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.