THE HOUSE OF REPRESENTATIVES took seriously the belief that it was the more democratic branch of the legislature, much closer to the people than the supposedly aristocratic Senate. It certainly tended to act in a more popular manner. The members of the House paid little attention to ceremony and dignities and sometimes shocked the Senate with their raucous and disorderly behavior. At times three or four representatives would be on their feet at once, shouting invectives, attacking individuals violently, telling private stories, and making irrelevant speeches. During the First Congress, it certainly was by far busier than the Senate. In its first three sessions it considered 146 different public bills, while the Senate considered only 24.
The House decided at the outset to open its debates to the public. Since the British Parliament and the colonial legislatures had deliberately kept their legislative proceedings hidden from the outside world, this decision marked a significant innovation. Young James Kent, a future chancellor of New York, was an early visitor to the gallery and was overcome with emotion. He thought it was “a proud & glorious day” to have “all ranks and degrees of men” present in the gallery “looking upon an organ of popular will, just beginning to breathe the Breath of Life, & which might in some future age, much more truly than the Roman Senate, be regarded as ‘the refuge of nations.’”17
The long-run implications of this decision to allow the public to listen to debates were not yet apparent. Despite the opening of the House to the public, knowledge of Congress’s activities by modern standards remained limited. Politics in 1789 was still very traditional in character, small and intimate; and political leaders relied, as they had in the past, mostly on private conversations and personal correspondence among “particular gentlemen” for their connections and information.18 The practice of congressmen writing circular letters to constituents summarizing congressional business had not yet become common, and most congressmen communicated with their constituents back home simply by sending letters to prominent friends who would show them to a few other influential persons.19
Some constituents did communicate with their congressmen, mostly by using the time-honored English tradition of petitioning guaranteed by the First Amendment. More than six hundred petitions were presented to the First Congress on a variety of issues, including the prohibition of rum, the standardization of printings of the Bible, and, most famously, the abolition of slavery. During its first twelve years the House of Representatives received nearly three thousand petitions—indeed, more petitions in this brief period than had been received by the colonial Pennsylvania assembly during the last sixty years of its existence. Of course, since most people lived at a distance from the federal capital, they had to rely on sending petitions; but if they could, they sought other ways of influencing the Congress as well. Individuals traveled to the capital to make personal claims for different sorts of congressional action; these usually involved individual rather than policy matters and included veterans requesting pensions and military contractors seeking payment of old debts.20
Still, it was difficult for most people to know what their congressmen were saying or doing. There was no Congressional Record as yet and no verbatim reporting. The newspaper reporters who had access to the debates of the House of Representatives took down only what they thought might be interesting to readers. It was not until 1834 that all the early reports and fragments of congressional debates were compiled and published as the Annals of Congress.
Yet the political world was undoubtedly changing. Congressmen increasingly felt themselves more accountable to the public out-of-doors than they had expected, and they began catering to that public in their speeches and debates. Benjamin Goodhue of Massachusetts complained of the delay in the proceedings produced by “the needless and lengthy harangues” of fellow congressmen “who have been frequently actuated by the vain display of their Oritorical abilities.” Members became anxious about how they appeared, and how they sounded in public, and they fretted over the accuracy of transcriptions of their speeches in the press. Peter Silvester of New York, eager to be seen to “say something clever” in the House, asked a friend to “draw up some suitable speech for me, not too long nor too short.”21
With all this desire for speech-making, congressional debates became longer and more frequent. The House of Representatives encouraged more open and free deliberations by its common practice of going into the Committee of the Whole, where the restrictions on discussion were looser and the rules governing debate less formal.22 The House thereby became, as Fisher Ames complained, “a kind of Robin Hood society, where everything is debated.”23 Many Northern congressmen thought that the House was following the pattern of the Virginia House of Delegates in conducting much of its business as a Committee of the Whole, and thus they blamed the Virginians for the endless talk and the slowness of business. “Our great committee is too unwieldly,” complained Ames. Fifty members or more trying to amend or clean up the language of a bill was “a great, clumsy machine . . . applied to the slightest and most delicate operations—the hoof of an elephant to the strokes of mezzotinto.”24
Madison denied that the Committee of the Whole accounted for the delays; rather, there were “difficulties arising from novelty.” “Scarcely a day passes,” he told Edmund Randolph, “without some striking evidence of the delays and perplexities springing merely from the want of precedents.” But “time will be a full remedy for this evil,” and the Congress and the country would be better for going slowly.25
The debates were not only frequent and lengthy but sometimes remarkably thoughtful. Members of Congress had ample time to prepare their speeches. Because there were few select committee meetings and other distractions, nearly all congressmen attended the daily five-hour sessions punctually, at least at first, and were usually attentive to what their colleagues had to say on the floor of the House.26 Ames “listened,” as he said, “with the most unwearied attention to the arguments urged on both sides” in order that “his own mind might be fully enlightened.”27
Ames himself was an elegant and compelling speaker. Almost overnight his oratory established his reputation as one of the most able members of the House; indeed, people congratulated themselves on having visited the gallery of the House to hear him speak. Ames frequently wrote his friend George Minot about the techniques and mistakes of his performances in the House and commented on those of others. He thought Madison, for example, an impressive reasoner but concluded that speaking was “not his forte. . . . He speaks low, his person is little and ordinary,” and he was “a little too much of a book politician.”28
Yet Ames had no doubt that Madison was the “first man” of the House. Although Madison was shy, short, and soft-spoken, he impressed everyone he met. He was widely read with a sharp and questioning mind; indeed, he was probably the most intellectually creative political figure America has ever produced.
Madison had been born in 1751 into that class of Virginia slaveholding planters who dominated their society as few aristocracies have. Although his father’s plantation was the wealthiest in Orange County, Virginia, it was not far removed from the raw frontier, and young Madison, like most of the Founders, became the first of his family to attend college, in his case the College of New Jersey (later Princeton). In college Madison revealed his intellectual intensity and earnestness. His father’s plantation wealth enabled Madison, who complained endlessly of his poor health, to return home to study and contemplate what he might do with his life. By 1776, at age twenty-five, he had become a member of Virginia’s Revolutionary convention. In 1777 he became a member of the eight-man Virginia Council of State. In 1780 he served in the Confederation Congress, and when his three-year term was up he had returned to Virginia and in 1784 was elected to the Virginia assembly. But all through the 1780s his interest in strengthening the national government grew to the point where he became the principal organizer of the 1787 convention that wrote the Constitution. He was eager to put the new government that he had helped cr
eate on a sound footing. Although he regarded the Constitution as something less than what he had wanted, he became known as its principal author.
Madison had originally been slated for a seat in the Senate, but when the Anti-Federalist leader Patrick Henry squelched that plan, he actually had to campaign against James Monroe for a seat in the House of Representatives. He told friends that he hated having to ask for votes. He had, he said, “an extreme distaste to steps having an electioneering appearance, altho’ they should lead to an appointment in which I am disposed to serve the public.”29 At the outset he was a fervent nationalist who was eager to secure an independent revenue for the new government, to create the executive departments, and to win over the minds of the Anti-Federalists to the new union. He journeyed to New York early and waited impatiently for the rest of the Congress to assemble. And on April 8, 1789, two days after both houses mustered a quorum, he began introducing legislation.
Although he was not a strong speaker, he made 150 speeches in the first session of the First Congress alone. But Madison’s extraordinary dominance over the proceedings of the First Congress came not merely from his reputation and his speech-making. His broad knowledge and careful preparation for what had to be done were even more important. He got ready for the opening debate on revenue in the House of Representatives by comparing the state laws on the subject and by collecting whatever statistical information he could on the commerce of the various states.30 His colleagues reported that he was “a thorough master of almost every public question that can arise, or he will spare no pains to become so, if he happens to be in want of information.” His tireless attention to detail and his range of activities were astonishing. Not only did he lead the House, but he was also the principal link between the legislature and the executive in these early months. He helped Washington draft his inaugural address to the Congress, then drafted the response of the House of Representatives to that address, and finally helped the president in his reply to that response.
THE SENATE CONSIDERED ITSELF distinctly superior to the “lower” house, so-called perhaps because the House chamber was on the first floor of Federal Hall, while the Senate chamber was on the second floor. Although the Senate was not entirely clear about its relationship to the various state legislatures, which, of course, were its electors, it certainly did have a very high-flown sense of its dignity. While the House was busy passing legislation, establishing revenue for the new government, and erecting the several executive departments, the Senate spent its time discussing ceremonies and rituals, perhaps because it had little else to do. During the first session it initiated only one piece of legislation, that establishing the judiciary. Things got so bad that the senators began coming to the Hall for only an hour or two in the morning. “We Used to stay in the Senate Chamber till about 2 O’Clock,” confessed Senator William Maclay of Pennsylvania, “whether we did anything or not, by way of keeping up the Appearance of Business. But even this,” he said, “we seem to have got over.”31 Fortunately for the senators, the public did not know much about their business practices: unlike the lower house, the Senate decided not to open its debates to the public.
Establishing rules of etiquette for the Senate proved difficult. How was the Senate to receive the president of the United States? How was the president to be addressed? How should the senators address one another? Should they call each other “right honorable” or not? Should they have a sergeant at arms, and if so what should he be called? Should they address the speaker of the lower house as “honorable” or not? They ransacked ancient and modern history for examples and precedents, wondering whether “the framers of the Constitution had in View the Two Kings of Sparta or the Two Consuls of Rome” when they created a president and vice-president, or whether a fourteenth-century Italian reformer obsessed with titles was an object lesson for them.32
Vice-President John Adams was especially confused. He knew he was vice-president of the United States (in which “I am nothing, but I may be everything”), but he was also president of the Senate. He was two officers at once, which perhaps, he said, was the reason the huge chair in which he sat was made wide enough to hold two persons. But Washington was coming to the Congress to be sworn in as president, and questions of etiquette needed to be answered. “When the President comes into the Senate, what shall I be?” Adams asked his colleagues, in obvious distress. He could not continue to be president of the Senate then, could he? “I wish gentlemen to think what I shall be.” Overwhelmed with the burden of this dilemma, Adams threw himself back into his velvet canopied chair, while the senators looked on in silence, some of them having difficulty stifling a laugh.
In the long ensuing pause, Senator Oliver Ellsworth, one of the members of the Constitutional Convention and a judicial expert, nervously thumbed through the Constitution. Finally Ellsworth rose and solemnly addressed the vice-president. It was clear, he told Adams, that wherever the senators were, “then Sir you must be at the head of them.” But further than this—here Ellsworth looked aghast, as if some tremendous gulf had opened before him– “I shall not pretend to say.”33
On the day of the president’s inauguration, April 30, 1789, the vice-president and the Senate were even more uncertain about what to do. Adams, who, according to Senator Maclay of Pennsylvania, was wrapped up more than usual “in the Contemplation of his own importance,” asked once again for direction from the Senate. When the president addressed the Congress, what should he as vice-president do? “How shall I behave?” he asked. What should the Congress do? Should it listen to the president seated or standing? From these questions a long debate followed, and the senators tried to recall how the English handled such matters. Senator Richard Henry Lee of Virginia remembered from his stay in England as a young man that the king addressed Parliament with the Lords seated and the Commons standing. But then Senator Ralph Izard of South Carolina reminded his colleagues how often he too had visited the English Parliament and told them that “the Commons stood because they had no seats to sit on.” The vice-president compounded the confusion by saying that every time he had visited the Parliament on such occasions “there was always such a Crowd, and ladies along, that for his part he could not say how it was.”34
Because of a mix-up in communications the Congress waited an hour and ten minutes for the president. When Washington finally arrived at about two in the afternoon, an awkward silence followed. Adams, who had been so atwitter about the proper way to receive the president, was so overawed that he was uncharacteristically rendered speechless. Eventually Washington, dressed in a dark-brown homespun suit, with white silk stockings and silver shoe-buckles, was led out to a balcony of Federal Hall so that the huge throngs of people outside could witness his being sworn in as president. Robert Livingston, chancellor (the leading judicial official) of New York, administered the oath of office, at the conclusion of which Washington, according to a contemporary newspaper account, kissed the Bible on which he had sworn the oath.35 After Livingston proclaimed “Long Live George Washington, President of the United States,” the crowd erupted in shouting and cheering, so loud as to drown out the pealing of the church bells. When the president came to deliver his inaugural address he was so overcome by the gravity and solemnity of the occasion that he had a hard time reading his notes. According to Maclay, Washington seemed “agitated and embarrassed more than ever he was by the levelled Cannon or pointed Musket.”36 It was an awful moment for Washington and for the country. Washington told his friend Henry Knox that his assumption of the office of president was “accompanied with feelings not unlike those of a culprit who is going to the place of his execution.”37
THE PRESIDENT IN HIS INAUGURAL ADDRESS offered very little guidance about what the Congress should do. Although the Constitution provided that the president periodically recommend to the Congress such measures as he judged necessary and expedient, Washington in his address actually made only one recommendation for congressional action. Believing that the role of the president
was only to execute the laws, not to make them, he was remarkably indirect and circumspect with even this one recommendation. He suggested that the Congress use the amendment procedures of the Constitution in order to promote “the public harmony” and make “the characteristic rights of freemen . . . more impregnably fortified,” without, however, making any alteration in the Constitution that “might endanger the benefits of an United and effective Government.” This recommendation, he said, was in response to “the objections which have been urged against the System” of government created by the Constitution and “the degree of inquietude which has given birth to them.”38
Many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people’s rights, and popular expectation was high that amendments would be added as soon as possible. Although many members of Congress were not at all eager to begin tampering with the Constitution before they had even tried it out, Congress could not easily evade this concern for the citizens’ rights. It was after all in defense of their rights that Americans had fought the Revolution.
Americans had inherited an English concern for personal rights against the power of the crown that went back centuries. They had prefaced at least five of their Revolutionary state constitutions in 1776 with bills of rights and had inserted certain common law liberties in four other constitutions. It thus came as something of a surprise to many Americans to discover that the new federal Constitution contained no bill of rights. It was not that members of the Philadelphia Convention were uninterested in rights; to the contrary, the Constitution had been drafted in part to protect the rights of Americans.
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