Cabinet had no statutory existence, but the reference to the Cabinet was retained, as designating a well-known and functioning governmental institution.

85

Thus, the Cabinet, constituting an advisory council to the President and composed of the principal administrative officers of the national government, was the creation of President Washington. The practice of calling together the heads of departments to discuss important questions of governmental policy and to advise the President, became in the course of time a settled custom. Hamilton, in a vigorous declaration aimed at President Adams' unfortunate experiences with his cabinet advisers, thus expressed, in a clear and forceful manner, the theory upon which the Cabinet, as an integral part of the national government, must rest: "A President is not bound to conform to the advice of his ministers. He is even under no positive injunction to ask or require it. But the Constitution presumes he will consult them; and the genius of our government and the public good recommend the practice. As the President nominates his ministers, and may displace them when he pleases, it must be his own fault if he be not surrounded by men who, for ability and integrity, deserve his confidence. And if his ministers are of this character, the consulting of them will always be likely to be useful to himself and to the state.'

66

Jefferson, in a letter to William Short written on June 12, 1807, referring to the customary practice of consultation with his "coadjutors," said: “ For our government although in theory subject to be directed by the unadvised will of the President, is, and from its origin has been, a very different thing in practice. The minor business in each department is done by the head of the department on consultation with the President alone; but all matters of importance or difficulty are submitted to all the heads of departments composing the Cabinet. Sometimes, by the President's consulting them separately and successively, as they happen to call on him, but in the gravest cases calling them together, discussing the subject maturely, and finally taking the vote, on which the President counts himself but as one. So that in all important cases the Executive is in fact a directory, which certainly the President might control; but of this there was never an example either in the first or the present admin

59 Cong. 2 sess. (1906-07), Congressional Record, Vol. 41, Pt. 1, 381. "Works of Alexander Hamilton (ed. Lodge), VI, 419.

istration." Again, in a letter to a friend written in 1823, Jefferson said that we had " fallen on the happiest of all modes of constituting the executive, that of easing and aiding our President, by permitting him to choose Secretaries of State, of Finance, of War, and of the Navy, with whom he may advise, either separately or all together, and remedy their decisions by adopting or controlling their opinions at his discretion. . .

A very concise and clear exposition of the place occupied by the President's Cabinet in the governmental system of the United States, is that given by Professor Burgess in his work on Political Science and Constitutional Law: "In the exercise of his powers the President may ask the advice, if he will, of the heads of the executive departments, but he is not required to do so by the Constitution. The words of the Constitution are that the President 'may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices.' These officers are not specifically mentioned in any other part of the Constitution. They certainly have no collegiate existence under the Constitution. The President may, if he chooses, consult them as a body, unless they themselves object. Should they object, he could not point to any specific clause in the Constitution which requires such an organization, or which authorizes him to require opinions in such a form. He might, of course, dismiss an officer who should refuse to take part in the collegiate deliberations. The Constitution makes the President the only bond between the executive departments. The Congress has no power to create any other bond. What we call the Cabinet is, therefore, a purely voluntary, extra-legal association of the heads of the executive departments with the President, which may be dispensed with at any moment by the President, and whose resolutions do not legally bind the President in the slightest degree. They form a privy council, but not a ministry."

Summary of Administrative Organization, 1789-1800. The period from 1789 to 1800 is of tremendous significance in the development of national administration in the United States. Congress, as we have seen, made provision during its first session for

67 Writings of Thomas Jefferson, IX, 69-70.

88

89

Ibid. (ed. H. A. Washington), VII, 321.

Burgess, Political science and constitutional law, II, 262 (1900).

three representative departments, with a secretary at the head of each department. The experiences encountered during the period of the Revolution and later under the Confederation had so clearly and effectively demonstrated the advantages of a system of singleheaded administrative control that the adoption of such a system in 1789 was only opposed in connection with the establishment of the Treasury Department. And even in the matter of the administration of the nation's finances, this system was finally adopted, although not without encountering the opposition of those who were disposed to look with distrust and suspicion upon all measures designed to concentrate power and control in the hands of a single individual.

The important offices of Attorney General and Postmaster General were also established in 1789, although the act providing for the latter was supplanted by a statute passed in 1792, and finally by the more permanent arrangement made in 1794. The Attorney General, because of his position as legal adviser to the President and the heads of the departments, was from the first closely associated with the Chief Executive and the department secretaries, although it was not until 1870 that he was placed at the head of an executive department. The Postmaster General, on the other hand, although charged with the supervision and control of a very important administrative service, was not recognized as one of the principal administrative officers and personal advisers of the President until 1829. Because of the increased importance of naval affairs, the supervision of which had been entrusted to the Secretary of War in 1789, Congress established a Navy Department in 1798, in charge of a secretary, who was immediately placed upon a plane of equality with the heads of the other departments. Finally, an extra-legal advisory council to the President had its beginning during this period, which was destined to become a most important part of the national administration. The inception of this institution by President Washington, which came to be known as the President's Cabinet, was dictated solely by reasons of expediency, although many of the far-seeing statesmen, who had had a share in the framing of the Constitution, clearly recognized the possibility of such a council or cabinet arising from the provision in that instrument authorizing the President to require written opinions from the heads of the departments.

CHAPTER IV

THE DEPARTMENT OF STATE

"All administration," says Goodnow, "may be differentiated into five well-defined branches-namely, those of foreign, military, judicial, financial, and internal affairs. All the different administrative matters requiring attention from the administration will fall under one of these five branches. It has come to be well recognized at the present time that the best arrangement of administrative business is to place some one authority at the head of each of these branches, and where it is found by experience to be necessary to make a further specialization, to take out of one of the five departments thus formed some particular matter or matters and form a separate department for its or their management.

Congress, as has been noted, made provision during the brief period from 1789 to 1800 for four administrative departments, a Post Office Establishment and the Office of Attorney General. The first three of the departments thus established; namely, the Departments of Foreign Affairs, War, and Treasury were each concerned with one of the five branches of administration mentioned by Professor Goodnow. A secretary, appointed by the President, with the advice and consent of the Senate, was placed at the head of each of these departments. The Post Office Establishment, under the supervision of a Postmaster General, was concerned with a most important matter of internal administration, but was not looked upon as one of the major administrative departments until President Jackson, impressed with the importance of postal administration and the opportunity for an extension of political patronage, extended an invitation to the Postmaster General to become a member of his Cabinet. The Attorney General was little more than a legal adviser to the President and the heads of departments, although a member of the Cabinet. He was not even granted the services of a clerk and a location for his office until 1818, and what may be considered as the first administrative

1Goodnow, Principles of the administrative law of the U. S., 120 (1905).

power exercised by that officer, namely, the supervision and control of district attorneys, was not assigned to him until 1861. The Department of Justice, of which he is now the head, was established in 1870.

A proposal made in the First Congress to establish a Home Department was not favorably received, but, in lieu of such a department, an act was passed referring certain matters connected with the administration of internal affairs to the Department of Foreign Affairs, the name of which was changed to the Department of State. Because of the increased importance of naval affairs, calling for further specialization, Congress removed the control of the navy from the War Department in 1798, creating a separate department for naval administration. Following the establishment of the Navy Department, a period of almost fifty years intervened before Congress was led, in view of the rapid increase in the scope and importance of the administration of purely internal affairs, to provide for a Home Department. It is to the study of the development of administrative organization within the executive departments prior to 1860 that the remaining chapters of Part I will be devoted.

A comparison of the acts establishing the Departments of State, War, and Navy with that providing for a Department of Treasury reveals the fact that whereas the former provide for a chief and other clerks only, the latter lays the basis for a system of subdepartments or bureaus, in the provision for the appointment of a comptroller, an auditor, a treasurer, and a register, among whom a portion of the business of the department is permanently distributed. Congress, in the exercise of its power not only to designate the method or system to be followed in organizing the Treasury Department, but also to prescribe the duties and powers of the heads of the bureaus thus created, was, to a certain extent, undermining the principle of departmental unity. The value of providing a system of checks and balances in financial administration has been clearly demonstrated by the subsequent history of the Treasury Department, but the introduction of the bureau system into the other administrative departments has frequently resulted in a division of responsibility and a lack of proper coordination between the bureau chiefs and the heads of the departments.