A central component of the Whig orthodoxy that had spurred the American Revolution was the supremacy of the legislative branch, viewed as a curb to the executive. By design, the framers of the Constitution devoted Article I to a lengthy description of legislative powers, giving Congress the ability to help shape the other two branches. Left deliberately vague was the office of the presidency, allowing its first occupant to fill in the blanks. The earnest Washington tried to adhere to the letter of the Constitution and hoped to enjoy harmonious relations with Congress. But he soon realized that the Constitution was less a precise blueprint for action than a set of general guidelines whose many ambiguities required practical clarification. If bemused by some congressional practices, he tried not to trespass on legislative prerogatives. For instance, he privately opposed the Senate’s closed-door policy, but he kept a discreet silence in public. For its part, Congress groped to define its relationship to the president. In June 1789 some congressmen wanted Washington to have to gain senatorial approval to fire as well as hire executive officers—the Constitution was silent on the subject; the House duly approved that crippling encroachment on executive authority. When the Senate vote ended in a tie, Vice President Adams cast the deciding vote to defeat the measure, thereby permitting the president to exert true leadership over his cabinet and, for better or worse, preventing the emergence of a parliamentary democracy.

The first formal clash between Washington and Congress arose on August 5, 1789, when the Senate rejected Washington’s nomination of Benjamin Fishbourn as collector of the Port of Savannah. Though still ailing, Washington made his way to Federal Hall and mounted to the second-floor Senate chamber, decorated on its ceiling with thirteen stars and suns. Washington’s unexpected entrance stunned the legislators. Undoubtedly feeling a bit befuddled, Vice President Adams rose from his canopied chair of crimson velvet and offered it to Washington, who then proceeded to upbraid the twenty-two members of the Senate, demanding to know why they had spurned his appointee. “The president showed [a] great want of temper . . . when one of his nominations was rejected,” said Senator Ralph Izard of South Carolina. 19 It was an unusual public display of emotion by Washington.

After a long, awkward silence, Senator James Gunn of Georgia, whose state included Savannah, rose and from “personal respect for the personal character of Gen[era]l Washington” explained his opposition to Fishbourn.20 At the same time he wanted it understood that the Senate felt no obligation to explain its reasoning to the president. The episode marked the start of “senatorial courtesy,” whereby senators reserved the right to block nominations in their home states. Despite Gunn’s respectful treatment, Washington went off in a great huff, and Tobias Lear said that as soon as he returned from the Senate, he “expressed his very great regret for having gone there.”21

This skirmish turned out to be trifling compared to the conflict over Indian policy some weeks later. The episode began in mid-June, when Henry Knox, secretary of war, wrote a well-meaning letter to Washington, fleshing out a farsighted approach to Indian affairs. Noting the bloody battles between Indians and American settlers on the frontier, Knox declared that the Indians, as rightful owners of the land, should not be deprived of it by violence or coercion. Rather, he advocated paying them for their land and concentrating them in a system of federally protected enclaves. Knox wanted to initiate this policy by negotiating a treaty with Alexander McGillivray, chief of the Creek Nation, whose hunting grounds extended over parts of modern-day Georgia, Florida, Alabama, and Mississippi. The corrupt Georgia legislature was ready to make a mockery of any enlightened policy toward the Indians by selling to speculators millions of acres claimed by the Creeks and other southern tribes.

In early August Knox informed Washington that he had worked out a treaty with the Creeks, including several secret articles. Among other things, Knox wanted the executive branch to dominate Indian affairs as a way of bolstering presidential authority. As part of the treaty process, Washington planned to send a three-man commission to broker peace between Georgia and the Creeks, but when Knox drew up instructions for this parley, Washington thought he needed to consult the Senate about them. This time, instead of pouncing unexpectedly, he gave ample warning of his visit. He interpreted the “advice and consent” requirement of the Constitution to include such direct meetings with the Senate, but the ensuing contretemps changed the course of American history. When Washington arrived on August 22, he again occupied Adams’s seat, with Knox seated to his left. They delivered a copy of the treaty papers to Adams, who tried to read them aloud but was drowned out by traffic below. “I could tell it was something about Indians,” grumbled William Maclay, “but was not master of one sentence of it.”22 When the windows were shut, Adams read aloud the seven articles of the treaty, to be followed by a yea or nay vote on each. After he read the first one, Robert Morris stood and said he hadn’t been able to hear anything above the racket, forcing Adams to reread the whole treaty. He then recited the first article again, followed by an uncomfortable silence.

Some in the Senate believed that Washington wanted them merely to rubber-stamp treaties and appointments instead of exercising independent judgment. When Maclay requested a reading of the supporting treaties between the southern Indians and three southern states, Washington fixed him with an icy glare. “I cast an eye at the president of the United States,” Maclay wrote. “I saw he wore an aspect of stern displeasure.”23 Robert Morris moved that the papers brought by Washington be referred to a committee. When Maclay defended the propriety of this motion, Washington’s expression grew even more forbidding, and he hotly contested the idea of committing anything to a committee. *“ ‘This defeats every purpose of my coming here’ were the first words that he said,” Maclay wrote in his diary. “He then went on that he had brought his Secretary at War with him to give every necessary information.”24 Washington refused to yield on the committee proposal, although he agreed to postpone the matter. In Maclay’s version of events, Washington, having shown flashes of temper, withdrew with “a discontented air” and a sense of “sullen dignity.”25

A couple of days later Washington returned to the Senate, which approved the three commissioners to negotiate with the Creeks. It proved his farewell appearance in the Senate chamber. In a decision pregnant with lasting consequences, Washington decided that he would henceforth communicate with that body on paper rather than in person and trim “advice and consent” to the word consent. For instance, when Washington appointed David Humphreys as a diplomat to the Court of Portugal in February 1791, Maclay noted that the choice was sent to the Senate as a fait accompli: “The president sends first and asks for our advice and consent after.”26

This decision may have done more to define the presidency and the conduct of American foreign policy than an entire bookshelf of Supreme Court decisions on the separation of powers. Where the Constitution had been sketchy about presidential powers in foreign affairs, Washington made the chief executive the principal actor, enabling him to initiate treaties and nominate appointees without first huddling with the Senate. It was an instinctive reaction from a man who had grown accustomed to command during the war. If a touch imperious, it was a far more realistic approach to foreign policy than constant collaboration and horse-trading between the president and Senate. For one thing, the presidency was continuously in session, unlike Congress, and it was much easier for one man to take decisive action, especially in an emergency. Washington’s decision also widened the distance between president and Senate, enabling the latter to function as an independent, critical voice in foreign policy rather than as a subordinate advisory panel.