North America — Volume 2

by Anthony Trollope

But it seems to me that this supposed connection between the committees and the ministers is only a makeshift, showing by its existence the absolute necessity of close communication between the executive and the legislative, but showing also by its imperfections the great want of some better method of communication. In the first place the chairman of the committee is in no way bound to hold any communication with the minister. He is simply a senator, and as such has no ministerial duties, and can have none. He holds no appointment under the President, and has no palpable connection with the executive. And then it is quite as likely that he may be opposed in politics to the minister as that he may agree with him. If the two be opposed to each other on general politics, it may be presumed that they cannot act together in union on one special subject. Nor, whether they act in union or do not so act, can either have any authority over the other. The minister is not responsible to Congress, nor is the chairman of the committee in any way bound to support the minister. It is presumed that the chairman must know the minister's secrets, but the chairman may be bound by party considerations to use those secrets against the minister.

The system of committees appears to me to be good as regards the work of legislation. It seems well adapted to effect economy of time and the application of special men to special services. But I am driven to think that that connection between the chairmen of the committees and the ministers, which I have attempted to describe, is an arrangement very imperfect in itself, but plainly indicating the necessity of some such close relation between the executive and the legislature of the United States as does exist in the political system of Great Britain. With us the Queen's minister has a greater weight in Parliament than the President's minister could hold in Congress, because the Queen is bound to employ a minister in whom the Parliament has confidence. As soon as such confidence ceases, the minister ceases to be minister. As the Crown has no politics of its own, it is simply necessary that the minister of the day should hold the politics of the people as testified by their representatives. The machinery of the President's Government cannot be made to work after this fashion. The President himself is a political officer, and the country is bound to bear with his politics for four years, whatever those politics may be. The ministry which he selects on coming to his seat will probably represent a majority in Congress, seeing that the same suffrages which have elected the President will also have elected the Congress. But there exists no necessity on the part of the President to employ ministers who shall carry with them the support of Congress. If, however, the ministers sat in Congress,—if it were required of each minister that he should have a seat either in one House or in the other,—the President would, I think, find himself constrained to change a ministry in which Congress should decline to confide. It might not be so at first, but there would be a tendency in that direction.

The governing powers do not rest exclusively with the President, or with the President and his ministers; they are shared in a certain degree with the Senate, which sits from time to time in executive Session, laying aside at such periods its legislative character. It is this executive authority which lends so great a dignity to the Senate, gives it the privilege of preponderating over the other House, and makes it the political safeguard of the nation. The questions of government as to which the Senate is empowered to interfere are soon told. All treaties made by the President must be sanctioned by the Senate; and all appointments made by the President must be confirmed by the Senate. The list is short, and one is disposed to think, when first hearing it, that the thing itself does not amount to much. But it does amount to very much; it enables the Senate to fetter the President, if the Senate should be so inclined, both as regards foreign politics and home politics. A Secretary for Foreign Affairs at Washington may write what despatches he pleases without reference to the Senate; but the Senate interferes before those despatches can have resulted in any fact which may be detrimental to the nation. It is not only that the Senate is responsible for such treaties as are made, but that the President is deterred from the making of treaties for which the Senate would decline to make itself responsible. Even though no treaty should ever be refused its sanction by the Senate, the protecting power of the Senate in that matter would not on that account have been less necessary or less efficacious. Though the bars with which we protect our house may never have been tried by a thief, we do not therefore believe that our house would have been safe if such bars had been known to be wanting. And then, as to that matter of state appointments, is it not the fact that all governing powers consist in the selection of the agents by whom the action of Government shall be carried on? It must come to this, I imagine, when the argument is pushed home. The power of the most powerful man depends only on the extent of his authority over his agents. According to the constitution of the United States, the President can select no agent either at home or abroad, for purposes either of peace or war, or to the employment of whom the Senate does not agree with him. Such a rule as this should save the nation from the use of disreputable agents as public servants. It might, perhaps, have done more towards such salvation than it has as yet effected;—and it may well be hoped that it will do more in future.

Such are the executive powers of the Senate; and it is, I think, remarkable that the Senate has always used these powers with extreme moderation. It has never shown a factious inclination to hinder Government by unnecessary interference, or a disposition to clip the President's wings by putting itself altogether at variance with him. I am not quite sure whether some fault may not have lain on the other side; whether the Senate may not have been somewhat slack in exercising the protective privileges given to it by the constitution. And here I cannot but remark how great is the deference paid to all governors and edicts of Government throughout the United States. One would have been disposed to think that such a feeling would be stronger in an old country such as Great Britain than in a young country such as the States. But I think that it is not so. There is less disposition to question the action of government either at Washington or at New York, than there is in London. Men in America seem to be content when they have voted in their governors, and to feel that for them all political action is over until the time shall come for voting for others. And this feeling, which seems to prevail among the people, prevails also in both Houses of Congress. Bitter denunciations against the President's policy or the President's ministers are seldom heard. Speeches are not often made with the object of impeding the action of Government. That so small and so grave a body as the Senate should abstain from factious opposition to the Government when employed on executive functions was perhaps to be expected. It is of course well that it should be so. I confess, however, that it has appeared to me that the Senate has not used the power placed in its hands as freely as the constitution has intended. But I look at the matter as an Englishman, and as an Englishman I can endure no government action which is not immediately subject to Parliamentary control.

Such are the governing powers of the United States. I think it will be seen that they are much more limited in their scope of action than with us; but within that scope of action much more independent and self-sufficient. And, in addition to this, those who exercise power in the United States are not only free from immediate responsibility, but are not made subject to the hope or fear of future judgment. Success will bring no award, and failure no punishment. I am not aware that any political delinquency has ever yet brought down retribution on the head of the offender in the United States, or that any great deed has been held as entitling the doer of it to his country's gratitude. Titles of nobility they have none; pensions they never give; and political disgrace is unknown. The line of politics would seem to be cold and unalluring. It is cold;—and would be unalluring, were it not that as a profession it is profitable. In much of this I expect that a change will gradually take place. The theory has been that public affairs should be in the hands of little men. The theory was intelligible while the public affairs were small; but they are small no longer, and that theory, I fancy, will have to alter itself. Great men are needed for the government, and in order to produce great men a career of greatness must be opened to them. I can see no reason why the career and the men should not be forthcoming.

CHAPTER XI.

THE LAW COURTS AND LAWYERS
OF THE UNITED STATES.

I do not propose to make any attempt to explain in detail the practices and rules of the American Courts of Law. No one but a lawyer should trust himself with such a task, and no lawyer would be enabled to do so in the few pages which I shall here devote to the subject. My present object is to explain, as far as I may be able to do so, the existing political position of the country. As this must depend more or less upon the power vested in the hands of the judges, and upon the tenure by which those judges hold their offices, I shall endeavour to describe the circumstances of the position in which the American judges are placed; the mode in which they are appointed; the difference which exists between the national judges and the State judges; and the extent to which they are or are not held in high esteem by the general public whom they serve.

It will, I think, be acknowledged that this last matter is one of almost paramount importance to the welfare of a country. At home in England we do not realize the importance to us in a political as well as social view of the dignity and purity of our judges, because we take from them all that dignity and purity can give as a matter of course. The honesty of our bench is to us almost as the honesty of heaven. No one dreams that it can be questioned or become questionable, and therefore there are but few who are thankful for its blessings. Few Englishmen care to know much about their own courts of law, or are even aware that the judges are the protectors of their liberties and property. There are the men, honoured on all sides, trusted by every one, removed above temptation, holding positions which are coveted by all lawyers. That it is so is enough for us; and as the good thence derived comes to us so easily, we forget to remember that we might possibly be without it. The law courts of the States have much in their simplicity and the general intelligence of their arrangements to recommend them. In all ordinary causes justice is done with economy, with expedition, and I believe with precision. But they strike an Englishman at once as being deficient in splendour and dignity, as wanting that reverence which we think should be paid to words falling from the bench, and as being in danger as to that purity, without which a judge becomes a curse among a people, a chief of thieves, and an arch-minister of the Evil One. I say as being in danger;—not that I mean to hint that such want of purity has been shown, or that I wish it to be believed that judges with itching palms do sit upon the American bench; but because the present political tendency of the State arrangements threatens to produce such danger. We in England trust implicitly in our judges,—not because they are Englishmen, but because they are Englishmen carefully selected for their high positions. We should soon distrust them if they were elected by universal suffrage from all the barristers and attorneys practising in the different courts; and so elected only for a period of years, as is the case with reference to many of the State judges in America. Such a mode of appointment would, in our estimation, at once rob them of their prestige. And our distrust would not be diminished if the pay accorded to the work were so small that no lawyer in good practice could afford to accept the situation. When we look at a judge in court, venerable beneath his wig and adorned with his ermine, we do not admit to ourselves that that high officer is honest because he is placed above temptation by the magnitude of his salary. We do not suspect that he, as an individual, would accept bribes and favour suitors if he were in want of money. But, still, we know as a fact that an honest man, like any other good article, must be paid for at a high price. Judges and bishops expect those rewards which all men win who rise to the highest steps on the ladder of their profession. And the better they are paid, within measure, the better they will be as judges and bishops. Now, the judges in America are not well paid, and the best lawyers cannot afford to sit upon the bench.