easily be too diligent in legislation. It often overdoes that business.
It already sends to its Committees bills too many by the thousand to be
given even a hasty thought; but its immense committee facilities and the
absence of all other duties but that of legislation make it omnivorous
in its appetite for new subjects for consideration. It is greedy to have
a taste of every possible dish that may be put upon its table, as an
"extra" to the constitutional bill of fare. This disposition on its part
is the more notable because there is certainly less need for it to hurry
and overwork itself at law-making than exists in the case of most other
great national legislatures. It is not state and national legislature
combined, as are the Commons of England and the Chambers of France. Like
the Reichstag of our cousin Germans, it is restricted to subjects of
imperial scope. Its thoughts are meant to be kept for national
interests. Its time is spared the waste of attention to local affairs.
It is even forbidden the vast domain of the laws of property, of
commercial dealing, and of ordinary crime. And even in the matter of
caring for national interests the way has from the first been made plain
and easy for it. There are no clogging feudal institutions to embarrass
it. There is no long-continued practice of legal or of royal tyranny for
it to cure,--no clearing away of old debris of any sort to delay it in
its exercise of a common-sense dominion over a thoroughly modern and
progressive nation. It is easy to believe that its legislative purposes
might be most fortunately clarified and simplified, were it to square
them by a conscientious attention to the paramount and controlling duty
of understanding, discussing, and directing administration.
If the people's authorized representatives do not take upon themselves
this duty, and by identifying themselves with the actual work of
government stand between it and irresponsible, half-informed criticism,
to what harassments is the executive not exposed? Led and checked by
Congress, the prurient and fearless, because anonymous, animadversions
of the Press, now so often premature and inconsiderate, might be
disciplined into serviceable capacity to interpret and judge. Its
energy and sagacity might be tempered by discretion, and strengthened by
knowledge. One of our chief constitutional difficulties is that, in
opportunities for informing and guiding public opinion, the freedom of
the Press is greater than the freedom of Congress. It is as if
newspapers, instead of the board of directors, were the sources of
information for the stockholders of a corporation. We look into
correspondents' letters instead of into the Congressional Record to find
out what is a-doing and a-planning in the departments. Congress is
altogether excluded from the arrangement by which the Press declares
what the executive is, and conventions of the national parties decide
what the executive shall be. Editors are self-constituted our guides,
and caucus delegates our government directors.
Since all this curious scattering of functions and contrivance of frail,
extra-constitutional machinery of government is the result of that
entire separation of the legislative and executive branches of the
system which is with us so characteristically and essentially
constitutional, it is exceedingly interesting to inquire and important
to understand how that separation came to be insisted upon in the making
of the Constitution. Alexander Hamilton has in our own times, as well
as before, been "severely reproached with having said that the British
government was the 'best model in existence.' In 1787 this was a mere
truism. However much the men of that day differed they were all agreed
in despising and distrusting _a priori_ constitutions and ideally
perfect governments, fresh from the brains of visionary enthusiasts,
such as sprang up rankly in the soil of the French revolution. The
Convention of 1787 was composed of very able men of the English-speaking
race. They took the system of government with which they had been
familiar, improved it, adapted it to the circumstances with which they
had to deal, and put it into successful operation. Hamilton's plan,
then, like the others, was on the British model, and it did not differ
essentially in details from that finally adopted."[59] It is needful,
however, to remember in this connection what has already been alluded
to, that when that convention was copying the English Constitution, that
Constitution was in a stage of transition, and had by no means fully
developed the features which are now recognized as most characteristic
of it. Mr. Lodge is quite right in saying that the Convention, in
adapting, improved upon the English Constitution with which its members
were familiar,--the Constitution of George III. and Lord North, the
Constitution which had failed to crush Bute. It could hardly be said
with equal confidence, however, that our system as then made was an
improvement upon that scheme of responsible cabinet government which
challenges the admiration of the world to-day, though it was quite
plainly a marked advance upon a parliament of royal nominees and
pensionaries and a secret cabinet of "king's friends." The English
constitution of that day had a great many features which did not invite
republican imitation. It was suspected, if not known, that the ministers
who sat in parliament were little more than the tools of a ministry of
royal favorites who were kept out of sight behind the strictest
confidences of the court. It was notorious that the subservient
parliaments of the day represented the estates and the money of the
peers and the influence of the King rather than the intelligence and
purpose of the nation. The whole "form and pressure" of the time
illustrated only too forcibly Lord Bute's sinister suggestion, that "the
forms of a free and the ends of an arbitrary government are things not
altogether incompatible." It was, therefore, perfectly natural that the
warnings to be so easily drawn from the sight of a despotic monarch
binding the usages and privileges of self-government to the service of
his own intemperate purposes should be given grave heed by Americans,
who were the very persons who had suffered most from the existing
abuses. It was something more than natural that the Convention of 1787
should desire to erect a Congress which would not be subservient and an
executive which could not be despotic. And it was equally to have been
expected that they should regard an absolute separation of these two
great branches of the system as the only effectual means for the
accomplishment of that much desired end. It was impossible that they
could believe that executive and legislature could be brought into close
relations of cooperation and mutual confidence without being tempted,
nay, even bidden, to collude. How could either maintain its independence
of action unless each were to have the guaranty of the Constitution that
its own domain should be absolutely safe from invasion, its own
prerogatives absolutely free from challenge? "They shrank from placing
sovereign power anywhere. They feared that it would generate tyranny;
George III. had been a tyrant to them, and come what might they would
not make a George III."[60] They would conquer, by dividing, the power
they so much feared to see in any single hand.
"The English Constitution, in a word," says our most astute English
critic, "is framed on the principle of choosing a single sovereign
authority, and making it good; the American, upon the principle of
having many sovereign authorities, and hoping that their multitude may
atone for their inferiority. The Americans now extol their institutions,
and so defraud themselves of their due praise. But if they had not a
genius for politics, if they had not a moderation in action singularly
curious where superficial speech is so violent, if they had not a regard
for law, such as no great people have ever evinced, and infinitely
surpassing ours, the multiplicity of authorities in the American
Constitution would long ago have brought it to a bad end. Sensible
shareholders, I have heard a shrewd attorney say, can work _any_ deed of
settlement; and so the men of Massachusetts could, I believe, work _any_
constitution."[61] It is not necessary to assent to Mr. Bagehot's
strictures; but it is not possible to deny the clear-sighted justice of
this criticism. In order to be fair to the memory of our great
constitution-makers, however, it is necessary to remember that when they
sat in convention in Philadelphia the English Constitution, which they
copied, was not the simple system which was before Mr. Bagehot's eyes
when he wrote. Its single sovereign authority was not then a
twice-reformed House of Commons truly representative of the nation and
readily obeyed by a responsible Ministry. The sovereignty was at see-saw
between the throne and the parliament,--and the throne-end of the beam
was generally uppermost. Our device of separated, individualized powers
was very much better than a nominal sovereignty of the Commons which was
suffered to be overridden by force, fraud, or craft, by the real
sovereignty of the King. The English Constitution was at that time in
reality much worse than our own; and, if it is now superior, it is so
because its growth has not been hindered or destroyed by the too tight
ligaments of a written fundamental law.
The natural, the inevitable tendency of every system of self-government
like our own and the British is to exalt the representative body, the
people's parliament, to a position of absolute supremacy. That tendency
has, I think, been quite as marked in our own constitutional history as
in that of any other country, though its power has been to some extent
neutralized, and its progress in great part stayed, by those denials of
that supremacy which we respect because they are written in our law. The
political law written in our hearts is here at variance with that which
the Constitution sought to establish. A written constitution may and
often will be violated in both letter and spirit by a people of
energetic political talents and a keen instinct for progressive
practical development; but so long as they adhere to the forms of such a
constitution, so long as the machinery of government supplied by it is
the only machinery which the legal and moral sense of such a people
permits it to use, its political development must be in many directions
narrowly restricted because of an insuperable lack of open or adequate
channels. Our Constitution, like every other constitution which puts the
authority to make laws and the duty of controlling the public
expenditure into the hands of a popular assembly, practically sets that
assembly to rule the affairs of the nation as supreme overlord. But, by
separating it entirely from its executive agencies, it deprives it of
the opportunity and means for making its authority complete and
convenient. The constitutional machinery is left of such a pattern that
other forces less than that of Congress may cross and compete with
Congress, though they are too small to overcome or long offset it; and
the result is simply an unpleasant, wearing friction which, with other
adjustments, more felicitous and equally safe, might readily be avoided.
Congress, consequently, is still lingering and chafing under just such
embarrassments as made the English Commons a nuisance both to
themselves and to everybody else immediately after the Revolution
Settlement had given them their first sure promise of supremacy. The
parallel is startlingly exact. "In outer seeming the Revolution of 1688
had only transferred the sovereignty over England from James to William
and Mary. In actual fact it had given a powerful and decisive impulse to
the great constitutional progress which was transferring the sovereignty
from the King to the House of Commons. From the moment when its sole
right to tax the nation was established by the Bill of Rights, and when
its own resolve settled the practice of granting none but annual
supplies to the Crown, the House of Commons became the supreme power in
the State.... But though the constitutional change was complete, the
machinery of government was far from having adapted itself to the new
conditions of political life which such a change brought about. However
powerful the will of the Commons might be, it had no means of bringing
its will directly to bear on the control of public affairs. The
ministers who had charge of them were not its servants but the servants
of the Crown; it was from the King that they looked for direction, and
to the King that they held themselves responsible. By impeachment or
more indirect means the Commons could force a king to remove a minister
who contradicted their will; but they had no constitutional power to
replace the fallen statesman by a minister who would carry out their
will.
"The result was the growth of a temper in the Lower House which drove
William and his ministers to despair. It became as corrupt, as jealous
of power, as fickle in its resolves and factious in its spirit as bodies
always become whose consciousness of the possession of power is
untempered by a corresponding consciousness of the practical
difficulties or the moral responsibilities of the power which they
possess. It grumbled ... and it blamed the Crown and its ministers for
all at which it grumbled. But it was hard to find out what policy or
measures it would have preferred. Its mood changed, as William bitterly
complained, with every hour.... The Houses were in fact without the
guidance of recognized leaders, without adequate information, and
destitute of that organization out of which alone a definite policy can
come."[62]
The cure for this state of things which Sunderland had the sagacity to
suggest, and William the wisdom to apply, was the mediation between King
and Commons of a cabinet representative of the majority of the popular
chamber,--a first but long and decisive step towards responsible
cabinet government. Whether a similar remedy would be possible or
desirable in our own case it is altogether aside from my present purpose
to inquire. I am pointing out facts,--diagnosing, not prescribing
remedies. My only point just now is, that no one can help being struck
by the closeness of the likeness between the incipient distempers of the
first parliaments of William and Mary and the developed disorders now so
plainly discernible in the constitution of Congress. Though honest and
diligent, it is meddlesome and inefficient; and it is meddlesome and
inefficient for exactly the same reasons that made it natural that the
post-Revolutionary parliaments should exhibit like clumsiness and like
temper: namely, because it is "without the guidance of recognized
leaders, without adequate information, and destitute of that
organization out of which alone a definite policy can come."
The dangers of this serious imperfection in our governmental machinery
have not been clearly demonstrated in our experience hitherto; but now
their delayed fulfillment seems to be close at hand. The plain tendency
is towards a centralization of all the greater powers of government in
the hands of the federal authorities, and towards the practical
confirmation of those prerogatives of supreme overlordship which
Congress has been gradually arrogating to itself. The central
government is constantly becoming stronger and more active, and Congress
is establishing itself as the one sovereign authority in that
government. In constitutional theory and in the broader features of past
practice, ours has been what Mr. Bagehot has called a "composite"
government. Besides state and federal authorities to dispute as to
sovereignty, there have been within the federal system itself rival and
irreconcilable powers. But gradually the strong are overcoming the weak.
If the signs of the times are to be credited, we are fast approaching an
adjustment of sovereignty quite as "simple" as need be. Congress is not
only to retain the authority it already possesses, but is to be brought
again and again face to face with still greater demands upon its energy,
its wisdom, and its conscience, is to have ever-widening duties and
responsibilities thrust upon it, without being granted a moment's
opportunity to look back from the plough to which it has set its hands.
The sphere and influence of national administration and national
legislation are widening rapidly. Our populations are growing at such a
rate that one's reckoning staggers at counting the possible millions
that may have a home and a work on this continent ere fifty more years
shall have filled their short span. The East will not always be the
centre of national life. The South is fast accumulating wealth, and will
faster recover influence. The West has already achieved a greatness
which no man can gainsay, and has in store a power of future growth
which no man can estimate. Whether these sections are to be harmonious
or dissentient depends almost entirely upon the methods and policy of
the federal government. If that government be not careful to keep within
its own proper sphere and prudent to square its policy by rules of
national welfare, sectional lines must and will be known; citizens of
one part of the country may look with jealousy and even with hatred upon
their fellow-citizens of another part; and faction must tear and
dissension distract a country which Providence would bless, but which
man may curse. The government of a country so vast and various must be
strong, prompt, wieldy, and efficient. Its strength must consist in the
certainty and uniformity of its purposes, in its accord with national
sentiment, in its unhesitating action, and in its honest aims. It must
be steadied and approved by open administration diligently obedient to
the more permanent judgments of public opinion; and its only active
agency, its representative chambers, must be equipped with something
besides abundant powers of legislation.
As at present constituted, the federal government lacks strength because
its powers are divided, lacks promptness because its authorities are
multiplied, lacks wieldiness because its processes are roundabout, lacks
efficiency because its responsibility is indistinct and its action
without competent direction. It is a government in which every officer
may talk about every other officer's duty without having to render
strict account for not doing his own, and in which the masters are held
in check and offered contradiction by the servants. Mr. Lowell has
called it "government by declamation." Talk is not sobered by any
necessity imposed upon those who utter it to suit their actions to their
words. There is no day of reckoning for words spoken. The speakers of a
congressional majority may, without risk of incurring ridicule or
discredit, condemn what their own Committees are doing; and the
spokesmen of a minority may urge what contrary courses they please with
a well-grounded assurance that what they say will be forgotten before
they can be called upon to put it into practice. Nobody stands sponsor
for the policy of the government. A dozen men originate it; a dozen
compromises twist and alter it; a dozen offices whose names are scarcely
known outside of Washington put it into execution.
This is the defect to which, it will be observed, I am constantly
recurring; to which I recur again and again because every examination of
the system, at whatsoever point begun, leads inevitably to it as to a
central secret. It is the defect which interprets all the rest, because
it is their common product. It is exemplified in the extraordinary fact
that the utterances of the Press have greater weight and are accorded
greater credit, though the Press speaks entirely without authority, than
the utterances of Congress, though Congress possesses all authority. The
gossip of the street is listened to rather than the words of the
law-makers. The editor directs public opinion, the congressman obeys it.
When a presidential election is at hand, indeed, the words of the
political orator gain temporary heed. He is recognized as an authority
in the arena, as a professional critic competent to discuss the good and
bad points, and to forecast the fortunes of the contestants. There is
something definite in hand, and he is known to have studied all its
bearings. He is one of the managers, or is thought to be well acquainted
with the management. He speaks "from the card." But let him talk, not
about candidates, but about measures or about the policy of the
government, and his observations sink at once to the level of a mere
individual expression of opinion, to which his political occupations
seem to add very little weight. It is universally recognized that he
speaks without authority, about things which his vote may help to
settle, but about which several hundred other men have votes quite as
influential as his own. Legislation is not a thing to be known
beforehand. It depends upon the conclusions of sundry Standing
Committees. It is an aggregate, not a simple, production. It is
impossible to tell how many persons' opinions and influences have
entered into its composition. It is even impracticable to determine from
this year's law-making what next year's will be like.
Speaking, therefore, without authority, the political orator speaks to
little purpose when he speaks about legislation. The papers do not
report him carefully; and their editorials seldom take any color from
his arguments. The Press, being anonymous and representing a large force
of inquisitive news-hunters, is much more powerful than he chiefly
because it _is_ impersonal and seems to represent a wider and more
thorough range of information. At the worst, it can easily compete with
any ordinary individual. Its individual opinion is quite sure to be
esteemed as worthy of attention as any other individual opinion. And,
besides, it is almost everywhere strong enough to deny currency to the
speeches of individuals whom it does not care to report. It goes to its
audience; the orator must depend upon his audience coming to him. It can
be heard at every fireside; the orator can be heard only on the platform
or the hustings. There is no imperative demand on the part of the
reading public in this country that the newspapers should report
political speeches in full. On the contrary, most readers would be
disgusted at finding their favorite columns so filled up. By giving even
a notice of more than an item's length to such a speech, an editor runs
the risk of being denounced as dull. And I believe that the position of
the American Press is in this regard quite singular. The English
newspapers are so far from being thus independent and self-sufficient
powers,--a law unto themselves,--in the politics of the empire that they
are constrained to do homage to the political orator whether they will
or no. Conservative editors must spread before their readers _verbatim_
reports not only of the speeches of the leaders of their own party, but
also of the principal speeches of the leading Liberal orators; and
Liberal journals have no choice but to print every syllable of the more
important public utterances of the Conservative leaders. The nation
insists upon knowing what its public men have to say, even when it is
not so well said as the newspapers which report them could have said
it.