adams (his
316 ORGANIZATION OF THE NEW GOVERNMENT [ 369
spoke forty minutes from the chair in opposition to the simple
form of title for the President. " What/' he exclaimed, " will
the common people of other countries, what will the sailors and
soldiers, say of ' George Washington, President of the United
States ' ? They will despise him to all eternity ! "
Soon after, the struggle/ was renewed on the bill to establish
the mint. It was proposed that each coin should bear the
image of the President during whose administration it was
coined after the fashion of all royal coinage. A few radicals
attacked this " disposition to ape monarchic practice," and the
proposal was dropped, in favor of the use of an emblematic
" Goddess of Liberty."
It has been too much the custom to ridicule the objectors to
these " harmless " forms and titles in this critical struggle for
simplicity. The titles were " harmless " ; but the spirit in which
they were demanded was not. That spirit was quite as violent
and ridiculous as was the democratic opposition to it. The
aristocrats believed that government ought to be hedged about
with ceremonial to secure due reverence from its "subjects"
It is easy to find matter for laughter in some acts of the demo
cratic opposition ; l but at least let us acknowledge gratefully
our debt to it for turning the current of American practice
away from Old World trappings of childish or slavish cere
monial toward manly simplicity and democratic common sense.
369. Other questions had to do not merely with ceremony, but
with power. The Constitution requires the consent of the
Senate to Presidential appointments and to treaties, but does
not say how that consent shall be given. Washington and his
Cabinet were at first inclined to treat the Senate as an English
pet aversion) is credited with " a very silly kind of laugh ... the most un
meaning simper that ever dimpled the face of folly." Madison is styled " His
Littleness." Hamilton appears with " a very boyish, giddy manner." And
even Jefferson wears " a rambling, vacant look."
1 Jefferson wrote from Paris, rejoicing at the defeat of the proposed title :
" I hope the titles of Excellency, Honor, Worship, Esquire, forever disappear
from among us from that moment. I wish that of Mr. would follow them."
" Mister" [Master] had not ceased to denote social rank in America.
370] CUSTOM AND THE CONSTITUTION 317
monarch treated his Privy Council. When the first nomination
for a foreign minister came up (June 17), Vice President Adams
attempted to take the " advice and consent " of the Senators
one by one, viva voce. This attack upon the independence of
the Senate was foiled by Maclay, who insisted upon vote by
A still more important incident concerned a treaty with
certain Indian tribes. Instead of sending the printed document
to the Senate for consideration (as is done now), Washington
came in person (August 22), took the Vice President's presiding
chair, asked Secretary Knox to read the treaty aloud (which
was done hurriedly and indistinctly), and then asked at once for
" advice and consent," to be given in his presence.
As Maclay properly observes, there was "no chance for a
fair investigation while the President of the United States sat
there with his Secretary of War to support his opinions and
overawe the timid and neutral." The question was being put,
when Maclay's sturdy republicanism once more intervened.
He called for certain other papers bearing on the subject, and
this resulted in postponement. Maclay asserts that Washing
ton received the first interruption with "an aspect of stern
displeasure," and that at the close he " started up in a violent
fret," exclaiming, " This defeats every purpose of my coming
370. The Constitution, by its language, suggests single heads
for executive departments (rather than the committees custom
ary under the old Confederation). Congress at once established
the departments of State, Treasury, and War, together
with an Attorney-generalship. Washington appointed as the
three "Secretaries," Jefferson, Hamilton, and Henry Knox,
and made Edmund Randolph the Attorney-general. These
officials were designed, separately, to' advise and assist the Presi
dent; but neither the Act of Congress nor the Constitution
made any reference to them as a collective body, that is, as
a "Cabinet." And yet, the Cabinet has become by custom an
important part of our government.
318 ORGANIZATION OF THE NEW GOVERNMENT [ 371
The Constitution provides only that the President " may re
quire the opinion, in writing, of the principal officer in each of
the executive departments, upon any subject relating to the
duties of their respective offices" This gives no warrant for
asking advice, for instance, from the Secretary of War upon a
matter of finance ; but almost at once Washington began to
treat the group as one official family. When he was troubled
as to the constitutionality of the Bank Bill ( 381), he asked
both Hamilton and Jefferson for written opinions ; and, in
1793, when the war between England and France raised serious
questions as to the proper policy for America ( 396), he called
the three Secretaries and Randolph into personal counsel in a
body. This was the first " Cabinet meeting."
From time to time Congress has decreed new departments. In 1798 a
Secretary of the Navy was given part of the duties of the old Department
of War. The Post Office was established in 1790 as a part of the Treas
ury Department, but in 1829 the Postmaster-general became the equal of
the other heads of departments. In 1849 there was added a Department
of the Interior ; and out of this were carved the Department of Agricul
ture, in 1889, and the Department of Commerce and Labor in 1903. The
last was again divided in 1913 into the Department of Commerce and the
Department of Labor. The Attorney-general became the head of a De
partment of Justice in 1870.
371. Seven of the ratifying State conventions had proposed
amendments to the constitution, 124 in number. Early in the
first session of Congress, Madison introduced a list of twenty
amendments. Twelve were adopted by Congress, and ten of
these were ratified by the States.
These ten amendments are commonly known as " The Bill of
Rights." They forbid Congress 1 to interfere with freedom of
religion, freedom of the press, or freedom of petition, and they
prohibit general warrants or excessive bail or cruel and unusual
1 These amendments were intended to restrict the Central government only,
but many people think of the restrictions as applying to the States also.
Congress can give no religion preference over another ; but a State legisla
ture may do so, unless forbidden by the State constitution. Some States
did have " established churches " for many years longer.
372] THE BILL OF RIGHTS 319
punishments. They further guarantee to citizens a right to
trial by a jury of the neighborhood, in criminal accusations
and in civil cases when the amount in dispute exceeds twenty
dollars. The ninth and tenth amendments emphasize the
idea that the Federal government is limited to those powers
enumerated in the Constitution.
372. The Constitution made it the duty of Congress to pro
vide a Supreme Court. The " original jurisdiction" of that
Court was stated in the Constitution ; but Congress was left at
libtrty to regulate the " appellate jurisdiction" and to provide in
ferior courts, or not, at its discretion. A Judiciary Act of 1789
established a system of which the main features still remain. 1
a. A Supreme Court (a Chief Justice and five Associate
Justices) was created, to sit at the Capital. 2
6. Two grades of inferior courts were established covering
the entire Union. (1) There were thirteen District Courts, each
with a resident judge. (2) These districts were grouped into
three circuits, each with its Circuit Court intermediate between
District Court and Supreme Court. At this time, there were no
distinct Circuit Judges: each Circuit Court consisted of a Dis
trict Judge and of two Justices of the Supreme Court " on cir
c. Appeals to the Supreme Court were provided for, not only
from inferior Federal courts, but also from any State court, in all
cases where, such a court had denied any right or power claimed
under a Federal law or treaty or under the Constitution.
This part of the law still makes the Federal judiciary the "final ar
biter" between States and Nation ( 352 a). The Constitution per
mitted such a law ; but Congress might have given very narrow limits to
the appellate power. This great law did extend that power so as to
include every possible case of conflict between States and Nation.
The establishment of the inferior Federal Courts (b above) also greatly
magnified the authority of the Federal judiciary at the expense of
State Courts, since it made Federal Courts much more accessible than if
there had been only one court, fixed at Washington.
1 Cf . Appendix I, and references there, for the most important changes since.
2 The number of Associate Justices is now eight (1917) .
320 ORGANIZATION OF THE NEW GOVERNMENT [ 373
373. On the other hand, the power of the Court was soon limited
by an amendment to the Constitution. The first decision to
draw public attention to the enormous powers of the Supreme
Court was in the case of CMsholm v. Georgia, in 1793. Chis-
holm, a citizen of South Carolina, sued in the Supreme Court
to recover a debt from the State of Georgia. The Constitu
tion states that " the judicial power shall extend ... to con
troversies between a State and citizens of another State."
Georgia, however, claimed that this phrase meant only that a
State could sue private citizens in the Federal Court, not that
a State could itself be sued by private individuals. The words
must be taken in the light of the State-sovereignty ideas of that
era ; and, beyond all doubt, this understanding of Georgia was
the general understanding when the Constitution was ratified.
In the ratifying conventions, fear had been sometimes expressed that
this clause might enable a private citizen to. sue " a sovereign State." In
all such cases, the leading Federalists explained that such meaning was
impossible. Madison, in the Virginia convention, declared the objection
" without reason," because " it is not in the power of individuals to call
any State into court." In the same debate, John Marshall (afterwards
Chief Justice), in defending the clause, exclaimed: "I hope no gentle
man will think that a state, will be called at the bar of a Federal Court.
... It is not natural to suppose that the sovereign power should be
dragged before a court. The intent is to enable States to recover elaims
against individuals residing in other States." And Hamilton in the
Federalist (No. 81) declared any other view "altogether forced and
unaccountable," because " it is inherent in the nature of sovereignty not
to be amenable to the suit of an individual without its own consent."
Now, however, the Court, by a divided vote, assumed juris
diction. Georgia refused to appear, and judgment went
against her. Georgia thereupon threatened death "without
benefit of clergy " to any Federal marshal who should attempt
to collect the award. Civil war was imminent.
Similar suits were pending in other States, and there was
widespread alarm. The legislatures of Massachusetts, Con
necticut, and Virginia called for a constitutional amendment,
and passed vigorous resolutions denouncing the Court's
373] THE ELEVENTH AMENDMENT 321
decision as " dangerous to the peace, safety, and independence
of the several States." Then Congress by almost unanimous
vote submitted to the people the Eleventh amendment, ivhich
reversed the decision of the Court and upheld Georgia's inter
pretation of the Constitution.
EXERCISE. Glance back over the chapter with special reference to
the bearing of the chapter's title. Our Constitution has grown by written
amendment, by judicial decisions, and by custom. No period has been
more fruitful in such growth than Washington's administrations.
FOR FURTHER READING on chapters xxxii-xxxvii. Francis A.
Walker's Making of the Nation, 73-167, gives an admirable brief treat
ment. Biographies of Washington, Adams, and Hamilton should be
accessible (see titles in Appendix).
374. CONGRESS made appropriations the first year amount
ing to $ 640,000 about one hundredth as much per citizen as
the cost of government in recent years and it provided for
this expense by a low tariff. The rates averaged about 1\ per
cent, and the bill was based upon the idea in the attempted
" revenue amendments " of 1781 and 1783 ( 331). Pennsyl
vania members, however, secured some amendments intended
to "protect" American manufactures, and this purpose was
finally stated in the title of the bill. Strictly speaking, how
ever, the law remained a tariff for revenue, with " incidental
375. Meanwhile Hamilton, with marvelous skill and industry,
had worked out a plan to care for the old debts and to put the
chaotic finances of the nation in order. First he recom
mended that the government " fund " the continental debt (both
the $11,500,000 due abroad and the .$ 40,500,000 of "certifi
cates " held at home), 1 by taking it up, at face value, in ex
change for new bonds payable in fifteen and twenty years.
To make full provision for the foreign part of this debt was
inevitable, if the United States was to have standing among
the nations. Congress gave unanimous approval to this part
of the scheme, but many members objected to taking over in
full the old domestic debt. For the most part, the " certifi
cates " had passed into the hands of speculators, at twelve or
fifteen cents on the dollar ; and, it was argued, there was
neither necessity nor propriety in voting fortunes out of the
1 About a third of this domestic debt consisted of unpaid interest.
376] HAMILTON'S FINANCE 323
people's money to men who had so traded on their country's
needs. Hamilton maintained forcefully, however, that no other
course would establish national credit or redeem the faith
pledged by the old Congress as the price of Independence ; and
this view prevailed.
On the other hand, the $200,000,000 of Continental currency, held
mainly by the common people, was practically repudiated. This was
much the larger part of the Revolutionary debt. In view of this, the
talk of " redeeming our sacred faith " has a peculiar sound. Hamilton's
plan is to be praised because it was wise, not because it was particu
Even before Hamilton's proposals were laid before Con
gress, his purpose leaked out ; and wealthy men in New York
and Philadelphia hastily started agents in swift-sailing vessels
for distant colonies, and on horseback for back counties, to
buy up certificates at the prevailing prices, before the news
should arrive. Indeed, many believed that Hamilton himself
was corruptly interested in this speculation. From this
charge, happily, he* can be absolutely acquitted ; but he had
been careless in letting out official secrets to less scrupulous
friends, and some of his strongest supporters in Congress
were among these speculators.
376. Hamilton planned also for the Federal government to
assume the war debts of the States ($22,000,000). This part
of his scheme was long in danger. States that had already
paid their debts resented bitterly the prospect of now having
to help pay also the debts of other States ; and States-rights
men denied the right of Congress to assume debts. The meas
ure was finally carried by a log-rolling bargain. Jefferson
was persuaded to get two Virginia votes for "assumption,"
in return for Hamilton's promise of Northern votes to locate
the Capital on the Potomac. 1 Thus the total debt of the new
1 EXERCISE. Let the student make clear to himself, from the text, the
use of the terms funding and " assumption." Is it not clear why this ar
rangement between Hamilton and Jefferson cannot be called a compromise,
but must be styled " log-rolling " ? Did Hamilton pay off any of the debt?
324 WASHINGTON'S ADMINISTRATIONS [ 377
nation was some 74 millions l or about as much per head as
the annual expenses of government a century later.
377. All this was vigorous financiering. American credit
was established at a stroke. Confidence returned at home.
Money came out of hiding, and we entered upon an era of
business prosperity. Daniel Webster afterward said, in a
great oration, that Hamilton " smote the rock of national re
sources, and abundant streams of revenue gushed forth. He
touched the dead corpse of national credit, and it sprung upon
its feet." (Of. 324.)
But it was more than mere financiering. Hamilton cared as
much for the political results as for the financial. He saw that
these measures would be " a powerful cement to union " " by
arraying property on the side of the new government." Es
pecially was this true of assumption. If that part of the plan
had failed, then all holders of State bonds would have been
inclined to oppose national taxation as a hindrance to State
taxation whereby they themselves would have had to be
paid. After " assumption " carried, all Such creditors were
transformed into ardent advocates of the new government and
of every extension of its powers ; because the stronger it grew
and the more it- taxed, the safer their own private fortunes.
The commercial forces of the country were consolidated behind
the new government.
Jefferson soon regretted bitterly his aid to this centralizing force, and
complained that (just back from France) he had been tricked by Hamil
ton. "Hamilton's system," said he, "flowed from principles adverse to
liberty, and was calculated to undermine the Republic." And Maclay
wrote during the contest, ** The Secretary's people scarce disguise their
design, which is to create a mass of debts which will justify them in seiz
ing all the [re] sources of government, thus annihilating the State legisla
tures and creating an empire on the basis of consolidation."
378. The victory of " assumption " made a larger revenue
necessary. Another part of Hamilton's plan dealt with this
1 Several arrangements made it really less than this. Some of the domes
tic debt was paid in wild lands.
379J THE WHISKY REBELLION 325
need. In accord with his recommendations, duties were in
creased slightly on goods imported from abroad; and, in 1791,
Congress imposed a heavy " excise " on spirits distilled at home.
To-day such an excise falls, first upon large distilleries,
which pay the tax and then collect it again from the " ulti
mate consumer" in increased price. 1 But, in that time,
whisky, a universal drink, was manufactured in countless
petty "stills" scattered over the country, especially in the