CHAPTER V THE SENATE IN 1877
When I came to the Senate that body was at the very height of its Constitutional power. It was, I think, a more powerful body than ever before or since. There were no men in it, I suppose, who were equal in reputation or personal authority to either of the great triumvirate—Webster, Clay and Calhoun. If we may trust the traditions that have come down from the time of the Administrations of Washington and Adams, when the Senate sat with closed doors, none of them ever acquired the authority wielded by the profound sagacity of Ellsworth.
But the National authority itself, of which the Senate was a part, was restricted by the narrow construction which prevailed before the Civil War. During the Civil War everything was bowed and bent before the military power. After the war ended the Senate was engaged in a controversy with Andrew Johnson, during which there could be no healthy action either of the executive or the legislative branch of the Government. It was like a pair of shears, from which the rivet was gone.
With the coming in of Grant harmonious relations were established between the two departments. But the Senators were unwilling to part with the prerogatives, which they had helped each other to assert, and which had been wrenched from the feeble hand of Johnson. What was called Senatorial Courtesy required every Senator belonging to the party in the majority to support every other in demanding the right to dictate and control the executive and judicial appointments from their respective States. So every Senator had established a following, like that of the Highland chieftain—"Vich Ian Vohr with his tail on"—devoted, of course, to the party, but devoted more completely and immediately to his political fortunes.
President Grant in the beginning undertook to break down this arrogant claim. He recommended the repeal of the Civil Tenure Act, the establishment of a system of competitive examinations for appointments in the civil service and, under the advice of Attorney-General Hoar, made the nominations to the new Circuit Court without regard to Senatorial dictation. But he very soon abandoned this purpose, and formed a close friendship and alliance with the most earnest opponents of the reform.
While, in my opinion, this claim of the Senators was untenable and of injurious public consequences, it tended to maintain and increase the authority of the Senate. The most eminent Senators—Sumner, Conkling, Sherman, Edmunds, Carpenter, Frelinghuysen, Simon Cameron, Anthony, Logan—would have received as a personal affront a private message from the White House expressing a desire that they should adopt any course in the discharge of their legislative duties that they did not approve. If they visited the White House, it was to give, not to receive advice. Any little company or coterie who had undertaken to arrange public policies with the President and to report to their associates what the President thought would have rapidly come to grief. These leaders were men, almost all of them, of great faults. They were not free from ambition. Some of them were quite capable of revenge, and of using the powers of the Government to further their ambition or revenge. But they maintained the dignity and the authority of the Senatorial office. Each of these stars kept his own orbit and shone in his sphere, within which he tolerated no intrusion from the President, or from anybody else.
The reform of the civil service has doubtless shorn the office of Senator of a good deal of its power. I think President McKinley, doubtless with the best and purest intentions, did still more to curtail the dignity and authority of the office. I dare say the increase in the number of Senators has had also much to do with it. President McKinley, with his great wisdom and tact and his delightful individual quality, succeeded in establishing an influence over the members of the Senate not, I think, equalled from the beginning of the Government, except possibly by Andrew Jackson. And while the strong will of Jackson subjugated Senators, in many cases, as it did other men, yet it roused an antagonism not only in his political opponents, but in many important men of his own party, which would have overthrown him but for his very great popularity with the common people. President McKinley also made one serious mistake, of which indeed he did not set the example. Yet he made what was before but an individual and extraordinary instance, a practice. If that practice continue, it will go far, in my judgment, to destroy the independence and dignity of the Senate. That is, the appointment of members of the Senate to distinguished and lucrative places in the public service, in which they are to receive and obey the command of the Executive, and then come back to their seats to carry out as Senators a policy which they have adopted at the command of another power, without any opportunity of consultation with their associates, or of learning their associates' opinions.
The Constitution provides, Article I., Sec. 6,
"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office."
It is, I suppose, beyond dispute that the intention of that provision was to protect the members of the Legislative branch of the Government from Executive influence. The legislator was not to be induced to create a civil office, or to increase its emoluments, at the request of the Executive, in the hope that he might be appointed. He was to preserve his independence of Executive influence, and to approach all questions in which he might have to deal with matters which concerned the Executive power, or Executive action, absolutely free from any bias.
This provision comes, with some modification, from the English Constitution. The fear of Executive influence was in that day constantly before the framers of the Constitution and the people who adopted it. Roger Sherman, in his correspondence with John Adams, says that he "esteems the provision made for appointment to office to be a matter of very great importance, on which the liberties and safety of the people depend nearly as much as on legislation."
"It was," he says, "a saying of one of the Kings of England that while the King could appoint the Bishops and Judges he might have what religion and laws he pleased."
I think that sooner or later some emphatic action will be taken, probably in the form of a declaratory resolution, which will put an end to this abuse. But there will always be found men in either branch who desire such honorable employment. They will be men of great influence. There are also frequently men of personal worth who always support whatever the President of the United States thinks fit to do, and trot or amble along in the procession which follows the Executive chariot. So, if any President shall hereafter repeat this attempt it will require a good deal of firmness to defeat it.
Senator Morgan of Alabama made a very bright comparison of the relation to the White House of some very worthy Senators to that of the bird in a cuckoo clock. He said that whenever the clock at the White House strikes the bird issues out of the door in the Senate Chamber, and says: "Cuckoo, Cuckoo," and that when the striking is over, he goes in again and shuts the door after him. He was speaking of Democratic Senators. But I am afraid my excellent Republican brethren can furnish quite as many instances of this servility as their opponents.
The President has repeatedly, within the last six years, appointed members of the Senate and the House to be Commissioners to negotiate and conclude, as far as can be done by diplomatic agencies, treaties and other arrangements with foreign Governments, of the gravest importance. These include the arrangement of a standard of value by International agreement; making a Treaty of Peace, at the end of the War with Spain; arranging a Treaty of Commerce between the United States and Great Britain; making a Treaty to settle the Behring Sea controversy; and now more lately to establish the boundary line between Canada and Alaska.
President McKinley also appointed a Commission, including Senators and Representatives, to visit Hawaii, and to report upon the needs of legislation there. This last was as clearly the proper duty and function of a committee, to be appointed by one or the other branch of Congress, as anything that could be conceived.
The question has been raised whether these functions were offices, within the Constitutional sense. It was stoutly contended, and I believe held by nearly all the Republican Senators at the time when President Cleveland appointed Mr. Blount to visit Hawaii, and required that the diplomatic action of our Minister there should be subject to his approval, that he was appointing a diplomatic officer, and that he had no right so to commission Mr. Blount, without the advice and consent of the Senate. President McKinley seemed to accept this view when he sent in for confirmation the names of two Senators, who were appointed on the Commission to visit Hawaii. The Senate declined to take action upon these nominations. The very pertinent question was put by an eminent member of the Senate: If these gentlemen are to be officers, how can the President appoint them under the Constitution, the office being created during their term? Or, how can they hold office and still keep their seats in this body? If, on the other hand, they are not officers, under what Constitutional provision does the President ask the advice and consent of the Senate to their appointment?
But the suggestion that these gentlemen are not officers, seems to me the merest cavil. They exercise an authority, and are clothed with a dignity equal to that of the highest and most important diplomatic officer, and far superior to that of most of the civil officers of the country. To say that the President cannot appoint a Senator or Representative postmaster in a country village, where the perquisites do not amount to a hundred dollars a year, where perhaps no other person can be found to do the duties, because that would put an improper temptation in the way of the legislator to induce him to become the tool of the Executive will, and then permit the President to send him abroad; to enable him to maintain the distinction and enjoy the pleasure of a season at a foreign capital as the representative of the United States, with all his expenses paid, and a large compensation added, determined solely by the Executive will; and to hold that the framers of the Constitution would for a moment have tolerated that, seems to me utterly preposterous.
Beside, it places the Senator so selected in a position where he cannot properly perform his duties as a Senator. He is bound to meet his associates at the great National Council Board as an equal, to hear their reasons as well as to impart his own. How can he discharge that duty, if he had already not only formed an opinion, but acted upon the matter under the control and direction of another department of the Government?
The Senate was exceedingly sensitive about this question when it first arose. But the gentlemen selected by the Executive for these services were, in general, specially competent for the duty. Their associates were naturally quite unwilling to take any action that should seem to involve a reproof to them. The matter did not, however, pass without remonstrance. It was hoped that it would not be repeated. At the time of the appointment of the Silver Commission, I myself called attention to the matter in the Senate. Later, as I have said, the Senate declined to take action on the Commission appointed to visit Hawaii. But there was considerable discussion. Several bills and resolutions were introduced, which were intended to prohibit such appointments in the future. The matter was referred to the Committee on the Judiciary. It turned out that three members of that Committee had been appointed by President McKinley on the Canadian Committee. One of them, however, said he had accepted the appointment without due reflection, and he was quite satisfied that the practice was wrong. The Committee disliked exceedingly to make a report which might be construed as a censure of their associates. So I was instructed to call upon President McKinley and say to him in behalf of the Committee, that they hoped the practice would not be continued. That task I discharged. President McKinley said he was aware of the objections; that he had come to feel the evil very strongly; and while he did not say in terms that he would not make another appointment of the kind, he conveyed to me, as I am very sure he intended to do, the assurance that it would not occur again. He said, however, that it was not in general understood how few people there were in this country, out of the Senate and House of Representatives, qualified for important diplomatic service of that kind, especially when we had to contend with the trained diplomatists of Europe, who had studied such subjects all their lives. He told me some of the difficulties he had encountered in making selections of Ministers abroad, where important matters were to be dealt with, our diplomatic representatives having, as a rule, to be taken from entirely different pursuits and employments.
That Congress in the past has thought it best to extend rather than restrict this prohibition is shown by the statute which forbids, under a severe penalty, members of either House of Congress from representing the Government as counsel.