James Madison proposed nine changes to the Constitution on June 8, 1789. Under his proposal, the changes would be inserted into the original Constitution, with some deletions as well. Below is the full text:
First. That there be prefixed to the constitution a declaration—That all power is originally vested in, and consequently derived from the people.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.
Secondly. That in article 1st. section 2, clause 3, these words be struck out, to wit, “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.” And that in place thereof be inserted these words, to wit, “After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”
Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”
Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.
No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
Sixthly. That article 3d, section 2, be annexed to the end of clause 2d, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.
Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:
The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorised in some other county of the same state, as near as may be to the seat of the offence.
In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:
The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.
The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.
Ninthly. That article 7th, be numbered as article 8th.
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To view the details of his proposal in Context, go to: https://founders.archives.gov/documents/Madison/01-12-02-0126
Last week we covered the priority bill of the first Senate. This week, look at the main focus of the House of Representatives during its first session: amending the Constitution to include a bill of rights.
Advocates for a Bill of Rights
By far, the biggest complaint following the Constitution was that the proposed Constitution did not have a bill of rights. A majority of state ratifying conventions focused on this point and demanded that one be added. Massachusetts, New Hampshire, Virginia, and New York, all explicitly called for a bill of rights. The federalists in those states could only fight to make them suggestions rather than mandatory in order to get the Constitution ratified. North Carolina and Rhode Island still refused to ratify the Constitution, at least in part due to the lack of a bill of rights. Pennsylvania, which had ratified early and unconditionally, held a second convention before the ratification process was complete in other states. That group also called for a bill of rights.
James Madison
The concept of a bill of rights had become an ancient bulwark of freedom in English history. The Magna Carta of 1215 limited the king’s power in certain ways that were designed to establish a rule of law, and rejected the idea of an absolute ruler who could do whatever he wanted. This notion found its way into the English Bill of Rights in 1689, following the Glorious Revolution in England.
The English Bill set out some basic principles that had become foundational to what most leaders thought was necessary for a free society. It rejected the idea that the king could suspend or ignore laws passed by Parliament. It also barred the king from levying taxes without the approval of Parliament. This was the basis for the colonial complaint of taxation without representation.
The English Bill also guaranteed the right of free speech and to petition the government. It barred the king from keeping a standing army in time of peace without Parliament’s approval. It guaranteed Englishmen, at least Protestants, the right to keep arms. It also required jury trials for most cases, banned excessive bail or fines, cruel and unusual punishments, and fines or forfeitures before a trial.
The colonists had used this as the basis for justifying their Declaration of Independence. These were the sorts of inalienable rights that the king had violated. Americans wanted to establish that these rights had to be protected above all else. All states had some statutory or constitutional guarantee for the projections of rights. Most of these were created in 1776, when the states declared independence, and some were based on rights that were already written into their colonial charters.
The Articles of Confederation did not have a bill of rights. This was because the authority under the Articles was so limited, that it was thought to be unnecessary. But when the Confederation Congress established the Northwest Territory, it built a bill of rights into the Northwest Ordinance.
Opposition
Many of the leading federalists, including Alexander Hamilton, James Madison, James Wilson, and Oliver Ellsworth opposed a bill of rights. Much of the concern had more to do with strategy than any opposition to the principles in such a bill. They did not want any changes to slow up the ratification of the Constitution. They also did not want to see a second constitutional convention that might go well beyond adding a bill of rights, and undo many of the other provisions established at the first convention.
But even beyond those strategic considerations, leading federalists argued that creating one was a bad idea. For starters, they argued that the US Constitution was the same as the Articles of Confederation, in that it only gave the federal government certain enumerated powers. Unlike states that had all sorts of potential powers (what we call today general police powers) the federal government could only act in those areas that the Constitution specified.
So, for example, there was no worry that Congress could pass a law infringing on the freedom of speech or press because there was no enumerated power in the Constitution that allowed Congress to have that power. Hamilton wrote in one of the federalist papers: "why declare things shall not be done, which there is no power to do?"
The Federalists also argued that there was an affirmative danger in listing a specific bill of rights. By defining those rights, they were concerned that they might inadvertently leave some right off of the list, leading to the implication that the government might infringe on that overlooked right. Some also argued that since the Constitution did nothing to repeal the various rights protected by state constitutions, that that the people still had those protections.
Beyond that, men like Madison believed that simply writing down certain rights was essentially meaningless. He called them “parchment barriers.” A majority in what he called “popular hysteria” might approve of taking away some of those rights. That had already happened at times at the state level. Simply having a right on paper, that the government did not recognize, and that the voters did not care about, was essentially meaningless. The protection of rights comes from the demands of the people and the obedience of government to those demands.
Madison’s Conversion
James Madison had been a leading opponent of a bill of rights at both the Constitutional Convention and during the ratification conventions, mostly for the same reasons most federalists opposed them. They were an unnecessary distraction from creating and implementing the new Federal Constitution.
However, by the time Madison had taken his seat in Congress, he had changed his views on this topic. Patrick Henry and other anti-federalists in Virginia saw Madison as dangerous. They tried to keep him out of the federal government completely, first denying him an appointment as Senator, then drawing congressional districts to put his home in a strongly anti-federalist district.
When Madison entered the election contest against James Monroe for a seat in the House of Representatives, he knew that his voters were not happy with his federalist tendencies and were inclined to vote against a representative who would push for a stronger federal government. So, Madison did what any politician fighting for political survival would do. He flip-flopped.
Ok, maybe I sound a bit cynical in saying that. We generally think of a flip-flop at completely changing one’s view on an issue of principle. As I said before, Madison never objected to the fundamental principles that a bill of rights would protect. He simply saw it as an unnecessary distraction. With the ratification process behind them, a bill of rights would not impede the implementation of the constitution. In fact, if he could introduce a bill of rights on his own terms, it might take away some of the political pressure to hold that second constitutional convention.
Even as late as August of 1788, Madison was still pushing the federalist line that a bill of rights taken up by the first Congress would be a distraction. Madison called for having a few years without a bill so that there would be some experience as to exactly what rights should be protected.
But as the election heated up, Madison changed that view. In a letter in the fall of 1788, Madison candidly admitted, in a letter to Thomas Jefferson, that he was fine with a bill of rights, if it was done properly, but that he mostly favored it to satisfy others.
My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others
Jefferson strongly encouraged Madison to support the bill of rights, not only out of political expediency but because such “parchment protections” as Madison called them did make a difference. While Jefferson conceded that popular governments might still violate those rights in some cases, writing out those rights would help to protect them. In particular, it would give the judiciary more ammunition to protect those rights against the popular will. So, while Madison still believed a bill of rights to be mostly about satisfying others, he did decide to make it a priority.
Madison made his new views public with a letter written on January 2, 1789, to a local Baptist Minister, George Eve, Madison wrote in part:
it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c.
To further his point, Madison wrote another letter to Thomas Mann Randolph a couple of weeks later, which he knew would be published in the newspapers a few days before the election. In it, Madison reiterated his willingness to amend the Constitution.
The report, which, I have reason to believe is most injurious, charges me, with being a strenuous advocate for the perfection of the Constitution as it stands, and an inflexible opponent to the change of a single letter. The truth, on the contrary is, that I have ever thought it might be improved in several points, although I never could see the dangers which alarmed many; and what is more, was an unsuccessful advocate in the General Convention, which framed the instrument, for several of the very amendments, since recommended by this, and other States.
He Continued:
It is particularly, my opinion, that the clearest, and strongest provision ought to be made, for all those essential rights, which have been thought in danger, such as the rights of conscience, the freedom of the press, trials by jury, exemption from general warrants, &c.
He also argued in favor of amendments rather than a second convention. In this point, he argued that it would be a much faster and easier way to get these changes into the Constitution. In short, Madison not only supported a Bill of Rights, he made it a top priority and promised voters that he would personally initiate these proposed amendments right away when he got to Congress.
Madison’s motives were not simply to win the election. He had also come to realize that so many people had demanded a bill of rights, that it was probably inevitable. By leading the fight to create the bill, Madison could make sure it was done the way he wanted, and could also be done in a way that avoided that dreaded second constitutional convention.
First Draft
After winning his seat in Congress, Madison focused on producing a draft bill of rights. I use the word focus cautiously, because Madison was doing a host of other things at this same time, including writing President Washington’s inaugural address, helping to get the President’s residency set up in New York and many other things.
Despite his other work, Madison had promised his constituents to make the bill of rights a priority. He got to work researching what should go into it. Madison relied heavily on the Virginia Declaration of Rights, written largely by George Mason in 1776, although others, including Madison himself, had played a role in drafting their final version. Madison also went back to the Magna Carta, the English Bill of Rights, and the works of philosopher John Locke.
Madison also tried to use more contemporary sources. He reviewed all the state constitutions of see what those documents considered to be the most important protections. He also consulted all of the proposals drafted by the various state ratifying conventions. Of particular concern to him were the proposals made by the voters of Virginia.
The various conventions, along with reports from minority committees in states that did not formally propose amendments, totaled over 200 changes to the Constitution. Many of these were duplicative. Even after removing all the duplicate requests, Madison came up with a list of about seventy five distinct amendments.
Although Madison consulted a great many documents while drafting his proposed amendments, he did not seem to consult with many people during his process. He had corresponded with Thomas Jefferson and others about whether to add a bill of rights. He also showed his final proposal to George Washington before submitting it to Congress. But he did not seem to work with anyone else as he drafted the specific proposals that he planned to introduce into Congress.
Madison, of course, expected that once he introduced his proposals, that Congress would tear into them and make plenty of changes. This was the same thing that happened when he introduced his Virginia Plan at the Constitutional Convention. But by presenting a completed proposal, Madison would at least control where the debate began, and hopefully prevent it from moving too far afield.
His goal was to draft a comprehensive list of all the major concerns raised by the states and on which there was a general consensus. He wanted the focus to be on an expression of protected rights. Madison did not want the debate over amendments to veer into a discussion of substantive changes to the Constitution itself. He viewed this more as an addition or supplement to the original document, not an effort to rewrite the whole thing.
Madison still saw this effort as substantively meaningless. He already believed that the Constitution, as written, did not give the federal government the power to infringe on the basic liberties of the people. This was an effort to keep his constituents happy and to satisfy anti-federalist complaints that the new Constitution did not protect these rights.
As a result, he simply compiled a list of various rights that people had. He did not make any effort to create a system for the federal government to protect those rights or any sort of enforcement mechanisms or procedures for the people to use when the government overstepped its bounds. Madison noted states had all provided for different protections. For example, five states had established religions or permitted them. Five also did not provide for protection of rights of assembly, petition, the right to council, or trial by jury in civil cases. Two states did not say anything about a free press. Four states had no restrictions on things like excessive fines or bail, self-incrimination, or the need for search warrants. The majority of states had no problem with ex post facto law or double jeopardy,. Most did not require grand juries. Only a couple explicitly provided for freedom of speech or a prohibition on double jeopardy.
Madison’s main focus was to make sure that the federal government would not infare on these rights. He made very few changes to ensure states would protect the people from state infringements of their rights. Indeed, if Madison had tried to empower the federal government with power to prevent states from interfering with the rights of the people, that would have led to a backlash from anti-federalists about allowing the federal government to interfere with state powers. Each state would continue to have full authority to establish its own rights. Madison’s amendments primarily sought to ensure that the federal government would not infringe on his list of rights.
Madison believed that the best way to preserve these rights was for the people to be on the watch at all times for a government that might infringe on them. Beyond that, the separation of powers that was spelled out in the original Constitution that would prevent fleeting majorities who might elect someone who would run roughshod over their rights, from having sufficient power to put those violations of rights into effect.
In his final proposal to Congress, Madison did add a few substantive restrictions. He added a rule that would increase the size of the House of Representatives so that there would be one representative for every 30,000 voters. There had been a push for this rule at the convention, and several states, including Virginia, had demanded such a rule at their ratifying conventions.
Madison also added a rule that members of Congress could not increase their own compensation prior to an intervening election. In other words, members of congress could not get into office, give themselves a big raise, and collect before the voters could say anything about it. The voters would have a say in their reelection before any pay raise went into effect.
Madison did not carefully number his changes, so you can count them differently. Most people will say there are about 15-20 amendments in his initial proposal. Among the rights protected are:
freedom of religion, free speech and free press.
the right to assemble and to petition government,
the right to keep and bear arms,
the right not to have soldiers quartered in people’s homes,
protections against double jeopardy, self-incrimination,
the right to due process,
protection of private property,
prohibitions on excessive bail or fines
Prohibition of cruel and unusual punishments
Protections of searches without probable cause or specific warrants
The right to a speedy criminal trial where the accused is informed of the charges and has a right to confront accusers and bring witnesses
Recalling his concern that a list of rights might allow people to claim that the list is finite, Madison also added a clause that his list should not be construed to diminish other rights not mentioned. Madison did put a few restrictions on states. He added a clause that no state could violate the rights of conscience, freedom of the press, or trial by jury in criminal cases.
He also proposed rules that would prevent appeals to federal court if the value was below a certain amount, or that appellate courts could reevaluate the facts of a case decided by jury. He also added rules for grand juries in capital crimes, and that jury verdicts had to be unanimous, and that trials had to be local. Finally, Madison added an explicit rule that the legislative, executive, and judicial branches could not try to exercise the powers of the other branches and that any powers not delegated by the Constitution nor prohibited to the states, continued to belong to the states.
This was the set of proposals that Madison brought to Congress in the summer of 1789.
Next week, we’ll discuss what Congress did with these proposals.
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RUMBLE, WILFRID E. “JAMES MADISON ON THE VALUE OF BILLS OF RIGHTS.” Nomos, vol. 20, 1979, pp. 122–62. JSTOR, http://www.jstor.org/stable/24219130
Leibiger, Stuart. “James Madison and Amendments to the Constitution, 1787-1789: ‘Parchment Barriers.’” The Journal of Southern History, vol. 59, no. 3, 1993, pp. 441–68. JSTOR, https://doi.org/10.2307/2210003
Gerber, Scott D. “Roger Sherman and the Bill of Rights.” Polity, vol. 28, no. 4, 1996, pp. 521–40. JSTOR, https://doi.org/10.2307/3235344
Last week we covered the establishment of the executive branch, with the appointments of secretaries of war, state, and treasury, as well as an Attorney General. This week, we take a look at the establishment of the Federal court system.
Senate Bill
The first bill introduced in the new US Senate was the Judiciary Act. The Constitution had given relatively little details on what the court system would look like. One reason for this was that the Convention delegates did not seem to agree, and figured it would be better to leave that debate up to the legislature. Well, now the legislature had to fill in those details.
The Judiciary Act became Senate Bill No. 1. It was introduced on April 7, 1789, the second day that the Senate had gotten a quorum to begin business. The first day had been taken up with confirming the electoral college vote for President George Washington, and electing its officers, including Senator John Langdon of New Hampshire as the first President Pro Tempore of the Senate.
It was important to get the courts up and running, but drafting the details of the bill would take time. The Senate referred the bill to committee for consideration. It included one member from each state. There were only eight states represented in the Senate at the time, so the initial committee only had eight members, including Oliver Ellsworth of Connecticut, William Paterson of New Jersey, William Maclay of Pennsylvania, Caleb Strong of Massachusetts, and Richard Henry Lee of Virginia. A week later, senators from Maryland and South Carolina finally showed up and were also added to the committee.
Remember that the Senate only consisted of twenty senators at the time, and only eleven or twelve of them were showing up at the time for sessions. Many states only had one senator present. So the committee consisted of almost all the active senators who had arrived in New York.
Oliver Ellsworth
I mentioned the names of the key players on the committee. Typically most credit for the bill is given to Oliver Ellsworth. He has been involved in a number of things in our story, but I haven’t really focused on Ellsworth before. A little background: Ellsworth came from a relatively good Connecticut family. He started college at Yale, but transferred to the College of New Jersey, at Princeton, where he became good friends with William Paterson and Luther Martin.
Ellsworth became a successful attorney before the Revolutionary War. He also served in the Connecticut militia, where he rose to the rank of Lieutenant Colonel before the war began. Ellsworth was a patriot and, as a militia officer, led cavalry against the British in New York in 1776. Military life, though, was not his thing. Ellsworth maintained his legal practice during the war and served in the Continental Congress beginning in 1777. After the war, Ellsworth became a state judge in Connecticut.
He also received an appointment to the Constitutional Convention in Philadelphia in 1787. There, he worked alongside his old college buddies Patterson of New Jersey and Martin of Maryland to help draft the Constitution. I mentioned that during the Convention some delegates were more active, and others barely showed up at all. Ellsworth was one of the more active delegates at the convention, and served on the Committee of Detail, which played a big role in the final version of the Constitution.
Ellsworth left the convention a few weeks before it ended, so he never signed it. Still he was a strong supporter, and also played a big role in Connecticut’s ratification convention. He emerged as a leading Federalist and was seen as very supportive of the Washington Administration. After being appointed one of Connecticut's first US Senators, Ellsworth took on a role which was essentially the majority leader of the Senate, although that position did not officially exist at the time.
Committee on the Judiciary
On the Senate Committee that had been designated to write the Judiciary Bill, Ellsworth became the bill’s main author. This would not be easy. The outline of the judicial branch had been particularly vague as written at the Convention. The delegates did this because they really didn’t agree on what the judicial branch should look like. Just like the senators would not agree on what it should look like.
There were many states that had used their ratifying conventions to put restrictions on the new sort of federal court system that this committee was tasked with creating. Republican senators on the Committee like Richard Henry Lee and William Maclay were sent to the Senate with instructions to limit the power of the new federal court system. Other federalist senators like Ellsworth and his old college buddy William Paterson, advocated for a more powerful federal court system that could handle a wide range of issues.
Speaking for the opposition, Lee reminded the committee of the complaints outlined in the Constitution that Americans considered it illegitimate to be tried in courts that were some distance from their homes, and without a jury. These were issues listed in the Declaration of Independence as reasons for breaking with Britain. And remember, there was no bill of rights attached to the Constitution yet, so many senators wanted those protections in the Judiciary Bill.
Another big issue was debts to Britain. Part of the peace treaty had promised good faith in allowing British creditors to collect pre-war debts owed by Americans. Many states had pretty much ignored this promise and were not making it easy for British creditors to pursue debt collection. Many anti-federalists opposed a new federal court system that would make things easier for British creditors.
Among the changes the Virginia ratifying convention had demanded was limiting federal courts to maritime cases and the Supreme Court to cases involving foreign diplomats and disputes between state governments. The federalists, men like Ellsworth and Paterson, disagreed. They wanted a robust federal court system that could hear a wide variety of cases. At a minimum, this included any questions involving federal laws and treaties. They wanted to create a whole system of trial courts in all the states to hear a wide variety of issues.
The committee worked to form a consensus among the disparate views represented on the committee. After about three weeks, by the end of April, the committee had drafted their guiding principles for the bill.
They agreed to establish both a Supreme Court, as well as two levels of lower federal courts. The Supreme Court would consist of six judges that would convene for relatively short terms twice each year. They also agreed to establish district courts in each state. In between the district courts and the Supreme Court would be circuit courts.
These would hear appeals from the district courts. The country was divided into three circuits. One circuit would consist of New York and New England. Another would be South Carolina and Georgia. The final one would include New Jersey, Pennsylvania, Delaware, Maryland, and Virginia. Rather than appoint a whole new set of judges to sit on the circuit court, the committee would have two the Supreme Court justices serve in each circuit, with the justices sitting on a circuit court panel with a single district court judge to form a three judge panel to hear appeals from the district courts. So the justices would literally ride circuit. Each circuit court would also meet for a short period, twice each year, allowing Justices to do this double duty in both circuit courts and the Supreme Court.
The committee also agreed to some things that would limit the scope of the federal courts. One, which had been suggested by several state ratifying conventions, was to put a minimum dollar amount on civil cases that could be heard in federal court. One reason was to prevent people from being forced to travel a great distance to contest relatively small cases. Most states would have only one federal district court, meaning a person might have to travel more than a hundred miles to contest a case in federal court.
The committee tentatively agreed that a case had to be worth $300 or more. At the time, $300 was a fair amount of money, probably as much as a common laborer would earn in an entire year. This limit ensured that the majority of cases, which usually involved smaller amounts, would remain exclusively in state courts.
One area of general agreement was that federal courts would hear maritime issues. That is, cases that involved ships on the high seas. In the colonial era, these tended to be held by British admiralty courts, and were not a traditional area of jurisdiction for state courts. Members also agreed to limit Supreme Court appellate jurisdiction from state courts to issues that involved federal law. State interpretations of state law would be final and unreviewable.
With these general guidelines in place by early May, the committee was ready to start writing the bill. The records on this process are pretty sparse. There does not seem to be much official record of a subcommittee to draft the bill. But we do know that Ellsworth, Paterson, and Strong were the ones who worked together to draft the bill. All three were strong federalists who wanted a pretty robust federal court system, but were also mindful of putting in some limits to keep the anti-federalists from getting too upset.
It took the subcommittee about a month to come up with a completed bill. They submitted it to the full Senate. At the time, all Senate proceedings were secret. Unlike the House, there was no way for the public to watch the Senate, and its records were not published publicly.
The committee submitted the proposed bill to the full Senate on June 12. Under the new Senate rules, the 16 page bill would be printed and distributed to the senators for review. It would also be read, literally read out loud, to the Senate, in full, several times. After the first reading, senators could propose amendments.
Jurisdiction was a big issue. The committee recommended that the courts have jurisdiction over any questions of federal law. On the first day of debate, Lee, who had voted against the bill in committee, moved to restrict district courts to maritime and admiralty issues only. Other issues involving federal law could be argued first in state courts, then appealed to federal circuit courts. The Senate majority rejected this amendment.
They also put limits on the federal appellate courts so that they could not retry the facts that had been determined by lower courts. They could only focus on the way the laws were applied to those facts. This gave juries a final say over the facts of a case.
Part of the issues involving the judiciary got mixed in with the debate over the proposed bill of rights. I’ll address the bill of rights in an upcoming episode, but since those amendments covered a fair amount of restrictions on the courts, senators allowed those amendments to put some safeguards on the federal courts rather than putting all of it in the Judiciary Bill.
The final bill created thirteen district courts, one in each of the eleven states, plus one in Maine, which was still part of Massachusetts, and another in Kentucky, which was still part of Virginia, along with the three appellate circuits and the six justices on the Supreme Court. The final bill passed the Senate by a vote of fourteen to six. With that, the bill moved to the House of Representatives on July 20.
House Vote
The House, at the time, was busy debating the Bill of Rights. It put off debate on the Judiciary Bill until the end of August. Madison had been the key leader in getting the Bill of Rights through the House, and was expected to lead another fight over the judiciary bill. Instead, Madison took a more laid back approach. He did not make any fundamental attacks on the bill. The House ended up proposing about 50 changes, but these were all pretty minor changes. They generally accepted the structure of the courts as outlined by the Senate.
Madison seemed to convey his attitude during his closing speech on the debate. He essentially said that the bill was imperfect, but that it was late in the session and they had to get it done. Since this was a statute, unlike the constitutional amendments they had just considered before this, any problems with the judiciary bill could be fixed through statutory changes down the road.
As a result, the House passed the bill 37-16. A joint committee made a few more minor changes, but Congress passed the final bill on September 21, and signed by the president three days later. By the end of September, Congress had ended its session and the members went home.
Appointing Judges
Before they could leave though, the Senate also had to confirm some federal judges. The President had signed the bill on September 24, and the senators wanted to leave town by the end of the month. Washington had been following the Judiciary bill and had appointments all ready to go as soon as the bill was passed.
Only a few months into his term, Washington had already given up on the Constitutional requirement that he seek the advice and consent of the Senate. In early August, the Senate had rejected one of Washington’s appointments to a position as a tax collector at the Port of Savannah. Washington walked into the Senate and asked for the reasons why his appointment was rejected. The President’s sudden appearance without invitation was met with shocked silence. Eventually, one of the senators who opposed the appointment told Washington that the Senate owed him no explanation of their motives and sent the president packing.
A few weeks later Washington returned to the Senate to seek its advice on a potential treaty with some Indian tribes. Washington expected that he could discuss the proposed treaty with the senators and get their advice. Washington came armed with a copy of the proposed treaty and was prepared to answer any questions, along with his Secretary of War Henry Knox. Instead, the senators seemed to argue with each other for hours over matters of procedure. Many of them could not hear the reading of the treaty. Eventually, the Senate voted to refer the treaty to committee for deliberation and not give the President any answer. Washington, who had expected an answer right then, showed one of his rare flashes of temper as he stormed out of the Senate. After that, Washington had given up on seeking the advice of the Senate. Instead, he simply sent proposals to them for their consent.
So, when he signed the Judiciary Bill into law, Washington had not made any formal attempts to seek the advice of the Senate about his appointments. He did not even have an attorney general at this point to give him advice, since the Judiciary Act created the office of attorney general. Instead, Washington relied on informal discussions with Madison, and to a lesser extent Hamilton. This annoyed some senators on the point that the President was seeking advice from non-senators and not seeking the advice of senators as the Constitution required.
Washington had also learned his lesson with the rejection of his port collector that he needed to consult individually with legislators from the state where he was making appointments these were the people most likely to reject a nominee, often for local political reasons. By conferring with senators and congressmen from the appointee’s home state, Washington realized he could avoid many future rejections.
We don’t have much recorded about these informal discussions about nominees. We do know that Washington was concerned that the Supreme Court have some geographic diversity. There were only six justices, so not every state could be included on the court, but there was no more than appointment from each state, and the larger states were the ones represented.
Washington considered a few people for Chief Justice, including James Wilson of Pennsylvania and John Rutledge of South Carolina. In the end though, Washington wanted a leader who was known more nationally. He selected John Jay of New York. Jay, of course, was well known for his work on the peace treaty that ended the war, and was a highly respected jurist. Wilson and Rutledge both received nominations as associate justices, as did John Blair of Virginia, William Cushing of Massachusetts, and Robert Harrison of Maryland.
Washington made these nominations on the very same day that he signed the Judiciary Act into law, September 24, 1789. Despite whatever bother senators felt about their lack of input into these nominations, they confirmed all of them two days later, with no hearings, and little debate. It appears that Washington did not even confer with all of the nominees beforehand. Harrison, after being informed of his confirmation by the Senate, wrote back to refuse the appointment as associate justice.
On that same day that he appointed the Justices, in fact on the same piece of paper, Washington also appointed 13 district judges, 13 US attorneys, and 13 US marshals for each of the new Federal district courts. Again, without debate, the Senate confirmed all of them two days later.
With no good record as to why Washington chose his nominees, we cannot say for certain how he made them. Presumably, he did consult with politicians from each of the states, as well as his trusted aide, men like Madison. Lots of people were lobbying for government jobs at the time. Washington had a strict rule of not discussing nominations with anyone unless he initiated the conversation.
Decades later, Madison would comment on Washington’s process for choosing nominees:
Although not idolizing public opinion, no man could be more attentive to the means of ascertaining it. In comparing the candidates for office, he was particularly inquisitive as to their standing with the public, and the opinion entertained of them by men of public weight. On important questions to be decided by him, he spared no pains to gain information from all quarters; freely asking from all whom he held in esteem, and who were intimate with him, a free communication of their sentiments, receiving with great attention the different arguments and opinions offered to him, and making up his own judgment with all the leisure that was permitted.
A week after the Senate confirmation, Washington recorded in his diary that he had sent out all the commissions. His work on the creation of the federal courts was complete.
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We sat down with filmmaker, Otto Aouita, to discuss his upcoming movie about George Washington
Here is a summary of the discussion:
Filmmaker's Motivation and Movie's Focus:
Otto Aouita has always been fascinated with George Washington and noticed a lack of films about him, while other historical figures such as Napoleon have been covered far more.
His movie aims to tell the "human story" of Washington, portraying him as a complex and flawed man of his time. The script refers to him as "George" to emphasize this personal aspect.
The film will cover lesser-known aspects of his life, including his relationships with his mother Mary (described as his "first general" and very hard on him), his stepbrother Lawrence (a mentor), and George and Sally Fairfax (including a love story with Sally).
Crucially, the movie will explore his relationship with his slaves and his journey from being born into the institution of slavery to freeing them in his will.
His Masonic brotherhood is also a significant part of the film's narrative.
While touching upon his monumental roles as an American Revolutionary hero and first president, the primary focus is on the personal story of George Washington.
Washington's Early Life and Aspirations:
Despite his image as a wealthy planter, Washington had humble beginnings. His father died when George was young, and his mother, Mary, was strict and poor with finances.
Unlike his older brothers, George did not receive a top-notch education in Britain and inherited relatively little from his father.
His "roughest time" was around 15 years old when he "really had nothing".
His first significant break was working as a surveyor, a job he used to his advantage, understanding lands, which later proved useful against the British.
Washington greatly admired and sought to emulate the gentlemanly class, heavily relying on Lord Fairfax and the Fairfax family for mentorship and to learn their manners and lifestyle, including sports like fox hunting.
Early Military Career and Lessons Learned:
Washington began his military career around age 22, joining the Freemasons at the same time.
He was sent to confront the French in the Pittsburgh area, which led to the French and Indian War.
His early military experiences, particularly at Fort Necessity, highlighted his inexperience and resulted in a "mess," including his capture and signing a "confession" related to an assassination.
He subsequently joined General Edward Braddock's campaign, which ended in disaster.
These early failures, where he "lost almost every battle," were crucial in shaping him, teaching him that "it's okay to fail" and helping him learn from his mistakes for the American Revolution.
He had disagreements with General John Forbes during the war over road construction and strategy, with John Fairfax acting as a plea for Washington.
Marriage to Martha Custis and Financial Standing:
After resigning his commission in 1758 and a period of illness during which Sally Fairfax visited him, Washington married Martha Custis in early 1759.
Martha was the wealthiest eligible widow in Virginia. Her finances were crucial for Washington to reconstruct Mount Vernon and expand his businesses.
Washington controlled a significant fortune but did not own most of it; he held it in trust for his stepchildren.
Despite the financial advantages, Washington is believed to have truly loved Martha, as evidenced by surviving letters and his will. Martha burned hundreds of their letters.
Martha also played a vital role in supporting the Continental Army's morale, joining Washington at Valley Forge.
Becoming Commander-in-Chief and Presidency:
Washington, having left the military in 1758, appeared at the Second Continental Congress in his military uniform, signaling his readiness for a military role.
He had ambition but pursued it quietly and elegantly, believing he had more to offer. He was known for great bravery on the battlefield, even being described as nonchalant under fire.
There's debate on whether he expected to be commander-in-chief, but he accepted the challenge, viewing it as a "too big of a task" but embracing the "American entrepreneur spirit". His idol was Cincinnatus, a Roman figure who served as a general and then returned to farming, a parallel to Washington's actions.
As president, he was reluctant to serve, wishing to remain at Mount Vernon, but felt a duty to ensure the new country's success. He initially thought it would be a two-year commitment but served eight years.
He ran the government much like the army, relying on the advice of his cabinet, letting them debate issues before making decisions. He avoided favoritism, even with Hamilton, and tried to be even-handed.
Washington disliked the idea of political parties and factions, believing they artificially divided people. He desired a government where individuals were elected on merit and worked together for the common good.
He aimed for stability and normalcy during his presidency. He saw the presidency as subservient to Congress, deferring to civilian authority, echoing his behavior during the war.
He was incorruptible and championed a policy of neutrality in foreign affairs, prioritizing American issues over proxy wars.
Washington initially refused a salary during the war but accepted it as president.
During his presidency, Vermont and Kentucky joined the Union, and he oversaw the development of the vast Northwest Territories.
Evolving Views on Slavery:
Washington was born into a society where slavery was the norm, and his views changed significantly throughout his life due to the Enlightenment ideas that fueled the American Revolution.
He eventually freed his slaves in his will, a significant act at the time. He hoped others would follow his lead and wished to see legislation towards abolition.
Washington did not approve of whipping and had a structured approach to runaways, sending only two to Barbados as an example. He was actually more "vicious" on his soldiers for infractions like drinking or profanity, with severe lashings.
He allowed his slaves to participate in a free market; for example, his head chef Hercules earned significantly more than overseers or gardeners.
Billy Lee, his personal valet, was the first slave freed by Washington and received a pension. All his personal slaves received pensions, clothes, and the option to stay at Mount Vernon.
Washington was actively involved in farming alongside his slaves, teaching them and using his tools. He even paid his slaves to donate their teeth for his dental needs.
The film explores the hypocrisy of fighting for freedom while owning slaves and acknowledges the complexity of the issue, including the economic concerns and the new concept of freedom for enslaved people in places like Philadelphia.
His growth on the issue is a "main spine" of the film, showing that he left the world a better place.
Movie Release Details:
The movie is scheduled to be released on July 4th, 2026, for the 250th anniversary of American independence.
For more details, check out the movie's website at: www.ceenema.com
Last week, we covered the first presidential election and ended with Washington riding to New York to be sworn in as president.
New York had become the seat of government in 1785, after Congress had left Philadelphia because they felt the local government did not do enough to protect members from angry soldiers who were being denied their pay and promised benefits. Congress had operated for a time in Princeton and Trenton, but the members found that they really needed a larger town to ensure they had the amenities they needed.
Federal Hall
New York wanted to remain the nation’s capital. The city paid for a massive renovation of its city hall, at the corner of Broad and Wall streets. They designated the building as Federal Hall. Pierre L’Enfant was in charge of the renovations. L’Enfant was a French engineer who had first arrived as a young military officer in 1777. He had served on Washington’s staff at Valley Forge, but later served in combat, being wounded at the Siege of Savannah, and captured at the surrender of Charleston.
After the war, L’Enfant settled in New York where he worked as an architect. The work to Federal Hall was considerable. L’Enfant began his work on the hall in 1788, while the Confederation Congress was still meeting there. The city moved all of its municipal offices out of the building so that it could be dedicated to the new federal government. The House of Representatives met in the large first floor chamber. The US Senate met on the second floor. There was also a third floor for other uses. Renovations were still underway when Congress began meeting there.
George Washington arrived in New York on April 23, 1789. As he had requested, Madison had found a residence for him. The government rented a house owned by Samuel Osgood, a Massachusetts politician who had settled in New York City. The house contained a residence, as well as a private office where Washington could work, and a public office where he could receive guests.
Washington hired former tavern keeper Samuel Fraunces to manage the house, and its staff of twenty servants, including seven slaves that Washington brought from his home Virginia. Washington held several events at Fraunces Tavern at the end of the war, and got Fraunces to return from retirement to manage his household.
Inauguration
Washington’s inauguration was planned for April 30, only seven days after his arrival.
Even before his election, Washington had begun working on an inauguration address. Washington’s aide, David Humphreys, had been at work at Mount Vernon drafting a lengthy 72 page speech, which included a long list of legislative recommendations.
Washington was not happy with this, and turned to James Madison. In February, before Madison left Virginia, Washington showed him a copy. The two men met at Mount Vernon to discuss the address. The two men agreed to scrap the first draft. Washington provided Madison with an outline of the points he wanted to cover, then left it to Madison to draft a short speech that would cover these points.
While awaiting Washington’s arrival in New York, Madison drafted a four page address for the president to read. While he was at it, Madison also drafted the House’s reply to the President’s address, and the president’s response to the House’s reply.
Congress was not really sure how the inauguration should work. There was no precedent, and the Constitution simply said that the president needed to take the oath before entering into the execution of his office. Congress appointed a joint committee to decide how to conduct the inauguration.
One April 30, Washington rode in his state provided coach to Federal Hall. Initially, he had ordered a black velvet suit for the occasion. However, after giving it more thought, Washington wore a plain brown suit made of homespun cloth, made domestically. He went up to the second floor balcony. Since there were no federal judges yet, Robert Livingston, the Chancellor of New York, administered the oath on the balcony of the second floor of Federal Hall, as members of Congress and the public witnessed it. An estimated 10,000 people packed the streets around Federal Hall, hoping to witness the event. The local Masonic temple lent a bible, on which the president placed his right hand before taking the oath.
There are many details missing from the primary accounts of the inauguration. For example, we don’t know if Washington actually said the oath, or whether it was read to him in the firm of a question and he simply responded in the affirmative. None of the accounts at the time noted that he added the words “so help me God” upon completing the oath. The first account that has him uttering those words is in a biography written by George Washington Irving 65 years later. There is some reason to believe it was used since Congress did add the “so help me god” to the oath taken by judges in the act passed in 1789, so there can at least be some inference that it would be a common usage at that time.
Following the oath, several accounts say that Livingston proclaimed “Long Live George Washington, President of the United States” followed by the firing of 13 cannons. After that, the president read the inaugural address that Madison had written. Some accounts say he read it on the balcony. Others say that he moved inside and delivered it from the Senate chamber. Most accounts say that Washington was nervous, that he mumbled much of the speech, and that few people understood it. However, it was printed in newspapers after the event.
Washington essentially said that the people had summoned him, and that his love of country obligated him to accept the position, despite his “incapacity as well as disinclination” for the job. He called on “that Almighty Being who rules over the universe” to provide the people with a government that could protect their “liberties and happiness.”
He went on to note that the Constitution said the president should recommend to congress “such measures as he shall judge necessary and expedient.” In his first draft of the speech Washington had included a whole laundry list of such measures, which probably would have taken him hours to read. Instead, in the speech he gave, which lasted only about ten minutes, he called on Congress to do their best to create the new government with a sense of patriotism, and to avoid “local prejudices or attachments, no separate views nor party animosities”.
He also called on Congress to offer him no pay. Instead, as when he commanded the army, he requested only that Congress pay his expenses. This is not what happened. Congress insisted on pay. But we'll get into that in future episodes. He concluded his speech:
Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall take my present leave; but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquility, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend.
Following the inauguration, Washington and the members of Congress, walked down Broadway to St. Paul’s Chapel for a special service. That evening, the city was covered with lanterns, in the streets, in building windows, and on ships in the harbor. The public enjoyed a display of fireworks. Some accounts say Washington enjoyed the display from the home of the Spanish Minister to the US, along with Robert Livingston, Henry Knox, and David Humphreys. The streets remained so crowded that Washington had to walk back to his home at around 10:00 PM. No carriage could pass through the streets with all the people still filling them.
There was no inaugural ball that night. There was one a week later, on May 7. Washington attended. Martha had not arrived yet, so Washington danced with many of the prominent young women in attendance.
Presidential Title
It would take months for Washington to get his cabinet appointed and in place. In the first few critical months of his presidency, Washington and Vice President Adams, pretty much made up the entire executive branch. Washington relied heavily on Madison during this time. Some historians characterize Madison as acting as a prime minister. He was certainly the key connection between the legislative and executive branches during these first months.
One of the first issues for the new government was what to call the president. This was actually more of a big deal than you might think. Once again, people were afraid that to fancy a title might make the president sound like a king. Others worried that if the president was too plain and simple no one would respect his authority. As Benjamin Franklin put it at the time “We have been guarding against an evil that old states are most liable to, excess of power in the rulers. But our present danger seems to be defect of obedience in the subjects.”
Vice President John Adams, perhaps the result of having spent many years at the Court of St. James in London after the war, advocated for showing more ostentation to secure the respect of the new government. He rented Richmond Hill, a large mansion along the river, and rode in a fancy coach to Federal Hall each day to preside over the Senate. He wore expensive suits and a powdered wig. Adams suggested that the president’s title should be “His Highness, the President of the United States of America and Protector of their Liberties.”
Washington completely disagreed with this approach. Several accounts note that Washington began mocking Adams’ public displays. Similarly, others began referring to Adams as “His Rotundity” or “The Duke of Braintree.”
The House of Representatives, probably at the suggestion of Madison, came up with a much simpler title “George Washington, President of the United States.” That simple title appealed to Washington, and was the one that stuck. It took about two weeks for Congress to settle that matter on March 14. Of course that wasn’t the only matter Congress was considering during that time, but it was a lengthy process to decide on a title.
Washington focused on the smallest details of social interactions, as well as his interactions with Congress. Around this time, while discussing how he should address the House of Representatives, he wrote to Madison. “As the first of everything, in our situation will serve to establish a Precedent, it is devoutly wished on my part, that these precedents may be fixed on true principles.”
Hamilton suggested that the president remain available, but aloof, which probably fit well with Washington’s personality. Hamilton recommended that the president hold weekly levees which would be short. He also suggested small dinners with six to eight visitors, again, with the president not remaining at the table for too long. Hamilton also suggested that the president make himself available to Senators, but not Representatives.
Department of War
The first federal department to be created was the war department. The government had inherited a small army from the government under the Articles of Confederation.
When the Continental army disbanded in 1783, the size of the army fell to only 80 men. Fifty-five men were garrisoned at West Point in New York. Another twenty-five garrisoned Fort Pitt in western Pennsylvania. That was it. The senior officer in the army was a captain by the name of John Doughty. Although commissioned as a captain, he was breveted to the rank of major in 1782, before the war ended. The reason he became the highest ranking officer was only by chance. He was in command of the artillery company that remained at West Point after the war and that was one of the two companies that were not decommissioned. He received a commission as major after the war ended.
A year later in 1784, the Confederation approved the establishment of the First American Regiment, which would be responsible primarily for frontier issues involving conflicts with the Indians. The new regiment brought the size of the army up to around 700 men, and needed a new commander. With so many recent officers having left the army after the war, one would think Congress could choose a wise and experienced leader.
Instead they chose Josiah Harmar. You’ve probably never heard of Harmar before. He seemed to have been a reasonably capable officer who rose to the rank of lieutenant colonel during the war. He also served as the private secretary to Thomas Mifflin when Mifflin was President of the Continental Congress. President Mifflin pushed for his secretary, Harmar, to become its commander when they created the new regiment in 1784.
Harmar moved most of the regiment out to Marietta, who helped with first settlement in the Northwest territory. Harmar received a brevet to brigadier general, although he was still paid as a lieutenant colonel.
In 1785, the Confederation Congress appointed former General Henry Knox to run it the department of war. Knox became the civilian leader who maintained the army for Congress. The department consisted of himself and a couple of clerks. Eventually, under Knox the War Department would grow to a staff of twelve.
This was the army that the new federal government inherited, and they kept it pretty much as is. Washington had worked closely with Knox during the war. After Congress established the new War Department in August of 1789, Washington nominated Knox to serve in that role, doing pretty much what he had been doing for the last four years.
Department of Treasury
Congress also established the Department of Treasury a few weeks later. This was probably the most critical department with the most urgent need since the government needed to start collecting tariffs so that it had money to pay for the new government, and also pay for all the war debts that were already overdue.
There is some debate, but most sources indicate that Washington, during his stop in Philadelphia on his way to New York, asked Robert Morris to serve as Secretary of the Treasury. Morris, of course, had carried the Continental Congress through the most difficult financial times of the war. He had served as Superintendent of Finance until 1784, when he retired from public service. During the war, he had floated much of the government loans backed by his personal credit. Following the war, he was dealing with all sorts of financial problems as a result.
When Washington approached him about becoming Secretary of Treasury, Morris refused. He had already been appointed one of Pennsylvania’s first US Senators. He was willing to do that, but not take on the responsibility of building a whole new financial system for the new government. Instead, Morris suggested that Washington consider Alexander Hamilton for the job. Of course, Washington knew Hamilton better than Morris did, and probably already had him in mind. But Morris was the most obvious choice for the job based on experience that Washington probably felt obligated to offer him the position. In any event, Washington did not press the matter with Morris, and offered Secretary of Treasury to Hamilton.
Hamilton had been active politically in New York politics and also in the effort to get Washington elected as president. But he did not run for any elected office in New York or the new federal government at this time. Like Morris, he was focused on making money and improving his financial situation as an attorney. That said, he had been such a strong advocate for building a stronger federal financial system that he accepted the offer to serve. He eagerly accepted the appointment. He became the first Secretary of the Treasury in September.
The Treasury department quickly became larger than all the others combined, with 39 employees. Many of these were deployed as collectors of customs duties in various ports.
Foreign Affairs
Congress also created a Department of foreign affairs. Under the Articles of Confederation, John Jay had been handling this position. Jay, of course, had been a key negotiator of the peace treaty that ended the war, and had also negotiated several treaties since then. He was controversial for some of those treaties, but probably could have had the job if he wanted it. Instead, Jay told Washington he would rather get an appointment to the Supreme court as Chief Justice. The other top diplomat from the Confederation era was John Adams, who was now Vice President and not available for other appointments. Benjamin Franklin was too old and infirm at this time, so the next person with the most diplomatic credentials was Thomas Jefferson, who was still serving as minister to France.
James Madison pushed hard for Thomas Jefferson’s appointment, and acted as a go-between to see if Jefferson was interested in the job. Jefferson actually preferred to remain as minister to France. He said the job as Secretary was more administrative than diplomatic; and that was not something for which he was well suited. Madison pushed him to take the job. Washington told him that there was no person better suited to the job than Jefferson. With that pressure, Jefferson seemed to tacitly agree.
Jefferson returned to America in the fall of 1789. It was only after he arrived in Virginia that he received word that Washington had already nominated him and that the Senate had confirmed his nomination. Publicly, Jefferson expressed surprise and expressed concerns about serving. But he had to have some idea that this would happen, given his correspondence with Madison.
Jefferson did not agree to accept the appointment publicly until February, 1790 and did not arrive in New York for his swearing in until March. Until then, John Jay had continued acting on foreign affairs, with unofficial assistance from Madison and Hamilton. Once Jefferson took the position the department grew to include five employees.
Attorney General
Finally, Congress created the office of Attorney General. Unlike the other offices, this had no department to go with it. This was considered to be a part time gig. The Attorney General served as a legal advisor to the President and others in the government, and did not have a department associated with it, and paid less than half of what the other departments heads were paid.
Washington chose Edmund Randolph for the position. Randolph had been Governor of Virginia, and led the Virginia delegation to the Constitutional Convention. Washington had also retained Randolph’s legal services in the past for business matters.
With that appointment, the first cabinet was complete.
Next week, we will cover the establishment of the court system.
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