as well as domestic relations, it remains for us to examine the manner in which the provisions of the Constitution have been supplemented by con- gressional legislation and executive action. At the outset, the matter which attracts our notice is that the Constitution makes no express provision for an execu- tive cabinet or council, and in this respect it is a de- parture from the then existing forms of government, and especially that of Great Britain. A strong effort was made in the Convention to establish such a body, clothed with executive or advisory powers, either to
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keep watch over or to act in conjunction with the Pre- sident. Various projects to this end were brought for- ward; among others it was proposed that a privy coun- cil should be created, to consist of " the President of the Senate, the Speaker of the House of Kepresenta- tives, the Chief Justice of the Supreme Court, and the principal officer in each of five departments, as they shall … be established." Another plan was for the Senate to appoint a privy council of six members to hold office for six years, two each to be selected from Southern, Middle, and Eastern States, and one third to retire every second year. 1 One or the other of these plans had the support of such influential delegates as Ellsworth, Gouverneur Morris, Madison, Franklin, Wil- son, Mason, and Dickinson.
But all the projects failed, and were substituted by the colorless provision in the Constitution authorizing the President "to require the opinion, in writing, of the principal officer in each of the executive depart- ments." The theory upon which the government was constructed was that what belongs to the executive power is to be exercised by the uncontrolled will of the President. It was argued in the Convention that if a council was created, it would relieve the President of responsibility, and nullify the provision for his im- peachment for malfeasance. Cooley, in his Blackstone, says : " The cabinet, as a body of councilors, has no necessary place in our constitutional system, and each President will accord to it such weight and influence in his administration as he shall see fit. The President
1 2 Bancroft's History of Constitution, 188–190.
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not the cabinet is responsible for all the measures of the administration, and whatever is done by one of the heads of departments is considered as done by the President, through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United States; the acts of the former being considered as those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are con- sidered as directed and controlled by him." l The fail- ure to provide for an executive council had a decided influence in the adoption of the provisions of the Con- stitution giving the Senate a share of the control in the making of treaties and in appointments to office.
While, as noted, the Constitution contains no ex- press provision for a cabinet or council, the creation of officials who would bear some such relation to the President is inferentially stated in Article II., which treats of the executive power. It has already been noticed that the President was authorized to require opinions, in writing, of the principal officer in each of the executive departments, and the " heads of depart- ment " are referred to in the next clause of the same section. When the first Congress under the Constitu- tion assembled in 1789, one of its first duties was to provide the President with the means and instruments by which to conduct the executive duties of the new government. The experience under the Confederation, as already mentioned, furnished useful information for its guidance. It had been made manifest that an ad- ministration by boards would not answer the purpose.
1 1 Cooley's Blackstone, 232, note.
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Congress turned instinctively to the system followed by the Confederation in its conduct of foreign affairs as the only successful method, to wit, the placing of the departments under a single responsible head. Where- upon Madison introduced in the House a resolution, which was adopted, that in the opinion of the House there ought to be a Department of Foreign Affairs, of War, and of the Treasury, each presided over by an officer appointed by the President, by and with the advice and consent of the Senate, and removable by the President. Thereupon a bill was introduced cre- ating the Department of Foreign Affairs, 1 and its chief features were passed upon with little debate; but a long discussion was occasioned by the provision making the secretary removable from office by the President. The clause was stricken out, not, however, because the majority believed the President did not possess the
1 1 U. S. Stat. at Large, 28 : " An Act for establishing an Executive Department, to be denominated the Department of Foreign Affairs. Section 1. Be it enacted by the Senate and the House of Representa- tives of the United States of America in Congress assembled, That there shall be an Executive Department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary for the Department of Foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions, or instruc- tions to or with public ministers or consuls from the United States, or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs, as the President of the United States shall assign to the said department; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct. … Approved July 27, 1789."
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power, but because under their construction of the Con- stitution he already possessed the power, and it would have the appearance of conferring the power by act of Congress if it was retained in the bill.
The act was approved by the President July 27, 1789; but soon thereafter another bill was considered by Congress, entitled " An Act to provide for the Safe- keeping of the Acts, Records, and Seal of the United States, and for other purposes," by the first section of which the name of the Department of Foreign Affairs was changed to the " Department of State," and the head of it to " Secretary of State." The only reason why the change of name should have been made was that the secretary was to become the medium of com- munication and correspondence of the President with the executives of the several States, although it was not so provided in the act, which became a law September 15, 1789. 1 It was an unwise and misleading change, as the name indicates that the main business of the department was of a domestic character, whereas it is almost wholly international in its functions, and should be termed the Department of Foreign Affairs, as pro- vided in the original law. This action was in the nature of a compromise, as members were urging the estab- lishment of a separate department to be presided over by a Secretary of Home Affairs, and Congress was un- willing to create another department at that time. It is unfortunate that the name should have been changed, as the new duties might have been added without alter- ing the character of the department, and the misnomer
1 1 U. S. Stat. at Large, 68.
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which has adhered to it for more than a century might have thus been avoided.
The act of July 27, 1789, which was very brief, has stood to this day as the organic law of the department, without any essential modifications so far as foreign relations are concerned, and is a striking proof of the wisdom of the men who framed and enacted it. In the earlier years of the nation other duties were added to it, as will be seen, but most of those have been rele- gated to other departments, as the growth of the coun- try has called them into existence. The organization of the departments of War, the Treasury, and of Jus- tice was likewise authorized by this Congress at its first session, and the Cabinet, as it has since come to be known, was at first composed of four members, the heads of
