CHAPTER V

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.

Autobiography of Seventy Years, Vol. 1-2 · 第 5 / 40 章