Front matter (continued 4)

Some Senators are, indeed, seen to be of larger mental stature and built of stauncher moral stuff than their fellow-members, and it is not uncommon for individual members to become conspicuous figures in every great event in the Senate's deliberations. The public now and again picks out here and there a Senator who seems to act and to speak with true instinct of statesmanship and who unmistakably merits the confidence of colleagues and of people. But such a man, however eminent, is never more than a Senator. No one is the Senator. No one may speak for his party as well as for himself; no one exercises the special trust of acknowledged leadership. The Senate is merely a body of individual critics, representing most of the not very diversified types of a society substantially homogeneous; and the weight of every criticism uttered in its chamber depends upon the weight of the critic who utters it, deriving little if any addition to its specific gravity from connection with the designs of a purposeful party organization. I cannot insist too much upon this defect of congressional government, because it is evidently radical. Leadership with authority over a great ruling party is a prize to attract great competitors, and is in a free government the only prize that will attract great competitors. Its attractiveness is abundantly illustrated in the operations of the British system. In England, where members of the Cabinet, which is merely a Committee of the House of Commons, are the rulers of the empire, a career in the Commons is eagerly sought by men of the rarest gifts, because a career there is the best road, is indeed the only road, to membership of the great Committee. A part in the life of Congress, on the contrary, though the best career opened to men of ambition by our system, has no prize at its end greater than membership of some one of numerous Committees, between which there is some choice, to be sure, because some of them have great and others only small jurisdictions, but none of which has the distinction of supremacy in policy or of recognized authority to do more than suggest. And posts upon such Committees are the highest posts in the Senate just as they are in the House pf Representatives.

In an address delivered on a recent occasion,[40] in the capacity of President of the Birmingham and Midland Institute, Mr. Froude, having in mind, of course, British forms of government, but looking mediately at all popular systems, said very pointedly that "In party government party life becomes like a court of justice. The people are the judges, the politicians the advocates, who," he adds caustically rather than justly, "only occasionally and by accident speak their real opinions." "The truly great political orators," he exclaims, "are the ornaments of mankind, the most finished examples of noble feeling and perfect expression, but they rarely understand the circumstances of their time. They feel passionately, but for that reason they cannot judge calmly." If we are to accept these judgments from Mr. Froude in the face of his reputation for thinking somewhat too independently of evidence, we should congratulate ourselves that we have in this country hit upon a system which, now that it has reached its perfection, has left little or no place for politicians to make false declarations or for the orator to coin fine expression for views which are only feelings, except outside of the legislative halls of the nation, upon the platform, where talk is all that is expected. It would seem as if the seer had a much more favorable opportunity in the committee-room than the orator can have, and with us it is the committee-room which governs the legislative chamber. The speech-making in the latter neither makes nor often seriously affects the plans framed in the former; because the plans are made before the speeches are uttered. This is self-evident of the debates of the House; but even the speeches made in the Senate, free, full, and earnest as they seem, are made, so to speak, after the fact—not to determine the actions but to air the opinions of the body.

Still, it must be regarded as no inconsiderable addition to the usefulness of the Senate that it enjoys a much greater freedom of discussion than the House can allow itself. It permits itself a good deal of talk in public about what it is doing,[41] and it commonly talks a great deal of sense. It is small enough to make it safe to allow individual freedom to its members, and to have, at the same time, such order and sense of proportion in its proceedings as is characteristic of small bodies, like boards of college trustees or of commercial directors, who feel that their main object is business, not speech-making, and so say all that is necessary without being tedious, and do what they are called upon to do without need of driving themselves with hurrying rules. Such rules, they seem to feel, are meant only for big assemblies which have no power of self-control. Of course the Senate talks more than an average board of directors would, because the corporations which it represents are States, made up, politically speaking, of numerous popular constituencies to which Senators, no less than Representatives, must make speeches of a sort which, considering their fellow-members alone, would be unnecessary if not impertinent and out of taste, in the Senate chamber, but which will sound best in the ears of the people, for whose ears they are intended, if delivered there. Speeches which, so to say, run in the name of the Senate's business will generally be more effectual for campaign uses at home than any speech could be which should run in the name of the proper topics of the stump. There is an air of doing one's duty by one's party in speaking party platitudes or uttering party defiances on the floor of the Senate or of the House. Of course, however, there is less temptation to such speech-making in the Senate than in the House. The House knows the terrible possibilities of this sort in store for it, were it to give perfect freedom of debate to its three hundred and twenty-five members, in these days when frequent mails and tireless tongues of telegraphy bring every constituency within easy earshot of Washington; and it therefore seeks to confine what little discussion it indulges in to the few committee-men specially in charge of the business of each moment. But the Senate is small and of settled habits, and has no such bugbear to trouble it. It can afford to do without any clôture or previous question. No Senator is likely to want to speak on all the topics of the session, or to prepare more speeches than can conveniently be spoken before adjournment is imperatively at hand. The House can be counted upon to waste enough time to leave some leisure to the upper chamber.

And there can be no question that the debates which take place every session in the Senate are of a very high order of excellence. The average of the ability displayed in its discussions not infrequently rises quite to the level of those controversies of the past which we are wont to call great because they furnished occasion to men like Webster and Calhoun and Clay, whom we cannot now quite match in mastery of knowledge and of eloquence. If the debates of the present are smothered amongst the innumerable folios of the "Record," it is not because they do not contain utterances worthy to be heeded and to gain currency, but because they do not deal with questions of passion or of national existence, such as ran through all the earlier debates, or because our system so obscures and complicates party rule in legislation as to leave nothing very interesting to the public eye dependent upon the discussions of either House or Senate. What that is picturesque, or what that is vital in the esteem of the partisan, is there in these wordy contests about contemplated legislation? How does anybody know that either party's prospects will be much affected by what is said when Senators are debating, or, for that matter, by what is voted after their longest flights of controversy?

Still, though not much heeded, the debates of the Senate are of great value in scrutinizing and sifting matters which come up from the House. The Senate's opportunities for open and unrestricted discussion and its simple, comparatively unencumbered forms of procedure, unquestionably enable it to fulfill with very considerable success its high functions as a chamber of revision.

When this has been claimed and admitted, however, it still remains to be considered whether two chambers of equal power strengthen by steadying, or weaken by complicating, a system of representative government like our own. The utility and excellence of a bicameral system has never, I believe, been seriously questioned in this country; but M. Turgot smiles with something like contempt at our affectation in copying the House of Lords without having any lords to use for the purpose; and in our own day Mr. Bagehot, who is much more competent to speak on this head than was M. Turgot, has avowed very grave doubts as to the practical advantage of a two-headed legislature—each head having its own independent will. He finds much to recommend the House of Lords in the fact that it is not, as theory would have it, coördinate and coequal with the House of Commons, but merely "a revising and suspending House," altering what the Commons have done hastily or carelessly, and sometimes rejecting "Bills on which the House of Commons is not yet thoroughly in earnest,—upon which the nation is not yet determined."[42] He points out the fact that the House of Lords has never in modern times been, as a House, coequal in power with the House of Commons. Before the Reform Bill of 1832 the peers were all-powerful in legislation; not, however, because they were members of the House of Lords, but because they nominated most of the members of the House of Commons. Since that disturbing reform they have been thrown back upon the functions in which they never were strong, the functions of a deliberative assembly. These are the facts which seem to Mr. Bagehot to have made it possible for legislation to make easy and satisfactory progress under a system whose theory provided for fatal dead-locks between the two branches of the supreme legislature.

In his view "the evil of two coequal Houses of distinct natures is obvious." "Most constitutions," he declares, "have committed this blunder. The two most remarkable Republican institutions in the world commit it. In both the American and Swiss Constitutions the Upper House has as much authority as the second; it could produce the maximum of impediment—a dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the Chamber. In both these constitutions this dangerous division is defended by a peculiar doctrine.... It is said that there must be in a federal government some institution, some authority, some body possessing a veto in which the separate States comprising the Confederation are all equal. I confess this doctrine has to me no self-evidence, and it is assumed, but not proved. The State of Delaware is not equal in power or influence to the State of New York, and you cannot make it so by giving it an equal veto in an Upper Chamber. The history of such an institution is indeed most natural. A little State will like, and must like, to see some token, some memorial mark, of its old independence preserved in the Constitution by which that independence is extinguished. But it is one thing for an institution to be natural, and another for it to be expedient. If indeed it be that a federal government compels the erection of an Upper Chamber of conclusive and coördinate authority, it is one more in addition to the many other inherent defects of that kind of government. It may be necessary to have the blemish, but it is a blemish just as much."

It would be in the highest degree indiscreet to differ lightly with any conclusion to which Mr. Bagehot may have come in viewing that field of critical exposition in which he was supreme, the philosophical analysis, namely, of the English Constitution; and it must be apparent to any one who reads the passage I have just now quoted that his eye sees very keenly and truly even when he looks across sea at institutions which were repugnant to his own way of thinking. But it is safe to say that he did not see all in this instance, and that he was consequently in error concerning the true nature of our federal legislative system. His error, nevertheless, appears, not when we look only at the facts which he held up to view, but when we look at other facts which he ignored. It is true that the existence of two coequal Houses is an evil when those two Houses are of distinct natures, as was the case under the Victorian Constitution to which Mr. Bagehot refers by way of illustrative example. Under that Constitution all legislative business was sometimes to be seen quite suspended because of irreconcilable differences of opinion between the Upper House, which represented the rich wool-growers of the colony, and the Lower Assembly, which represented the lesser wool-growers, perhaps, and the people who were not wool-growers at all. The Upper House, in other words, was a class chamber, and thus stood quite apart from anything like the principle embodied in our own Senate, which is no more a class chamber than is the House of Representatives.

The prerogatives of the Senate do, indeed, render our legislative system more complex, and for that reason possibly more cumbersome, than the British; for our Senate can do more than the House of Lords. It can not only question and stay the judgment of the Commons, but may always with perfect safety act upon its own judgment and gainsay the more popular chamber to the end of the longest chapter of the bitterest controversy. It is quite as free to act as is any other branch of the government, and quite as sure to have its acts regarded. But there is safety and ease in the fact that the Senate never wishes to carry its resistance to the House to that point at which resistance must stay all progress in legislation; because there is really a "latent unity" between the Senate and the House which makes continued antagonism between them next to impossible—certainly in the highest degree improbable. The Senate and the House are of different origins, but virtually of the same nature. The Senate is less democratic than the House, and consequently less sensible to transient phases of public opinion; but it is no less sensible than the House of its ultimate accountability to the people, and is consequently quite as obedient to the more permanent and imperative judgments of the public mind. It cannot be carried so quickly by every new sentiment, but it can be carried quickly enough. There is a main chance of election time for it as well as for the House to think about.

By the mode of its election and the greater length of the term by which its seats are held, the Senate is almost altogether removed from that temptation to servile obedience to the whims of popular constituencies to which the House is constantly subject, without as much courage as the Senate has to guard its virtue. But the men who compose the Senate are of the same sort as the members of the House of Representatives, and represent quite as various classes. Nowadays many of the Senators are, indeed, very rich men, and there has come to be a great deal of talk about their vast wealth and the supposed aristocratic tendencies which it is imagined to breed. But even the rich Senators cannot be said to be representatives of a class, as if they were all opulent wool-growers or great land-owners. Their wealth is in all sorts of stocks, in all sorts of machinery, in all sorts of buildings, in possessions of all the sorts possible in a land of bustling commerce and money-making industries. They have made their money in a hundred different ways, or have inherited it from fathers who amassed it in enterprises too numerous to imagine; and they have it invested here, there, and everywhere, in this, that, and everything. Their wealth represents no class interests, but all the interests of the commercial world. It represents the majority of the nation, in a word; and so they can probably be trusted not to neglect one set of interests for another; not to despoil the trader for the sake of the farmer, or the farmer for the sake of the wool-grower, or the wool-grower for the behoof of the herder of short-horned cattle. At least the Senate is quite as trustworthy in this regard as is the House of Representatives.

Inasmuch as the Senate is thus separated from class interests and quite as representative of the nation at large as is the House of Representatives, the fact that it is less quickly sensitive to the hasty or impulsive movements of public opinion constitutes its value as a check, a steadying weight, in our very democratic system. Our English cousins have worked out for themselves a wonderfully perfect scheme of government by gradually making their monarchy unmonarchical. They have made of it a republic steadied by a reverenced aristocracy and pivoted upon a stable throne. And just as the English system is a limited monarchy because of Commons and Cabinet, ours may be said to be a limited democracy because of the Senate. This has in the trial of the scheme proved the chief value of that upper chamber which was instituted principally as an earnest of the abiding equality and sovereignty of the States. At any rate, this is the most conspicuous, and will prove to be the most lasting, use of the Senate in our system. It is valuable in our democracy in proportion as it is undemocratic. I think that a philosophical analysis of any successful and beneficent system of self-government will disclose the fact that its only effectual checks consist in a mixture of elements, in a combination of seemingly contradictory political principles; that the British government is perfect in proportion as it is unmonarchical, and ours safe in proportion as it is undemocratic; that the Senate saves us often from headlong popular tyranny.

"The value, spirit, and essence of the House of Commons," said Burke, "consists in its being the express image of the feelings of the nation;" but the image of the nation's feelings should not be the only thing reflected by the constitution of a free government. It is indispensable that, besides the House of Representatives which runs on all fours with popular sentiment, we should have a body like the Senate which may refuse to run with it at all when it seems to be wrong—a body which has time and security enough to keep its head, if only now and then and but for a little while, till other people have had time to think. The Senate is fitted to do deliberately and well the revising which is its properest function, because its position as a representative of state sovereignty is one of eminent dignity, securing for it ready and sincere respect, and because popular demands, ere they reach it with definite and authoritative suggestion, are diluted by passage through the feelings and conclusions of the state legislatures, which are the Senate's only immediate constituents. The Senate commonly feels with the House, but it does not, so to say, feel so fast. It at least has a chance to be the express image of those judgments of the nation which are slower and more temperate than its feelings.

This it is which makes the Senate "the most powerful and efficient second chamber that exists,"[43] and this it is which constitutes its functions one of the effectual checks, one of the real balances, of our system; though it is made to seem very insignificant in the literary theory of the Constitution, where the checks of state upon federal authorities, of executive prerogatives upon legislative powers, and of Judiciary upon President and Congress, though some of them in reality inoperative from the first and all of them weakened by many "ifs" and "buts," are made to figure in the leading rôles, as the characteristic Virtues, triumphing over the characteristic Vices, of our new and original political Morality-play.

It should, however, be accounted a deduction from the Senate's usefulness that it is seldom sure of more than two thirds of itself for more than four years at a time. In order that its life may be perpetual, one third of its membership is renewed or changed every two years, each third taking its turn at change or renewal in regular succession; and this device has, of course, an appreciably weakening effect on the legislative sinews of the Senate. Because the Senate mixes the parties in the composition of its Committees just as the House does, and those Committees must, consequently, be subjected to modification whenever the biennial senatorial elections bring in new men, freshly promoted from the House or from gubernatorial chairs. Places must be found for them at once in the working organization which busies itself in the committee-rooms. Six years is not the term of the Senate, but only of each Senator. Reckoning from any year in which one third of the Senate is elected, the term of the majority,—the two thirds not affected by the election,—is an average of the four and the two years which it has to live. There is never a time at which two thirds of the Senate have more than four years of appointed service before them. And this constant liability to change must, of course, materially affect the policy of the body. The time assured it in which to carry out any enterprise of policy upon which it may embark is seldom more than two years, the term of the House. It may be checked no less effectually than the lower House by the biennial elections, albeit the changes brought about in its membership are effected, not directly by the people, but indirectly and more slowly by the mediate operation of public opinion through the legislatures of the States.

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 coöperation, 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 reëlection 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 coördinate 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 coördinate 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 Grévy 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.

The virtual election of the cabinet, the real executive, or at least the Prime Minister, the real head of the executive, by the Commons in England, furnishes us with a contrast rather than with a parallel to the election of our premier, the head of our executive, by a deliberative, representative body, because of the difference of function and of tenure between our Presidents and English Prime Ministers. William Pitt was elected to rule the House of Commons, John Adams to hold a constitutional balance against the Houses of Congress. The one was the leader of the legislature; the other, so to say, the colleague of the legislature. Besides, the Commons can not only make but also unmake Ministries; whilst conventions can do nothing but bind their parties by nomination, and nothing short of a well-nigh impossible impeachment can unmake a President, except four successions of the seasons. As has been very happily said by a shrewd critic, our system is essentially astronomical. A President's usefulness is measured, not by efficiency, but by calendar months. It is reckoned that if he be good at all he will be good for four years. A Prime Minister must keep himself in favor with the majority, a President need only keep alive.

Once the functions of a presidential elector were very august. He was to speak for the people; they were to accept his judgment as theirs. He was to be as eminent in the qualities which win trust as was the greatest of the Imperial Electors in the power which inspires fear. But now he is merely a registering machine,—a sort of bell-punch to the hand of his party convention. It gives the pressure, and he rings. It is, therefore, patent to every one that that portion of the Constitution which prescribes his functions is as though it were not. A very simple and natural process of party organization, taking form first in congressional caucuses and later in nominating conventions, has radically altered a Constitution which declares that it can be amended only by the concurrence of two thirds of Congress and three fourths of the States. The sagacious men of the constitutional convention of 1787 certainly expected their work to be altered, but can hardly have expected it to be changed in so informal a manner.

The conditions which determine the choice of a nominating convention which names a President are radically different from the conditions which facilitate the choice of a representative chamber which selects for itself a Prime Minister. "Among the great purposes of a national parliament are these two," says Mr. Parton:[47] "first, to train men for practical statesmanship; and secondly, to exhibit them to the country, so that, when men of ability are wanted, they can be found without anxious search and perilous trial." In those governments which are administered by an executive committee of the legislative body, not only this training but also this exhibition is constant and complete. The career which leads to cabinet office is a career of self-exhibition. The self-revelation is made in debate, and so is made to the nation at large as well as to the Ministry of the day, who are looking out for able recruits, and to the Commons, whose ear is quick to tell a voice which it will consent to hear, a knowledge which it will pause to heed. But in governments like our own, in which legislative and executive services are altogether dissociated, this training is incomplete, and this exhibition almost entirely wanting. A nominating convention does not look over the rolls of Congress to pick a man to suit its purpose; and if it did it could not find him, because Congress is not a school for the preparation of administrators, and the convention is supposed to be searching not for an experienced committee-man, but for a tried statesman. The proper test for its application is not the test by which congressmen are assayed. They make laws, but they do not have to order the execution of the laws they make. They have a great deal of experience in directing, but none at all in being directed. Their care is to pass bills, not to keep them in running order after they have become statutes. They spend their lives without having anything to do directly with administration, though administration is dependent upon the measures which they enact.

A Presidential convention, therefore, when it nominates a man who is, or has been, a member of Congress, does not nominate him because of his congressional experience, but because it is thought that he has other abilities which were not called out in Congress. Andrew Jackson had been a member of Congress, but he was chosen President because he had won the battle of New Orleans and had driven the Indians from Florida. It was thought that his military genius evinced executive genius. The men whose fame rests altogether upon laurels won in Congress have seldom been more successful than Webster and Henry Clay in their candidacy for the chief magistracy. Washington was a soldier; Jefferson cut but a sorry figure in debate; Monroe was a diplomatist; it required diligent inquiry to find out what many of our Presidents had been before they became candidates; and eminency in legislative service has always been at best but an uncertain road to official preferment.

Of late years a tendency is observable which seems to be making the gubernatorial chairs of the greater States the nearest offices to the Presidency; and it cannot but be allowed that there is much that is rational in the tendency. The governorship of a State is very like a smaller Presidency; or, rather, the Presidency is very like a big governorship. Training in the duties of the one fits for the duties of the other. This is the only avenue of subordinate place through which the highest place can be naturally reached. Under the cabinet governments abroad a still more natural line of promotion is arranged. The Ministry is a legislative Ministry, and draws its life from the legislature, where strong talents always secure executive place. A long career in Parliament is at least a long contact with practical statesmanship, and at best a long schooling in the duties of the practical statesman. But with us there is no such intimate relationship between legislative and executive service. From experience in state administration to trial in the larger sphere of federal administration is the only natural order of promotion. We ought, therefore, to hail the recognition of this fact as in keeping with the general plan of the federal Constitution. The business of the President, occasionally great, is usually not much above routine. Most of the time it is mere administration, mere obedience of directions from the masters of policy, the Standing Committees. Except in so far as his power of veto constitutes him a part of the legislature, the President might, not inconveniently, be a permanent officer; the first official of a carefully-graded and impartially regulated civil service system, through whose sure series of merit-promotions the youngest clerk might rise even to the chief magistracy.[48] He is part of the official rather than of the political machinery of the government, and his duties call rather for training than for constructive genius. If there can be found in the official systems of the States a lower grade of service in which men may be advantageously drilled for Presidential functions, so much the better. The States will have better governors, the Union better Presidents, and there will have been supplied one of the most serious needs left unsupplied by the Constitution,—the need for a proper school in which to rear federal administrators.

Administration is something that men must learn, not something to skill in which they are born. Americans take to business of all kinds more naturally than any other nation ever did, and the executive duties of government constitute just an exalted kind of business; but even Americans are not Presidents in their cradles. One cannot have too much preparatory training and experience who is to fill so high a magistracy. It is difficult to perceive, therefore, upon what safe ground of reason are built the opinions of those persons who regard short terms of service as sacredly and peculiarly republican in principle. If republicanism is founded upon good sense, nothing so far removed from good sense can be part and parcel of it. Efficiency is the only just foundation for confidence in a public officer, under republican institutions no less than under monarchs; and short terms which cut off the efficient as surely and inexorably as the inefficient are quite as repugnant to republican as to monarchical rules of wisdom. Unhappily, however, this is not American doctrine. A President is dismissed almost as soon as he has learned the duties of his office, and a man who has served a dozen terms in Congress is a curiosity. We are too apt to think both the work of legislation and the work of administration easy enough to be done readily, with or without preparation, by any man of discretion and character. No one imagines that the dry-goods or the hardware trade, or even the cobbler's craft, can be successfully conducted except by those who have worked through a laborious and unremunerative apprenticeship, and who have devoted their lives to perfecting themselves as tradesmen or as menders of shoes. But legislation is esteemed a thing which may be taken up with success by any shrewd man of middle age, which a lawyer may now and again advantageously combine with his practice, or of which any intelligent youth may easily catch the knack; and administration is regarded as something which an old soldier, an ex-diplomatist, or a popular politician may be trusted to take to by instinct. No man of tolerable talents need despair of having been born a Presidential candidate.

These must be pronounced very extraordinary conclusions for an eminently practical people to have accepted; and it must be received as an awakening of good sense that there is nowadays a decided inclination manifested on the part of the nation to supply training-schools for the Presidency in like minor offices, such as the governorships of the greater States. For the sort of Presidents needed under the present arrangement of our federal government, it is best to choose amongst the ablest and most experienced state governors.

So much for nomination and election. But, after election, what then? The President is not all of the Executive. He cannot get along without the men whom he appoints, with and by the consent and advice of the Senate; and they are really integral parts of that branch of the government which he titularly contains in his one single person. The characters and training of the Secretaries are of almost as much importance as his own gifts and antecedents; so that his appointment and the Senate's confirmation must be added to the machinery of nomination by convention and election by automatic electors before the whole process of making up a working executive has been noted. The early Congresses seem to have regarded the Attorney-General and the four Secretaries[49] who constituted the first Cabinets as something more than the President's lieutenants. Before the republican reaction which followed the supremacy of the Federalists, the heads of the departments appeared in person before the Houses to impart desired information, and to make what suggestions they might have to venture, just as the President attended in person to read his "address." They were always recognized units in the system, never mere ciphers to the Presidential figure which led them. Their wills counted as independent wills.

The limits of this independence would seem, however, never to have been very clearly defined. Whether or not the President was to take the advice of his appointees and colleagues appears to have depended always upon the character and temper of the President. Here, for example, is what was reported in 1862. "We pretend to no state secrets," said the New York "Evening Post,"[50] "but we have been told, upon what we deem good authority, that no such thing as a combined, unitary, deliberative administration exists; that the President's brave willingness to take all responsibility has quite neutralized the idea of a joint responsibility; and that orders of the highest importance are issued, and movements commanded, which cabinet officers learn of as other people do, or, what is worse, which the cabinet officers disapprove and protest against. Each cabinet officer, again, controls his own department pretty much as he pleases, without consultation with the President or with his coadjutors, and often in the face of determinations which have been reached by the others." A picture this which forcibly reminds one of a certain imperious Prime Minister, in his last days created Earl of Chatham. These reports may have been true or they may have been mere rumors; but they depict a perfectly possible state of affairs. There is no influence except the ascendency or tact of the President himself to keep a Cabinet in harmony and to dispose it to coöperation; so that it would be very difficult to lay down any rules as to what elements really constitute an Executive. Those elements can be determined exactly of only one administration at a time, and of that only after it has closed, and some one who knows its secrets has come forward to tell them. We think of Mr. Lincoln rather than of his Secretaries when we look back to the policy of the war-time; but we think of Mr. Hamilton rather than of President Washington when we look back to the policy of the first administration. Daniel Webster was bigger than President Fillmore, and President Jackson was bigger than Mr. Secretary Van Buren. It depends for the most part upon the character and training, the previous station, of the cabinet officers, whether or not they act as governing factors in administration, just as it depends upon the President's talents and preparatory schooling whether or not he is a mere figure-head. A weak President may prove himself wiser than the convention which nominated him, by overshadowing himself with a Cabinet of notables.

From the necessity of the case, however, the President cannot often be really supreme in matters of administration, except as the Speaker of the House of Representatives is supreme in legislation, as appointer of those who are supreme in its several departments. The President is no greater than his prerogative of veto makes him; he is, in other words, powerful rather as a branch of the legislature than as the titular head of the Executive. Almost all distinctively executive functions are specifically bestowed upon the heads of the departments. No President, however earnest and industrious, can keep the Navy in a state of creditable efficiency if he have a corrupt or incapable Secretary in the Navy Department; he cannot prevent the army from suffering the damage of demoralization if the Secretary of War is without either ability, experience, or conscience; there will be corrupt jobs in the Department of Justice, do what he will to correct the methods of a deceived or deceitful Attorney-General; he cannot secure even-handed equity for the Indian tribes if the Secretary of the Interior chooses to thwart him; and the Secretary of State may do as much mischief behind his back as can the Secretary of the Treasury. He might master the details and so control the administration of some one of the departments, but he can scarcely oversee them all with any degree of strictness. His knowledge of what they have done or are doing comes, of course, from the Secretaries themselves, and his annual messages to Congress are in large part but a recapitulation of the chief contents of the detailed reports which the heads of the departments themselves submit at the same time to the Houses.

It is easy, however, to exaggerate the power of the Cabinet. After all has been said, it is evident that they differ from the permanent officials only in not being permanent. Their tenure of office is made to depend upon the supposition that their functions are political rather than simply ministerial, independent rather than merely instrumental. They are made party representatives because of the fiction that they direct policy. In reality the First Comptroller of the Treasury has almost, if not quite, as much weight in directing departmental business as has the Secretary of the Treasury himself, and it would practically be quite as useful to have his office, which is in intention permanent, vacated by every change of administration as to have that rule with regard to the office of his official chief. The permanent organization, the clerical forces of the departments, have in the Secretaries a sort of sliding top; though it would probably be just as convenient in practice to have this lid permanent as to have it movable. That the Secretaries are not in fact the directors of the executive policy of the government, I have shown in pointing out the thorough-going supervision of even the details of administration which it is the disposition of the Standing Committees of Congress to exercise. In the actual control of affairs no one can do very much without gaining the ears of the Committees. The heads of the departments could, of course, act much more wisely in many matters than the Committees can, because they have an intimacy with the workings and the wants of those departments which no Committee can possibly possess. But Committees prefer to govern in the dark rather than not to govern at all, and the Secretaries, as a matter of fact, find themselves bound in all things larger than routine details by laws which have been made for them and which they have no legitimate means of modifying.

Of course the Secretaries are in the leading-strings of statutes, and all their duties look towards a strict obedience to Congress. Congress made them and can unmake them. It is to Congress that they must render account for the conduct of administration. The head of each department must every year make a detailed report of the expenditures of the department, and a minute account of the facilities of work and the division of functions in the department, naming each clerk of its force. The chief duties of one cabinet officer will serve to illustrate the chief duties of his colleagues. It is the duty of the Secretary of the Treasury[51] "to prepare plans for the improvement and management of the revenue and for the support of the public credit; to prescribe forms of keeping and rendering all public accounts; to grant all warrants for moneys to be issued from the Treasury in pursuance of appropriations made by Congress; to report to the Senate or House, in person or in writing, information required by them pertaining to his office; and to perform all duties relating to finance that he shall be directed to perform." "He is required to report to Congress annually, on the first Monday in June, the results of the information compiled by the Bureau of Statistics, showing the condition of manufactures, domestic trade, currency, and banks in the several States and Territories." "He prescribes regulations for the killing in Alaska Territory and adjacent waters of minks, martens, sable, and other fur-bearing animals." "And he must lay before Congress each session the reports of the Auditors, showing the applications of the appropriations made for the War and Navy Departments, and also abstracts and tabulated forms showing separate accounts of the moneys received from internal duties."

Of course it is of the utmost importance that a Secretary who has within his choice some of the minor plans for the management of the revenue and for the maintenance of the public credit should be carefully chosen from amongst men skilled in financial administration and experienced in business regulation; but it is no more necessary that the man selected for such responsible duties should be an active politician, called to preside over his department only so long as the President who appointed him continues to hold office and to like him, than it is to have a strictly political officer to fulfill his other duty of prescribing game laws for Alaska and Alaskan waters. Fur-bearing animals can have no connection with political parties,—except, perhaps, as "spoils." Indeed, it is a positive disadvantage that Mr. Secretary should be chosen upon such a principle. He cannot have the knowledge, and must therefore lack the efficiency, of a permanent official separated from the partisan conflicts of politics and advanced to the highest office of his department by a regular series of promotions won by long service. The general policy of the government in matters of finance, everything that affects the greater operations of the Treasury, depends upon legislation, and is altogether in the hands of the Committees of Ways and Means and of Finance; so that it is entirely apart from good sense to make an essentially political office out of the post of that officer who controls only administrative details.

And this remark would seem to apply with still greater force to the offices of the other Secretaries. They have even lass energetic scope than the Secretary of the Treasury has. There must under any system be considerable power in the hands of the officer who handles and dispenses vast revenues, even though he handle and dispense them as directed by his employers. Money in its goings to and fro makes various mares go by the way, so to speak. It cannot move in great quantities without moving a large part of the commercial world with it. Management even of financial details may be made instrumental in turning the money-markets upside down. The Secretary of the Treasury is, therefore, less a mere chief clerk than are his coadjutors; and if his duties are not properly political, theirs certainly are not.

In view of this peculiarity of the Secretaries, in being appointed as partisans and endowed as mere officials, it is interesting to inquire what and whom they represent. They are clearly meant to represent the political party to which they belong; but it very often happens that it is impossible for them to do so. They must sometimes obey the opposite party. It is our habit to speak of the party to which the President is known to adhere and which has control of appointments to the offices of the civil service as "the party in power;" but it is very evident that control of the executive machinery is not all or even a very large part of power in a country ruled as ours is. In so far as the President is an executive officer he is the servant of Congress; and the members of the Cabinet, being confined to executive functions, are altogether the servants of Congress. The President, however, besides being titular head of the executive service, is to the extent of his veto a third branch of the legislature, and the party which he represents is in power in the same sense that it would be in power if it had on its side a majority of the members of either of the other two branches of Congress. If the House and Senate are of one party and the President and his ministers of the opposite, the President's party can hardly be said to be in power beyond the hindering and thwarting faculty of the veto. The Democrats were in power during the sessions of the Twenty-fifth Congress because they had a majority in the Senate as well as Andrew Jackson in the White House; but later Presidents have had both House and Senate against them.[52]

It is this constant possibility of party diversity between the Executive and Congress which so much complicates our system of party government. The history of administrations is not necessarily the history of parties. Presidential elections may turn the scale of party ascendency one way, and the intermediate congressional elections may quite reverse the balance. A strong party administration, by which the energy of the State is concentrated in the hands of a single well-recognized political organization, which is by reason of its power saddled with all responsibility, may sometimes be possible, but it must often be impossible. We are thus shut out in part from real party government such as we desire, and such as it is unquestionably desirable to set up in every system like ours. Party government can exist only when the absolute control of administration, the appointment of its officers as well as the direction of its means and policy, is given immediately into the hands of that branch of the government whose power is paramount, the representative body. Roger Sherman, whose perception was amongst the keenest and whose sagacity was amongst the surest in the great Convention of 1787, was very bold and outspoken in declaring this fact and in proposing to give it candid recognition. Perceiving very clearly the omnipotence which must inevitably belong to a national Congress such as the convention was about to create, he avowed that "he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect; that the person or persons [who should constitute the executive] ought to be appointed by, and accountable to, the legislature only, which was the depository of the supreme will of the society." Indeed, the executive was in his view so entirely the servant of the legislative will that he saw good reason to think that the legislature should judge of the number of persons of which the executive should be composed; and there seem to have been others in the convention who went along with him in substantial agreement as to these matters. It would seem to have been only a desire for the creation of as many as possible of those balances of power which now decorate the "literary theory" of the Constitution which they made that prevented a universal acquiescence in these views.

The anomaly which has resulted is seen most clearly in the party relations of the President and his Cabinet. The President is a partisan,—is elected because he is a partisan,—and yet he not infrequently negatives the legislation passed by the party whom he represents; and it may be said to be nowadays a very rare thing to find a Cabinet made up of truly representative party men. They are the men of his party whom the President likes, but not necessarily or always the men whom that party relishes. So low, indeed, has the reputation of some of our later Cabinets fallen, even in the eyes of men of their own political connection, that writers in the best of our public prints feel at full liberty to speak of their members with open contempt. "When Mr.—— was made Secretary of the Navy," laughs the New York "Nation," "no one doubted that he would treat the Department as 'spoils,' and consequently nobody has been disappointed. He is one of the statesmen who can hardly conceive of a branch of the public Administration having no spoils in it." And that this separation of the Cabinet from real party influence, and from the party leadership which would seem properly to belong to its official station, is a natural result of our constitutional scheme is made patent in the fact that the Cabinet has advanced in party insignificance as the system has grown older. The connection between the early Cabinets and the early Congresses was very like the relations between leaders and their party. Both Hamilton and Gallatin led rather than obeyed the Houses; and it was many years before the suggestions of heads of departments ceased to be sure of respectful and acquiescent consideration from the legislative Committees. But as the Committees gained facility and power the leadership of the Cabinet lost ground. Congress took command of the government so soon as ever it got command of itself, and no Secretary of to-day can claim by virtue of his office recognition as a party authority. Congress looks upon advice offered to it by anybody but its own members as gratuitous impertinence.

At the same time it is quite evident that the means which Congress has of controlling the departments and of exercising the searching oversight at which it aims are limited and defective. Its intercourse with the President is restricted to the executive messages, and its intercourse with the departments has no easier channels than private consultations between executive officials and the Committees, informal interviews of the ministers with individual members of Congress, and the written correspondence which the cabinet officers from time to time address to the presiding officers of the two Houses, at stated intervals, or in response to formal resolutions of inquiry. Congress stands almost helplessly outside of the departments. Even the special, irksome, ungracious investigations which it from time to time institutes in its spasmodic endeavors to dispel or confirm suspicions of malfeasance or of wanton corruption do not afford it more than a glimpse of the inside of a small province of federal administration. Hostile or designing officials can always hold it at arm's length by dexterous evasions and concealments. It can violently disturb, but it cannot often fathom, the waters of the sea in which the bigger fish of the civil service swim and feed. Its dragnet stirs without cleansing the bottom. Unless it have at the head of the departments capable, fearless men, altogether in its confidence and entirely in sympathy with its designs, it is clearly helpless to do more than affright those officials whose consciences are their accusers.

And it is easy to see how the commands as well as the questions of Congress may be evaded, if not directly disobeyed, by the executive agents. Its Committees may command, but they cannot superintend the execution of their commands. The Secretaries, though not free enough to have any independent policy of their own, are free enough to be very poor, because very unmanageable, servants. Once installed, their hold upon their offices does not depend upon the will of Congress. If they please the President, and keep upon living terms with their colleagues, they need not seriously regard the displeasure of the Houses, unless, indeed, by actual crime, they rashly put themselves in the way of its judicial wrath. If their folly be not too overt and extravagant, their authority may continue theirs till the earth has four times made her annual journey round the sun. They may make daily blunders in administration and repeated mistakes in business, may thwart the plans of Congress in a hundred small, vexatious ways, and yet all the while snap their fingers at its dissatisfaction or displeasure. They are denied the gratification of possessing real power, but they have the satisfaction of being secure in a petty independence which gives them a chance to be tricky and scheming. There are ways and ways of obeying; and if Congress be not pleased, why need they care? Congress did not give them their places, and cannot easily take them away.

Still it remains true that all the big affairs of the departments are conducted in obedience to the direction of the Standing Committees. The President nominates, and with legislative approval appoints, to the more important offices of the government, and the members of the Cabinet have the privilege of advising him as to matters in most of which he has no power of final action without the concurrence of the Senate; but the gist of all policy is decided by legislative, not by executive, will. It can be no great satisfaction to any man to possess the barren privilege of suggesting the best means of managing the every-day routine business of the several bureaux so long as the larger plans which that business is meant to advance are made for him by others who are set over him. If one is commanded to go to this place or to that place, and must go, will he, nill he, it can be but small solace to him that he is left free to determine whether he will ride or walk in going the journey. The only serious questions are whether or not this so great and real control exerted by Congress can be exercised efficiently and with sufficient responsibility to those whom Congress represents, and whether good government is promoted by the arrangement.

No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government, and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. And if it be his duty to obey, still more is obedience the bounden duty of his subordinates. The power of making laws is in its very nature and essence the power of directing, and that power is given to Congress. The principle is without drawback, and is inseparably of a piece with all Anglo-Saxon usage; the difficulty, if there be any, must lie in the choice of means whereby to energize the principle. The natural means would seem to be the right on the part of the representative body to have all the executive servants of its will under its close and constant supervision, and to hold them to a strict accountability: in other words, to have the privilege of dismissing them whenever their service became unsatisfactory. This is the matter-of-course privilege of every other master; and if Congress does not possess it, its mastery is hampered without being denied. The executive officials are its servants all the same; the only difference is that if they prove negligent, or incapable, or deceitful servants Congress must rest content with the best that can be got out of them until its chief administrative agent, the President, chooses to appoint better. It cannot make them docile, though it may compel them to be obedient in all greater matters. In authority of rule Congress is made master, but in means of rule it is made mere magistrate. It commands with absolute lordship, but it can discipline for disobedience only by slow and formal judicial process.

Upon Machiavelli's declaration that "nothing is more important to the stability of the state than that facility should be given by its constitution for the accusation of those who are supposed to have committed any public wrong," a writer in the "Westminster Review" makes this thoughtful comment: "The benefit of such a provision is twofold. First, the salutary fear of the probable coming of a day of account will restrain the evil practices of some bad men and self-seekers; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution; ... the distinction is lost between accusation and calumny."[53] And of course it was these benefits which our federal Constitution was meant to secure by means of its machinery of impeachment. No servant of the state, not even the President himself, was to be beyond the reach of accusation by the House of Representatives and of trial by the Senate. But the processes of impeachment, like those of amendment, are ponderous and difficult to handle. It requires something like passion to set them a-going; and nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overcrow party interest may secure a conviction; nothing less can. Indeed, judging by our past experiences, impeachment may be said to be little more than an empty menace. The House of Representatives is a tardy grand jury, and the Senate an uncertain court.

Besides, great crimes such as might speed even impeachment are not ordinary things in the loosest public service. An open-eyed public opinion can generally give them effective check. That which usually and every day clogs and hampers good government is folly or incapacity on the part of the ministers of state. Even more necessary, therefore, than a power clothed with authority to accuse, try, and punish for public crime is some ultimate authority, whose privilege it shall be to dismiss for inefficiency. Impeachment is aimed altogether above the head of business management. A merchant would not think it fair, even if it were lawful, to shoot a clerk who could not learn the business. Dismissal is quite as effective for his purposes, and more merciful to the clerk. The crying inconvenience of our system is, therefore, that the constitutional authority whose prerogative it is to direct policy and oversee administration has fewer facilities for getting its work well done than has the humblest citizen for obtaining satisfactory aid in his own undertakings. The authority most interested in appointments and dismissals in the civil service has little to do with the one and less to do with the other. The President appoints with the sanction of the Senate, and cannot dismiss his advisers without legislative consent;[54] yet the ministers in reality serve, not the President, but Congress, and Congress can neither appoint nor dismiss. In other words, the President must in both acts take the initiative, though he is not the real master; and Congress, which is the real master, has in these vital matters only a consultative voice, which it may utter, through its upper chamber, only when its opinion is asked. I should regard my business as a hopeless undertaking if my chief agent had to be appointed by a third party, and, besides being himself put beyond my power of control, were charged with the choice and discipline of all his subordinates, subject not to my directions, but simply to my acquiescence!

The relations existing between Congress and the departments must be fatally demoralizing to both. There is and can be between them nothing like confidential and thorough coöperation. The departments may be excused for that attitude of hostility which they sometimes assume towards Congress, because it is quite human for the servant to fear and deceive the master whom he does not regard as his friend, but suspects of being a distrustful spy of his movements. Congress cannot control the officers of the executive without disgracing them. Its only whip is investigation, semi-judicial examination into corners suspected to be dirty. It must draw the public eye by openly avowing a suspicion of malfeasance, and must then magnify and intensify the scandal by setting its Committees to cross-examining scared subordinates and sulky ministers. And after all is over and the murder out, probably nothing is done. The offenders, if any one has offended, often remain in office, shamed before the world, and ruined in the estimation of all honest people, but still drawing their salaries and comfortably waiting for the short memory of the public mind to forget them. Why unearth the carcass if you cannot remove it?

Then, too, the departments frequently complain of the incessant exactions made upon them by Congress. They grumble that they are kept busy in satisfying its curiosity and in meeting the demands of its uneasy activity. The clerks have ordinarily as much as they can do in keeping afoot the usual routine business of their departments; but Congress is continually calling upon them for information which must be laboriously collected from all sorts of sources, remote and accessible. A great speech in the Senate may cost them hours of anxious toil: for the Senator who makes it is quite likely beforehand to introduce a resolution calling upon one of the Secretaries for full statistics with reference to this, that, or the other topic upon which he desires to speak. If it be finance, he must have comparative tables of taxation; if it be commerce or the tariff, he cannot dispense with any of the minutest figures of the Treasury accounts; whatever be his theme, he cannot lay his foundations more surely than upon official information, and the Senate is usually unhesitatingly ready with an easy assent to the resolution which puts the whole clerical force of the administration at his service. And of course the House too asks innumerable questions, which patient clerks and protesting Secretaries must answer to the last and most minute particular. This is what the departmental officials testily call the tyranny of Congress, and no impartial third person can reasonably forbid them the use of the word.

I know of few things harder to state clearly and within reasonable compass than just how the nation keeps control of policy in spite of these hide-and-seek vagaries of authority. Indeed, it is doubtful if it does keep control through all the roundabout paths which legislative and executive responsibility are permitted to take. It must follow Congress somewhat blindly; Congress is known to obey without altogether understanding its Committees: and the Committees must consign the execution of their plans to officials who have opportunities not a few to hoodwink them. At the end of these blind processes is it probable that the ultimate authority, the people, is quite clear in its mind as to what has been done or what may be done another time? Take, for example, financial policy,—a very fair example, because, as I have shown, the legislative stages of financial policy are more talked about than any other congressional business, though for that reason an extreme example. If, after appropriations and adjustments of taxation have been tardily and in much tribulation of scheming and argument agreed upon by the House, the imperative suggestions and stubborn insistence of the Senate confuse matters till hardly the Conference Committees themselves know clearly what the outcome of the disagreements has been; and if, when these compromise measures are launched as laws, the method of their execution is beyond the view of the Houses, in the semi-privacy of the departments, how is the comprehension—not to speak of the will—of the people to keep any sort of hold upon the course of affairs? There are no screws of responsibility which they can turn upon the consciences or upon the official thumbs of the congressional Committees principally concerned. Congressional Committees are nothing to the nation: they are only pieces of the interior mechanism of Congress. To Congress they stand or fall. And, since Congress itself can scarcely be sure of having its own way with them, the constituencies are manifestly unlikely to be able to govern them. As for the departments, the people can hardly do more in drilling them to unquestioning obedience and docile efficiency than Congress can. Congress is, and must be, in these matters the nation's eyes and voice. If it cannot see what goes wrong and cannot get itself heeded when it commands, the nation likewise is both blind and dumb.

This, plainly put, is the practical result of the piecing of authority, the cutting of it up into small bits, which is contrived in our constitutional system. Each branch of the government is fitted out with a small section of responsibility, whose limited opportunities afford to the conscience of each many easy escapes. Every suspected culprit may shift the responsibility upon his fellows. Is Congress rated for corrupt or imperfect or foolish legislation? It may urge that it has to follow hastily its Committees or do nothing at all but talk; how can it help it if a stupid Committee leads it unawares into unjust or fatuous enterprises? Does administration blunder and run itself into all sorts of straits? The Secretaries hasten to plead the unreasonable or unwise commands of Congress, and Congress falls to blaming the Secretaries. The Secretaries aver that the whole mischief might have been avoided if they had only been allowed to suggest the proper measures; and the men who framed the existing measures in their turn avow their despair of good government so long as they must intrust all their plans to the bungling incompetence of men who are appointed by and responsible to somebody else. How is the schoolmaster, the nation, to know which boy needs the whipping?

Moreover, it is impossible to deny that this division of authority and concealment of responsibility are calculated to subject the government to a very distressing paralysis in moments of emergency. There are few, if any, important steps that can be taken by any one branch of the government without the consent or coöperation of some other branch. Congress must act through the President and his Cabinet; the President and his Cabinet must wait upon the will of Congress. There is no one supreme, ultimate head—whether magistrate or representative body—which can decide at once and with conclusive authority what shall be done at those times when some decision there must be, and that immediately. Of course this lack is of a sort to be felt at all times, in seasons of tranquil rounds of business as well as at moments of sharp crisis; but in times of sudden exigency it might prove fatal,—fatal either in breaking down the system or in failing to meet the emergency.[55] Policy cannot be either prompt or straightforward when it must serve many masters. It must either equivocate, or hesitate, or fail altogether. It may set out with clear purpose from Congress, but get waylaid or maimed by the Executive.

If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished. In order to drive trade at the speed and with the success you desire, you must confide without suspicion in your chief clerk, giving him the power to ruin you, because you thereby furnish him with a motive for serving you. His reputation, his own honor or disgrace, all his own commercial prospects, hang upon your success. And human nature is much the same in government as in the dry-goods trade. Power and strict accountability for its use are the essential constituents of good government. A sense of highest responsibility, a dignifying and elevating sense of being trusted, together with a consciousness of being in an official station so conspicuous that no faithful discharge of duty can go unacknowledged and unrewarded, and no breach of trust undiscovered and unpunished,—these are the influences, the only influences, which foster practical, energetic, and trustworthy statesmanship. The best rulers are always those to whom great power is intrusted in such a manner as to make them feel that they will surely be abundantly honored and recompensed for a just and patriotic use of it, and to make them know that nothing can shield them from full retribution for every abuse of it.

It is, therefore, manifestly a radical defect in our federal system that 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.