pending. He now remarked that he did not believe that the danger apprehended by some really existed, but twice in his speech he admitted that "there is a small possibility, though it is but small, that an officer may derive a weight from this circumstance, and have some degree of influence upon the deliberations of the legislature." In its practical effect the speech favored the compromise which Fitzsimmons had just proposed; in fact, the only opposition to the change of phrasing now came from a few extremists who still clamored for the omission of the entire clause. The decisive effect of Madison's intervention was a natural consequence of the leadership he had held in the movement for the new Constitution and of his standing as the representative of the new Administration, of his possessing Washington's confidence and acting as his adviser. Washington, then being without a cabinet, had turned to Madison for help in discharging the duties of his office, and at Washington's written request Madison had drafted for him his replies to the addresses of the House and the Senate at the opening of the session. It was a matter of course in such circumstances that the House accepted Fitzsimmons' amendment,—"by a great majority," according to the record,—and thus the Secretary of the Treasury was shut out of the House and was condemned to work in the lobby.

The consequences of this decision have been so vast that it is worth while making an inquiry into motive, although the materials upon which judgment must rest are scant. No one can read the record of this discussion without noting that Madison's approval of the original clause was lukewarm as compared with the ardor he had shown when the question was whether Washington should be allowed to remove his subordinates. This contrast suggests that Madison's behavior was affected by fear of Hamilton's influence. Would it be prudent for him to give Hamilton the advantage of being able to appear in person before the House, and probably to supplant Madison himself as the spokesman of the Administration? Divergence between the two men had already begun in details. At the time the vote on the powers of the Secretary of the Treasury was taken, the tariff bill and the tonnage bill were still pending, and Hamilton's influence operated against Madison's views on some points. Moreover, the question of the permanent residence of the federal government was coming forward and was apparently overshadowing everything else in the minds of members. Ames several times in his correspondence at this period remarks upon Madison's timidity, which was due to his concern about Virginia State politics. Any arrangement that might enable Hamilton to cross swords with an opponent on the floor of the House could not be attractive to Madison, who was a lucid reasoner but not an impressive speaker. Hamilton was both of these, and he possessed an intellectual brilliancy which Madison lacked. Ames, who respected Madison's abilities and who regarded him as the leading member of the House, wrote that "he speaks low, his person is little and ordinary; he speaks decently as to manner, and no more; his language is very pure, perspicuous, and to the point." Why Fitzsimmons should be opposed to the appearance of the Secretary in person in the House, as had been Robert Morris's practice when he was Superintendent of Finance, is plain enough. Maclay's diary has many references to Fitzsimmons's negotiations with members on tariff rates. It was not to the advantage of private diplomacy to allow the Secretary to shape and define issues on the floor of the House. But Fitzsimmons could not have had his way about the matter without Madison's help.

Gibbon remarks that the greatest of theological controversies which racked the Roman Empire and affected the peace of millions turned on the question whether a certain word should be spelled with one diphthong or another. A like disproportion between the vastness of results and the minuteness of verbal distinction is exhibited in this decision by the House. The change of "report" into "prepare" threw up a ridge in the field of constitutional development that has affected the trend of American politics ever since. This is the explanation of a problem of comparative politics that has often excited much wondering notice: why it is that alone among modern representative assemblies the American House of Representatives tends to decline in prestige and authority. The original expectation was that the House of Representatives would take a dominant position like that of the House of Commons, but its degradation began so soon that Fisher Ames noted it as early as 1797. Writing to Hamilton he observed:

"The heads of departments are chief clerks. Instead of being the ministry, the organs of the executive power, and imparting a kind of momentum to the operation of the laws, they are precluded even from communicating with the House by reports…. Committees already are the Ministers and while the House indulges a jealousy of encroachment in its functions, which are properly deliberative, it does not perceive that these are impaired and nullified by the monopoly as well as the perversion of information by these committees."

Justice Story, who entered Congress in 1808 as a Jeffersonian Republican, noted the process of degradation, and in his Commentaries he pointed out the cause: "The Executive is compelled to resort to secret and unseen influences, to private interviews and private arrangements to accomplish its own appropriate purposes, instead of proposing and sustaining its own duties and measures by a bold and manly appeal to the nation in the face of its representatives."

The last of the organic acts of the session was the one establishing the judiciary. The student will be disappointed if he examines the record to note whether there was any vision of the ascendancy which the judiciary was to obtain in the development of the American constitutional system. The debates were almost wholly about the possibilities of conflict between the state and the federal courts. Although Maclay's diary gives a one-sided and distorted account of the proceedings in the Senate, the course of the debate is clear. Ellsworth of Connecticut had principal charge of the bill. At the outset Lee and Grayson of Virginia made an ineffectual effort to confine the original jurisdiction of the federal courts to cases of admiralty and maritime jurisdiction, and argued that jurisdiction over other cases involving federal law might be conferred upon state courts. This was a point on which there had been some difference of opinion between Hamilton and Madison. The former held that it was within the competency of Congress, when instituting tribunals inferior to the Supreme Court, to adopt the state courts for that purpose. Madison held that nothing less than a system of federal courts quite distinct from the state courts would satisfy the requirements of the Constitution. When the bill was taken up in the House, there was a long debate over this matter. The costly duplication of judicial establishments that has ever since existed in the United States is certainly not necessary to a federal system, but is an American peculiarity. The advocates of a unified system were hampered by the fact that this view was pressed by some in a spirit of hostility to the Constitution. The decisive argument was the untrustworthiness of the state courts. Madison urged this fact with great force and pointed out that in some of the States the courts "are so dependent on the state legislatures, that to make the federal laws dependent on them, would throw us back into all the embarrassments which characterized our former situation." Such was the low repute of the state legislatures that the only way in which this argument could be met was to argue that "Congress shall have power, in its fullest extent, to correct, reverse, or affirm, any decree of a state court." This high assertion of federal authority was made by Jackson of Georgia in the course of a long