The new government is in place. Washington is now the sitting President. The time has come to build the Executive branch of the new government.

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Foreign.

Hello, and welcome to the political history of the United States.

There was a significant amount of distrust towards the new office.

Although people generally trusted that George Washington would do the right thing, everybody knew that at some point there would be a President who was not named George Washington, and that the actions and precedents that they were now setting would account for how much power that individual would have during the very earliest days of the administration.

This manifested as a battle in Congress, one that would also pit the House against the Senate for the first time over exactly how one should address the new President.

Although on the surface this fight over titles and decorum towards the President seemed somewhat trifling, if not bordering on the outright absurd, it was hardly absurd to the people living at the time.

These were very real questions that carried a whole lot of weight.

While everybody tried to figure out exactly how to address Washington, he was left to deal with the practical questions of leadership.

The Constitution provided only some broad parameters and limitations as to what the office of the President could and could not do.

Washington was going to largely be left to his own devices to decide just how exactly the office was going to function on a daily basis.

Today we all more or less know the things that take place during a presidential transition.

The new President goes through those predictable steps of building out their new cabinet and preparing the nominations.

We know that these are the steps that are going to be taken, because mostly they are the steps that have always been taken.

There is well established precedent for doing just those things.

This week.

That is the very thing that we are going to spend our time looking at.

Well, we have talked at length about the distrust that the people had for the office in general.

This week I want to look at those more practical battles that would emerge during the early months.

The Constitution provided little more than a framework, and it would be up to Washington and the Senate to figure out exactly how not to step on the other's toes.

Understandably, you would imagine that Washington would have been absolutely inundated with tasks during those first several weeks in office, what today we would often refer to as the first hundred days in the United States.

After all, he was coming into a job where he had a task no less monumental than the creation of the office itself.

However, that was not actually the case.

As Washington biographer John Fairling explains, Washington had more free time on his hands during those early days than any other president in the country's history.

Part of the problem was that the government was so incredibly underdeveloped at this point that Washington was stuck waiting on Congress to go ahead and set up departments for him to staff.

An obvious example of this would be the federal judiciary.

You know, the third branch of the government, the job of appointing judges belonged to Washington with the advice and consent of the Senate, of course, and was something that he did need to get to.

The problem was that before Washington could nominate judges, Congress needed to create the federal districts where they would serve.

This process was not complete until late summer, meaning that Washington was incapable of nominating judges in a more timely fashion during this time.

Washington, as we saw last time, was now the popular trend, apparently spent a significant amount of his time stressing over exactly what decorum he personally needed to follow.

This included questions of if he should attend dinners at the homes of private citizens, when he should go to Congress for advice, when he should meet with the public, and so on.

These questions of decorum were more or less the same questions that had been brewing during the title controversy, that core discussion of what the presidency was and how it should be treated.

Hamilton, who would in time be accused of being a monarchist, would counsel that Washington essentially act in exactly that manner.

He advised that, much as we had seen from Washington when he led the army, there should be a certain amount of aloofness from the citizenry.

John Adams, who we know from last time was having a pretty rough go with things, actually advised a more flexible path, with the citizenry having at least some access to Washington.

Ultimately, Washington would split the difference between the two men and would create an office that, although allowing for contact with the citizens, was cloaked in a dignified shroud that would help establish the importance of the office.

This period of time actually proved to be particularly miserable for Washington.

Now, George Washington was already not feeling great about his new gig.

He was already playing with the possibility of getting the office set up, getting everything stabilized, and then handing over the reins of power to John Adams.

Washington was genuinely anxious about the job and his ability to perform it.

He was well aware of what people expected from him and worried that what they expected was more than he could deliver.

Much of what Washington worried about was that damage to his reputation should he fail in his new duties.

These, of course, are the same fears that he had prior to being elected and was about the Only thing giving him second thoughts on if he wanted the job in the first place.

Making matters worse, in June, Washington became seriously ill. Like there was a real concern that Washington might actually die.

The entire incident began in the middle of June, when Washington first noticed that he was experiencing a lack of energy.

Soon thereafter, a high fever followed and then a noticeable growth on his thigh.

As I think many would worry about today, the concern for Washington and those around him is that he had cancer.

As it turned out, it was not cancer, but instead an abscess that had formed.

Doctors knowing this were able to drain the growth in Lancet.

This entire ordeal, however, would not only cause Washington considerable pain, but it laid him up for weeks.

Even after the healing had begun.

It took months before he was fully recovered.

Between this illness and the fact that Congress was busy creating the executive departments that Washington needed to staff, it meant that despite having to create the presidency largely from scratch, Washington had surprisingly little to do during his first several months in office.

It was very much a situation where he had to hurry up and wait.

Although it may seem that this is an example of an inefficient Congress dragging its feet, the decisions being made by them during these early months were fraught with questions.

In general, executive departments and organizational structures like a cabinet were deeply distrusted.

That fear we have discussed over executive power was again rearing its head.

Many had felt that it was the patronage system in Britain that had led that great nation so astray.

So astray that it ultimately necessitated that the United States leave the system altogether.

So as Congress took over that job of creating executive departments, they fully understood that they needed to tread carefully.

Now, in the case of two departments, specifically the Department of War and the Department of Foreign affairs, those departments were allowed to continue on for an interim basis as they had existed during the Confederation.

The Department of War continued to be run by Henry Knox.

With John Jay at the helm of the Department of Foreign affairs on May 19, Congress began the process of not just establishing the departments of the government, but first figuring out which departments to form.

Now, when New Jersey representative Elias Boudinot first proposed establishing these executive level departments, the one that he was seemingly most interested in was the Treasury.

This is not exactly that surprising of a position either.

The government had been reeling for the last decade for a whole lot of reasons, but really at the very bedrock of so many of those systemic problems that had plagued the Confederation was the fact that they were just flat broke, with no actual prospects to fix that situation.

That lack of money had been easily the biggest problem for the Confederation.

And everybody was indeed very eager to fix that problem.

This is why that it might come as something of a surprise that James Madison, who very quickly jumped in as the leader of these debates, decided to punt on finance and instead take up the Department for Foreign Affairs.

Madison was critically a keen political actor.

He fully understood that the treasury was going to lead to controversial conversations.

Especially when it came to that all important question of just how the department was to be organized.

Would it be run by a single individual, or rather by a committee?

How far would their power extend?

This brings us to one of the most critical questions during those early months of the new government.

Chiefly, how much power were these departments actually going to have?

The first Congress was surprise, surprise.

Overwhelmingly Federalist.

That, however, is not to say that there was not significant resistance remaining towards the Federalists.

In most states there remained a vocal number of anti Federalists who were still unhappily licking their wounds from the ratification process us some months earlier.

By the time that the returns were counted from that first election, however, only 11 out of the 59 representatives elected would count themselves amongst the anti Federalist faction.

The large number of Federalists now at the helm did likely mean more good things for Washington, as these men were less opposed to the idea of centralized power.

However, it alone did not necessarily indicate easy sailing for the new president either.

Although a good omen.

Even amongst the Federalists, there remained differences which often boil down to regionalism.

A South Carolina Federalist and a Massachusetts Federalist, for example, might both be in favor of increased executive authority.

However, bring up the subject of slavery and huge rifts would suddenly appear.

Although this is a pretty extreme example, the greater point is that the Federalists, as they exist at this very moment, are not exactly a political party in modern terms.

Now that is going to be changing here in the coming years and is a process that we are going to spend a whole lot of time with.

More so, they were a semi aligned proto political party.

When it came to the formation of these federal departments.

These differences are going to play directly into the arguments and debates over just what the final forms would be.

The decision to form the federal departments was not controversial in the slightest.

Everybody knew that they were necessary and that they were going to exist.

The question that Madison found himself dealing with was differences of opinion in Congress on just how far those powers should extend.

Madison chose to begin the process of addressing these questions through the Department of Foreign affairs because it was seemingly going to be less controversial of a department than treasury would prove to be.

Yet even here there was a significant question that Congress was going to need to decide from the beginning regarding the scope of the presidency.

Specifically, the power that came into question was the President's ability to remove an official from office.

The Constitution was clear that to appoint a federal official, the President was required to seek the advice and consent of the Senate.

The question that formed therefore was did the President enjoy the unilateral power to fire an appointed federal official?

The Constitution was silent on the subject.

Outside of removal via impeachment, this question left the representatives with three potential options.

The first option here is that the President could indeed remove a federally appointed official from power by themselves.

These federal officials were going to form the very core of the President's inner circle, and denying the President the ability to unilaterally remove an official from office seemed ripe to cripple the executive branch.

The second option is that if advice and consent were to be required for appointed an official, it seems only logical that advice and consent was going to be required to fire them as well.

As the third group argued that the Constitution already did answer this question, impeachment existed for a reason and was the remedy.

The solution settled upon here would greatly determine a critical question over executive authority in the new government.

If a president was going to be required to seek the approval of the Senate to remove a government official, it would both greatly weaken the presidency and potentially sink the efficiency of that office to act while helping to promote the power of the Senate.

On the other hand, should the President have the power all to himself of removing troublesome officials, it would give them far more control over their own administration.

If the impeachment only argument somehow carried the day, it would mean that regardless of how incompetent an official was, they were safe.

James Madison recognized this problem virtually instantly.

Madison argued that people ought to be less concerned about abuses coming out of the executive branch because the executive branch was the weaker branch of government as compared to the legislature.

This is, of course, perfectly in line with the thinking of the time.

Recall that when we discussed the drafting of the Constitution, the legislature was always the first amongst equals when it came to power.

Madison's goals here, therefore, were twofold.

First, he clearly wanted to establish that the president had the power to remove appointed officials without the need to get consent from the Senate, or, even worse, rely upon the power of impeachment.

Beyond that, however, Madison did not want such a power to come from a legislative grant.

Rather, what he wanted was for such a power to be inherent, granted from the Constitution itself.

The risk that came with having a legislature grant the president the power to remove people without the Senate is that in the future, should they change their mind, they could pass new legislation stripping that power.

This could obviously cause all kinds of chaos if, say, the president and the senate belonged to different political factions.

Although Washington, and indeed many others, desperately hoped that party politics were not going to become a mainstay feature of the United States, many were also aware that such factionalism was a distinct possibility in the House.

Therefore, it was Madison who fought tooth and nail to ensure that the president retained the ability to remove troublesome officers free of legislative oversight.

Although it took some work, Madison proved to be sufficiently convincing in order to get the house on board.

If the House needed some gentle prodding to bring them around, the Senate would prove to be far more resistant.

This, of course, makes sense.

It was, after all, the Senate that would be sacrificing some of their own power should the president gain the unilateral ability to remove government officials.

For many of the senators, having oversight over both the appointments and removal process sounded like a pretty good prospect.

This means that in the Senate, there were two issues that needed to be overcome.

First was that risk of creepy monarchism in the executive.

Second was that threat of the executive taking what many senators believed to be a power that they held.

This would end up setting up the first, but not the last, battle between the president and the senate.

Unsurprisingly, both branches were eager to secure as much of their own power as they could, and neither were too terribly fond of handing power over to the other side.

With this specific question over removal power, the Senate proved to be evenly split on the issue.

With a tie in the Senate, it luckily meant that the deciding vote fell to John Adams, who, somewhat predictably, voted in favor of conceding the right of removing an official to the president.

As Gordon Wood argues, this was a monumental moment for the young nation.

Had the senate retained the ability to both approve appointments and remove officials from cabinet positions in the government, it would have made executive officials dependent upon the will of the Senate.

This would have, in turn, created a system more akin to the British system, where the cabinet's responsibility is to Parliament rather than to the monarch.

In the United States, the cabinet would now be far more tied to the president Washington, who was well aware of the ramifications of this vote, was very relieved by the outcome of it.

This battle that we have been talking about was all over the Department of Foreign affairs, which, if you'll recall, was going to be the less controversial of the departments.

When it came to the treasury, things were even more fractious.

Now, as I stated a few minutes ago, everybody understood the importance of this particular department.

The confederation government had fallen apart primarily because of a financial crisis that it just couldn't extract itself.

When it came to organizing this all important department, Two new questions quickly came up.

First, there was the question of just how it would be led.

Via a single person or by committee.

The second key question was if a single person was in charge of the treasury, just how much power would they have?

Especially in light of the fact that the president now had the unilateral right of removal.

Again, here it was James Madison in the House that took control.

Madison argued that having the treasury led by a committee rather than by a single individual would do nothing but weaken the power of the department.

And that an energetic treasury was critical to the functioning of the government.

Although the House was a get on board with Madison, the Senate was not.

Here they attempted to claw back that power of removal from the president.

This amendment kicked the bill back down to the House, where, at Madison's urging, it was rejected.

This would force the Senate to approve the bill as it was acknowledging the president's right to removal.

Once again, the Senate split evenly.

And once again John Adams decided to vote in favor of Madison's recommendation.

As all of these battles to establish the boundaries of the executive and the legislative were being waged, Washington himself remained largely removed from the situation.

This aloofness from the proceeding was not exactly unexpected.

Washington knew that he had allies in Congress.

I'm looking at you there, James Madison.

And that it would be inappropriate for him to intercede in these proceedings.

Although the outcome certainly affected him and his office directly, they were ultimately legislative matters.

However, this is not to say that Washington had no interaction with the legislative branch during this time.

In fact, as we are going to see in just a minute, Washington did indeed have a critical personal interaction with the Senate during this time that would go so poorly that it would permanently alter the relationship between the president and the Senate.

Now, Washington, being the good steward of power that he was, knew that the Senate had the right to advise and consent to treaties.

It is right there, in Article 2, Section 2 of the Constitution, the President can make treaties with the advice and the consent of the Senate.

So knowing that he was going to be making a treaty, Washington decided to head down to the Senate to seek some of that advice that they were supposed to offer.

Washington believed that his relationship with the Senate was going to be exactly what the Constitution said it would be.

In plain language, a body that could provide him with counsel and advice.

Although Washington was fine with appointments being handled via written communications with the Senate, he fully believed that treaties were active things that would require more than written correspondence.

Washington thought that in these situations, advice and consent were going to have to come in the form of oral communication.

The Senators, on the other hand, were a whole lot less sure that an in person visit from the President was ideal.

To say that his personal gravitas was significant is an understatement.

The concern with him appearing in person before the Senate, therefore, is that his very person would be a distraction bordering on, albeit inadvertent on the part of Washington intimidation.

Now to just really set up the timeline.

Washington is heading to the Senate in August, specifically on August 22, to discuss the treaty.

This is at roughly the same time that the Senate was arguing over what their rights were when it came to the removal of appointed officials.

So just as this entire advice and consent incident was being fleshed out, John Adams was casting his tie breaking vote over the treasury on August 25.

This means that Washington's trip to the Senate to discuss this treaty was contemporaneous with the battle over the Treasury.

What we know about this episode we know from the diary of William Maclay, who as we are going to see shortly, is going to somewhat suspiciously play the hero in this story.

As it goes, Washington, accompanied by Henry Knox, went to the Senate on that Saturday in August to seek the advice and consent on this Indian treaty.

Now this is painted as something of a surprise trip for the President.

With only a day's notice being given, John Adams quickly read the treaty.

However, those in the back couldn't hear, forcing him to awkwardly read the treaty a second time.

Per Senator McClay.

Some in the room were simply in awe because come on, that guy over there is George Washington.

Others, he writes, others found Washington to be intimidating as he just sat there watching them debate the treaty.

As the story goes from there, it was McClay who finally recommended that the issue be sent to a committee for study.

This infuriated Washington, who personally had come down to get this thing done and now was very unhappy that they were going to be sending this off to a committee.

Seemingly wasting his very valuable time, Washington vented his anger publicly by, in what Maclay describes as a violent threat, he complained vocally that a committee completely defeated him coming down in the first place.

And then he stormed out, muttering that this was the last time that he would ever waste his time coming to the Senate.

As historian Gordon Wood points out a few years later, during the neutrality crisis, Washington did not waste his time heading back to the Senate for their advice.

There is truth to the fact that Washington really did give very little notice about his coming appearance.

In fact, he had only provided notice the day before that he was planning on dropping in.

However, it is unfair to say that the Senate was unaware of these treaty talks.

Indeed, for a few weeks prior, there had been significant written back and forth between Washington and the upper house.

Much of the discussion during this time had been on the point of the procedures for the President seeking advice and consent.

So although it is true that Washington gave very little notice of his pending trip to meet with the Senate, they had at least two weeks worth of discussion on both the treaty itself as well as the procedure for the President to make a visit.

As historians Stanley Elkin and Eric McKittrick write in their book the Age of Federalism, sometimes you just have to go through the process to fully understand how things are unworkable.

The entire ordeal with Washington visiting the Senate was a headache for all involved.

Few could hear Adams read the treaty repeatedly over the sound from the outside.

Other senators, and by this I mean Maclay, wanted a complete rundown on all the treaties between the Southern Indians and all of the other related documents.

Washington had prepared a brief for the senators.

However, he was essentially walking into the room with a short PowerPoint presentation and William McClay was asking for a full rundown of the entire scope of the situation.

And to be fair, Maclay had all the right in the world to be fully informed.

And certainly he was not alone in wanting all of the information.

However, by this point, the entire thing had become thoroughly frustrating for everybody involved.

Washington does seem to have become upset enough that he did have a small outburst after he calmed down.

However, he did agree that, okay, fine, take a few days and talk about it, and I'll be back on Monday.

At this second meeting two days later, Washington appeared, everybody remained calm, and an agreement was reached.

What is also true, however, is that immediately the formulation for Washington, and indeed all subsequent presidents changed in short order, the concept of seeking advice and consent was modified to seeking consent.

Washington would continue for a while to send written communications to the Senate asking for their advice.

However, by the end of his first administration, the need to maintain strict secrecy when dealing with always fluid and often volatile European affairs meant that Washington would abandon even these written communications.

That part of the Constitution arguing that he needed to seek the advice and consent from the Senate had been de facto modified to consent as seeking advice was outright abandoned when it came to treaties.

As Elkin and McKittrick explain, this entire ordeal had been something of a test, which would help to clearly show that the advice aspect of the equation here was mere language and that inherently the president had never been required to seek advice directly from the Senate.

This incident clearly showed that in practice, the president officially seeking advice from the Senate was disruptive to the extent that it was unsustainable.

I have spent a pretty significant amount of time covering the events of the last few years.

That means we have spent an entire 13 episodes covering what amounts to around three years worth of time.

Between that battle over titles and then looking today at the debates over what constitutes advice and consent from the Senate, these were things that were very much being fleshed out in real time.

As we mentioned earlier, following Washington's visit to the Senate in August, everybody realized that in person meetings simply were not going to work.

In time, the need for strict secrecy would come to basically make the advice portion of that constitutional provision moot.

The practical effect of this is that, as historian Gordon Wood puts it, Washington had established that the executive branch would remain the dominant authority in all things related to foreign affairs.

These fights are going to continue on into the future as the government becomes increasingly developed in the years to come.

Some of the battles that emerge are going to be matters of high political philosophy, battles like we saw when it came to the question of presidential titles.

Other times, the shaping of the office is going to be far more pragmatic, as we saw this week over the interpretation of advice and consent provisions as it deals with foreign affairs.

In both instances, however, what we see are tests to the new Constitution and government that are leading to precedents that will forever color the office.

Next time, we are going to turn to Washington's first appointments to these newly created offices and examine exactly who this new group of men were and just what they would be bringing to the office.

Until then, I hope you all have a wonderful two weeks.

I hope that you are staying healthy and that you are staying safe, and I will see you back here next time to look at Washington's first cabinet.