THE SENATE IN 1877
When I came to the Senate that body was at the very height
of its Constitutional power. It was, I think, a more powerful
body than ever before or since. There were no men in it,
I suppose, who were equal in reputation or personal authority
to either of the great triumvirate--Webster, Clay and Calhoun.
If we may trust the traditions that have come down from the
time of the Administrations of Washington and Adams, when
the Senate sat with closed doors, none of them ever acquired
the authority wielded by the profound sagacity of Ellsworth.
But the National authority itself, of which the Senate was
a part, was restricted by the narrow construction which prevailed
before the Civil War. During the Civil War everything was
bowed and bent before the military power. After the war ended
the Senate was engaged in a controversy with Andrew Johnson,
during which there could be no healthy action either of the
executive or the legislative branch of the Government. It
was like a pair of shears, from which the rivet was gone.
With the coming in of Grant harmonious relations were established
between the two departments. But the Senators were unwilling
to part with the prerogatives, which they had helped each
other to assert, and which had been wrenched from the feeble
hand of Johnson. What was called Senatorial Courtesy required
every Senator belonging to the party in the majority to support
every other in demanding the right to dictate and control
the executive and judicial appointments from their respective
States. So every Senator had established a following, like
that of the Highland chieftain--"Vich Ian Vohr with his tail
on"--devoted, of course, to the party, but devoted more completely
and immediately to his political fortunes.
President Grant in the beginning undertook to break down this
arrogant claim. He recommended the repeal of the Civil Tenure
Act, the establishment of a system of competitive examinations
for appointments in the civil service and, under the advice
of Attorney-General Hoar, made the nominations to the new
Circuit Court without regard to Senatorial dictation. But
he very soon abandoned this purpose, and formed a close friendship
and alliance with the most earnest opponents of the reform.
While, in my opinion, this claim of the Senators was untenable
and of injurious public consequences, it tended to maintain
and increase the authority of the Senate. The most eminent
Senators--Sumner, Conkling, Sherman, Edmunds, Carpenter, Frelinghuysen,
Simon Cameron, Anthony, Logan--would have received as a personal
affront a private message from the White House expressing
a desire that they should adopt any course in the discharge
of their legislative duties that they did not approve. If
they visited the White House, it was to give, not to receive
advice. Any little company or coterie who had undertaken
to arrange public policies with the President and to report
to their associates what the President thought would have
rapidly come to grief. These leaders were men, almost all
of them, of great faults. They were not free from ambition.
Some of them were quite capable of revenge, and of using
the powers of the Government to further their ambition or
revenge. But they maintained the dignity and the authority
of the Senatorial office. Each of these stars kept his own
orbit and shone in his sphere, within which he tolerated no
intrusion from the President, or from anybody else.
The reform of the civil service has doubtless shorn the office
of Senator of a good deal of its power. I think President
McKinley, doubtless with the best and purest intentions,
did still more to curtail the dignity and authority of the
office. I dare say the increase in the number of Senators has
had also much to do with it. President McKinley, with his
great wisdom and tact and his delightful individual quality,
succeeded in establishing an influence over the members of
the Senate not, I think, equalled from the beginning of the
Government, except possibly by Andrew Jackson. And while
the strong will of Jackson subjugated Senators, in many cases,
as it did other men, yet it roused an antagonism not only
in his political opponents, but in many important men of his
own party, which would have overthrown him but for his very
great popularity with the common people. President McKinley
also made one serious mistake, of which indeed he did not
set the example. Yet he made what was before but an individual
and extraordinary instance, a practice. If that practice
continue, it will go far, in my judgment, to destroy the independence
and dignity of the Senate. That is, the appointment of members
of the Senate to distinguished and lucrative places in the
public service, in which they are to receive and obey the
command of the Executive, and then come back to their seats
to carry out as Senators a policy which they have adopted
at the command of another power, without any opportunity of
consultation with their associates, or of learning their
associates' opinions.
The Constitution provides, Article I., Sec. 6,
"No Senator or Representative shall, during the time for
which he was elected, be appointed to any civil office under
the authority of the United States, which shall have been
created, or the emoluments whereof shall have been increased,
during such time; and no person holding any office under the
United States shall be a member of either House during his
continuance in office."
It is, I suppose, beyond dispute that the intention of that
provision was to protect the members of the Legislative branch
of the Government from Executive influence. The legislator
was not to be induced to create a civil office, or to increase
its emoluments, at the request of the Executive, in the hope
that he might be appointed. He was to preserve his independence
of Executive influence, and to approach all questions in which
he might have to deal with matters which concerned the Executive
power, or Executive action, absolutely free from any bias.
This provision comes, with some modification, from the English
Constitution. The fear of Executive influence was in that
day constantly before the framers of the Constitution and
the people who adopted it. Roger Sherman, in his correspondence
with John Adams, says that he "esteems the provision made
for appointment to office to be a matter of very great importance,
on which the liberties and safety of the people depend nearly
as much as on legislation."
"It was," he says, "a saying of one of the Kings of England
that while the King could appoint the Bishops and Judges he
might have what religion and laws he pleased."
I think that sooner or later some emphatic action will be
taken, probably in the form of a declaratory resolution,
which will put an end to this abuse. But there will always
be found men in either branch who desire such honorable employment.
They will be men of great influence. There are also frequently
men of personal worth who always support whatever the President
of the United States thinks fit to do, and trot or amble along
in the procession which follows the Executive chariot. So,
if any President shall hereafter repeat this attempt it will
require a good deal of firmness to defeat it.
Senator Morgan of Alabama made a very bright comparison of
the relation to the White House of some very worthy Senators
to that of the bird in a cuckoo clock. He said that whenever
the clock at the White House strikes the bird issues out of
the door in the Senate Chamber, and says: "Cuckoo, Cuckoo,"
and that when the striking is over, he goes in again and shuts
the door after him. He was speaking of Democratic Senators.
But I am afraid my excellent Republican brethren can furnish
quite as many instances of this servility as their opponents.
The President has repeatedly, within the last six years,
appointed members of the Senate and the House to be Commissioners
to negotiate and conclude, as far as can be done by diplomatic
agencies, treaties and other arrangements with foreign Governments,
of the gravest importance. These include the arrangement
of a standard of value by International agreement; making
a Treaty of Peace, at the end of the War with Spain; arranging
a Treaty of Commerce between the United States and Great Britain;
making a Treaty to settle the Behring Sea controversy; and
now more lately to establish the boundary line between Canada
and Alaska.
President McKinley also appointed a Commission, including
Senators and Representatives, to visit Hawaii, and to report
upon the needs of legislation there. This last was as clearly
the proper duty and function of a committee, to be appointed
by one or the other branch of Congress, as anything that could
be conceived.
The question has been raised whether these functions were
offices, within the Constitutional sense. It was stoutly
contended, and I believe held by nearly all the Republican
Senators at the time when President Cleveland appointed Mr.
Blount to visit Hawaii, and required that the diplomatic
action of our Minister there should be subject to his approval,
that he was appointing a diplomatic officer, and that he had
no right so to commission Mr. Blount, without the advice and
consent of the Senate. President McKinley seemed to accept
this view when he sent in for confirmation the names of two
Senators, who were appointed on the Commission to visit Hawaii.
The Senate declined to take action upon these nominations.
The very pertinent question was put by an eminent member of
the Senate: If these gentlemen are to be officers, how can
the President appoint them under the Constitution, the office
being created during their term? Or, how can they hold office
and still keep their seats in this body? If, on the other
hand, they are not officers, under what Constitutional provision
does the President ask the advice and consent of the Senate
to their appointment?
But the suggestion that these gentlemen are not officers,
seems to me the merest cavil. They exercise an authority,
and are clothed with a dignity equal to that of the highest
and most important diplomatic officer, and far superior to
that of most of the civil officers of the country. To say
that the President cannot appoint a Senator or Representative
postmaster in a country village, where the perquisites do
not amount to a hundred dollars a year, where perhaps no other
person can be found to do the duties, because that would put
an improper temptation in the way of the legislator to induce
him to become the tool of the Executive will, and then permit
the President to send him abroad; to enable him to maintain
the distinction and enjoy the pleasure of a season at a foreign
capital as the representative of the United States, with all
his expenses paid, and a large compensation added, determined
solely by the Executive will; and to hold that the framers
of the Constitution would for a moment have tolerated that,
seems to me utterly preposterous.
Beside, it places the Senator so selected in a position where
he cannot properly perform his duties as a Senator. He is
bound to meet his associates at the great National Council
Board as an equal, to hear their reasons as well as to impart
his own. How can he discharge that duty, if he had already
not only formed an opinion, but acted upon the matter under
the control and direction of another department of the Government?
The Senate was exceedingly sensitive about this question
when it first arose. But the gentlemen selected by the Executive
for these services were, in general, specially competent for
the duty. Their associates were naturally quite unwilling
to take any action that should seem to involve a reproof to
them. The matter did not, however, pass without remonstrance.
It was hoped that it would not be repeated. At the time of
the appointment of the Silver Commission, I myself called
attention to the matter in the Senate. Later, as I have said,
the Senate declined to take action on the Commission appointed
to visit Hawaii. But there was considerable discussion. Several
bills and resolutions were introduced, which were intended
to prohibit such appointments in the future. The matter was
referred to the Committee on the Judiciary. It turned out
that three members of that Committee had been appointed by
President McKinley on the Canadian Committee. One of them,
however, said he had accepted the appointment without due
reflection, and he was quite satisfied that the practice was
wrong. The Committee disliked exceedingly to make a report
which might be construed as a censure of their associates.
So I was instructed to call upon President McKinley and say
to him in behalf of the Committee, that they hoped the practice
would not be continued. That task I discharged. President
McKinley said he was aware of the objections; that he had
come to feel the evil very strongly; and while he did not
say in terms that he would not make another appointment of
the kind, he conveyed to me, as I am very sure he intended
to do, the assurance that it would not occur again. He said,
however, that it was not in general understood how few people
there were in this country, out of the Senate and House of
Representatives, qualified for important diplomatic service
of that kind, especially when we had to contend with the trained
diplomatists of Europe, who had studied such subjects all
their lives. He told me some of the difficulties he had encountered
in making selections of Ministers abroad, where important
matters were to be dealt with, our diplomatic representatives
having, as a rule, to be taken from entirely different pursuits
and employments.
That Congress in the past has thought it best to extend rather
than restrict this prohibition is shown by the statute which
forbids, under a severe penalty, members of either House of
Congress from representing the Government as counsel.