Congressional Government/Chapter 5
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 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 trustee 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.” 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 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: “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 commiteeman, 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 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. 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. Unhappi]y, 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 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 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 Presdential 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,”“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 over-shadowing 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 vision 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 “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 less 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.  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 ot 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 cousultations 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 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 satisfation 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 exceed 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 unsatistactory. 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 the absolute lordship, but it can discipline for disobedience only 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 pratices 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." 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; 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 govermnent 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 imnediately. 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. 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 coustitution-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 par 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.” 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 comnentary 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 straitlaced 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.
- English Constitution, chap. viii., p. 293.
- Atlantic Monthly, vol. xxv., p. 148.
- Something like this has been actually proposed by Mr. Albert Stickney, in his interesting and incisive essay, A True Republic.
- State, Treasury, War, Navy.
- As quoted in Macmillan’s Magazine, vol. vii., p. 67.
- I quote from an excellent handbook, The United States Government, by Lamphere.
- “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.
- Westminister Review, vol. lxvi., p. 193.
- Tenure of Office Act, already discussed.
- 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.
- Central Government (Eng. Citizen Series), H. D. Traill, p. 20.