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LECTURE V.

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PRACTICAL ESTABLISHMENT OF THE GOVERNMENT UNDER THE CON

STITUTION. — FIRST MEASURES. - INFLUENCE OF HAMILTON AND JEFFERSON.— THE HAMILTONIAN ERA OF LIBERAL CONSTRUCTION. - FORMATION OF PARTIES. - DecisIVE MEASURES OF THE GOVERN

MENT.

The 4th of March, 1789, was the day appointed for the new government to go into operation. The city of New York was named as the temporary seat of government. Her citizens by private subscription provided the means to furnish suitable chambers in which the senators and representatives might meet. But on the first day few senators and representatives appeared. Those who did come were not a little annoyed at the delay of the others. It did not augur well for the new government. Besides, the disparaging pleasantry of the enemies of the new order of things disturbed their composure. But the roads and weather were bad, while some of the elections had been too recent to admit of so early an attendance on the part of those chosen. After waiting a week without obtaining a quorum, a circular was issued to the absentees. This circular pointed out “ the indispensable necessity of putting the government into immediate operation.” But not until the 31st day of March did a quorum of representatives appear, and the senators delayed until the 6th of April. The two houses then assembled and counted the electoral vote. It was found that George Washington had all the votes cast, and John Adams had half of them, less one. Under the Constitution, as it then was, Washington became President, and Adams Vice-President. The first presidential electors were chosen by the people in five states, and by the legislatures in five states. The friends of the new Constitution mainly did the voting; those opposed remained away from the polls. The State of New York did not participate in the elec

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tion of the first President, nor did her senators sit in the first
session of the first Congress until July 19, 1789. The bitter-
mess with which Governor Clinton regarded the unconditional
ratification of the Constitution, and his determination that
there should be another federal convention to propose amend.
ments to it, probably account for the attitude of the state.
But Hamilton, Madison, and the other leaders decided not to
incur the risks of another convention.

Richard Henry Lee of Virginia declared that it was only
common fairness to wait and see how the new government
would work; that he was opposed to any premature amend-
ments. As he had been a vigorous opponent of the adoption
of the Constitution, bis position had great weight; many
others took the same ground; and the effort to convene an-
other federal convention failed.

Washington was not inaugurated until the 30th day of April. After the electoral vote was counted a messenger bad to be sent to Mount Vernon. Washington had been making ready to go to New York. His estate, great as it was supposed to be, did not supply him with sufficient ready money. We find him borrowing six hundred pounds of his friend, Captain Conway, to enable him to pay some of his debts, and make a decent figure as the first officer of the nation. Meantime under the lead of Madison the House of Representatives began the work of making the necessary laws to place the nation in operation and enable it to obtain some money.

The first act of the first Congress prescribed the oath to be administered to the officers of the government. This oath requires them to support the Constitution of the United States, unlike the constitutional oath required of the President, to “preserve, protect, and defend the Constitution.” The second act was to impose duties upon certain imports. Its preamble recited its purpose “ to be for the support of the government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures." In after times and down to the present day, when the constitutional right to levy duties for the purpose of protection of manufactures has been challenged, one answer has been, to point to this preamble and say, “ Thus our fathers understood

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ACTS OF THE FIRST CONGRESS.

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it.” On the other hand it is urged, and I think justly, that the debates show that the main purpose was to obtain revenue ; but protection was considered, and duties were adjusted to afford it. Mr. Madison said that the states, ripe for manufactures, ought to have their particular interests attended to. One object in adjusting duties to afford protection, as well as to obtain revenue, was to reconcile the states to the new revenue system by the promise of the advantage which protection held out to them; and it was also believed to be good policy to develop every resource of the country essential to its own support, to the end that it need not be dependent for supplies upon any foreign market.

This Congress provided for the organization of courts ; created the departments of State, War, and Finance; prescribed their respective functions; and provided a postal system. There were only seventy-five post-offices then in the country. An aggregate of $659,000 was appropriated for the expenses of the government, not including any provision for the public debt. This proved to be sufficient for the expenses of the first year. Since 1862 the daily income of the government has averaged a greater sum.

This Congress confirmed the confederate Ordinance of 1787 for the government of the territory northwest of the Ohio; passed navigation laws; regulated the coasting trade; provided for light-houses ; for the sale of public lands; the goyernment of the territories; for the naturalization of aliens ; proclaimed a policy respecting the admission of new states, and fixed the salaries of public officers. In short, it passed the laws necessary to start the new government. Plainly, it labored for the public good, with singleness of purpose.

In creating the Department of State, the question arose whether the officer to be appointed by and with the advice of the Senate might be constitutionally removed by the President. The bill contained the words, " to be removable from office by the President." The Constitution is silent upon the subject of removal, except by impeachment. It provides that judges shall hold their offices during good behavior, but is silent as to the terms of the other appointees of the President. It was argued that the power to appoint " by and with

the advice and consent of the Senate” implied the like advice and consent for the removal. But it was seen that the power to vote a man in is distinct from the power to vote him out, after he is in. The House of Representatives agreed that, since the executive power was vested in the President, the power of removal was incident to the office of President; and if that were not so, then by law the President ought to have the power to remove an unfit executive officer, and that the Constitution authorized Congress to confer this power. The Senate, more jealous of its powers, divided evenly upon the question, and the casting vote of the Vice-President secured the power of removal to the President. In the presidency of Andrew Johnson, Congress reversed this early construction. The rule prescribed by Congress in Grant's administration was that officers appointed by the President could only be removed by the like advice and consent; but the President might suspend them, and the suspension would be effective only until the end of the next session of the Senate, unless meantime the Senate should consent to the removal. Congress repealed the Tenure of Office Act in 1887, and thus readopted the early construction.

The Constitution provides that officers of the United States shall be established by law. These officers, except the few whose appointments are otherwise provided for by the Constitution, must be appointed by the President, by and with the advice and consent of the Senate. It was not necessary that the Constitution should provide for their removal, since the power to establish by law implies, as the necessary incident of that establishment, the power to declare what the office is, and the tenure upon which it shall be held, whether for a term of years, during good behavior, or the pleasure of the President. The claim that the removal cannot constitutionally be made except with the consent of the Senate is probably untenable, although it is competent for Congress so to declare by law.

Madison prepared and Congress proposed twelve amendments to the Constitution for adoption by the states. These amendments were framed the more clearly to express the limits set to the powers of the general government. The

1 Er parte Hennen, 13 Peters, 237 ; Blake v. United States, 103 U. S. 227.

AMENDMENTS TO THE CONSTITUTION.

101

Constitution as first adopted conferred certain powers upon the government. The argument was urged, and was probably sound, that powers not conferred did not exist in the general government, and could not be used. But it was wise, in view of the widely expressed apprehension that this might not prove true, to state it expressly. The states adopted ten of the twelve amendments, and rejected two. Eight of these amendments protect the citizens from the oppression of the United States, and the ninth and tenth express the non-existence in the United States of undelegated power. The ninth is, “ The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The tenth is, “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” It is a striking evidence of the approval of the general scheme of the Constitution by those who most opposed its adoption that, in the great mass of amendments proposed by the several state conventions, no fundamental change in the system was suggested. The twelve amendments proposed were sneered at by a member of Congress, as of “no more value than a pinch of snuff, since they went to secure rights never in danger.” Another member characterized them as “ whipped syllabub, frothy and full of wind, formed only to please the palate; or, like a tub thrown out to a whale, to secure the freight of the ship and its peaceful voyage.”

These ten amendments were originally limitations of the federal

power, and not in any sense limitations of the powers of the states. The reason why they were thought to be unnecessary by the framers of the Constitution was that the United States was created to exercise delegated powers, and hence could have no powers not delegated. In other words,

, it was the agent of the people and of the states, and like every other agent could not have or exercise any power except such as was given by the principal. But as an agent will sometimes assume more power than is actually given him, it was felt that the United States would be peculiarly tempted to such assumption, and therefore it was prudent to recite in

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