it parcels out power and confuses responsibility as it does. The main
purpose of the Convention of 1787 seems to have been to accomplish this
grievous mistake. The "literary theory" of checks and balances is
simply a consistent account of what our constitution-makers tried to
do; and those checks and balances have proved mischievous just to the
extent to which they have succeeded in establishing themselves as
realities. It is quite safe to say that were it possible to call
together again the members of that wonderful Convention to view the work
of their hands in the light of the century that has tested it, they
would be the first to admit that the only fruit of dividing power had
been to make it irresponsible. It is just this that has made civil
service reform tarry in this country and that makes it still almost
doubtful of issue. We are in just the case that England was in before
she achieved the reform for which we are striving. The date of the
reform in England is no less significant than the fact. It was not
accomplished until a distinct responsibility of the Ministers of the
Crown to one, and to only one, master had been established beyond all
uncertainty. This is the most striking and suggestive lesson to be
gathered from Mr. Eaton's interesting and valuable history of Civil
Service in Great Britain. The Reform was originated in 1853 by the
Cabinet of Lord Aberdeen. It sprang from the suggestion of the
appointing officers, and was carried through in the face of opposition
from the House of Commons, because, paradoxically enough, the Ministry
had at last come to feel their responsibility to the Commons, or rather
to the nation whom the Commons represented.
Those great improvements which have been made in the public service of
the British empire since the days of Walpole and Newcastle have gone
hand in hand with the perfecting of the system now known as responsible
Cabinet government. That system was slow in coming to perfection. It was
not till long after Walpole's day that unity of responsibility on the
part of the Cabinet--and that singleness of responsibility which made
them look only to the Commons for authority--came to be recognized as an
established constitutional principle. "As a consequence of the earlier
practice of constructing Cabinets of men of different political views,
it followed that the members of such Cabinets did not and could not
regard their responsibility to Parliament as one and indivisible. The
resignation of an important member, or even of the Prime Minister, was
not regarded as necessitating the simultaneous retirement of his
colleagues. Even so late as the fall of Sir Robert Walpole, fifty years
after the Revolution Settlement (and itself the first instance of
resignation in deference to a hostile parliamentary vote) we find the
King requesting Walpole's successor, Pulteney, 'not to distress the
Government by making too many changes in the midst of a session;' and
Pulteney replying that he would be satisfied, provided 'the main forts
of the Government,' or, in other words, the principal offices of state,
were placed in his hands. It was not till the displacement of Lord
North's ministry by that of Lord Rockingham in 1782 that a whole
administration, with the exception of the Lord Chancellor, was changed
by a vote of want of confidence passed in the House of Commons.
Thenceforth, however, the resignation of the head of a Government in
deference to an adverse vote of the popular chamber has invariably been
accompanied by the resignation of all his colleagues."[56] But, even
after the establishment of that precedent, it was still many years
before Cabinets were free to please none but the Commons,--free to
follow their own policies without authoritative suggestion from the
sovereign. Until the death of the fourth George they were made to feel
that they owed a double allegiance: to the Commons and to the King. The
composition of Ministries still depended largely on the royal whim, and
their actions were hampered by the necessity of steering a careful
middle course between the displeasure of parliament and the ill-will of
His Majesty. The present century had run far on towards the reign of
Victoria before they were free to pay undivided obedience to the
representatives of the people. When once they had become responsible to
the Commons alone, however, and almost as soon as they were assured of
their new position as the servants of the nation, they were prompted to
even hazardous efforts for the reform of the civil service. They were
conscious that the entire weight and responsibility of government rested
upon their shoulders, and, as men regardful of the interests of the
party which they represented, jealous for the preservation of their own
fair names, and anxious, consequently, for the promotion of wise rule,
they were naturally and of course the first to advocate a better system
of appointment to that service whose chiefs they were recognized to be.
They were prompt to declare that it was the "duty of the executive to
provide for the efficient and harmonious working of the civil service,"
and that they could not "transfer that duty to any other body far less
competent than themselves without infringing a great and important
constitutional principle, already too often infringed, to the great
detriment of the public service." They therefore determined themselves
to inaugurate the merit-system without waiting for the assent of
parliament, by simply surrendering their power of appointment in the
various departments to a non-partisan examining board, trusting to the
power of public opinion to induce parliament, after the thing had been
done, to vote sufficient money to put the scheme into successful
operation. And they did not reckon without their host. Reluctant as the
members of the House of Commons were to resign that control of the
national patronage which they had from time immemorial been accustomed
to exercise by means of various crooked indirections, and which it had
been their pleasure and their power to possess, they had not the face to
avow their suspicious unwillingness in answer to the honorable call of a
trusted Ministry who were supported in their demand by all that was
honest in public sentiment, and the world was afforded the gratifying
but unwonted spectacle of party leaders sacrificing to the cause of good
government, freely and altogether of their own accord, the "spoils" of
office so long dear to the party and to the assembly which they
represented and served.
In this country the course of the reform was quite the reverse. Neither
the Executive nor Congress began it. The call for it came imperatively
from the people; it was a formulated demand of public opinion made upon
Congress, and it had to be made again and again, each time with more
determined emphasis, before Congress heeded. It worked its way up from
the convictions of the many to the purposes of the few. Amongst the
chief difficulties that have stood in its way, and which still block its
perfect realization, is that peculiarity of structure which I have just
now pointed out as intrinsic in the scheme of divided power which runs
through the Constitution. One of the conditions precedent to any real
and lasting reform of the civil service, in a country whose public
service is moulded by the conditions of self-government, is the drawing
of a sharp line of distinction between those offices which are political
and those which are _non_-political. The strictest rules of business
discipline, of merit-tenure and earned promotion, must rule every office
whose incumbent has naught to do with choosing between policies; but no
rules except the choice of parties can or should make and unmake, reward
or punish, those officers whose privilege it is to fix upon the
political purposes which administration shall be made to serve. These
latter are not many under any form of government. There are said to be
but fifty such at most in the civil service of Great Britain; but these
fifty go in or out as the balance of power shifts from party to party.
In the case of our own civil service it would, I take it, be extremely
hard to determine where the line should be drawn. In all the higher
grades this particular distinction is quite obscured. A doubt exists as
to the Cabinet itself. Are the Secretaries political or non-political
officers? It would seem that they are exclusively neither. They are at
least semi-political. They are, on the one hand, merely the servants of
Congress, and yet, on the other hand, they have enough freedom of
discretion to mar and color, if not to choose, political ends. They can
wreck plans, if they cannot make them. Should they be made permanent
officials because they are mere Secretaries, or should their tenure
depend upon the fortunes of parties because they have many chances to
render party services? And if the one rule or the other is to be applied
to them, to how many, and to which of their chief subordinates, is it to
be extended? If they are not properly or necessarily party men, let them
pass the examinations and run the gauntlet of the usual tests of
efficiency, let errand-boys work up to Secretary-ships; but if not, let
their responsibility to their party be made strict and determinate. That
is the cardinal point of practical civil service reform.
This doubt as to the exact _status_ in the system of the chief ministers
of state is a most striking commentary on the system itself. Its
complete self is logical and simple. But its complete self exists only
in theory. Its real self offers a surprise and presents a mystery at
every change of view. The practical observer who seeks for facts and
actual conditions of organization is often sorely puzzled to come at the
real methods of government. Pitfalls await him on every side. If
constitutional lawyers of strait-laced consciences filled Congress and
officered the departments, every clause of the Constitution would be
accorded a formal obedience, and it would be as easy to know beforehand
just what the government will be like inside to-morrow as it is now to
know what it was like outside yesterday. But neither the knowledge nor
the consciences of politicians keep them very close to the Constitution;
and it is with politicians that we have to deal nowadays in studying the
government. Every government is largely what the men are who constitute
it. If the character or opinions of legislators and administrators
change from time to time, the nature of the government changes with
them; and as both their characters and their opinions do change very
often it is very hard to make a picture of the government which can be
said to have been perfectly faithful yesterday, and can be confidently
expected to be exactly accurate to-morrow. Add to these embarrassments,
which may be called the embarrassments of human nature, other
embarrassments such as our system affords, the embarrassments of subtle
legal distinctions, a fine theoretical plan made in delicate hair-lines,
requirements of law which can hardly be met and can easily and naturally
be evaded or disregarded, and you have in full the conception of the
difficulties which attend a practical exposition of the real facts of
federal administration. It is not impossible to point out what the
Executive was intended to be, what it has sometimes been, or what it
might be; nor is it forbidden the diligent to discover the main
conditions which mould it to the forms of congressional supremacy; but
more than this is not to be expected.
VI.
CONCLUSION.
Political philosophy must analyze political history; it must
distinguish what is due to the excellence of the people, and what
to the excellence of the laws; it must carefully calculate the
exact effect of each part of the constitution, though thus it may
destroy many an idol of the multitude, and detect the secret of
utility where but few imagined it to lie.--BAGEHOT.
Congress always makes what haste it can to legislate. It is the prime
object of its rules to expedite law-making. Its customs are fruits of
its characteristic diligence in enactment. Be the matters small or
great, frivolous or grave, which busy it, its aim is to have laws always
a-making. Its temper is strenuously legislative. That it cannot regulate
all the questions to which its attention is weekly invited is its
misfortune, not its fault; is due to the human limitation of its
faculties, not to any narrow circumscription of its desires. If its
committee machinery is inadequate to the task of bringing to action more
than one out of every hundred of the bills introduced, it is not because
the quick clearance of the docket is not the motive of its organic
life. If legislation, therefore, were the only or the chief object for
which it should live, it would not be possible to withhold admiration
from those clever hurrying rules and those inexorable customs which seek
to facilitate it. Nothing but a doubt as to whether or not Congress
should confine itself to law-making can challenge with a question the
utility of its organization as a facile statute-devising machine.
The political philosopher of these days of self-government has, however,
something more than a doubt with which to gainsay the usefulness of a
sovereign representative body which confines itself to legislation to
the exclusion of all other functions. Buckle declared, indeed, that the
chief use and value of legislation nowadays lay in its opportunity and
power to remedy the mistakes of the legislation of the past; that it was
beneficent only when it carried healing in its wings; that repeal was
more blessed than enactment. And it is certainly true that the greater
part of the labor of legislation consists in carrying the loads
recklessly or bravely shouldered in times gone by, when the animal which
is now a bull was only a calf, and in completing, if they may be
completed, the tasks once undertaken in the shape of unambitious schemes
which at the outset looked innocent enough. Having got his foot into it,
the legislator finds it difficult, if not impossible, to get it out
again. "The modern industrial organization, including banks,
corporations, joint-stock companies, financial devices, national debts,
paper currency, national systems of taxation, is largely the creation of
legislation (not in its historical origin, but in the mode of its
existence and in its authority), and is largely regulated by
legislation. Capital is the breath of life to this organization, and
every day, as the organization becomes more complex and delicate, the
folly of assailing capital or credit becomes greater. At the same time
it is evident that the task of the legislator to embrace in his view the
whole system, to adjust his rules so that the play of the civil
institutions shall not alter the play of the economic forces, requires
more training and more acumen. Furthermore, the greater the complication
and delicacy of the industrial system, the greater the chances for
cupidity when backed by craft, and the task of the legislator to meet
and defeat the attempts of this cupidity is one of constantly increasing
difficulty."[57]
Legislation unquestionably generates legislation. Every statute may be
said to have a long lineage of statutes behind it; and whether that
lineage be honorable or of ill repute is as much a question as to each
individual statute as it can be with regard to the ancestry of each
individual legislator. Every statute in its turn has a numerous progeny,
and only time and opportunity can decide whether its offspring will
bring it honor or shame. Once begin the dance of legislation, and you
must struggle through its mazes as best you can to its breathless
end,--if any end there be.
It is not surprising, therefore, that the enacting, revising, tinkering,
repealing of laws should engross the attention and engage the entire
energy of such a body as Congress. It is, however, easy to see how it
might be better employed; or, at least, how it might add others to this
overshadowing function, to the infinite advantage of the government.
Quite as important as legislation is vigilant oversight of
administration; and even more important than legislation is the
instruction and guidance in political affairs which the people might
receive from a body which kept all national concerns suffused in a broad
daylight of discussion. There is no similar legislature in existence
which is so shut up to the one business of law-making as is our
Congress. As I have said, it in a way superintends administration by the
exercise of semi-judicial powers of investigation, whose limitations and
insufficiency are manifest. But other national legislatures command
administration and verify their name of "parliaments" by talking
official acts into notoriety. Our extra-constitutional party
conventions, short-lived and poor in power as they are, constitute our
only machinery for that sort of control of the executive which consists
in the award of personal rewards and punishments. This is the cardinal
fact which differentiates Congress from the Chamber of Deputies and from
Parliament, and which puts it beyond the reach of those eminently useful
functions whose exercise would so raise it in usefulness and in dignity.
An effective representative body, gifted with the power to rule, ought,
it would seem, not only to speak the will of the nation, which Congress
does, but also to lead it to its conclusions, to utter the voice of its
opinions, and to serve as its eyes in superintending all matters of
government,--which Congress does not do. The discussions which take
place in Congress are aimed at random. They now and again strike rather
sharply the tender spots in this, that, or the other measure; but, as I
have said, no two measures consciously join in purpose or agree in
character, and so debate must wander as widely as the subjects of
debate. Since there is little coherency about the legislation agreed
upon, there can be little coherency about the debates. There is no one
policy to be attacked or defended, but only a score or two of separate
bills. To attend to such discussions is uninteresting; to be instructed
by them is impossible. There is some scandal and discomfort, but
infinite advantage, in having every affair of administration subjected
to the test of constant examination on the part of the assembly which
represents the nation. The chief use of such inquisition is, not the
direction of those affairs in a way with which the country will be
satisfied (though that itself is of course all-important), but the
enlightenment of the people, which is always its sure consequence. Very
few men are unequal to a danger which they see and understand; all men
quail before a threatening which is dark and unintelligible, and suspect
what is done behind a screen. If the people could have, through
Congress, daily knowledge of all the more important transactions of the
governmental offices, an insight into all that now seems withheld and
private, their confidence in the executive, now so often shaken, would,
I think, be very soon established. Because dishonesty can lurk under the
privacies now vouchsafed our administrative agents, much that is
upright and pure suffers unjust suspicion. Discoveries of guilt in a
bureau cloud with doubts the trustworthiness of a department. As nothing
is open enough for the quick and easy detection of peculation or fraud,
so nothing is open enough for the due vindication and acknowledgment of
honesty. The isolation and privacy which shield the one from discovery
cheat the other of reward.
Inquisitiveness is never so forward, enterprising, and irrepressible as
in a popular assembly which is given leave to ask questions and is
afforded ready and abundant means of getting its questions answered. No
cross-examination is more searching than that to which a minister of the
Crown is subjected by the all-curious Commons. "Sir Robert Peel once
asked to have a number of questions carefully written down which they
asked him one day in succession in the House of Commons. They seemed a
list of everything that could occur in the British empire or to the
brain of a member of parliament."[58] If one considered only the wear
and tear upon ministers of state, which the plague of constant
interrogation must inflict, he could wish that their lives, if useful,
might be spared this blight of unending explanation; but no one can
overestimate the immense advantage of a facility so unlimited for
knowing all that is going on in the places where authority lives. The
conscience of every member of the representative body is at the service
of the nation. All that he feels bound to know he can find out; and what
he finds out goes to the ears of the country. The question is his, the
answer the nation's. And the inquisitiveness of such bodies as Congress
is the best conceivable source of information. Congress is the only body
which has the proper motive for inquiry, and it is the only body which
has the power to act effectively upon the knowledge which its inquiries
secure. The Press is merely curious or merely partisan. The people are
scattered and unorganized. But Congress is, as it were, the corporate
people, the mouthpiece of its will. It is a sovereign delegation which
could ask questions with dignity, because with authority and with power
to act.
Congress is fast becoming the governing body of the nation, and yet the
only power which it possesses in perfection is the power which is but a
part of government, the power of legislation. Legislation is but the oil
of government. It is that which lubricates its channels and speeds its
wheels; that which lessens the friction and so eases the movement. Or
perhaps I shall be admitted to have hit upon a closer and apter analogy
if I say that legislation is like a foreman set over the forces of
government. It issues the orders which others obey. It directs, it
admonishes, but it does not do the actual heavy work of governing. A
good foreman does, it is true, himself take a hand in the work which he
guides; and so I suppose our legislation must be likened to a poor
foreman, because it stands altogether apart from that work which it is
set to see well done. Members of Congress ought not to be censured too
severely, however, when they fail to check evil courses on the part of
the executive. They have been denied the means of doing so promptly and
with effect. Whatever intention may have controlled the compromises of
constitution-making in 1787, their result was to give us, not government
by discussion, which is the only tolerable sort of government for a
people which tries to do its own governing, but only _legislation_ by
discussion, which is no more than a small part of government by
discussion. What is quite as indispensable as the debate of problems of
legislation is the debate of all matters of administration. It is even
more important to know how the house is being built than to know how the
plans of the architect were conceived and how his specifications were
calculated. It is better to have skillful work--stout walls, reliable
arches, unbending rafters, and windows sure to "expel the winter's
flaw"--than a drawing on paper which is the admiration of all the
practical artists in the country. The discipline of an army depends
quite as much upon the temper of the troops as upon the orders of the
day.
It is the proper duty of a representative body to look diligently into
every affair of government and to talk much about what it sees. It is
meant to be the eyes and the voice, and to embody the wisdom and will of
its constituents. Unless Congress have and use every means of
acquainting itself with the acts and the disposition of the
administrative agents of the government, the country must be helpless to
learn how it is being served; and unless Congress both scrutinize these
things and sift them by every form of discussion, the country must
remain in embarrassing, crippling ignorance of the very affairs which it
is most important that it should understand and direct. The informing
function of Congress should be preferred even to its legislative
function. The argument is not only that discussed and interrogated
administration is the only pure and efficient administration, but, more
than that, that the only really self-governing people is that people
which discusses and interrogates its administration. The talk on the
part of Congress which we sometimes justly condemn is the profitless
squabble of words over frivolous bills or selfish party issues. It would
be hard to conceive of there being too much talk about the practical
concerns and processes of government. Such talk it is which, when
earnestly and purposefully conducted, clears the public mind and shapes
the demands of public opinion.