In estimating the value of the Senate, therefore, as a branch of the

national legislature, we should offset the committee organization, with

its denial of leadership which disintegrates the Senate, and that

liability to the biennial infusion of new elements which may at any time

interrupt the policy and break the purpose of the Senate, against those

habits of free and open debate which clear its mind, and to some extent

the mind of the public, with regard to the nation's business, doing much

towards making legislation definite and consistent, and against those

great additions to its efficiency which spring from its observation of

"slow and steady forms" of procedure, from the mediate election which

gives it independence, and from its having a rational and august cause

for existing.

When we turn to consider the Senate in its relations with the executive,

we see it no longer as a legislative chamber, but as a consultative

executive council. And just here there is to be noted an interesting

difference between the relations of the Senate with the President and

its relations with the departments, which are in constitutional theory

one with the President. It deals directly with the President in acting

upon nominations and upon treaties. It goes into "executive session" to

handle without gloves the acts of the chief magistrate. Its dealings

with the departments, on the other hand, are, like those of the House,

only indirect. Its legislative, not its executive, function is the whip

which coerces the Secretaries. Its will is the supreme law in the

offices of the government; and yet it orders policy by no direct word to

the departments. It does not consult and negotiate with them as it does

with the President, their titular head. Its immediate agents, the

Committees, are not the recognized constitutional superiors of Secretary

A. or Comptroller B.; but these officials cannot move a finger or plan

more than a paltry detail without looking to it that they render strict

obedience to the wishes of these outside, uncommissioned, and

irresponsible, but none the less authoritative and imperative masters.

This feature of the Senate's power over the executive does not, however,

call for special emphasis here, because it is not a power peculiar to

the Senate, this overlordship of the departments, but one which it

possesses in common with the House of Representatives,--simply an innate

and inseparable part of the absolutism of a supreme legislature. It is

the Senate's position as the President's council in some great and many

small matters which call for particular discussion. Its general tyranny

over the departments belongs rather with what I am to say presently when

looking at congressional government from the stand-point of the

executive.

The greatest consultative privilege of the Senate,--the greatest in

dignity, at least, if not in effect upon the interests of the

country,--is its right to a ruling voice in the ratification of treaties

with foreign powers. I have already alluded to this privilege, for the

purpose of showing what weight it has had in many instances in

disarranging the ideal balance supposed to exist between the powers of

Congress and the constitutional prerogatives of the President; but I did

not then stop to discuss the organic reasons which have made it

impossible that there should be any real consultation between the

President and the Senate upon such business, and which have,

consequently, made disagreement and even antagonism between them

probable outcomes of the system. I do not consult the auditor who

scrutinizes my accounts when I submit to him my books, my vouchers, and

a written report of the business I have negotiated. I do not take his

advice and seek his consent; I simply ask his endorsement or invite his

condemnation. I do not sue for his cooperation, but challenge his

criticism. And the analogy between my relations with the auditor and

the relations of the President with the Senate is by no means remote.

The President really has no voice at all in the conclusions of the

Senate with reference to his diplomatic transactions, or with reference

to any of the matters upon which he consults it; and yet without a voice

in the conclusion there is no consultation. Argument and an unobstructed

interchange of views upon a ground of absolute equality are essential

parts of the substance of genuine consultation. The Senate, when it

closes its doors, upon going into "executive session," closes them upon

the President as much as upon the rest of the world. He cannot meet

their objections to his courses except through the clogged and

inadequate channels of a written message or through the friendly but

unauthoritative offices of some Senator who may volunteer his active

support. Nay, in many cases the President may not even know what the

Senate's objections were. He is made to approach that body as a servant

conferring with his master, and of course deferring to that master. His

only power of compelling compliance on the part of the Senate lies in

his initiative in negotiation, which affords him a chance to get the

country into such scrapes, so pledged in the view of the world to

certain courses of action, that the Senate hesitates to bring about the

appearance of dishonor which would follow its refusal to ratify the

rash promises or to support the indiscreet threats of the Department of

State.

The machinery of consultation between the Senate and the President is of

course the committee machinery. The Senate sends treaties to its

Standing Committee on Foreign Relations, which ponders the President's

messages accompanying the treaties and sets itself to understand the

situation in the light of all the information available. If the

President wishes some more satisfactory mode of communication with the

Senate than formal message-writing, his only door of approach is this

Committee on Foreign Relations. The Secretary of State may confer with

its chairman or with its more influential members. But such a mode of

conference is manifestly much less than a voice in the deliberations of

the Senate itself,--much less than meeting that body face to face in

free consultation and equal debate. It is almost as distinctly dealing

with a foreign power as were the negotiations preceding the proposed

treaty. It must predispose the Senate to the temper of an overseer.[44]

Still, treaties are not every-day affairs with us, and exceptional

business may create in Senators an exceptional sense of responsibility,

and dispose them to an unwonted desire to be dispassionate and fair. The

ratification of treaties is a much more serious matter than the

consideration of nominations which every session constitutes so constant

a diversion from the more ponderous business of legislation. It is in

dealing with nominations, however, that there is the most friction in

the contact between the President and his overlord, the Senate. One of

the most noteworthy instances of the improper tactics which may arise

out of these relations was the case of that Mr. Smythe, at the time

Collector for the port of New York, whom, in 1869, President Grant

nominated Minister to the Court of St. Petersburg. The nomination, as

looking towards an appointment to diplomatic service, was referred to

the Committee on Foreign Relations, of which Mr. Charles Sumner was then

chairman. That Committee rejected the nomination; but Smythe had great

influence at his back and was himself skilled beyond most men in the

arts of the lobby. He accordingly succeeded in securing such support in

the Senate as to become a very formidable dog in the manger, not himself

gaining the appointment, but for a time blocking all other appointments

and bringing the business of the Senate altogether to a stand-still,

because he could not.[45] Smythe himself is forgotten; but no observer

of the actual conditions of senatorial power can fail to see the grave

import of the lesson which his case teaches, because his case was by no

means an isolated one. There have been scores of others quite as bad;

and we could have no assurance that there might not in the future be

hundreds more, had not recent movements in the direction of a radical

reform of the civil service begun to make nominations represent, not the

personal preference of the President or the intrigues of other people,

but honest, demonstrated worth, which the Senate is likely to feel

forced to accept without question, when the reform reaches the highest

grades of the service.

In discussing the Senate's connection with the civil service and the

abuses surrounding that connection, one is, therefore, discussing a

phase of congressional government which promises soon to become

obsolete. A consummation devoutly to be wished!--and yet sure when it

comes to rob our politics of a feature very conspicuous and very

characteristic, and in a sense very entertaining. There are not many

things in the proceedings of Congress which the people care to observe

with any diligence, and it must be confessed that scandalous

transactions in the Senate with reference to nominations were among the

few things that the country watched and talked about with keen relish

and interest. This was the personal element which always had spice in

it. When Senator Conkling resigned in a huff because he could not have

whom he liked in the collectorship of the port of New York, the country

rubbed its hands; and when the same imperious politician sought

reelection as a vindication of that unconstitutional control of

nominations which masqueraded as "the courtesy of the Senate," the

country discussed his chances with real zest and chuckled over the whole

affair in genuine glee. It was a big fight worth seeing. It would have

been too bad to miss it.

Before the sentiment of reform had become strong enough to check it,

this abuse of the consultative privileges of the Senate in the matter of

nominations had assumed such proportions as to seem to some the ugliest

deformity in our politics. It looked as if it were becoming at once the

weakest and the most tried and strained joint of our federal system. If

there was to be a break, would it not be there, where was the severest

wear and tear? The evil practices seemed the more ineradicable because

they had arisen in the most natural manner. The President was compelled,

as in the case of treaties, to obtain the sanction of the Senate

without being allowed any chance of consultation with it; and there soon

grew up within the privacy of "executive session" an understanding that

the wishes and opinions of each Senator who was of the President's own

party should have more weight than even the inclinations of the majority

in deciding upon the fitness or desirability of persons proposed to be

appointed to offices in that Senator's State. There was the requisite

privacy to shield from public condemnation the practice arising out of

such an understanding; and the President himself was always quite out of

earshot, hearing only of results, of final votes.

All through the direct dealings of the Senate with the President there

runs this characteristic spirit of irresponsible dictation. The

President may tire the Senate by dogged persistence, but he can never

deal with it upon a ground of real equality. He has no real presence in

the Senate. His power does not extend beyond the most general

suggestion. The Senate always has the last word. No one would desire to

see the President possessed of authority to overrule the decisions of

the Senate, to treat with foreign powers, and appoint thousands of

public officers, without any other than that shadowy responsibility

which he owes to the people that elected him; but it is certainly an

unfortunate feature of our government that Congress governs without

being put into confidential relations with the agents through whom it

governs. It dictates to another branch of the government which was

intended to be coordinate and coequal with it, and over which it has no

legalized authority as of a master, but only the authority of a bigger

stockholder, of a monopolist indeed, of all the energetic prerogatives

of the government. It is as if the Army and Navy Departments were to be

made coordinate and coequal, but the absolute possession and control of

all ammunition and other stores of war given to the one and denied the

other. The executive is taken into partnership with the legislature upon

a salary which may be withheld, and is allowed no voice in the

management of the business. It is simply charged with the

superintendence of the employees.

It was not essentially different in the early days when the President in

person read his message to the Senate and the House together as an

address, and the Senate in a body carried its reply to the executive

mansion. The address was the formal communication of an outsider just as

much as the message of to-day is, and the reply of the Senate was no

less a formal document which it turned aside from its regular business

to prepare. That meeting face to face was not consultation. The English

Parliament does not consult with the sovereign when it assembles to hear

the address from the throne.

It would, doubtless, be considered quite improper to omit from an essay

on the Senate all mention of the Senate's President; and yet there is

very little to be said about the Vice-President of the United States.

His position is one of anomalous insignificance and curious uncertainty.

Apparently he is not, strictly speaking, a part of the legislature,--he

is clearly not a member,--yet neither is he an officer of the executive.

It is one of the remarkable things about him, that it is hard to find in

sketching the government any proper place to discuss him. He comes in

most naturally along with the Senate to which he is tacked; but he does

not come in there for any great consideration. He is simply a judicial

officer set to moderate the proceedings of an assembly whose rules he

has had no voice in framing and can have no voice in changing. His

official stature is not to be compared with that of the Speaker of the

House of Representatives. So long as he is Vice-President, he is

inseparable officially from the Senate; his importance consists in the

fact that he may cease to be Vice-President. His chief dignity, next to

presiding over the Senate, lies in the circumstance that he is awaiting

the death or disability of the President. And the chief embarrassment in

discussing his office is, that in explaining how little there is to be

said about it one has evidently said all there is to say.

V.

THE EXECUTIVE.

Every political constitution in which different bodies share the

supreme power is only enabled to exist by the forbearance of those

among whom this power is distributed.--LORD JOHN RUSSELL.

Simplicity and logical neatness are not the good to be aimed at in

politics, but freedom and order, with props against the pressure of

time, and arbitrary will, and sudden crises.--THEO. WOOLSEY.

Nothing, indeed, will appear more certain, on any tolerable

consideration of this matter, than that _every sort of government

ought to have its administration, correspondent to its

legislature_.--BURKE.

It is at once curious and instructive to note how we have been forced

into practically amending the Constitution without constitutionally

amending it. The legal processes of constitutional change are so slow

and cumbersome that we have been constrained to adopt a serviceable

framework of fictions which enables us easily to preserve the forms

without laboriously obeying the spirit of the Constitution, which will

stretch as the nation grows. It would seem that no impulse short of the

impulse of self-preservation, no force less than the force of

revolution, can nowadays be expected to move the cumbrous machinery of

formal amendment erected in Article Five. That must be a tremendous

movement of opinion which can sway two thirds of each House of Congress

and the people of three fourths of the States. Mr. Bagehot has pointed

out that one consequence of the existence of this next to immovable

machinery "is that the most obvious evils cannot be quickly remedied,"

and "that a clumsy working and a curious technicality mark the politics

of a rough-and-ready people. The practical arguments and legal

disquisitions in America," continues he, "are often like those of

trustees carrying out a misdrawn will,--the sense of what they mean is

good, but it can never be worked out fully or defended simply, so

hampered is it by the old words of an old testament."[46] But much the

greater consequence is that we have resorted, almost unconscious of the

political significance of what we did, to extra-constitutional means of

modifying the federal system where it has proved to be too refined by

balances of divided authority to suit practical uses,--to be out of

square with the main principle of its foundation, namely, government by

the people through their representatives in Congress.

Our method of choosing Presidents is a notable illustration of these

remarks. The difference between the actual and the constitutional modes

is the difference between an ideal non-partisan choice and a choice

made under party whips; the difference between a choice made by

independent, unpledged electors acting apart in the States and a choice

made by a national party convention. Our Executive, no less than the

English and French Executives, is selected by a representative,

deliberative body, though in England and France the election is

controlled by a permanent legislative chamber, and here by a transient

assembly chosen for the purpose and dying with the execution of that

purpose. In England the whole cabinet is practically elective. The

French Chambers formally elect the President, the titular head of the

government, and the President regards only the will of the Assembly in

appointing the Prime Minister, who is the energetic head of the

government, and who, in his turn, surrounds himself with colleagues who

have the confidence of the legislature. And the French have but copied

the English constitution, which makes the executive Ministry the

representatives of the party majority in the Commons. With us, on the

other hand, the President is elected by one representative body, which

has nothing to do with him after his election, and the cabinet must be

approved by another representative body, which has nothing directly to

do with them after their appointment.

Of course I do not mean that the choice of a national convention is

literally election. The convention only nominates a candidate. But that

candidate is the only man for whom the electors of his party can vote;

and so the expression of the preference of the convention of the

dominant party is practically equivalent to election, and might as well

be called election by any one who is writing of broad facts, and not of

fine distinctions. The sovereign in England picks out the man who is to

be Prime Minister, but he must pick where the Commons point; and so it

is simpler, as well as perfectly true, to say that the Commons elect the

Prime Minister. My agent does not select the particular horse I instruct

him to buy. This is just the plain fact,--that the electors are the

agents of the national conventions; and this fact constitutes more than

an amendment of that original plan which would have had all the electors

to be what the first electors actually were, trustworthy men given

_carte blanche_ to vote for whom they pleased, casting their ballots in

thirteen state capitals in the hope that they would happen upon a

majority agreement.

It is worth while, too, to notice another peculiarity of this elective

system. There is a thorough-going minority representation in the

assemblies which govern our elections. Across the ocean a Liberal Prime

Minister is selected by the representatives only of those Liberals who

live in Liberal constituencies; those who live elsewhere in a helpless

minority, in a Conservative district, having of course no voice in the

selection. A Conservative Premier, in like manner, owes nothing to those

Conservatives who were unable to return a member to Parliament. So far

as he is concerned, they count for Liberals, since their representative

in the Commons is a Liberal. The parliaments which select our

Presidents, on the contrary, are, each of them, all of a kind. No state

district can have so few Republicans in it as not to be entitled to a

representative in the national Republican convention equal to that of

the most unanimously Republican district in the country; and a

Republican State is accorded as full a representation in a Democratic

convention as is the most Democratic of her sister States.

We had to pass through several stages of development before the present

system of election by convention was reached. At the first two

presidential elections the electors were left free to vote as their

consciences and the Constitution bade them; for the Constitution bade

them vote as they deemed best, and it did not require much discretion to

vote for General Washington. But when General Washington was out of the

race, and new parties began to dispute the field with the Federalists,

party managers could not help feeling anxious about the votes of the

electors, and some of those named to choose the second President were,

accordingly, pledged beforehand to vote thus and so. After the third

presidential election there began to be congressional oversight of the

matter. From 1800 to 1824 there was an unbroken succession of caucuses

of the Republican members of Congress to direct the action of the party

electors; and nomination by caucus died only when the Republican party

became virtually the only party worth reckoning with,--the only party

for whom nomination was worth while,--and then public opinion began to

cry out against such secret direction of the monopoly. In 1796 the

Federalist congressmen had held an informal caucus to ascertain their

minds as to the approaching election; but after that they refrained from

further experiment in the same direction, and contented themselves with

now and then a sort of convention until they had no party to convene. In

1828 there was a sort of dropping fire of nominations from state

legislatures; and in 1832 sat the first of the great national nominating

conventions.

There was, therefore, one form of congressional government which did not

succeed. It was a very logical mode of party government, that of

nominating the chief magistrate by congressional caucus, but it was not

an open enough way. The French chamber does not select premiers by

shutting up the members of its majority in caucus. Neither does the

House of Commons. Their selection is made by long and open trial, in

debate and in business management, of the men in whom they discover most

tact for leading and most skill for planning, as well as most power for

ruling. They do not say, by vote, give us M. Ferry, give us Mr.

Gladstone; but Her Majesty knows as well as her subjects know that Mr.

Gladstone is the only man whom the Liberal majority will obey; and

President Grevy perceives that M. Ferry is the only man whom the

Chambers can be made to follow. Each has elected himself by winning the

first place in his party. The election has openly progressed for years,

and is quite different from the private vote of a caucus about an

outsider who is to sit, not in Congress, but in the executive mansion;

who is not their man, but the people's.

Nor would nominations by state legislatures answer any rational purpose.

Of course every State had, or thought she had,--which is much the same

thing,--some citizen worthy to become President; and it would have been

confusion worse confounded to have had as many candidates as there might

be States. So universal a competition between "favorite sons" would

have thrown the election into the House of Representatives so regularly

as to replace the nominating caucus by an electing caucus.

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