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Title: Congressional Government
A Study in American Politics
Author: Woodrow Wilson
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Language: English
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Books by Woodrow Wilson
CONGRESSIONAL GOVERNMENT. A Study in
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HOUGHTON MIFFLIN COMPANY
BOSTON AND NEW YORK
CONGRESSIONAL GOVERNMENT
_A STUDY IN AMERICAN POLITICS_
BY
WOODROW WILSON
BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge
COPYRIGHT, 1885, BY WOODROW WILSON
ALL RIGHTS RESERVED
To
His Father,
THE PATIENT GUIDE OF HIS YOUTH,
THE GRACIOUS COMPANION OF HIS MANHOOD,
HIS BEST INSTRUCTOR AND MOST LENIENT CRITIC,
This Book
IS AFFECTIONATELY DEDICATED
BY
THE AUTHOR.
PREFACE TO FIFTEENTH EDITION.
I have been led by the publication of a French translation of this
little volume to read it through very carefully, for the first time
since its first appearance. The re-reading has convinced me that it
ought not to go to another impression without a word or two by way of
preface with regard to the changes which our singular system of
Congressional government has undergone since these pages were written.
I must ask those who read them now to remember that they were written
during the years 1883 and 1884, and that, inasmuch as they describe a
living system, like all other living things subject to constant subtle
modifications, alike of form and of function, their description of the
government of the United States is not as accurate now as I believe it
to have been at the time I wrote it.
This is, as might have been expected, more noticeable in matters of
detail than in matters of substance. There are now, for example, not
three hundred and twenty-five, but three hundred and fifty-seven members
in the House of Representatives; and that number will, no doubt, be
still further increased by the reapportionment which will follow the
census of the present year. The number of committees in both Senate and
House is constantly on the increase. It is now usually quite sixty in
the House, and in the Senate more than forty. There has been a still
further addition to the number of the "spending" committees in the House
of Representatives, by the subdivision of the powerful Committee on
Appropriations. Though the number of committees in nominal control of
the finances of the country is still as large as ever, the tendency is
now towards a concentration of all that is vital in the business into
the hands of a few of the more prominent, which are most often mentioned
in the text. The auditing committees on the several departments, for
example, have now for some time exercised little more than a merely
nominal oversight over executive expenditures.
Since the text was written, the Tenure of Office Act, which sought to
restrict the President's removal from office, has been repealed; and
even before its repeal it was, in fact, inoperative. After the time of
President Johnson, against whom it was aimed, the party in power in
Congress found little occasion to insist upon its enforcement; its
constitutionality was doubtful, and it fell into the background. I did
not make sufficient allowance for these facts in writing the one or two
sentences of the book which refer to the Act.
Neither did I give sufficient weight, I now believe, to the powers of
the Secretary of the Treasury. However minutely bound, guided,
restricted by statute, his power has proved at many a critical juncture
in our financial history--notably in our recent financial history--of
the utmost consequence. Several times since this book was written, the
country has been witness to his decisive influence upon the money
markets, in the use of his authority with regard to the bond issues of
the government and his right to control the disposition of the funds of
the Treasury. In these matters, however, he has exercised, not
political, but business power. He has helped the markets as a banker
would help them. He has altered no policy. He has merely made
arrangements which would release money for use and facilitate loan and
investment. The country feels safer when an experienced banker, like Mr.
Gage, is at the head of the Treasury, than when an experienced
politician is in charge of it.
All these, however, are matters of detail. There are matters of
substance to speak of also.
It is to be doubted whether I could say quite so confidently now as I
said in 1884 that the Senate of the United States faithfully represents
the several elements of the nation's makeup, and furnishes us with a
prudent and normally constituted moderating and revising chamber.
Certainly vested interests have now got a much more formidable hold upon
the Senate than they seemed to have sixteen years ago. Its political
character also has undergone a noticeable change. The tendency seems to
be to make of the Senate, instead of merely a smaller and more
deliberate House of Representatives, a body of successful party
managers. Still, these features of its life may be temporary, and may
easily be exaggerated. We do not yet know either whether they will
persist, or, should they persist, whither they will lead us.
A more important matter--at any rate, a thing more concrete and
visible--is the gradual integration of the organization of the House of
Representatives. The power of the Speaker has of late years taken on new
phases. He is now, more than ever, expected to guide and control the
whole course of business in the House,--if not alone, at any rate
through the instrumentality of the small Committee on Rules, of which he
is chairman. That committee is expected not only to reformulate and
revise from time to time the permanent Rules of the House, but also to
look closely to the course of its business from day to day, make its
programme, and virtually control its use of its time. The committee
consists of five members; but the Speaker and the two other members of
the committee who represent the majority in the House determine its
action; and its action is allowed to govern the House. It in effect
regulates the precedence of measures. Whenever occasion requires, it
determines what shall, and what shall not, be undertaken. It is like a
steering ministry,--without a ministry's public responsibility, and
without a ministry's right to speak for both houses. It is a private
piece of party machinery within the single chamber for which it acts.
The Speaker himself--not as a member of the Committee on Rules, but by
the exercise of his right to "recognize" on the floor--undertakes to
determine very absolutely what bills individual members shall be allowed
to bring to a vote, out of the regular order fixed by the rules or
arranged by the Committee on Rules.
This obviously creates, in germ at least, a recognized and sufficiently
concentrated leadership within the House. The country is beginning to
know that the Speaker and the Committee on Rules must be held
responsible in all ordinary seasons for the success or failure of the
session, so far as the House is concerned. The congressional caucus has
fallen a little into the background. It is not often necessary to call
it together, except when the majority is impatient or recalcitrant under
the guidance of the Committee on Rules. To this new leadership,
however, as to everything else connected with committee government, the
taint of privacy attaches. It is not leadership upon the open floor,
avowed, defended in public debate, set before the view and criticism of
the country. It integrates the House alone, not the Senate; does not
unite the two houses in policy; affects only the chamber in which there
is the least opportunity for debate, the least chance that
responsibility may be properly and effectively lodged and avowed. It has
only a very remote and partial resemblance to genuine party leadership.
Much the most important change to be noticed is the result of the war
with Spain upon the lodgment and exercise of power within our federal
system: the greatly increased power and opportunity for constructive
statesmanship given the President, by the plunge into international
politics and into the administration of distant dependencies, which has
been that war's most striking and momentous consequence. When foreign
affairs play a prominent part in the politics and policy of a nation,
its Executive must of necessity be its guide: must utter every initial
judgment, take every first step of action, supply the information upon
which it is to act, suggest and in large measure control its conduct.
The President of the United States is now, as of course, at the front of
affairs, as no president, except Lincoln, has been since the first
quarter of the nineteenth century, when the foreign relations of the new
nation had first to be adjusted. There is no trouble now about getting
the President's speeches printed and read, every word. Upon his choice,
his character, his experience hang some of the most weighty issues of
the future. The government of dependencies must be largely in his hands.
Interesting things may come out of the singular change.
For one thing, new prizes in public service may attract a new order of
talent. The nation may get a better civil service, because of the sheer
necessity we shall be under of organizing a service capable of carrying
the novel burdens we have shouldered.
It may be, too, that the new leadership of the Executive, inasmuch as it
is likely to last, will have a very far-reaching effect upon our whole
method of government. It may give the heads of the executive departments
a new influence upon the action of Congress. It may bring about, as a
consequence, an integration which will substitute statesmanship for
government by mass meeting. It may put this whole volume hopelessly out
of date.
WOODROW WILSON.
PRINCETON UNIVERSITY, 15 _August_, 1900.
PREFACE
The object of these essays is not to exhaust criticism of the government
of the United States, but only to point out the most characteristic
practical features of the federal system. Taking Congress as the central
and predominant power of the system, their object is to illustrate
everything Congressional. Everybody has seen, and critics without number
have said, that our form of national government is singular, possessing
a character altogether its own; but there is abundant evidence that very
few have seen just wherein it differs most essentially from the other
governments of the world. There have been and are other federal systems
quite similar, and scarcely any legislative or administrative principle
of our Constitution was young even when that Constitution was framed. It
is our legislative and administrative _machinery_ which makes our
government essentially different from all other great governmental
systems. The most striking contrast in modern politics is not between
presidential and monarchical governments, but between Congressional and
Parliamentary governments. Congressional government is Committee
government; Parliamentary government is government by a responsible
Cabinet Ministry. These are the two principal types which present
themselves for the instruction of the modern student of the practical in
politics: administration by semi-independent executive agents who obey
the dictation of a legislature to which they are not responsible, and
administration by executive agents who are the accredited leaders and
accountable servants of a legislature virtually supreme in all things.
My chief aim in these essays has been, therefore, an adequate
illustrative contrast of these two types of government, with a view to
making as plain as possible the actual conditions of federal
administration. In short, I offer, not a commentary, but an outspoken
presentation of such cardinal facts as may be sources of practical
suggestion.
WOODROW WILSON
JOHNS HOPKINS UNIVERSITY, _October_ 7, 1884.
CONTENTS.
I. INTRODUCTORY 1
II. THE HOUSE OF REPRESENTATIVES 58
III. THE HOUSE OF REPRESENTATIVES. REVENUE AND SUPPLY 130
IV. THE SENATE 193
V. THE EXECUTIVE 242
VI. CONCLUSION 294
CONGRESSIONAL GOVERNMENT:
A STUDY IN AMERICAN POLITICS.
I.
INTRODUCTORY.
The laws reach but a very little way. Constitute government how you
please, infinitely the greater part of it must depend upon the
exercise of powers, which are left at large to the prudence and
uprightness of ministers of state. Even all the use and potency of
the laws depends upon them. Without them your commonwealth is no
better than a scheme upon paper; and not a living, active,
effective organization.--BURKE.
The great fault of political writers is their too close adherence
to the forms of the system of state which they happen to be
expounding or examining. They stop short at the anatomy of
institutions, and do not penetrate to the secret of their
functions.--JOHN MORLEY.
It would seem as if a very wayward fortune had presided over the history
of the Constitution of the United States, inasmuch as that great federal
charter has been alternately violated by its friends and defended by its
enemies. It came hard by its establishment in the first place,
prevailing with difficulty over the strenuous forces of dissent which
were banded against it. While its adoption was under discussion the
voices of criticism were many and authoritative, the voices of
opposition loud in tone and ominous in volume, and the Federalists
finally triumphed only by dint of hard battle against foes, formidable
both in numbers and in skill. But the victory was complete,--astonishingly
complete. Once established, the new government had only the zeal of its
friends to fear. Indeed, after its organization very little more is
heard of the party of opposition; they disappear so entirely from
politics that one is inclined to think, in looking back at the party
history of that time, that they must have been not only conquered but
converted as well. There was well-nigh universal acquiescence in the new
order of things. Not everybody, indeed, professed himself a Federalist,
but everybody conformed to federalist practice. There were jealousies
and bickerings, of course, in the new Congress of the Union, but no
party lines, and the differences which caused the constant brewing and
breaking of storms in Washington's first cabinet were of personal rather
than of political import. Hamilton and Jefferson did not draw apart
because the one had been an ardent and the other only a lukewarm friend
of the Constitution, so much as because they were so different in
natural bent and temper that they would have been like to disagree and
come to drawn points wherever or however brought into contact. The one
had inherited warm blood and a bold sagacity, while in the other a
negative philosophy ran suitably through cool veins. They had not been
meant for yoke-fellows.
There was less antagonism in Congress, however, than in the cabinet; and
in none of the controversies that did arise was there shown any serious
disposition to quarrel with the Constitution itself; the contention was
as to the obedience to be rendered to its provisions. No one threatened
to withhold his allegiance, though there soon began to be some
exhibition of a disposition to confine obedience to the letter of the
new commandments, and to discountenance all attempts to do what was not
plainly written in the tables of the law. It was recognized as no longer
fashionable to say aught against the principles of the Constitution; but
all men could not be of one mind, and political parties began to take
form in antagonistic schools of constitutional construction. There
straightway arose two rival sects of political Pharisees, each
professing a more perfect conformity and affecting greater "ceremonial
cleanliness" than the other. The very men who had resisted with might
and main the adoption of the Constitution became, under the new division
of parties, its champions, as sticklers for a strict, a rigid, and
literal construction.
They were consistent enough in this, because it was quite natural that
their one-time fear of a strong central government should pass into a
dread of the still further expansion of the power of that government, by
a too loose construction of its charter; but what I would emphasize here
is not the motives or the policy of the conduct of parties in our early
national politics, but the fact that opposition to the Constitution as a
constitution, and even hostile criticism of its provisions, ceased
almost immediately upon its adoption; and not only ceased, but gave
place to an undiscriminating and almost blind worship of its principles,
and of that delicate dual system of sovereignty, and that complicated
scheme of double administration which it established. Admiration of that
one-time so much traversed body of law became suddenly all the vogue,
and criticism was estopped. From the first, even down to the time
immediately preceding the war, the general scheme of the Constitution
went unchallenged; nullification itself did not always wear its true
garb of independent state sovereignty, but often masqueraded as a
constitutional right; and the most violent policies took care to make
show of at least formal deference to the worshipful fundamental law. The
divine right of kings never ran a more prosperous course than did this
unquestioned prerogative of the Constitution to receive universal
homage. The conviction that our institutions were the best in the
world, nay more, the model to which all civilized states must sooner or
later conform, could not be laughed out of us by foreign critics, nor
shaken out of us by the roughest jars of the system.
Now there is, of course, nothing in all this that is inexplicable, or
even remarkable; any one can see the reasons for it and the benefits of
it without going far out of his way; but the point which it is
interesting to note is that we of the present generation are in the
first season of free, outspoken, unrestrained constitutional criticism.
We are the first Americans to hear our own countrymen ask whether the
Constitution is still adapted to serve the purposes for which it was
intended; the first to entertain any serious doubts about the
superiority of our own institutions as compared with the systems of
Europe; the first to think of remodeling the administrative machinery of
the federal government, and of forcing new forms of responsibility upon
Congress.
The evident explanation of this change of attitude towards the
Constitution is that we have been made conscious by the rude shock of
the war and by subsequent developments of policy, that there has been a
vast alteration in the conditions of government; that the checks and
balances which once obtained are no longer effective; and that we are
really living under a constitution essentially different from that which
we have been so long worshiping as our own peculiar and incomparable
possession. In short, this model government is no longer conformable
with its own original pattern. While we have been shielding it from
criticism it has slipped away from us. The noble charter of fundamental
law given us by the Convention of 1787 is still our Constitution; but it
is now our _form of government_ rather in name than in reality, the form
of the Constitution being one of nicely adjusted, ideal balances, whilst
the actual form of our present government is simply a scheme of
congressional supremacy. National legislation, of course, takes force
now as at first from the authority of the Constitution; but it would be
easy to reckon by the score acts of Congress which can by no means be
squared with that great instrument's evident theory. We continue to
think, indeed, according to long-accepted constitutional formulae, and
it is still politically unorthodox to depart from old-time phraseology
in grave discussions of affairs; but it is plain to those who look about
them that most of the commonly received opinions concerning federal
constitutional balances and administrative arrangements are many years
behind the actual practices of the government at Washington, and that
we are farther than most of us realize from the times and the policy of
the framers of the Constitution. It is a commonplace observation of
historians that, in the development of constitutions, names are much
more persistent than the functions upon which they were originally
bestowed; that institutions constantly undergo essential alterations of
character, whilst retaining the names conferred upon them in their first
estate; and the history of our own Constitution is but another
illustration of this universal principle of institutional change. There
has been a constant growth of legislative and administrative practice,
and a steady accretion of precedent in the management of federal
affairs, which have broadened the sphere and altered the functions of
the government without perceptibly affecting the vocabulary of our
constitutional language. Ours is, scarcely less than the British, a
living and fecund system. It does not, indeed, find its rootage so
widely in the hidden soil of unwritten law; its tap-root at least is the
Constitution; but the Constitution is now, like Magna Carta and the Bill
of Rights, only the sap-centre of a system of government vastly larger
than the stock from which it has branched,--a system some of whose forms
have only very indistinct and rudimental beginnings in the simple
substance of the Constitution, and which exercises many functions
apparently quite foreign to the primitive properties contained in the
fundamental law.
The Constitution itself is not a complete system; it takes none but the
first steps in organization. It does little more than lay a foundation
of principles. It provides with all possible brevity for the
establishment of a government having, in several distinct branches,
executive, legislative, and judicial powers. It vests executive power in
a single chief magistrate, for whose election and inauguration it makes
carefully definite provision, and whose privileges and prerogatives it
defines with succinct clearness; it grants specifically enumerated
powers of legislation to a representative Congress, outlining the
organization of the two houses of that body and definitely providing for
the election of its members, whose number it regulates and the
conditions of whose choice it names; and it establishes a Supreme Court
with ample authority of constitutional interpretation, prescribing the
manner in which its judges shall be appointed and the conditions of
their official tenure. Here the Constitution's work of organization
ends, and the fact that it attempts nothing more is its chief strength.
For it to go beyond elementary provisions would be to lose elasticity
and adaptability. The growth of the nation and the consequent
development of the governmental system would snap asunder a
constitution which could not adapt itself to the new conditions of an
advancing society. If it could not stretch itself to the measure of the
times, it must be thrown off and left behind, as a by-gone device; and
there can, therefore, be no question that our Constitution has proved
lasting because of its simplicity. It is a corner-stone, not a complete
building; or, rather, to return to the old figure, it is a root, not a
perfect vine.
The chief fact, therefore, of our national history is that from this
vigorous tap-root has grown a vast constitutional system,--a system
branching and expanding in statutes and judicial decisions, as well as
in unwritten precedent; and one of the most striking facts, as it seems
to me, in the history of our politics is, that that system has never
received complete and competent critical treatment at the hands of any,
even the most acute, of our constitutional writers. They view it, as it
were, from behind. Their thoughts are dominated, it would seem, by those
incomparable papers of the "Federalist," which, though they were written
to influence only the voters of 1788, still, with a strange, persistent
longevity of power, shape the constitutional criticism of the present
day, obscuring much of that development of constitutional practice which
has since taken place. The Constitution in operation is manifestly a
very different thing from the Constitution of the books. "An observer
who looks at the living reality will wonder at the contrast to the paper
description. He will see in the life much which is not in the books; and
he will not find in the rough practice many refinements of the literary
theory."[1] It is, therefore, the difficult task of one who would now
write at once practically and critically of our national government to
escape from theories and attach himself to facts, not allowing himself
to be confused by a knowledge of what that government was intended to
be, or led away into conjectures as to what it may one day become, but
striving to catch its present phases and to photograph the delicate
organism in all its characteristic parts exactly as it is to-day; an
undertaking all the more arduous and doubtful of issue because it has to
be entered upon without guidance from writers of acknowledged authority.
The leading inquiry in the examination of any system of government must,
of course, concern primarily the real depositaries and the essential
machinery of power. There is always a centre of power: where in this
system is that centre? in whose hands is self-sufficient authority
lodged, and through what agencies does that authority speak and act?
The answers one gets to these and kindred questions from authoritative
manuals of constitutional exposition are not satisfactory, chiefly
because they are contradicted by self-evident facts. It is said that
there is no single or central force in our federal _scheme_; and so
there is not in the federal scheme, but only a balance of powers and a
nice adjustment of interactive checks, as all the books say. How is it,
however, in the practical conduct of the federal government? In that,
unquestionably, the predominant and controlling force, the centre and
source of all motive and of all regulative power, is Congress. All
niceties of constitutional restriction and even many broad principles of
constitutional limitation have been overridden, and a thoroughly
organized system of congressional control set up which gives a very rude
negative to some theories of balance and some schemes for distributed
powers, but which suits well with convenience, and does violence to none
of the principles of self-government contained in the Constitution.
This fact, however, though evident enough, is not on the surface. It
does not obtrude itself upon the observation of the world. It runs
through the undercurrents of government, and takes shape only in the
inner channels of legislation and administration which are not open to
the common view. It can be discerned most readily by comparing the
"literary theory" of the Constitution with the actual machinery of
legislation, especially at those points where that machinery regulates
the relations of Congress with the executive departments, and with the
attitude of the houses towards the Supreme Court on those occasions,
happily not numerous, when legislature and judiciary have come face to
face in direct antagonism. The "literary theory" is distinct enough;
every American is familiar with the paper pictures of the Constitution.
Most prominent in such pictures are the ideal checks and balances of the
federal system, which may be found described, even in the most recent
books, in terms substantially the same as those used in 1814 by John
Adams in his letter to John Taylor. "Is there," says Mr. Adams, "a
constitution upon record more complicated with balances than ours? In
the first place, eighteen states and some territories are balanced
against the national government.... In the second place, the House of
Representatives is balanced against the Senate, the Senate against the
House. In the third place, the executive authority is, in some degree,
balanced against the legislative. In the fourth place, the judicial
power is balanced against the House, the Senate, the executive power,
and the state governments. In the fifth place, the Senate is balanced
against the President in all appointments to office, and in all
treaties.... In the sixth place, the people hold in their hands the
balance against their own representatives, by biennial ... elections. In
the seventh place, the legislatures of the several states are balanced
against the Senate by sextennial elections. In the eighth place, the
electors are balanced against the people in the choice of the President.
Here is a complicated refinement of balances, which, for anything I
recollect, is an invention of our own and peculiar to us."[2]
All of these balances are reckoned essential in the theory of the
Constitution; but none is so quintessential as that between the national
and the state governments; it is the pivotal quality of the system,
indicating its principal, which is its federal characteristic. The
object of this balance of thirty-eight States "and some territories"
against the powers of the federal government, as also of several of the
other balances enumerated, is not, it should be observed, to prevent the
invasion by the national authorities of those provinces of legislation
by plain expression or implication reserved to the States,--such as the
regulation of municipal institutions, the punishment of ordinary crimes,
the enactment of laws of inheritance and of contract, the erection and
maintenance of the common machinery of education, and the control of
other such like matters of social economy and every-day
administration,--but to check and trim national policy on national
questions, to turn Congress back from paths of dangerous encroachment on
middle or doubtful grounds of jurisdiction, to keep sharp, when it was
like to become dim, the line of demarcation between state and federal
privilege, to readjust the weights of jurisdiction whenever either state
or federal scale threatened to kick the beam. There never was any great
likelihood that the national government would care to take from the
States their plainer prerogatives, but there was always a violent
probability that it would here and there steal a march over the borders
where territory like its own invited it to appropriation; and it was for
a mutual defense of such border-land that the two governments were given
the right to call a halt upon one another. It was purposed to guard not
against revolution, but against unrestrained exercise of questionable
powers.
The extent to which the restraining power of the States was relied upon
in the days of the Convention, and of the adoption of the Constitution,
is strikingly illustrated in several of the best known papers of the
"Federalist;" and there is no better means of realizing the difference
between the actual and the ideal constitutions than this of placing
one's self at the point of view of the public men of 1787-89. They were
disgusted with the impotent and pitiable Confederation, which could do
nothing but beg and deliberate; they longed to get away from the selfish
feuds of "States dissevered, discordant, belligerent," and their hopes
were centred in the establishment of a strong and lasting union, such as
could secure that concert and facility of common action in which alone
there could be security and amity. They were, however, by no means sure
of being able to realize their hopes, contrive how they might to bring
the States together into a more perfect confederation. The late colonies
had but recently become compactly organized, self-governing States, and
were standing somewhat stiffly apart, a group of consequential
sovereignties, jealous to maintain their blood-bought prerogatives, and
quick to distrust any power set above them, or arrogating to itself the
control of their restive wills. It was not to be expected that the
sturdy, self-reliant, masterful men who had won independence for their
native colonies, by passing through the flames of battle, and through
the equally fierce fires of bereavement and financial ruin, would
readily transfer their affection and allegiance from the new-made
States, which were their homes, to the federal government, which was to
be a mere artificial creation, and which could be to no man as his home
government. As things looked then, it seemed idle to apprehend a too
great diminution of state rights: there was every reason, on the
contrary, to fear that any union that could be agreed upon would lack
both vitality and the ability to hold its ground against the jealous
self-assertion of the sovereign commonwealths of its membership.
Hamilton but spoke the common belief of all thinking men of the time
when he said: "It will always be far more easy for the state governments
to encroach upon the national authorities than for the national
government to encroach upon the state authorities;" and he seemed to
furnish abundant support for the opinion, when he added, that "the proof
of this proposition turns upon the greater degree of influence which the
state governments, if they administer their affairs uprightly and
prudently, will generally possess over the people; a circumstance which,
at the same time, teaches us that there is an inherent and intrinsic
weakness in all federal constitutions, and that too much pains cannot
be taken in their organization to give them all the force that is
compatible with the principles of liberty."[3]
Read in the light of the present day, such views constitute the most
striking of all commentaries upon our constitutional history. Manifestly
the powers reserved to the States were expected to serve as a very real
and potent check upon the federal government; and yet we can see plainly
enough now that this balance of state against national authorities has
proved, of all constitutional checks, the least effectual. The proof of
the pudding is the eating thereof, and we can nowadays detect in it none
of that strong flavor of state sovereignty which its cooks thought they
were giving it. It smacks, rather, of federal omnipotence, which they
thought to mix in only in very small and judicious quantities. "From the
nature of the case," as Judge Cooley says, "it was impossible that the
powers reserved to the States should constitute a restraint upon the
increase of federal power, to the extent that was at first expected. The
federal government was necessarily made the final judge of its own
authority, and the executor of its own will, and any effectual check to
the gradual amplification of its jurisdiction must therefore be found
in the construction put by those administering it upon the grants of the
Constitution, and in their own sense of constitutional obligation. And
as the true line of division between federal and state powers has, from
the very beginning, been the subject of contention and of honest
differences of opinion, it must often happen that to advance and occupy
some disputed ground will seem to the party having the power to do so a
mere matter of constitutional duty."[4]
During the early years of the new national government there was,
doubtless, much potency in state will; and had federal and state powers
then come face to face, before Congress and the President had had time
to overcome their first awkwardness and timidity, and to discover the
safest walks of their authority and the most effectual means of
exercising their power, it is probable that state prerogatives would
have prevailed. The central government, as every one remembers, did not
at first give promise of a very great career. It had inherited some of
the contempt which had attached to the weak Congress of the
Confederation. Two of the thirteen States held aloof from the Union
until they could be assured of its stability and success; many of the
other States had come into it reluctantly, all with a keen sense of
sacrifice, and there could not be said to be any very wide-spread or
undoubting belief in its ultimate survival. The members of the first
Congress, too, came together very tardily, and in no very cordial or
confident spirit of coöperation; and after they had assembled they were
for many months painfully embarrassed, how and upon what subjects to
exercise their new and untried functions. The President was denied
formal precedence in dignity by the Governor of New York, and must
himself have felt inclined to question the consequence of his official
station, when he found that amongst the principal questions with which
he had to deal were some which concerned no greater things than petty
points of etiquette and ceremonial; as, for example, whether one day in
the week would be sufficient to receive visits of compliment, "and what
would be said if he were sometimes to be seen at quiet tea-parties."[5]
But this first weakness of the new government was only a transient phase
in its history, and the federal authorities did not invite a direct
issue with the States until they had had time to reckon their resources
and to learn facility of action. Before Washington left the presidential
chair the federal government had been thoroughly organized, and it fast
gathered strength and confidence as it addressed itself year after year
to the adjustment of foreign relations, to the defense of the western
frontiers, and to the maintenance of domestic peace. For twenty-five
years it had no chance to think of those questions of internal policy
which, in later days, were to tempt it to stretch its constitutional
jurisdiction. The establishment of the public credit, the revival of
commerce, and the encouragement of industry; the conduct, first, of a
heated controversy, and finally of an unequal war with England; the
avoidance, first, of too much love, and afterwards of too violent hatred
of France; these and other like questions of great pith and moment gave
it too much to do to leave it time to think of nice points of
constitutional theory affecting its relations with the States.
But still, even in those busy times of international controversy, when
the lurid light of the French Revolution outshone all others, and when
men's minds were full of those ghosts of '76, which took the shape of
British aggressions, and could not be laid by any charm known to
diplomacy,--even in those times, busy about other things, there had been
premonitions of the unequal contest between state and federal
authorities. The purchase of Louisiana had given new form and startling
significance to the assertion of national sovereignty, the Alien and
Sedition Laws had provoked the plain-spoken and emphatic protests of
Kentucky and Virginia, and the Embargo had exasperated New England to
threats of secession.
Nor were these open assumptions of questionable prerogatives on the part
of the national government the most significant or unequivocal
indications of an assured increase of federal power. Hamilton, as
Secretary of the Treasury, had taken care at the very beginning to set
the national policy in ways which would unavoidably lead to an almost
indefinite expansion of the sphere of federal legislation. Sensible of
its need of guidance in those matters of financial administration which
evidently demanded its immediate attention, the first Congress of the
Union promptly put itself under the direction of Hamilton. "It is not a
little amusing," says Mr. Lodge, "to note how eagerly Congress, which
had been ably and honestly struggling with the revenue, with commerce,
and with a thousand details, fettered in all things by the awkwardness
inherent in a legislative body, turned for relief to the new
secretary."[6] His advice was asked and taken in almost everything, and
his skill as a party leader made easy many of the more difficult paths
of the new government. But no sooner had the powers of that government
begun to be exercised under his guidance than they began to grow. In his
famous Report on Manufactures were laid the foundations of that system
of protective duties which was destined to hang all the industries of
the country upon the skirts of the federal power, and to make every
trade and craft in the land sensitive to every wind of party that might
blow at Washington; and in his equally celebrated Report in favor of the
establishment of a National Bank, there was called into requisition, for
the first time, that puissant doctrine of the "implied powers" of the
Constitution which has ever since been the chief dynamic principle in
our constitutional history. "This great doctrine, embodying the
principle of liberal construction, was," in the language of Mr. Lodge,
"the most formidable weapon in the armory of the Constitution; and when
Hamilton grasped it he knew, and his opponents felt, that here was
something capable of conferring on the federal government powers of
almost any extent."[7] It served first as a sanction for the charter of
the United States Bank,--an institution which was the central pillar of
Hamilton's wonderful financial administration, and around which
afterwards, as then, played so many of the lightnings of party strife.
But the Bank of the United States, though great, was not the greatest
of the creations of that lusty and seductive doctrine. Given out, at
length, with the sanction of the federal Supreme Court,[8] and
containing, as it did, in its manifest character as a doctrine of
legislative prerogative, a very vigorous principle of constitutional
growth, it quickly constituted Congress the dominant, nay, the
irresistible, power of the federal system, relegating some of the chief
balances of the Constitution to an insignificant rôle in the "literary
theory" of our institutions.
Its effect upon the status of the States in the federal system was
several-fold. In the first place, it clearly put the constitutions of
the States at a great disadvantage, inasmuch as there was in them no
like principle of growth. Their stationary sovereignty could by no means
keep pace with the nimble progress of federal influence in the new
spheres thus opened up to it. The doctrine of implied powers was
evidently both facile and irresistible. It concerned the political
discretion of the national legislative power, and could, therefore,
elude all obstacles of judicial interference; for the Supreme Court very
early declared itself without authority to question the legislature's
privilege of determining the nature and extent of its own powers in the
choice of means for giving effect to its constitutional prerogatives,
and it has long stood as an accepted canon of judicial action, that
judges should be very slow to oppose their opinions to the legislative
will in cases in which it is not made demonstrably clear that there has
been a plain violation of some unquestionable constitutional principle,
or some explicit constitutional provision. Of encroachments upon state
as well as of encroachments upon federal powers, the federal authorities
are, however, in most cases the only, and in all cases the final,
judges. The States are absolutely debarred even from any effective
defense of their plain prerogatives, because not they, but the national
authorities, are commissioned to determine with decisive and
unchallenged authoritativeness what state powers shall be recognized in
each case of contest or of conflict. In short, one of the privileges
which the States have resigned into the hands of the federal government
is the all-inclusive privilege of determining what they themselves can
do. Federal courts can annul state action, but state courts cannot
arrest the growth of congressional power.[9]
But this is only the doctrinal side of the case, simply its statement
with an "if" and a "but." Its practical issue illustrates still more
forcibly the altered and declining status of the States in the
constitutional system. One very practical issue has been to bring the
power of the federal government home to every man's door, as, no less
than his own state government, his immediate over-lord. Of course every
new province into which Congress has been allured by the principle of
implied powers has required for its administration a greater or less
enlargement of the national civil service, which now, through its
hundred thousand officers, carries into every community of the land a
sense of federal power, as the power of powers, and fixes the federal
authority, as it were, in the very habits of society. That is not a
foreign but a familiar and domestic government whose officer is your
next-door neighbor, whose representatives you deal with every day at the
post-office and the custom-house, whose courts sit in your own State,
and send their own marshals into your own county to arrest your own
fellow-townsman, or to call you yourself by writ to their
witness-stands. And who can help respecting officials whom he knows to
be backed by the authority and even, by the power of the whole nation,
in the performance of the duties in which he sees them every day
engaged? Who does not feel that the marshal represents a greater power
than the sheriff does, and that it is more dangerous to molest a
mail-carrier than to knock down a policeman? This personal contact of
every citizen with the federal government,--a contact which makes him
feel himself a citizen of a greater state than that which controls his
every-day contracts and probates his father's will,--more than offsets
his sense of dependent loyalty to local authorities by creating a
sensible bond of allegiance to what presents itself unmistakably as the
greater and more sovereign power.
In most things this bond of allegiance does not bind him oppressively
nor chafe him distressingly; but in some things it is drawn rather
painfully tight. Whilst federal postmasters are valued and federal
judges unhesitatingly obeyed, and whilst very few people realize the
weight of customs-duties, and as few, perhaps, begrudge license taxes on
whiskey and tobacco, everybody eyes rather uneasily the federal
supervisors at the polls. This is preëminently a country of frequent
elections, and few States care to increase the frequency by separating
elections of state from elections of national functionaries. The federal
supervisor, consequently, who oversees the balloting for congressmen,
practically superintends the election of state officers also; for state
officers and congressmen are usually voted for at one and the same time
and place, by ballots bearing in common an entire "party ticket;" and
any authoritative scrutiny of these ballots after they have been cast,
or any peremptory power of challenging those who offer to cast them,
must operate as an interference with state no less than with federal
elections. The authority of Congress to regulate the manner of choosing
federal representatives pinches when it is made thus to include also the
supervision of those state elections which are, by no implied power
even, within the sphere of federal prerogative. The supervisor
represents the very ugliest side of federal supremacy; he belongs to
the least liked branch of the civil service; but his existence speaks
very clearly as to the present balance of powers, and his rather hateful
privileges must, under the present system of mixed elections, result in
impairing the self-respect of state officers of election by bringing
home to them a vivid sense of subordination to the powers at Washington.
A very different and much larger side of federal predominance is to be
seen in the history of the policy of internal improvements. I need not
expound that policy here. It has been often enough mooted and long
enough understood to need no explanation. Its practice is plain and its
persistence unquestionable. But its bearings upon the status and the
policies of the States are not always clearly seen or often distinctly
pointed out. Its chief results, of course, have been that expansion of
national functions which was necessarily involved in the application of
national funds by national employees to the clearing of inland
water-courses and the improvement of harbors, and the establishment of
the very questionable precedent of expending in favored localities
moneys raised by taxation which bears with equal incidence upon the
people of all sections of the country; but these chief results by no
means constitute the sum of its influence. Hardly less significant and
real, for instance, are its moral effects in rendering state
administrations less self-reliant and efficient, less prudent and
thrifty, by accustoming them to accepting subsidies for internal
improvements from the federal coffers; to depending upon the national
revenues, rather than upon their own energy and enterprise, for means of
developing those resources which it should be the special province of
state administration to make available and profitable. There can, I
suppose, be little doubt that it is due to the moral influences of this
policy that the States are now turning to the common government for aid
in such things as education. Expecting to be helped, they will not help
themselves. Certain it is that there is more than one State which,
though abundantly able to pay for an educational system of the greatest
efficiency, fails to do so, and contents itself with imperfect temporary
makeshifts because there are immense surpluses every year in the
national treasury which, rumor and unauthorized promises say, may be
distributed amongst the States in aid of education. If the federal
government were more careful to keep apart from every strictly local
scheme of improvement, this culpable and demoralizing state policy could
scarcely live. States would cease to wish, because they would cease to
hope, to be stipendiaries of the government of the Union, and would
address themselves with diligence to their proper duties, with much
benefit both to themselves and to the federal system. This is not saying
that the policy of internal improvements was either avoidable,
unconstitutional, or unwise, but only that it has been carried too far;
and that, whether carried too far or not, it must in any case have been
what it is now seen to be, a big weight in the federal scale of the
balance.
Still other powers of the federal government, which have so grown beyond
their first proportions as to have marred very seriously the symmetry of
the "literary theory" of our federal system, have strengthened under the
shadow of the jurisdiction of Congress over commerce and the maintenance
of the postal service. For instance, the Supreme Court of the United
States has declared that the powers granted to Congress by the
Constitution to regulate commerce and to establish post-offices and
post-roads "keep pace with the progress of the country and adapt
themselves to new developments of times and circumstances. They extend
from the horse with its rider to the stage-coach, from the sailing
vessel to the steamer, from the coach and the steamer to the railroad,
and from the railroad to the telegraph, as these new agencies are
successively brought into use to meet the demands of increasing
population and wealth. They are intended for the government of the
business to which they relate, at all times and under all circumstances.
As they were intrusted to the general government for the good of the
nation, it is not only the right but the duty of Congress to see to it
that the intercourse between the States and the transmission of
intelligence are not obstructed or unnecessarily encumbered by state
legislation."[10] This emphatic decision was intended to sustain the
right of a telegraph company chartered by one State to run its line
along all post-roads in other States, without the consent of those
States, and even against their will; but it is manifest that many other
corporate companies might, under the sanction of this broad opinion,
claim similar privileges in despite of state resistance, and that such
decisions go far towards making state powers of incorporation of little
worth as compared with federal powers of control.
Keeping pace, too, with this growth of federal activity, there has been
from the first a steady and unmistakable growth of nationality of
sentiment. It was, of course, the weight of war which finally and
decisively disarranged the balance between state and federal powers; and
it is obvious that many of the most striking manifestations of the
tendency towards centralization have made themselves seen since the
war. But the history of the war is only a record of the triumph of the
principle of national sovereignty. The war was inevitable, because that
principle grew apace; and the war ended as it did, because that
principle had become predominant. Accepted at first simply because it
was imperatively necessary, the union of form and of law had become a
union of sentiment, and was destined to be a union of institutions. That
sense of national unity and community of destiny which Hamilton had
sought to foster, but which was feeble in his day of long distances and
tardy inter-communication, when the nation's pulse was as slow as the
stage-coach and the postman, had become strong enough to rule the
continent when Webster died. The war between the States was the supreme
and final struggle between those forces of disintegration which still
remained in the blood of the body politic and those other forces of
health, of union and amalgamation, which had been gradually building up
that body in vigor and strength as the system passed from youth to
maturity, and as its constitution hardened and ripened with advancing
age.
The history of that trenchant policy of "reconstruction," which followed
close upon the termination of the war, as at once its logical result and
significant commentary, contains a vivid picture of the altered
balances of the constitutional system which is a sort of exaggerated
miniature, falling very little short of being a caricature, of previous
constitutional tendencies and federal policies. The tide of federal
aggression probably reached its highest shore in the legislation which
put it into the power of the federal courts to punish a state judge for
refusing, in the exercise of his official discretion, to impanel negroes
in the juries of his court,[11] and in those statutes which gave the
federal courts jurisdiction over offenses against state laws by state
officers.[12] But that tide has often run very high, and, however
fluctuating at times, has long been well-nigh irresistible by any dykes
of constitutional state privilege; so that Judge Cooley can say without
fear of contradiction that "The effectual checks upon the encroachments
of federal upon state power must be looked for, not in state power of
resistance, but in the choice of representatives, senators, and
presidents holding just constitutional views, and in a federal supreme
court with competent power to restrain all departments and all officers
within the limits of their just authority, so far as their acts may
become the subject of judicial cognizance."[13]
Indeed it is quite evident that if federal power be not altogether
irresponsible, it is the federal judiciary which is the only effectual
balance-wheel of the whole system. The federal judges hold in their
hands the fate of state powers, and theirs is the only authority that
can draw effective rein on the career of Congress. If their power, then,
be not efficient, the time must seem sadly out of joint to those who
hold to the "literary theory" of our Constitution. By the word of the
Supreme Court must all legislation stand or fall, so long as law is
respected. But, as I have already pointed out, there is at least one
large province of jurisdiction upon which, though invited, and possibly
privileged to appropriate it, the Supreme Court has, nevertheless,
refused to enter, and by refusing to enter which it has given over all
attempt to guard one of the principal, easiest, and most obvious roads
to federal supremacy. It has declared itself without authority to
interfere with the _political discretion_ of either Congress or the
President, and has declined all effort to constrain these its coördinate
departments to the performance of any, even the most constitutionally
imperative act.[14] "When, indeed, the President exceeds his authority,
or usurps that which belongs to one of the other departments, his
orders, commands, or warrants protect no one, and his agents become
personally responsible for their acts. The check of the courts,
therefore, consists in their ability to keep the executive within the
sphere of his authority by refusing to give the sanction of law to
whatever he may do beyond it, and by holding the agents or instruments
of his unlawful action to strict accountability."[15] But such
punishment, inflicted not directly upon the chief offender but
vicariously upon his agents, can come only after all the harm has been
done. The courts cannot forestall the President and prevent the doing of
mischief. They have no power of initiative; they must wait until the law
has been broken and voluntary litigants have made up their pleadings;
must wait nowadays many months, often many years, until those pleadings
are reached in the regular course of clearing a crowded docket.
Besides, in ordinary times it is not from the executive that the most
dangerous encroachments are to be apprehended. The legislature is the
aggressive spirit. It is the motive power of the government, and unless
the judiciary can check it, the courts are of comparatively little worth
as balance-wheels in the system. It is the subtile, stealthy, almost
imperceptible encroachments of policy, of political action, which
constitute the precedents upon which additional prerogatives are
generally reared; and yet these are the very encroachments with which it
is hardest for the courts to deal, and concerning which, accordingly,
the federal courts have declared themselves unauthorized to hold any
opinions. They have naught to say upon questions of policy. Congress
must itself judge what measures may legitimately be used to supplement
or make effectual its acknowledged jurisdiction, what are the laws
"necessary and proper for carrying into execution" its own peculiar
powers, "and all other powers vested by" the "Constitution in the
government of the United States, or in any department or officer
thereof." The courts are very quick and keen-eyed, too, to discern
prerogatives of political discretion in legislative acts, and
exceedingly slow to undertake to discriminate between what is and what
is not a violation of the spirit of the Constitution. Congress must
wantonly go very far outside of the plain and unquestionable meaning of
the Constitution, must bump its head directly against all right and
precedent, must kick against the very pricks of all well-established
rulings and interpretations, before the Supreme Court will offer it any
distinct rebuke.
Then, too, the Supreme Court itself, however upright and irreproachable
its members, has generally had and will undoubtedly continue to have a
distinct political complexion, taken from the color of the times during
which its majority was chosen. The bench over which John Marshall
presided was, as everybody knows, staunchly and avowedly federalist in
its views; but during the ten years which followed 1835 federalist
justices were rapidly displaced by Democrats, and the views of the Court
changed accordingly. Indeed it may truthfully be said that, taking our
political history "by and large," the constitutional interpretations of
the Supreme Court have changed, slowly but none the less surely, with
the altered relations of power between the national parties. The
Federalists were backed by a federalist judiciary; the period of
democratic supremacy witnessed the triumph of democratic principles in
the courts; and republican predominance has driven from the highest
tribunal of the land all but one representative of democratic doctrines.
It has been only during comparatively short periods of transition, when
public opinion was passing over from one political creed to another,
that the decisions of the federal judiciary have been distinctly opposed
to the principles of the ruling political party.
But, besides and above all this, the national courts are for the most
part in the power of Congress. Even the Supreme Court is not beyond its
control; for it is the legislative privilege to increase, whenever the
legislative will so pleases, the number of the judges upon the supreme
bench,--to "dilute the Constitution," as Webster once put it, "by
creating a court which shall construe away its provisions;" and this on
one memorable occasion it did choose to do. In December, 1869, the
Supreme Court decided against the constitutionality of Congress's pet
Legal Tender Acts; and in the following March a vacancy on the bench
opportunely occurring, and a new justiceship having been created to meet
the emergency, the Senate gave the President to understand that no
nominee unfavorable to the debated acts would be confirmed, two justices
of the predominant party's way of thinking were appointed, the hostile
majority of the court was outvoted, and the obnoxious decision
reversed.[16]
The creation of additional justiceships is not, however, the only means
by which Congress can coerce and control the Supreme Court. It may
forestall an adverse decision by summarily depriving the court of
jurisdiction over the case in which such a decision was threatened,[17]
and that even while the case is pending; for only a very small part of
the jurisdiction of even the Supreme Court is derived directly from the
Constitution. Most of it is founded upon the Judiciary Act of 1789,
which, being a mere act of Congress, may be repealed at any time that
Congress chooses to repeal it. Upon this Judiciary Act, too, depend not
only the powers but also the very existence of the inferior courts of
the United States, the Circuit and District Courts; and their possible
fate, in case of a conflict with Congress, is significantly foreshadowed
in that Act of 1802 by which a democratic Congress swept away, root and
branch, the system of circuit courts which had been created in the
previous year, but which was hateful to the newly-successful Democrats
because it had been officered with Federalists in the last hours of John
Adams's administration.
This balance of judiciary against legislature and executive would seem,
therefore, to be another of those ideal balances which are to be found
in the books rather than in the rough realities of actual practice; for
manifestly the power of the courts is safe only during seasons of
political peace, when parties are not aroused to passion or tempted by
the command of irresistible majorities.
As for some of the other constitutional balances enumerated in that
passage of the letter to John Taylor which I have taken as a text, their
present inefficacy is quite too plain to need proof. The constituencies
may have been balanced against their representatives in Mr. Adams's day,
for that was not a day of primaries and of strict caucus discipline. The
legislatures of the States, too, may have been able to exercise some
appreciable influence upon the action of the Senate, if those were days
when policy was the predominant consideration which determined elections
to the Senate, and the legislative choice was not always a matter of
astute management, of mere personal weight, or party expediency; and the
presidential electors undoubtedly did have at one time some freedom of
choice in naming the chief magistrate, but before the third presidential
election some of them were pledged, before Adams wrote this letter the
majority of them were wont to obey the dictates of a congressional
caucus, and for the last fifty years they have simply registered the
will of party conventions.
It is noteworthy that Mr. Adams, possibly because he had himself been
President, describes the executive as constituting only "_in some
degree_" a check upon Congress, though he puts no such limitation upon
the other balances of the system. Independently of experience, however,
it might reasonably have been expected that the prerogatives of the
President would have been one of the most effectual restraints upon the
power of Congress. He was constituted one of the three great coördinate
branches of the government; his functions were made of the highest
dignity; his privileges many and substantial--so great, indeed, that it
has pleased the fancy of some writers to parade them as exceeding those
of the British crown; and there can be little doubt that, had the
presidential chair always been filled by men of commanding character, of
acknowledged ability, and of thorough political training, it would have
continued to be a seat of the highest authority and consideration, the
true centre of the federal structure, the real throne of administration,
and the frequent source of policies. Washington and his Cabinet
commanded the ear of Congress, and gave shape to its deliberations;
Adams, though often crossed and thwarted, gave character to the
government; and Jefferson, as President no less than as Secretary of
State, was the real leader of his party. But the prestige of the
presidential office has declined with the character of the Presidents.
And the character of the Presidents has declined as the perfection of
selfish party tactics has advanced.
It was inevitable that it should be so. After independence of choice on
the part of the presidential electors had given place to the choice of
presidential candidates by party conventions, it became absolutely
necessary, in the eyes of politicians, and more and more necessary as
time went on, to make expediency and availability the only rules of
selection. As each party, when in convention assembled, spoke only those
opinions which seemed to have received the sanction of the general
voice, carefully suppressing in its "platform" all unpopular political
tenets, and scrupulously omitting mention of every doctrine that might
be looked upon as characteristic and as part of a peculiar and original
programme, so, when the presidential candidate came to be chosen, it was
recognized as imperatively necessary that he should have as short a
political record as possible, and that he should wear a clean and
irreproachable insignificance. "Gentlemen," said a distinguished
American public man, "I would make an excellent President, but a very
poor candidate." A decisive career which gives a man a well-understood
place in public estimation constitutes a positive disability for the
presidency; because candidacy must precede election, and the shoals of
candidacy can be passed only by a light boat which carries little
freight and can be turned readily about to suit the intricacies of the
passage.
I am disposed to think, however, that the decline in the character of
the Presidents is not the cause, but only the accompanying
manifestation, of the declining prestige of the presidential office.
That high office has fallen from its first estate of dignity because its
power has waned; and its power has waned because the power of Congress
has become predominant. The early Presidents were, as I have said, men
of such a stamp that they would under any circumstances have made their
influence felt; but their opportunities were exceptional. What with
quarreling and fighting with England, buying Louisiana and Florida,
building dykes to keep out the flood of the French Revolution, and
extricating the country from ceaseless broils with the South American
Republics, the government was, as has been pointed out, constantly busy,
during the first quarter century of its existence, with the adjustment
of foreign relations; and with foreign relations, of course, the
Presidents had everything to do, since theirs was the office of
negotiation.
Moreover, as regards home policy also those times were not like ours.
Congress was somewhat awkward in exercising its untried powers, and its
machinery was new, and without that fine adjustment which has since made
it perfect of its kind. Not having as yet learned the art of governing
itself to the best advantage, and being without that facility of
legislation which it afterwards acquired, the Legislature was glad to
get guidance and suggestions of policy from the Executive.
But this state of things did not last long. Congress was very quick and
apt in learning what it could do and in getting into thoroughly good
trim to do it. It very early divided itself into standing committees
which it equipped with very comprehensive and thorough-going privileges
of legislative initiative and control, and set itself through these to
administer the government. Congress is (to adopt Mr. Bagehot's
description of Parliament) "nothing less than a big meeting of more or
less idle people. In proportion as you give it power it will inquire
into everything, settle everything, meddle in everything. In an ordinary
despotism the powers of the despot are limited by his bodily capacity,
and by the calls of pleasure; he is but one man; there are but twelve
hours in his day, and he is not disposed to employ more than a small
part in dull business: he keeps the rest for the court, or the harem,
or for society." But Congress "is a despot who has unlimited time,--who
has unlimited vanity,--who has, or believes he has, unlimited
comprehension,--whose pleasure is in action, whose life is work."
Accordingly it has entered more and more into the details of
administration, until it has virtually taken into its own hands all the
substantial powers of government. It does not domineer over the
President himself, but it makes the Secretaries its humble servants. Not
that it would hesitate, upon occasion, to deal directly with the chief
magistrate himself; but it has few calls to do so, because our
latter-day Presidents live by proxy; they are the executive in theory,
but the Secretaries are the executive in fact. At the very first session
of Congress steps were taken towards parceling out executive work
amongst several departments, according to a then sufficiently thorough
division of labor; and if the President of that day was not able to
direct administrative details, of course the President of to-day is
infinitely less able to do so, and must content himself with such
general supervision as he may find time to exercise. He is in all
every-day concerns shielded by the responsibility of his subordinates.
It cannot be said that this change has raised the cabinet in dignity or
power; it has only altered their relations to the scheme of government.
The members of the President's cabinet have always been prominent in
administration; and certainly the early cabinets were no less strong in
political influence than are the cabinets of our own day; but they were
then only the President's advisers, whereas they are now rather the
President's colleagues. The President is now scarcely the executive; he
is the head of the administration; he appoints the executive. Of course
this is not a legal principle; it is only a fact. In legal theory the
President can control every operation of every department of the
executive branch of the government; but in fact it is not practicable
for him to do so, and a limitation of fact is as potent as a prohibition
of law.
But, though the heads of the executive departments are thus no longer
simply the counselors of the President, having become in a very real
sense members of the executive, their guiding power in the conduct of
affairs, instead of advancing, has steadily diminished; because while
they were being made integral parts of the machinery of administration,
Congress was extending its own sphere of activity, was getting into the
habit of investigating and managing every thing. The executive was
losing and Congress gaining weight; and the station to which cabinets
finally attained was a station of diminished and diminishing power.
There is no distincter tendency in congressional history than the
tendency to subject even the details of administration to the constant
supervision, and all policy to the watchful intervention, of the
Standing Committees.
I am inclined to think, therefore, that the enlarged powers of Congress
are the fruits rather of an immensely increased efficiency of
organization, and of the redoubled activity consequent upon the facility
of action secured by such organization, than of any definite and
persistent scheme of conscious usurpation. It is safe to say that
Congress always had the desire to have a hand in every affair of federal
government; but it was only by degrees that it found means and
opportunity to gratify that desire, and its activity, extending its
bounds wherever perfected processes of congressional work offered
favoring prospects, has been enlarged so naturally and so silently that
it has almost always seemed of normal extent, and has never, except
perhaps during one or two brief periods of extraordinary political
disturbance, appeared to reach much beyond its acknowledged
constitutional sphere.
It is only in the exercise of those functions of public and formal
consultation and coöperation with the President which are the peculiar
offices of the Senate, that the power of Congress has made itself
offensive to popular conceptions of constitutional propriety, because it
is only in the exercise of such functions that Congress is compelled to
be overt and demonstrative in its claims of over-lordship. The House of
Representatives has made very few noisy demonstrations of its usurped
right of ascendency; not because it was diffident or unambitious, but
because it could maintain and extend its prerogatives quite as
satisfactorily without noise; whereas the aggressive policy of the
Senate has, in the acts of its "executive sessions," necessarily been
overt, in spite of the closing of the doors, because when acting as the
President's council in the ratification of treaties and in appointments
to office its competition for power has been more formally and directly
a contest with the executive than were those really more significant
legislative acts by which, in conjunction with the House, it has
habitually forced the heads of the executive departments to observe the
will of Congress at every important turn of policy. Hence it is that to
the superficial view it appears that only the Senate has been outrageous
in its encroachments upon executive privilege. It is not often easy to
see the true constitutional bearing of strictly legislative action; but
it is patent even to the least observant that in the matter of
appointments to office, for instance, senators have often outrun their
legal right to give or withhold their assent to appointments, by
insisting upon being first consulted concerning nominations as well, and
have thus made their constitutional assent to appointments dependent
upon an unconstitutional control of nominations.
This particular usurpation has been put upon a very solid basis of law
by that Tenure-of-Office Act, which took away from President Johnson, in
an hour of party heat and passion, that independent power of removal
from office with which the Constitution had invested him, but which he
had used in a way that exasperated a Senate not of his own way of
thinking. But though this teasing power of the Senate's in the matter of
the federal patronage is repugnant enough to the original theory of the
Constitution, it is likely to be quite nullified by that policy of
civil-service reform which has gained so firm, and mayhap so lasting, a
footing in our national legislation; and in no event would the control
of the patronage by the Senate have unbalanced the federal system more
seriously than it may some day be unbalanced by an irresponsible
exertion of that body's semi-executive powers in regard to the foreign
policy of the government. More than one passage in the history of our
foreign relations illustrates the danger. During the single
congressional session of 1868-9, for example, the treaty-_marring_ power
of the Senate was exerted in a way that made the comparative weakness of
the executive very conspicuous, and was ominous of very serious results.
It showed the executive in the right, but feeble and irresolute; the
Senate masterful, though in the wrong. Denmark had been asked to part
with the island of St. Thomas to the United States, and had at first
refused all terms, not only because she cared little for the price, but
also and principally because such a sale as that proposed was opposed to
the established policy of the powers of Western Europe, in whose favor
Denmark wished to stand; but finally, by stress of persistent and
importunate negotiation, she had been induced to yield; a treaty had
been signed and sent to the Senate; the people of St. Thomas had
signified their consent to the cession by a formal vote; and the island
had been actually transferred to an authorized agent of our government,
upon the faith, on the part of the Danish ministers, that our
representatives would not have trifled with them by entering upon an
important business transaction which they were not assured of their
ability to conclude. But the Senate let the treaty lie neglected in its
committee-room; the limit of time agreed upon for confirmation passed;
the Danish government, at last bent upon escaping the ridiculous
humiliation that would follow a failure of the business at that stage,
extended the time and even sent over one of its most eminent ministers
of state to urge the negotiation by all dignified means; but the Senate
cared nothing for Danish feelings and could afford, it thought, to
despise President Grant and Mr. Fish, and at the next session rejected
the treaty, and left the Danes to repossess themselves of the island,
which we had concluded not to buy after all.
It was during this same session of 1868-9 that the Senate teased the
executive by throwing every possible obstacle in the way of the
confirmation of the much more important treaty with Great Britain
relative to the Alabama claims, nearly marring for good and all one of
the most satisfactory successes of our recent foreign policy;[18] but it
is not necessary to dwell at length upon these well-known incidents of
our later history, inasmuch as these are only two of innumerable
instances which make it safe to say that from whatever point we view the
relations of the executive and the legislature, it is evident that the
power of the latter has steadily increased at the expense of the
prerogatives of the former, and that the degree in which the one of
these great branches of government is balanced against the other is a
very insignificant degree indeed. For in the exercise of his power of
veto, which is of course, beyond all comparison, his most formidable
prerogative, the President acts not as the executive but as a third
branch of the legislature. As Oliver Ellsworth said, at the first
session of the Senate, the President is, as regards the passage of
bills, but a part of Congress; and he can be an efficient, imperative
member of the legislative system only in quiet times, when parties are
pretty evenly balanced, and there are no indomitable majorities to tread
obnoxious vetoes under foot.
Even this rapid outline sketch of the two pictures, of the theory and of
the actual practices of the Constitution, has been sufficient,
therefore, to show the most marked points of difference between the two,
and to justify that careful study of congressional government, as the
real government of the Union, which I am about to undertake. The
balances of the Constitution are for the most part only ideal. For all
practical purposes the national government is supreme over the state
governments, and Congress predominant over its so-called coördinate
branches. Whereas Congress at first overshadowed neither President nor
federal judiciary, it now on occasion rules both with easy mastery and
with a high hand; and whereas each State once guarded its sovereign
prerogatives with jealous pride, and able men not a few preferred
political advancement under the governments of the great commonwealths
to office under the new federal Constitution, seats in state
legislatures are now no longer coveted except as possible approaches to
seats in Congress; and even governors of States seek election to the
national Senate as a promotion, a reward for the humbler services they
have rendered their local governments.
What makes it the more important to understand the present mechanism of
national government, and to study the methods of congressional rule in a
light unclouded by theory, is that there is plain evidence that the
expansion of federal power is to continue, and that there exists,
consequently, an evident necessity that it should be known just what to
do and how to do it, when the time comes for public opinion to take
control of the forces which are changing the character of our
Constitution. There are voices in the air which cannot be misunderstood.
The times seem to favor a centralization of governmental functions such
as could not have suggested itself as a possibility to the framers of
the Constitution. Since they gave their work to the world the whole face
of that world has changed. The Constitution was adopted when it was six
days' hard traveling from New York to Boston; when to cross East River
was to venture a perilous voyage; when men were thankful for weekly
mails; when the extent of the country's commerce was reckoned not in
millions but in thousands of dollars; when the country knew few cities,
and had but begun manufactures; when Indians were pressing upon near
frontiers; when there were no telegraph lines, and no monster
corporations. Unquestionably, the pressing problems of the present
moment regard the regulation of our vast systems of commerce and
manufacture, the control of giant corporations, the restraint of
monopolies, the perfection of fiscal arrangements, the facilitating of
economic exchanges, and many other like national concerns, amongst which
may possibly be numbered the question of marriage and divorce; and the
greatest of these problems do not fall within even the enlarged sphere
of the federal government; some of them can be embraced within its
jurisdiction by no possible stretch of construction, and the majority of
them only by wresting the Constitution to strange and as yet unimagined
uses. Still there is a distinct movement in favor of national control of
all questions of policy which manifestly demand uniformity of treatment
and power of administration such as cannot be realized by the separate,
unconcerted action of the States; and it seems probable to many that,
whether by constitutional amendment, or by still further flights of
construction, yet broader territory will at no very distant day be
assigned to the federal government. It becomes a matter of the utmost
importance, therefore, both for those who would arrest this tendency,
and for those who, because they look upon it with allowance if not with
positive favor, would let it run its course, to examine critically the
government upon which this new weight of responsibility and power seems
likely to be cast, in order that its capacity both for the work it now
does and for that which it may be called upon to do may be definitely
estimated.
Judge Cooley, in his admirable work on "The Principles of American
Constitutional Law," after quoting Mr. Adams's enumeration of the checks
and balances of the federal system, adds this comment upon Mr. Adams's
concluding statement that that system is an invention of our own. "The
invention, nevertheless, was suggested by the British Constitution, in
which a system almost equally elaborate was then in force. In its
outward forms that system still remains; but there has been for more
than a century a gradual change in the direction of a concentration of
legislative and executive power in the popular house of Parliament, so
that the government now is sometimes said, with no great departure from
the fact, to be a government by the House of Commons." But Judge Cooley
does not seem to see, or, if he sees, does not emphasize the fact, that
our own system has been hardly less subject to "a gradual change in the
direction of a concentration" of all the substantial powers of
government in the hands of Congress; so that it is now, though a wide
departure from the form of things, "no great departure from the fact" to
describe ours as a government by the Standing Committees of Congress.
This fact is, however, deducible from very many passages of Judge
Cooley's own writings; for he is by no means insensible of that
expansion of the powers of the federal government and that
crystallization of its methods which have practically made obsolete the
early constitutional theories, and even the modified theory which he
himself seems to hold.
He has tested the nice adjustment of the theoretical balances by the
actual facts, and has carefully set forth the results; but he has
nowhere brought those results together into a single comprehensive view
which might serve as a clear and satisfactory delineation of the
Constitution of to-day; nor has he, or any other writer of capacity,
examined minutely and at length that internal organization of Congress
which determines its methods of legislation, which shapes its means of
governing the executive departments, which contains in it the whole
mechanism whereby the policy of the country is in all points directed,
and which is therefore an essential branch of constitutional study. As
the House of Commons is the central object of examination in every study
of the English Constitution, so should Congress be in every study of our
own. Any one who is unfamiliar with what Congress actually does and how
it does it, with all its duties and all its occupations, with all its
devices of management and resources of power, is very far from a
knowledge of the constitutional system under which we live; and to every
one who knows these things that knowledge is very near.
II.
THE HOUSE OF REPRESENTATIVES.
No more vital truth was ever uttered than that freedom and free
institutions cannot long be maintained by any people who do not
understand the nature of their own government.
Like a vast picture thronged with figures of equal prominence and
crowded with elaborate and obtrusive details, Congress is hard to see
satisfactorily and appreciatively at a single view and from a single
stand-point. Its complicated forms and diversified structure confuse the
vision, and conceal the system which underlies its composition. It is
too complex to be understood without an effort, without a careful and
systematic process of analysis. Consequently, very few people do
understand it, and its doors are practically shut against the
comprehension of the public at large. If Congress had a few
authoritative leaders whose figures were very distinct and very
conspicuous to the eye of the world, and who could represent and stand
for the national legislature in the thoughts of that very numerous, and
withal very respectable, class of persons who must think specifically
and in concrete forms when they think at all, those persons who can make
something out of men but very little out of intangible generalizations,
it would be quite within the region of possibilities for the majority of
the nation to follow the course of legislation without any very serious
confusion of thought. I suppose that almost everybody who just now gives
any heed to the policy of Great Britain, with regard even to the reform
of the franchise and other like strictly legislative questions, thinks
of Mr. Gladstone and his colleagues rather than of the House of Commons,
whose servants they are. The question is not, What will Parliament do?
but, What will Mr. Gladstone do? And there is even less doubt that it is
easier and more natural to look upon the legislative designs of Germany
as locked up behind Bismarck's heavy brows than to think of them as
dependent upon the determinations of the Reichstag, although as a matter
of fact its consent is indispensable even to the plans of the imperious
and domineering Chancellor.
But there is no great minister or ministry to represent the will and
being of Congress in the common thought. The Speaker of the House of
Representatives stands as near to leadership as any one; but his will
does not run as a formative and imperative power in legislation much
beyond the appointment of the committees who are to lead the House and
do its work for it, and it is, therefore, not entirely satisfactory to
the public mind to trace all legislation to him. He may have a
controlling hand in starting it; but he sits too still in his chair, and
is too evidently not on the floor of the body over which he presides, to
make it seem probable to the ordinary judgment that he has much
immediate concern in legislation after it is once set afoot. Everybody
knows that he is a staunch and avowed partisan, and that he likes to
make smooth, whenever he can, the legislative paths of his party; but it
does not seem likely that all important measures originate with him, or
that he is the author of every distinct policy. And in fact he is not.
He is a great party chief, but the hedging circumstances of his official
position as presiding officer prevent his performing the part of active
leadership. He appoints the leaders of the House, but he is not himself
its leader.
The leaders of the House are the chairmen of the principal Standing
Committees. Indeed, to be exactly accurate, the House has as many
leaders as there are subjects of legislation; for there are as many
Standing Committees as there are leading classes of legislation, and in
the consideration of every topic of business the House is guided by a
special leader in the person of the chairman of the Standing Committee,
charged with the superintendence of measures of the particular class to
which that topic belongs. It is this multiplicity of leaders, this
many-headed leadership, which makes the organization of the House too
complex to afford uninformed people and unskilled observers any easy
clue to its methods of rule. For the chairmen of the Standing Committees
do not constitute a coöperative body like a ministry. They do not
consult and concur in the adoption of homogeneous and mutually helpful
measures; there is no thought of acting in concert. Each Committee goes
its own way at its own pace. It is impossible to discover any unity or
method in the disconnected and therefore unsystematic, confused, and
desultory action of the House, or any common purpose in the measures
which its Committees from time to time recommend.
And it is not only to the unanalytic thought of the common observer who
looks at the House from the outside that its doings seem helter-skelter,
and without comprehensible rule; it is not at once easy to understand
them when they are scrutinized in their daily headway through open
session by one who is inside the House. The newly-elected member,
entering its doors for the first time, and with no more knowledge of
its rules and customs than the more intelligent of his constituents
possess, always experiences great difficulty in adjusting his
preconceived ideas of congressional life to the strange and unlooked-for
conditions by which he finds himself surrounded after he has been sworn
in and has become a part of the great legislative machine. Indeed there
are generally many things connected with his career in Washington to
disgust and dispirit, if not to aggrieve, the new member. In the first
place, his local reputation does not follow him to the federal capital.
Possibly the members from his own State know him, and receive him into
full fellowship; but no one else knows him, except as an adherent of
this or that party, or as a new-comer from this or that State. He finds
his station insignificant, and his identity indistinct. But this social
humiliation which he experiences in circles in which to be a congressman
does not of itself confer distinction, because it is only to be one
among many, is probably not to be compared with the chagrin and
disappointment which come in company with the inevitable discovery that
he is equally without weight or title to consideration in the House
itself. No man, when chosen to the membership of a body possessing great
powers and exalted prerogatives, likes to find his activity repressed,
and himself suppressed, by imperative rules and precedents which seem
to have been framed for the deliberate purpose of making usefulness
unattainable by individual members. Yet such the new member finds the
rules and precedents of the House to be. It matters not to him, because
it is not apparent on the face of things, that those rules and
precedents have grown, not out of set purpose to curtail the privileges
of new members as such, but out of the plain necessities of business; it
remains the fact that he suffers under their curb, and it is not until
"custom hath made it in him a property of easiness" that he submits to
them with anything like good grace.
Not all new members suffer alike, of course, under this trying
discipline; because it is not every new member that comes to his seat
with serious purposes of honest, earnest, and duteous work. There are
numerous tricks and subterfuges, soon learned and easily used, by means
of which the most idle and self-indulgent members may readily make such
show of exemplary diligence as will quite satisfy, if it does not
positively delight, constituents in Buncombe. But the number of
congressmen who deliberately court uselessness and counterfeit
well-doing is probably small. The great majority doubtless have a keen
enough sense of their duty, and a sufficiently unhesitating desire to do
it; and it may safely be taken for granted that the zeal of new members
is generally hot and insistent. If it be not hot to begin with, it is
like to become so by reason of friction with the rules, because such men
must inevitably be chafed by the bonds of restraint drawn about them by
the inexorable observances of the House.
Often the new member goes to Washington as the representative of a
particular line of policy, having been elected, it may be, as an
advocate of free trade, or as a champion of protection; and it is
naturally his first care upon entering on his duties to seek immediate
opportunity for the expression of his views and immediate means of
giving them definite shape and thrusting them upon the attention of
Congress. His disappointment is, therefore, very keen when he finds both
opportunity and means denied him. He can introduce his bill; but that is
all he can do, and he must do that at a particular time and in a
particular manner. This he is likely to learn through rude experience,
if he be not cautious to inquire beforehand the details of practice. He
is likely to make a rash start, upon the supposition that Congress
observes the ordinary rules of parliamentary practice to which he has
become accustomed in the debating clubs familiar to his youth, and in
the mass-meetings known to his later experience. His bill is doubtless
ready for presentation early in the session, and some day, taking
advantage of a pause in the proceedings, when there seems to be no
business before the House, he rises to read it and move its adoption.
But he finds getting the floor an arduous and precarious undertaking.
There are certain to be others who want it as well as he; and his
indignation is stirred by the fact that the Speaker does not so much as
turn towards him, though he must have heard his call, but recognizes
some one else readily and as a matter of course. If he be obstreperous
and persistent in his cries of "Mr. Speaker," he may get that great
functionary's attention for a moment,--only to be told, however, that he
is out of order, and that his bill can be introduced at that stage only
by unanimous consent: immediately there are mechanically-uttered but
emphatic exclamations of objection, and he is forced to sit down
confused and disgusted. He has, without knowing it, obtruded himself in
the way of the "regular order of business," and been run over in
consequence, without being quite clear as to how the accident occurred.
Moved by the pain and discomfiture of this first experience to respect,
if not to fear, the rules, the new member casts about, by study or
inquiry, to find out, if possible, the nature and occasion of his
privileges. He learns that his only safe day is Monday. On that day the
roll of the States is called, and members may introduce bills as their
States are reached in the call. So on Monday he essays another bout with
the rules, confident this time of being on their safe side,--but mayhap
indiscreetly and unluckily over-confident. For if he supposes, as he
naturally will, that after his bill has been sent up to be read by the
clerk he may say a few words in its behalf, and in that belief sets out
upon his long-considered remarks, he will be knocked down by the rules
as surely as he was on the first occasion when he gained the floor for a
brief moment. The rap of Mr. Speaker's gavel is sharp, immediate, and
peremptory. He is curtly informed that no debate is in order; the bill
can only be referred to the appropriate Committee.
This is, indeed, disheartening; it is his first lesson in committee
government, and the master's rod smarts; but the sooner he learns the
prerogatives and powers of the Standing Committees the sooner will he
penetrate the mysteries of the rules and avoid the pain of further
contact with their thorny side. The privileges of the Standing
Committees are the beginning and the end of the rules. Both the House of
Representatives and the Senate conduct their business by what may
figuratively, but not inaccurately, be called an odd device of
_disintegration_. The House virtually both deliberates and legislates
in small sections. Time would fail it to discuss all the bills brought
in, for they every session number thousands; and it is to be doubted
whether, even if time allowed, the ordinary processes of debate and
amendment would suffice to sift the chaff from the wheat in the bushels
of bills every week piled upon the clerk's, desk. Accordingly, no futile
attempt is made to do anything of the kind. The work is parceled out,
most of it to the forty-seven Standing Committees which constitute the
regular organization of the House, some of it to select committees
appointed for special and temporary purposes. Each of the almost
numberless bills that come pouring in on Mondays is "read a first and
second time,"--simply perfunctorily read, that is, by its title, by the
clerk, and passed by silent assent through its first formal courses, for
the purpose of bringing it to the proper stage for commitment,--and
referred without debate to the appropriate Standing Committee.
Practically, no bill escapes commitment--save, of course, bills
introduced by committees, and a few which may now and then be crowded
through under a suspension of the rules, granted by a two-thirds
vote--though the exact disposition to be made of a bill is not always
determined easily and as a matter of course. Besides the great
Committee of Ways and Means and the equally great Committee on
Appropriations, there are Standing Committees on Banking and Currency,
on Claims, on Commerce, on the Public Lands, on Post-Offices and
Post-Roads, on the Judiciary, on Public Expenditures, on Manufactures,
on Agriculture, on Military Affairs, on Naval Affairs, on Mines and
Mining, on Education and Labor, on Patents, and on a score of other
branches of legislative concern; but careful and differential as is the
topical division of the subjects of legislation which is represented in
the titles of these Committees, it is not always evident to which
Committee each particular bill should go. Many bills affect subjects
which may be regarded as lying as properly within the jurisdiction of
one as of another of the Committees; for no hard and fast lines separate
the various classes of business which the Committees are commissioned to
take in charge. Their jurisdictions overlap at many points, and it must
frequently happen that bills are read which cover just this common
ground. Over the commitment of such bills sharp and interesting
skirmishes often take place. There is active competition for them, the
ordinary, quiet routine of matter-of-course reference being interrupted
by rival motions seeking to give very different directions to the
disposition to be made of them. To which Committee should a bill "to
fix and establish the maximum rates of fares of the Union Pacific and
Central Pacific Railroads" be sent,--to the Committee on Commerce or to
the Committee on the Pacific Railroads? Should a bill which prohibits
the mailing of certain classes of letters and circulars go to the
Committee on Post-Offices and Post-Roads, because it relates to the
mails, or to the Committee on the Judiciary, because it proposes to make
any transgression of its prohibition a crime? What is the proper
disposition of any bill which thus seems to lie within two distinct
committee jurisdictions?
The fate of bills committed is generally not uncertain. As a rule, a
bill committed is a bill doomed. When it goes from the clerk's desk to a
committee-room it crosses a parliamentary bridge of sighs to dim
dungeons of silence whence it will never return. The means and time of
its death are unknown, but its friends never see it again. Of course no
Standing Committee is privileged to take upon itself the full powers of
the House it represents, and formally and decisively reject a bill
referred to it; its disapproval, if it disapproves, must be reported to
the House in the form of a recommendation that the bill "do not pass."
But it is easy, and therefore common, to let the session pass without
making any report at all upon bills deemed objectionable or
unimportant, and to substitute for reports upon them a few bills of the
Committee's own drafting; so that thousands of bills expire with the
expiration of each Congress, not having been rejected, but having been
simply neglected. There was not time to report upon them.
Of course it goes without saying that the practical effect of this
Committee organization of the House is to consign to each of the
Standing Committees the entire direction of legislation upon those
subjects which properly come to its consideration. As to those subjects
it is entitled to the initiative, and all legislative action with regard
to them is under its overruling guidance. It gives shape and course to
the determinations of the House. In one respect, however, its initiative
is limited. Even a Standing Committee cannot report a bill whose
subject-matter has not been referred to it by the House, "by the rules
or otherwise;" it cannot volunteer advice on questions upon which its
advice has not been asked. But this is not a serious, not even an
operative, limitation upon its functions of suggestion and leadership;
for it is a very simple matter to get referred to it any subject it
wishes to introduce to the attention of the House. Its chairman, or one
of its leading members, frames a bill covering the point upon which the
Committee wishes to suggest legislation; brings it in, in his capacity
as a private member, on Monday, when the call of States is made; has it
referred to his Committee; and thus secures an opportunity for the
making of the desired report.
It is by this imperious authority of the Standing Committees that the
new member is stayed and thwarted whenever he seeks to take an active
part in the business of the House. Turn which way he may, some privilege
of the Committees stands in his path. The rules are so framed as to put
all business under their management; and one of the discoveries which
the new member is sure to make, albeit after many trying experiences and
sobering adventures and as his first session draws towards its close,
is, that under their sway freedom of debate finds no place of allowance,
and that his long-delayed speech must remain unspoken. For even a long
congressional session is too short to afford time for a full
consideration of all the reports of the forty-seven Committees, and
debate upon them must be rigidly cut short, if not altogether excluded,
if any considerable part of the necessary business is to be gotten
through with before adjournment. There are some subjects to which the
House must always give prompt attention; therefore reports from the
Committees on Printing and on Elections are always in order; and there
are some subjects to which careful consideration must always be
accorded; therefore the Committee of Ways and Means and the Committee on
Appropriations are clothed with extraordinary privileges; and revenue
and supply bills may be reported, and will ordinarily be considered, at
any time. But these four are the only specially licensed Committees. The
rest must take their turns in fixed order as they are called on by the
Speaker, contenting themselves with such crumbs of time as fall from the
tables of the four Committees of highest prerogative.
Senator Hoar, of Massachusetts, whose long congressional experience
entitles him to speak with authority, calculates[19] that, "supposing
the two sessions which make up the life of the House to last ten
months," most of the Committees have at their disposal during each
Congress but two hours apiece in which "to report upon, debate, and
dispose of all the subjects of general legislation committed to their
charge." For of course much time is wasted. No Congress gets immediately
to work upon its first assembling. It has its officers to elect, and
after their election some time must elapse before its organization is
finally completed by the appointment of the Committees. It adjourns for
holidays, too, and generally spares itself long sittings. Besides, there
are many things to interrupt the call of the Committees upon which most
of the business waits. That call can proceed only during the morning
hours,--the hours just after the reading of the "Journal,"--on Tuesdays,
Wednesdays, and Thursdays; and even then it may suffer postponement
because of the unfinished business of the previous day which is entitled
to first consideration. The call cannot proceed on Mondays because the
morning hour of Mondays is devoted invariably to the call of the States
for the introduction of bills and resolutions; nor on Fridays, for
Friday is "private bill day," and is always engrossed by the Committee
on Claims, or by other fathers of bills which have gone upon the
"private calendar." On Saturdays the House seldom sits.
The reports made during these scant morning hours are ordered to be
printed, for future consideration in their turn, and the bills
introduced by the Committees are assigned to the proper calendars, to be
taken up in order at the proper time. When a morning hour has run out,
the House hastens to proceed with the business on the Speaker's table.
These are some of the plainer points of the rules. They are full of
complexity, and of confusion to the uninitiated, and the confusions of
practice are greater than the confusions of the rules. For the regular
order of business is constantly being interrupted by the introduction of
resolutions offered "by unanimous consent," and of bills let in under a
"suspension of the rules." Still, it is evident that there is one
principle which runs through every stage of procedure, and which is
never disallowed or abrogated,--the principle that the Committees shall
rule without let or hindrance. And this is a principle of extraordinary
formative power. It is the mould of all legislation. In the first place,
the speeding of business under the direction of the Committees
determines the character and the amount of the discussion to which
legislation shall be subjected. The House is conscious that time
presses. It knows that, hurry as it may, it will hardly get through with
one eighth of the business laid out for the session, and that to pause
for lengthy debate is to allow the arrears to accumulate. Besides, most
of the members are individually anxious to expedite action on every
pending measure, because each member of the House is a member of one or
more of the Standing Committees, and is quite naturally desirous that
the bills prepared by his Committees, and in which he is, of course,
specially interested by reason of the particular attention which he has
been compelled to give them, should reach a hearing and a vote as soon
as possible. It must, therefore, invariably happen that the Committee
holding the floor at any particular time is the Committee whose
proposals the majority wish to dispose of as summarily as circumstances
will allow, in order that the rest of the forty-two unprivileged
Committees to which the majority belong may gain the earlier and the
fairer chance of a hearing. A reporting Committee, besides, is generally
as glad to be pushed as the majority are to push it. It probably has
several bills matured, and wishes to see them disposed of before its
brief hours of opportunity[20] are passed and gone.
Consequently, it is the established custom of the House to accord the
floor for one hour to the member of the reporting Committee who has
charge of the business under consideration; and that hour is made the
chief hour of debate. The reporting committee-man seldom, if ever, uses
the whole of the hour himself for his opening remarks; he uses part of
it, and retains control of the rest of it; for by undisputed privilege
it is his to dispose of, whether he himself be upon the floor or not. No
amendment is in order during that hour, unless he consent to its
presentation; and he does not, of course, yield his time
indiscriminately to any one who wishes to speak. He gives way, indeed,
as in fairness he should, to opponents as well as to friends of the
measure under his charge; but generally no one is accorded a share of
his time who has not obtained his previous promise of the floor; and
those who do speak must not run beyond the number of minutes he has
agreed to allow them. He keeps the course both of debate and of
amendment thus carefully under his own supervision, as a good tactician,
and before he finally yields the floor, at the expiration of his hour,
he is sure to move the previous question. To neglect to do so would be
to lose all control of the business in hand; for unless the previous
question is ordered the debate may run on at will, and his Committee's
chance for getting its measures through slip quite away; and that would
be nothing less than his disgrace. He would be all the more blameworthy
because he had but to ask for the previous question to get it. As I have
said, the House is as eager to hurry business as he can be, and will
consent to almost any limitation of discussion that he may demand;
though, probably, if he were to throw the reins upon its neck, it would
run at large from very wantonness, in scorn of such a driver. The
previous question once ordered, all amendments are precluded, and one
hour remains for the summing-up of this same privileged committee-man
before the final vote is taken and the bill disposed of.
These are the customs which baffle and perplex and astound the new
member. In these precedents and usages, when at length he comes to
understand them, the novice spies out the explanation of the fact, once
so confounding and seemingly inexplicable, that when he leaped to his
feet to claim the floor other members who rose after him were coolly and
unfeelingly preferred before him by the Speaker. Of course it is plain
enough now that Mr. Speaker knew beforehand to whom the representative
of the reporting Committee had agreed to yield the floor; and it was no
use for any one else to cry out for recognition. Whoever wished to speak
should, if possible, have made some arrangement with the Committee
before the business came to a hearing, and should have taken care to
notify Mr. Speaker that he was to be granted the floor for a few
moments.
Unquestionably this, besides being a very interesting, is a very novel
and significant method of restricting debate and expediting legislative
action,--a method of very serious import, and obviously fraught with
far-reaching constitutional effects. The practices of debate which
prevail in its legislative assembly are manifestly of the utmost
importance to a self-governing people; for that legislation which is not
thoroughly discussed by the legislating body is practically done in a
corner. It is impossible for Congress itself to do wisely what it does
so hurriedly; and the constituencies cannot understand what Congress
does not itself stop to consider. The prerogatives of the Committees
represent something more than a mere convenient division of labor. There
is only one part of its business to which Congress, as a whole,
attends,--that part, namely, which is embraced under the privileged
subjects of revenue and supply. The House never accepts the proposals of
the Committee of Ways and Means, or of the Committee on Appropriations,
without due deliberation; but it allows almost all of its other Standing
Committees virtually to legislate for it. In form, the Committees only
digest the various matter introduced by individual members, and prepare
it, with care, and after thorough investigation, for the final
consideration and action of the House; but, in reality, they dictate the
course to be taken, prescribing the decisions of the House not only,
but measuring out, according to their own wills, its opportunities for
debate and deliberation as well. The House sits, not for serious
discussion, but to sanction the conclusions of its Committees as rapidly
as possible. It legislates in its committee-rooms; not by the
determinations of majorities, but by the resolutions of
specially-commissioned minorities; so that it is not far from the truth
to say that Congress in session is Congress on public exhibition, whilst
Congress in its committee-rooms is Congress at work.
Habit grows fast, even upon the unconventional American, and the nature
of the House of Representatives has, by long custom, been shaped to the
spirit of its rules. Representatives have attained, by rigorous
self-discipline, to the perfect stature of the law under which they
live, having purged their hearts, as completely as may be of all desire
to do that which it is the chief object of that law to forbid by giving
over a vain lust after public discussion. The entire absence of the
instinct of debate amongst them, and their apparent unfamiliarity with
the idea of combating a proposition by argument, was recently
illustrated by an incident which was quite painfully amusing. The
democratic majority of the House of the Forty-eighth Congress desired
the immediate passage of a pension bill of rather portentous
proportions; but the republican minority disapproved of the bill with
great fervor, and, when it was moved by the Pension Committee, late one
afternoon, in a thin House, that the rules be suspended, and an early
day set for a consideration of the bill, the Republicans addressed
themselves to determined and persistent "filibustering" to prevent
action. First they refused to vote, leaving the Democrats without an
acting quorum; then, all night long, they kept the House at roll-calling
on dilatory and obstructive motions, the dreary dragging of the time
being relieved occasionally by the amusement of hearing the excuses of
members who had tried to slip off to bed, or by the excitement of an
angry dispute between the leaders of the two parties as to the
responsibility for the dead-lock. Not till the return of morning brought
in the delinquents to recruit the democratic ranks did business advance
a single step. Now, the noteworthy fact about this remarkable scene is,
that the minority were not manoeuvring to gain opportunity or time for
debate, in order that the country might be informed of the true nature
of the obnoxious bill, but were simply fighting a preliminary motion
with silent, dogged obstruction. After the whole night had been spent in
standing out against action, the House is said to have been "in no mood
for the thirty-minutes' debate allowed by the rules," and a final vote
was taken, with only a word or two said. It was easier and more natural,
as everybody saw, to direct attention to the questionable character of
what was being attempted by the majority by creating a somewhat
scandalous "scene," of which every one would talk, than by making
speeches which nobody would read. It was a notable commentary on the
characteristic methods of our system of congressional government.
One very noteworthy result of this system is to shift the theatre of
debate upon legislation from the floor of Congress to the privacy of the
committee-rooms. Provincial gentlemen who read the Associated Press
dispatches in their morning papers as they sit over their coffee at
breakfast are doubtless often very sorely puzzled by certain of the
items which sometimes appear in the brief telegraphic notes from
Washington. What can they make of this for instance: "The House
Committee on Commerce to-day heard arguments from the congressional
delegation from" such and such States "in advocacy of appropriations for
river and harbor improvements which the members desire incorporated in
the River and Harbor Appropriations Bill"? They probably do not
understand that it would have been useless for members not of the
Committee on Commerce to wait for any opportunity to make their
suggestions on the floor of Congress, where the measure to which they
wish to make additions would be under the authoritative control of the
Committee, and where, consequently, they could gain a hearing only by
the courteous sufferance of the committee-man in charge of the report.
Whatever is to be done must be done by or through the Committee.
It would seem, therefore, that practically Congress, or at any rate the
House of Representatives, delegates not only its legislative but also
its deliberative functions to its Standing Committees. The little public
debate that arises under the stringent and urgent rules of the House is
formal rather than effective, and it is the discussions which take place
in the Committees that give form to legislation. Undoubtedly these
siftings of legislative questions by the Committees are of great value
in enabling the House to obtain "undarkened counsel" and intelligent
suggestions from authoritative sources. All sober, purposeful,
business-like talk upon questions of public policy, whether it take
place in Congress or only before the Committees of Congress, is of great
value; and the controversies which spring up in the committee-rooms,
both amongst the committee-men themselves and between those who appear
before the Committees as advocates of special measures, cannot but
contribute to add clearness and definite consistency to the reports
submitted to the House.
There are, however, several very obvious reasons why the most thorough
canvass of business by the Committees, and the most exhaustive and
discriminating discussion of all its details in their rooms, cannot take
the place or fulfill the uses of amendment and debate by Congress in
open session. In the first place, the proceedings of the Committees are
private and their discussions unpublished. The chief, and unquestionably
the most essential, object of all discussion of public business is the
enlightenment of public opinion; and of course, since it cannot hear the
debates of the Committees, the nation is not apt to be much instructed
by them. Only the Committees are enlightened. There is a conclusive
objection to the publication of the proceedings of the Committees, which
is recognized as of course by all parliamentary lawyers, namely, that
those proceedings are of no force till confirmed by the House. A
Committee is commissioned, not to instruct the public, but to instruct
and guide the House.
Indeed it is not usual for the Committees to open their sittings often
to those who desire to be heard with regard to pending questions; and no
one can demand a hearing as of right. On the contrary, they are
privileged and accustomed to hold their sessions in absolute secrecy. It
is made a breach of order for any member to allude on the floor of the
House to anything that has taken place in committee, "unless by a
written report sanctioned by a majority of the Committee;" and there is
no place in the regular order of business for a motion instructing a
Committee to conduct its investigations with open doors. Accordingly, it
is only by the concession of the Committees that arguments are made
before them.
When they do suffer themselves to be approached, moreover, they
generally extend the leave to others besides their fellow-congressmen.
The Committee on Commerce consents to listen to prominent railroad
officials upon the subject of the regulation of freight charges and
fares; and scores of interested persons telegraph inquiries to the
chairman of the Committee of Ways and Means as to the time at which they
are to be permitted to present to the Committee their views upon the
revision of the tariff. The speeches made before the Committees at their
open sessions are, therefore, scarcely of such a kind as would be
instructive to the public, and on that account worth publishing. They
are as a rule the pleas of special pleaders, the arguments of advocates.
They have about them none of the searching, critical, illuminating
character of the higher order of parliamentary debate, in which men are
pitted against each other as equals, and urged to sharp contest and
masterful strife by the inspiration of political principle and personal
ambition, through the rivalry of parties and the competition of
policies. They represent a joust between antagonistic interests, not a
contest of principles. They could scarcely either inform or elevate
public opinion, even if they were to obtain its heed.
For the instruction and elevation of public opinion, in regard to
national affairs, there is needed something more than special pleas for
special privileges. There is needed public discussion of a peculiar
sort: a discussion by the sovereign legislative body itself, a
discussion in which every feature of each mooted point of policy shall
be distinctly brought out, and every argument of significance pushed to
the farthest point of insistence, by recognized leaders in that body;
and, above all, a discussion upon which something--something of interest
or importance, some pressing question of administration or of law, the
fate of a party or the success of a conspicuous politician--evidently
depends. It is only a discussion of this sort that the public will heed;
no other sort will impress it.
There could, therefore, be no more unwelcome revelation to one who has
anything approaching a statesman-like appreciation of the essential
conditions of intelligent self-government than just that which must
inevitably be made to every one who candidly examines our congressional
system; namely, that, under that system, such discussion is impossible.
There are, to begin with, physical and _architectural_ reasons why
business-like debate of public affairs by the House of Representatives
is out of the question. To those who visit the galleries of the
representative chamber during a session of the House these reasons are
as obvious as they are astonishing. It would be natural to expect that a
body which meets ostensibly for consultation and deliberation should
hold its sittings in a room small enough to admit of an easy interchange
of views and a ready concert of action, where its members would be
brought into close, sympathetic contact; and it is nothing less than
astonishing to find it spread at large through the vast spaces of such a
chamber as the hall of the House of Representatives, where there are no
close ranks of coöperating parties, but each member has a roomy desk and
an easy revolving chair; where broad aisles spread and stretch
themselves; where ample, soft-carpeted areas lie about the spacious
desks of the Speaker and clerks; where deep galleries reach back from
the outer limits of the wide passages which lie beyond "the bar": an
immense, capacious chamber, disposing its giant dimensions freely
beneath the great level lacunar ceiling through whose glass panels the
full light of day pours in. The most vivid impression the visitor gets
in looking over that vast hall is the impression of space. A speaker
must needs have a voice like O'Connell's, the practical visitor is apt
to think, as he sits in the gallery, to fill even the silent spaces of
that room; how much more to overcome the disorderly noises that buzz and
rattle through it when the representatives are assembled,--a voice
clear, sonorous, dominant, like the voice of a clarion. One who speaks
there with the voice and lungs of the ordinary mortal must content
himself with the audience of those members in his own immediate
neighborhood, whose ears he rudely assails in vehement efforts to
command the attention of those beyond them, and who, therefore, cannot
choose but hear him.
It is of this magnitude of the hall of the representatives that those
news telegrams are significant which speak of an interesting or witty
speech in Congress as having drawn about the speaker listeners from all
parts of the House. As one of our most noted wits would say, a member
must needs take a Sabbath day's journey to get within easy hearing
distance of a speaker who is addressing the House from the opposite
side of the hall; for besides the space there are the noises
intervening, the noises of loud talking and of the clapping of hands for
the pages, making the task of the member who is speaking "very like
trying to address the people in the omnibuses from the curbstone in
front of the Astor House."[21]
But these physical limitations to debate, though serious and real, are
amongst the least important, because they are amongst the least
insuperable. If effective and business-like public discussions were
considered indispensable by Congress, or even desirable, the present
chamber could readily be divided into two halls: the one a commodious
reading-room where the members might chat and write at ease as they now
do in the House itself; and the other a smaller room suitable for debate
and earnest business. This, in fact, has been several times proposed,
but the House does not feel that there is any urgency about providing
facilities for debate, because it sees no reason to desire an increase
of speech-making, in view of the fact that, notwithstanding all the
limitations now put upon discussion, its business moves much too slowly.
The early Congresses had time to talk; Congresses of to-day have not.
Before that wing of the Capitol was built in which the representative
chamber now is, the House used to sit in the much smaller room, now
empty save for the statuary to whose exhibition it is devoted; and there
much speech-making went on from day to day; there Calhoun and Randolph
and Webster and Clay won their reputations as statesmen and orators. So
earnest and interesting were the debates of those days, indeed, that the
principal speeches delivered in Congress seem to have been usually
printed at length in the metropolitan journals.[22] But the number and
length of the speeches was even then very much deplored; and so early as
1828 a writer in the "North American Review" condemns what he calls "the
habit of congressional debating," with the air of one who speaks against
some abuse which every one acknowledges to be a nuisance.[23] Eleven
years later a contributor to the "Democratic Review"[24] declared that
it had "been gravely charged upon" Mr. Samuel Cushman, then a member of
the Twenty-fifth Congress from New Hampshire, "that he moves the
previous question. Truly," continues the essayist, "he does, and for
that very service, if he had never done anything else, he deserves a
monument as a public benefactor. One man who can arrest a tedious,
long-winded, factious, time-killing debate, is worth forty who can
provoke or keep one up. It requires some moral courage, some spirit, and
some tact also, to move the previous question, and to move it, too, at
precisely the right point of time."
This ardent and generous defense of Mr. Cushman against the odious
accusation of moving the previous question would doubtless be
exquisitely amusing to the chairman of one of the Standing Committees of
the Forty-eighth Congress, to whom the previous question seems one of
the commonest necessities of life. But, after all, he ought not to laugh
at the ingenuous essayist, for that was not the heyday of the rules;
they then simply served and did not tyrannize over the House. They did
not then have the opportunity of empire afforded them by the scantiness
of time which hurries the House, and the weight of business which
oppresses it; and they were at a greater disadvantage in a room where
oratory was possible than they are in a vast chamber where the orator's
voice is drowned amidst the noises of disorderly inattention. Nowadays
would-be debaters are easily thrust out of Congress and forced to resort
to the printing-office; are compelled to content themselves with
speaking from the pages of the "Record" instead of from their places in
the House. Some people who live very far from Washington may imagine
that the speeches which are spread at large in the columns of the
"Congressional Record," or which their representative sends them in
pamphlet form, were actually delivered in Congress; but every one else
knows that they were not; that Congress is constantly granting leave to
its members to insert in the official reports of the proceedings
speeches which it never heard and does not care to hear, but which it is
not averse from printing at the public expense, if it is desirable that
constituents and the country at large should read them. It will not
stand between a member and his constituents so long as it can indulge
the one and satisfy the others without any inconvenience to itself or
any serious drain upon the resources of the Treasury. The public printer
does not object.
But there are other reasons still more organic than these why the
debates of Congress cannot, under our present system, have that serious
purpose of search into the merits of policies and that definite and
determinate party--or, if you will, partisan--aim without which they can
never be effective for the instruction of public opinion, or the
cleansing of political action. The chief of these reasons, because the
parent of all the rest, is that there are in Congress no authoritative
leaders who are the recognized spokesmen of their parties. Power is
nowhere concentrated; it is rather deliberately and of set policy
scattered amongst many small chiefs. It is divided up, as it were, into
forty-seven seigniories, in each of which a Standing Committee is the
court-baron and its chairman lord-proprietor. These petty barons, some
of them not a little powerful, but none of them within reach of the full
powers of rule, may at will exercise an almost despotic sway within
their own shires, and may sometimes threaten to convulse even the realm
itself; but both their mutual jealousies and their brief and restricted
opportunities forbid their combining, and each is very far from the
office of common leader.
I know that to some this scheme of distributed power and disintegrated
rule seems a very excellent device whereby we are enabled to escape a
dangerous "one-man power" and an untoward concentration of functions;
and it is very easy to see and appreciate the considerations which make
this view of committee government so popular. It is based upon a very
proper and salutary fear of _irresponsible_ power; and those who most
resolutely maintain it always fight from the position that all
leadership in legislation is hard to restrain in proportion to its size
and to the strength of its prerogatives, and that to divide it is to
make it manageable. They aver, besides, that the less a man has to
do--that is to say, the more he is confined to single departments and to
definite details--the more intelligent and thorough will his work be.
They like the Committees, therefore, just because they are many and
weak, being quite willing to abide their being despotic within their
narrow spheres.
It seems evident, however, when the question is looked at from another
stand-point, that, as a matter of fact and experience, the more power is
divided the more irresponsible it becomes. A mighty baron who can call
half the country to arms is watched with greater jealousy, and,
therefore, restrained with more vigilant care than is ever vouchsafed
the feeble master of a single and solitary castle. The one cannot stir
abroad upon an innocent pleasure jaunt without attracting the suspicious
attention of the whole country-side; the other may vex and harry his
entire neighborhood without fear of let or hindrance. It is ever the
little foxes that spoil the grapes. At any rate, to turn back from
illustration to the facts of the argument, it is plain enough that the
petty character of the leadership of each Committee contributes towards
making its despotism sure by making its duties uninteresting. The
Senate almost always discusses its business with considerable
thoroughness; and even the House, whether by common consent or by reason
of such persistent "filibustering" on the part of the minority as
compels the reporting Committee and the majority to grant time for talk,
sometimes stops to debate committee reports at length; but nobody,
except, perhaps, newspaper editors, finds these debates interesting
reading.
Why is it that many intelligent and patriotic people throughout this
country, from Virginia to California,--people who, beyond all question,
love their State and the Union more than they love our cousin state over
sea,--subscribe for the London papers in order to devour the
parliamentary debates, and yet would never think of troubling themselves
to make tedious progress through a single copy of the "Congressional
Record"? Is it because they are captivated by the old-world dignity of
royal England with its nobility and its court pageantry, or because of a
vulgar desire to appear better versed than their neighbors in foreign
affairs, and to affect familiarity with British statesmen? No; of course
not. It is because the parliamentary debates are interesting and ours
are not. In the British House of Commons the functions and privileges of
our Standing Committees are all concentrated in the hands of the
Ministry, who have, besides, some prerogatives of leadership which even
our Committees do not possess, so that they carry all responsibility as
well as great power, and all debate wears an intense personal and party
interest. Every important discussion is an arraignment of the Ministry
by the Opposition,--an arraignment of the majority by the minority; and
every important vote is a party defeat and a party triumph. The whole
conduct of the government turns upon what is said in the Commons,
because the revelations of debate often change votes, and a Ministry
loses hold upon power as it loses hold upon the confidence of the
Commons. This great Standing Committee goes out whenever it crosses the
will of the majority. It is, therefore, for these very simple and
obvious reasons that the parliamentary debates are read on this side of
the water in preference to the congressional debates. They affect the
ministers, who are very conspicuous persons, and in whom, therefore, all
the intelligent world is interested; and they determine the course of
politics in a great empire. The season of a parliamentary debate is a
great field day on which Liberals and Conservatives pit their full
forces against each other, and people like to watch the issues of the
contest.
Our congressional debates, on the contrary, have no tithe of this
interest, because they have no tithe of such significance and
importance. The committee reports, upon which the debates take place,
are backed by neither party; they represent merely the recommendations
of a small body of members belonging to both parties, and are quite as
likely to divide the vote of the party to which the majority of the
Committee belong as they are to meet with opposition from the other side
of the chamber. If they are carried, it is no party triumph; if they are
lost, it is no party discomfiture. They are no more than the proposals
of a mixed Committee, and may be rejected without political
inconvenience to either party or reproof to the Committee; just as they
may be passed without compliment to the Committee or political advantage
to either side of the House. Neither party has any great stake in the
controversy. The only importance that can attach to the vote must hang
upon its relation to the next general election. If the report concern a
question which is at the time so much in the public eye that all action
upon it is likely to be marked and remembered against the day of popular
action, parties are careful to vote as solidly as possible on what they
conceive to be the safe side; but all other reports are disposed of
without much thought of their influence upon the fortunes of distant
elections, because that influence is remote and problematical.
In a word, the national parties do not act in Congress under the
restraint of a sense of immediate responsibility. Responsibility is
spread thin; and no vote or debate can gather it. It rests not so much
upon parties as upon individuals; and it rests upon individuals in no
such way as would make it either just or efficacious to visit upon them
the iniquity of any legislative act. Looking at government from a
practical and business-like, rather than from a theoretical and
abstractly-ethical point of view,--treating the business of government
as a business,--it seems to be unquestionably and in a high degree
desirable that all legislation should distinctly represent the action of
parties as parties. I know that it has been proposed by enthusiastic,
but not too practical, reformers to do away with parties by some
legerdemain of governmental reconstruction, accompanied and supplemented
by some rehabilitation, devoutly to be wished, of the virtues least
commonly controlling in fallen human nature; but it seems to me that it
would be more difficult and less desirable than these amiable persons
suppose to conduct a government of the many by means of any other device
than party organization, and that the great need is, not to get rid of
parties, but to find and use some expedient by which they can be managed
and made amenable from day to day to public opinion. Plainly this
cannot be effected by punishing here and there a member of Congress who
has voted for a flagrantly dishonest appropriation bill, or an obnoxious
measure relating to the tariff. Unless the punishment can be extended to
the party--if any such be recognizable--with which these members have
voted, no advantage has been won for self-government, and no triumph has
been gained by public opinion. It should be desired that parties should
act in distinct organizations, in accordance with avowed principles,
under easily recognized leaders, in order that the voters might be able
to declare by their ballots, not only their condemnation of any past
policy, by withdrawing all support from the party responsible for it;
but also and particularly their will as to the future administration of
the government, by bringing into power a party pledged to the adoption
of an acceptable policy.
It is, therefore, a fact of the most serious consequence that by our
system of congressional rule no such means of controlling legislation is
afforded. Outside of Congress the organization of the national parties
is exceedingly well-defined and tangible; no one could wish it, and few
could imagine it, more so; but within Congress it is obscure and
intangible. Our parties marshal their adherents with the strictest
possible discipline for the purpose of carrying elections, but their
discipline is very slack and indefinite in dealing with legislation. At
least there is within Congress no _visible_, and therefore no
_controllable_ party organization. The only bond of cohesion is the
caucus, which occasionally whips a party together for coöperative action
against the time for casting its vote upon some critical question. There
is always a majority and a minority, indeed, but the legislation of a
session does not represent the policy of either; it is simply an
aggregate of the bills recommended by Committees composed of members
from both sides of the House, and it is known to be usually, not the
work of the majority men upon the Committees, but compromise conclusions
bearing some shade or tinge of each of the variously-colored opinions
and wishes of the committee-men of both parties.
It is plainly the representation of both parties on the Committees that
makes party responsibility indistinct and organized party action almost
impossible. If the Committees were composed entirely of members of the
majority, and were thus constituted representatives of the party in
power, the whole course of congressional proceedings would
unquestionably take on a very different aspect. There would then
certainly be a compact opposition to face the organized majority.
Committee reports would be taken to represent the views of the party in
power, and, instead of the scattered, unconcerted opposition, without
plan or leaders, which now sometimes subjects the propositions of the
Committees to vexatious hindrances and delays, there would spring up
debate under skillful masters of opposition, who could drill their
partisans for effective warfare and give shape and meaning to the
purposes of the minority. But of course there can be no such definite
division of forces so long as the efficient machinery of legislation is
in the hands of both parties at once; so long as the parties are mingled
and harnessed together in a common organization.
It may be said, therefore, that very few of the measures which come
before Congress are party measures. They are, at any rate, not brought
in as party measures. They are indorsed by select bodies of members
chosen with a view to constituting an impartial board of examination for
the judicial and thorough consideration of each subject of legislation;
no member of one of these Committees is warranted in revealing any of
the disagreements of the committee-room or the proportions of the votes
there taken; and no color is meant to be given to the supposition that
the reports made are intended to advance any party interest. Indeed,
only a very slight examination of the measures which originate with the
Committees is necessary to show that most of them are framed with a view
to securing their easy passage by giving them as neutral and inoffensive
a character as possible. The manifest object is to dress them to the
liking of all factions.
Under such circumstances, neither the failure nor the success of any
policy inaugurated by one of the Committees can fairly be charged to the
account of either party. The Committee acted honestly, no doubt, and as
they thought best; and there can, of course, be no assurance that, by
taking away its congressional majority from the party to which the
greater number of the committee-men belong, a Committee could be secured
which would act better or differently.
The conclusion of the whole matter is, then, that public opinion cannot
be instructed or elevated by the debates of Congress, not only because
there are few debates seriously undertaken by Congress, but principally
because no one not professionally interested in the daily course of
legislation cares to read what is said by the debaters when Congress
does stop to talk, inasmuch as nothing depends upon the issue of the
discussion. The ordinary citizen cannot be induced to pay much heed to
the details, or even to the main principles, of law-making, unless
something else more interesting than the law itself be involved in the
pending decision of the law-makers. If the fortunes of a party or the
power of a great political leader are staked upon the final vote, he
will listen with the keenest interest to all that the principal actors
may have to say, and absorb much instruction in so doing; but if no such
things hang in the balance, he will not turn from his business to
listen; and if the true issues are not brought out in eager public
contests which catch his ear because of their immediate personal
interest, but must be sought amidst the information which can be made
complete only by reading scores of newspapers, he will certainly never
find them or care for them, and there is small use in printing a
"Record" which he will not read.
I know not how better to describe our form of government in a single
phrase than by calling it a government by the chairmen of the Standing
Committees of Congress. This disintegrate ministry, as it figures on the
floor of the House of Representatives, has many peculiarities. In the
first place, it is made up of the elders of the assembly; for, by
custom, seniority in congressional service determines the bestowal of
the principal chairmanships; in the second place, it is constituted of
selfish and warring elements; for chairman fights against chairman for
use of the time of the assembly, though the most part of them are
inferior to the chairman of Ways and Means, and all are subordinate to
the chairman of the Committee on Appropriations; in the third place,
instead of being composed of the associated leaders of Congress, it
consists of the dissociated heads of forty-eight "little legislatures"
(to borrow Senator Hoar's apt name for the Committees); and, in the
fourth place, it is instituted by appointment from Mr. Speaker, who is,
by intention, the chief judicial, rather than the chief political,
officer of the House.
It is highly interesting to note the extraordinary power accruing to Mr.
Speaker through this pregnant prerogative of appointing the Standing
Committees of the House. That power is, as it were, the central and
characteristic inconvenience and anomaly of our constitutional system,
and on that account excites both the curiosity and the wonder of the
student of institutions. The most esteemed writers upon our Constitution
have failed to observe, not only that the Standing Committees are the
most essential machinery of our governmental system, but also that the
Speaker of the House of Representatives is the most powerful functionary
of that system. So sovereign is he within the wide sphere of his
influence that one could wish for accurate knowledge as to the actual
extent of his power. But Mr. Speaker's powers cannot be known
accurately, because they vary with the character of Mr. Speaker. All
Speakers have, of late years especially, been potent factors in
legislation, but some have, by reason of greater energy or less
conscience, made more use of their opportunities than have others.
The Speaker's privilege of appointing the Standing Committees is nearly
as old as Congress itself. At first the House tried the plan of
balloting for its more important Committees, ordering, in April, 1789,
that the Speaker should appoint only those Committees which should
consist of not more than three members; but less than a year's
experience of this method of organizing seems to have furnished
satisfactory proof of its impracticability, and in January, 1790, the
present rule was adopted: that "All committees shall be appointed by the
Speaker, unless otherwise specially directed by the House." The rules of
one House of Representatives are not, however, necessarily the rules of
the next. No rule lives save by biennial readoption. Each newly-elected
House meets without rules for its governance, and amongst the first acts
of its first session is usually the adoption of the resolution that the
rules of its predecessor shall be its own rules, subject, of course, to
such revisions as it may, from time to time, see fit to make. Mr.
Speaker's power of appointment, accordingly, always awaits the passage
of this resolution; but it never waits in vain, for no House, however
foolish in other respects, has yet been foolish enough to make fresh
trial of electing its Committees. That mode may do well enough for the
cool and leisurely Senate, but it is not for the hasty and turbulent
House.
It must always, of course, have seemed eminently desirable to all
thoughtful and experienced men that Mr. Speaker should be no more than
the judicial guide and moderator of the proceedings of the House,
keeping apart from the heated controversies of party warfare, and
exercising none but an impartial influence upon the course of
legislation; and probably when he was first invested with the power of
appointment it was thought possible that he could exercise that great
prerogative without allowing his personal views upon questions of public
policy to control or even affect his choice. But it must very soon have
appeared that it was too much to expect of a man who had it within his
power to direct affairs that he should subdue all purpose to do so, and
should make all appointments with an eye to regarding every preference
but his own; and when that did become evident, the rule was undoubtedly
retained only because none better could be devised. Besides, in the
early years of the Constitution the Committees were very far from
having the power they now possess. Business did not then hurry too fast
for discussion, and the House was in the habit of scrutinizing the
reports of the Committees much more critically than it now pretends to
do. It deliberated in its open sessions as well as in its private
committee-rooms, and the functionary who appointed its committees was
simply the nominator of its advisers, not, as is the Speaker of to-day,
the nominor of its rulers.
It is plain, therefore, that the office of Speaker of the House of
Representatives is in its present estate a constitutional phenomenon of
the first importance, deserving a very thorough and critical
examination. If I have succeeded, in what I have already said, in making
clear the extraordinary power of the Committees in directing
legislation, it may now go without the saying that he who appoints those
Committees is an autocrat of the first magnitude. There could be no
clearer proof of the great political weight of the Speaker's high
commission in this regard than the keen strife which every two years
takes place over the election to the speakership, and the intense
interest excited throughout the country as to the choice to be made. Of
late years, the newspapers have had almost as much to say about the
rival candidates for that office as about the candidates for the
presidency itself, having come to look upon the selection made as a sure
index of the policy to be expected in legislation.
The Speaker is of course chosen by the party which commands the majority
in the House, and it has sometimes been the effort of scheming,
self-seeking men of that majority to secure the elevation of some friend
or tool of their own to that office, from which he can render them
service of the most substantial and acceptable sort. But, although these
intrigues have occasionally resulted in the election of a man of
insignificant parts and doubtful character, the choice has usually
fallen upon some representative party man of well-known antecedents and
clearly-avowed opinions; for the House cannot, and will not willingly,
put up with the intolerable inconvenience of a weak Speaker, and the
majority are urged by self-respect and by all the weightiest
considerations of expediency, as well as by a regard for the interests
of the public business, to place one of their accredited leaders in the
chair. If there be differences of opinion within the party, a choice
between leaders becomes a choice between policies and assumes the
greatest significance. The Speaker is expected to constitute the
Committees in accordance with his own political views, and this or that
candidate is preferred by his party, not at all because of any supposed
superiority of knowledge of the precedents and laws of parliamentary
usage, but because of his more popular opinions concerning the leading
questions of the day.
Mr. Speaker, too, generally uses his powers as freely and imperatively
as he is expected to use them. He unhesitatingly acts as the legislative
chief of his party, organizing the Committees in the interest of this or
that policy, not covertly and on the sly, as one who does something of
which he is ashamed, but openly and confidently, as one who does his
duty. Nor does his official connection with the Committees cease upon
their appointment. It is his care to facilitate their control of the
business of the House, by recognizing during the consideration of a
report only those members with whom the reporting committee-man has
agreed to share his time, and by keeping all who address the House
within the strictest letter of the rules as to the length of their
speeches, as well as by enforcing all those other restrictions which
forbid independent action on the part of individual members. He must see
to it that the Committees have their own way. In so doing he is not
exercising arbitrary powers which circumstances and the habits of the
assembly enable him safely to arrogate; he is simply enforcing the plain
letter and satisfying the evident spirit of the rules.
A student of Roman law and institutions, looking at the Rules of the
House of Representatives through glasses unaccustomed to search out
aught but antiquities, might be excused for claiming that he found in
the customs of the House a striking reproduction of Roman legislative
methods. The Roman assembly, he would remind us, could not vote and
debate at the same time; it had no privileges of amendment, but had to
adopt every law as a whole or reject it as a whole; and no private
member had a right to introduce a bill, that being the exclusive
prerogative of the magistrates. But though he might establish a parallel
satisfactory to himself between the magistrates of Rome and the
Committees at Washington, and between the undebatable, unamendable laws
of the ancient, and the undebated, unamended laws of the modern,
republic, he could hardly find in the later system that compensating
advantage which scholars have noted as giving to Roman legislation a
clearness and technical perfection such as is to be found in none of the
modern codes. Since Roman laws could not be amended in their passage,
and must carry their meaning plainly to the comprehension of the
commons, clear and brief drafting was cultivated as of the first
necessity in drawing up measures which were first to gain popular
approval and then to succeed or fail in accomplishing their ends
according as they proved workable or impracticable.
No such comparison of our own with other systems can, however, find any
favor in the eyes of a certain class of Americans who pride themselves
upon being nothing if not patriotic, and who can consequently find no
higher praise for the peculiar devices of committee government than that
they are our own invention. "An ill-favored thing, sir, but mine own."
No one will readily believe, however, that congressmen--even those of
them who belong to this dutiful class--cherish a very loving admiration
for the discipline to which they are nowadays subjected. As the
accomplished librarian of Congress has declared, "the general conviction
may be said to exist, that, under the great control over legislation and
current business by the Speaker, and by the powerful Committee on
Appropriations, combined with the rigor of the Rules of the House, there
is less and less opportunity for individual members to make any
influential mark in legislation. Independence and ability are repressed
under the tyranny of the rules, and practically the power of the popular
branch of Congress is concentrated in the Speaker and a few--very
few--expert parliamentarians." And of course members of Congress see
this. "We have but three forces in this House," exclaimed a jocose
member from the Pacific coast, "the Brahmins of the Committee of Ways
and Means--not the brains but the Brahmins of the House; the
white-button mandarins of the Appropriations Committee; the dignified
oligarchy called the Committee on Rules; the Speaker of the House; and
the illustrious gentleman from Indiana." Naturally all men of
independent spirit chafe under the arbitrary restraints of such a
system, and it would be much more philosophical to conclude that they
let it stand because they can devise nothing better, than that they
adhere to its inconvenient practices because of their admiration for it
as an American invention.
However that may be, the number of those who misuse the rules is greater
than the number of those who strive to reform them. One of the most
startling of the prevalent abuses is the hasty passage of bills under a
suspension of the rules, a device "by means of which," says Senator
Hoar, "a large proportion, perhaps the majority, of the bills which pass
the House are carried through." This practice may be very clearly
understood by following further Mr. Hoar's own words: "Every Monday
after the morning hour, and at any time during the last ten days of a
session, motions to suspend the rules are in order. At these times any
member may move to suspend the rules and pass any proposed bill. It
requires two thirds of the members voting to adopt such a motion. Upon
it no debate or amendment is in order. In this way, if two thirds of the
body agree, a bill is by a single vote, without discussion and without
change, passed through all the necessary stages, and made a law, so far
as the House of Representatives can accomplish it; and in this mode
hundreds of measures of vital importance receive, near the close of an
exhausting session, without being debated, amended, printed, or
understood, the constitutional assent of the representatives of the
American people."
One very obvious comment to be made upon habits of procedure so palpably
pernicious is, that nothing could be more natural under rules which
repress individual action with so much stringency. Then, too, the mills
of the Committees are known to grind slowly, and a very quick and easy
way of getting rid of minor items of business is to let particular
bills, of apparently innocent meaning or laudable intent, run through
without commitment. There must be some outlet, too, through which the
waters of delayed and accumulated business may be drained off as the end
of a session draws near. Members who know how to take the House at an
indulgent moment, and can in a few words make out a _primâ facie_ case
for the action they urge, can almost always secure a suspension of the
rules.
To speak very plainly, it is wonderful that under such a system of
government legislation is not oftener at sixes and sevens than it
actually is. The infinitely varied and various interests of fifty
millions of active people would be hard enough to harmonize and serve,
one would think, were parties efficiently organized in the pursuit of
definite, steady, consistent policies; and it is therefore simply
amazing to find how few outrageously and fatally foolish, how few bad or
disastrous, things have been done by means of our disintegrate methods
of legislation. The Committees of the House to whom the principal topics
of legislation are allotted number more than thirty. We are ruled by a
score and a half of "little legislatures." Our legislation is
conglomerate, not homogeneous. The doings of one and the same Congress
are foolish in pieces and wise in spots. They can never, except by
accident, have any common features. Some of the Committees are made up
of strong men, the majority of them of weak men; and the weak are as
influential as the strong. The country can get the counsel and guidance
of its ablest representatives only upon one or two subjects; upon the
rest it must be content with the impotent service of the feeble. Only a
very small part of its most important business can be done well; the
system provides for having the rest of it done miserably, and the whole
of it taken together done at haphazard. There could be no more
interesting problem in the doctrine of chances than that of reckoning
the probabilities of there being any common features of principle in the
legislation of an opening session. It might lighten and divert the
leisure of some ingenious mathematician to attempt the calculation.
It was probably some such reflections as these which suggested the
proposal, made not long since in the House, that there should be
appointed, along with the usual Standing Committees, a new committee
which should be known as the Executive Committee of the House, and
should be empowered to examine and sort all the bills reported favorably
by the other Standing Committees, and bring them forward in what might
seem to it the order of their importance; a committee which should, in
short, digest pending measures and guide the House in arranging its
order of business. But it is seriously to be doubted whether such an
addition to the present organization would do more than tighten the
tyranny of committee rule and still further restrict freedom of debate
and action. A committee to superintend committees would add very little
to the efficiency of the House, and would certainly contribute nothing
towards unifying legislation, unless the new committee were to be given
the power, not yet thought of, of revising the work of the present
Standing Committees. Such an executive committee is not quite the device
needed.
Apparently committee government is but one of many experiments in the
direction of the realization of an idea best expressed--so far as my
reading shows--by John Stuart Mill; and is too much like other
experiments to be quite as original and unique as some people would like
to believe. There is, said Mr. Mill, a "distinction between the function
of _making_ laws, for which a numerous popular assembly is radically
unfit, and that of _getting good laws made_, which is its proper duty,
and cannot be satisfactorily fulfilled by any other authority;" and
there is, consequently, "need of a legislative commission, as a
permanent part of the constitution of a free country; consisting of a
small number of highly-trained political minds, on whom, when parliament
has determined that a law shall be made, the task of making it should be
devolved; parliament retaining the power of passing or rejecting the
bill when drawn up, but not of altering it otherwise than by sending
proposed amendments to be dealt with by the commission."[25] It would
seem, as I have said, that committee government is one form of the
effort, now making by all self-governing peoples, to set up a
satisfactory legislative commission somewhat after this order; and it
might appear to some as if the proposed executive committee were a
slight approximation to that form of the effort which is typified in the
legislative functions of the British cabinet. It cannot, of course, be
claimed that the forty-eight legislative commissions of the House of
Representatives always answer the purpose when the House wants to get
good laws made, or that each of them consists invariably of "a small
number of highly-trained political minds;" but everybody sees that to
say that they fall short of realizing the ideal would be nothing less
than hypercritical.
In saying that our committee government has, germinally, some of the
features of the British system, in which the ministers of the crown, the
cabinet, are chosen from amongst the leaders of the parliamentary
majority, and act not only as advisers of the sovereign but also as the
great standing committee or "legislative commission" of the House of
Commons, guiding its business and digesting its graver matters of
legislation, I mean, of course, only that both systems represent the
common necessity of setting apart some small body, or bodies, of
legislative guides through whom a "big meeting" may get laws made. The
difference between our device and the British is that we have a
Standing Committee, drawn from both parties, for the consideration of
each topic of legislation, whereas our English cousins have but a single
standing committee that is charged with the origination of
legislation,--a committee composed of the men who are recognized as the
leaders of the party dominant in the state, and who serve at the same
time as the political heads of the executive departments of the
government.
The British system is perfected party government. No effort is made in
the Commons, such as is made in the House of Representatives in the
composition of the Committees, to give the minority a share in
law-making. Our minorities are strongly represented on the Standing
Committees; the minority in the Commons is not represented at all in the
cabinet. It is this feature of closely organized party government,
whereby the responsibility for legislation is saddled upon the majority,
which, as I have already pointed out, gives to the debates and action of
parliament an interest altogether denied to the proceedings of Congress.
All legislation is made a contest for party supremacy, and if
legislation goes wrong, or the majority becomes discontented with the
course of policy, there is nothing for it but that the ministers should
resign and give place to the leaders of the Opposition, unless a new
election should procure for them a recruited following. Under such a
system mere silent voting is out of the question; debate is a primary
necessity. It brings the representatives of the people and the ministers
of the Crown face to face. The principal measures of each session
originate with the ministers, and embody the policy of the
administration. Unlike the reports of our Standing Committees, which are
intended to be simply the digested substance of the more sensible bills
introduced by private members, the bills introduced into the House of
Commons by the cabinet embody the definite schemes of the government;
and the fact that the Ministry is made up of the leaders of the majority
and represents always the principles of its party, makes the minority
only the more anxious to have a chance to criticise its proposals.
Cabinet government is a device for bringing the executive and
legislative branches into harmony and coöperation without uniting or
confusing their functions. It is as if the majority in the Commons
deputized its leaders to act as the advisers of the Crown and the
superintendents of the public business, in order that they might have
the advantage of administrative knowledge and training in advising
legislation and drafting laws to be submitted to parliament. This
arrangement enlists the majority in behalf of successful administration
without giving the ministers any power to coerce or arbitrarily
influence legislative action. Each session of the Lords and Commons
becomes a grand inquest into the affairs of the empire. The two estates
sit as it were in committee on the management of the public
business--sit with open doors, and spare themselves no fatigue in
securing for every interest represented a full, fair, and impartial
hearing.
It is evident why public debate is the very breath of life to such a
system. The Ministry's tenure of office depends upon the success of the
legislation they urge. If any of their proposals are negatived by
parliament, they are bound to accept their defeat as an intimation that
their administration is no longer acceptable to the party they
represent, and are expected to resign, or to appeal, if they prefer, to
the country for its verdict, by exercising their privilege of advising
the sovereign to dissolve parliament and issue writs for a new election.
It is, consequently, inevitable that the Ministry should be subjected to
the most determined attacks and the keenest criticisms of the
Opposition, and should be every day of the session put to the task of
vindicating their course and establishing anew their claim to the
confidence of their party. To shrink from discussion would be to confess
weakness; to suffer themselves to be worsted in discussion would be
seriously to imperil their power. They must look to it, therefore, not
only that their policy be defensible, but that it be valiantly defended
also.
As might be expected, then, the Ministry seldom find the task of leading
the House an easy one. Their plans are kept under an unceasing fire of
criticism from both sides of the House; for there are independent
sharp-shooters behind the ministers as well as heavy batteries in front
of them; and there are many amongst their professed followers who give
aid and comfort to the enemy. There come ever and again showers of
stinging questions, too, from friends and foes alike,--questions great
and small, direct and indirect, pertinent and impertinent, concerning
every detail of administration and every tendency of policy.
But, although the initiative in legislation and the general direction of
the business of parliament are the undisputed prerogatives of "the
government," as the Ministry is called, they have not, of course, all
the time of the House at their disposal. During the session, certain
days of each week are set apart for the introduction and debate of bills
brought in by private members, who, at the opening of the session, draw
lots to decide the precedence of their bills or motions on the orders of
the day. If many draw, those who get last choice of time find the
session near its end, and private members' days being absorbed by
belated government measures, before their opportunity has come, and must
content themselves with hoping for better fortune next year; but time is
generally found for a very fair and full consideration of a large number
of private members' bills, and no member is denied a chance to air his
favorite opinions in the House or to try the patience of his
fellow-members by annual repetitions of the same proposition. Private
members generally find out by long experience, however, that they can
exert a more telling influence upon legislation by pressing amendments
to government schemes, and can effect more immediate and satisfactory
results by keeping the Ministry constantly in mind of certain phases of
public opinion, than they could hope to exert or effect by themselves
introducing measures upon which their party might hesitate to unite.
Living as he does under a system which makes it the minister's wisest
policy to allow the utmost freedom of debate, each member can take as
prominent a part in the proceedings of the House as his abilities give
him title to take. If he have anything which is not merely frivolous to
say, he will have repeated opportunities to say it; for the Commons
cough down only the bores and the talkers for the sake of talk.
The House of Commons, as well as our House of Representatives, has its
committees, even its standing committees, but they are of the
old-fashioned sort which merely investigate and report, not of the new
American type which originate and conduct legislation. Nor are they
appointed by the Speaker. They are chosen with care by a "Committee of
Selection" composed of members of both parties. The Speaker is kept
carefully apart from politics in all his functions, acting as the
impartial, judicial president of the body. "Dignity of presence,
courtliness of manner, great physical endurance, courage and
impartiality of judgment, a consummate tact, and familiarity, 'born of
life-long experience,' with the written and unwritten laws of the
House,"--such are the qualities of the ideal Speaker. When he takes the
chair he turns his back on partisan alliances and serves both parties
alike with even hand. Such are the traditions of the office that its
occupant feels himself as strictly bound to unbiased judgment as is the
chiefest judge of the realm; and it has become no uncommon thing for a
Speaker of tried ability to preside during several successive
Parliaments, whether the party to whose suffrages he originally owed his
elevation remains in power or no. His political principles do not affect
his fitness for judicial functions.
The Commons in session present an interesting picture. Constrained by
their habits of debate to sit in quarters suitable for the purpose, they
crowd together in a hall of somewhat cramped proportions. It seems a
place fit for hand to hand combats. The cushioned benches on which the
members sit rise in close series on either side of a wide central aisle
which they face. At one end of this aisle is raised the Speaker's chair,
below and in front of which, invading the spaces of the aisle, are the
desks of the wigged and gowned clerks. On the front benches nearest the
Speaker and to his right sit the cabinet ministers, the leaders of the
Government; opposite, on the front benches to the Speaker's left, sit
the leaders of the Opposition. Behind and to the right of the ministers
gather the majority; behind and to the left of their leaders, the
minority. Above the rear benches and over the outer aisles of the House,
beyond "the bar," hang deep galleries from which the outside world may
look down upon the eager contests of the two parties which thus sit face
to face with only the aisle between them. From these galleries the
fortunate listen to the words of leaders whose names fill the ear of the
world.
The organization of the French Assembly is in the main similar to that
of the British Commons. Its leaders are the executive officers of the
government, and are chosen from the ranks of the legislative majority by
the President of the Republic, much as English cabinets are chosen by
English sovereigns. They too are responsible for their policy and the
acts of their administration to the Chamber which they lead. They, like
their British prototypes, are the executive committee of the legislative
body, and upon its will their tenure of office depends.
It cannot be said, however, that the proceedings of the French Assembly
very closely resemble those of the British Commons. In the hall of the
Deputies there are no close benches which face each other, and no two
homogeneous parties to strive for the mastery. There are parties and
parties, factions and factions, coteries and coteries. There are
Bonapartists and Legitimatists, Republicans and Clericals, stubborn
reactionists and headlong radicals, stolid conservatives and vindictive
destructionists. One hears of the Centre, the Right Centre and the Left
Centre, the Right, the Left, the Extreme Right and the Extreme Left.
Some of these are, of course, mere factions, mere groups of
irreconcilables; but several of them are, on the other hand, numerous
and powerful parties upon whose mutual attractions and repulsions depend
the formation, the authority, and the duration of cabinets.
Of course, too, there is in a body so made up a great deal of
combustible material which the slightest circumstance suffices to kindle
into a sudden blaze. The Assembly would not be French if it were not
always excitable and sometimes uproarious. Absolute turbulence is so
probable a contingency in its economy that a very simple and quickly
applicable device is provided for its remedy. Should the deputies lose
their heads altogether and become unmanageable, the President may _put
on his hat_, and by that sign, unless calm be immediately restored, the
sitting is adjourned for one hour, at the expiration of which time it is
to be expected that the members may resume the business of the day in a
cooler frame of mind. There are other rules of procedure observed in the
Chamber which seem to foreign eyes at first sight very novel; but which
upon closer examination may be seen to differ from some of the practices
of our own House of Representatives in form rather than in essence. In
France greater freedom of speech is allowed individual members than is
possible under committee government, but recognition is not given to
just any one who first gets the floor and catches the presiding
officer's eye, as it is in the House of Commons, where none but the
ministers are accorded any right of precedence in gaining a hearing.
Those who wish to speak upon any pending question "inscribe" their
names beforehand on a list in the keeping of the President, and the
discussion is usually confined to those members who have "inscribed."
When this list has been exhausted, the President takes the sense of the
Chamber as to whether the debate shall be closed. The Chamber need not
wait, however, to hear all the gentlemen who have put their names upon
the list. If _une portion notable_ of it tires sooner of the discussion
or thinks itself sufficiently informed before all who wish to inform it
have spoken, it may demand that the debate be brought to an end. Of
course such a demand will not be heeded if it come from only a few
isolated members, and even _une portion notable_ may not interrupt a
speaker with this peremptory call for what we should denominate the
previous question, but which the French parliamentarian knows as the
_clôture_. A demand for the _clôture_ is not debatable. One speech may
be made against it, but none in its favor. Unless it meet with very
powerful resistance, it is expected to go through of its own weight.
Even the _clôture_, however, must give way if a member of the Ministry
claims the right to speak; for a minister must always be heard, and
after he has spoken, moreover, there must always be allowed one speech
in reply. Neither can the _clôture_ be pronounced unless a majority of
the deputies are present; and in case of doubt as to the will of the
Chamber in the matter, after two votes have been taken without eliciting
a full-voiced and indubitable assent, the discussion is tacitly suffered
to proceed.
These rules are not quite so compulsive and inexorable as are those
which sustain the government of our Standing Committees, nor do they
seem quite imperative enough for the effectual governance of rampant
deputies in their moments of wildest excitement; but they are somewhat
more rigid than one would expect to find under a system of ministerial
responsibility, the purity of whose atmosphere depends so directly upon
a free circulation of debate. They are meant for a body of peculiar
habits and a fiery temperament,--a body which is often brought screaming
to its feet by the words of a passionate speaker, which is time and
again betrayed into stormy disquiet, and which is ever being blown about
by every passing wind of excitement. Even in its minor points of
observance, the Chamber is essentially un-English. Members do not speak
from their seats, as we are accustomed to see members of our public
assemblies do, but from the "tribune," which is a conspicuous structure
erected near the desks of the President and secretaries,--a box-like
stand, closely resembling those narrow, quaintly-fashioned pulpits which
are still to be seen in some of the oldest of our American churches. And
since deputies must gain its commanding top before they may speak, there
are said to be many exciting races for this place of vantage. Sometimes,
indeed, very unseemly scenes take place, when several deputies, all
equally eager to mount the coveted stand, reach its narrow steps at the
same moment and contest the privilege of precedence,--especially if
their friends rally in numbers to their assistance.
The British House of Commons and the French Chamber, though so unlike in
the elements which compose them, and so dissimilar in their modes of
procedure, are easily seen to be alike in constitutional significance,
being made close kin by the principle of cabinet government, which they
both recognize and both apply in its fullest efficacy. In both England
and France a ministry composed of the chief officers of the executive
departments are constituted at once the leaders of legislation and the
responsible heads of administration,--a binding link between the
legislative and executive branches of the government. In this regard
these two systems present a strong contrast to our own. They recognize
and support simple, straightforward, inartificial party government,
under a standing committee of responsible party leaders, bringing
legislature and executive side by side in intimate but open coöperation;
whilst we, preferring to keep Congress and the departments at arm's
length, permit only a less direct government by party majorities,
checking party action by a complex legislative machinery of two score
and eight composite, semi-ministerial Committees. The English take their
parties straight,--we take ours mixed.
There is another aspect, however, in which all three of these systems
are alike. They are alike in their essential purpose, which is to enable
a mass meeting of representatives to superintend administration and get
good laws made. Congress does not deal so directly with our executive as
do the French and English parliaments with theirs, and cannot,
therefore, control it quite so effectually; there is a great deal of
friction amongst the many wheels of committee government; but, in the
long run, Congress is quite as omnipotent as either the Chamber of
Deputies or the House of Commons; and, whether there be two score
committees with functions mainly legislative, or only one with functions
half legislative, half executive, we have one form or another of
something like Mr. Mill's "legislative commission."
III.
THE HOUSE OF REPRESENTATIVES.
REVENUE AND SUPPLY.
The highest works of statesmanship require these three things:
Great power in the minister, genius to counsel and support him,
enlightenment in parliament to weigh and decide upon his
plans.--PROFESSOR SEELEY.
When men are not acquainted with each other's principles, nor
experienced in each other's talents, nor at all practiced in their
mutual habitudes and dispositions by joint efforts of business; no
personal confidence, no friendship, no common interest subsisting
among them; it is evidently impossible that they can act a public
part with uniformity, perseverance, or efficacy.--BURKE.
"It requires," says Mr. Bagehot, "a great deal of time to have
opinions," and if one is to judge from the legislative experience of
some very enlightened nations, it requires more time to have opinions
about finance than about any other subject. At any rate, very few
nations have found time to have correct opinions about it. Governments
which never consult the governed are usually content with very shabby,
short-sighted methods of taxation,--with any methods, indeed, which can
be made to yield the desired revenues without much trouble; and the
agents of a self-governing people are quite sure to be too busy with
elections and party management to have leisure to improve much upon the
practices of autocrats in regard to this important care of
administration. And yet this subject of finance seems to be interesting
enough in a way. It is one of the commonplaces of our history that, ever
since long before we came westward across the ocean, we have been
readier to fight about taxation than about any other one thing,--than
about a good many other things put together, indeed. There are several
sadly bloody spots in the financial history of our race. It could
probably be shown, however, if one cared to take time to show it, that
it is easy to get vexed about mismanagement of the finances without
knowing how they might be better managed. What we do not like is that we
are taxed,--not that we are stupidly taxed. We do not need to be
political economists to get angry about it; and when we have gotten
angry about it in the past our rulers have not troubled themselves to
study political economy in order to find out the best means of appeasing
us. Generally they have simply shifted the burden from the shoulders of
those who complained, and were able to make things unpleasant, to the
shoulders of those who might complain, but could not give much trouble.
Of course there are some taxes which are much more hateful than others,
and have on that account to be laid more circumspectly. All direct taxes
are heartily disliked by every one who has to pay them, and as heartily
abused, except by those who have never owned an ounce or an inch of
property, and have never seen a tax-bill. The heart of the ordinary
citizen regards them with an inborn aversion. They are so
straightforward and peremptory in their demands. They soften their
exactions with not a grain of consideration. The tax-collector,
consequently, is never esteemed a lovable man. His methods are too
blunt, and his powers too obnoxious. He comes to us, not with a
"please," but with a "must." His requisitions always leave our pockets
lighter and our hearts heavier. We cannot, for the life of us, help
thinking, as we fold up his receipt and put it away, that government is
much too expensive a luxury as nowadays conducted, and that that receipt
is incontestable documentary proof of unendurable extortion. What we do
not realize is, that life would be robbed of one of its chief
satisfactions if this occasion of grumbling were to be taken away.
Indirect taxes, on the other hand, offend scarcely anybody. It is one of
the open secrets of finance that in almost every system of taxation the
indirect overcrow the direct taxes by many millions, and have a knack
for levying on the small resources of insignificant persons which direct
taxes have never learned. They know how to coax pennies out of poor
people whose names have never been on the tax-collector's books. But
they are very sly, and have at command a thousand successful disguises.
High or complicated tariffs afford them their most frequent and abundant
opportunities. Most people have very short thoughts, which do not extend
beyond the immediate phenomena of direct vision, and so do not recognize
the hand of the government in the high prices charged them in the shops.
Very few of us taste the tariff in our sugar; and I suppose that even
very thoughtful topers do not perceive the license-tax in their whiskey.
There is little wonder that financiers have always been nervous in
dealing with direct, but confident and free of hand in laying indirect,
taxes.
It may, therefore, be accounted one of the customary advantages which
our federal government possesses over the governments of the States,
that it has almost always, in ordinary times, derived its entire revenue
from prompt and facile indirect taxes, whilst the States have had to
live upon the tardy and begrudged income derivable from a direct levy.
Since we have had to support two governments it has been wisely
resolved to let us, as long as possible, feel the weight of only one of
them,--and that the one which can get at us most readily, and, at the
same time, be most easily and promptly controlled by our votes. It is a
plain, convenient, and, on the whole, satisfactory division of domain,
though the responsibility which it throws on state legislatures is more
apt to pinch and prove vexatious than is that which it lays upon
Congress. Mr. Gladstone, the greatest of English financiers, once
playfully described direct and indirect taxes as two sisters,--daughters
of Necessity and Invention,--"differing only as sisters may differ, ...
the one being more free and open, the other somewhat more shy, retiring,
and insinuating;" and frankly owned that, whether from "a lax sense of
moral obligation or not," he, as Chancellor of the Exchequer, "thought
it not only allowable, but even an act of duty, to pay his addresses to
them both." But our chancellors of the exchequer, the chairmen of the
Committee of Ways and Means, are bound by other traditions of courtship,
and have, besides, usually shown no susceptibility to the charms of the
blunt and forward elder of these two sisters. They have been constant,
even if now and again a little wayward, in their devotion to the
younger.
I suppose that no one ever found the paths of finance less thorny and
arduous than have our national publicists. If their tasks be compared
with those of European and English financiers, it is plain to see that
their lines have fallen in pleasant places. From almost the very first
they have had boundless resources to draw upon, and they have certainly
of late days had free leave to spend limitless revenues in what
extravagances they pleased. It has come to be infinitely more trouble to
spend our enormous national income than to collect it. The chief
embarrassments have arisen, not from deficits, but from surpluses. It is
very fortunate that such has been the case, because for the best
management of the finances of a nation, when revenue is scant and
economy imperative, it is absolutely necessary to have financial
administration in the hands of a few highly-trained and skillful men
acting subject to a very strict responsibility, and this is just what
our committee system does not allow. As in other matters of legislation,
so in finance, we have many masters acting under a very dim and
inoperative accountability. Of course under such ministration our
financial policy has always been unstable, and has often strayed very
far from the paths of wisdom and providence; for even when revenue is
superabundant and extravagance easy, irresponsible, fast and loose
methods of taxation and expenditure must work infinite harm. The only
difference is that during such times the nation is not so sensitive to
the ill effects wrought by careless policy. Mismanagement is not
generally blamed until a great many people have discovered it by being
hurt by it. Meantime, however, it is none the less interesting and
important to study our government, with a view to gauging its qualities
and measuring accurately its capabilities for good or bad service; and
the study can doubtless be much more dispassionately conducted before we
have been seriously hurt by foolish, unsteady administration than
afterwards. The forces of the wind can be reckoned with much more
readily while they are blowing only a gale than after they have thrown a
hurricane upon us.
The national income is controlled by one Committee of the House and one
of the Senate; the expenditures of the government are regulated by
fifteen Committees of the House and five of the Senate; and the currency
is cared for by two Committees of the House and one of the Senate; by
all of which it appears that the financial administration of the country
is in the hands of twenty-four Committees of Congress,--a mechanism of
numerous small and great functions, quite complex enough to be worth
careful study, perhaps too complex to be studied directly without an
aiding knowledge of some simpler system with which it may be compared.
Our own budget may be more readily followed through all the vicissitudes
of committee scrutiny, and all the varied fortunes of committee action,
after one has traced some other budget through the simpler processes of
some other system of government.
The British system is, perhaps, in its main features, the simplest in
existence. It is, besides, the pattern after which the financial systems
of the chief governments of Europe have been modeled, and which we have
ourselves in a measure copied; so that by prefacing the study of other
systems by a careful examination of the British, in its present form,
one may start with the great advantage of knowing the characteristics of
what may fairly be called the parent stock. Parliament, then, in the
first place, simply controls, it does not originate, measures of
financial administration. It acts through the agency and under the
guidance of the ministers of the Crown. Early in each annual session
"the estimates" are submitted to the Commons, which, when hearing such
statements, sits in Committee of the Whole House, known as Committee of
Supply. The estimates come before the House in truly formidable shape.
Each department presents its estimates in a huge quarto volume, "crammed
with figures and minute entries of moneys wanted for the forthcoming
year."[26] But the House itself does not have to digest this various and
overwhelming mass of figures. The digesting is done in the first
instance by the official leaders of the House. "The ministers in charge
of the naval and military services lay before the Committee [of Supply]
their respective statements of the sums which will be required for the
maintenance of those services; and somewhat later in the session a
common estimate for the various civil services is submitted also." Those
statements are, as it were, condensed synopses of the details of the
quartos, and are made with the object of rendering quite clear to the
House, sitting under the informal rules of Committee, the policy of the
expenditures proposed and the correctness of the calculations upon which
they are based. Any member may ask what pertinent questions he pleases
of the minister who is making the statement, so that nothing needing
elucidation may be passed by without full explanation. After the
statement has been completed to the satisfaction of the Committee, a
vote is taken, at the motion of the minister, upon each item of
expenditure, and the duties of the Committee of Supply have been
performed.
The estimates are always submitted "on the collective responsibility of
the whole cabinet." "The army and navy estimates have, as a rule, been
considered and settled in cabinet council before being submitted to the
House; and the collective responsibility of the Ministry is in this
case, therefore, not technical merely, but substantial." If the
estimates are resisted and rejected by the Committee, the ministers, of
course, resign. They "cannot acquiesce in a refusal on the part of
parliament to sanction the expenditure which" they "have assumed the
responsibility of declaring necessary for the support of the civil
government, and the maintenance of the public credit at home and
abroad." The votes in Committee of Supply are, therefore, vital in the
history of every administration, being taken as sure indexes of the
amount of confidence placed by the House in the government.
But the votes in Committee of Supply are only the first steps in
parliament's annual supervision of the public finances. They are simply
the spending votes. In order to consider the means by which money is to
be raised to meet the outlays sanctioned by the Committee of Supply, the
House resolves itself into Committee of the Whole, under the name of the
Committee of Ways and Means. It is to this Committee that the
Chancellor of the Exchequer submits his budget every year, on or soon
before the fifth of April, the date at which the national accounts are
made up, the financial year closing on the thirty-first of March. In
order to prepare his budget, the Chancellor must of course have early
knowledge of the estimates made for the various services. Several
months, therefore, before the estimates are laid before the House in
Committee of Supply, the various departments are called upon by the
Treasury to send in statements of the sums required to defray the
expenses of the current year, and these estimates are carefully examined
by the Chancellor, with a view not only to exercising his duty of
keeping the expenditures within the limits of economy, but also to
ascertaining how much revenue he will have to secure in order to meet
the proper expenditure contemplated. He must balance estimated needs
over against estimated resources, and advise the House in Committee of
Ways and Means as to the measures by which taxation is to be made to
afford sufficient revenue. Accordingly he calls in the aid of the
permanent heads of the revenue departments who furnish him with "their
estimates of the public revenue for the ensuing year, upon the
hypothesis that taxation will remain unchanged."
Having with such aids made up his budget, the Chancellor goes before the
Committee of Ways and Means prepared to give a clear history of the
financial administration of the year just closed, and to submit definite
plans for adjusting the taxation and providing for the expected outlays
of the year just opening. The precedents of a wise policy of long
standing forbid his proposing to raise any greater revenue than is
absolutely necessary for the support of the government and the
maintenance of the public credit. He therefore never asks the Committee
to lay taxes which promise a considerable surplus. He seeks to obtain
only such an over-plus of income as will secure the government against
those slight errors of underestimation of probable expenses or of
overestimation of probable revenue as the most prudent of
administrations is liable to make. If the estimated revenue considerably
exceed the estimated expenses, he proposes such remissions of taxation
as will bring the balance as near equality as prudence will permit; if
the anticipated expenses run beyond the figure of the hoped-for revenue,
he asks that certain new taxes be laid, or that certain existing taxes
be increased; if the balance between the two sides of the forecast
account shows a pretty near approach to equilibrium, so the scale of
revenue be but a little the heavier of the two, he contents himself
with suggesting such a readjustment of existing taxes as will be likely
to distribute the burden of taxation more equitably amongst the
tax-paying classes, or facilitate hampered collections by simplifying
the complex methods of assessment and imposition.
Such is the budget statement to which the House of Commons listens in
Committee of Ways and Means. This Committee may deal with the proposals
of the Chancellor of the Exchequer with somewhat freer hand than the
Committee of Supply may use in passing upon the estimates. The Ministry
is not so stiffly insistent upon having its budget sanctioned as it is
upon having its proposed expenditures approved. It is understood to
pledge itself to ask for no more money than it honestly needs; but it
simply advises with the House as to the best way of raising that money.
It is punctiliously particular about being supplied with the funds it
asks for, but not quite so exacting as to the ways and means of supply.
Still, no Ministry can stand if the budget be rejected out of hand, or
if its demands for the means of meeting a deficiency be met with a flat
refusal, no alternative means being suggested by the Opposition. Such
votes would be distinct declarations of a want of confidence in the
Ministry, and would of course force them to resign.
The Committee of Ways and Means, then, carries out, under the guidance
of the Chancellor of the Exchequer, the resolutions of the Committee of
Supply. The votes of the latter Committee, authorizing the expenditures
mapped out in the estimates, are embodied in "a resolution proposed in
Committee of Ways and Means for a general grant out of the Consolidated
Fund 'towards making good the supply granted to Her Majesty;'" and that
resolution, in order that it may be prepared for the consideration of
the House of Lords and the Crown, is afterwards cast by the House into
the form of a Bill, which passes through the regular stages and in due
course becomes law. The proposals of the Chancellor of the Exchequer
with reference to changes in taxation are in like manner embodied in
resolutions in Committee of Ways and Means, and subsequently, upon the
report of the Committee, passed by the House in the shape of Bills,
"Ways and Means Bills" generally pass the Lords without trouble. The
absolute control of the Commons over the subjects of revenue and supply
has been so long established that the upper House would not now dream of
disputing it; and as the power of the Lords is simply a privilege to
accept or reject a money bill as a whole, including no right to amend,
the peers are wont to let such bills go through without much scrutiny.
But so far I have spoken only of that part of parliament's control of
the finances which concerns the future. The "Ways and Means Bills"
provide for coming expenses and a prospective revenue. Past expenses are
supervised in a different way. There is a double process of audit by
means of a special Audit Department of the Civil Service, which is, of
course, a part of the permanent organization of the administration,
having it in charge "to examine the accounts and vouchers of the entire
expenditure," and a special committee nominated each year by the House
"to audit the Audit Department." This committee is usually made up of
the most experienced business men in the Commons, and before it "all the
accounts of the completed financial year are passed in review." "Minute
inquiries are occasionally made by it into the reasons why certain items
of expenditure have occurred; it discusses claims for compensation,
grants, and special disbursements, in addition to the ordinary outgoings
of the department, mainly, to be sure, upon the information and advice
of the departments themselves, but still with a certain independence of
view and judgment which must be valuable."
The strictness and explicitness with which the public accounts are kept
of course greatly facilitate the process of audit. The balance which is
struck on the thirty-first of every March is of the most definite sort.
It deals only with the actual receipts and disbursements of the
completed fiscal year. At that date all unexpended credits lapse. If the
expenditure of certain sums has been sanctioned by parliamentary vote,
but some of the granted moneys remain undrawn when April comes in, they
can be used only after a regrant by the Commons. There are, therefore,
no unclosed accounts to obscure the view of the auditing authorities.
Taxes and credits have the same definite period, and there are no
arrears or unexpended balances to confuse the book-keeping. The great
advantages of such a system in the way of checking extravagances which
would otherwise be possible, may be seen by comparing it with the system
in vogue in France, in whose national balance-sheet "arrears of taxes in
one year overlap with those of other years," and "credits old jostle
credits new," so that it is said to be "always three or four years
before the nation can know what the definitive expenditure of a given
year is."
For the completion of this sketch of financial administration under the
Commons it is of course necessary to add a very distinct statement of
what I may call the _accessibility_ of the financial officers of the
government. They are always present to be questioned. The Treasury
department is, as becomes its importance, exceptionally well
represented in the House. The Chancellor of the Exchequer, the working
chief of the department, is invariably a member of the Commons, "and can
be called to account by interrogation or motion with respect to all
matters of Treasury concern"--with respect, that is, to well-nigh "the
whole sphere of the discipline and economy of the Executive Government;"
for the Treasury has wide powers of supervision over the other
departments in all matters which may in any way involve an outlay of
public money. "And not only does the invariable presence of the
Chancellor of the Exchequer in the House of Commons make the
representation of that department peculiarly direct, but, through the
Secretary of the Treasury, and, with respect to certain departmental
matters, through the Junior Lords, the House possesses peculiar
facilities for ascertaining and expressing its opinion upon the details
of Treasury administration." It has its responsible servants always
before it, and can obtain what glimpses it pleases into the inner
workings of the departments which it wishes to control.
It is just at this point that our own system of financial administration
differs most essentially from the systems of England, of the Continent,
and of the British colonial possessions. Congress does not come into
direct contact with the financial officers of the government. Executive
and legislature are separated by a hard and fast line, which sets them
apart in what was meant to be independence, but has come to amount to
isolation. Correspondence between them is carried on by means of written
communications, which, like all formal writings, are vague, or by means
of private examinations of officials in committee-rooms to which the
whole House cannot be audience. No one who has read official documents
needs to be told how easy it is to conceal the essential truth under the
apparently candid and all-disclosing phrases of a voluminous and
particularizing report; how different those answers are which are given
with the pen from a private office from those which are given with the
tongue when the speaker is looking an assembly in the face. It is
sufficiently plain, too, that resolutions which call upon officials to
give testimony before a committee are a much clumsier and less efficient
means of eliciting information than is a running fire of questions
addressed to ministers who are always in their places in the House to
reply publicly to all interrogations. It is reasonable to conclude,
therefore, that the House of Representatives is much less intimately
acquainted with the details of federal Treasury airs than is such a body
as the House of Commons, with the particulars of management in the
Treasury which it oversees by direct and constant communication with the
chief Treasury officials.
This is the greater drawback in our system, because, as a further result
of its complete separation from the executive, Congress has to originate
and perfect the budget for itself. It does not hear the estimates
translated and expounded in condensed statements by skilled officials
who have made it their business, because it is to their interest, to
know thoroughly what they are talking about; nor does it have the
benefit of the guidance of a trained, practical financier when it has to
determine questions of revenue. The Treasury is not consulted with
reference to problems of taxation, and motions of supply are disposed of
with no suggestions from the departments beyond an itemized statement of
the amounts needed to meet the regular expenses of an opening fiscal
year.
In federal book-keeping the fiscal year closes on the thirtieth of June.
Several months before that year expires, however, the estimates for the
twelve months which are to succeed are made ready for the use of
Congress. In the autumn each department and bureau of the public service
reckons its pecuniary needs for the fiscal year which is to begin on the
following first of July (making explanatory notes, and here and there
an interjected prayer for some unwonted expenditure, amongst the columns
of figures), and sends the resulting document to the Secretary of the
Treasury. These reports, including of course the estimates of the
various bureaux of his own department, the Secretary has printed in a
thin quarto volume of some three hundred and twenty-five pages, which
for some reason or other, not quite apparent, is called a "Letter from
the Secretary of the Treasury transmitting estimates of appropriations
required for the fiscal year ending June 30," ... and which boasts a
very distinct arrangement under the heads Civil Establishment, Military
Establishment, Naval Establishment, Indian Affairs, Pensions, Public
Works, Postal Service, etc., a convenient summary of the chief items,
and a complete index.
In December this "Letter" is sent, as a part of the Secretary of the
Treasury's annual report to Congress, to the Speaker of the House of
Representatives, immediately after the convening of that body, and is
referred to the Standing Committee on Appropriations. The House itself
does not hear the estimates read; it simply passes the thin quartos over
to the Committee; though, of course, copies of it may be procured and
studied by any member who chooses to scrutinize the staring pages of
columned figures with the dutiful purpose of keeping an eye upon the
uses made of the public revenue. Taking these estimates into
consideration, the Committee on Appropriations found upon them the
"general appropriation bills," which the rules require them to report to
the House "within thirty days after their appointment, at every session
of Congress, commencing on the first Monday in December," unless they
can give satisfactory reasons in writing for not doing so. The "general
appropriation bills" provide separately for legislative, executive, and
judicial expenses; for sundry civil expenses; for consular and
diplomatic expenses; for the Army; for the Navy; for the expenses of the
Indian department; for the payment of invalid and other pensions; for
the support of the Military Academy; for fortifications; for the service
of the Post-Office department, and for mail transportation by ocean
steamers.
It was only through the efforts of a later-day spirit of vigilant
economy that this practice of making the appropriations for each of the
several branches of the public service in a separate bill was
established. During the early years of the Constitution very loose
methods of appropriation prevailed. All the moneys for the year were
granted in a single bill, entitled "An Act making Appropriations for the
support of the Government;" and there was no attempt to specify the
objects for which they were to be spent. The gross sum given could be
applied at the discretion of the heads of the executive departments, and
was always large enough to allow much freedom in the undertaking of new
schemes of administration, and in the making of such additions to the
clerical force of the different offices as might seem convenient to
those in control. It was not until 1862 that the present practice of
somewhat minutely specifying the uses to be made of the funds
appropriated was reached, though Congress had for many years been by
slow stages approaching such a policy. The history of appropriations
shows that "there has been an increasing tendency to limit the
discretion of the executive departments, and bring the details of
expenditure more immediately under the annual supervision of Congress;"
a tendency which has specially manifested itself since the close of the
recent war between the States.[27] In this, as in other things, the
appetite for government on the part of Congress has grown with that
perfection of organization which has rendered the gratification of its
desire for power easily attainable. In this matter of appropriations,
however, increased care has unquestionably resulted in a very decided
curtailment of extravagance in departmental expenditure, though Congress
has often shown a blind ardor for retrenchment which has fallen little
short of parsimony, and which could not have found place in its
legislation had it had such adequate means of confidential communication
with the executive departments as would have enabled it to understand
their real needs, and to discriminate between true economy and those
scant allowances which only give birth to deficiencies, and which, even
under the luckiest conditions, serve only for a very brief season to
create the impression which they are usually meant to beget,--that the
party in power is the party of thrift and honesty, seeing in former
appropriations too much that was corrupt and spendthrift, and desiring
to turn to the good ways of wisdom and frugality.
There are some portions of the public expenditure which do not depend
upon the annual gifts of Congress, but which are provided for by
statutes which run without limit of date. These are what are known as
the "permanent appropriations." They cover, on the one hand, such
indeterminate charges as the interest on the public debt, the amounts
annually paid into the sinking fund, the outlays of refunding, the
interest on the bonds issued to the Pacific Railways; and, on the other
hand, such specific charges as the maintenance of the militia service,
the costs of the collection of the customs revenue, and the interest on
the bequest to the Smithsonian Institution. Their aggregate sum
constitutes no insignificant part of the entire public expense. In 1880,
in a total appropriation of about $307,000,000, the permanent
appropriations fell short of the annual grant by only about sixteen and
a half millions. In later years, however, the proportion has been
smaller, one of the principal items, the interest on the public debt,
becoming, of course, continually less as the debt is paid off, and other
items reaching less amounts, at the same time that the figures of the
annual grants have risen rather than fallen.
With these permanent grants the Committee on Appropriations has, of
course, nothing to do, except that estimates of the moneys to be drawn
under authority of such grants are submitted to its examination in the
Secretary of the Treasury's "Letter," along with the estimates for which
special appropriations are asked. Upon these latter estimates the
general appropriations are based. The Committee may report its bills at
any stage of the House's business, provided only that it does not
interrupt a member who is speaking; and these bills when reported may at
any time, by a majority vote, be made a special order of the day. Of
course their consideration is the most imperative business of the
session. They must be passed before the end of June, else the
departments will be left altogether without means of support. The
chairman of the Committee on Appropriations is, consequently, a very
masterful authority in the House. He can force it to a consideration of
the business of his Committee at almost any time; and by withholding his
reports until the session is well advanced can crowd all other topics
from the docket. For much time is spent over each of the "general
appropriation bills." The spending of money is one of the two things
that Congress invariably stops to talk about; the other being the
raising of money. The talk is made always in Committee of the Whole,
into which the House at once resolves itself whenever appropriations are
to be considered. While members of this, which may be called the House's
Committee of Supply, representatives have the freest opportunity of the
session for activity, for usefulness, or for meddling, outside the
sphere of their own committee work. It is true that the "five-minutes'
rule" gives each speaker in Committee of the Whole scant time for the
expression of his views, and that the House can refuse to accord full
freedom of debate to its other self, the Committee of the Whole, by
limiting the time which it is to devote to the discussion of matters
referred to it, or by providing for its discharge from the further
consideration of any bill committed to it, after it shall have acted
without debate on all amendments pending or that may be offered; but as
a rule every member has a chance to offer what suggestions he pleases
upon questions of appropriation, and many hours are spent in
business-like debate and amendment of such bills, clause by clause and
item by item. The House learns pretty thoroughly what is in each of its
appropriation bills before it sends it to the Senate.
But, unfortunately, the dealings of the Senate with money bills
generally render worthless the painstaking action of the House. The
Senate has been established by precedent in the very freest possible
privileges of amendment as regards these bills no less than as regards
all others. The Constitution is silent as to the origination of bills
appropriating money. It says simply that "all bills for _raising
revenue_ shall originate in the House of Representatives," and that in
considering these "the Senate may propose or concur with amendments as
on other bills" (Art. I., Sec. VII.); but, "by a practice as old as the
Government itself, the constitutional prerogative of the House has been
held to apply to all the general appropriation bills,"[28] and the
Senate's right to amend these has been allowed the widest conceivable
scope. The upper house may add to them what it pleases; may go
altogether outside of their original provisions and tack to them
entirely new features of legislation, altering not only the amounts but
even the objects of expenditure, and making out of the materials sent
them by the popular chamber measures of an almost totally new character.
As passed by the House of Representatives, appropriation bills generally
provide for an expenditure considerably less than that called for by the
estimates; as returned from the Senate, they usually propose grants of
many additional millions, having been brought by that less sensitive
body up almost, if not quite, to the figures of the estimates.
After passing their ordeal of scrutiny and amendment in the Senate, the
appropriation bills return with their new figures to the House. But when
they return it is too late for the House to put them again into the
crucible of Committee of the Whole. The session, it may be taken for
granted, was well on towards its middle age before they were originally
introduced by the House Committee on Appropriations; after they reached
the Senate they were referred to its corresponding Committee; and the
report of that Committee upon them was debated at the leisurely length
characteristic of the weightier proceedings of the upper chamber; so
that the last days of the session are fast approaching when they are
sent down to the House with the work of the Senate's hand upon them. The
House is naturally disinclined to consent to the radical alterations
wrought by the Senate, but there is no time to quarrel with its
colleague, unless it can make up its mind to sit through the heat of
midsummer, or to throw out the bill and accept the discomforts of an
extra session. If the session be the short one, which ends, by
constitutional requirement, on the 4th of March, the alternative is the
still more distasteful one of leaving the appropriations to be made by
the next House.
The usual practice, therefore, is to adjust such differences by means of
a conference between the two Houses. The House rejects the Senate's
amendments without hearing them read; the Senate stoutly refuses to
yield; a conference ensues, conducted by a committee of three members
from each chamber; and a compromise is effected, by such a compounding
of disagreeing propositions as gives neither party to the quarrel the
victory, and commonly leaves the grants not a little below the amounts
asked for by the departments. As a rule, the Conference Committee
consists, on the part of the House, of the chairman of its Committee on
Appropriations, some other well-posted member of that Committee, and a
representative of the minority. Its reports are matters of highest
prerogative. They may be brought in even while a member is speaking. It
is much better to silence a speaker than to delay for a single moment,
at this stage of the session, the pressing, imperious question of the
supplies for the support of the government. The report is, therefore,
acted upon immediately and in a mass, and is generally adopted without
debate. So great is the haste that the report is passed upon before
being printed, and without giving any one but the members of the
Conference Committee time to understand what it really contains. There
is no chance of remark or amendment. It receives at once sanction or
rejection as a whole; and the chances are, of course, in favor of its
being accepted, because to reject it would but force a new conference
and bring fresh delays.
It is evident, therefore, that after all the careful and thorough-going
debate and amendment of Committee of the Whole in the House, and all the
grave deliberation of the Senate to which the general appropriations are
subjected, they finally pass in a very chaotic state, full of provisions
which neither the House nor the Senate likes, and utterly vague and
unintelligible to every one save the members of the Conference
Committee; so that it would seem almost as if the generous portions of
time conscientiously given to their consideration in their earlier
stages had been simply time thrown away.
The result of the under-appropriation to which Congress seems to have
become addicted by long habit in dealing with the estimates, is, of
course, the addition of another bill to the number of the regular annual
grants. As regularly as the annual session opens there is a Deficiency
Bill to be considered. Doubtless deficiencies frequently arise because
of miscalculations or extravagance on the part of the departments; but
the most serious deficiencies are those which result from the
close-fistedness of the House Committee on Appropriations, and the
compromise reductions which are wrung from the Senate by conference
committees. Every December, consequently, along with the estimates for
the next fiscal year, or at a later period of the session in special
communications, come estimates of deficiencies in the appropriations for
the current year, and the apparent economies of the grants of the
preceding session have to be offset in the gifts of the inevitable
Deficiency Bill. It is as if Congress had designedly established the
plan of making semi-annual appropriations. At each session it grants
part of the money to be spent after the first of July following, and
such sums as are needed to supplement the expenditures previously
authorized to be made after the first of July preceding. It doles out
their allowances in installments to its wards, the departments.
It is usual for the Appropriations Committees of both Houses, when
preparing the annual bills, to take the testimony of the directing
officers of the departments as to the actual needs of the public service
in regard to all the principal items of expenditure. Having no place
upon the floor of the House, and being, in consequence, shut out from
making complete public statements concerning the estimates, the heads of
the several executive departments are forced to confine themselves to
private communications with the House and Senate Committees. Appearing
before those Committees in person, or addressing them more formally in
writing, they explain and urge the appropriations asked in the "Letter"
containing the estimates. Their written communications, though addressed
only to the chairman of one of the Committees, frequently reach Congress
itself, being read in open session by some member of the Committee in
order to justify or interpret the items of appropriation proposed in a
pending bill. Not infrequently the head of a department exerts himself
to secure desired supplies by dint of negotiation with individual
members of the Committee, and by repeated and insistent private appeals
to their chairman.
Only a very small part of the relations between the Committees and the
departments is a matter of rule. Each time that the estimates come under
consideration the Committees must specially seek, or the departments
newly volunteer, information and advice. It would seem, however, that it
is now less usual for the Committees to ask than for the Secretaries to
offer counsel and suggestion. In the early years of the government it
was apparently not uncommon for the chairman of spending committees to
seek out departmental officials in order to get necessary enlightenment
concerning the mysteries of the estimates, though it was often easier to
ask for than to get the information wanted. An amusing example of the
difficulties which then beset a committee-man in search of such
knowledge is to be found in the private correspondence of John Randolph
of Roanoke. Until 1865 the House Committee of Ways and Means, which is
one of the oldest of the Standing Committees, had charge of the
appropriations; it was, therefore, Mr. Randolph's duty, as chairman of
that Committee in 1807, to look into the estimates, and he thus
recounts, in an interesting and exceedingly characteristic letter to
his intimate friend and correspondent, Nicholson, this pitiful
experience which he had had in performing that duty: "I called some time
since at the navy office to ask an explanation of certain items of the
estimate for this year. The Secretary called upon his chief clerk, who
knew very little more of the business than his master. I propounded a
question to the head of the department; he turned to the clerk like a
boy who cannot say his lesson, and with imploring countenance beseeches
aid; the clerk with much assurance gabbled out some commonplace jargon,
which I could not take for sterling; an explanation was required, and
both were dumb. This pantomime was repeated at every item, until,
disgusted and ashamed for the degraded situation of the principal, I
took leave without pursuing the subject, seeing that my object could not
be attained. There was not one single question relating to the
department that the Secretary could answer."[29] It is to be hoped that
the Secretaries of to-day are somewhat better versed in the affairs of
their departments than was respectable Robert Smith, or, at any rate,
that they have chief clerks who can furnish inquiring chairmen with
something better than commonplace jargon which no shrewd man can take
for sterling information; and it is altogether probable that such a
scene as the one just described would nowadays be quite impossible. The
book-keeping of later years has been very much stricter and more
thorough than it was in the infancy of the departments; the estimates
are much more thoroughly differentiated and itemized; and a minute
division of labor in each department amongst a numerous clerical force
makes it comparatively easy for the chief executive officers to acquaint
themselves quickly and accurately with the details of administration.
They do not wait, therefore, as a general thing, to be sought out and
questioned by the Committees, but bestir themselves to get at the ears
of the committee-men, and especially to secure, if possible, the
influence of the chairmen in the interest of adequate appropriations.
These irregular and generally informal communications between the
Appropriations Committees and the heads of the departments, taking the
form sometimes of pleas privately addressed by the Secretaries to
individual members of the Committees, and again of careful letters which
find their way into the reports laid before Congress, stand in our
system in the place of the annual financial statements which are in
British practice made by the ministers to parliament, under
circumstances which constitute very full and satisfactory public
explanations and the freest replies to all pertinent questions
invariable features of the supervision of the finances by the Commons.
Our ministers make their statements to both Houses indirectly and
piecemeal, through the medium of the Committees. They are mere
witnesses, and are in no definite way responsible for the annual
appropriations. Their secure four-year tenure of office is not at all
affected by the treatment the estimates receive at the hands of
Congress. To see our cabinet officers resign because appropriations had
been refused for the full amount asked for in the Secretary of the
Treasury's "Letter" would be as novel in our eyes as would be, in the
view of our English cousins, the sight of a Ministry of the Crown
remaining in office under similar circumstances. Indeed, were our
cabinets to stake their positions upon the fortunes of the estimates
submitted to Congress, we should probably suffer the tiresome
inconvenience of yearly resignations; for even when the heads of the
departments tax all their energies and bring into requisition all their
arts of persuasion to secure ample grants from the Committees, the House
Committee cuts down the sums as usual, the Senate Committee adds to them
as before, and the Conference Committee strikes a deficient compromise
balance according to time-honored custom.
There is in the House another appropriations committee besides the
Committee on Appropriations. This is the Committee on Rivers and
Harbors, created in December, 1883, by the Forty-eighth Congress, as a
sharer in the too great prerogatives till then enjoyed by the Committee
on Commerce. The Committee on Rivers and Harbors represents, of course,
the lately-acquired permanency of the policy of internal improvements.
Until 1870 that policy had had a very precarious existence. Strenuously
denied all tolerance by the severely constitutional Presidents of the
earlier days, it could not venture to declare itself openly in separate
appropriations which offered an easy prey to the watchful veto, but
skulked in the unobtrusive guise of items of the general grants, safe
under the cover of respectable neighbor items. The veto has never been
allowed to seek out single features in the acts submitted to the
executive eye, and even such men as Madison and Monroe, stiff and
peremptory as they were in the assertion of their conscientious
opinions, and in the performance of what they conceived to be their
constitutional duty, and much as they disapproved of stretching the
Constitution to such uses as national aid to local and inland
improvements, were fain to let an occasional gift of money for such
purposes pass unforbidden rather than throw out the general
appropriation bill to which it was tacked. Still, Congress did not make
very frequent or very flagrant use of this trick, and schemes of
internal improvement came altogether to a stand-still when faced by
President Jackson's imperious disfavor. It was for many years the
settled practice of Congress to grant the States upon the sea-board
leave to lay duties at their ports for the improvement of the harbors,
and itself to undertake the expense of no public works save those upon
territory actually owned by the United States. But in later years the
relaxation of presidential opposition and the admission of new States
lying altogether away from the sea, and, therefore, quite unwilling to
pay the tariffs which were building up the harbors of their eastern
neighbors without any recompensing advantage to themselves who had no
harbors, revived the plans which the vetoes of former times had
rebuffed, and appropriations from the national coffers began freely to
be made for the opening of the great water highways and the perfecting
of the sea-gates of commerce. The inland States were silenced, because
satisfied by a share in the benefits of national aid, which, being no
longer indirect, was not confined to the sanctioning of state tariffs
which none but the sea-board commonwealths could benefit by, but which
consumers everywhere had to pay.
The greatest increase in appropriations of this class took place just
after 1870. Since that date they have occupied a very prominent place in
legislation, running from some twelve millions in the session of 1873-4
up and down through various figures to eighteen millions seven hundred
thousand in the session of 1882-3, constituting during that decade the
chief business of the Committee on Commerce, and finally having a
special Standing Committee erected for their superintendence. They have
thus culminated with the culmination of the protective tariff, and the
so-called "American system" of protective tariffs and internal
improvements has thus at last attained to its perfect work. The same
prerogatives are accorded this new appropriations committee which have
been secured to the greater Committee which deals with the estimates.
Its reports may be made at any time when a member is not speaking, and
stand in all respects upon the same footing as the bills proposing the
annual grants. It is a special spending committee, with its own key to
the Treasury.
But the Appropriation Committees of the two Houses, though, strictly
speaking, the only committees of supply, have their work increased and
supplemented by the numerous Committees which devote time and energy to
creating demands upon the Treasury. There is a pension list in the
estimates for whose payment the Committee on Appropriations has to
provide every year; but the Committee on Pensions is constantly
manufacturing new claims upon the public revenues.[30] There must be
money forthcoming to build the new ships called for by the report of the
Committee on Naval Affairs, and to meet the charges for the army
equipment and reforms recommended by the Committee on Military Affairs.
There are innumerable fingers in the budget pie.
It is principally in connection with appropriations that what has come
to be known in our political slang as "log-rolling" takes place. Of
course the chief scene of this sport is the private room of the
Committee on Rivers and Harbors, and the season of its highest
excitement, the hours spent in the passage of the River and Harbor
Bill. "Log-rolling" is an exchange of favors. Representative A. is very
anxious to secure a grant for the clearing of a small water-course in
his district, and representative B. is equally solicitous about his
plans for bringing money into the hands of the contractors of his own
constituency, whilst representative C. comes from a sea-port town whose
modest harbor is neglected because of the treacherous bar across its
mouth, and representative D. has been blamed for not bestirring himself
more in the interest of schemes of improvement afoot amongst the
enterprising citizens of his native place; so it is perfectly feasible
for these gentlemen to put their heads together and confirm a mutual
understanding; that each will vote in Committee of the Whole for the
grants desired by the others, in consideration of the promise that they
will cry "aye" when his item comes on to be considered. It is not out of
the question to gain the favoring ear of the reporting Committee, and a
great deal of tinkering can be done with the bill after it has come into
the hands of the House. Lobbying and log-rolling go hand in hand.
So much for estimates and appropriations. All questions of revenue are
in their first stages in the hands of the House Committee of Ways and
Means, and in their last, in charge of the Senate Committee on Finance.
The name of the House Committee is evidently borrowed from the language
of the British Parliament; the English Committee of Ways and Means is,
however, the Commons itself sitting in Committee of the Whole to
consider the statement and proposals of the Chancellor of the Exchequer,
whilst ours is a Standing Committee of the House composed of eleven
members, and charged with the preparation of all legislation relating to
the raising of the revenue and to providing ways and means for the
support of the government. We have, in English parliamentary phrase, put
our Chancellorship of the Exchequer into commission. The chairman of the
Committee figures as our minister of finance, but he really, of course,
only represents the commission of eleven over which he presides.
All reports of the Treasury department are referred to this Committee of
Ways and Means, which also, like the Committee on Appropriations, from
time to time holds other more direct communications with the officers of
revenue bureaux. The annual reports of the Secretary of the Treasury are
generally quite full of minute information upon the points most
immediately connected with the proper duties of the Committee. They are
explicit with regard to the collection and disbursement of the revenues,
with regard to the condition of the public debt, and with regard to the
operation of all laws governing the financial policy of the departments.
They are, in one aspect, the great yearly balance sheets, exhibiting the
receipts and expenditures of the government, its liabilities and its
credits; and, in another aspect, general views of the state of industry
and of the financial machinery of the country, summarizing the
information compiled by the bureau of statistics with reference to the
condition of the manufactures and of domestic trade, as well as with
regard to the plight of the currency and of the national banks. They
are, of course, quite distinct from the "Letters" of the Secretary of
the Treasury, which contain the estimates, and go, not to the Committee
of Ways and Means, but to the Committee on Appropriations.
Though the duties of the Committee of Ways and Means in supervising the
management of the revenues of the country are quite closely analogous to
those of the British Chancellor of the Exchequer, the lines of policy in
which they walk are very widely separated from those which he feels
bound to follow. As I have said, the object which he holds constantly in
view is to keep the annual balances as nearly as possible at an
equilibrium. He plans to raise only just enough revenue to satisfy the
grants made in Committee of Supply, and leave a modest surplus to cover
possible errors in the estimates and probable fluctuations in the
returns from taxation. Our Committee of Ways and Means, on the other
hand, follow a very different policy. The revenues which they control
are raised for a double object. They represent not only the income of
the government, but also a carefully erected commercial policy to which
the income of the government has for many years been incidental. They
are intended to foster the manufactures of the country as well as to
defray the expenses of federal administration. Were the maintenance of
the government and the support of the public credit the chief objects of
our national policy of taxation, it would undoubtedly be cast in a very
different pattern. During a greater part of the lifetime of the present
government, the principal feature of that policy has been a complex
system of duties on imports, troublesome and expensive of collection,
but nevertheless yielding, together with the license taxes of the
internal revenue which later years have seen added to it, immense
surpluses which no extravagances of the spending committees could
exhaust. Duties few, small, and comparatively inexpensive of collection
would afford abundant revenues for the efficient conduct of the
government, besides comporting much more evidently with economy in
financial administration. Of course, if vast revenues pour in over the
barriers of an exacting and exorbitant tariff, amply sufficient revenues
would flow in through the easy conduits of moderate and simple duties.
The object of our financial policy, however, has not been to equalize
receipts and expenditures, but to foster the industries of the country.
The Committee of Ways and Means, therefore, do not concern themselves
directly with regulating the income of the government--they know that
that, in every probable event, will be more than sufficient--but with
protecting the interests of the manufacturers as affected by the
regulation of the tariff. The resources of the government are made
incidental to the industrial investments of private citizens.
This evidently constitutes a very capital difference between the
functions of the Chancellor of the Exchequer and those of our Committee
of Ways and Means. In the policy of the former the support of the
government is everything; with the latter the care of the industries of
the country is the beginning and the end of duty. In the eyes of
parliament enormous balances represent ignorant or improper management
on the part of the ministers, and a succession of them is sure to cast a
cabinet from office, to the lasting disgrace of the Chancellor of the
Exchequer; but to the mind of Congress vast surpluses are indicative of
nothing in particular. They indicate of course abundant returns from the
duties, but the chief concern is, not whether the duties are fruitful,
but whether they render the trades prosperous. Commercial interests are
the essential consideration; excess of income is a matter of comparative
indifference. The points of view characteristic of the two systems are
thus quite opposite: the Committee of Ways and Means subordinates its
housekeeping duties to its much wider extra-governmental business; the
Chancellor of the Exchequer subordinates everything to economical
administration.
This is evidently the meaning of the easy sovereignty, in the practice
of the House, of questions of supply over questions of revenue. It is
imperative to grant money for the support of the government, but
questions of revenue revision may be postponed without inconvenience.
The two things do not necessarily go hand in hand, as they do in the
Commons. The reports of the Committee of Ways and Means are matters of
quite as high privilege as the reports of the Committee on
Appropriations, but they by no means stand an equal chance of gaining
the consideration of the House and reaching a passage. They have no
inseparable connection with the annual grants; the needed supplies will
be forthcoming without any readjustments of taxation to meet the
anticipated demands, because the taxes are not laid in the first
instance with reference to the expenses which are to be paid out of
their proceeds. If it were the function of the Committee of Ways and
Means, as it is of the Chancellor of the Exchequer, to adjust the
revenue to the expenditures, their reports would be as essential a part
of the business of each session as are the reports of the Committee on
Appropriations; but their proposals, occupying, as they do, a very
different place in legislation, may go to the wall just as the proposals
of the other Committees do at the demand of the chairman of the great
spending Committee. The figures of the annual grants do not run near
enough to the sum of the annual receipts to make them at all dependent
on bills which concern the latter.
It would seem that the supervision exercised by Congress over
expenditures is more thorough than that which is exercised by the
Commons in England. In 1814 the House created a Standing Committee on
Public Expenditures whose duty it should be "to examine into the state
of the several public departments, and particularly into laws making
appropriations of money, and to report whether the moneys have been
disbursed conformably with such laws; and also to report from time to
time such provisions and arrangements as may be necessary to add to the
economy of the departments and the accountability of their officers;"
but this Committee stood as the only committee of audit for but two
years. It was not then abolished, but its jurisdiction was divided
amongst six other Committees on Expenditures in the several departments,
to which was added in 1860 a seventh, and in 1874 an eighth. There is
thus a separate Committee for the audit of the accounts of each of the
executive departments, beside which the original single Committee on
Public Expenditures stands charged with such duties as may have been
left it in the general distribution.[31] The duties of these eight
Committees are specified with great minuteness in the rules. They are
"to examine into the state of the accounts and expenditures respectively
submitted to them, and to inquire and report particularly," whether the
expenditures of the respective departments are warranted by law;
"whether the claims from time to time satisfied and discharged by the
respective departments are supported by sufficient vouchers,
establishing their justness both as to their character and amount;
whether such claims have been discharged out of funds appropriated
therefor, and whether all moneys have been disbursed in conformity with
appropriation laws; and whether any, or what, provisions are necessary
to be adopted, to provide more perfectly for the proper application of
the public moneys, and to secure the government from demands unjust in
their character or extravagant in their amount." Besides exercising
these functions of careful audit, they are, moreover, required to
"report from time to time" any plans for retrenchment that may appear
advisable in the interests of economy, or any measures that may be
necessary to secure greater efficiency or to insure stricter
accountability to Congress in the management of the departments; to
ferret out all abuses that may make their appearance; and to see to it
that no department has useless offices in its bureaux, or over or
under-paid officers on its rolls.
But, though these Committees are so many and so completely armed with
powers, indications are not wanting that more abuses run at large in
the departments than they, with all their eyes, are able to detect. The
Senate, though it has no similar permanent committees, has sometimes
discovered dishonest dealings that had altogether escaped the vigilance
of the eight House Committees; and even these eight occasionally, by a
special effort, bring to light transactions which would never have been
unearthed in the ordinary routine course of their usual procedure. It
was a select committee of the Senate which, during the sessions of the
Forty-seventh Congress, discovered that the "contingent fund" of the
Treasury department had been spent in repairs on the Secretary's private
residence, for expensive suppers spread before the Secretary's political
friends, for lemonade for the delectation of the Secretary's private
palate, for bouquets for the gratification of the Secretary's busiest
allies, for carpets never delivered, "ice" never used, and services
never rendered;[32] although these were secrets of which the honest
faces of the vouchers submitted with the accounts gave not a hint.
It is hard to see how there could have been anything satisfactory or
conclusive in the annual supervision of the public accounts during any
but the latest years of this system of committee audit. Before 1870 our
national book-keeping was much like that still in vogue in France.
Credits once granted ran on without period until they were exhausted.
There were always unexpended balances to confuse the accounts; and when
the figures of the original grants had been on a too generous scale, as
was often the case, these balances accumulated from year to year in
immense surpluses, sometimes of many millions, of whose use no account
was given, and which consequently afforded means for all sorts of
extravagance and peculation. In 1870 this abuse was partially corrected
by a law which limited such accumulations to a period of two years, and
laid hands, on behalf of the Treasury, on the $174,000,000 of unexpended
balances which had by that time been amassed in the several departments;
but it was not till 1874 that such a rule of expenditure and accounting
was established as would make intelligent audit by the Committees
possible, by a proper circumscription of the time during which credits
could be drawn upon without a regrant.[33]
Such is a general view, in brief and without technical detail, of the
chief features of our financial system, of the dealings of Congress with
the questions of revenue, expenditure, and supply. The contrast which
this system offers to the old-world systems, of which the British is the
most advanced type, is obviously a very striking one. The one is the
very opposite of the others. On the one hand is a financial policy
regulated by a compact, coöperative ministry under the direction of a
representative chamber, and on the other hand a financial policy
directed by the representative body itself, with only clerical aid from
the executive. In our practice, in other words, the Committees are the
ministers, and the titular ministers only confidential clerks. There is
no concurrence, not even a nominal alliance, between the several
sections of this committee-ministry, though their several duties are
clearly very nearly akin and as clearly mutually dependent. This feature
of disintegration in leadership runs, as I have already pointed out,
through all our legislation; but it is manifestly of much more serious
consequence in financial administration than in the direction of other
concerns of government. There can be no doubt that, if it were not for
the fact that our revenues are not regulated with any immediate
reference to the expenditures of the government, this method of spending
according to the suggestions of one body, and taxing in obedience to
the suggestions of another entirely distinct, would very quickly bring
us into distress; it would unquestionably break down under any attempt
to treat revenue and expenditure as mutually adjustable parts of a
single, uniform, self-consistent system. They can be so treated only
when they are under the management of a single body; only when all
financial arrangements are based upon schemes prepared by a few men of
trained minds and accordant principles, who can act with easy agreement
and with perfect confidence in each other. When taxation is regarded
only as a source of revenue and the chief object of financial management
is the graduation of outlays by income, the credit and debit sides of
the account must come under a single eye to be properly balanced; or, at
the least, those officers who raise the money must see and be guided by
the books of those who spend it.
It cannot, therefore, be reasonably regarded as matter of surprise that
our financial policy has been without consistency or coherency, without
progressive continuity. The only evidences of design to be discovered in
it appear in those few elementary features which were impressed upon it
in the first days of the government, when Congress depended upon such
men as Hamilton and Gallatin for guidance in putting the finances into
shape. As far as it has any invariable characteristics, or any traceable
heredity, it is the handiwork of the sagacious men who first presided
over the Treasury department. Since it has been altogether in the hands
of congressional Committees it has so waywardly shifted from one rôle to
another, and has with such erratic facility changed its principles of
action and its modes of speech, to suit the temper and tastes of the
times, that one who studies it hardly becomes acquainted with it in one
decade before he finds that that was a season quite apart from and
unlike both those which went before and those which succeeded. At almost
every session Congress has made some effort, more or less determined,
towards changing the revenue system in some essential portion; and that
system has never escaped radical alteration for ten years together. Had
revenue been graduated by the comparatively steady standard of the
expenditures, it must have been kept stable and calculable; but
depending, as it has done, on a much-debated and constantly fluctuating
industrial policy, it has been regulated in accordance with a scheme
which has passed through as many phases as there have been vicissitudes
and vagaries in the fortunes of commerce and the tactics of parties.
This is the more remarkable because upon all fiscal questions Congress
acts with considerable deliberation and care. Financial legislation
usually, if not always, occupies by far the most prominent place in the
business of each session. Though other questions are often disposed of
at odd moments, in haste and without thought, questions of revenue and
supply are always given full measure of debate. The House of
Representatives, under authority of the Rule before referred to, which
enables it, as it were, to project the previous question into Committee
of the Whole, by providing for the discharge of that Committee from the
further consideration of any bill that is in its hands, or that may be
about to be referred to it, after all amendments "pending and that may
be offered" shall have been acted upon without debate, seldom hesitates,
when any ordinary business is to be considered, to forbid to the
proceedings of Committee of the Whole all freedom of discussion, and,
consequently, almost all discretion as to the action to be taken; but
this muzzle is seldom put upon the mouth of the Committee when
appropriation or tariff bills are to be considered, unless the
discussion in Committee wanders off into fields, quite apart from the
proper matter of the measure in hand, in which case the House interposes
to check the irrelevant talk. Appropriation bills have, however, as I
have shown, a much higher privilege than have bills affecting the
tariff, and instances are not wanting in which the chairman of the
Committee on Appropriations has managed to engross the time of the House
in the disposal of measures prepared by his Committee, to the entire
exclusion of any action whatever on important bills reported by the
Committee of Ways and Means after the most careful and laborious
deliberation. His prerogatives are never disputed in such a contest for
consideration between a supply and a revenue bill, because these two
subjects do not, under our system, necessarily go hand in hand. Ways and
Means bills may and should be acted upon, but Supply bills must be.
It should be remarked in this connection, moreover, that much as
Congress talks about fiscal questions, whenever permitted to do so by
the selfish Appropriations Committee, its talk is very little heeded by
the big world outside its halls. The noteworthy fact, to which I have
already called attention, that even the most thorough debates in
Congress fail to awaken any genuine or active interest in the minds of
the people, has had its most striking illustrations in the course of our
financial legislation; for, though the discussions which have taken
place in Congress upon financial questions have been so frequent, so
protracted, and so thorough, engrossing so large a part of the time of
the House on their every recurrence, they seem, in almost every
instance, to have made scarcely any impression at all upon the public
mind. The Coinage Act of 1873, by which silver was demonetized, had been
before the country many years, ere it reached adoption, having been time
and again considered by Committees of Congress, time and again printed
and discussed in one shape or another, and having finally gained
acceptance apparently by sheer persistence and importunity. The
Resumption Act of 1875, too, had had a like career of repeated
considerations by Committees, repeated printings, and a full discussion
by Congress; and yet when the "Bland Silver Bill" of 1878 was on its way
through the mills of legislation, some of the most prominent newspapers
of the country declared with confidence that the Resumption Act had been
passed inconsiderately and in haste, almost secretly indeed; and several
members of Congress had previously complained that the demonetization
scheme of 1873 had been pushed surreptitiously through the courses of
its passage, Congress having been tricked into accepting it, doing it
scarcely knew what.
This indifference of the country to what is said in Congress, pointing,
as it obviously does, to the fact that, though the Committees lead in
legislation, they lead without concert or responsibility, and lead
nobody in particular, that is, no compact and organized party force
which can be made accountable for its policy, has also a further
significance with regard to the opportunities and capacities of the
constituencies. The doubt and confusion of thought which must
necessarily exist in the minds of the vast majority of voters as to the
best way of exerting their will in influencing the action of an assembly
whose organization is so complex, whose acts are apparently so
haphazard, and in which responsibility is spread so thin, throws
constituencies into the hands of local politicians who are more visible
and tangible than are the leaders of Congress, and generates, the while,
a profound distrust of Congress as a body whose actions cannot be
reckoned beforehand by any standard of promises made at elections or any
programmes announced by conventions. Constituencies can watch and
understand a few banded leaders who display plain purposes and act upon
them with promptness; but they cannot watch or understand forty odd
Standing Committees, each of which goes its own way in doing what it can
without any special regard to the pledges of either of the parties from
which its membership is drawn. In short, we lack in our political life
the conditions most essential for the formation of an active and
effective public opinion. "The characteristics of a nation capable of
public opinion," says Mr. Bagehot, most sagacious of political critics,
"is that ... parties will be _organized_; in each there will be a
leader, in each there will be some looked up to, and many who look up to
them; the opinion of the party will be formed and suggested by the few,
it will be criticised and accepted by the many."[34] And this is just
the sort of party organization which we have not. Our parties have
titular leaders at the polls in the persons of candidates, and nominal
creeds in the resolutions of conventions, but no select few in whom to
trust for guidance in the general policy of legislation, or to whom to
look for suggestions of opinion. What man, what group of men, can speak
for the Republican party or for the Democratic party? When our most
conspicuous and influential politicians say anything about future
legislation, no one supposes that they are speaking for their party, as
those who have authority; they are known to speak only for themselves
and their small immediate following of colleagues and friends.
The present relations between Congress and public opinion remind us of
that time, in the reign of George III., when "the bulk of the English
people found itself powerless to control the course of English
government," when the government was divorced from "that general mass of
national sentiment on which a government can alone safely ground
itself." Then it was that English public opinion, "robbed as it was of
all practical power, and thus stripped of the feeling of responsibility
which the consciousness of power carries with it," "became ignorant and
indifferent to the general progress of the age, but at the same time ...
hostile to Government because it was Government, disloyal to the Crown,
averse from Parliament. For the first and last time ... Parliament was
unpopular, and its opponents secure of popularity."[35] Congress has in
our own day become divorced from the "general mass of national
sentiment," simply because there is no means by which the movements of
that national sentiment can readily be registered in legislation. Going
about as it does to please all sorts of Committees composed of all sorts
of men,--the dull and the acute, the able and the cunning, the honest
and the careless,--Congress evades judgment by avoiding all coherency of
plan in its action. The constituencies can hardly tell whether the works
of any particular Congress have been good or bad; at the opening of its
sessions there was no determinate policy to look forward to, and at
their close no accomplished plans to look back upon. During its brief
lifetime both parties may have vacillated and gone astray, policies may
have shifted and wandered, and untold mischief, together with some good,
may have been done; but when all is reviewed, it is next to impossible
oftentimes to distribute justly the blame and the praise. A few stubborn
committee-men may be at the bottom of much of the harm that has been
wrought, but they do not represent their party, and it cannot be clear
to the voter how his ballot is to change the habits of Congress for the
better. He distrusts Congress because he feels that he cannot control
it.
The voter, moreover, feels that his want of confidence in Congress is
justified by what he hears of the power of corrupt lobbyists to turn
legislation to their own uses. He hears of enormous subsidies begged and
obtained; of pensions procured on commission by professional pension
solicitors; of appropriations made in the interest of dishonest
contractors; and he is not altogether unwarranted in the conclusion that
these are evils inherent in the very nature of Congress, for there can
be no doubt that the power of the lobbyist consists in great part, if
not altogether, in the facility afforded him by the Committee system. He
must, in the natural course of things, have many most favorable
opportunities for approaching the great money-dispensing Committees. It
would be impracticable to work up his schemes in the broad field of the
whole House, but in the membership of a Committee he finds manageable
numbers. If he can gain the ear of the Committee, or of any influential
portion of it, he has practically gained the ear of the House itself; if
his plans once get footing in a committee report, they may escape
criticism altogether, and it will, in any case, be very difficult to
dislodge them. This accessibility of the Committees by outsiders gives
to illegitimate influences easy approach at all points of legislation,
but no Committees are affected by it so often or so unfortunately as are
the Committees which control the public moneys. They are naturally the
ones whose favor is oftenest and most importunately, as well as most
insidiously, sought; and no description of our system of revenue,
appropriation, and supply would be complete without mention of the
manufacturers who cultivate the favor of the Committee of Ways and
Means, of the interested persons who walk attendance upon the Committee
on Rivers and Harbors, and of the mail-contractors and subsidy-seekers
who court the Committee on Appropriations.
My last point of critical comment upon our system of financial
administration I shall borrow from a perspicacious critic of
congressional methods who recently wrote thus to one of the best of
American journals: "So long as the debit side of the national account is
managed by one set of men, and the credit side by another set, both sets
working separately and in secret, without any public responsibility, and
without any intervention on the part of the executive official who is
nominally responsible; so long as these sets, being composed largely of
new men every two years, give no attention to business except when
Congress is in session, _and thus spend in preparing plans the whole
time which ought to be spent in public discussion of plans already
matured_, so that an immense budget is rushed through without discussion
in a week or ten days,--just so long the finances will go from bad to
worse, no matter by what name you call the party in power. No other
nation on earth attempts such a thing, or could attempt it without soon
coming to grief, our salvation thus far consisting in an enormous
income, with practically no drain for military expenditure."[36]
Unquestionably this strikes a very vital point of criticism. Congress
spends its time working, in sections, at preparing plans, instead of
confining itself to what is for a numerous assembly manifestly the much
more useful and proper function of debating and revising plans prepared
beforehand for its consideration by a commission of skilled men, old in
political practice and in legislative habit, whose official life is
apart from its own, though dependent upon its will. Here, in other
words, is another finger pointing to Mr. Mill's question as to the best
"legislative commission." Our Committees fall short of being the best
form of commission, not only in being too numerous but also in being
integral parts of the body which they lead, having no life apart from
it. Probably the best working commission would be one which should make
plans for government independently of the representative body, and in
immediate contact with the practical affairs of administration, but
which should in all cases look to that body for the sanctioning of those
plans, and should be immediately responsible to it for their success
when put into operation.
IV.
THE SENATE.
This is a Senate, a Senate of equals, of men of individual honor
and personal character, and of absolute independence. We know no
masters, we acknowledge no dictators. This is a hall for mutual
consultation and discussion, not an arena for the exhibition of
champions.--DANIEL WEBSTER.
The Senate of the United States has been both extravagantly praised and
unreasonably disparaged, according to the predisposition and temper of
its various critics. In the eyes of some it has a stateliness of
character, an eminency of prerogative, and, for the most part, a wisdom
of practice such as no other deliberative body possesses; whilst in the
estimation of others it is now, whatever it may have been formerly, but
a somewhat select company of leisurely "bosses," in whose companionship
the few men of character and high purpose who gain admission to its
membership find little that is encouraging and nothing that is
congenial. Now of course neither of these extreme opinions so much as
resembles the uncolored truth, nor can that truth be obtained by a
judicious mixture of their milder ingredients. The truth is, in this
case as in so many others, something quite commonplace and practical.
The Senate is just what the mode of its election and the conditions of
public life in this country make it. Its members are chosen from the
ranks of active politicians, in accordance with a law of natural
selection to which the state legislatures are commonly obedient; and it
is probable that it contains, consequently, the best men that our system
calls into politics. If these best men are not good, it is because our
system of government fails to attract better men by its prizes, not
because the country affords or could afford no finer material.
It has been usual to suppose that the Senate was just what the
Constitution intended it to be; that because its place in the federal
system was exalted the aims and character of its members would naturally
be found to be exalted as well; that because its term was long its
foresight would be long also; or that because its election was not
directly of the people demagogy would find no life possible in its
halls. But the Senate is in fact, of course, nothing more than a part,
though a considerable part, of the public service, and if the general
conditions of that service be such as to starve statesmen and foster
demagogues, the Senate itself will be full of the latter kind, simply
because there are no others available. There cannot be a separate breed
of public men reared specially for the Senate. It must be recruited from
the lower branches of the representative system, of which it is only the
topmost part. No stream can be purer than its sources. The Senate can
have in it no better men than the best men of the House of
Representatives; and if the House of Representatives attract to itself
only inferior talent, the Senate must put up with the same sort. I think
it safe to say, therefore, that, though it may not be as good as could
be wished, the Senate is as good as it can be under the circumstances.
It contains the most perfect product of our politics, whatever that
product may be.
In order to understand and appreciate the Senate, therefore, one must
know the conditions of public life in this country. What are those
conditions? Well, in the first place, they are not what they were in the
early years of the federal government; they are not what they were even
twenty years ago; for in this, as in other things, the war between the
States ends one distinct period and opens another. Between the great
constructive statesmen of the revolutionary days and the reconstructing
politicians of the sixties there came into public place and legislative
influence a great race of constitutional lawyers. The questions which
faced our statesmen while the Constitution was a-making were in the
broadest sense questions of politics; but the questions which dominated
our public life after the federal government had been successfully set
up were questions of legal interpretation such as only lawyers could
grapple with. All matters of policy, all doubts of legislation, even all
difficulties of diplomacy, were measured by rules of constitutional
construction. There was hardly a single affair of public concern which
was not hung upon some peg of constitutional dogma in the testing-rooms
of one or another of the contending schools of constitutional
interpretation. Constitutional issues were ever the tides, questions of
administrative policy seldom more than the eddies, of politics.
The Republicans under Jefferson drew their nourishment from
constitutional belief no less than did the Federalists; the Whigs and
Democrats of a later day lived on what was essentially the same diet,
though it was served in slightly different forms; and the parties of
to-day are themselves fain to go to these cooks of the olden time
whenever they desire strong meat to fortify them against their present
debility. The great questions attending the admission of new States to
the Union and the annexation of foreign territory, as well as all the
controversies which came in the train of the contest over slavery and
the reserved powers of the States, were of the Constitution
constitutional; and what other questions were then living--save those
which found root in the great charter's implied powers, about which
there was such constant noise of debate? It will be remembered that very
few publicists opposed internal improvements, for instance, on the
ground that they were unwise or uncalled for. No one who took a
statesman-like view of the matter could fail to see that the opening up
of the great water-ways of the country, the construction of roads, the
cutting of canals, or any public work which might facilitate inter-State
commerce by making intercourse between the various portions of the Union
easy and rapid, was sanctioned by every consideration of wisdom, as
being in conformity with a policy at once national in its spirit and
universal in its benefits. The doubt was, not as to what it would be
best and most provident to do, but as to what it would be lawful to do;
and the chief opponents of schemes of internal improvement based their
dissent upon a careful meditation of the language of the Constitution.
Without its plain approval they would not move, even if they had to
stand still all their days.
It was, too, with many professions of this spirit that the tariff was
dealt with. It ran suddenly to the front as a militant party question
in 1833, not as if a great free-trade movement had been set afoot which
was to anticipate the mission of Cobden and Bright, but as an issue
between federal taxation and the constitutional privileges of the
States. The agricultural States were being, as they thought, very
cruelly trodden down under the iron heel of that protectionist policy to
whose enthronement they had themselves consented, and they fetched their
hope of escape from the Constitution. The federal government
unquestionably possessed, they admitted, and that by direct grant of the
fundamental law, the right to impose duties on imports; but did that
right carry with it the privilege of laying discriminating duties for
other purposes than that of raising legitimate revenue? Could the
Constitution have meant that South Carolina might be taxed to maintain
the manufactures of New England?
Close upon the heels of the great tariff controversy of that time came
the stupendous contest over the right of secession and the abolition of
slavery; and again in this contest, as in all that had gone before, the
party which was being hard driven sought refuge in the Constitution.
This too was, in its first stages at least, a lawyer's question. It
eventually slipped out of all lawyerly control, and was given over to be
settled by the stern and savage processes of war; but it stayed with
the constitutional lawyers as long as it could, and would have stayed
with them to the end had it not itself been bigger than the Constitution
and mixed with such interests and such passions as were beyond the
control of legislatures or of law courts.
Such samples of the character which political questions have hitherto
borne in this country are sufficient to remind all readers of our
history of what have been the chief features of our politics, and may
serve, without further elaboration, to illustrate the point I wish to
emphasize. It is manifest how such a course of politics would affect
statesmanship and political leadership. While questions affecting the
proper construction of the Constitution were the chief and most
imperative questions pressing for settlement, great lawyers were in
demand; and great lawyers were, accordingly, forthcoming in satisfaction
of the demand. In a land like ours, where litigation is facilitated by
the establishment of many open and impartial courts, great lawyers are a
much more plentiful product than great administrators, unless there be
also some extraordinary means for the encouragement of administrative
talents. We have, accordingly, always had plenty of excellent lawyers,
though we have often had to do without even tolerable administrators,
and seem destined to endure the inconvenience of hereafter doing
without any constructive statesmen at all. The constitutional issues of
former times were so big and so urgent that they brought great advocates
into the field, despite all the tendencies there were in our system
towards depriving leadership of all place of authority. In the presence
of questions affecting the very structure and powers of the federal
government, parties had to rally with definite purpose and espouse a
distinct creed; and when the maintenance or overthrow of slavery had
ceased to be a question of constitutional right, and had become a matter
of contention between sentiment and vested rights,--between interest and
passionate feeling,--there was of course a hot energy of contest between
two compact hosts and a quick elevation of forceful leaders.
The three stages of national growth which preceded the war between the
States were each of them creative of a distinct class of political
leaders. In the period of erection there were great architects and
master-builders; in the period of constitutional interpretation there
were, at a distance from the people, great political schoolmen who
pondered and expounded the letter of the law, and, nearer the people,
great constitutional advocates who cast the doctrines of the schoolmen
into policy; and in the period of abolitionist agitation there were
great masters of feeling and leaders of public purpose. The publicists
of the second period kept charge of the slavery question, as I have
said, as long as they could, and gave place with bitter reluctance to
the anti-slavery orators and pro-slavery champions who were to talk the
war-feeling into a flame. But it was of course inevitable that the new
movement should have new leaders. It was essentially revolutionary in
its tone and in its designs, and so quite out of the reach of those
principles of action which had governed the policy of the older school
of politicians. Its aim was to change, not to vindicate, the
Constitution. Its leaders spoke, not words of counsel, but words of
passion and of command. It was a crusade, not a campaign; the impetuous
movement of a cause, not the canvass of a mooted measure. And, like
every big, stirring cause, it had its leaders--leaders whose authority
rested upon the affections and sympathies of the people rather than upon
any attested wisdom or success of statesmanship. The war was the work,
mediately, of philanthropists; and the reconstructions which followed
the war were the hasty strokes of these same unbalanced knights of the
crusade, full of bold feeling, but not of steady or far-sighted
judgment.
The anti-slavery movement called forth leaders who, from the very nature
of their calling, were more picturesque than any who had figured on the
national stage since the notable play of the Revolution had gone off the
boards; but it was no better cast in leading parts than had been the
drama which immediately preceded it. When the constitution of a
self-governing people is being consciously moulded by the rapid
formation of precedent during the earliest periods of its existence,
there are sure to be antagonistic beliefs, distinct and strong and
active enough to take shape in the creeds of energetic parties, each led
by the greatest advocates of its cherished principles. The season of our
constitutional development, consequently, saw as fine a race of
statesmen at the front of national affairs as have ever directed the
civil policy of the country; and they, in turn, gave place to men brave
to encounter the struggles of changed times, and fit to solve the doubts
of a new set of events.
Since the war, however, we have come into a fourth period of national
life, and are perplexed at finding ourselves denied a new order of
statesmanship to suit the altered conditions of government. The period
of federal construction is long-passed; questions of constitutional
interpretation are no longer regarded as of pressing urgency, the war
has been fought, even the embers of its issues being now almost
extinguished; and we are left to that unexciting but none the less
capitally important business of every-day peaceful development and
judicious administration to whose execution every nation in its middle
age has to address itself with what sagacity, energy, and prudence it
can command. It cannot be said that these new duties have as yet raised
up any men eminently fit for their fulfillment. We have had no great
administrators since the opening of this newest stage, and there is as
yet no visible sign that any such will soon arise. The forms of
government in this country have always been unfavorable to the easy
elevation of talent to a station of paramount authority; and those forms
in their present crystallization are more unfavorable than ever to the
toleration of the leadership of the few, whilst the questions now most
prominent in politics are not of such a nature as to compel skilled and
trustworthy champions to come into the field, as did the constitutional
issues and revolutionary agitations of other days. They are matters of a
too quiet, business-like sort to enlist feeling or arouse enthusiasm.
It is, therefore, very unfortunate that only feeling or enthusiasm can
create recognized leadership in our politics. There is no office set
apart for the great party leader in our government. The powers of the
Speakership of the House of Representatives are too cramped and covert;
the privileges of the chairmanships of the chief Standing Committees
are too limited in scope; the presidency is too silent and inactive, too
little like a premiership and too much like a superintendency. If there
be any one man to whom a whole party or a great national majority looks
for guiding counsel, he must lead without office, as Daniel Webster did,
or in spite of his office, as Jefferson and Jackson did. There must be
something in the times or in the questions which are abroad to thrust
great advocates or great masters of purpose into a non-official
leadership, which is theirs because they represent in the greatest
actions of their lives some principle at once vital and widely loved or
hated, or because they possess in their unrivaled power of eloquent
speech the ability to give voice to some such living theme. There must
be a cause to be advanced which is greater than the trammels of
governmental forms, and which, by authority of its own imperative voice,
constitutes its advocates the leaders of the nation, though without
giving them official title--without need of official title. No one is
authorized to lead by reason of any official station known to our
system. We call our real leaders by no names but their own: Mr. Webster
was always Mr. Webster and never Prime Minister.
In a country which governs itself by means of a public meeting, a
Congress or a Parliament, a country whose political life is
representative, the only real leadership in governmental affairs must be
legislative leadership--ascendency in the public meeting which decides
everything. The leaders, if there be any, must be those who suggest the
opinions and rule the actions of the representative body. We have in
this country, therefore, no real leadership; because no man is allowed
to direct the course of Congress, and there is no way of governing the
country save through Congress, which is supreme. The chairman of a great
Committee like the Committee of Ways and Means stands, indeed, at the
sources of a very large and important stream of policy, and can turn
that stream at his pleasure, or mix what he will with its waters; but
there are whole provinces of policy in which he can have no authority at
all. He neither directs, nor can often influence, those other chairmen
who direct all the other important affairs of government. He, though the
greatest of chairmen, and as great, it may be, as any other one man in
the whole governmental system, is by no means at the head of the
government. He is, as he feels every day, only a big wheel where there
are many other wheels, some almost as big as he, and all driven, like
himself, by fires which he does not kindle or tend.
In a word, we have no supreme executive ministry, like the great
"Ministry of the Crown" over sea, in whose hands is the general
management of legislation; and we have, consequently, no great prizes of
leadership such as are calculated to stimulate men of strong talents to
great and conspicuous public services. The Committee system is, as I
have already pointed out, the very opposite of this. It makes all the
prizes of leadership small, and nowhere gathers power into a few hands.
It cannot be denied that this is in ordinary times, and in the absence
of stirring themes, a great drawback, inasmuch as it makes legislative
service unattractive to minds of the highest order, to whom the offer of
really great place and power at the head of the governing assembly, the
supreme council of the nation, would be of all things most attractive.
If the presidency were competitive,--if it could be won by distinguished
congressional service,--who can doubt that there would be a notable
influx of talents into Congress and a significant elevation of tone and
betterment of method in its proceedings; and yet the presidency is very
far from being equal to a first-rate premiership.
There is, I know, one distinctive feature of legislative leadership
which makes it seem to some not altogether to be desired; though it
scarcely constitutes such an objection as to make no leadership at all
seem preferable. It is the leadership of orators; it is the ascendency
of those who have a genius for talking. In the eyes of those who do not
like it, it seems a leadership of artful dialecticians, the success of
tricks of phrase, the victory of rushing declamation--government, not by
the advice of statesman-like counselors, but by the wagging of ready
tongues. Macaulay pointed out with his accustomed force of statement
just the fact which haunts those who hold to such objections. The power
of speaking, he said, which is so highly prized by politicians in a
popular government, "may exist in the highest degree without judgment,
without fortitude, without skill in reading the characters of men or the
signs of the times, without any knowledge, of the principles of
legislation or of political economy, and without any skill in diplomacy
or in the administration of war. Nay, it may well happen that those very
intellectual qualities which give peculiar charm to the speeches of a
public man may be incompatible with the qualities which would fit him to
meet a pressing emergency with promptitude and firmness. It was thus
with Charles Townshend. It was thus with Windham. It was a privilege to
listen to those accomplished and ingenious orators. But in a perilous
crisis they would be found inferior in all the qualities of rulers to
such a man as Oliver Cromwell, who talked nonsense, or as William the
Silent, who did not talk at all."
Nevertheless, it is to be observed that neither Windham nor Townshend
rose to places of highest confidence in the assembly which they served,
and which they charmed by their attractive powers of speech; and that
Cromwell would have been as unfit to rule anything but an autocratic
commonwealth as would have been William the Silent to be anything but a
Dutch governor. The people really had no voice in Cromwell's government.
It was absolute. He would have been as much out of place in a
representative government as a bull in a china shop. We would not have a
Bismarck if we could.
Every species of government has the defects of its own qualities.
Representative government is government by advocacy, by discussion, by
persuasion, and a great, miscellaneous voting population is often misled
by deceitful pleas and swayed by unwise counsels. But if one were to
make a somewhat freer choice of examples than Macaulay permitted
himself, it would be easy to multiply the instances of ruling orators of
our race who have added to their gifts of eloquence conspicuous sagacity
in the administration of affairs. At any rate, the men who have led
popular assemblies have often been, like Hampden, rarely endowed with
judgment, foresight, and steadfastness of purpose; like Walpole,
amazingly quick in "reading the characters of men and the signs of the
times;" like Chatham, masterful in ordering the conquests and the
policies of the world; like Burke, learned in the profoundest principles
of statecraft; like Canning, adroit in diplomacy; like Pitt, safe in
times of revolution; like Peel, sagacious in finance; or, like
Gladstone, skilled in every branch of political knowledge and equal to
any strain of emergency.
It is natural that orators should be the leaders of a self-governing
people. Men may be clever and engaging speakers, such as are to be
found, doubtless, at half the bars of the country, without being
equipped even tolerably for any of the high duties of the statesman; but
men can scarcely be orators without that force of character, that
readiness of resource, that clearness of vision, that grasp of
intellect, that courage of conviction, that earnestness of purpose, and
that instinct and capacity for leadership which are the eight horses
that draw the triumphal chariot of every leader and ruler of free men.
We could not object to being ruled again by such men as Henry and Otis
and Samuel Adams; but they were products of revolution. They were
inspired by the great causes of the time; and the government which they
set up has left us without any ordinary, peaceful means of bringing men
like them into public life. We should like to have more like them, but
the violent exercise of revolution is too big a price to pay for them.
Some less pungent diet is to be desired for the purpose of giving health
to our legislative service. There ought to be some quiet, effective
tonic, some mild stimulant, such as the certain prospect of winning
highest and most honorable office, to infuse the best talent of the
nation into our public life.
These, then, are the conditions of public life which make the House of
Representatives what it is, a disintegrate mass of jarring elements, and
the Senate what it is, a small, select, and leisurely House of
Representatives. Or perhaps it would be nearer the whole truth to say
that these are the circumstances and this the frame of government of
which the two Houses form a part. Were the Senate not supplied
principally by promotions from the House,--if it had, that is, a
membership made up of men specially trained for its peculiar duties,--it
would probably be much more effective than it is in fulfilling the great
function of instructive and business-like debate of public questions;
for its duties are enough unlike those of the House to be called
peculiar. Men who have acquired all their habits in the matter of
dealing with legislative measures in the House of Representatives, where
committee work is everything and public discussion nothing but "talking
to the country," find themselves still mere declaimers when they get
into the Senate, where no previous question utters its interrupting
voice from the tongues of tyrannical committee-men, and where,
consequently, talk is free to all.[37] Only superior talents, such as
very few men possess, could enable a Representative of long training to
change his spots upon entering the Senate. Most men will not fit more
than one sphere in life; and after they have been stretched or
compressed to the measure of that one they will rattle about loosely or
stick too tight in any other into which they may be thrust. Still, more
or less adjustment takes place in every case. If a new Senator knock
about too loosely amidst the free spaces of the rules of that august
body, he will assuredly have some of his biggest corners knocked off and
his angularities thus made smoother; if he stick fast amongst the
dignified courtesies and punctilious observances of the upper chamber,
he will, if he stick long enough, finally wear down to such a size, by
jostling, as to attain some motion more or less satisfactory. But it
must be said, on the other hand, that even if the Senate were made up of
something better than selections from the House, it would probably be
able to do little more than it does in the way of giving efficiency to
our system of legislation. For it has those same radical defects of
organization which weaken the House. Its functions also, like those of
the House, are segregated in the prerogatives of numerous Standing
Committees.[38] In this regard Congress is all of a piece. There is in
the Senate no more opportunity than exists in the House for gaining such
recognized party leadership as would be likely to enlarge a man by
giving him a sense of power, and to steady and sober him by filling him
with a grave sense of responsibility. So far as its organization
controls it, the Senate, notwithstanding the one or two special
excellences which make it more temperate and often more rational than
the House, has no virtue which marks it as of a different nature. Its
proceedings bear most of the characteristic features of committee
rule.[39] Its conclusions are suggested now by one set o£ its members,
now by another set, and again by a third; an arrangement which is of
course quite effective in its case, as in that of the House, in
depriving it of that leadership which is valuable in more ways than in
imparting distinct purpose to legislative action, because it
concentrates party responsibility, attracts the best talents, and fixes
public interest.
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.
In this country the course of the reform was quite the reverse. Neither
the Executive nor Congress began it. The call for it came imperatively
from the people; it was a formulated demand of public opinion made upon
Congress, and it had to be made again and again, each time with more
determined emphasis, before Congress heeded. It worked its way up from
the convictions of the many to the purposes of the few. Amongst the
chief difficulties that have stood in its way, and which still block its
perfect realization, is that peculiarity of structure which I have just
now pointed out as intrinsic in the scheme of divided power which runs
through the Constitution. One of the conditions precedent to any real
and lasting reform of the civil service, in a country whose public
service is moulded by the conditions of self-government, is the drawing
of a sharp line of distinction between those offices which are political
and those which are _non_-political. The strictest rules of business
discipline, of merit-tenure and earned promotion, must rule every office
whose incumbent has naught to do with choosing between policies; but no
rules except the choice of parties can or should make and unmake, reward
or punish, those officers whose privilege it is to fix upon the
political purposes which administration shall be made to serve. These
latter are not many under any form of government. There are said to be
but fifty such at most in the civil service of Great Britain; but these
fifty go in or out as the balance of power shifts from party to party.
In the case of our own civil service it would, I take it, be extremely
hard to determine where the line should be drawn. In all the higher
grades this particular distinction is quite obscured. A doubt exists as
to the Cabinet itself. Are the Secretaries political or non-political
officers? It would seem that they are exclusively neither. They are at
least semi-political. They are, on the one hand, merely the servants of
Congress, and yet, on the other hand, they have enough freedom of
discretion to mar and color, if not to choose, political ends. They can
wreck plans, if they cannot make them. Should they be made permanent
officials because they are mere Secretaries, or should their tenure
depend upon the fortunes of parties because they have many chances to
render party services? And if the one rule or the other is to be applied
to them, to how many, and to which of their chief subordinates, is it to
be extended? If they are not properly or necessarily party men, let them
pass the examinations and run the gauntlet of the usual tests of
efficiency, let errand-boys work up to Secretary-ships; but if not, let
their responsibility to their party be made strict and determinate. That
is the cardinal point of practical civil service reform.
This doubt as to the exact _status_ in the system of the chief ministers
of state is a most striking commentary on the system itself. Its
complete self is logical and simple. But its complete self exists only
in theory. Its real self offers a surprise and presents a mystery at
every change of view. The practical observer who seeks for facts and
actual conditions of organization is often sorely puzzled to come at the
real methods of government. Pitfalls await him on every side. If
constitutional lawyers of strait-laced consciences filled Congress and
officered the departments, every clause of the Constitution would be
accorded a formal obedience, and it would be as easy to know beforehand
just what the government will be like inside to-morrow as it is now to
know what it was like outside yesterday. But neither the knowledge nor
the consciences of politicians keep them very close to the Constitution;
and it is with politicians that we have to deal nowadays in studying the
government. Every government is largely what the men are who constitute
it. If the character or opinions of legislators and administrators
change from time to time, the nature of the government changes with
them; and as both their characters and their opinions do change very
often it is very hard to make a picture of the government which can be
said to have been perfectly faithful yesterday, and can be confidently
expected to be exactly accurate to-morrow. Add to these embarrassments,
which may be called the embarrassments of human nature, other
embarrassments such as our system affords, the embarrassments of subtle
legal distinctions, a fine theoretical plan made in delicate hair-lines,
requirements of law which can hardly be met and can easily and naturally
be evaded or disregarded, and you have in full the conception of the
difficulties which attend a practical exposition of the real facts of
federal administration. It is not impossible to point out what the
Executive was intended to be, what it has sometimes been, or what it
might be; nor is it forbidden the diligent to discover the main
conditions which mould it to the forms of congressional supremacy; but
more than this is not to be expected.
VI.
CONCLUSION.
Political philosophy must analyze political history; it must
distinguish what is due to the excellence of the people, and what
to the excellence of the laws; it must carefully calculate the
exact effect of each part of the constitution, though thus it may
destroy many an idol of the multitude, and detect the secret of
utility where but few imagined it to lie.--BAGEHOT.
Congress always makes what haste it can to legislate. It is the prime
object of its rules to expedite law-making. Its customs are fruits of
its characteristic diligence in enactment. Be the matters small or
great, frivolous or grave, which busy it, its aim is to have laws always
a-making. Its temper is strenuously legislative. That it cannot regulate
all the questions to which its attention is weekly invited is its
misfortune, not its fault; is due to the human limitation of its
faculties, not to any narrow circumscription of its desires. If its
committee machinery is inadequate to the task of bringing to action more
than one out of every hundred of the bills introduced, it is not because
the quick clearance of the docket is not the motive of its organic
life. If legislation, therefore, were the only or the chief object for
which it should live, it would not be possible to withhold admiration
from those clever hurrying rules and those inexorable customs which seek
to facilitate it. Nothing but a doubt as to whether or not Congress
should confine itself to law-making can challenge with a question the
utility of its organization as a facile statute-devising machine.
The political philosopher of these days of self-government has, however,
something more than a doubt with which to gainsay the usefulness of a
sovereign representative body which confines itself to legislation to
the exclusion of all other functions. Buckle declared, indeed, that the
chief use and value of legislation nowadays lay in its opportunity and
power to remedy the mistakes of the legislation of the past; that it was
beneficent only when it carried healing in its wings; that repeal was
more blessed than enactment. And it is certainly true that the greater
part of the labor of legislation consists in carrying the loads
recklessly or bravely shouldered in times gone by, when the animal which
is now a bull was only a calf, and in completing, if they may be
completed, the tasks once undertaken in the shape of unambitious schemes
which at the outset looked innocent enough. Having got his foot into it,
the legislator finds it difficult, if not impossible, to get it out
again. "The modern industrial organization, including banks,
corporations, joint-stock companies, financial devices, national debts,
paper currency, national systems of taxation, is largely the creation of
legislation (not in its historical origin, but in the mode of its
existence and in its authority), and is largely regulated by
legislation. Capital is the breath of life to this organization, and
every day, as the organization becomes more complex and delicate, the
folly of assailing capital or credit becomes greater. At the same time
it is evident that the task of the legislator to embrace in his view the
whole system, to adjust his rules so that the play of the civil
institutions shall not alter the play of the economic forces, requires
more training and more acumen. Furthermore, the greater the complication
and delicacy of the industrial system, the greater the chances for
cupidity when backed by craft, and the task of the legislator to meet
and defeat the attempts of this cupidity is one of constantly increasing
difficulty."[57]
Legislation unquestionably generates legislation. Every statute may be
said to have a long lineage of statutes behind it; and whether that
lineage be honorable or of ill repute is as much a question as to each
individual statute as it can be with regard to the ancestry of each
individual legislator. Every statute in its turn has a numerous progeny,
and only time and opportunity can decide whether its offspring will
bring it honor or shame. Once begin the dance of legislation, and you
must struggle through its mazes as best you can to its breathless
end,--if any end there be.
It is not surprising, therefore, that the enacting, revising, tinkering,
repealing of laws should engross the attention and engage the entire
energy of such a body as Congress. It is, however, easy to see how it
might be better employed; or, at least, how it might add others to this
overshadowing function, to the infinite advantage of the government.
Quite as important as legislation is vigilant oversight of
administration; and even more important than legislation is the
instruction and guidance in political affairs which the people might
receive from a body which kept all national concerns suffused in a broad
daylight of discussion. There is no similar legislature in existence
which is so shut up to the one business of law-making as is our
Congress. As I have said, it in a way superintends administration by the
exercise of semi-judicial powers of investigation, whose limitations and
insufficiency are manifest. But other national legislatures command
administration and verify their name of "parliaments" by talking
official acts into notoriety. Our extra-constitutional party
conventions, short-lived and poor in power as they are, constitute our
only machinery for that sort of control of the executive which consists
in the award of personal rewards and punishments. This is the cardinal
fact which differentiates Congress from the Chamber of Deputies and from
Parliament, and which puts it beyond the reach of those eminently useful
functions whose exercise would so raise it in usefulness and in dignity.
An effective representative body, gifted with the power to rule, ought,
it would seem, not only to speak the will of the nation, which Congress
does, but also to lead it to its conclusions, to utter the voice of its
opinions, and to serve as its eyes in superintending all matters of
government,--which Congress does not do. The discussions which take
place in Congress are aimed at random. They now and again strike rather
sharply the tender spots in this, that, or the other measure; but, as I
have said, no two measures consciously join in purpose or agree in
character, and so debate must wander as widely as the subjects of
debate. Since there is little coherency about the legislation agreed
upon, there can be little coherency about the debates. There is no one
policy to be attacked or defended, but only a score or two of separate
bills. To attend to such discussions is uninteresting; to be instructed
by them is impossible. There is some scandal and discomfort, but
infinite advantage, in having every affair of administration subjected
to the test of constant examination on the part of the assembly which
represents the nation. The chief use of such inquisition is, not the
direction of those affairs in a way with which the country will be
satisfied (though that itself is of course all-important), but the
enlightenment of the people, which is always its sure consequence. Very
few men are unequal to a danger which they see and understand; all men
quail before a threatening which is dark and unintelligible, and suspect
what is done behind a screen. If the people could have, through
Congress, daily knowledge of all the more important transactions of the
governmental offices, an insight into all that now seems withheld and
private, their confidence in the executive, now so often shaken, would,
I think, be very soon established. Because dishonesty can lurk under the
privacies now vouchsafed our administrative agents, much that is
upright and pure suffers unjust suspicion. Discoveries of guilt in a
bureau cloud with doubts the trustworthiness of a department. As nothing
is open enough for the quick and easy detection of peculation or fraud,
so nothing is open enough for the due vindication and acknowledgment of
honesty. The isolation and privacy which shield the one from discovery
cheat the other of reward.
Inquisitiveness is never so forward, enterprising, and irrepressible as
in a popular assembly which is given leave to ask questions and is
afforded ready and abundant means of getting its questions answered. No
cross-examination is more searching than that to which a minister of the
Crown is subjected by the all-curious Commons. "Sir Robert Peel once
asked to have a number of questions carefully written down which they
asked him one day in succession in the House of Commons. They seemed a
list of everything that could occur in the British empire or to the
brain of a member of parliament."[58] If one considered only the wear
and tear upon ministers of state, which the plague of constant
interrogation must inflict, he could wish that their lives, if useful,
might be spared this blight of unending explanation; but no one can
overestimate the immense advantage of a facility so unlimited for
knowing all that is going on in the places where authority lives. The
conscience of every member of the representative body is at the service
of the nation. All that he feels bound to know he can find out; and what
he finds out goes to the ears of the country. The question is his, the
answer the nation's. And the inquisitiveness of such bodies as Congress
is the best conceivable source of information. Congress is the only body
which has the proper motive for inquiry, and it is the only body which
has the power to act effectively upon the knowledge which its inquiries
secure. The Press is merely curious or merely partisan. The people are
scattered and unorganized. But Congress is, as it were, the corporate
people, the mouthpiece of its will. It is a sovereign delegation which
could ask questions with dignity, because with authority and with power
to act.
Congress is fast becoming the governing body of the nation, and yet the
only power which it possesses in perfection is the power which is but a
part of government, the power of legislation. Legislation is but the oil
of government. It is that which lubricates its channels and speeds its
wheels; that which lessens the friction and so eases the movement. Or
perhaps I shall be admitted to have hit upon a closer and apter analogy
if I say that legislation is like a foreman set over the forces of
government. It issues the orders which others obey. It directs, it
admonishes, but it does not do the actual heavy work of governing. A
good foreman does, it is true, himself take a hand in the work which he
guides; and so I suppose our legislation must be likened to a poor
foreman, because it stands altogether apart from that work which it is
set to see well done. Members of Congress ought not to be censured too
severely, however, when they fail to check evil courses on the part of
the executive. They have been denied the means of doing so promptly and
with effect. Whatever intention may have controlled the compromises of
constitution-making in 1787, their result was to give us, not government
by discussion, which is the only tolerable sort of government for a
people which tries to do its own governing, but only _legislation_ by
discussion, which is no more than a small part of government by
discussion. What is quite as indispensable as the debate of problems of
legislation is the debate of all matters of administration. It is even
more important to know how the house is being built than to know how the
plans of the architect were conceived and how his specifications were
calculated. It is better to have skillful work--stout walls, reliable
arches, unbending rafters, and windows sure to "expel the winter's
flaw"--than a drawing on paper which is the admiration of all the
practical artists in the country. The discipline of an army depends
quite as much upon the temper of the troops as upon the orders of the
day.
It is the proper duty of a representative body to look diligently into
every affair of government and to talk much about what it sees. It is
meant to be the eyes and the voice, and to embody the wisdom and will of
its constituents. Unless Congress have and use every means of
acquainting itself with the acts and the disposition of the
administrative agents of the government, the country must be helpless to
learn how it is being served; and unless Congress both scrutinize these
things and sift them by every form of discussion, the country must
remain in embarrassing, crippling ignorance of the very affairs which it
is most important that it should understand and direct. The informing
function of Congress should be preferred even to its legislative
function. The argument is not only that discussed and interrogated
administration is the only pure and efficient administration, but, more
than that, that the only really self-governing people is that people
which discusses and interrogates its administration. The talk on the
part of Congress which we sometimes justly condemn is the profitless
squabble of words over frivolous bills or selfish party issues. It would
be hard to conceive of there being too much talk about the practical
concerns and processes of government. Such talk it is which, when
earnestly and purposefully conducted, clears the public mind and shapes
the demands of public opinion.
Congress could not be too diligent about such talking; whereas it may
easily be too diligent in legislation. It often overdoes that business.
It already sends to its Committees bills too many by the thousand to be
given even a hasty thought; but its immense committee facilities and the
absence of all other duties but that of legislation make it omnivorous
in its appetite for new subjects for consideration. It is greedy to have
a taste of every possible dish that may be put upon its table, as an
"extra" to the constitutional bill of fare. This disposition on its part
is the more notable because there is certainly less need for it to hurry
and overwork itself at law-making than exists in the case of most other
great national legislatures. It is not state and national legislature
combined, as are the Commons of England and the Chambers of France. Like
the Reichstag of our cousin Germans, it is restricted to subjects of
imperial scope. Its thoughts are meant to be kept for national
interests. Its time is spared the waste of attention to local affairs.
It is even forbidden the vast domain of the laws of property, of
commercial dealing, and of ordinary crime. And even in the matter of
caring for national interests the way has from the first been made plain
and easy for it. There are no clogging feudal institutions to embarrass
it. There is no long-continued practice of legal or of royal tyranny for
it to cure,--no clearing away of old débris of any sort to delay it in
its exercise of a common-sense dominion over a thoroughly modern and
progressive nation. It is easy to believe that its legislative purposes
might be most fortunately clarified and simplified, were it to square
them by a conscientious attention to the paramount and controlling duty
of understanding, discussing, and directing administration.
If the people's authorized representatives do not take upon themselves
this duty, and by identifying themselves with the actual work of
government stand between it and irresponsible, half-informed criticism,
to what harassments is the executive not exposed? Led and checked by
Congress, the prurient and fearless, because anonymous, animadversions
of the Press, now so often premature and inconsiderate, might be
disciplined into serviceable capacity to interpret and judge. Its
energy and sagacity might be tempered by discretion, and strengthened by
knowledge. One of our chief constitutional difficulties is that, in
opportunities for informing and guiding public opinion, the freedom of
the Press is greater than the freedom of Congress. It is as if
newspapers, instead of the board of directors, were the sources of
information for the stockholders of a corporation. We look into
correspondents' letters instead of into the Congressional Record to find
out what is a-doing and a-planning in the departments. Congress is
altogether excluded from the arrangement by which the Press declares
what the executive is, and conventions of the national parties decide
what the executive shall be. Editors are self-constituted our guides,
and caucus delegates our government directors.
Since all this curious scattering of functions and contrivance of frail,
extra-constitutional machinery of government is the result of that
entire separation of the legislative and executive branches of the
system which is with us so characteristically and essentially
constitutional, it is exceedingly interesting to inquire and important
to understand how that separation came to be insisted upon in the making
of the Constitution. Alexander Hamilton has in our own times, as well
as before, been "severely reproached with having said that the British
government was the 'best model in existence.' In 1787 this was a mere
truism. However much the men of that day differed they were all agreed
in despising and distrusting _a priori_ constitutions and ideally
perfect governments, fresh from the brains of visionary enthusiasts,
such as sprang up rankly in the soil of the French revolution. The
Convention of 1787 was composed of very able men of the English-speaking
race. They took the system of government with which they had been
familiar, improved it, adapted it to the circumstances with which they
had to deal, and put it into successful operation. Hamilton's plan,
then, like the others, was on the British model, and it did not differ
essentially in details from that finally adopted."[59] It is needful,
however, to remember in this connection what has already been alluded
to, that when that convention was copying the English Constitution, that
Constitution was in a stage of transition, and had by no means fully
developed the features which are now recognized as most characteristic
of it. Mr. Lodge is quite right in saying that the Convention, in
adapting, improved upon the English Constitution with which its members
were familiar,--the Constitution of George III. and Lord North, the
Constitution which had failed to crush Bute. It could hardly be said
with equal confidence, however, that our system as then made was an
improvement upon that scheme of responsible cabinet government which
challenges the admiration of the world to-day, though it was quite
plainly a marked advance upon a parliament of royal nominees and
pensionaries and a secret cabinet of "king's friends." The English
constitution of that day had a great many features which did not invite
republican imitation. It was suspected, if not known, that the ministers
who sat in parliament were little more than the tools of a ministry of
royal favorites who were kept out of sight behind the strictest
confidences of the court. It was notorious that the subservient
parliaments of the day represented the estates and the money of the
peers and the influence of the King rather than the intelligence and
purpose of the nation. The whole "form and pressure" of the time
illustrated only too forcibly Lord Bute's sinister suggestion, that "the
forms of a free and the ends of an arbitrary government are things not
altogether incompatible." It was, therefore, perfectly natural that the
warnings to be so easily drawn from the sight of a despotic monarch
binding the usages and privileges of self-government to the service of
his own intemperate purposes should be given grave heed by Americans,
who were the very persons who had suffered most from the existing
abuses. It was something more than natural that the Convention of 1787
should desire to erect a Congress which would not be subservient and an
executive which could not be despotic. And it was equally to have been
expected that they should regard an absolute separation of these two
great branches of the system as the only effectual means for the
accomplishment of that much desired end. It was impossible that they
could believe that executive and legislature could be brought into close
relations of coöperation and mutual confidence without being tempted,
nay, even bidden, to collude. How could either maintain its independence
of action unless each were to have the guaranty of the Constitution that
its own domain should be absolutely safe from invasion, its own
prerogatives absolutely free from challenge? "They shrank from placing
sovereign power anywhere. They feared that it would generate tyranny;
George III. had been a tyrant to them, and come what might they would
not make a George III."[60] They would conquer, by dividing, the power
they so much feared to see in any single hand.
"The English Constitution, in a word," says our most astute English
critic, "is framed on the principle of choosing a single sovereign
authority, and making it good; the American, upon the principle of
having many sovereign authorities, and hoping that their multitude may
atone for their inferiority. The Americans now extol their institutions,
and so defraud themselves of their due praise. But if they had not a
genius for politics, if they had not a moderation in action singularly
curious where superficial speech is so violent, if they had not a regard
for law, such as no great people have ever evinced, and infinitely
surpassing ours, the multiplicity of authorities in the American
Constitution would long ago have brought it to a bad end. Sensible
shareholders, I have heard a shrewd attorney say, can work _any_ deed of
settlement; and so the men of Massachusetts could, I believe, work _any_
constitution."[61] It is not necessary to assent to Mr. Bagehot's
strictures; but it is not possible to deny the clear-sighted justice of
this criticism. In order to be fair to the memory of our great
constitution-makers, however, it is necessary to remember that when they
sat in convention in Philadelphia the English Constitution, which they
copied, was not the simple system which was before Mr. Bagehot's eyes
when he wrote. Its single sovereign authority was not then a
twice-reformed House of Commons truly representative of the nation and
readily obeyed by a responsible Ministry. The sovereignty was at see-saw
between the throne and the parliament,--and the throne-end of the beam
was generally uppermost. Our device of separated, individualized powers
was very much better than a nominal sovereignty of the Commons which was
suffered to be overridden by force, fraud, or craft, by the real
sovereignty of the King. The English Constitution was at that time in
reality much worse than our own; and, if it is now superior, it is so
because its growth has not been hindered or destroyed by the too tight
ligaments of a written fundamental law.
The natural, the inevitable tendency of every system of self-government
like our own and the British is to exalt the representative body, the
people's parliament, to a position of absolute supremacy. That tendency
has, I think, been quite as marked in our own constitutional history as
in that of any other country, though its power has been to some extent
neutralized, and its progress in great part stayed, by those denials of
that supremacy which we respect because they are written in our law. The
political law written in our hearts is here at variance with that which
the Constitution sought to establish. A written constitution may and
often will be violated in both letter and spirit by a people of
energetic political talents and a keen instinct for progressive
practical development; but so long as they adhere to the forms of such a
constitution, so long as the machinery of government supplied by it is
the only machinery which the legal and moral sense of such a people
permits it to use, its political development must be in many directions
narrowly restricted because of an insuperable lack of open or adequate
channels. Our Constitution, like every other constitution which puts the
authority to make laws and the duty of controlling the public
expenditure into the hands of a popular assembly, practically sets that
assembly to rule the affairs of the nation as supreme overlord. But, by
separating it entirely from its executive agencies, it deprives it of
the opportunity and means for making its authority complete and
convenient. The constitutional machinery is left of such a pattern that
other forces less than that of Congress may cross and compete with
Congress, though they are too small to overcome or long offset it; and
the result is simply an unpleasant, wearing friction which, with other
adjustments, more felicitous and equally safe, might readily be avoided.
Congress, consequently, is still lingering and chafing under just such
embarrassments as made the English Commons a nuisance both to
themselves and to everybody else immediately after the Revolution
Settlement had given them their first sure promise of supremacy. The
parallel is startlingly exact. "In outer seeming the Revolution of 1688
had only transferred the sovereignty over England from James to William
and Mary. In actual fact it had given a powerful and decisive impulse to
the great constitutional progress which was transferring the sovereignty
from the King to the House of Commons. From the moment when its sole
right to tax the nation was established by the Bill of Rights, and when
its own resolve settled the practice of granting none but annual
supplies to the Crown, the House of Commons became the supreme power in
the State.... But though the constitutional change was complete, the
machinery of government was far from having adapted itself to the new
conditions of political life which such a change brought about. However
powerful the will of the Commons might be, it had no means of bringing
its will directly to bear on the control of public affairs. The
ministers who had charge of them were not its servants but the servants
of the Crown; it was from the King that they looked for direction, and
to the King that they held themselves responsible. By impeachment or
more indirect means the Commons could force a king to remove a minister
who contradicted their will; but they had no constitutional power to
replace the fallen statesman by a minister who would carry out their
will.
"The result was the growth of a temper in the Lower House which drove
William and his ministers to despair. It became as corrupt, as jealous
of power, as fickle in its resolves and factious in its spirit as bodies
always become whose consciousness of the possession of power is
untempered by a corresponding consciousness of the practical
difficulties or the moral responsibilities of the power which they
possess. It grumbled ... and it blamed the Crown and its ministers for
all at which it grumbled. But it was hard to find out what policy or
measures it would have preferred. Its mood changed, as William bitterly
complained, with every hour.... The Houses were in fact without the
guidance of recognized leaders, without adequate information, and
destitute of that organization out of which alone a definite policy can
come."[62]
The cure for this state of things which Sunderland had the sagacity to
suggest, and William the wisdom to apply, was the mediation between King
and Commons of a cabinet representative of the majority of the popular
chamber,--a first but long and decisive step towards responsible
cabinet government. Whether a similar remedy would be possible or
desirable in our own case it is altogether aside from my present purpose
to inquire. I am pointing out facts,--diagnosing, not prescribing
remedies. My only point just now is, that no one can help being struck
by the closeness of the likeness between the incipient distempers of the
first parliaments of William and Mary and the developed disorders now so
plainly discernible in the constitution of Congress. Though honest and
diligent, it is meddlesome and inefficient; and it is meddlesome and
inefficient for exactly the same reasons that made it natural that the
post-Revolutionary parliaments should exhibit like clumsiness and like
temper: namely, because it is "without the guidance of recognized
leaders, without adequate information, and destitute of that
organization out of which alone a definite policy can come."
The dangers of this serious imperfection in our governmental machinery
have not been clearly demonstrated in our experience hitherto; but now
their delayed fulfillment seems to be close at hand. The plain tendency
is towards a centralization of all the greater powers of government in
the hands of the federal authorities, and towards the practical
confirmation of those prerogatives of supreme overlordship which
Congress has been gradually arrogating to itself. The central
government is constantly becoming stronger and more active, and Congress
is establishing itself as the one sovereign authority in that
government. In constitutional theory and in the broader features of past
practice, ours has been what Mr. Bagehot has called a "composite"
government. Besides state and federal authorities to dispute as to
sovereignty, there have been within the federal system itself rival and
irreconcilable powers. But gradually the strong are overcoming the weak.
If the signs of the times are to be credited, we are fast approaching an
adjustment of sovereignty quite as "simple" as need be. Congress is not
only to retain the authority it already possesses, but is to be brought
again and again face to face with still greater demands upon its energy,
its wisdom, and its conscience, is to have ever-widening duties and
responsibilities thrust upon it, without being granted a moment's
opportunity to look back from the plough to which it has set its hands.
The sphere and influence of national administration and national
legislation are widening rapidly. Our populations are growing at such a
rate that one's reckoning staggers at counting the possible millions
that may have a home and a work on this continent ere fifty more years
shall have filled their short span. The East will not always be the
centre of national life. The South is fast accumulating wealth, and will
faster recover influence. The West has already achieved a greatness
which no man can gainsay, and has in store a power of future growth
which no man can estimate. Whether these sections are to be harmonious
or dissentient depends almost entirely upon the methods and policy of
the federal government. If that government be not careful to keep within
its own proper sphere and prudent to square its policy by rules of
national welfare, sectional lines must and will be known; citizens of
one part of the country may look with jealousy and even with hatred upon
their fellow-citizens of another part; and faction must tear and
dissension distract a country which Providence would bless, but which
man may curse. The government of a country so vast and various must be
strong, prompt, wieldy, and efficient. Its strength must consist in the
certainty and uniformity of its purposes, in its accord with national
sentiment, in its unhesitating action, and in its honest aims. It must
be steadied and approved by open administration diligently obedient to
the more permanent judgments of public opinion; and its only active
agency, its representative chambers, must be equipped with something
besides abundant powers of legislation.
As at present constituted, the federal government lacks strength because
its powers are divided, lacks promptness because its authorities are
multiplied, lacks wieldiness because its processes are roundabout, lacks
efficiency because its responsibility is indistinct and its action
without competent direction. It is a government in which every officer
may talk about every other officer's duty without having to render
strict account for not doing his own, and in which the masters are held
in check and offered contradiction by the servants. Mr. Lowell has
called it "government by declamation." Talk is not sobered by any
necessity imposed upon those who utter it to suit their actions to their
words. There is no day of reckoning for words spoken. The speakers of a
congressional majority may, without risk of incurring ridicule or
discredit, condemn what their own Committees are doing; and the
spokesmen of a minority may urge what contrary courses they please with
a well-grounded assurance that what they say will be forgotten before
they can be called upon to put it into practice. Nobody stands sponsor
for the policy of the government. A dozen men originate it; a dozen
compromises twist and alter it; a dozen offices whose names are scarcely
known outside of Washington put it into execution.
This is the defect to which, it will be observed, I am constantly
recurring; to which I recur again and again because every examination of
the system, at whatsoever point begun, leads inevitably to it as to a
central secret. It is the defect which interprets all the rest, because
it is their common product. It is exemplified in the extraordinary fact
that the utterances of the Press have greater weight and are accorded
greater credit, though the Press speaks entirely without authority, than
the utterances of Congress, though Congress possesses all authority. The
gossip of the street is listened to rather than the words of the
law-makers. The editor directs public opinion, the congressman obeys it.
When a presidential election is at hand, indeed, the words of the
political orator gain temporary heed. He is recognized as an authority
in the arena, as a professional critic competent to discuss the good and
bad points, and to forecast the fortunes of the contestants. There is
something definite in hand, and he is known to have studied all its
bearings. He is one of the managers, or is thought to be well acquainted
with the management. He speaks "from the card." But let him talk, not
about candidates, but about measures or about the policy of the
government, and his observations sink at once to the level of a mere
individual expression of opinion, to which his political occupations
seem to add very little weight. It is universally recognized that he
speaks without authority, about things which his vote may help to
settle, but about which several hundred other men have votes quite as
influential as his own. Legislation is not a thing to be known
beforehand. It depends upon the conclusions of sundry Standing
Committees. It is an aggregate, not a simple, production. It is
impossible to tell how many persons' opinions and influences have
entered into its composition. It is even impracticable to determine from
this year's law-making what next year's will be like.
Speaking, therefore, without authority, the political orator speaks to
little purpose when he speaks about legislation. The papers do not
report him carefully; and their editorials seldom take any color from
his arguments. The Press, being anonymous and representing a large force
of inquisitive news-hunters, is much more powerful than he chiefly
because it _is_ impersonal and seems to represent a wider and more
thorough range of information. At the worst, it can easily compete with
any ordinary individual. Its individual opinion is quite sure to be
esteemed as worthy of attention as any other individual opinion. And,
besides, it is almost everywhere strong enough to deny currency to the
speeches of individuals whom it does not care to report. It goes to its
audience; the orator must depend upon his audience coming to him. It can
be heard at every fireside; the orator can be heard only on the platform
or the hustings. There is no imperative demand on the part of the
reading public in this country that the newspapers should report
political speeches in full. On the contrary, most readers would be
disgusted at finding their favorite columns so filled up. By giving even
a notice of more than an item's length to such a speech, an editor runs
the risk of being denounced as dull. And I believe that the position of
the American Press is in this regard quite singular. The English
newspapers are so far from being thus independent and self-sufficient
powers,--a law unto themselves,--in the politics of the empire that they
are constrained to do homage to the political orator whether they will
or no. Conservative editors must spread before their readers _verbatim_
reports not only of the speeches of the leaders of their own party, but
also of the principal speeches of the leading Liberal orators; and
Liberal journals have no choice but to print every syllable of the more
important public utterances of the Conservative leaders. The nation
insists upon knowing what its public men have to say, even when it is
not so well said as the newspapers which report them could have said
it.
There are only two things which can give any man a right to expect that
when he speaks the whole country will listen: namely, genius and
authority. Probably no one will ever contend that Sir Stafford Northcote
was an orator, or even a good speaker. But by proof of unblemished
character, and by assiduous, conscientious, and able public service he
rose to be the recognized leader of his party in the House of Commons;
and it is simply because he speaks as one having authority,--and not as
the scribes of the Press,--that he is as sure of a heedful hearing as is
Mr. Gladstone, who adds genius and noble oratory to the authority of
established leadership. The leaders of English public life have
something besides weight of character, prestige of personal service and
experience, and authority of individual opinion to exalt them above the
anonymous Press. They have definite authority and power in the actual
control of government. They are directly commissioned to control the
policy of the administration. They stand before the country, in
parliament and out of it, as the responsible chiefs of their parties. It
is their business to lead those parties, and it is the matter-of-course
custom of the constituencies to visit upon the parties the punishment
due for the mistakes made by these chiefs. They are at once the servants
and scapegoats of their parties.
It is these well-established privileges and responsibilities of theirs
which make their utterances considered worth hearing,--nay, necessary to
be heard and pondered. Their public speeches are their parties'
platforms. What the leader promises his party stands ready to do, should
it be intrusted with office. This certainty of audience and of credit
gives spice to what such leaders have to say, and lends elevation to the
tone of all their public utterances. They for the most part avoid
buncombe, which would be difficult to translate into Acts of Parliament.
It is easy to see how great an advantage their station and influence
give them over our own public men. We have no such responsible party
leadership on this side the sea; we are very shy about conferring much
authority on anybody, and the consequence is that it requires something
very like genius to secure for any one of our statesmen a universally
recognized right to be heard and to create an ever-active desire to hear
him whenever he talks, not about candidates, but about measures. An
extraordinary gift of eloquence, such as not every generation may hope
to see, will always hold, because it will always captivate, the
attention of the people. But genius and eloquence are too rare to be
depended upon for the instruction and guidance of the masses; and since
our politicians lack the credit of authority and responsibility, they
must give place, except at election-time, to the Press, which is
everywhere, generally well-informed, and always talking. It is
necessarily "government by declamation" and editorial-writing.
It is probably also this lack of leadership which gives to our national
parties their curious, conglomerate character. It would seem to be
scarcely an exaggeration to say that they are homogeneous only in name.
Neither of the two principal parties is of one mind with itself. Each
tolerates all sorts of difference of creed and variety of aim within its
own ranks. Each pretends to the same purposes and permits among its
partisans the same contradictions to those purposes. They are grouped
around no legislative leaders whose capacity has been tested and to
whose opinions they loyally adhere. They are like armies without
officers, engaged upon a campaign which has no great cause at its back.
Their names and traditions, not their hopes and policy, keep them
together.
It is to this fact, as well as to short terms which allow little time
for differences to come to a head, that the easy agreement of
congressional majorities should be attributed. In other like assemblies
the harmony of majorities is constantly liable to disturbance. Ministers
lose their following and find their friends falling away in the midst
of a session. But not so in Congress. There, although the majority is
frequently simply conglomerate, made up of factions not a few, and
bearing in its elements every seed of discord, the harmony of party
voting seldom, if ever, suffers an interruption. So far as outsiders can
see, legislation generally flows placidly on, and the majority easily
has its own way, acting with a sort of matter-of-course unanimity, with
no suspicion of individual freedom of action. Whatever revolts may be
threatened or accomplished in the ranks of the party outside the House
at the polls, its power is never broken inside the House. This is
doubtless due in part to the fact that there is no freedom of debate in
the House; but there can be no question that it is principally due to
the fact that debate is without aim, just because legislation is without
consistency. Legislation is conglomerate. The absence of any concert of
action amongst the Committees leaves legislation with scarcely any trace
of determinate party courses. No two schemes pull together. If there is
a coincidence of principle between several bills of the same session, it
is generally accidental; and the confusion of policy which prevents
intelligent coöperation also, of course, prevents intelligent
differences and divisions. There is never a transfer of power from one
party to the other during a session, because such a transfer would mean
almost nothing. The majority remains of one mind so long as a Congress
lives, because its mind is very vaguely ascertained, and its power of
planning a split consequently very limited. It has no common mind, and
if it had, has not the machinery for changing it. It is led by a score
or two of Committees whose composition must remain the same to the end;
and who are too numerous, as well as too disconnected, to fight against.
It stays on one side because it hardly knows where the boundaries of
that side are or how to cross them.
Moreover, there is a certain well-known piece of congressional machinery
long ago invented and applied for the special purpose of keeping both
majority and minority compact. The legislative caucus has almost as
important a part in our system as have the Standing Committees, and
deserves as close study as they. Its functions are much more easily
understood in all their bearings than those of the Committees, however,
because they are much simpler. The caucus is meant as an antidote to the
Committees. It is designed to supply the cohesive principle which the
multiplicity and mutual independence of the Committees so powerfully
tend to destroy. Having no Prime Minister to confer with about the
policy of the government, as they see members of parliament doing, our
congressmen confer with each other in caucus. Rather than imprudently
expose to the world the differences of opinion threatened or developed
among its members, each party hastens to remove disrupting debate from
the floor of Congress, where the speakers might too hastily commit
themselves to insubordination, to quiet conferences behind closed doors,
where frightened scruples may be reassured and every disagreement healed
with a salve of compromise or subdued with the whip of political
expediency. The caucus is the drilling-ground of the party. There its
discipline is renewed and strengthened, its uniformity of step and
gesture regained. The voting and speaking in the House are generally
merely the movements of a sort of dress parade, for which the exercises
of the caucus are designed to prepare. It is easy to see how difficult
it would be for the party to keep its head amidst the confused
cross-movements of the Committees without thus now and again pulling
itself together in caucus, where it can ask itself its own mind and
pledge itself anew to eternal agreement.
The credit of inventing this device is probably due to the Democrats.
They appear to have used it so early as the second session of the
eighth Congress. Speaking of that session, a reliable authority says:
"During this session of Congress there was far less of free and
independent discussion on the measures proposed by the friends of the
administration than had been previously practiced in both branches of
the national legislature. It appeared that on the most important
subjects, the course adopted by the majority was the effect of caucus
arrangement, or, in other words, had been previously agreed upon at
meetings of the Democratic members held in private. Thus the legislation
of Congress was constantly swayed by a party following feelings and
pledges rather than according to sound reason or personal
conviction."[63] The censure implied in this last sentence may have
seemed righteous at the time when such caucus pledges were in disfavor
as new-fangled shackles, but it would hardly be accepted as just by the
intensely practical politicians of to-day. They would probably prefer to
put it thus: That the silvern speech spent in caucus secures the golden
silence maintained on the floor of Congress, making each party rich in
concord and happy in coöperation.
The fact that makes this defense of the caucus not altogether conclusive
is that it is shielded from all responsibility by its sneaking privacy.
It has great power without any balancing weight of accountability.
Probably its debates would constitute interesting and instructive
reading for the public, were they published; but they never get out
except in rumors often rehearsed and as often amended. They are, one may
take it for granted, much more candid and go much nearer the political
heart of the questions discussed than anything that is ever said openly
in Congress to the reporters' gallery. They approach matters without
masks and handle them without gloves. It might hurt, but it would
enlighten us to hear them. As it is, however, there is unhappily no
ground for denying their power to override sound reason and personal
conviction. The caucus cannot always silence or subdue a large and
influential minority of dissentients, but its whip seldom fails to
reduce individual malcontents and mutineers into submission. There is no
place in congressional jousts for the free lance. The man who disobeys
his party caucus is understood to disavow his party allegiance
altogether, and to assume that dangerous neutrality which is so apt to
degenerate into mere caprice, and which is almost sure to destroy his
influence by bringing him under the suspicion of being unreliable,--a
suspicion always conclusively damning in practical life. Any individual,
or any minority of weak numbers or small influence, who has the
temerity to neglect the decisions of the caucus is sure, if the offense
be often repeated, or even once committed upon an important issue, to be
read out of the party, almost without chance of reinstatement. And every
one knows that nothing can be accomplished in politics by mere
disagreement. The only privilege such recalcitrants gain is the
privilege of disagreement; they are forever shut out from the privilege
of confidential coöperation. They have chosen the helplessness of a
faction.
It must be admitted, however, that, unfortunate as the necessity is for
the existence of such powers as those of the caucus, that necessity
actually exists and cannot be neglected. Against the fatal action of so
many elements of disintegration it would seem to be imperatively needful
that some energetic element of cohesion should be provided. It is
doubtful whether in any other nation, with a shorter inheritance of
political instinct, parties could long successfully resist the
centrifugal forces of the committee system with only the varying
attraction of the caucus to detain them. The wonder is that, despite the
forcible and unnatural divorcement of legislation and administration and
the consequent distraction of legislation from all attention to anything
like an intelligent planning and superintendence of policy, we are not
cursed with as many factions as now almost hopelessly confuse French
politics. That we have had, and continue to have, only two national
parties of national importance or real power is fortunate rather than
natural. Their names stand for a fact, but scarcely for a reason.
An intelligent observer of our politics[64] has declared that there is
in the United States "a class, including thousands and tens of thousands
of the best men in the country, who think it possible to enjoy the
fruits of good government without working for them." Every one who has
seen beyond the outside of our American life must recognize the truth of
this; to explain it is to state the sum of all the most valid criticisms
of congressional government. Public opinion has no easy vehicle for its
judgments, no quick channels for its action. Nothing about the system is
direct and simple. Authority is perplexingly subdivided and distributed,
and responsibility has to be hunted down in out-of-the-way corners. So
that the sum of the whole matter is that the means of working for the
fruits of good government are not readily to be found. The average
citizen may be excused for esteeming government at best but a haphazard
affair, upon which his vote and all of his influence can have but
little effect. How is his choice of a representative in Congress to
affect the policy of the country as regards the questions in which he is
most interested, if the man for whom he votes has no chance of getting
on the Standing Committee which has virtual charge of those questions?
How is it to make any difference who is chosen President? Has the
President any very great authority in matters of vital policy? It seems
almost a thing of despair to get any assurance that any vote he may cast
will even in an infinitesimal degree affect the essential courses of
administration. There are so many cooks mixing their ingredients in the
national broth that it seems hopeless, this thing of changing one cook
at a time.
* * * * *
The charm of our constitutional ideal has now been long enough wound up
to enable sober men who do not believe in political witchcraft to judge
what it has accomplished, and is likely still to accomplish, without
further winding. The Constitution is not honored by blind worship. The
more open-eyed we become, as a nation, to its defects, and the prompter
we grow in applying with the unhesitating courage of conviction all
thoroughly-tested or well-considered expedients necessary to make
self-government among us a straightforward thing of simple method,
single, unstinted power, and clear responsibility, the nearer will we
approach to the sound sense and practical genius of the great and
honorable statesmen of 1787. And the first step towards emancipation
from the timidity and false pride which have led us to seek to thrive
despite the defects of our national system rather than seem to deny its
perfection is a fearless criticism of that system. When we shall have
examined all its parts without sentiment, and ganged all its functions
by the standards of practical common sense, we shall have established
anew our right to the claim of political sagacity; and it will remain
only to act intelligently upon what our opened eyes have seen in order
to prove again the justice of our claim to political genius.
INDEX.
Aberdeen. Lord, and civil service reform, 285.
Accounts, British public, how audited, 144, how kept, 145; French
public, how kept, 145; federal, how audited, 175-179; how kept formerly,
179.
Adams, John, on the constitutional balances, 12, 13; influence of, as
President, 41; claim of originality for the Constitution, 55, 249.
Adams, Samuel, 209.
"Address" of early Presidents to Senate, 239.
Administration, talents for, not encouraged in U. S., 199, 200;
questions of, now predominant, 203; divorced from legislation in U. S.,
251-253; training necessary for, 255, 256; contrasted with legislation,
273, 274; not less important than legislation, 297; must be debated,
302; tendency towards widening sphere of national, 316, 317.
Alabama claims, in Senate, 51.
Alien and Sedition Laws, 21.
Amendment, difficulty of constitutional, 242, 243; extra-constitutional,
243.
"American system" of protective tariffs, 167.
Appointing power of Speaker of House, 103; history of, of Speaker, 104;
accustomed use of, for party ends, 108.
Appropriation, bills, "general," 150; former methods of, 151; stinginess
of Congress in, 152, 159; bills, reported at any time, 153; bills,
specially debated, 78, 154, 155, 183, 184; bills, in the Senate,
155-158.
Appropriations, debate of, 78, 154, 155, 183, 184; "white-button
mandarins" of Committee on, 111; Committee on, consider estimates, 149;
"permanent," 152, 153; Committee on, controls only annual grants, 153;
semi-annual, 159; Committees on, relations between, and financial
officers of the govt., 160-164; reports of Committee on, preferred to
reports of Committee of Ways and Means, 174, 183, 184.
Audit of public accounts in England, 144; in U. S., 175-179.
Bagehot, Walter, on living reality and paper description of English
Constitution, 10; description of Parliament by, applied to Congress, 44;
on time required for opinions, 130; on public opinion, 187; on House of
Lords, 220; on bicameral system, 221, 222; on technicalities of
constitutional interpretation in U. S., 243; on questions asked in the
Commons, 300; on influence of Geo. III. on Constitution of U. S., 309;
on multiplicity of authorities in American Constitution, 309, 310.
Balance, between state and federal powers, See 'Federal and State
governments;' between judiciary and other branches of federal govt., 34
_et seq_.; between state legislatures and the Senate, 40; of the people
against their representatives, 40; of presidential electors against the
people, 40; between Executive and Congress, 41; between Senate and House
of Representatives, real, 228.
Balances of the Constitution, ideal, 52; present state of, 53; at
variance with inevitable tendency to exalt representative body, 311.
Bank of the U. S., 22.
Bicameral system, utility of a, 219 _et seq_.
Bill of Rights, and the Constitution of the U. S., 7.
Bills, introduced on Mondays, 66; early course of, in House, 67; all
committed, 67; doubt in committing some, 67, 68; fate of committed, 69;
passed under suspension of Rules, 111, 112; of private members in House
of Commons, 120, 121.
Bismarck, Count, stands for govt. in Germany, 59, 208.
"Bland Silver Bill," 185.
Bright, John, 198.
British govt. by party, 117 _et seq_.
Buckle, on use of legislation, 295.
Budget, controlled, not originated, by British House of Commons, 137;
preparation and submission of, by English Chancellor of Exchequer,
140-142; both originated and controlled by Congress, 148, 191.
Burke, Edmund, 209; on value of House of Commons, 227.
Cabinet, discords in first, 2; change in character of, 45 _et seq_.;
real executive equality of, with President, 46, 257; diminishing power
of, to control policy, 45, 47, 262, 269; parliamentary position of
British, 95; British, a single Standing Committee, 117; irresponsibility
of, in U. S., in matters of finance, 164; an integral part of the
Executive, 257; limits to independence of, 258; relations of, to
President, 258, 259; ministerial, rather than political, officers in U.
S., 261, 264 _et seq_., 291; duties of, supervised by Standing
Committees, 262; in the leading-strings of Congress, 262, 266; fixed
terms of, 261, 264 _et seq_.; represent whom? 265, 266; party relations
of, 269; easily evade many questions and commands of Congress, 271, 272;
indistinct responsibility of, 282; history of responsibility of British,
286 _et seq_.; status of, in American constitutional system, 291.
Calhoun, J. C., 89, 218.
Call of States for bills, 66; of Standing Committees for reports, 72,
73.
Canning, George, 209.
Caucus, failure of congressional nominating, 247; legislative,
disciplines parties in Congress, 326, 327; invention of, by Democrats,
327, 328; privacy and irresponsibility of legislative, 328, 329; methods
and constraints of legislative, 329, 330; necessity for legislative,
330.
Centralization, present tendency towards, in federal govt. and Congress,
53, 315, 316; questions which seem to necessitate, 54.
Chairman of Standing Committees, govt. by, 102; elders of Congress, 102;
relations of, to each other, 102, 103; limits to leadership of each of
the, 205.
Chatham, Earl of, 209, 258.
Civil Rights Act, 33, n.
Civil Service Reform, and usurpations of Senate, 49, 236 _et seq_.;
hindered by institutional causes in U. S., 285, 290; history of, in
Great Britain, 285 et seq.; history of, in U. S., 289, 290; conditions
precedent to, 290.
Clay, Henry, 89, 218, 252.
_Clôture_ in French Assembly, 126.
Cobden, Richard, 198.
Coinage Act of 1873, 185.
Commerce, federal power over, 30, 31; former control of appropriations
for internal improvements by Committee on, 167.
Commission, legislative, proposed by J. S. Mill, 115, 129, 192; the most
effective legislative, 192.
Committee, "Executive," proposed for House of Representatives, 114.
Committees, select, 67.
Committees, Standing, government by, 56; chairmen of, leaders of House,
60; chairmen of, do not consult or coöperate, 61; for every topic of
legislation, 61; served by rules of House, 66, 71; number and uses of,
67, 68; consider all bills, 67; overlapping jurisdiction of, 68; cannot
reject bills, 69; neglect of, to report, 69, 70; entire direction of
legislation by, 70, 78; hasty consideration of reports of, by House, 71;
four specially licensed, 71, 72; average time given to each of the, to
report, 72; call of, for reports, 72, 73; hastening of business by the,
74 _et seq_.; control of debate by, 75 _et seq_.; arguments before the,
81-85; division of power amongst the, 92; both parties represented on,
99; appointed in House by Speaker, 103; history of rules of appointment
of, 104; aided by Speaker, 108; Roman magistrates and the, 109; "little
legislatures" made up of all sorts of men, 113; contrasted with single
Standing Committee of Parliament, 116, 117; of House of Commons, 122;
which control national income, 136; which create demands upon the
Treasury, 167, 168; on expenditures, 175-177; multiplication of, by
Congress, 176, n.; approachability of the, by lobbyists, 189, 190;
choice of, in the Senate, 212, n.; supervision of the departments by
the, 231, 262, 271, 272; may command, but cannot superintend, 271; part
of the mechanism of Congress, 281; offset by legislative caucus, 326.
Commons, House of, represented by Ministers of Crown, 59, 244; character
of debate in the, 94, 95; Cabinet's place and functions in the, 117 _et
seq_.; private members' bills in the, 120, 121; committees of, 122;
functions and character of Speaker of, 122; the, in session, 123;
compared with French Chamber, 123, 128, 129; controls, does not
originate, financial measures, 137; opposition of, to civil service
reform, 285, 289; cross-examination of Ministers in, 300.
Conference Committees on appropriation bills, 157, 158, 280.
Congress, the centre and source of power, 11; early awkwardness of, 21,
44; made dominant and irresistible by doctrine of "implied powers," 23;
check upon, by Judiciary, 35, 36; power of, over federal courts, 38;
check upon, by President, 41; quick assumption of control by, 44, 45;
enlarged powers of, created by efficiency of organization, 47;
prominence of Senate in contests with executive, 47 _et seq_.; proper
central object of constitutional study, 57; complex organization of, 58;
without authoritative leaders, 59, 92, 205, 212, 315; embarrassments of
new member in, 61 _et seq_.; work of, parceled out to Committees, 67;
delays of each new, in getting to work, 72, 73; uninteresting character
of debate in, 95, 96; means of financial control by, 147; supervision of
expenditures by, 175, 179; difficulties of constituencies in
controlling, 186-189; cause for distrust of, 186 et seq.; lobbying in,
189, 190; failure of presidential nominating caucus of, 247; does not
breed administrators, 251, 252; and the Executive, party diversity
between, 267; defective means of, for controlling executive action, 270
_et seq_., 302; and the Executive, absence of confidential coöperation
between, 278; exactions of, upon the departments, 278, 279; diligence
of, in legislation, 294, 297; necessity for discussion of administration
by, 301 _et seq_.; informing function of, to be magnified, 303; grasps
after new subjects of legislation, 304; freedom of action possible to,
304, 305; inferior to the Press as a critical authority, 306, 319;
embarrassments of, in making its authority open and respectable, 312 _et
seq_.; and Parliament succeeding Revolution settlement in Eng., 315;
without adequate information, 315; tendency towards concentration of
federal powers in hands of, 315, 316; irresponsibility of, 318;
agreement and stability of majorities in, 324 _et seq_.; parties in,
disciplined by caucus, 326, 327.
Conkling, Roscoe, resignation of, from Senate, 237.
Constituencies, difficulties of, in controlling Congress, 186-189.
Constitution, The, its wayward fortunes, 1; difficulties attending
adoption of, 2; outward conformity to principles of, in former times, 3;
present attitude of criticism toward, 5; its change of substance and
persistency of form, 7; growth of, 7; elementary structure of, 8; in
operation and in the books, 9, 10; "literary theory" of, 12; "implied
powers" of, 22 _et seq_.; centre of all early political contests, 196
_et seq_.; questions of interpretation of, not now urgent, 202;
practically amended without being constitutionally amended, 242; modeled
after the English Constitution, 307 _et seq_.; Bagehot on multiplicity
of authorities in, 309, 310; forms of, hold Congress back from making
its power convenient and honest, 312.
Consultation between President and Senate, not real, 232 _et seq_.;
means of, between President and Senate, 234.
Contingent Fund of Treasury Dept., fraudulent use of, 178.
Convention, Constitutional, of 1787, 268, 284, 307, 309.
Convention, national nominating, real functions of a, 245 _et seq_.;
minority representation in composition of a, 246; conditions surrounding
choice of a candidate by a, 250, 251; does not pick from Congress, 251,
252.
Cooley, Judge, on balance between state and federal govts., 17, 18; on
checks upon federal encroachment, 33, 34; on judicial control of the
Executive, 35; on the originality of the Constitution, 55, 56;
incompleteness of constitutional view of, 56, 57.
"Courtesy" of the Senate, 238.
Criticism, necessity for a new, of constitutional methods, 53 _et seq_.;
former methods of constitutional, 57; Congress central object of
constitutional, 57; of legislation by Senate, 219.
Cromwell, Oliver, 207, 208.
Cushman, Samuel, 89.
Dale, Mr., on indifference of public opinion in U. S., 331.
Debate, time for, and conditions of, in House, 75 _et seq_.; importance
of, 78; on Ways and Means and Appropriations, 78; absence of instinct
of, in House, 79; relegated to Standing Committees, 81, 82; in Standing
Committees, 81; value of, in Committees, 82; kind of, necessary, 85;
physical limitations of, in House, 86 _et seq_.; in early Houses, 89,
90; uninteresting and uninstructive character of, in Congress, 95, 96,
101, 184, 185, 298; parliamentary, centres about Ministry, 95; necessity
for, under responsible Cabinet govt., 119; in French Assembly, 125 _et
seq_.; of appropriation bills, 154, 155, 183, 184; of all financial
questions by Congress, 183; in Senate, 211, 216 _et seq_.; in Congress,
directed at random, 298; chief use of public, in representative bodies,
299 _et seq_.; of administration, cannot be too much of, in Congress,
304.
Deficiency Bills, 159.
Democracy, limited in U. S. by Senate, 226.
Denmark, treaty with, in regard to St. Thomas, in Senate, 50, 51.
Departments, communications of, with Appropriation Committees concerning
estimates, 160-164; present methods of book-keeping in the, 163; heads
of, make interest with Appropriation Committees, 163; Senate's share in
control of the, 231; and Congress, defective means of coöperation
between, 270, 271; demoralizing relations of, with Congress, 277, 278;
exactions of Congress upon, 278, 279; objects of suspicion because of
their privacy, 299, 300.
Eaton, D. B., on civil service reform in Great Britain, 285.
Education, federal aid to, 29.
Election, Senate shielded by the method of its, 224; of President, real
method of, 243 _et seq_.; virtual, by nominating conventions, 245.
Electors, presidential, balanced against people, 40; agents of
nominating conventions, 245, 250; history of action of, 246, 247, 250.
Ellsworth, Oliver, on veto power, 52.
Embargo, the, 21.
English Constitution, likeness between the, and that of U. S., 7, 307
_et seq_.; character of, when Constitution of U. S. was formed, 307,
308, 310, 311.
Estimates, in House of Commons, 137; preparation of the federal, 148,
149; federal, go to Committee on Appropriations, 149; communications and
conferences between Appropriation Committees and the departments
concerning, 160-164; thoroughness of later, 163.
Exchequer, Chancellor of, preparation and submission to Commons of
budget by, 140-142; represented by House Committee of Ways and Means,
170; financial policy of, compared with policy of House Committee of
Ways and Means, 171-175.
Executive, 242-293; relations of, with Senate, 230 _et seq_.; really
chosen by representative, deliberative body, 244; and legislative
service divorced in U. S., 251-253; the President not all of the, 257;
elements constituting the, in U. S., 259; functions bestowed upon the
Secretaries, 260; and Congress, party diversity between, 267; Roger
Sherman upon real character of, 268; and Congress, defective means of
coöperation between, 270 _et seq_.; responsibility of, and civil service
reform, 285 _et seq_.; suspected because not clearly visible through
Congress, 299, 300; embarrassed by half-informed criticism, 305.
Expenditure, questions of, disconnected from questions of supply, 174,
175; supervision of, by Congress, 175-179.
Federal govt., the, early weakness and timidity of, 18, 19; growth in
self-confidence and power of, 19, 20; first questions that engaged the
attention of, 20; brought to every man's door, 25; supervision of
elections by, 27; highest point of aggression of, 33; advantage of
indirect taxation to, 133; necessity for two chambers in, 221, 222;
possible paralysis of, in emergencies, 282; rapidly widening sphere of,
316, 317; weakness of our present, 318.
Federal and state govts., balance between, 13; object of balance
between, 14; early conditions of balance between, 15; Hamilton on
balance between, 16, 17; present inefficacy of balance between, 17;
balance between, destroyed by doctrine of "implied powers," 23; balance
between, dependent on federal judiciary, 24; balance between, prejudiced
by internal improvements, 28, and by federal power over commerce, 30,
31; balance between, last pictured in "reconstruction," 32, 33.
_Federalist_, the, quoted, 16, 17.
Ferry, M. Jules, 248.
Fillmore, President, 259.
Finance, loose govt. practices concerning, 130, 131; comparatively
unembarrassed character of American, 135; necessity for responsibility
in direction of, 135; shifting character of federal, 135, 136; number of
Committees controlling, in Congress, 136; administration of, in England,
137-146; administration of, in U. S., 146 _et seq_., 280; Senate
Committee on, 169; confusion of public opinion in regard to action of
Congress upon, 280.
Financial, officials, accessibility of English, in the Commons, 146,
147; officials, separation of, from Congress in the U. S., 147;
officials, mere witnesses in U. S., 164; officials, irresponsibility of,
for estimates in U. S., 164; system of U. S., contrasted with that of
Eng., 180; system of U. S., incoherency of, 180, 181; policy of
Congress, shifting character of, 181, 182; legislation, prominent place
of, in congressional business, 183; questions, control of, by Committees
in Senate, 212, n.; questions, confusion of public opinion regarding
action of Congress upon, 280.
Fish, Secretary, and treaty with Denmark, 51.
Foreign relations, principal concern of federal govt. during first
quarter century, 43; hand of Senate in, 49 _et seq_., 232 _et seq_.; no
real consultation between President and Senate concerning, 232; Senate
Committee on, 234.
France, public accounts, how kept in, 145; Ministry, how chosen in, 244.
French Assembly, organization of, 123; parties in, 124; proceedings of,
125 _et seq_.; compared with House of Representatives and House of
Commons, 127-129.
French Revolution, 20, 43.
Froude, J. A., on political orators, 215.
Gallatin, Albert, 181.
George III., 187, 308, 309.
Gladstone, Wm. E., 59; on direct and indirect taxes, 134; 209, 322.
Government, by chairmen of Standing Committees, 102; by Standing
Committees, contrasted with govt. by responsible Ministry, 116 _et
seq_.; conditions of perfect party, 267, 268; "by declamation," 318.
Grant, President, and treaty with Denmark, 51; nominates Smythe, 235.
Green, J. R., on Parliament and public opinion under Geo. III., 187,
188; on temper and embarrassments of the Parliament succeeding the
Revolution Settlement in England, 313, 314.
Grévy, President, 248.
Hall of House of Representatives, size of, 86 _et seq_.
Hamilton, Alex., on balance between state and national govts., 16, 17;
influence of, upon early policy of govt., 21; advocacy of protective
duties, 22; announces doctrine of "implied powers," 22; 181, 259, 306,
307.
Hampden, John, 208.
Henry, Patrick, 209.
Hoar, G. F., Senator, on time for reporting given to Committees, 72; on
suspension of the Rules in House, 111, 112.
House of Commons, _See_ 'Commons, House of.'
House of Lords, Bagehot on the, 220.
House of Representatives, _See_ 'Representatives, House of.'
Impeachment, 275, 276.
"Implied powers," enunciated by Hamilton, 22; sustained national bank,
22; McCulloch v. Maryland, 23; a vigorous principle of constitutional
growth, 23; effect of, upon status of States, 23, 24; practical issue of
doctrine of, 25 _et seq_.
Internal Improvements, 28; moral effect of, upon state policy, 29;
history of policy of, 165-167; sums appropriated for, 167; character of
opposition to, 197.
Jackson, President, 166, 204; why chosen President, 252; 259, 266.
James II., 213.
Jefferson, Thos., leads his party as President, 41, 204, 252.
Johnson, President, contest of, with Senate, 49.
Judiciary, power of, to control Executive, 34, 35; power of, to control
Congress, 35, 36; change of party color in, 37; power of Congress over,
38, 39.
Judiciary Act of 1789, 39.
Kentucky, protest of, against Alien and Sedition Laws, 21.
Leaders, absence of authoritative, in Congress, 58, 92, 205, 212, 315;
lacking in parties of U. S., 187; raised up by the constitutional
struggles before the war, 199 _et seq_.; slavery and anti-slavery, 201,
202; no offices for political, in U. S., 203; training necessary for,
255, 256; political, authority of, in England, 323.
Leadership, conditions of political, in U. S., 204 _et seq_., 323;
character of legislative, 206 _et seq_.; lack of, in Senate, 212, 213;
the prize of, 214; lack of, in U. S. makes parties conglomerate, 324.
"Legal tender" decision, 33, n., 38.
Legislation, character of, determined by privileges of Committees and
necessity for haste, 74; compromise character of, in Congress, 101;
conglomerate and heterogeneous, 113, 325; part of President in, by
virtue of veto power, 260, 266; and administration contrasted, 273, 274;
Buckle on present value of, 295; nature of present task of, 295, 296;
generates legislation, 297; not more important than administration, 297;
general function of, 301, 302; tendency toward widening sphere of, 316,
317.
Legislative service divorced from Executive, in U. S., 251-253.
"Letter" of Secretary of Treasury to Congress, 149, 153.
Lincoln, President, 259, 283, n.
"Literary theory" of the Constitution, 12, 268, 284; marred by growth of
federal powers, 30.
Lobbying in Congress, 189, 190.
Lodge, H. C., quoted with regard to Hamilton, 21, 22.
"Log-rolling," 169.
Lords, House of, Bagehot on, 220.
Louisiana, purchase of, 20, 43.
Lowell, J. R., on "government by declamation," 318.
Macaulay, criticism of legislative leadership by, 207.
Machiavelli, on responsibility of ministers, 275.
Maclay, Wm., Sketches of First Senate by, quoted, 24, n.
McMaster, J. B., quoted, 19.
Madison, President, 165, refuses to meet Senate, 234, n.
_Magna Carta_, and the Constitution of U. S., 7.
Member, the new, embarrassments of, in the House, 61 _et seq_.
Members, suppression of independence and ability amongst, in the House,
by the Rules, 110.
Membership, of Senate, made up by promotions from House, 210; of Senate,
biennially renewed in part, 228, 229.
Mill, J. S., "legislative commission" proposed by, 115, 129, 192.
Ministry, parliamentary debate centres around British, 95; disintegrate,
in Congress, 102; parliamentary position of British, 95, 244; British, a
single Standing Committee of Parliament, 117; necessity of public debate
to British, 119; British, compared with French, 123, 124, 129; history
of parliamentary responsibility of British, 286-288.
Monroe, President, 165, 252.
"Morning hours," 73.
_Nation_, the, letter to, on federal financial system, quoted, 191; on
status of Cabinet, quoted, 269.
National sovereignty, growth of sentiment of, 31, 32; sentiment of,
makes advent and issue of the war inevitable, 32.
Newcastle, Duke of, 286.
Nominations, the Senate and, 235; popular interest attaching to action
of Senate on, 236, 237; of Presidents by conventions, virtual character
of, 245.
North, Lord, 287, 308.
Northcote, Sir Stafford, 322.
Offices, political and non-political, 290, 291.
Orators, character of the ruling, of our race, 208 _et seq_.; natural
leaders of a self-governing people, 209; Froude on political, 215;
political, without authority or responsibility in U. S., 319 _et seq_.;
political weight of, in England, 321-324.
Otis, James, 209.
Parties, vagueness of responsibility of, for legislation in U. S.,
96-101; both, represented on Standing Committees, 99; in U. S., absence
of responsible organization in, 187; in U. S., headless, conglomerate
character of, 324; in Congress, discipline of, 326, 327; in Congress,
kept together by caucus, 330.
Parton, on purposes of a national parliament, 250, 251.
Party, govt. by, practical necessity for, 97 _et seq_.; organization,
outside Congress, 98; inside Congress, 99; choice of Speaker by, 107;
govt. by, perfected in British system, 117 _et seq_.; diversity between
Executive and Congress, 267; conditions of govt. by, 267, 268; relations
of President and Cabinet, 269; insignificance of Cabinet, 270; leaders
in England, weight and position of, 322.
Peel, Sir Robt., 209; on questions asked Prime Minister in the Commons,
300.
Pension Act, in 48th Congress, 79-81.
"Permanent appropriations," 152, 153.
Pitt, Wm., 209; elected to rule Commons, 249.
Political discretion of President and Congress, 34, 35.
Power, diffusion of, in Congress, 92, 206; irresponsible, 92, 93, 314;
_and accountability_, 283, 284.
Presidency, tendency to raise governors of States to the, 253.
President, the, and Supreme Court, relations between, 35; independence
and influence of, 41; declining prestige of office of, 43; belittled by
growth of congressional power, 43; and Cabinet, division of labor
between, 45, 46; veto power of, 52, 260; and Senate, no real
consultation between, 232 _et seq_.; irresponsible dictation of Senate
to, 238, 239; functional contrast of, with English Prime Minister, 249;
conditions surrounding choice of a, by convention, 250, 251; character
of usual functions of, 254; not all of the Executive, 257; relations of,
to Cabinet, 258, 259; De Tocqueville on position of, 266, n.; party
relations of, 269; party insignificance of, 270; and Congress, defective
means of coöperation between, 270, 271.
President of French Assembly, functions and powers of, 125, 126.
Presidents, character and influence of the early, 41; decline of
character of, along with crystallization of electoral system, 42; real
method of electing, 243 _et seq_.
Press, the, political influence of, in U. S., 305, 306, 319-321; in
England, subordinate to political leaders, 321.
Previous Question, 75, 90; in the Senate, 211, n., 218.
Prime Minister, method of selecting a, in England and France, 248; and
President, contrast between, 249; questions asked the, in House of
Commons, 300.
Printing, prerogatives of Committee on, 71, 72; of unspoken speeches,
91.
"Private bill day," 73.
Protective policy of Committee of Ways and Means, 172-174.
Public life, conditions of, in U. S., 195 _et seq_.; in England, 214;
attractiveness of leadership in, 214.
Public opinion, not instructed by congressional debate, 101;
difficulties of, in understanding and controlling Congress, 186-189; not
led in U. S., 187; distrust of Congress by, 188; confusion of, with
regard to congressional policy, 280; instruction of, important duty of
representative assembly, 297 _et seq_.; information of, by inquisitive
public body, 300, 301; leaders of English, 322; paralysis of, in U. S.,
331.
Pulteney, 286, 287.
Randolph, John, 89; interview of, with Treasury officials, 162, 163.
"Reconstruction," reflected altered condition of balance between state
and federal govts., 32, 33.
"Record," Congressional, unspoken speeches in, 91; little read, 94.
Reform Bill of 1832 in England, 220.
Reichstag, consent of, necessary to policy in Germany, 59.
Reports, of Standing Committees, time given to, 72; backed by neither
party, 96; thoroughly considered in early Congresses, 106; of Committee
on Appropriations, privileges of, 153, 154; of Conference Committees,
extraordinary privilege of, 158; annual, of Treasury, referred to
Committee of Ways and Means, 170, 171; of Committee on Appropriations
preferred to reports of Committee of Ways and Means, 174.
Representative assemblies, duties and means of, in instructing public
opinion, 298 _et seq_.; supremacy of, in every system of
self-government, 311.
Representative government, government by advocacy, 208.
Representatives, House of, 58-192; position of Speaker in, 59, 103-108;
led by chairmen of Standing Committees, 60; multiplicity of leaders in,
61; rules of, restrain individual activity, 63; introduction of bills
in, 64; bills in, introduced on Mondays, 66; early course of bills in,
67, 68; daily course of business in, 73; press of time in business of,
74, 90; conditions of debate in, 75 _et seq_.; absence of instinct of
debate in, 79; best discussion impossible in, 86; hall of, 86, 87;
debate in, in former times, 89; compared with Roman assembly, 109;
concentration of federal power in, 110; suspension of rules of, to pass
bills, 111, 112; compared with British Commons, 116 _et seq_.; with
English and French chambers, 129; disintegrate character of, 210;
"latent unity" of, with Senate, 224.
Responsibility, of administrators, to representative chamber for
inefficiency, 274, 276, 277; of ministers Machiavelli on, 275;
scattering of, by federal constitutional system, 281; _with power_, 283,
284; of Executive, and civil service reform, 285 _et seq_.; history of
ministerial, in England, 286 _et seq_.
Resumption Act of 1875, 185.
Revenue, controlled by House Committee of Ways and Means and Senate
Committee on Finance, 169; policy of Committee of Ways and Means and of
English Chancellor of Exchequer, 171-175; subordinate to Supply in
Congress, 174, 175.
Revolution, English, of 1688, character of Parliament succeeding the,
313.
Revolution, French, 20, 43.
Rivers and Harbors, Committee on, 165; prerogatives of Committee on,
167; Committee on, and "log-rolling," 168.
Rockingham, Lord, 287.
Roman assembly and House of Representatives, 109.
Rosebery, Lord, on the Senate, 228.
Rules of House, restrict individual activity of members of House, 63;
support privileges of Standing Committees, 66, 71, 74; complexity of,
73, 74; principle of, 74; readopted biennially, 104; repress
independence and ability, 110; oligarchy of Committee on, 111;
suspension of, to pass bills, 111, 112.
St. Thomas, treaty with Denmark regarding island of, 50, 51.
Secession, character of contest over, 198, 199.
Senate, the, 193-241; overt character of contests of, with President,
48; efforts of, to control nominations, 49; usurpations of, and civil
service reform, 49; semi-executive powers of, in regard to foreign
policy, 49 _et seq_.; and treaty with Denmark, 50; and Alabama claims,
51; thoroughness of discussion in, 94; amendment of appropriation bills
by, 155, 156; usual estimates of, 193, 194; character and composition
of, 194, 195; conditions of public life, shaping character of, 195 _et
seq_.; a select House of Representatives, 210; contrasts of, with the
House, 211; organized like the House, 212; choice of Committees in, 212;
absence of leadership in, 213 _et seq_.; character of debate in, 216 _et
seq_.; equality of, with House of Representatives, 223; and House of
Representatives, "latent unity" between, 224; not a class chamber, 225;
limits democracy in Constitution, 226; dignity and remove from popular
heat of, 227; a real check upon the House, 228; liability of, to
biennial change in membership, 228, 229; "slow and steady" forms of,
230; share of, in control of executive departments, 231; and President,
no real consultation between, 232 _et seq_.; and President, means of
consultation between, 234; and nominations, 235, _et seq_.; "courtesy"
of, 238; irresponsible dictation of, to President, 238.
Sherman, Roger, 268.
Silver Bill, the Bland, 185.
Slavery, character of contest over, 198-202, _passim_.
Smith, Robt., Secretary of Treasury, 162.
Smythe, nominated Minister to St. Petersburg by Pres. Grant, 235.
Speaker, of House of Representatives, appoints leaders of House, 60;
prerogatives of, 103-108; appoints Standing Committees, 103; history of
appointing power of, 104; power of appointing of, renewed with Rules,
105; chosen by party vote, 107; personal character of, 107; use of power
by, in constituting and aiding Committees, 108; concentration of power
in hands of, 110, 111; of House of Commons, functions and character of,
122.
Stages of national political growth, before civil war, 200; since, 202.
"Star Route" trials, 178, n.
State and federal governments, balance between, _See_ 'Federal and state
governments.'
States, the, disadvantages of direct taxation to, 133.
Sumner, Chas., Chairman Senate Committee on Foreign Relations, 235.
Sumner, Prof. W. G., on task of legislator, 296.
Sunderland, Earl of, 314.
Supervision of elections by federal govt., 27.
Supply, Committee of, in House of Commons, 137-139; vital character of
votes of, in House of Commons, 139; Committee of, in House of
Representatives, 154; questions of, take precedence of questions of
revenue in Congress, 174.
Surpluses, 173, 174, 179.
Suspension of Rules, bills passed under a, in House, 111, 112.
Swiss Constitution and bicameral system, 221.
Tariff of 1833, character of contest over, 198.
Taxation, sensitiveness of people concerning, 131; direct and indirect,
132, 133; Mr. Gladstone on direct and indirect, 134; direct, by States,
indirect, by federal govt., 133.
Telegraph lines, constitutional interpretation in connection with, 30,
31.
Tenure of Office Act, 49, 277.
Terms of office, short, 255; of the Secretaries, 261, 264 _et seq_.
Tocqueville, De, on position of President, 266, n.
Townshend, Chas., 207, 208.
Treasury, accessibility of heads of British, in the Commons, 146, 147;
"Letter" from Secretary of, 149; annual reports of, referred to
Committee of Ways and Means, 170; character of annual reports of, 170,
171; Secretary of, duties of, 263; non-political character of functions
of Secretary of, 264.
"Tribune" of French Assembly, 127, 128.
Turgot, M., on bicameral system of U. S., 220.
Van Buren, Martin, 259.
Veto, power of, 52, 260.
Vice-President, the, 240, 241.
Victorian Parliament, two chambers of, 223.
Virginia, protest of, against Alien and Sedition Laws, 21.
Walpole, Sir Robt., 208, 286.
War, change wrought by the civil, in constitutional methods and in
constitutional criticism, 5 _et seq_.; the civil, a struggle between
nationality and principles of disintegration, 32; opened a new period of
public life in U. S., 195.
Washington, antagonisms in first Cabinet of, 2; influence of the
Executive under, 41, 246, 252, 259.
Ways and Means, debate of, 78; "Brahmins" of Committee of, 111; chairmen
of, federal Chancellors of Exchequer, 134; preference of Committee of,
for indirect taxation, 134; Committee of, in House of Commons, 139-144;
weight of votes of Committee of, in Commons, 142; House Committee of,
formerly controlled appropriations, 161; character of Committee of, 170;
policy of Committee of, compared with policy of English Chancellor of
Exchequer, 171-175; reports of, deferred to reports of Committee on
Appropriations, 174, 183, 184.
"Ways and Means Bills," 143, 144.
Webster, Daniel, 89, 204, 218, 252, 259.
William the Silent, 207, 208.
William III., 313, 314.
Windham, Wm., 207, 208.
Year, British financial, 140; federal financial, 148.
FOOTNOTES:
[1] These are Mr. Bagehot's words with reference to the British
constitutional system. See his _English Constitution_ (last American
edition), p. 69.
[2] _Works_, vol. vi., p. 467: "Letter to Jno. Taylor." The words and
sentences omitted in the quotation contain Mr. Adams's opinions as to
the value of the several balances, some of which he thinks of doubtful
utility, and others of which he, without hesitation, pronounces
altogether pernicious.
[3] _Federalist_, No. 17.
[4] Cooley's _Principles of Const. Law_, p. 143.
[5] McMaster, _Hist. of the People of the U. S._, vol. i., p. 564.
[6] Lodge's _Alexander Hamilton_ (Am. Statesmen Series), p. 85.
[7] Lodge's _Alexander Hamilton_, p. 105.
[8] Its final and most masterly exposition, by C. J. Marshall, may be
seen in McCulloch v. Maryland, 4 Wheaton, 316.
[9] The following passage from William Maclay's _Sketches of Debate in
the First Senate of the United States_ (pp. 292-3) illustrates how
clearly the results of this were forecast by sagacious men from the
first: "The system laid down by these gentlemen (the Federalists) was as
follows, or rather the development of the designs of a certain party:
The general power to carry the Constitution into effect by a
constructive interpretation would extend to every case that Congress may
deem necessary or expedient.... The laws of the United States will be
held paramount to all "state" laws, claims, and even constitutions. The
supreme power is with the general government to decide in this, as in
everything else, for the States have neglected to secure any umpire or
mode of decision in case of difference between them. Nor is there any
point in the Constitution for them to rally under. They may give an
opinion, but the opinions of the general government must prevail.... Any
direct and open act would be termed usurpation. But whether the gradual
influence and encroachments of the general government may not gradually
swallow up the state governments, is another matter."
[10] Pensacola Tel. Co. _v_. West. Union, 96 U. S. 1, 9. (Quoted by
Judge Cooley in his _Principles of Constitutional Law_.)
[11] 18 Stat., part 3, 336. See Ex parte Virginia, 100 U. S. 339.
[12] Sect. 5515 Rev. Stats. See Ex parte Siebold, 100 U. S. 371. Equally
extensive of federal powers is that "legal tender" decision (Juilliard
_v_. Greenman) of March, 1884, which argues the existence of a right to
issue an irredeemable paper currency from the Constitution's grant of
other rights characteristic of sovereignty, and from the possession of a
similar right by other governments. But this involves no restriction of
state powers; and perhaps there ought to be offset against it that other
decision (several cases, October, 1883), which denies constitutional
sanction to the Civil Rights Act.
[13] _Principles of Constitutional Law_, pp. 143, 144.
[14] Marbury _v_. Madison, 1 Cranch, 137.
[15] Cooley's _Principles_, p. 157.
[16] For an incisive account of the whole affair, see an article
Entitled "The Session," _No. Am. Review_, vol. cxi., pp. 48, 49.
[17] 7 Wall. 506.
[18] For a brilliant account of the senatorial history of these two
treaties, see the article entitled "The Session," _No. Am. Rev._, vol.
cviii. (1869), p. 626 _et seq._
[19] In an article entitled "The Conduct of Business in Congress"
(_North American Review_, vol. cxxviii. p. 113), to which I am indebted
for many details of the sketch in the text.
[20] No Committee is entitled, when called, to occupy more than the
morning hours of two successive days with the measures which it has
prepared; though if its second morning hour expire while the House is
actually considering one of its bills, that single measure may hold over
from morning hour to morning hour until it is disposed of.
[21] Quoted from an exceedingly life-like and picturesque description of
the House which appeared in the New York _Nation_ for April 4, 1878.
[22] _No. Am. Rev._, vol. xxvi., p. 162.
[23] _Id._, the same article.
[24] "Glances at Congress," _Dem. Rev._, March, 1839.
[25] _Autobiography_, pp. 264, 265.
[26] _The National Budget, etc._ (English Citizen Series), p. 146. In
what I have to say of the English system, I follow this volume, pp.
146-149, and another volume of the same admirable series, entitled
_Central Government_, pp. 36-47, most of my quotations being from the
latter.
[27] See an article entitled "National Appropriations and
Misappropriations," by the late President Garfield, _North American
Review_, vol cxxviii. pp 578 _et seq._
[28] Senator Hoar's article, already several times quoted.
[29] Adams's _John Randolph_. American Statesman Series, pp. 210, 211.
[30] On one occasion "the House passed thirty-seven pension bills at one
sitting. The Senate, on its part, by unanimous consent, took up and
passed in about ten minutes seven bills providing for public buildings
in different States, appropriating an aggregate of $1,200,000 in this
short time. A recent House feat was one in which a bill, allowing 1,300
war claims in a lump, was passed. It contained one hundred and nineteen
pages full of little claims, amounting in all to $291,000; and a member,
in deprecating criticism on this disposition of them, said that the
Committee had received ten huge bags full of such claims, which had been
adjudicated by the Treasury officials, and it was a physical
impossibility to examine them."--N. Y. _Sun_, 1881.
[31] Congress, though constantly erecting new Committees, never gives up
old ones, no matter how useless they may have become by subtraction of
duties. Thus there is not only the superseded Committee on Public
Expenditures but the Committee on Manufactures also, which, when a part
of the one-time Committee on Commerce and Manufactures, had plenty to
do, but which, since the creation of a distinct Committee on Commerce,
has had nothing to do, having now, together with the Committees on
Agriculture and Indian Affairs, no duties assigned to it by the rules.
It remains to be seen whether the Committee on Commerce will suffer a
like eclipse because of the gift of its principal duties to the new
Committee on Rivers and Harbors.
[32] See the report of this Committee, which was under the chairmanship
of Senator Windom.
An illustration of what the House Committees find by special effort may
be seen in the revelations of the investigation of the expenses of the
notorious "Star Route Trials" made by the Forty-eighth Congress's
Committee on Expenditures in the department of Justice.
[33] See General Garfield's article, already once quoted, _North
American Review_, vol. cxxviii. p. 533.
[34] _Essays on Parliamentary Reform._
[35] Green's _History of the English People_, vol. iv., pp. 202, 203.
[36] "G. B." in N. Y. _Nation_, Nov. 30, 1882.
[37] An attempt was once made to bring the previous question into the
practices of the Senate, but it failed of success, and so that
imperative form of cutting off all further discussion has fortunately
never found a place there.
[38] As regards all financial measures indeed committee supervision is
specially thorough in the Senate. "All amendments to general
appropriation bills reported from the Committees of the Senate,
proposing new items of appropriation, shall, one day before they are
offered, be referred to the Committee on Appropriations, and all general
appropriation bills shall be referred to said Committee; and in like
manner amendments to bills making appropriations for rivers and harbors
shall be again referred to the Committee to which such bills shall be
referred."--Senate Rule 30.
[39] The twenty-nine Standing Committees of the Senate are, however,
chosen by ballot, not appointed by the Vice-President, who is an
appendage, not a member, of the Senate.
[40] In the Birmingham Town Hall, November 3, 1882. I quote from the
report of the _London Times_.
[41] "No Senator shall speak more than twice, in any one debate, on the
same day, without leave of the Senate."--Senate Rule 4.
[42] These quotations from Bagehot are taken from various parts of the
fifth chapter of his _English Constitution_.
[43] These are the words of Lord Rosebery--testimony from the oldest and
most celebrated second chamber that exists.
[44] There seems to have been at one time a tendency towards a better
practice. In 1813 the Senate sought to revive the early custom, in
accordance with which the President delivered his messages in person, by
requesting the attendance of the President to consult upon foreign
affairs; but Mr. Madison declined.
[45] _North American Review_, vol. 108, p. 625.
[46] _English Constitution_, chap, viii., p. 293.
[47] _Atlantic Monthly_, vol. xxv., p. 148.
[48] Something like this has been actually proposed by Mr. Albert
Stickney, in his interesting and incisive essay, _A True Republic_.
[49] State, Treasury, War, Navy.
[50] As quoted in _Macmillan's Magazine_, vol. vii., p. 67.
[51] I quote from an excellent handbook, _The United States Government_,
by Lamphere.
[52] "In America the President cannot prevent any law from being passed,
nor can he evade the obligation of enforcing it His sincere and zealous
coöperation is no doubt useful, but it is not indispensable, in the
carrying on of public affairs. All his important acts are directly or
indirectly submitted to the legislature, and of his own free authority
he can do but little. It is, therefore, his weakness, and not his power,
which enables him to remain in opposition to Congress. In Europe,
harmony must reign between the Crown and the other branches of the
legislature, because a collision between them may prove serious; in
America, this harmony is not indispensable, because such a collision is
impossible."--De Tocqueville, i. p. 124.
[53] _Westminster Review_, vol. lxvi., p. 193.
[54] Tenure of Office Act, already discussed.
[55] These "ifs" are abundantly supported by the executive acts of the
war-time. The Constitution had then to stand aside that President
Lincoln might be as prompt as the seeming necessities of the time.
[56] _Central Government_ (Eng. Citizen Series), II. D. Traill, p. 20.
[57] Professor Sumner's _Andrew Jackson_ (American Statesmen Series), p.
226. "Finally," adds Prof. S., "the methods and machinery of democratic
republican self-government--caucuses, primaries, committees, and
conventions--lend themselves perhaps more easily than any other methods
and machinery to the uses of selfish cliques which seek political
influence for interested purposes."
[58] Bagehot: _Essay on Sir Robert Peel_, p. 24.
[59] H. C. Lodge's _Alexander Hamilton_ (Am. Statesmen Series), pp. 60,
61.
[60] Bagehot, _Eng. Const._, p. 293.
[61] Bagehot, _Eng. Const._, p. 296.
[62] Green: _Hist. of the English People_ (Harpers' ed.), iv., pp 58,
59.
[63] _Statesman's Manual_, i. p. 244.
[64] Mr. Dale, of Birmingham.
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