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A Constitutional History of the United States
Chapter XVII - The Establishment of the Executive Departments and the Development of the Cabinet
by McLaughlin, Andrew C.

We must now briefly present the main facts and influences which produced the president's cabinet. This body, though it is not provided for by the Constitution, is now and has been almost from the beginning of the government a conspicuous portion of the actual political system. For an understanding of its rise, it is necessary to go back to the time of the Revolution and the old Congress and also to see the experiences of the Confederate period, which gave their lessons to the men of that generation. Even a brief examination of the rise of the cabinet as an advisory council brings into view the very character of the presidency, as the office and its duties emerged and as it took fairly definite form and being in the early years.

During nearly the whole course of the Revolution, the general business of the government had been carried on by committees and boards, or possibly one might better say, not carried on. The clumsy and inefficient methods taught their lesson, however; by 1781 Congress from its own ineptitude had learned enough to provide for departments, each in charge of a single officer.[1] The titles of these officials were Secretary for Foreign Affairs,[2] Superintendent of Finance, Secretary at War, and Secretary of Marine. The system suffered various lapses and modifications, partly caused by the difficulty in getting suitable persons to accept or carry on the offices. But, in an uncertain way, experience had proved the desirability of individual responsibility in administrative work.

Robert Morris held the office of Superintendent of Finance from May, 1781 until November, 1784. About the time of Morris's retirement, John Jay became Foreign Secretary and held the position until after the establishment of the new government. Henry Knox, becoming Secretary at War in 1785, was also in office when the Confederation expired. The services of Morris and especially of Jay must have made fairly clear the idea of executive officers, with administrative assistants, and with considerable independence in the ordinary conduct of their duties.[3] When Washington assumed office there were only two department heads holding positions inherited from the old regime — Jay and Knox.

The Constitution contains no more than incidental references to executive departments. The president is authorized to "require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices...." The other reference is found in the clause granting Congress the power to vest the appointment of inferior officers "in the President alone, in the courts of law, or in the heads of departments."[4] It follows by necessary implication that departments with a principal officer in each are contemplated by the Constitution; but the number and duties of such departments are left to the determination of Congress at its discretion.

The words of the Constitution and the experiences of the Confederation were a sufficient guide to Congress. By acts passed in 1789, state, war, and treasury departments, and the office of attorney-general [5] were established. At the head of each department was a secretary. The departments of state and war were called executive departments, and the secretaries were directed to perform such duties as should be intrusted to them by the president. The treasury was not called an executive department; the secretary, it seems, was thought of as standing in a peculiar relationship to Congress; he was to perform all such services relative to the finances as he should be directed to perform, and he was to "make report and give information to either branch of the Legislature, in person or in writing, (as he may be required,) respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office...." If it were intended to place the treasury under the special guardianship of Congress, such intention was doubtless due to the experience of colonial days. In the royal and proprietary colonies, the executive and the legislative branches of the legislature were not unlikely to be in opposition, or at least to have different points of view, especially on fiscal matters; and little by little the assemblies had gained a large degree of control over the colonial treasuries.

The wording of the act establishing the treasury department indicates, therefore, the possibility of the development of a system in which the secretary would be very directly responsible to Congress or subject to some sort of very immediate control. On the other hand — though this seems rather fanciful — he might have become a minister directing or attempting to direct the course of financial legislation. Had the early Congress summoned the secretary or allowed him to appear in person, the intimacy between his office and the legislature would, presumably, have been greater than any association based on written reports. The first Secretary was eager enough to lead; but he was not given the opportunity of advocating his measures on the floor. He appears at times to have looked upon his office as that of minister extraordinary, and he had great influence on the development of the executive power; in the early years he shaped in considerable measure the financial policy of Congress. We are not dealing with mere shadows when we contemplate the possibility of the establishment of practices, growing out of the intimacy between Congress and the treasury, which would have affected the strength and character of the presidency; a divided or far from unified executive might have been the result.[6]

Hamilton and Jefferson, the two leading men among Washington's advisers, deserve special attention. Around them and their opinions gathers in considerable measure the constitutional and political history of the last decade of the century. They also represent with very peculiar distinctness certain differences of mind and underlying principles of action — such attitudes and tendencies, be they of one kind or the other, as commonly affect men and women in their political and social relations. Of Hamilton something has already been said in these pages. At the time of life when most boys are engaged in the aimless frivolities of adolescence, Hamilton was deeply interested in the cause of the Revolution. He was a man of very marked mental gifts, an able lawyer, with a decided capacity for financial affairs. He was indefatigable and earnest, striking direct and unerring blows, leading his followers with no apparent misgivings and with no doubt of the validity of his considered opinions. For years he had been deeply concerned by the distress and the inefficiency of the Confederation; his anxiety was caused by a native dislike for confusion and a native talent for system, and withal he belonged to that small body of wide-visioned men whose country was America and who did not enshroud themselves in the clouds of petty local politics. He was a continentalist, a nationalist, by temperament and by training. In some ways he was a natural leader, but, though not without a degree of personal charm, there was within him a certain headstrong determination, a product, it may be, of his own logical talent. His assurance and the very qualities of his genius appear to have made him incapable of wide and appealing popular leadership. As so often happens in human life, his strength was his weakness.

Of Jefferson, too, only a word can be said, though many words would be insufficient because his character was so complex and his interests so varied. Primarily he was not of the administrative temper; a learned lawyer and a practical politician, he was fundamentally a philosopher. He, too, was profoundly interested in the success of America, but he did not see success in a smoothly-working governmental system or in administrative devices; he had come to distrust governmental machinery and to place his confidence in the primary impulses of his fellow men. This confidence, it may be the part of caution to say, was a part, the creative part, of his philosophy; but in practice he was at times not confiding, but suspicious; his philosophy taught him confidence in man; his experience or, it may be, a sensitive temperament, sometimes made him suspicious of men, the actual men of affairs with whom he had to deal. Though reared in the solitudes of Virginia, he was, after some years of residence at Paris, a man of the world. He had given his mind to the study of human affairs, not so much to the science of orderly and stable government, as to the science or philosophy of human well-being. Conditions in Europe shocked and antagonized him. In the early days of the Revolution he had arrayed himself with a radical anti-British element, and in the years before he went to France he had been engaged in the task of freeing Virginia from the hold of the big plantation owners. To class him with Clinton or any of the other localists, whose minds were glued to immediate interests and who were incapable of seeing beyond state limits, is a radical blunder; what he feared was the establishment in America of a burdensome, expensive, overhead government, aping, in its manners and in its attitude toward the common man, the governments of Europe, against whose impositions his whole nature and its accordant philosophy were arrayed. His thinking was national — or international — rather than provincial; but because he had no liking for elaborate legalism, he failed at times to see with proper clarity that the very success of popular government depended upon the stability of the American union.

Comparisons are odious; and they may be especially so when great men are compared. Hamilton and Jefferson were, by any standards, great men. The country needed both of them. It needed Hamilton's talent for organization, his conception of national authority and of efficiency. It needed Jefferson and his sympathy for the genius of the young, fresh country just breaking away from the bonds of colonialism and entering upon the perils and trials of democratic government. It needed Hamilton's administrative skill and his fervid nationalism; it also needed Jefferson's vision, his comprehension of the needs and the aspirations of the common folks, the farmers, the plain people, who never to the end lost confidence in him because he continued confident of them. We cannot see how America could have become the America we know without both of them. One can scarcely overemphasize the influence of Hamilton in the establishment of the governmental system. Jefferson — or Jeffersonism — embodied the hopeful and adventurous America which was coming into existence and gaining a consciousness of itself.

So far we have been concerned with the organization of executive departments distinctly provided for by the Constitution. A consideration of the origin and development of the cabinet as we know it to-day must now command our attention. In the Constitutional Convention there had been considerable discussion about the desirability of a council of revision, a privy council, a council of state — some advisory body to act with the president.[7] Such plans were natural accompaniments of an unwillingness to establish an executive free from oversight and dangerously competent. The institutions of the colonies, the provisions of some of the state constitutions, and perhaps also the royal council of Britain, probably influenced those members of the Convention who desired a check upon presidential power. The Senate, because of its share in appointments and in the making of treaties, constituted to some extent a check on the executive and was, probably, especially in treaty-making, supposed to furnish advice and consent. But nothing that we may term a cabinet council was provided for in the Constitution. From actual conditions, therefore, and from the practical necessities of the case as problems of government presented themselves, the cabinet came into existence.

The cabinet is a well-known political institution in America; or, to speak more correctly, the term is one in common use. If we mean by the word "cabinet" a council or advisory body — and that is the ordinary connotation — the institution is entirely unknown to formal law, either to constitutional or statute law; it is a product of history, a part of our unwritten constitutional system. The term "cabinet" in a congressional enactment first appeared in 1907; [8] but the word was then used almost incidentally and cannot be considered as indicating the intention to establish the cabinet as a body — in any technical sense a legal institution.[9] Concerning some of its customary characteristics, one has to speak with caution. It is to-day made up of the heads of the various executive departments; it meets frequently and discusses matters of general interest and policy. Its conclusions, if it reaches any, are not binding upon the president; he is not under any legal necessity of calling the members together or of asking their opinions; but the habit of group consultation is an established habit, and a president neglecting consultation and acting quite without advice would be considered as violating tradition, possibly one should say good manners. No one would venture to say that there must be unanimity of opinion; but there is a certain or uncertain degree of general loyalty to the purposes of the president; there is a distinct or nebulous administrative policy or tendency which no member is expected openly to flout. The members are the president's appointees and are naturally expected to work harmoniously with him. A cabinet officer can, of course, in the seclusion of the cabinet meetings, express his opposition to a proposed line of conduct; but public opposition, even if it should have no serious consequences, is looked upon with disfavor. If he finds himself in substantial disagreement with the president and has conscientious objections to the presidential policy, he is expected to retire from office. The essential unity of the executive forces must be maintained. Congress cannot by legislation place any official in the cabinet, though when a department is created the secretary is by tradition and custom a member of the body;[10] the president can do without cabinet meetings, refuse to summon some secretaries, invite the vice-president to participate, in short, legally speaking, do as he thinks best.

The fact of meeting, the giving of advice and the interchange of opinions, though these things are important, are not the matters of most consequence. The most significant thing is the most intangible — the expression of the vague and indefinable need of administrative or executive coherence. This need, as we shall see in a moment, came clearly, though gradually, to view in the course of the first twelve years; when we enter upon Jefferson's administration we find ourselves in the presence of a body of men with similar views and enthusiasms, not merely a number of executive officers, but a body of councilors with a common loyalty. This, of course, could not have come to very full realization until there were policies calling for executive judgment and discretion, marking off one set of men from another, until, in other words, there were parties, even if the parties were not fully equipped with all the paraphernalia and common loyalties of the modern party system.

Washington, it is sometimes said, strangely appointed to his cabinet two men, Jefferson and Hamilton, representing different parties — an unfortunate statement, for at the beginning there was no cabinet and there were no parties, at least no parties fully-organized and recognized. The President could have had no idea that he was to have a cabinet. In his administrations both of these institutions began to take form, both of them the product of the new tasks and the new opportunities of popular government. Theoretically, the heads of the various departments, though subject to the President's orders, could have gone along independently and separately; theoretically, too, the new government could have operated without parties; as a matter of fact, the men making the Constitution were apparently ignorant of the party as we now use the term. But as issues arose, as violent differences of opinion developed, as the possibilities of popular contention — the garrulous companion of democratic government — came upon the scene, the need of something like unity in the executive came to light. On the surface, heads of the departments were executive officers, and only executive officers, with the duty of giving separate advice or information when it was called for; but the President needed counsel and he needed support; he needed it more than he did the haggling and disputatious argument of men whom he called together for advice.

We must not suppose that at the beginning Washington thought of the chief executive officers as his sole advisers; much less did he consider them as a council with fairly consistent or tangible policies. In the very early years of his presidency he consulted various people, some of them not in executive office. In 1790, he asked for written opinions not only from the three secretaries but also from John Adams and John Jay — the Vice-President and the Chief Justice. Thereafter he occasionally asked Adams for written advice.[11] He even asked Madison to prepare for him a veto of the bank bill (1791), which he might use if he decided against the measure. The President naturally needed expert assistance in solving difficult questions of constitutional construction. Concerning problems of foreign affairs, over which the Constitution gave him great authority, there was abundant opportunity for differences of opinion, and there was need of deciding upon a policy, even the need of deciding upon the extent and character of the President's power. It was necessary to take affirmative action and not merely to carry out legislative orders. Amid the perplexities arising from the French treaties in 1793, Washington requested the federal judges to give their opinions on the legal problems involved. The judges, however, declined to answer the questions propounded.

During the absence of the President from the seat of government there was special need of interchange of opinions among members of what we now call the "administration". Accordingly we find Washington writing (April 4, 1791) to the secretaries — the Attorney-General not being mentioned — asking them to consult together upon any serious and important cases that might arise, and to determine whether his own presence was necessary. He suggested the advisability of calling upon Adams to participate in the consultation, if Adams had not left the seat of government. The three secretaries and the Vice-President met and discussed various matters. Jefferson sent a report to Washington.[12] This was the beginning, as far as we know, and the first of what before long were called cabinet meetings.

In the next year (1792) there were other meetings. Of one, Jefferson says: "Mar. 31. A meeting at the P's, present Th: J., A.H., H.K. & E.R. The subject was the resoln of the H. of Repr. of Mar. 27. to appt a commee to inquire into the causes of the failure of the late expdn under Maj. Genl. St. Clair...." In 1793, consultations were sufficiently frequent to justify us in saying that the habit had been established. For another year or two the opinion of the Vice-President was occasionally asked, but the cabinet normally consisted of the secretaries and the Attorney-General. In 1793 the word "cabinet" began to be used with more or less frequency.

Harmony and a common understanding among the members of the cabinet did not prevail. The differences between Hamilton and Jefferson developed into animosities. The latter surrendered his office at the end of 1793. Hamilton and Knox remained about a year longer. Thereafter there appears to have been comparative peace, though Randolph, who had become Secretary of State, made his contributions to the President's vexations and anxieties. After his disappearance from the scene (1795), there was no occasion for much unbecoming quarreling or clandestine intrigue. Washington wrote (September 27, 1795): "I shall not, whilst I have the honor to administer the government, bring a man into any office of consequence knowingly, whose political tenets are adverse to the measures, which the general government are pursuing; for this, in my opinion, would be a sort of political suicide."

This pronouncement is often taken as a declaration of Washington's recognition of parties and even of his conscious affiliation with the Federalists. That may be so; but the conclusion must be reached only with suspicion of its correctness. Certainly, however, he had come to see that a reasonable degree of harmony and common purpose among his chief advisers was a necessity. After his experiences with Randolph, the need of having men in the principal offices who would support and not mangle his policies is to us so plain that there is no necessity of accounting for his sentiment by attributing it to party devotion or to a newly-awakened belief in the party system. The time had come when the presidential office must be considered to have a policy which it must attempt to follow consistently as issues arose. In carrying out that policy, the president must be able to rely on the loyalty and the intelligent co÷peration of those with whom he consulted and who had the duty of carrying out the policies determined upon. Washington's tolerance of varying opinion and his desire to call into requisition the intelligence of others were characteristic of him. And probably tolerance was safer in those early days than any set determination to have no one about him but those in all respects determined to see only one side of every question; but the executive, a unified executive, was at all events taking shape, created by the compelling necessities of the case. The disturbances in Adams's cabinet and the need, once more displayed, of coherence and essential harmony, it is not necessary to dwell upon here. Those conditions brought forth again the fact that the president must have about him men in personal sympathy with him and his policies and ready to carry his program faithfully into operation.

[1] Secretary for Foreign Affairs, January 10, 1781; Superintendent of Finance, Secretary at War, and Secretary of Marine, February 7, 1781. Journals of Congress (1823 ed.), III, pp. 564, 575. The marine department did not last long, its duties being turned over to the Superintendent of Finance. Ibid., III, p. 665. "It is positively pathetic to follow Congress through its aimless wanderings in search of a system for the satisfactory management of its executive departments. At no period between 1774 and 1781 can we find it pursuing any consistent line of action with reference to them. A humble committee served as the common origin of all. With the exception of the Committee of Foreign Affairs, they developed independently into boards, and afterwards each was tossed about and tinkered at different times and under different circumstances." J. C. Guggenheimer, "The Development of the Executive Departments, 1775-1789," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 148.

[2] Changed in 1782 to Secretary to the United States of America for the Department of Foreign Affairs. H. B. Learned, The President's Cabinet, pp. 53-54.

[3] See Ibid., p. 59.

[4] Reference may also be made to the Constitution, Art. I, sec. 8, para. 18.

[5] The attorney-general was considered a member of the cabinet when it got well under way; but not before 1870 did he become the head of the department of justice. The post office went on at first on about the same basis as under the Confederation. Samuel Osgood was appointed Postmaster-General in 1789 and the office was more fully provided for in 1794. The postmaster-general was not at first admitted as a regular member of the cabinet; the department was not explicitly called an executive department until 1874.

[6] Learned points out that there are three underlying principles of the American presidency: (1) unity in the executive power; (2) responsibility to the people for the execution of the law; (3) discretionary power in the president to direct and remove his assistants. Learned, op. cit., p. 379. Each one of these is in some measure the result of developing practices. The second obtained its special significance forty years and more after the Constitution was adopted. The third, now generally accepted, was not established without some verbal turmoil. The three are mutually or reciprocally supporting.

[7] See especially the discussion on September 7, 1787, and the approval of the provision to give the president authority to call for the opinions of the heads of departments.

[8] Learned, op. cit., p. 157.

[9] It may be questioned whether Congress could establish a cabinet by law.

[10] The postmaster-general was first made a cabinet member by Jackson (1829).

[11] Learned, op. cit., pp. 120-121. Learned's accumulation of evidence on the early growth of the cabinet is particularly helpful. See ch. V. See also M. L. Hinsdale, A History of the President's Cabinet. It is noteworthy that when Jefferson became Vice-President he declared privately that he considered his office "as constitutionally confined to legislative functions" and that he could not take part "in executive consultations, even were it proposed...." Letter from Jefferson to Elbridge Gerry, May 13, 1797. See Jefferson, Works (federal ed.), VIII, p. 284.

[12] See Jefferson, Works (federal ed.), VI, p. 243 ff.


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