The Cabinet That Wasn't There

The Constitution gave the Senate the power to advise and consent on treaties. In August 1789, Washington decided to find out what that meant in practice. He appeared in the Senate chamber in person on August 22, 1789, with written questions about pending negotiations with the Southern Indian tribes. The Senate referred his questions to a committee. Washington left and never came back.

Article II, Section 2 of the Constitution gave the President power to make treaties "by and with the Advice and Consent of the Senate, provided two thirds of the Senators present concur." The phrase implied an ongoing consultative relationship. Several framers had imagined the Senate as something like an executive council, available to advise the President before and during negotiations, not merely ratifying their results afterward.

Washington apparently shared this reading. In August 1789, the administration was preparing to negotiate with the Creek, Cherokee, Choctaw, and Chickasaw nations over territory in the Southeast. Rather than submit a completed treaty for ratification, Washington decided to consult the Senate in advance on seven specific questions about the negotiating position. He submitted the questions in writing and appeared in the Senate chamber himself to receive the answers.

Washington arrived at Federal Hall on August 22, 1789, accompanied by Secretary of War Henry Knox. Vice President Adams read the seven questions aloud. The noise from carriages on the street outside made it difficult to hear. Senator William Maclay of Pennsylvania recorded what happened next in his diary: a motion was made to refer the questions to a committee. Washington, Maclay wrote, "started up in a violent fret."

The Senate voted to refer the questions to a committee nonetheless. Washington returned on August 24 to receive the committee's answers. He did not appear in the Senate again. The episode permanently settled how the treaty process would operate: the executive negotiates, the Senate ratifies. Prior consultation in person became the exception rather than the rule from that point forward.

The Constitution makes no mention of a cabinet. Article II, Section 2 allows the President to "require the Opinion, in writing, of the principal Officer in each of the executive Departments." Washington's first cabinet consisted of Thomas Jefferson as Secretary of State, Alexander Hamilton as Secretary of the Treasury, Henry Knox as Secretary of War, and Edmund Randolph as Attorney General. Washington consulted them individually and collectively. The cabinet as an institution developed from practice, not from a constitutional requirement.

The Senate visit of August 22, 1789 was the moment Washington stopped looking to the legislative branch for executive advice and began relying exclusively on his department heads. The cabinet filled the space the Senate's advisory role might have occupied. The distinction between advice before negotiation and consent after became fixed in American constitutional practice from that day forward.

Washington's written questions to the Senate are at Founders Online. The Senate Journal records the procedural vote to refer. William Maclay's diary records Washington's reaction; it is the only firsthand account of Washington's expression of anger in the chamber. Maclay was a hostile witness; he opposed most of what the new government was doing. His account is cited as what it is: Maclay's record, not a neutral transcript.