UNIVERSITY OF CALIFORNIA SAN D EGO 3 1822019580448 {LIBRARY UHlVtR^nt of CAU ORNIA I SAN OUT JN VERS TY OF CALIFORNIA SAN DIEGO n 3 1822 01958 0448 Social Sciences & Humanities Library University of California, San Diego j Please Note: This item is subject to recall. Date Due FEB 3 1997 Cl 39 (2/95) UCSDLb. bv (LtlooUrnm SISEiteon CONGRESSIONAL GOVERNMENT. A Study in American Politics. i6mo, 11.25. MERE LITERATURE, and Other Essays. i2mo, $1.50. HOUGHTON MIFFLIN COMPANY BOSTON AND NEW YORK CONGRESSIONAL GOVERNMENT A STUDY IN AMERICAN POLITICS BY WOODROW WILSON BOSTON AND NEW YORK HOUQHTON MIFFLIN COMPANY be ffitoetfibe prcjrf Cambridge Copyright, 1886, BY WOODRCW WILSON All rights reserved. To THS PiTIENT GUIDE OF HIS YOUTH, TliE GRACIOUS COMPANION OF HIS MANHOOD, BIS BEST INSTRUCTOR AND MOST LENIENT CRITIC, ffifjis Uaoit IS AFFECTIONATELY DEDICATED BY THE AUTHOR. PREFACE TO FIFTEENTH EDITION. I HAVE been led by the publication of a French translation of this little volume to read it through very carefully, for the first time since its first appearance. The re-reading has con- vinced me that it ought not to go to another impression without a word or two by way of preface with regard to the changes which our singular system of Congressional government has undergone since these pages were written. I must ask those who read them now to re- member that they were written during the years 1883 and 1884, and that, inasmuch as they describe a living system, like all other living things subject to constant subtle modifi- cations, alike of form and of function, their description of the government of the United States is not as accurate now as I believe it to have been at the time I wrote it. This is, as might have been expected, more VI PREFACE. noticeable in matters of detail than in matters of substance. There are now, for example, not three hundred and twenty-five, but three hun- dred and fifty-seven members in the House of Representatives ; and that number will, no doubt, be still further increased by the reappor- tionment which will follow the census of the present year. The number of committees in both Senate and House is constantly on the in- crease. It is now usually quite sixty in the House, and in the Senate more than forty. There has been a still further addition to the number of the " spending " committees in the House of Representatives, by the subdivision of the powerful Committee on Appropriations. Though the number of committees in nominal control of the finances of the country is still as large as ever, the tendency is now towards a concentration of all that is vital in the business into the hands of a few of the more prominent, which are most often mentioned in the text. The auditing committees on the several depart- ments, for example, have now for some time exercised little more than a merely nominal oversight over executive expenditures. PREFACE. vii Since the text was written, the Tenure of Office Act, which sought to restrict the Presi- dent's removal from office, has been repealed; and even before its repeal it was, in fact, inop- erative. After the time of President Johnson, against whom it was aimed, the party in power in Congress found little occasion to insist upon its enforcement ; its constitutionality was doubt- ful, and it fell into the background. I did not make sufficient allowance for these facts in writing the one or two sentences of the book which refer to the Act. Neither did I give sufficient weight, I now believe, to the powers of the Secretary of the Treasury. However minutely bound, guided, restricted by statute, his power has proved at many a critical juncture in our financial history notably in our recent financial history of the utmost consequence. Several times since this book was written, the country has been wit- ness to his decisive influence upon the money markets, in the use of his authority with regard to the bond issues of the government and his right to control the disposition of the funds of the Treasury. In these matters, however, he Till PREFACE. has exercised, not political, but business power. He has helped the markets as a banker would help them. He has altered no policy. He has merely made arrangements which would release money for use and facilitate loan and invest- ment. The country feels safer when an experi- enced banker, like Mr. Gage, is at the head of the Treasury, than when an experienced poli- tician is in charge of it. All these, however, are matters of detail. There are matters of substance to speak of also. It is to be doubted whether I could say quite so confidently now as I said in 1884 that the Senate of the United States faithfully repre- sents the several elements of the nation's make- up, and furnishes us with a prudent and normally constituted moderating and revising chamber. Certainly vested interests have now got a much more formidable hold upon the Senate than they seemed to have sixteen years ago. Its political character also has undergone a noticeable change. The tendency seems to be to make of the Senate, instead of merely a smaller and more deliberate House of Repre- sentatives, a body of successful party managers. PREFACE. ix Still, these features of its life may be tempo- rary, and may easily be exaggerated. We do not yet know either whether they will persist, or, should they persist, whither they will lead us. A more important matter at any rate, a thing more concrete and visible is the grad- ual integration of the organization of the House of Representatives. The power of the Speaker has of late years taken on new phases. He is now, more than ever, expected to guide and control the whole course of business in the House, if not alone, at any rate through the instrumentality of the small Committee on Rules, of which he is chairman. That com- mittee is expected'not only to reformulate and revise from time to time the permanent Rules of the House, but also to look closely to the course of its business from day to day, make its programme, and virtually control its use of its time. The committee consists of five members ; but the Speaker and the two other members of the committee who represent the majority in the House determine its action ; and its action is allowed to govern the House. It in effect regulates the precedence of measures. When- X PREFACE. ever occasion requires, it determines what shall, and what shall not, be undertaken. It is like a steering ministry, without a ministry's public responsibility, and without a ministry's right to speak for both houses. It is a private piece of party machinery within the single chamber for which it acts. The Speaker himself not as a member of the Committee on Rules, but by the exercise of his right to " recognize " on the floor undertakes to determine very absolutely what bills individual members shall be allowed to bring to a vote, out of the regular order fixed by the rules or arranged by the Committee on Rules. This obviously creates, in* germ at least, a recognized and sufficiently concentrated leader- ship within the House. The country is begin- ning to know that the Speaker and the Com- mittee on Rules must be held responsible in all ordinary seasons for the success or failure of the session, so far as the House is concerned. The congressional caucus has fallen a little into the background. It is not often necessary to call it together, except when the majority is impatient or recalcitrant under the guidance of PREFACE. XI the Committee on Rules. To this new leader- ship, however, as to everything else connected with committee government, the taint of privacy attaches. It is not leadership upon the open floor, avowed, defended in public debate, set before the view and criticism of the country. It integrates the House alone, not the Senate ; does not unite the two houses in policy ; affects only the chamber in which there is the least opportunity for debate, the least chance that responsibility may be properly and effectively lodged and avowed. It has only a very remote and partial resemblance to genuine party leader- ship. Much the most important change to be no- ticed is the result of the war with Spain upon the lodgment and exercise of power within our federal system : the greatly increased power and opportunity for constructive statesmanship given the President, by the plunge into international politics and into the administration of distant dependencies, which has been that war's most striking and momentous consequence. When foreign affairs play a prominent part in the politics and policy of a nation, its Executive xu PREFACE. must of necessity be its guide: must utter every initial judgment, take every first step of action, supply the information upon which it is to act, suggest and in large measure control its conduct. The President of the United States is now, as of course, at the front of affairs, as no president, except Lincoln, has been since the first quarter of the nineteenth century, when the foreign relations of the new nation had first to be adjusted. There is no trouble now about getting the President's speeches printed and read, every word. Upon hfs choice, his character, his experience hang some of the most weighty issues of the future. The government of dependencies must be largely in his hands. Interesting things may come out of the singular change. For one thing, new prizes in public service may attract a new order of talent. The nation may get a better civil service, because of the sheer necessity we shall be under of organizing a service capable of carrying the novel burdens we have shouldered. It may be, too, that the new leadership of the Executive, inasmuch as it is likely to last, will PREFACE. xm have a very far-reaching effect upon our whole method of government. It may give the heads of the executive departments a new influence upon the action of Congress. It may bring about, as a consequence, an integration which will substitute statesmanship for government by mass meeting. It may put this whole volume hopelessly out of date. WOODROW WILSON. PRINCETON UNIVERSITY, 15 August, 1900. PREFACE. THE object of these essays is not to exhaust criticism of the government of the United States, but only to point out the most characteristic prac- tical features of the federal system. Taking Congress as the central and predominant power of the system^ their object is to illustrate every- thing Congressional. Everybody has seen, and critics without number have said, that our form of national government is singular, possessing a character altogether its own ; but thdre is abun- dant evidence that very few have seen just wherein it differs most essentially from the other governments of the world. There have been and are other federal systems quite similar, and scarcely any legislative or administrative princi- ple of our Constitution was young even when that Constitution was framed. It is our legisla- tive and administrative machinery which makes our government essentially different from all other great governmental systems. The most XVI PREFACE. striking contrast in modern politics is not be- tween presidential and monarchical govern- ments, but between Congressional and Parlia- mentary governments. Congressional govern- ment is Committee government ; Parliamentary government is government by a responsible Cab- inet Ministry. These are the two principal types which present themselves for the instruc- tion of the modern student of the practical in politics : administration by semi-independent executive agents who obey the dictation of a leg- islature to which they are not responsible, and administration by executive agents who are the accredited leaders and accountable servants of a legislature virtually supreme in all things. My chief aim in these essays has been, therefore, an adequate illustrative contrast of these two types of government, with a view to making as plain as possible the actual conditions of federal administration. In short, I offer, not a com- mentary, but an outspoken presentation of such cardinal facts as may be sources of practical suggestion. ^ WOODROW WILSON. JOHNS HOPKINS UNIVERSITY, October 7, 1884. CONTENTS. PAOl I. INTRODUCTORY 1 II. THE HOUSE OF REPRESENTATIVES . . 58 III. THE HOUSE OF REPRESENTATIVES. REVENUE AND SUPPLY 130 IV. THE SENATE 193 V. THE EXECUTIVE 242 VL CONCLUSION ....,. 294 CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS. I. INTRODUCTORY. The laws reach but a very little way. Constitute government how you please, infinitely the greater part of it must depend upon the exercise of powers, which are left at large to the prudence and uprightness of minis- ters of state. Even all the use and potency of the laws depends upon them. Without them your commonwealth is no better than a scheme upon paper ; and not a living, active, effective organization. BURKE. The great fault of political writers is their too close adherence to the forms of the system of state which they happen to be expounding or ex- amining. They stop short at the anatomy of institutions, and do not pen- etrate to the secret of their functions. JOHN MORLEY. IT would seem as if a very wayward fortune had presided over the history of the Constitution of the United States, inasmuch as that great federal charter has been alternately violated by its friends and defended by its enemies. It came hard by its establishment in the first place, prevailing with difficulty over the strenuous forces of dissent which were banded against it. While its adoption was under discussion the voices of criticism were many and authoritative, the voices of opposition loud in tone and omi- 1 2 CONGRESSIONAL GOVERNMENT. nous in volume, and the Federalists finally tri- umphed only by dint of hard battle against foes, formidable both in numbers and in skill. But the victory was complete, astonishingly com- plete. Once established, the new government had only the zeal of its friends to fear. Indeed, after its organization very little more is heard of the party of opposition ; they disappear so entirely from politics that one is inclined to think, in looking back at the party history of that time, that they must have been not only conquered but converted as well. There was well-nigh universal acquiescence in the new or- der of things. Not everybody, indeed, professed himself a Federalist, but everybody conformed to federalist practice. There were jealousies and bickerings, of course, in the new Congress of the Union, but no party lines, and the differences which caused the constant brewing and breaking of storms in Washington's first cabinet were of personal rather than of political import. Ham- ilton and Jefferson did not draw apart because the one had been an ardent and the other only a lukewarm friend of the Constitution, so much as because they were so different in natural bent and temper that they would have been like to disagree and come to drawn points wherever or however brought into contact. The one had in- herited warm blood and a bold sagacity, while INTRODUCTORY. 3 in the other a negative philosophy ran suitably through cool veins. They had not been meant for yoke-fellows. There was less antagonism in Congress, how- ever, than in the cabinet ; and in none of the controversies that did arise was there shown any serious disposition to quarrel with the Constitu- tion itself ; the contention was as to the obedi- ence to be rendered to its provisions. No one threatened to withhold his allegiance, though there soon began to be some exhibition of a dis- position to confine obedience to the letter of the new commandments, and to discountenance all attempts to do what was not plainly written in the tables of the law. It was recognized as no longer fashionable to say aught against the prin- ciples of the Constitution ; but all men could not be of one mind, and political parties began to take form in antagonistic schools of consti- tutional construction. There straightway arose two rival sects of political Pharisees, each pro- fessing a more perfect conformity and affecting greater " ceremonial cleanliness " than the other. The very men who had resisted with might and main the adoption of the Constitution became, under the new division of parties, its champions, as sticklers for a strict, a rigid, and literal con- struction. They were consistent enough in this, because 4 CONGRESSIONAL GOVERNMENT. it was quite natural that their one-time fear of a strong central government should pass into a dread of the still further expansion of the power of that government, by a too loose construction of its charter ; but what I would emphasize here is not the motives or the policy of the conduct of parties in our early national politics, but the fact that opposition to the Constitution as a con- stitution, and even hostile criticism of its provi- sions, ceased almost immediately upon its adop- tion ; and not only ceased, but gave place to an undiscriminating and almost blind worship of its principles, and of that delicate dual system of sovereignty, and that complicated scheme of double administration which it established. Ad- miration of that one-time so much traversed body of law became suddenly all the vogue, and criti- cism was estopped. From the first, even down to the time immediately preceding the war, the general scheme of the Constitution went vnchal- lenged ; nullification itself did not always wear its true garb of independent state sovereignty, but often masqueraded as a constitutional right \ and the most violent policies took care to make show of at least formal deference to the worship- ful fundamental law. The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitu- tion to receive universal homage. The convic- INTRODUCTORY. 5 tion that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system. Now there is, of course, nothing in all this that is inexplicable, or even remarkable ; any one can see the reasons for it and the benefits of it without going far out of his way ; but the point which it is interesting to note is that we of the present generation are in the first season of free, outspoken, unrestrained constitutional crit- icism. We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended ; the first to entertain any serious doubts about the superiority of our own institu- tions as compared with the systems of Europe ; the first to think of remodeling the administra- tive machinery of the federal government, and of forcing new forms of responsibility upon Congress. The evident explanation of this change of at- titude towards the Constitution is that we have been made conscious by the rude shock of the war and by subsequent developments of policy, that there has been a vast alteration in the con- ditions of government ; that the checks and bal- 6 CONGRESSIONAL GOVERNMENT. ances which once obtained are no longer effcc tive; and that we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession. In short, this model government is no longer conformable with its own original pattern. While we have been shielding it from criticism it has slipped away from us. The noble charter of fundamen- tal law given us by the Convention of 1787 is still our Constitution ; but it is now onrform of government rather in name than in reality, the form of the Constitution being one of nicely ad- justed, ideal balances, whilst the actual form of our present government is simply a scheme of congressional supremacy. National legislation, of course, takes force now as at first from the authority of the Constitution ; but it would be easy to reckon by the score acts of Congress which can by no means be squared with that great instrument's evident theory. We continue to think, indeed, according to long-accepted con- stitutional formulae, and it is still politically un- orthodox to depart from old-time phraseology in grave discussions of affairs; but it is plain to those who look about them that most of the commonly received opinions concerning federal constitutional balances and administrative ar- rangements are many years behind the actual INTRODUCTORY. 1 practices of the government at Washington, and that we are farther than most of us realize from the times and the policy of the framers of the Constitution. It is a commonplace observation of historians that, in the development of con- stitutions, names are much more persistent than the functions upon which they were originally bestowed ; that institutions constantly undergo essential alterations of character, whilst retain- ing the names conferred upon them in their first estate ; and the history of our own Constitution is but another illustration of this universal prin- ciple of institutional change. There has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the government without perceptibly affecting the vocabulary of our constitutional language. Ours is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law ; its tap-root at least is the Constitution ; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap-centre of a sys- tem of government vastly larger than the stock from which it has branched, a system some of whose forms have only very indistinct and rudimeiital beginnings in the simple substance 8 CONGRESSIONAL GOVERNMENT. of the Constitution, and which exercises many functions apparently quite foreign to the primi- tive properties contained in the fundamental law. The Constitution itself is not a complete sys- tem ; it takes none but the first steps in organi- zation. It does little more than lay a foundation of principles. It provides with all possible brev- ity for the establishment of a government having, in several distinct branches, executive, legislative, and judicial powers. It vests executive power in a single chief magistrate, for whose election and inauguration it makes carefully definite provision, and whose privileges and prerogatives it defines with succinct clearness; it grants specifically enumerated powers of legislation to a representa- tive Congress, outlining the organization of the two houses of that body and definitely providing for the election of its members, whose number it regulates and the conditions of whose choice it names ; and it establishes a Supreme Court with ample authority of constitutional interpretation, prescribing the manner in which its judges shall be appointed and the conditions of their official tenure. Here the Constitution's work of organ- ization ends, and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental INTRODUCTORY. 9 system would snap asunder a constitution which could not adapt itself to the new conditions of an advancing society. If it could not stretch itself to the measure of the times, it must be thrown off and left behind, as a by-gone device; and there can, therefore, be no question that our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building ; or, rather, to return to the old figure, it is a root, not a perfect vine. The chief fact, therefore, of our national his- tory is that from this vigorous tap-root has grown a vast constitutional system, a system branch- ing and expanding in statutes and judicial decis- ions, as well as in unwritten precedent ; and one of the most striking facts, as it seems to me, in the history of our politics is, that that system has never received complete and competent crit- ical treatment at the hands of any, even the most acute, of our constitutional writers. They view it, as it were, from behind. Their thoughts are dominated, it would seem, by those incomparable papers of the " Federalist," which, though they were written to influence only the voters of 1788, still, with a strange, persistent longevity of power, shape the constitutional criticism of the present day, obscuring much of that development of con- stitutional practice which has since taken place. The Constitution in operation is manifestly a 10 CONGRESSIONAL GOVERNMENT. very different thing from the Constitution of the books. " An observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books ; and he will not find in the rough practice many refinements of the literary theory." l It is, therefore, the difficult task of one who would now write at once practically and critically of our national government to escape from theories and attach himself to facts, not al- lowing himself to be confused by a knowledge of what that government was intended to be, or led away into conjectures as to what it may one day become, but striving to catch its present phases and to photograph the delicate organism in all its characteristic parts exactly as it is to- day ; an undertaking all the more arduous and doubtful of issue because it has to be entered upon without guidance from writers of acknowl- edged authority. The leading inquiry in the examination of any system of government must, of course, concern primarily the real depositaries and the essential machinery of power. There is always a centre of power : where in this system is that centre ? in whose hands is self -sufficient authority lodged, 1 These are Mr. Bagehot's words with reference to the British constitutional system. See his English Constitution (last American edition), p. 69. INTRODUCTORY. 11 and through what agencies does that authority speak and act ? The answers one gets to these and kindred questions from authoritative manuals of constitutional exposition are not satisfactory, chiefly because they are contradicted by self- evident facts. It is said that there is no single or central force in our federal scheme ; and so there is not in the federal scheme, but only a balance of powers and a nice adjustment of in- teractive checks, as all the books say. How is it, however, in the practical conduct of the federal government? In that, unquestionably, the pre- dominant and controlling force, the centre and source of all motive and of all regulative power, is Congress. All niceties of constitutional re- striction and even many broad principles of con- stitutional limitation have been overridden, and a thoroughly organized system of congressional control set up which gives a very rude negative to some theories of balance and some schemes for distributed powers, but which suits well with convenience, and does violence to none of the principles of self-government contained in the Constitution. This fact, however, though evident enough, is not on the surface. It does not obtrude itself upon the observation of the world. It runs through the undercurrents of government, and takes shape only in the inner channels of legisla- 12 CONGRESSIONAL GOVERNMENT. tion and administration which are not open to the common view. It can be discerned most readily by comparing the " literary theory " of the Constitution with the actual machinery of legislation, especially at those points where that machinery regulates the relations of Congress with the executive departments, and with the at- titude of the houses towards the Supreme Court on those occasions, happily not numerous, when legislature and judiciary have come face to face in direct antagonism. The " literary theory " is distinct enough ; every American is familiar with the paper pictures of the Constitution. Most prominent in such pictures are the ideal checks and balances of the federal system, which may be found described, even in the most recent books, in terms substantially the same as those used in 1814 by John Adams in his letter to John Taylor. " Is there," says Mr. Adams, " a constitution upon record more complicated with balances than ours ? In the first place, eighteen states and some territories are balanced against the national government. ... In the second place, the House of Eepresentatives is balanced against the Senate, the Senate against the House. In the third place, the executive authority is, in some degree, balanced against the legislative. In the fourth place, the judicial power is bal- anced against the House, the Senate, the execu INTRODUCTORY. 13 live power, and the state governments. In the fifth place, the Senate is balanced against the President in all appointments to office, and in all treaties. ... In the sixth place, the people hold in their hands the balance against their own representatives, by biennial . . . elections. In the seventh place, the legislatures of the several states are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of the President. Here is a complicated refinement of balances, which, for anything I recollect, is an invention of our own and pecul- iar to us." 1 All of these balances are reckoned essential in the theory of the Constitution ; but none is so quintessential as that between the national and the state governments ; it is the pivotal quality of the system, indicating its principal, which is its federal characteristic. The object of this balance of thirty-eight States " and some terri- tories " against the powers of the federal govern- ment, as also of several of the other balances enumerated, is not, it should be observed, to prevent the invasion by the national authorities 1 Works, vol. vi., p. 467 : " Letter to Jno. Taylor." The words and sentences omitted in the quotation contain Mr. Adams's opiuions as to the value of the several balances, some of which h* thinks of doubtful utility, and others of which he, without tewiution, pronounces altogether pernicious. 14 CONGRESSIONAL GOVERNMENT. of those provinces of legislation by plain ex pression or implication reserved to the States, such as the regulation of municipal institutions, the punishment of ordinary crimes, the enact, ment of laws of inheritance and of contract, the erection and maintenance of the common machinery of education, and the control of other such like matters of social economy and every-day administration, but to check and trim national policy on national questions, to turn Congress back from paths of dangerous encroachment on middle or doubtful grounds of jurisdiction, to keep sharp, when it was like to become dim, the line of demarcation between state and federal privilege, to readjust the weights of jurisdiction whenever either state or federal scale threatened to kick the beam. There never was any great likelihood that the national government would care to take from the States their plainer pre- rogatives, but there was always a violent proba- bility that it would here and there steal a march over the borders where territory like its own invited it to appropriation; and it was for a mutual defense of such border-land that the two governments were given the right to call a halt upon one another. It was purposed to guard not against revolution, but against unrestrained exercise of questionable powers. The extent to which the restraining power of INTRODUCTORY. 15 the States was relied upon in the days of the Convention, and of the adoption of the Constitu- tion, is strikingly illustrated in several of the best known papers of the " Federalist ; " and there is no better means of realizing the difference between the actual and the ideal constitutions than this of placing one's self at the point of view of the public men of 1787-89. They were disgusted with the impotent and pitiable Con- federation, which could do nothing but beg and deliberate ; they longed to get away from the selfish feuds of " States dissevered, discordant, belligerent," and their hopes were centred in the establishment of a strong and lasting union, such as could secure that concert and facility of common action in which alone there could be security and amity. They were, however, by no means sure of being able to realize their hopes, contrive how they might to bring the States together into a more perfect confedera- tion. The late colonies had but recently become compactly organized, self-governing States, and were standing somewhat stiffly apart, a group of consequential sovereignties, jealous to main- tain their blood-bought prerogatives, and quick to distrust any power set above them, or arro- gating to itself the control of their restive wills. It was not to be expected that the sturdy, self- reliant, masterful men who had won independ- 16 CONGRESSIONAL GOVERNMENT. ence for their native colonies, by passing through the flames of battle, and through the equally fierce fires of bereavement and financial ruin, would readily transfer their affection and alle- giance from the new-made States, which were their homes, to the federal government, which was to be a mere artificial creation, and which could be to no man as his home government. As things looked then, it seemed idle to appre- hend a too great diminution of state rights : there was every reason, on the contrary, to fear that any union that could be agreed upon would lack both vitality and the ability to hold its ground against the jealous self-assertion of the sovereign commonwealths of its membership. Hamilton but spoke the common belief of all thinking men of the time when he said : " It will always be far more easy for the state gov- ernments to encroach upon the national author- ities than for the national government to en- croach upon the state authorities ; " and he seemed to furnish abundant support for the opinion, when he added, that " the proof of this proposition turns upon the greater degree of in- fluence which the state governments, if they ad- minister their affairs uprightly and prudentty, will generally possess over the people ; a cir- cumstance which, at the same time, teaches us that there is an inherent and intrinsic weakness INTRODUCTORY. 17 in all federal constitutions, and that too much pains cannot be taken in their organization to give them all the force that is compatible with the principles of liberty." l Read in the light of the present day, such views constitute the most striking of all com- mentaries upon our constitutional history. Mani- festly the powers reserved to the States were ex- pected to serve as a very real and potent check upon the federal government ; and yet we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual. The proof of the pudding is the eating thereof, and we can nowadays detect in it none of that strong flavor of state sovereignty which its cooks thought they were giving it. It smacks, rather, of federal omnipotence, which they thought to mix in only in very small and judicious quanti- ties. " From the nature of the case," as Judge Cooley says, " it was impossible that the powers reserved to the States should constitute a re- straint upon the increase of federal power, to the extent that was at first expected. The fed- eral government was necessarily made the final judge of its own authority, and the executor of its own will, and any effectual check to the grad- ual amplification of its jurisdiction must there 1 Federalist, No. 17. 2 18 CONGRESSIONAL GOVERNMENT. fore be found in the construction put by those administering it upon the grants of the Consti- tution, and in their own sense of constitutional obligation. And as the true line of division be- tween federal and state powers has, from the very beginning, been the subject of contention and of honest differences of opinion, it must often happen that to advance and occupy some disputed ground will seem to the party having the power to do so a mere matter of constitu- tional duty." 1 During the early years of the new national government there was, doubtless, much potency in state will ; and had federal and state powers then come face to face, before Congress and the President had had time to overcome their first awkwardness and timidity, and to discover the safest walks of their authority and the most ef- fectual means of exercising their power, it is probable that state prerogatives would have pre- vailed. The central government, as every one remembers, did not at first give promise of a very great career. It had inherited some o the contempt which had attached to the weak Congress of the Confederation. Two of the thirteen States held aloof from the Union until they could be assured of its stability and suc- cess ; many of the other States had come into 1 Cooley's Principles of Const. Law, p. 143. INTRODUCTORY. 19 it reluctantly, all with a keen sense of sacrifice, and there could not be said to be any very wide- spread or undoubting belief in its ultimate sur- vival. The members of the first Congress, too, came together very tardily, and in no very cor- dial or confident spirit of cooperation ; and after they had assembled they were for many months painfully embarrassed, how and upon what sub- jects to exercise their new and untried func- tions. The President was denied formal prece- dence in dignity by the Governor of New York, and must himself have felt inclined to question the consequence of his official station, when he found that amongst the principal questions with which he had to deal were some which concerned no greater things than petty points of etiquette and ceremonial; as, for example, whether one day in the week would be sufficient to receive visits of compliment, " and what would be said if he were sometimes to be seen at quiet tea- parties." l But this first weakness of the new government was only a transient phase in its history, and the federal authorities did not in- vite a direct issue with the States until they had had time to reckon their resources and to learn facility of action. Before Washington left the presidential chair the federal government had been thoroughly organized, and it fast gathered 1 McMaater, Hist, of the People of the U. S., vol. i., p. 564. 20 CONGRESSIONAL GOVERNMENT. strength and confidence as it addressed itself year after year to the adjustment of foreign re- lations, to the defense of the western frontiers, and to the maintenance of domestic peace. For twenty-five years it had no chance to think of those questions of internal policy which, in later days, were to tempt it to stretch its constitu- tional jurisdiction. The establishment of the public credit, the revival of commerce, and the encouragement of industry ; the conduct, first, of a heated controversy, and finally of an unequal war with England; the avoidance, first, of too much love, and afterwards of too violent hatred of France ; these and other like questions of great pith and moment gave it too much to do to leave it time to think of nice points of con- stitutional theory affecting its relations with the States. But still, even in those busy times of inter- national controversy, when the lurid light of the French Revolution outshone all others, and when men's minds were full of those ghosts of '76, which took the shape of British aggressions, and could not be laid by any charm known to diplo- macy, even in those times, busy about other things, there had been premonitions of the un- equal contest between state and federal authori- ties. The purchase of Louisiana had given new form and startling significance to the assertion INTRODUCTORY. 21 of national sovereignty, the Alien and Sedition Laws had provoked the plain-spoken and em- phatic protests of Kentucky and Virginia, and the Embargo had exasperated New England to threats of secession. Nor were these open assumptions of question- able prerogatives on the part of the national government the most significant or unequivocal indications of an assured increase of federal power. Hamilton, as Secretary of the Treasury, had taken care at the very beginning to set the national policy in ways which would unavoida- bly lead to an almost indefinite expansion of the sphere of federal legislation. Sensible of its need of guidance in those matters of financial administration which evidently demanded its immediate attention, the first Congress of the Union promptly put itself under the direction of Hamilton. " It is not a little amusing," says Mr. Lodge, "to note how eagerly Congress, which had been ably and honestly struggling with the revenue, with commerce, and with a thousand de- tails, fettered in all things by the awkwardness inherent in a legislative body, turned for relief to the new secretary." l His advice was asked and taken in almost everything, and his skill as a party leader made easy many of the more dif- ficult paths of the new government. But no 1 Lodge's Alexander Hamilton (Am. Statesmen Series), p. 85. 22 CONGRESSIONAL GOVERNMENT. sooner had the powers of that government begun to be exercised under his guidance than they be- gan to grow. In his famous Report on Manu- factures were laid the foundations of that sys- tem of protective duties which was destined to hang all the industries of the country upon the skirts of the federal power, and to make every trade and craft in the land sensitive to every wind of party that might blow at Washington ; and in his equally celebrated Report in favor of the establishment of a National Bank, there was called into requisition, for the first time, that puissant doctrine of the " implied powers " of the Constitution which has ever since been the chief dynamic principle in our constitutional history. " This great doctrine, embodying the principle of liberal construction, was," in the language of Mr. Lodge, " the most formidable weapon in the armory of the Constitution ; and when Hamilton grasped it he knew, and his op- ponents felt, that here was something capable of conferring on the federal government powers of almost any extent." l It served first as a sanc- tion for the charter of the United States Bank, an institution which was the central pillar of Hamilton's wonderful financial administration, and around which afterwards, as then, played so many of the lightnings of party strife. But the 1 Lodge's ALjcander Hamilton, p. 105. INTRODUCTORY. 23 Bank of the United States, though great, was not the greatest of the creations of that lusty and seductive doctrine. Given out, at length, with the sanction of the federal Supreme Court, 1 and containing, as it did, in its manifest char- acter as a doctrine of legislative prerogative, a very vigorous principle of constitutional growth, it quickly constituted Congress the dominant, nay, the irresistible, power of the federal system, relegating some of the chief balances of the Con- stitution to an insignificant r61e in the " literary theory " of our institutions. Its effect upon the status of the States in the federal system was several-fold. In the first place, it clearly put the constitutions of the States at a great disadvantage, inasmuch as there was in them no like principle of growth. Their stationary sovereignty could by no means keep pace with the nimble progress of federal influ- ence in the new spheres thus opened up to it. The doctrine of implied powers was evidently both facile and irresistible. It concerned the political discretion of the national legislative power, and could, therefore, elude all obstacles of judicial interference ; for the Supreme Court very early declared itself without authority to question the legislature's privilege of determin- 1 Its final and most masterly exposition, by C. J. Marshal], may be seen inMcCulloch v. Maryland, 4 Wheaton, 316. 24 CONGRESSIONAL GOVERNMENT. ing the nature and extent of its own powers in the choice of means for giving effect to its con- stitutional prerogatives, and it has long stood as an accepted canon of judicial action, that judges should be very slow to oppose their opinions to the legislative will in cases in which it is not made demonstrably clear that there has been a plain violation of some unquestionable constitu- tional principle, or some explicit constitutional provision. Of encroachments upon state as well as of encroachments upon federal powers, the federal authorities are, however, in most cases the only, and in all cases the final, judges. The States are absolutely debarred even from any effective defense of their plain prerogatives, be- cause not they, but the national authorities, are commissioned to determine with decisive and un- challenged authoritativeness what state powers shall be recognized in each case of contest or of conflict. In short, one of the privileges which the States have resigned into the hands of the federal government is the all-inclusive privilege of determining what they themselves can do. Federal courts can annul state action, but state courts cannot arrest the growth of congressional power. 1 1 The following passage from William Maclay's Sketches of Debate in the First Senate of the United States (pp. 292-3) it lustrates how clearly the results of this were forecast by saga- INTRODUCTORY. 25 But this is only the doctrinal side of the case, simply its statement with an " if " and a "but." Its practical issue illustrates still more forcibly the altered and declining status of the States in the constitutional system. One very practical issue has been to bring the power of the federal government home to every man's door, as, no less than his own state government, his imme- diate over-lord. Of course every new province into which Congress has been allured by the principle of implied powers has required for its administration a greater or less enlargement of the national civil service, which now, through its hundred thousand officers, carries into every community of the land a sense of federal power, cious men from the first : " The system laid down by these gentlemen (the Federalists) was as follows, or rather the de- velopment of the designs of a certain party : The general power to carry the Constitution into effect by a constructive interpretation would extend to every case that Congress may deem necessary or expedient. . . . The laws of the United States will be held paramount to all " state " laws, claims, and even constitutions. The supreme power is with the gen- eral government to decide in this, as in everything else, for the States have neglected to secure any umpire or mode of decision in case of difference between them. Nor is there any point in the Constitution for them to rally under. They may give an opinion, but the opinions of the general govern- ment must prevail. . . . Any direct and open act would be termed usurpation. But whether the gradual influence and encroachments of the general government may not gradually swallow up the state governments, is another matter." 26 CONGRESSIONAL GOVERNMENT. as the power of powers, and fixes the federal authority, as it were, in the very habits of soci- ety. That is not a foreign but a familiar and domestic government whose officer is your next- door neighbor, whose representatives you deal with every day at the post-office and the custom- house, whose courts sit in your own State, and send their own marshals into your own county to arrest your own fellow-townsman, or to call you yourself by writ to their witness-stands. And who can help respecting officials whom he knows to be backed by the authority and even by the power of the whole nation, in the per- formance of the duties in which he sees them every day engaged? Who does not feel that the marshal represents a greater power than the sheriff does, and that it is more dangerous to molest a mail-carrier than to knock down a policeman ? This personal contact of every cit- izen with the federal government, a contact which makes him feel himself a citizen of a greater state than that which controls his every- day contracts and probates his father's will, more than offsets his sense of dependent loyalty to local authorities by creating a sensible bond of allegiance to what presents itself unmistaka- bly as the greater and more sovereign power. In most things this bond of allegiance does not bind him oppressively nor chafe him dis- INTRODUCTORY. 27 tressingly ; but in some things it is drawn rather painfully tight. Whilst federal postmasters are valued and federal judges unhesitatingly obeyed, and whilst very few people realize the weight of customs -duties, and as few, perhaps, begrudge license taxes on whiskey and tobacco, everybody eyes rather uneasily the federal supervisors at the polls. This is preeminently a country of frequent elections, and few States care to increase the frequency by separating elections of state from elections of national functionaries. The federal supervisor, consequently, who oversees the balloting for congressmen, practically super- intends the election of state officers also ; for state officers and congressmen are usually voted for at one and the same time and place, by ballots bearing in common an entire "party ticket;" and any authoritative scrutiny of these ballots after they have been cast, or any peremptory power of challenging those who offer to cast them, must operate as" an interference with state no less than with federal elections. The author- ity of Congress to regulate the manner of choos- ing federal representatives pinches when it is made thus to include also the supervision of those state elections which are, by no implied power even, within the sphere of federal prerog- ative. The supervisor represents the very ugliest side of federal supremacy ; he belongs to the 28 CONGRESSIONAL GOVERNMENT. least liked branch of the civil service ; but his existence speaks very clearly as to the present balance of powers, and his rather hateful privi- leges must, under the present system of mixed elections, result in impairing the self-respect of state officers of election by bringing home to them a vivid sense of subordination to the powers at Washington. A very different and much larger side of federal predominance is to be seen in the history of the policy of internal improvements. I need not expound that policy here. It has been often enough mooted and long enough understood to need no explanation. Its practice is plain and its persistence unquestionable. But its bearings upon the status and the policies of the States are not always clearly seen or often distinctly pointed out. Its chief results, of course, have been that expansion of national functions which was necessarily involved in the application of national funds by national employees to the clear- ing of inland water-courses and the improvement of harbors, and the establishment of the very questionable precedent of expending in favored localities moneys raised by taxation which bears with equal incidence upon the people of all sec- tions of the country ; but these chief results by no means constitute the sum of its influence. Hardly less significant and real, for instance, are INTRODUCTORY. 29 its moral effects in rendering state administra- tions less self-reliant and efficient, less prudent and thrifty, by accustoming them to accepting subsidies for internal improvements from the federal coffers ; to depending upon the national revenues, rather than upon their own energy and enterprise, for means of developing those re- sources which it should be the special province of state administration to make available and profitable. There can, I suppose, be little doubt that it is due to the moral influences of this policy that the States are now turning to the common government for aid in such things as education. Expecting to be helped, they will not help themselves. Certain it is that there is more than one State which, though abundantly able to pay for an educational system of the greatest efficiency, fails to do so, and contents itself with imperfect temporary makeshifts be- cause there are immense surpluses every year in the national treasury which, rumor and unau- thorized promises say, may be distributed amongst the States in aid of education. If the federal government were more careful to keep apart from every strictly local scheme of improvement, this culpable and demoralizing state policy could scarcely live. States would cease to wish, because they would cease to hope, to be stipendiaries of the government of the Union, and would ad- 30 CONGRESSIONAL GOVERNMENT. dress themselves with diligence to their proper duties, with much benefit both to themselves and to the federal system. This is not saying that the policy of internal improvements was either avoidable, unconstitutional, or unwise, but only that it has been carried too far ; and that, whether carried too far or not, it must in any case have been what it is now seen to be, a big weight in the federal scale of the balance. Still other powers of the federal government, which have so grown beyond their first propor- tions as to have marred very seriously the sym- metry of the " literary theory " of our federal system, have strengthened under the shadow of the jurisdiction of Congress over commerce and the maintenance of the postal service. For in- stance, the Supreme Court of the United States has declared that the powers granted to Congress by the Constitution to regulate commerce and to establish post-offices and post-roads " keep pace with the progress of the country and adapt them- selves to new developments of times and circum- stances. They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamer, from the coach and the steamer to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increas- ing population and wealth. They are intended INTRODUCTORY. 31 for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general govern- ment for the good of the nation, it is not only the right but the duty of Congress to see to it that the intercourse between the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation." 1 This emphatic decision was intended to sustain the right of a telegraph company chartered by one State to run its line along all post-roads in other States, without the consent of those States, and even against their will ; but it is manifest that many other corporate companies might, under the sanction of this broad opinion, claim similar privileges in despite of state resistance, and that such decisions go far towards making state powers of incorporation of little worth as compared with federal powers of control. Keeping pace, too, with this growth of federal activity, there has been from the first a steady and unmistakable growth of nationality of senti- ment. It was, of course, the weight of war which finally and decisively disarranged the bal- ance between state and federal powers ; and it is obvious that many of the most striking mani- festations of the tendency towards centralization 1 Pensacola Tel. Co. v. West. Union, 96 U. S. 1, 9. (Quoted by Judge Cooley in his Principles of Constitutional Law.) 32 CONGRESSIONAL GOVERNMENT, have made themselves seen since the war. But the history of the war is only a record of the tri- umph of the principle of national sovereignty. The war was inevitable, because that principle grew apace ; and the war ended as it did, because that principle had become predominant. Ac- cepted at first simply because it was impera- tively necessary, the union of form and of law had become a union of sentiment, and was des- tined to be a union of institutions. That sense of national unity and community of destiny which Hamilton had sought to foster, but which was feeble in his day of long distances and tardy inter - communication, when the nation's pulse was as slow as the stage-coach and the postman, had become strong enough to rule the conti- nent when Webster died. The war between the States was the supreme and final struggle be- tween those forces of disintegration which still remained in the blood of the body politic and those other forces of health, of union and amal- gamation, which had been gradually building up that body in vigor and strength as the system passed from youth to maturity, and as its consti- tution hardened and ripened with advancing age. The history of that trenchant policy of " recon- struction," which followed close upon the termi- nation of the war, as at once its logical result and significant commentary, contains a vivid INTRODUCTORY. 33 picture of the altered balances of the constitu- tional system which is a sort of exaggerated miniature, falling very little short of being a caricature, of previous constitutional tendencies and federal policies. The tide of federal ag- gression probably reached its highest shore in the legislation which put it into the power of the federal courts to punish a state judge for re- fusing, in the exercise of his official discretion, to impanel negroes in the juries of his court, 1 and in those statutes which gave the federal courts jurisdiction over offenses against state laws by state officers. 2 But* that tide has often run very high, and, however fluctuating at times, has long been well-nigh irresistible by any dykes of constitutional state privilege; so that Judge Cooley can say without fear of contradiction that "The effectual checks upon the encroachments of federal upon state power must be looked for, 1 18 Stat., part 3, 336. See Ex parte Virginia, 100 U. S. 339. 8 Sect. 5515 Rev. Stats. See Ex parte Siebold, 100 U. S. 371. Equally extensive of federal powers is that " legal ten- der" decision (Juilliard v. Greenman) of March, 1884, which argues the existence of a right to issue an irredeemable paper currency from the Constitution's grant of other rights charac- teristic of sovereignty, and from the possession of a similar right by other governments. But this involves no restriction of state powers ; and perhaps there ought to be offset against it that other decision (several cases, October, 1883), which de nies constitutional sanction to the Civil Rights Act. 3 84 CONGRESSIONAL GOVERNMENT. not in state power of resistance, but in the choice of representatives, senators, and presidents holding just constitutional views, and in a federal supreme court with competent power to restrain all departments and all officers within the limits of their just authority, so far as their acts may become the subject of judicial cognizance." 1 Indeed it is quite evident that if federal power be not altogether irresponsible, it is the federal judiciary which is the only effectual balance- wheel of the whole system. The federal judges hold in their hands the fate of state powers, and theirs is the only authority that can draw effec- tive rein on the career of Congress. If their power, then, be not efficient, the time must seem sadly out of joint to those who hold to the " liter- ary theory " of our Constitution. By the word of the Supreme Court must all legislation stand or fall, so long as law is respected. But, as I have already pointed out, there is at least one large province of jurisdiction upon which, though invited, and possibly privileged to ap- propriate it, the Supreme Court has, nevertheless, refused to enter, and by refusing to enter which it has given over all attempt to guard one of the principal, easiest, and most obvious roads to federal supremacy. It has declared itself with- out authority to interfere with the political dis* 1 Principles of Constitutional Law, pp. 143, 144. INTRODUCTORY. 35 cretion of either Congress or the President, and has declined all effort to constrain these its co- ordinate departments to the performance of any, even the most constitutionally imperative act. 1 "When, indeed, the President exceeds his au- thority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents or instruments of his unlawful action to strict accountability." 2 But such punishment, inflicted not directly upon the chief offender but vicariously upon his agents, can come only after all the harm has been done. The courts cannot forestall the President and prevent the doing of mischief. They have no power of initiative ; they must wait until the law has been broken and voluntary litigants have made up their pleadings ; must wait nowadays many months, often many years, until those pleadings are reached in the regular course of clearing a crowded docket. Besides, in ordinary times it is not from the executive that the most dangerous encroachments l Marbury v. Madison, 1 < 'ranch, 137. a Cooley's Principles, p. 157. 36 CONGRESSIONAL GOVERNMENT, are to be apprehended. The legislature is the aggressive spirit. It is the motive power of the government, and unless the judiciary can check it, the courts are of comparatively little worth as balance-wheels in the system. It is the subtile, stealthy, almost imperceptible encroachments of policy, of political action, which constitute the precedents upon which additional prerogatives are generally reared ; and yet these are the very encroachments with which it is hardest for the courts to deal, and concerning which, accord- ingly, the federal courts have declared them- selves unauthorized to hold any opinions. They have naught to say upon questions of policy. Congress must itself judge what measures may legitimately be used to supplement or make effectual its acknowledged jurisdiction, what are the laws " necessary and proper for carrying into execution " its own peculiar powers, " and all other powers vested by " the " Constitution in the government of the United States, or in any department or officer thereof." The courts are very quick and keen-eyed, too, to discern pre- rogatives of political discretion in legislative acts, and exceedingly slow to undertake to dis- criminate between what is and what is not a violation of the spirit of the Constitution. Con- gress must wantonly go very far outside of the plain and unquestionable meaning of the Con* INTRODUCTORY. 37 stitution, must bump its head directly against all right and precedent, must kick against the very pricks of all well-established rulings and inter- pretations, before the Supreme Court will offer it any distinct rebuke. Then, too, the Supreme Court itself, however upright and irreproachable its members, has gen- erally had and will undoubtedly continue to have a distinct political complexion, taken from the color of the times during which its majority was chosen. The bench over which John Marshall presided was, as everybody knows, staunchly and avowedly federalist in its views ; but during the ten years which followed 1835 federalist justices were rapidly displaced by Democrats, and the views of the Court changed accordingly. Indeed it may truthfully be said that, taking our political history " by and large," the constitutional inter- pretations of the Supreme Court have changed, slowly but none the less surely, with the altered relations of power between the national parties. The Federalists were backed by a federalist ju- diciary ; the period of democratic supremacy wit- nessed the triumph of democratic principles in the courts ; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrines. It has been only during comparatively short periods of transition, when public opinion was 38 CONGRESSIONAL GOVERNMENT. passing over from one political creed to another, that the decisions of the federal judiciary have been distinctly opposed to the principles of the ruling political party. But, besides and above all this, the national courts are for the most part in the power of Congress. Even the Supreme Court is not be- yond its control; for it is the legislative privi- lege to increase, whenever the legislative will so pleases, the number of the judges upon the supreme bench, to " dilute the Constitution," as Webster once put it, " by creating a court which shall construe away its provisions ; " and this on one memorable occasion it did choose to do. In December, 1869, the Supreme Court de- cided against the constitutionality of Congress's pet Legal Tender Acts; and in the following March a vacancy on the bench opportunely occurring, and a new justiceship having been created to meet the emergency, the Senate gave the President to understand that no nominee unfavorable to the debated acts would be con- firmed, two justices of the predominant party's way of thinking were appointed, the hostile majority of the court was outvoted, and the obnoxious decision reversed. 1 The creation of additional justiceships is not, 1 For an incisive account of the whole affair, see an article entitled " The Session," No. Am. Review, vol. cxi., pp. 48, 49. INT ROD UCTOR Y. 39 however, the only means by which Congress can coerce and control the Supreme Court. It may forestall an adverse decision by summarily de- priving the court of jurisdiction over the case in which such a decision was threatened, 1 and that even while the case is pending; for only a very small part of the jurisdiction of even the Supreme Court is derived directly from the Con- stitution. Most of it is founded upon the Judi- ciary Act of 1789, which, being a mere act of Congress, may be repealed at any time that Congress chooses to repeal it. Upon this Judi- ciary Act, too, depend not only the powers but also the very existence of the inferior courts of the United States, the Circuit and District Courts ; and their possible fate, in case of a conflict with Congress, is significantly foreshad- owed in that Act of 1802 by which a democratic Congress swept away, root and branch, the sys- tem of circuit courts which had been created in the previous year, but which was hateful to the newly-successful Democrats because it had been officered with Federalists in the last hours of John Adams's administration. This balance of judiciary against legislature and executive would seem, therefore, to be an- other of those ideal balances which are to be found in the books rather than in the rough re- i 7 Wall. 506. 40 CONGRESSIONAL GOVERNMENT. alities of actual practice ; for manifestly the power of the courts is safe only during seasons of political peace, when parties are not aroused to passion or tempted by the command of irre- sistible majorities. As for some of the other constitutional bal- ances enumerated in that passage of the letter to John Taylor which I have taken as a text, their present inefficacy is quite too plain to need proof. The constituencies may have been balanced against their representatives in Mr. Adams's day, for that was not a day of prima- ries and of strict caucus discipline. The legis- latures of the States, too, may have been able to exercise some appreciable influence upon the ac- tion of the Senate, if those were days when pol- icy was the predominant consideration which determined elections to the Senate, and the legis- lative choice was not always a matter of astute management, of mere personal weight, or party expediency ; and the presidential electors un- doubtedly did have at one time some freedom of choice in naming the chief magistrate, but be- fore the third presidential election some of them were pledged, before Adams wrote this letter the majority of them were wont to obey the dictates of a congressional caucus, and for the last fifty years they have simply registered the will of party conventions. INTRODUCTORY, 41 It is noteworthy that Mr. Adams, possibly be- cause he had himself been President, describes the executive as constituting only " in some de- gree " a check upon Congress, though he puts no such limitation upon the other balances of the system. Independently of experience, how- ever, it might reasonably have been expected that the prerogatives of the President would have been one of the most effectual restraints upon the power of Congress. He was consti- tuted one of the three great coordinate branches of the government ; his functions were made of the highest dignity; his privileges many and substantial so great, indeed, that it has pleased the fancy of some writers to parade them as ex- ceeding those of the British crown; and there can be little doubt that, had the presidential chair always been filled by men of commanding character, of acknowledged ability, and of thor- ough political training, it would have continued to be a seat of the highest authority and consid- eration, the true centre of the federal structure, the real throne of administration, and the fre- quent source of policies. Washington and his Cabinet commanded the ear of Congress, and gave shape to its deliberations ; Adams, though often crossed and thwarted, gave character to the government ; and Jefferson, as President no less than as Secretary of State, was the real 42 CONGRESSIONAL GOVERNMENT. leader of his party. But the prestige of the presidential office has declined with the charac- ter of the Presidents. And the character of the Presidents has declined as the perfection of self- ish party tactics has advanced. It was inevitable that it should be so. After independence of choice on the part of the presi- dential electors had given place to the choice of presidential candidates by party conventions, it became absolutely necessary, in the eyes of pol- iticans, and more and more necessary as time went on, to make expediency and availability thb only rules of selection. As each party, when in convention assembled, spoke only those opinions which seemed to have received the sanction of the general voice, carefully suppressing in its " platform " all unpopular political tenets, and scrupulously omitting mention of every doctrine that might be looked upon as characteristic and as part of a peculiar and original programme, so, when the presidential candidate came to be chosen, it was recognized as imperatively nec- essary that he should have as short a political record as possible, and that he should wear a clean and irreproachable insignificance. " Gen- tlemen," said a distinguished American public man, " I would make an excellent President, but a very poor candidate." A decisive career which gives a man a well-understood place in public INTRO D UCTOR Y. 43 estimation constitutes a positive disability for the presidency ; because candidacy must precede election, and the shoals of candidacy can be passed only by a light boat which carries little freight and can be turned readily about to suit the intricacies of the passage. I am disposed to think, however, that the de- cline in the character of the Presidents is not the cause, but only the accompanying manifes- tation, of the declining prestige of the presiden- tial office. That high office has fallen from its first estate of dignity because its power has waned ; and its power has waned because the power of Congress has become predominant. The early Presidents were, as I have said, men of such a stamp that they would under any cir- cumstances have made their influence felt ; but their opportunities were exceptional. What with quarreling and fighting with England, buying Louisiana and Florida, building dykes to keep out the flood of the French Revolution, and extricating the country from ceaseless broils with the South American Republics, the govern- ment was, as has been pointed out, constantly busy, during the first quarter century of its ex- istence, with the adjustment of foreign relations ; and with foreign relations, of course, the Presi- dents had ever}rthing to do, since theirs was the office of negotiation. 44 CONGRESSIONAL GOVERNMENT. Moreover, as regards home policy also those times were not like ours. Congress was some- what awkward in exercising its untried powers, and its machinery was new, and without that fine adjustment which has since made it perfect of its kind. Not having as yet learned the art of governing itself to the best advantage, and being without that facility of legislation which it afterwards acquired, the Legislature was glad to get guidance and suggestions of policy from the Executive. But this state of things did not last long. Congress was very quick and apt in learning what it could do and in getting into thoroughly good trim to do it. It very early divided itself into standing committees which it equipped with very comprehensive and thorough -going privi- leges of legislative initiative and control, and set itself through these to administer the govern- ment. Congress is (to adopt Mr. Bagehot's de- scription of Parliament) "nothing less than a big meeting of more or less idle people. In pro- portion as you give it power it will inquire into everything, settle everything, meddle in every- thing. In an ordinary despotism the powers of the despot are limited by his bodily capacity, and by the calls of pleasure ; he is but one man ; there are but twelve hours in his day, and he is not disposed to employ more than a small part INTRODUCTORY. 45 in dull business : he keeps the rest for the court, or the harein, or for society." But Congress "is a despot who has unlimited time, who has unlimited vanity, who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work." Accordingly it has entered more and more into the details of ad- ministration, until it has virtually taken into its own hands all the substantial powers of govern- ment. It does not domineer over the President himself, but it makes the Secretaries its humble servants. Not that it would hesitate, upon oc- casion, to deal directly with the chief magistrate himself ; but it has few calls to do so, because our latter-day Presidents live by proxy ; they are the executive in theory, but the Secretaries are the executive in fact. At the very first session of Congress steps were taken towards parceling out executive work amongst several departments, according to a then sufficiently thorough division of labor; and if the President of that day was not able to direct administra- tive details, of course the President of to-day is infinitely less able to do so, and must content himself with such general supervision as he may find time to exercise. He is in all every-day concerns shielded by the responsibility of his subordinates. It cannot be said that this change has raised 46 CONGRESSIONAL GOVERNMENT. the cabinet in dignity or power ; it has only al tered their relations to the scheme of govern- ment. The members of the President's cabinet have always been prominent in administration ; and certainly the early cabinets were no less strong in political influence than are the cabi- nets of our own day ; but they were then only the President's advisers, whereas they are now rather the President's colleagues. The Presi- dent is now scarcely the executive ; he is the head of the administration ; he appoints the executive. Of course this is not a legal prin- ciple ; it is only a fact. In legal theory the President can control every operation of every department of the executive branch of the gov- ernment ; but in fact it is not practicable for him to do so, and a limitation of fact is as potent as a prohibition of law. But, though the heads of the executive depart- ments are thus no longer simply the counselors of the President, having become in a very real sense members of the executive, their guiding power in the conduct of affairs, instead of ad- vancing, has steadily diminished ; because while they were being made integral parts of the ma- chinery of administration, Congress was extend- ing its own sphere of activity, was getting into the habit of investigating and managing every thing. The executive was losing and Congress INTRODUCTORY. 47 gaining weight ; and the station to which cabi- nets finally attained was a station of diminished and diminishing power. There is no distincter tendency in congressional history than the ten- dency to subject even the details of administra- tion to the constant supervision, and all policy to the watchful intervention, of the Standing Committees. I am inclined to think, therefore, that the en- larged powers of Congress are the fruits rather of an immensely increased efficiency of organiza- tion, and of the redoubled activity consequent upon the facility of action secured by such or- ganization, than of any definite and persistent scheme of conscious usurpation. It is safe to say that Congress always had the desire to have a hand in every affair of federal government ; but it was only by degrees that it found means and opportunity to gratify that desire, and its activity, extending its bounds wherever perfected processes of congressional work offered favoring prospects, has been enlarged so naturally and so silently that it has almost always seemed of normal extent, and has never, except perhaps during one or two brief periods of extraordinary political disturbance, appeared to reach much beyond its acknowledged constitutional sphere. It is only in the exercise of those functions of public and formal consultation and cooperation 48 CONGRESSIONAL GOVERNMENT. with the President which are the peculiar offices of the Senate, that the power of Congress has made itself offensive to popular conceptions of constitutional propriety, because it is only in the exercise of such functions that Congress is com- pelled to be overt and demonstrative in its claims of over-lordship. The House of Representatives has made very few noisy demonstrations of its usurped right of ascendency ; not because it was diffident or unambitious, but because it could maintain and extend its prerogatives quite as satisfactorily without noise ; whereas the aggres- sive policy of the Senate has, in the acts of its " executive sessions," necessarily been overt, in spite of the closing of the doors, because when acting as the President's council in the ratifica- tion of treaties and in appointments to office its competition for power has been more formally and directly a contest with the executive than were those really more significant legislative acts by which, in conjunction with the House, it has habitually forced the heads of the executive de- partments to observe the will of Congress at every important turn of policy. Hence it is that to the superficial view it appears that only the Senate has been outrageous in its encroachments upon executive privilege. It is not often easy to see the true constitutional bearing of strictly legislative action ; but it is patent even to the INTROD UCTOR Y. 49 jtaast observant that in the matter of appoint- ments to office, for instance, senators have often outrun their legal right to give or withhold their assent to appointments, by insisting upon being first consulted concerning nominations as well., and have thus made their constitutional assent to appointments dependent upon an unconstitu- tional control of nominations. This particular usurpation has been put upon a very solid basis of law by that Tenure-of -Office Act, which took away from President Johnson, in an hour of party heat and passion, that inde- pendent power of removal from office with which the Constitution had invested him, but which he had used in a way that exasperated a Senate not of his own way of thinking. But though this teasing power of the Senate's in the matter of the federal patronage is repugnant enough to the original theory of the Constitution, it is likely to be quite nullified by that policy of civil-service reform which has gained so firm, and mayhap so lasting, a footing in our national legislation ; and in no event would the control of the patronage by the Senate have unbalanced the federal sys- tem more seriously than it may some day be un- balanced by an irresponsible exertion of that body's semi-executive powers in regard to the foreign policy of the government. More than one passage in the history of our foreign rela- 50 CONGRESSIONAL GOVERNMENT. tions illustrates the danger. During the single congressional session of 1868-9, for example, the treaty-marring power of the Senate was ex- erted in a way that made the comparative weak- ness of the executive very conspicuous, and was ominous of very serious results. It showed the executive in the right, but feeble and irresolute ; the Senate masterful, though in the wrong. Den- mark had been asked to part with the island of St. Thomas to the United States, and had at first refused all terms, not only because she cared little for the price, but also and principally be- cause such a sale as that proposed was opposed to the established policy of the powers of Wes- tern Europe, in whose favor Denmark wished to stand ; but finally, by stress of persistent and importunate negotiation, she had been induced to yield ; a treaty had been signed and sent to the Senate ; the people of St. Thomas had sig- nified their consent to the cession by a formal vote; and the island had been actually trans- ferred to an authorized agent of our government, upon the faith, on the part of the Danish minis- ters, that our representatives would not have tri- fled with them by entering upon an important business transaction which they were not assured of their ability to conclude. But the Senate lei the treaty lie neglected in its committee-room; the limit of time agreed upon for confirmation INTRODUCTORY. 51 passed; the Danish government, at last bent upon escaping the ridiculous humiliation that would follow a failure of the business at that stage, extended the time and even sent over one of its most eminent ministers of state to urge the negotiation by all dignified means ; but the Sen- ate cared nothing for Danish feelings and could afford, it thought, to despise President Grant and Mr. Fish, and at the next session rejected the treaty, and left the Danes to repossess them- selves of the island, which we had concluded not to buy after all. It was during this same session of 1868-9 that the Senate teased the executive by throwing every possible obstacle in the way of the confir- mation of the much more important treaty with Great Britain relative to the Alabama claims, nearly marring for good and all one of the most satisfactory successes of our recent foreign pol- icy ; l but it is not necessary to dwell at length upon these well-known incidents of our later his- tory, inasmuch as these are only two of innumer- able instances which make it safe to say that from whatever point we view the relations of the executive and the legislature, it is evident that the power of the latter has steadily increased at 1 For a brilliant account of the senatorial history of these two treaties, see the article entitled " The Session," No. Am, Rev., voL cviii. (1869), p. 626 et aeq. 52 CONGRESSIONAL GOVERNMENT. the expense of the prerogatives of the former, and that the degree in which the one of these great branches of government is balanced against the other is a very insignificant degree indeed. For in the exercise of his power of veto, which is of course, beyond all comparison, his most formidable prerogative, the President acts not as the executive but as a third branch of the legislature. As Oliver Ellsworth said, at the first session of the Senate, the President is, as regards the passage of bills, but a part of Con- gress ; and he can be an efficient, imperative member of the legislative system only in quiet times, when parties are pretty evenly balanced, and there are no indomitable majorities to tread obnoxious vetoes under foot. Even this rapid outline sketch of the two pic- tures, of the theory and of the actual practices of the Constitution, has been sufficient, there- fore, to show the most marked points of differ- ence between the two, and to justify that careful study of congressional government, as the real government of the Union, which I am about to undertake. The balances of the Constitution are for the most part only ideal. For all prac- tical purposes the national government is su- preme over the state governments, and Con- gress predominant over its so-called coordinate branches. Whereas Congress at first overshad. INTROD UCTOR Y. 53 owed neither President nor federal judiciary, it now on occasion rules both with easy mastery and with a high hand ; and whereas each State once guarded its sovereign prerogatives with jealous pride, and able men not a few preferred political advancement under the governments of the great commonwealths to office under the new federal Constitution, seats in state legislatures are now no longer coveted except as possible approaches to seats in Congress ; and even gov- ernors of States seek election to the national Senate as a promotion, a reward for the humbler services they have rendered their local govern- ments. What makes it the more important to under- stand the present mechanism of national govern- ment, and to study the methods of congressional rule in a light unclouded by theory, is that there is plain evidence that the expansion of federal power is to continue, and that there exists, consequently, an evident necessity that it should be known just what to do and how to do it, when the tune comes for public opinion to take control of the forces which are changing the character of our Constitution. There are voices in the air which cannot be misunderstood. The times seem to favor a centralization of gov- ernmental functions such as could not have sug- gested itself as a possibility to the f ramers of 54 CONGRESSIONAL GOVERNMENT. the Constitution. Since they gave their work to the world the whole face of that world has changed. The Constitution was adopted when it was six days' hard traveling from New York to Boston ; when to cross East River was to ven- ture a perilous voyage ; when men were thank- ful for weekly mails ; when the extent of the country's commerce was reckoned not in mill- ions but in thousands of dollars ; when the coun- try knew few cities, and had but begun man- ufactures ; when Indians were pressing upon near frontiers ; when there were no telegraph lines, and no monster corporations. Unques- tionably, the pressing problems of the present moment regard the regulation of our vast sys- tems of commerce and manufacture, the control of giant corporations, the restraint of monopo- lies, the perfection of fiscal arrangements, the facilitating of economic exchanges, and many other like national concerns, amongst which may possibly be numbered the question of marriage and divorce ; and the greatest of these problems do not fall within even the enlarged sphere of the federal government ; some of them can be embraced within its jurisdiction by no possible stretch of construction, and the majority of them only by wresting the Constitution to strange and as yet unimagined uses. Still there is a distinct movement in favor of national control of all IN TROD TTCTOR Y. 55 questions of policy which manifestly demand uniformity of treatment and power of adminis- tration such as cannot be realized by the sepa- rate, unconcerted action of the States ; and it seems probable to many that, whether by consti- tutional amendment, or by still further flights of construction, yet broader territory will at no very distant day be assigned to the federal gov- ernment. It becomes a matter of the utmost importance, therefore, both for those who would arrest this tendency, and for those who, because they look upon it with allowance if not with positive favor, would let it run its course, to ex- amine critically the government upon which this new weight of responsibility and power seems likely to be cast, in order that its capacity both for the work it now does and for that which it may be called upon to do may be definitely es- timated. Judge Cooley, in his admirable work on " The Principles of American Constitutional Law," after quoting Mr. Adams's enumeration of the checks and balances of the federal system, adds this comment upon Mr. Adams's concluding statement that that system is an invention of our own. " The invention, nevertheless, was suggested by the British Constitution, in which a system almost equally elaborate was then in force. In its outward forms that system still 6(5 CONGRESSIONAL GOVERNMENT. remains ; but there has been for more than a century a gradual change in the direction of a concentration of legislative and executive power in the popular house of Parliament, so that the government now is sometimes said, with no great departure from the fact, to be a government by the House of Commons." But Judge Cooley does not seem to see, or, if he sees, does not emphasize the fact, that our own system has been hardly less subject to " a gradual change in the direction of a concentration "of all the sub- stantial powers of government in the hands of Congress ; so that it is now, though a wide de- parture from the form of things, " no great departure from the fact" to describe ours as a government by the Standing Committees of Congress. This fact is, however, deducible from very many passages of Judge Cooley's own writ- ings ; for he is by no means insensible of that expansion of the powers of the federal govern- ment and that crystallization of its methods which have practically made obsolete the early constitutional theories, and even the modified theory which he himself seems to hold. He has tested the nice adjustment of the the- oretical balances by the actual facts, and has carefully set forth the results ; but he has no- where brought those results together into a sin- gle comprehensive view which might serve as a INTRODUCTORY. 57 clear and satisfactory delineation of the Consti- tution of to-day ; nor has he, or any other writer of capacity, examined minutely and at length that internal organization of Congress which de- termines its methods of legislation, which shapes its means of governing the executive depart- ments, which contains in it the whole mechan- ism whereby the policy of the country is in all points directed, and which is therefore an es- sential branch of constitutional study. As the House of Commons is the central object of ex- amination in every study of the English Consti- tution, so should Congress be in every study of our own. Any one who is unfamiliar with what Congress actually does and how it does it, with all its duties and all its occupations, with all its devices of management and resources of power, is very far from a knowledge of the constitu- tional system under which we live ; and to every one who knows these things that knowledge is very near. n. THE HOUSE OF REPRESENTATIVES. No more vital truth was ever uttered than that freedom and free in- stitutions cannot long be maintained by any people who do not under- stand the nature of their own government. LIKE a vast picture thronged with figures of equal prominence and crowded with elaborate and obtrusive details, Congress is hard to see satisfactorily and appreciatively at a single view and from a single stand-point. Its complicated forms and diversified structure confuse the vis- ion, and conceal the system which underlies its composition. It is too complex to be under- stood without an effort, without a careful and systematic process of analysis. Consequently, very few people do understand it, and its doors are practically shut against the comprehension of the public at large. If Congress had a few authoritative leaders whose figures were very distinct and very conspicuous to the eye of the world, and who could represent and stand for the national legislature in the thoughts of that very numerous, and withal very respectable, class THE HOUSE OF REPRESENTATIVES. 59 of persons who must think specifically and in concrete forms when they think at all, those persons who can make something out of men but very little out of intangible generalizations, it would be quite within the region of possibili- ties for the majority of the nation to follow the course of legislation without any very serious confusion of thought. I suppose that almost everybody who just now gives any heed to the policy of Great Britain, with regard even to the reform of the franchise and other like strictly legislative questions, thinks of Mr. Gladstone and his colleagues rather than of the House of Commons, whose servants they are. The ques- tion is not, What will Parliament do ? but, What will Mr. Gladstone do ? And there is even less doubt that it is easier and more natural to look upon the legislative designs of Germany as locked up behind Bismarck's heavy brows than to think of them as dependent upon the determi- nations of the Reichstag, although as a matter of fact its consent is indispensable even to the plans of the imperious and domineering Chan- cellor. But there is no great minister or ministry to represent the will and being of Congress in the common thought. The Speaker of the House of Representatives stands as near to leadership as any one ; but his will does not run as a forma- 60 CONGRESSIONAL GOVERNMENT. tive and imperative power in legislation much beyond the appointment of the committees who are to lead the House and do its work for it, and it is, therefore, not entirely satisfactory to the public mind to trace all legislation to him. He may have a controlling hand in starting it ; but he sits too still in his chair, and is too evidently not on the floor of the body over which he pre- sides, to make it seem probable to the ordinary judgment that he has much immediate concern in legislation after it is once set afoot. Every- body knows that he is a staunch and avowed partisan, and that he likes to make smooth, when- ever he can, the legislative paths of his party ; but it does not seem likely that all important measures originate with him, or that he is the author of every distinct policy. And in fact he is not. He is a great party chief, but the hedg- ing circumstances of his official position as pre- siding officer prevent his performing the part of active leadership. He appoints the leaders of the House, but he is not himself its leader. The leaders of the House are the chairmen of the principal Standing Committees. Indeed, to be exactly accurate, the House has as many leaders as there are subjects of legislation ; for there are as many Standing Committees as there are leading classes of legislation, and in the con- sideration of every topic of business the House THE HOUSE OF REPRESENTATIVES. 61 is guided by a special leader in the person of the chairman of the Standing Committee, charged with the superintendence of measures of the par- ticular class to which that topic belongs. It is this multiplicity of leaders, this many -headed leadership, which makes the organization of the House too complex to afford uninformed peo- ple and unskilled observers any easy clue to its methods of rule. For the chairmen of the Stand- ing Committees do not constitute a cooperative body like a ministry. They do not consult and concur in the adoption of homogeneous and mu- tually helpful measures ; there is no thought of acting in concert. Each Committee goes its own way at its own pace. It is impossible to discover any unity or method in the disconnected and therefore unsystematic, confused, and des- ultory action of the House, or any common pur- pose in the measures which its Committees from time to time recommend. And it is not only to the unanalytic thought of the common observer who looks at the House from the outside that its doings seem helter- skelter, and without comprehensible rule ; it is not at once easy to understand them when they are scrutinized in their daily headway through open session by one who is inside the House. The newly-elected member, entering its doors for the first time, and with no more knowledge 62 CONGRESSIONAL GOVERNMENT. of its rules and customs than the more intel- ligent of his constituents possess, always experi- ences great difficulty in adjusting his precon- ceived ideas of congressional life to the strange and unlooked-for conditions by which he finds himself surrounded after he has been sworn in and has become a part of the great legislative machine. Indeed there are generally many things connected with his career in Washington to disgust and dispirit, if not to aggrieve, the new member. In the first place, his local repu- tation does not follow him to the federal capital. Possibly the members from his own State know him, and receive him into full fellowship; but no one else knows him, except as an adherent of this or that party, or as a new-comer from this or that State. He finds his station insignifi- cant, and his identity indistinct. But this so- cial humiliation which he experiences in circles in which to be a congressman does not of itself confer distinction, because it is only to be one among many, is probably not to be compared with the chagrin and disappointment which come in company with the inevitable discovery that he is equally without weight or title to consideration in the House itself. No man, when chosen to the membership of a body possessing great powers and exalted prerogatives, likes to find his activity repressed, and himself suppressed, by imperative THE HOUSE OF REPRESENTATIVES. 63 rules and precedents which seem to have been framed for the deliberate purpose of making usefulness unattainable by individual members. Yet such the new member finds the rules and precedents of the House to be. It matters not to him, because it is not apparent on the face of things, that those rules and precedents have grown, not out of set purpose to curtail the privileges of new members as such, but out of the plain necessities of business ; it remains the fact that he suffers under their curb, and it is not until " custom hath made it in him a prop- erty of easiness " that he submits to them with anything like good grace. Not all new members suffer alike, of course, under this trying discipline ; because it is not every new member that comes to his seat with serious purposes of honest, earnest, and duteous work. There are numerous tricks and subter- fuges, soon learned and easily used, by means of which the most idle and self-indulgent members may readily make such show of exemplary dili- gence as will quite satisfy, if it does not positively delight, constituents in Buncombe. But the num- ber of congressmen who deliberately court use- lessness and counterfeit well-doing is probably small. The great majority doubtless have a keen enough sense of their duty, and a sufficiently un- hesitating desire to do it ; and it may safely be 64 CONGRESSIONAL GOVERNMENT. taken for granted that the zeal of new members is generally hot and insistent. If it be not hot to begin with, it is like to become so by reason of friction with the rules, because such men must inevitably be chafed by the bonds of re- straint drawn about them by the inexorable ob- servances of the House. Often the new member goes to Washington as the representative of a particular line of policy, having been elected, it may be, as an advocate of free trade, or as a champion of protection ; and it is naturally his first care upon entering on his duties to seek immediate opportunity for the ex- pression of his views and immediate means of giving them definite shape and thrusting them upon the attention of Congress. His disappoint- ment is, therefore, very keen when he finds both opportunity and means denied him. He can in- troduce his bill ; but that is all he can do, and he must do that at a particular time and in a particular manner. This he is likely to learn through rude experience, if he be not cautious to inquire beforehand the details of practice. He is likely to make a rash start, upon the supposition that Congress observes the ordinary rules of parliamentary practice to which he has become accustomed in the debating clubs familiar to his youth, and in the mass-meetings known to his later experience. His bill is doubtless ready THE HOUSE OF REPRESENTATIVES. 65 for presentation early in the session, and some day, taking advantage of a pause in the proceed- ings, when there seems to be no business before the House, he rises to read it and move its adop- tion. But he finds getting the floor an arduous and precarious undertaking. There are certain to be others who want it as well as he ; and his indignation is stirred by the fact that the Speaker does not so much as turn towards him, though he must have heard his call, but recognizes some one else readily and as a matter of course. If he be obstreperous and persistent in his cries of " Mr. Speaker," he may get that great func- tionary's attention for a moment, only to be told, however, that he is out of order, and that his bill can be introduced at that stage only by unanimous consent : immediately there are me- chanically-uttered but emphatic exclamations of objection, and he is forced to sit down confused and disgusted. He has, without knowing it, ob- truded himself in the way of the " regular order of business," and been run over in consequence, without being quite clear as to how the accident occurred. Moved by the pain and discomfiture of this first experience to respect, if not to fear, the rules, the new member casts about, by study or inquiry, to find out, if possible, the nature and occasion of his privileges. He learns that his only safe day 66 CONGRESSIONAL GOVERNMENT. is Monday. On that day the roll of the States is called, and members may introduce bills as their States are reached in the call. So on Monday he essays another bout with the rules, confident this tune of being on their safe side, but mayhap indiscreetly and unluckily over-con- fident. For if he supposes, as he naturally will, that after his bill has been sent up to be read by the clerk he may say a few words in its behalf, and in that belief sets out upon his long-con- sidered remarks, he will be knocked down by the rules as surely as he was on the first occasion when he gained the floor for a brief moment. The rap of Mr. Speaker's gavel is sharp, imme- diate, and peremptory. He is curtly informed that no debate is in order ; the bill can only be referred to the appropriate Committee. This is, indeed, disheartening ; it is his first lesson in committee government, and the mas- ter's rod smarts ; but the sooner he learns the prerogatives and powers of the Standing Com- mittees the sooner will he penetrate the mys- teries of the rules and avoid the pain of further contact with their thorny side. The privileges of the Standing Committees are the beginning and the end of the rules. Both the House of Representatives and the Senate conduct their business by what may figuratively, but not inac- curately, be called an odd device of disintegra- THE HOUSE OF REPRESENTATIVES. 67 tion. The House virtually both deliberates and legislates in small sections. Time would fail it to discuss all the bills brought in, for they every session number thousands ; and it is to be doubted whether, even if time allowed, the or- dinary processes of debate and amendment would suffice to sift the chaff from the wheat in the bushels of bills every week piled upon the clerk's desk. Accordingly, no futile attempt is made to do anything of the kind. The work is parceled out, most of it to the forty-seven Stand- ing Committees which constitute the regular or- ganization of the House, some of it to select committees appointed for special and temporary purposes. Each of the almost numberless bills that come pouring in on Mondays is " read a first and second time," simply perfunctorily read, that is, by its title, by the clerk, and passed by silent assent through its first formal courses, for the purpose of bringing it to the proper stage for commitment, and referred without debate to the appropriate Standing Committee. Practically, no bill escapes com- mitment save, of course, bills introduced by committees, and a few which may now and then be crowded through under a suspension of the rules, granted by a two - thirds vote though the exact disposition to be made of a bill is not always determined easily and as a matter of 68 CONGRESSIONAL GOVERNMENT. course. Besides the great Committee of Ways and Means and the equally great Committee on Appropriations, there are Standing Committees on Banking and Currency, on Claims, on Com- merce, on the Public Lands, on Post-Offices and Post-Roads, on the Judiciary, on Public Expendi- tures, on Manufactures, on Agriculture, on Mili- tary Affairs, on Naval Affairs, on Mines and Mining, on Education and Labor, on Patents, and on a score of other branches of legislative con- cern ; but careful and differential as is the top- ical division of the subjects of legislation which is represented in the titles of these Committees, it is not always evident to which Committee each particular bill should go. Many bills affect subjects which may be regarded as lying as properly within the jurisdiction of one as of another of the Committees ; for no hard and fast lines separate the various classes of business which the Committees are commissioned to take in charge. Their jurisdictions overlap at many points, and it must frequently happen that bills are read which cover just this common ground. Over the commitment of such bills sharp and interesting skirmishes often take place. There is active competition for them, the ordinary, quiet routine of matter-of-course reference being interrupted by rival motions seeking to give very different directions to the disposition to be THE HOUSE OF REPRESENTATIVES. 69 made of them. To which Committee should a bill " to fix and establish the maximum rates of fares of the Union Pacific and Central Pacific Railroads " be sent, to the Committee on Com- merce or to the Committee on the Pacific Rail- roads ? Should a bill which prohibits the mail- ing of certain classes of letters and circulars go to the Committee on Post-Offices and Post-Roads, because it relates to the mails, or to the Commit- tee on the Judiciary, because it proposes to make any transgression of its prohibition a crime? What is the proper disposition of any bill which thus seems to lie within two distinct committee jurisdictions ? The fate of bills committed is generally not uncertain. As a rule, a bill committed is a bill doomed. When it goes from the clerk's desk to a committee-room it crosses a parliamentary bridge of sighs to dim dungeons of silence whence it will never return. The means and time of its death are unknown, but its friends never see it again. Of course no Standing Committee is privileged to take upon itself the full powers of the House it represents, and formally and deci- sively reject a bill referred to it ; its disapproval, if it disapproves, must be reported to the House in the form of a recommendation that the bill " do not pass." But it is easy, and therefore com- mon, to let the session pass without making any 70 CONGRESSIONAL GOVERNMENT. report at all upon bills deemed objectionable or unimportant, and to substitute for reports upon them a few bills of the Committee's own draft- ing ; so that thousands of bills expire with the expiration of each Congress, not having been rejected, but having been simply neglected. There was not time to report upon them. Of course it goes without saying that the prac- tical effect of this Committee organization of the House is to consign to each of the Standing Committees the entire direction of legislation upon those subjects which properly come to its consideration. As to those subjects it is entitled to the initiative, and all legislative action with regard to them is under its overruling guidance. It gives shape and course to the determinations of the House. In one respect, however, its ini- tiative is limited. Even a Standing Committee cannot report a bill whose subject-matter has not been referred to it by the House, " by the rules or otherwise ; " it cannot volunteer advice on questions upon which its advice has not been asked. But this is not a serious, not even an operative, limitation upon its functions of sug- gestion and leadership ; for it is a very simple matter to get referred to it any subject it wishes to introduce to the attention of the House. Its chairman, or one of its leading members, frames a bill covering the point upon which the Com- THE HOUSE OF REPRESENTATIVES. 71 mittee wishes to suggest legislation ; brings it in, in his capacity as a private member, on Monday, when the call of States is made ; has it referred to his Committee ; and thus secures an opportunity for the making of the desired re- port. It is by this imperious authority of the Stand" ing Committees that the new member is stayed and thwarted whenever he seeks to take an ac- tive part in the business of the House. Turn which way he may, some privilege of the Com, mittees stands in his path. The rules are so framed as to put all business under their man- agement ; and one of the discoveries which the new member is sure to make, albeit after many trying experiences and sobering adventures and as his first session draws towards its close, is, that under their sway freedom of debate finds no place of allowance, and that his long-delayed speech must remain unspoken. For even a long congressional session is too short to afford time for a full consideration of all the reports of the forty-seven Committees, and debate upon them must be rigidly cut short, if not altogether ex- cluded, if any considerable part of the necessary business is to be gotten through with before ad- journment. There are some subjects to which the House must always give prompt attention ; therefore reports from the Committees on Print- f2 CONGRESSIONAL GOVERNMENT. ing and on Elections are always in order ; and there are some subjects to which careful con- sideration must always be accorded; therefore the Committee of Ways and Means and the Com- mittee on Appropriations are clothed with ex- traordinary privileges ; and revenue and supply bills may be reported, and will ordinarily be con- sidered, at any time. But these four are the only specially licensed Committees. The rest must take their turns in fixed order as they are called on by the Speaker, contenting themselves with such crumbs of time as fall from the tables of the four Committees of highest prerogative. Senator Hoar, of Massachusetts, whose long congressional experience entitles him to speak with authority, calculates l that, " supposing the two sessions which make up the life of the House to last ten months," most of the Commit- tees have at their disposal during each Con- gress but two hours apiece in which " to report upon, debate, and dispose of all the subjects of general legislation committed to their charge." For of course much time is wasted. No Con- gress gets immediately to work upon its first as- sembling. It has its officers to elect, and after their election some time must elapse before its 1 In an article entitled " The Conduct of Business in Con- gress" (North American Review, -vol. cxxviii. p. 113), to which I am indebted for many details of the sketch in the text. THE HOUSE OF REPRESENTATIVES. 73 organization is finally completed by the appoint- ment of the Committees. It adjourns for holi- days, too, and generally spares itself long sittings. Besides, there are many things to interrupt the call of the Committees upon which most of the business waits. That call can proceed only dur- ing the morning hours, the hours just after the reading of the "Journal," on Tuesdays, Wednesdays, and Thursdays ; and even then it may suffer postponement because of the unfin- ished business of the previous day which is enti- tled to first consideration. The call cannot pro- ceed on Mondays because the morning hour of Mondays is devoted invariably to the call of the States for the introduction of bills and resolu- tions ; nor on Fridays, for Friday is " private bill day," and is always engrossed by the Com- mittee on Claims, or by other fathers of bills which have gone upon the " private calendar." On Saturdays the House seldom sits. The reports made during these scant morning hours are ordered to be printed, for future con- sideration in their turn, and the bills introduced by the Committees are assigned to the proper calendars, to be taken up in order at the proper time. When a morning hour has run out, the House hastens to proceed with the business on the Speaker's table. These are some of the plainer points of the 74 CONGRESSIONAL GOVERNMENT. rules. They are full of complexity, and of con- fusion to the uninitiated, and the confusions of practice are greater than the confusions of the rules. For the regular order of business is con- stantly being interrupted by the introduction of resolutions offered " by unanimous consent," and of bills let in under a " suspension of the rules." Still, it is evident that there is one principle which runs through every stage of pro- cedure, and which is never disallowed or abro- gated, the principle that the Committees shall rule without let or hindrance. And this is a principle of extraordinary formative power. It is the mould of all legislation. In the first place, the speeding of business under the direc- tion of the Committees determines the character and the amount of the discussion to which legis- lation shall be subjected. The House is con- scious that time presses. It knows that, hurry as it may, it will hardly get through with one eighth of the business laid out for the session, and that to pause for lengthy debate is to allow the arrears to accumulate. Besides, most of the members are individually anxious to expedite action on every pending measure, because each member of the House is a member of one or more of the Standing Committees, and is quite naturally desirous that the bills prepared by his Committees, and in which he is, of course, spe- THE HOUSE OF REPRESENTATIVES. 75 cially interested by reason of the particular at- tention which he has been compelled to give them, should reach a hearing and a vote as soon as possible. It must, therefore, invariably hap- pen that the Committee holding the floor at anj particular time is the Committee whose proposals the majority wish to dispose of as summarily as circumstances will allow, in order that the rest of the forty-two unprivileged Committees to which the majority belong may gain the earlier and the fairer chance of a hearing. A reporting Com- mittee, besides, is generally as glad to be pushed as the majority are to push it. It probably has several bills matured, and wishes to see them disposed of before its brief hours of oppor- tunity 1 are passed and gone. Consequently, it is the established custom of the House to accord the floor for one hour to the member of the reporting Committee who has charge of the business under consideration ; and that hour is made the^ chief hour of debate. The reporting committee-man seldom, if ever, uses the whole of the hour himself for his open- ing remarks ; he uses part of it, and retains con- 1 No Committee is entitled, when called, to occupy more than the morning hours of two successive days with the meas- ures which it has prepared ; though if its second morning hour expire while the House is actually considering one of its bills, that single measure may hold over from morning hour to morning hour until it is disposed of. 76 CONGRESSIONAL GOVERNMENT. trol of the rest of it ; for by undisputed privilege it is his to dispose of, whether he himself be upon the floor or not. No amendment is in order during that hour, unless he consent to its pres- entation ; and he does not, of course, yield his time indiscriminately to any one who wishes to speak. He gives way, indeed, as in fairness he should, to opponents as well as to friends of the measure under his charge ; but generally no one is accorded a share of his time who has not ob- tained his previous promise of the floor; and those who do speak must not run beyond the number of minutes he has agreed to allow them. He keeps the course both of debate and of amendment thus carefully under his own super- vision, as a good tactician, and before he finally yields the floor, at the expiration of his hour, he is sure to move the previous question. To neg- lect to do so would be to lose all control of the business in hand ; for unless the previous ques- tion is ordered the debate may run on at will, and his Committee's chance for getting its meas- ures through slip quite away ; and that would be nothing less than his disgrace. He would be all the more blameworthy because he had but to ask for the previous question to get it. As I have said, the House is as eager to hurry busi- ness as he can be, and will consent to almost any limitation of discussion that he may demand; THE HOUSE OF REPRESENTATIVES. 77 though, probably, if he were to throw the reins upon its neck, it would run at large from very wantonness, in scorn of such a driver. The pre- vious question once ordered, all amendments are precluded, and one hour remains for the sum- ming-up of this same privileged committee-man before the final vote is taken and the bill dis- posed of. These are the customs which baffle and per- plex and astound the new member. In these precedents and usages, when at length he comes to understand them, the novice spies out the explanation of the fact, once so confounding and seemingly inexplicable, that when he leaped to his feet to claim the floor other members who rose after him were coolly and unfeelingly pre- ferred before him by the Speaker. Of course it is plain enough now that Mr. Speaker knew be- forehand to whom the representative of the re- porting Committee had agreed to yield the floor ; and it was no use for any one else to cry out for recognition. Whoever wished to speak should, if possible, have made some arrangement with the Committee before the business came to a hearing, and should have taken care to notify Mr. Speaker that he was to be granted the floor for a few moments. Unquestionably this, besides being a very in. teresting, is a very novel and significant method 78 CONGRESSIONAL GOVERNMENT. of restricting debate and expediting legislative action, a method of very serious import, and obviously fraught with far-reaching constitu- tional effects. The practices of debate which prevail in its legislative assembly are manifestly of the utmost importance to a self-governing people ; for that legislation which is not thor- oughly discussed by the legislating body is prac- tically done in a corner. It is impossible for Congress itself to do wisely what it does so hur- riedly ; and the constituencies cannot understand what Congress does not itself stop to consider. The prerogatives of the Committees represent something more than a mere convenient division of labor. There is only one part of its business to which Congress, as a whole, attends, that part, namely, which is embraced under the priv- ileged subjects of revenue and supply. The House ne\er accepts the proposals of the Com- mittee of Ways and Means, or of the Committee on Appropriations, without due deliberation ; but it allows almost all of its other Standing Committees virtually to legislate for it. In form, the Committees only digest the various matter introduced by individual members, and prepare it, with care, and after thorough investigation, for the final consideration and action of the House ; but, in reality, they dictate the course to be taken, prescribing the decisions of the THE HOUSE OF REPRESENTATIVES. 79 , House not only, but measuring out, according to their own wills, its opportunities for debate and deliberation as well. The House sits, not for serious discussion, but to sanction the conclu- sions of its Committees as rapidly as possible. It legislates in its committee-rooms ; not by the determinations of majorities, but by the resolu- tions of specially -com missioned minorities; so that it is not far from the truth to say that Con- gress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Con- gress at work. Habit grows fast, even upon the unconven- tional American, and the nature of the House of Representatives has, by long custom, been shaped to the spirit of its rules. Representa- tives have attained, by rigorous self -discipline, to the perfect stature of the law under which they live, having purged their hearts as completely as may be of all desire to do that which it is the chief object of that law to forbid by giving over a vain lust after public discussion. The entire absence of the instinct of debate amongst them, and their apparent unfamiliarity with the idea of combating a proposition by argument, was recently illustrated by an incident which was quite painfully amusing. The democratic ma- jority of the House of the Forty -eighth Con- gress desired the immediate passage of a pension 80 CONGRESSIONAL GOVERNMENT. bill of rather portentous proportions ; but the republican minority disapproved of the bill with great fervor, and, when it was moved by the Pension Committee, late one afternoon, in a thin House, that the rules be suspended, and an early day set for a consideration of the bill, the Republicans addressed themselves to determined and persistent " filibustering " to prevent action. First they refused to vote, leaving the Demo- crats without an acting quorum ; then, all night long, they kept the House at roll-calling on dila- tory and obstructive motions, the dreary drag- ging of the time being relieved occasionally by the amusement of hearing the excuses of mem- bers who had tried to slip off to bed, or by the excitement of an angry dispute between the leaders of the two parties as to the responsibility for the dead-lock. Not till the return of morn- ing brought in the delinquents to recruit the democratic ranks did business advance a single step. Now, the noteworthy fact about this re- markable scene is, that the minority were not mano3uvring to gain opportunity or time for debate, in order that the country might be in- formed of the true nature of the obnoxious bill, but were simply fighting a preliminary motion with silent, dogged obstruction. After the whole night had been spent in standing out against ac- tion, the House is said to have been " in no mood THE HOUSE OF REPRESENTATIVES. 81 for the thirty - minutes' debate allowed by the rules," and a final vote was taken, with only a word or two said. It was easier and more nat- ural, as everybody saw, to direct attention to the questionable character of what was being attempted by the majority by creating a some- what scandalous " scene," of which every one would talk, than by making speeches which no- body would read. It was a notable commentary on the characteristic methods of our system of congressional government. One very noteworthy result of this system is to shift the theatre of debate upon legislation from the floor of Congress to the privacy of the committee - rooms. Provincial gentlemen who read the Associated Press dispatches in their morning papers as they sit over their coffee at breakfast are doubtless often very sorely puz- zled by certain of the items which sometimes appear in the brief telegraphic notes from Wash- ington. What can they make of this for in- stance : " The House Committee on Commerce to-day heard arguments from the congressional delegation from" such and such States "in ad- vocacy of appropriations for river and harbor improvements which the members desire incor- porated in the River and Harbor Appropriations* Bill " ? They probably do not understand that it would have been useless for members not of 6 82 CONGRESSIONAL GOVERNMENT. the Committee on Commerce to wait for any op- portunity to make their suggestions on the floor of Congress, where the measure to which they wish to make additions would be under the au- thoritative control of the Committee, and where, consequently, they could gain a hearing only by the courteous sufferance of the committee-man in charge of the report. Whatever is to be done must be done by or through the Committee. It would seem, therefore, that practically Con- gress, or at any rate the House of Representa- tives, delegates not only its legislative but also its deliberative functions to its Standing Commit- tees. The little public debate that arises under the stringent and urgent rules of the House is formal rather than effective, and it is the discus- sions which take place in the Committees that give form to legislation. Undoubtedly these siftings of legislative questions by the Commit- tees are of great value in enabling the House to obtain " undarkened counsel " and intelligent suggestions from authoritative sources. All so- ber, purposeful, business-like talk upon ques- tions of public policy, whether it take place in Congress or only before the Committees of Con- gress, is of great value ; and the controversies which spring up in the committee-rooms, both amongst the committee-men themselves and be- O tween those who appear before the Committees THE HOUSE OF REPRESENTATIVES. 83 as advocates of special measures, cannot but con- tribute to add clearness and definite consistency to the reports submitted to the House. There are, however, several very obvious rea- sons why the most thorough canvass of business by the Committees, and the most exhaustive and discriminating discussion of all its details in their rooms, cannot take the place or fulfill the uses of amendment and debate by Congress in open session. In the first place, the proceedings of the Committees are private and their discus- sions unpublished. The chief, and unquestion- ably the most essential, object of all discussion of public business is the enlightenment of public opinion ; and of course, since it cannot hear the debates of the Committees, the nation is not apt to be much instructed by them. Only the Com- mittees are enlightened. There is a conclusive objection to the publication of the proceedings of the Committees, which is recognized as of course by all parliamentary lawyers, namely, that those proceedings are of no force till con- firmed by the House. A Committee is commis- sioned, not to instruct the public, but to instruct and guide the House. Indeed it is not usual for the Committees to open their sittings often to those who desire to be heard with regard to pending questions ; and no one can demand a hearing as of right. On 84 CONGRESSIONAL GOVERNMENT. the contrary, they are privileged and accustomed to hold their sessions in absolute secrecy. It is made a breach of order for any member to al- lude on the floor of the House to anything that has taken place in committee, " unless by a writ- ten report sanctioned by a majority of the Com- mittee ; " and there is no place in the regular order of business for a motion instructing a Committee to conduct its investigations with open doors. Accordingly, it is only by the con- cession of the Committees that arguments are made before them. When they do suffer themselves to be ap- proached, moreover, they generally extend the leave to others besides their fellow-congressmen. The Committee on Commerce consents to listen to prominent 'railroad officials upon the subject of the regulation of freight charges and fares ; and scores of interested persons telegraph in- quiries to the chairman of the Committee of Ways and Means as to the time at which they are to be permitted to present to the Commit- tee their views upon the revision of the tariff. The speeches made before the Committees at their open sessions are, therefore, scarcely of such a kind as would be instructive to the public, and on that account worth publishing. They are as a rule the pleas of special pleaders, the arguments of advocates. They have about TEE HOUSE OF REPRESENTATIVES. 85 them none of the searching, critical, illuminating character of the higher order of parliamentary debate, in which men are pitted against each other as equals, and urged to sharp contest and masterful strife by the inspiration of political principle and personal ambition, through the ri- valry of parties and the competition of policies. They represent a joust between antagonistic in- terests, not a contest of principles. They could scarcely either inform or elevate public opinion, even if they were to obtain its heed. For the instruction and elevation of public opinion, in regard to national affairs, there is needed something more than special pleas for special privileges. There is needed public dis- cussion of a peculiar sort : a discussion by the sovereign legislative body itself, a discussion in which every feature of each mooted point of pol- icy shall be distinctly brought out, and every argument of significance pushed to the farthest point of insistence, by recognized leaders in that body ; and, above all, a discussion upon which something something of interest or importance, some pressing question of administration or of law, the fate of a party or the success of a con- spicuous politician evidently depends. It is only a discussion of this sort that the public will heed ; no other sort will impress it. There could, therefore, be no more unwelcome 86 CONGRESSIONAL GOVERNMENT. revelation to one who has anything approaching a, statesman - like appreciation of the essential conditions of intelligent self-government than just that which must inevitably be made to every one who candidly examines our congressional system ; namely, that, under that system, such discussion is impossible. There are, to begin with, physical and architectural reasons why business-like debate of public affairs by the House of Representatives is out of the question. To those who visit the galleries of the represen- tative chamber during a session of the House these reasons are as obvious as they are aston- ishing. It would be natural to expect that a body which meets ostensibly for consultation and deliberation should hold its sittings in a room small enough to admit of an easy inter- change of views and a ready concert of action, where its members would be brought into close, sympathetic contact ; and it is nothing less than astonishing to find it spread at large through the vast spaces of such a chamber as the hall of the House of Representatives, where there are no close ranks of cooperating parties, but each member has a roomy desk and an easy revolv- ing chair ; where broad aisles spread and stretch themselves ; where ample, soft-carpeted areas lie about the spacious desks of the Speaker and clerks ; where deep galleries reach back from the THE HOUSE OF REPRESENTATIVES. 87 outer limits of the wide passages which lie be- yond " the bar " : an immense, capacious cham- ber, disposing its giant dimensions freely beneath the great level lacunar ceiling through whose glass panels the full light of day pours in. The most vivid impression the visitor gets in looking over that vast hall is the impression of space. A speaker must needs have a voice like O'Con- nell's, the practical visitor is apt to think, as he sits in the gallery, to fill even the silent spaces of that room ; how much more to overcome the disorderly noises that buzz and rattle through it when the representatives are assembled, a voice clear, sonorous, dominant, like the voice of a clarion. One who speaks there with the voice and lungs of the ordinary mortal must content himself with the audience of those members in his own immediate neighborhood, whose ears he rudely assails in vehement efforts to command the attention of those beyond them, and who, therefore, cannot choose but hear him. It is of this magnitude of the hall of the rep- resentatives that those news telegrams are sig- nificant which speak of an interesting or witty speech in Congress as having drawn about the speaker listeners from all parts of the House. As one of our most noted wits would say, a member must needs take a Sabbath day's jour- ney to get within easy hearing distance of a 88 CONGRESSIONAL GOVERNMENT. speaker who is addressing the House from the opposite side of the hall ; for besides the space there are the noises intervening, the noises of loud talking and of the clapping of hands for the pages, making the task of the member who is speaking " very like trying to address the people in the omnibuses from the curbstone in front of the Astor House." l But these physical limitations to debate, though serious and real, are amongst the least important, because they are amongst the least insuperable. If effective and business-like pub- lic discussions were considered indispensable by Congress, or even desirable, the present cham- ber could readily be divided into two halls : the one a commodious reading-room where the mem- bers might chat and write at ease as they now do in the House itself ; and the other a smaller room suitable for debate and earnest business. This, in fact, has been several times proposed, but the House does not feel that there is any urgency about providing facilities for debate, because it sees no reason to desire an increase of speech-making, in view of the fact that, notwith- standing all the limitations now put upon discus- sion, its business moves much too slowly. The 1 Quoted from an exceedingly life-like and picturesque de- scription of the House which appeared in the New York Na- tion for April 4, 1878. THE HOUSE OF REPRESENTATIVES. 89 early Congresses had time to talk ; Congresses of to-day have not. Before that wing of the Capitol was built in which the representative chamber now is, the House used to sit in the much smaller room, now empty save for the stat- uary to whose exhibition it is devoted ; and there much speech-making went on from day to day ; there Calhoun and Randolph and Webster and Clay won their reputations as statesmen and orators. So earnest and interesting were the debates of those days, indeed, that the principal speeches delivered in Congress seem to have been usually printed at length in the metro- politan journals. 1 But the number and length of the speeches was even then very much de- plored ; and so early as 1828 a writer in the " North American Review " condemns what he calls " the habit of congressional debating," with the air of one who speaks against some abuse which every one acknowledges to be a nuisance. 2 Eleven years later a contributor to the " Demo- cratic Review " 3 declared that it had " been gravely charged upon " Mr. Samuel Cushman, then a member of the Twenty-fifth Congress from New Hampshire, " that he moves the previous question. Truly," continues the essayist, " he 1 No. Am. Rev., vol. xxvi., p. 162. 2 Id., the same article. 8 "Glances at Congress," Dem. Rev., March, 1839. 90 CONGRESSIONAL GOVERNMENT. does, and for that very service, if he had nevei done anything else, he deserves a monument as a public benefactor. One man who can arrest a tedious, long-winded, factious, time-killing de- bate, is worth forty who can provoke or keep one up. It requires some moral courage, some spirit, and some tact also, to move the previous question, and to move it, too, at precisely the right point of time." This ardent and generous defense of Mr. Cush- man against the odious accusation of moving the previous question would doubtless be exquisitely amusing to the chairman of one of the Standing Committees of the Forty -eighth Congress, to whom the previous question seems one of the commonest necessities of life. But, after all, he ought not to laugh at the ingenuous essayist, for that was not the heyday of the rules ; they then simply served and did not tyrannize over the House. They did not then have the oppor- tunity of empire afforded them by the scantiness of time which hurries the House, and the weight of business which oppresses it ; and they were at a greater disadvantage in a room where ora- tory was possible than they are in a vast cham- ber where the orator's voice is drowned amidst the noises of disorderly inattention. Nowadays would-be debaters are easily thrust out of Con- gress and forced to resort to the printing-office; THE HOUSE OF REPRESENTATIVES. 91 are compelled to content themselves with speak- ing from the pages of the " Record " instead of from their places in the House. Some people who live very far from Washington may imag- ine that the speeches which are spread at large in the columns of the " Congressional Record," or which their representative sends them in pamphlet form, were actually delivered in Con- gress ; but every one else knows that they were not ; that Congress is constantly granting leave to its members to insert in the official reports of the proceedings speeches which it never heard and does not care to hear, but which it is not averse from printing at the public expense, if it is desirable that constituents and the country at large should read them. It will not stand be- tween a member and his constituents so long as it can indulge the one and satisfy the others without any inconvenience to itself or any seri- ous drain upon the resources of the Treasury. The public printer does not object. But there are other reasons still more organic than these why the debates of Congress cannot, under our present system, have that serious pur- pose of search into the merits of policies and that definite and determinate party or, if you will, partisan aim without which they can never be effective for the instruction of public opinion, or the cleansing of political action. 92 CONGRESSIONAL GOVERNMENT. The chief of these reasons, because the parent of all the rest, is that there are in Congress no authoritative leaders who are the recognized spokesmen of their parties. Power is nowhere concentrated ; it is rather deliberately and of set policy scattered amongst many small chiefs. It is divided up, as it were, into forty-seven seign- iories, in each of which a Standing Committee is the court -baron and its chairman lord -pro- prietor. These petty barons, some of them not a little powerful, but none of them within reach of the full powers of rule, may at will exercise an almost despotic sway within their own shires, and may sometimes threaten to convulse even the realm itself; but both their mutual jeal- ousies and their brief and restricted opportuni- ties forbid their combining, and each is very far from the office of common leader. I know that to some this scheme of distributed power and disintegrated rule seems a very excel- lent device whereby we are enabled to escape a dangerous " one-man power " and an untoward concentration of functions ; and it is very easy to see and appreciate the considerations which make this view of committee government so popular. It is based upon a very proper and salutary fear of irresponsible power ; and those who most resolutely maintain it always fight from the position that all leadership in legis- THE HOUSE OF REPRESENTATIVES. 93 lation is hard to restrain in proportion to its size and to the strength of its prerogatives, and that to divide it is to make it manageable. They aver, besides, that the less a man has to do that is to say, the more he is confined to single departments and to definite details the more intelligent and thorough will his work be. They like the Committees, therefore, just because they are many and weak, being quite willing to abide their being despotic within their narrow spheres. It seems evident, however, when the question is looked at from another stand-point, that, as a matter of fact and experience, the more power is divided the more irresponsible it becomes. A mighty baron who can call half the country to arms is watched with greater jealousy, and, there- fore, restrained with more vigilant care than is ever vouchsafed the feeble master of a single and solitary castle. The one cannot stir abroad upon an innocent pleasure jaunt without attracting the suspicious attention of the whole country-side ; the other may vex and harry his entire neighbor- hood without fear of let or hindrance. It is ever the little foxes that spoil the grapes. At any rate, to turn back from illustration to the facts of the argument, it is plain enough that the petty character of the leadership of each Committee contributes towards making its despotism sure 94 CONGRESSIONAL GOVERNMENT. by making its duties uninteresting. The Senate almost always discusses its business with con- siderable thoroughness ; and even the House, whether by common consent or by reason of such persistent "filibustering" on the part of the minority as compels the reporting Committee and the majority to grant time for talk, some- times stops to debate committee reports at length ; but nobody, except, perhaps, newspaper editors, finds these debates interesting reading. Why is it that many intelligent and patriotic people throughout this country, from Virginia to California, people who, beyond all question, love their State and the Union more than they love our cousin state over sea, subscribe for the London papers in order to devour the par- liamentary debates, and yet would never think or troubling themselves to make tedious progress through a single copy of the " Congressional Record " ? Is it because they are captivated by the old-world dignity of royal England with its nobility and its court pageantry, or because of a vulgar desire to appear better versed than their neighbors in foreign affairs, and to affect famil- iarity with British statesmen ? No ; of course not. It is because the parliamentary debates are interesting and ours are not. In the British House of Commons the functions and privileges of our Standing Committees are all concentrated THE BOUSE OF REPRESENTATIVES. 95 in the hands of the Ministry, who have, besides, some prerogatives of leadership which even our Committees do not possess, so that they carry all responsibility as well as great power, and all debate wears an intense personal and party in- terest. Every important discussion is an arraign- ment of the Ministry by the Opposition, an arraignment of the majority by the minority ; and every important vote is a party defeat and a party triumph. The whole conduct of the gov- ernment turns upon what is said in the Com- mons, because the revelations of debate often change votes, and a Ministry loses hold upon power as it loses hold upon the confidence of the Commons. This great Standing Committee goes out whenever it crosses the will of the majority. It is, therefore, for these very simple and obvious reasons that the parliamentary debates are read on this side of the water in preference to the congressional debates. They affect the minis- ters, who are very conspicuous persons, and in whom, therefore, all the intelligent world is interested; and they determine the course of politics in a great empire. The season of a parliamentary debate is a great field day on which Liberals and Conservatives pit their full forces against each other, and people like to watch the issues of the contest. Our congressional debates, on the contrary, 96 CONGRESSIONAL GOVERNMENT. have no tithe of this interest, because they have no tithe of such significance and importance. The committee reports, upon which the debates take place, are backed by neither party ; they represent merely the recommendations of a small body of members belonging to both parties, and are quite as likely to divide the vote of the party to which the majority of the Committee belong as they are to meet with opposition from the other side of the chamber. If they are carried, it is no party triumph ; if they are lost, it is no party discomfiture. They are no more than the proposals of a mixed Committee, and may be rejected without political inconvenience to either party or reproof to the Committee ; just as they may be passed without compliment to the Committee or political advantage to either side of the House. Neither party has any great stake in the controversy. The only importance that can attach to the vote must hang upon its relation to the next general election. If the report concern a question which is at the time so much in the public eye that all action upon it is likely to be marked and remembered against the day of popular action, parties are careful to vote as solidly as possible on what they conceive to be the safe side ; but all other reports are disposed of without much thought of their influence upon the fortunes of distant elections, because that influence is remote and problematical. THE HOUSE OF REPRESENTATIVES. 97 In a word, the national parties do not act in Congress under the restraint of a sense of im- mediate responsibility. Responsibility is spread thin ; and no vote or debate can gather it. It rests not so much upon parties as upon indi- viduals ; and it rests upon individuals in no such way as would make it either just or effica- cious to visit upon them the iniquity of any legislative act. Looking at government from a. practical and business-like, rather than from a theoretical and abstractly-ethical point of view, treating the business of government as a busi- ness, it seems to be unquestionably and in a high degree desirable that all legislation should distinctly represent the action of parties as par- ties. I know that it has been proposed by en- thusiastic, but not too practical, reformers to do away with parties by some legerdemain of gov- ernmental reconstruction, accompanied and sup- plemented by some rehabilitation, devoutly to be wished, of the virtues least commonly con- trolling in fallen human nature ; but it seems to me that it would be more difficult and less desir- able than these amiable persons suppose to con- duct a government of the many by means of any other device than party organization, and that the great need is, not to get rid of parties, but to find and use some expedient by which they can be managed and made amenable from day 98 CONGRESSIONAL GOVERNMENT. to day to public opinion. Plainly this cannot be effected by punishing here and there a member of Congress who has voted for a flagrantly dishon- est appropriation bill, or an obnoxious measure relating to the tariff. Unless the punishment can be extended to the party if any such be recognizable with which these members have voted, no advantage has been won for self-gov- ernment, and no triumph has been gained by public opinion. It should be desired that parties should act in distinct organizations, in accordance with avowed principles, under easily recognized leaders, in order that the voters might be able to declare by their ballots, not only their condem- nation of any past policy, by withdrawing all support from the party responsible for it ; but also and particularly their will as to the future administration of the government, by bringing into power a party pledged to the adoption of an acceptable policy. It is, therefore, a fact of the most serious con- sequence that by our system of congressional rule no such means of controlling legislation is afforded. Outside of Congress the organization of the national parties is exceedingly well-defined and tangible; no one could wish it, and few could imagine it, more so ; but within Congress it is obscure and intangible. Our parties mar- shal their adherents with the strictest possible THE HOUSE OF REPRESENTATIVES. 99 discipline for the purpose of carrying elections, but their discipline is very slack and indefinite in dealing with legislation. At least there is within Congress no visible, and therefore no controllable party organization. The only bond of cohesion is the caucus, which occasionally whips a party together for cooperative action against the time for casting its vote upon some critical question. There is always a majority and a minority, in- deed, but the legislation of a session does not represent the policy of either ; it is simply an aggregate of the bills recommended by Com- mittees composed of members from both sides of the House, and it is known to be usually, not the work of the majority men upon the Com- mittees, but compromise conclusions bearing some shade or tinge of each of the variously-colored opinions and wishes of the committee-men of both parties. It is plainly the representation of both parties on the Committees that makes party responsibility indistinct and organized party action almost im- possible. If the Committees were composed en- tirely of members of the majority, and were thus constituted representatives of the party in power, the whole course of congressional proceedings would unquestionably take on a very different aspect. There would then certainly be a com- pact opposition to face the organized majority. 100 CONGRESSIONAL GOVERNMENT. Committee reports would be taken to represent the views of the party in power, and, instead of the scattered, unconcerted opposition, without plan or leaders, which now sometimes subjects the propositions of the Committees to vexatious hindrances and delays, there would spring up debate under skillful masters of opposition, who could drill their partisans for effective warfare and give shape and meaning to the purposes of the minority. But of course there can be no such definite division of forces so long as the ef- ficient machinery of legislation is in the hands of both parties at once ; so long as the parties are mingled and harnessed together in a common organization. It may be said, therefore, that very few of the measures which come before Congress are party measures. They are, at any rate, not brought in as party measures. They are indorsed by se- lect bodies of members chosen with a view to constituting an impartial board of examination for the judicial and thorough consideration of each subject of legislation ; no member of one of these Committees is warranted in revealing any of the disagreements of the committee-room or the proportions of the votes there taken ; and no color is meant to be given to the supposition that the reports made are intended to advance any party interest. Indeed, only a very slight THE HOUSE OF REPRESENTATIVES. 101 examination of the measures which originate with the Committees is necessary to show that most of them are framed with a view to securing their easy passage by giving them as neutral and inoffensive a character as possible. The mani- fest object is to dress them to the liking of all factions. Under such circumstances, neither the failure nor the success of any policy inaugurated by one of the Committees can fairly be charged to khe account of either party. The Committee acted honestly, no doubt, and as they thought best ; and there can, of course, be no assurance that, by taking away its congressional majority from the party to which the greater number of the committee-men belong, a Committee could be secured which would act better or differently. The conclusion of the whole matter is, then, that public opinion cannot be instructed or ele- vated by the debates of Congress, not only be- cause there are few debates seriously undertaken by Congress, but principally because no one not professionally interested in the daily course of legislation cares to read what is said by the de- baters when Congress does stop to talk, inas- much as nothing depends upon the issue of the discussion. The ordinary citizen cannot be in- duced to pay much heed to the details, or even to the main principles, of law-making, unless 102 CONGRESSIONAL GOVERNMENT. something else more interesting than the law it- self be involved in the pending decision of the law-makers. If the fortunes of a party or the power of a great political leader are staked upon the final vote, he will listen with the keenest in- terest to all that the principal actors may have to say, and absorb much instruction in so doing ; but if no such things hang in the balance, he will not turn from his business to listen ; and if the true issues are not brought out in eager pub- lic contests which catch his ear because of their immediate personal interest, but must be sought amidst the information which can be made com* plete only by reading scores of newspapers, he will certainly never find them or care for them, and there is small use in printing a " Record " which he will not read. I know not how better to describe our form of government in a single phrase than by calling it a government by the chairmen of the Standing Committees of Congress. This disintegrate min- istry, as it figures on the floor of the House of Representatives, has many peculiarities. In the first place, it is made up of the elders of the as- sembly ; for, by custom, seniority in congres- sional service determines the bestowal of the principal chairmanships ; in the second place, it is constituted of selfish and warring elements ; for chairman fights against chairman for use of THE HOUSE OF REPRESENTATIVES. 103 the time of the assembly, though the most part of them are inferior to the chairman of Ways and Means, and all are subordinate to the chair- man of the Committee on Appropriations ; in the third place, instead of being composed of the associated leaders of Congress, it consists of the dissociated heads of forty-eight " little legis- latures " (to borrow Senator Hoar's apt name for the Committees) ; and, in the fourth place, it is instituted by appointment from Mr. Speaker, who is, by intention, the chief judicial, rather than the chief political, officer of the House. It is highly interesting to note the extraor- dinary power accruing to Mr. Speaker through this pregnant prerogative of appointing the Standing Committees of the House. That power is, as it were, the central and characteristic incon- venience and anomaly of our constitutional sys- tem, and on that account excites both the curios- ity and the wonder of the student of institutions. The most esteemed writers upon our Constitution have failed to observe, not only that the Stand- ing Committees are the most essential machinery of our governmental system, but also that the Speaker of the House of Representatives is the most powerful functionary of that system. So sovereign is he within the wide sphere of his in- fluence that one could wish for accurate knowl- edge as to the actual extent of his power. But 104 CONGRESSIONAL GOVERNMENT. Mr. Speaker's powers cannot be Known accu- rately, because they vary with the character of Mr. Speaker. All Speakers have, of late years especially, been potent factors in legislation, but some have, by reason of greater energy or less conscience, made more use of their opportunities than have others. The Speaker's privilege of appointing the Standing Committees is nearly as old as Con- gress itself. At first the House tried the plan of balloting for its more important Committees, ordering, in April, 1789, that the Speaker should appoint only those Committees which should con- sist of not more than three members ; but less than a year's experience of this method of or- ganizing seems to have furnished satisfactory proof of its impracticability, and in J.anuary, 1790, the present rule was adopted : that " All committees shall be appointed by the Speaker, unless otherwise specially directed by the House." The rules of one House of Represen- tatives are not, however, necessarily the rules of the next. No rule lives save by biennial readop- tion. Each newly-elected House meets without rules for its governance, and amongst the first acts of its first session is usually the adoption of the resolution that the rules of its predecessor shall be its own rules, subject, of course, to such revisions as it may, from time to time, see fit to THE HOUSE OF REPRESENTATIVES. 105 make. Mr. Speaker's power of appointment, accordingly, always awaits the passage of this resolution ; but it never waits in vain, for no House, however foolish in other respects, has yet been foolish enough to make fresh trial of elect- ing its Committees. That mode may do well enough for the cool and leisurely Senate, but it is not for the hasty and turbulent House. It must always, of course, have seemed emi- nently desirable to all thoughtful and experi- enced men that Mr. Speaker should be no more than the judicial guide and moderator of the proceedings of the House, keeping apart from the heated controversies of party warfare, and exercising none but an impartial influence upon the course of legislation ; and probably when he was first invested with the power of appointment it was thought possible that he could exercise that great prerogative without allowing his per- sonal views upon questions of public policy to control or even affect his choice. But it must very soon have appeared that it was too much to expect of a man who had it within his power to direct affairs that he should subdue all purpose to do so, and should make all appointments with an eye to regarding every preference but his own ; and when that did become evident, the rule was undoubtedly retained only because none better could be devised. Besides, in the early 106 CONGRESSIONAL GOVERNMENT. years of the Constitution the Committees were very far from having the power they now possess. Business did not then hurry too fast for discus- sion, and the House was in the habit of scrutiniz- ing the reports of the Committees much more critically than it now pretends to do. It delib- erated in its open sessions as well as in its pri- vate committee-rooms, ,nd the functionary who appointed its committees was simply the nomi- nator of its advisers, not, as is the Speaker of to-day, the nominor of its rulers. It is plain, therefore, that the office of Speaker of the House of Representatives is in its present estate a constitutional phenomenon of the first importance, deserving a very thorough and crit- ical examination. If I have succeeded, in what I have already said, in making clear the extraor- dinary power of the Committees in directing legislation, it may now go without the saying that he who appoints those Committees is an au- tocrat of the first magnitude. There could be no clearer proof of the great political weight of the Speaker's high commission in this regard than the keen strife which every two years takes place over the election to the speakership, and the in- tense interest excited throughout the country as to the choice to be made. Of late years, the newspapers have had almost as much to say about the rival candidates for that office as THE HOUSE OF REPRESENTATIVES. 107 about the candidates for the presidency itself, having come to look upon the selection made as a sure index of the policy to be expected in leg- islation. I The Speaker is of course chosen by the party which commands the majority in the House, and it has sometimes been the effort of scheming, self-seeking men of that majority to secure the elevation of some friend or tool of their own to that office, from which he can render them ser- vice of the most substantial and acceptable sort. But, although these intrigues have occasionally resulted in the election of a man of insignificant parts and doubtful character, the choice has usually fallen upon some representative party man of well-known antecedents and clearly- avowed opinions ; for the House cannot, and will not willingly, put up with the intolerable inconvenience of a weak Speaker, and the ma- jority are urged by self-respect and by all the weightiest considerations of expediency, as well as by a regard for the interests of the public business, to place one of their accredited leaders in the chair. If there be differences of opinion within the party, a choice between leaders be- comes a choice between policies and assumes the greatest significance. The Speaker is . expected to constitute the Committees in accordance with bis own political views, and this or that candi- 108 CONGRESSIONAL GOVERNMENT. date is preferred by his party, not at all because of any supposed superiority of knowledge of the precedents and laws of parliamentary usage, but because of his more popular opinions concerning the leading questions of the day. Mr. Speaker, too, generally uses his powers as freely and imperatively as he is expected to use them. He unhesitatingly acts as the legislative chief of his party, organizing the Committees in the interest of this or that policy, not covertly and on the sly, as one who does something of which he is ashamed, but openly and confidently, as one who does his duty. Nor does his official connection with the Committees cease upon their appointment. It is his care to facilitate their control of the business of the House, by recog- nizing during the consideration of a report only those members with whom the reporting com- mittee-man has agreed to share his time, and by keeping all who address the House within the strictest letter of the rules as to the length of their speeches, as well as by enforcing all those other restrictions which forbid independent action on the part of individual members. He must see to it that the Committees have their own way. In so doing he is not exercising arbitrary powers which circumstances and the habits of the as- sembly enable him safely to arrogate; he is simply enforcing the plain letter and satisfying the evident spirit of the rules. THE HOUSE OF REPRESENTATIVES. 109 1 A student of Roman law and institutions, looking at the Rules of the House of Representa- tives through glasses unaccustomed to search out aught but antiquities, might be excused for claim- ing that he found in the customs of the House a striking reproduction of Roman legislative meth- ods. The Roman assembly, he would remind us, could not vote and debate at the same time ; it had no privileges of amendment, but had to adopt every law as a whole or reject it as a whole ; and no private member had a right to introduce a bill, that being the exclusive prerogative of the magis- trates. But though he might establish a parallel satisfactory to himself between the magistrates of Rome and the Committees at Washington, and between the undebatable, unamendable laws of the ancient, and the undebated, unamended laws of the modern, republic, he could hardly find in the later system that compensating ad- vantage which scholars have noted as giving to Roman legislation a clearness and technical per- fection such as is to be found in none of the modern codes. Since Roman laws could not be amended in their passage, and must carry their meaning plainly to the comprehension of the commons, clear and brief drafting was cultivated as of the first necessity in drawing up measures which were first to gain popular approval and then to succeed or fail in accomplishing their 110 CONGRESSIONAL GOVERNMENT. ends according as they proved workable or im- practicable. No such comparison of our own with other systems can, however, find any favor in the eyes of a certain class of Americans who pride them- selves upon being nothing if not patriotic, and who can consequently find no higher praise for the peculiar devices of committee government than that they are our own invention. " An ill- favored thing, sir, but mine own." No one will readily believe, however, that congressmen even those of them who belong to this dutiful class cherish a very loving admiration for the discipline to which they are nowadays subjected. As the accomplished librarian of Congress has declared, " the general conviction may be said to exist, that, under the great control over legisla- tion and current business by the Speaker, and by the powerful Committee on Appropriations, com- bined with the rigor of the Rules of the House, there is less and less opportunity for individual members to make any influential mark in legis- lation. Independence and ability are repressed under the tyranny of the rules, and practically the power of the popular branch of Congress is concentrated in the Speaker and a few very few expert parliamentarians." And of course members of Congress see this. " We have but three forces in this House," exclaimed a jocose THE HOUSE OF REPRESENTATIVES. Ill member from the Pacific coast, " the Brahmins of the Committee of Ways and Means not the brains but the Brahmins of the House ; the white-button mandarins of the Appropriations Committee : the dignified oligarchy called the Committee on Rules ; the Speaker of the House ; and the illustrious gentleman from Indiana." Naturally all men of independent spirit chafe under the arbitrary restraints of such a system, and it would be much more philosophical to con- clude that they let it stand because they can de- vise nothing better, than that they adhere to its inconvenient practices because of their admira- tion for it as an American invention. However that may be, the number of those who misuse the rules is greater than the number of those who strive to reform them. One of the most startling of the prevalent abuses is the hasty passage of bills under a suspension of the rules, a device "by means of which," says Senator Hoar, " a large proportion, perhaps the majority, of the bills which pass the House are carried through." This practice may be very clearly understood by following further Mr. Hoar's own words : " Every Monday after the morning hour, and at any time during the last ten days of a session, motions to suspend the rules are in order. At these times any member may move to suspend the rules and pass any proposed bill. It requires 112 CONGRESSIONAL GOVERNMENT. two thirds of the members voting to adopt such a motion. Upon it no debate or amendment is in order. In this way, if two thirds of the body agree, a bill is by a single vote, without discus- sion and without change, passed through all the necessary stages, and made a law, so far as the House of Representatives can accomplish it ; and in this mode hundreds of measures of vital im- portance receive, near the close of an exhaust- ing session, without being debated, amended, printed, or understood, the constitutional assent of the representatives of the American people." One very obvious comment to be made upon habits of procedure so palpably pernicious is, that nothing could be more natural under rules which repress individual action with so much stringency. Then, too, the mills of the Commit- tees are known to grind slowly, and a very quick and easy way of getting rid of minor items of business is to let particular bills, of apparently innocent meaning or laudable intent, run through without commitment. There must be some out- let, too, through which the waters of delayed and accumulated business may be drained off as the end of a session draws near. Members who know how to take the House at an indulgent moment, and can in a few words make out a primd facie case for the action they urge, can always secure a suspension of the rules. THE HOUSE OF REPRESENTATIVES. 113 To speak very plainly, it is wonderful that under such a system of government legislation is not oftener at sixes and sevens than it actually is. The infinitely varied and various interests of fifty millions of active people would be hard enough to harmonize and serve, one would think, were parties efficiently organized in the pursuit of definite, steady, consistent policies ; and it is therefore simply amazing to find how few out- rageously and fatally foolish, how few bad or disastrous, things have been done by means of our disintegrate methods of legislation. The Committees of the House to whom the principal topics of legislation are allotted number more than thirty. We are ruled by a score and a half of " little legislatures." Our legislation is con- glomerate, not homogeneous. The doings of one and the same Congress are foolish in pieces and wise in spots. They can never, except by acci- dent, have any common features. Some of the Committees are made up of strong men, the ma- jority of them of weak men ; and the weak are as influential as the strong. The country can get the counsel and guidance of its ablest repre- sentatives only upon one or two subjects ; upon the rest it must be content with the impotent service of the feeble. Only a very small part of its most important business can be done well ; the system provides for having the rest of it done 8 114 CONGRESSIONAL GOVERNMENT. miserably, and the whole of it taken together done at haphazard. There could be no more in- teresting problem in the doctrine of chances than that of reckoning the probabilities of there being any common features of principle in the legisla- tion of an opening session. It might lighten and divert the leisure of some ingenious mathemati- cian to attempt the calculation. It was probably some such reflections as these which suggested the proposal, made not long since in the House, that there should be ap- pointed, along with the usual Standing Commit- tees, a new committee which should be known as the Executive Committee of the House, and should be empowered to examine and sort all the bills reported favorably by the other Standing Committees, and bring them forward in what might seem to it the order of their importance ; a committee which should, in short, digest pend- ing measures and guide the House in arranging its order of business. But it is seriously to be doubted whether such an addition to the present organization would do more than tighten the tyr- anny of committee rule and still further restrict freedom of debate and action. A committee to superintend committees would add very little to the efficiency of the House, and would certainly contribute nothing towards unifying legislation, unless the new committee were to be given the THE HOUSE OF REPRESENTATIVES. 115 power, not yet thought of, of revising the work of the present Standing Committees. Such an executive committee is not quite the device needed. Apparently committee government is but one of many experiments in the direction of the reali- zation of an idea best expressed so far as my reading shows by John Stuart Mill ; and is too much like other experiments to be quite as original and unique as some people would like to believe. There is, said Mr. Mill, a " distinction between the function of making laws, for which a numerous popular assembly is radically unfit, and that of getting good laws made, which is its proper duty, and cannot be satisfactorily ful- filled by any other authority ; " and there is, con- sequently, " need of a legislative commission, as a permanent part of the constitution of a free country ; consisting of a small number of highly- trained political minds, on whom, when parlia- ment has determined that a law shall be made, the task of making it should be devolved ; parlia- ment retaining the power of passing or rejecting the bill when drawn up, but not of altering it otherwise than by sending proposed amendments to be dealt with by the commission." 1 It would seem, as I have said, that committee government is one form of the effort, now making by all self- 1 Autobiography, pp. 264, 265. 116 CONGRESSIONAL GOVERNMENT. governing peoples, to set up a satisfactory legia lative commission somewhat after this order ; and it might appear to some as if the proposed exec- utive committee were a slight approximation to that form of the effort which is typified in the legislative functions of the British cabinet. It cannot, of course, be claimed that the forty-eight legislative commissions of the House of Repre- sentatives always answer the purpose when the House wants to get good laws made, or that each of them consists invariably of " a small number of highly-trained political minds ; " but every- body sees that to say that they fall short of re- alizing the ideal would be nothing less than hy- percritical. In saying that our committee government has, germinally, some of the features of the British system, in which the ministers of the crown, the cabinet, are chosen from amongst the leaders of the parliamentary majority, and act not only as advisers of the sovereign but also as the great standing committee or "legislative commission" of the House of Commons, guiding its business and digesting its graver matters of legislation, I mean, of course, only that both systems repre- sent the common necessity of setting apart some small body, or bodies, of legislative guides through whom a " big meeting " may get laws made. The difference between our device and THE HOUSE OF REPRESENTATIVES. 117* the British is that we have a Standing Commit- tee, drawn from both parties, for the considera- tion of each topic of legislation, whereas our English cousins have but a single standing com- mittee that is charged with the origination of legislation, a committee composed of the men who are recognized as the leaders of the party dominant in the state, and who serve at the same time as the political heads of the executive departments of the government. The British system is perfected party govern- ment. No effort is made in the Commons, such as is made in the House of Representatives in the composition of the Committees, to give the minority a share in law-making. Our minorities are strongly represented on the Standing Com- mittees ; the minority in the Commons is not rep- resented at all in the cabinet. It is this feature of closely organized party government, whereby the responsibility for legislation is saddled upon the majority, which, as I have already pointed out, gives to the debates and action of parlia- ment an interest altogether denied to the pro- ceedings of Congress. All legislation is made a contest for party supremacy, and if legislation goes wrong, or the majority becomes discontented with the course of policy, there is nothing for it but that the ministers should resign and give place to the leaders of the Opposition, unless a new election should procure for them a recruited 118 CONGRESSIONAL GOVERNMENT. following. Under such a system mere silent voting is out of the question ; debate is a pri- mary necessity. It brings the representatives of the people and the ministers of the Crown face to face. The principal measures of each session originate with the ministers, and embody the policy of the administration. Unlike the reports of our Standing Committees, which are intended to be simply the digested substance of the more sensible bills introduced by private members, the bills introduced into the House of Commons by the cabinet embody the definite schemes of the government ; and the fact that the Ministry is made up of the leaders of the majority and rep- resents always the principles of its party, makes the minority only the more anxious to have a chance to criticise its proposals. Cabinet gov- ernment is a device for bringing the executive and legislative branches into harmony and co- operation without uniting or confusing their functions. It is as if the majority in the Com- mons deputized its leaders to act as the advisers of the Crown and the superintendents of the public business, in order that they might have the advantage of administrative knowledge and training in advising legislation and drafting laws to be submitted to parliament. This ar- rangement enlists the majority in behalf of suc- cessful administration without giving the minis* THE HOUSE OF REPRESENTATIVES. 119 ters any power to coerce or arbitrarily influence legislative action. Each session of the Lords and Commons becomes a grand inquest into the affairs of the empire. The two estates sit as it were in committee on the management of the public business sit with open doors, and spare themselves no fatigue in securing for every in- terest represented a full, fair, and impartial hearing. It is evident why public debate is the very breath of life to such a system. The Ministry's tenure of office depends upon the success of the legislation they urge. If any of their proposals are negatived by parliament, they are bound to accept their defeat as an intimation that their ad- ministration is no longer acceptable to the party they represent, and are expected to resign, or to appeal, if they prefer, to the country for its ver- dict, by exercising their privilege of advising the sovereign to dissolve parliament and issue writs for a new election. It is, consequently, inevita- ble that the Ministry should be subjected to the most determined attacks and the keenest criti- cisms of the Opposition, and should be every day of the session put to the task of vindicating their course and establishing anew their claim to the confidence of their party. To shrink from discussion would be to confess weakness ; to suf- fer themselves to be worsted in discussion would 120 CONGRESSIONAL GOVERNMENT. be seriously to imperil their power. They must look to it, therefore, not only that their policy be defensible, but that it be valiantly defended also. As might be expected, then, the Ministry sel- dom find the task of leading the House an easy one. Their plans are kept under an unceasing fire of criticism from both sides of the House ; for there are independent sharp-shooters behind the ministers as well as heavy batteries in front of them ; and there are many amongst their pro- fessed followers who give aid and comfort to the enemy. There come ever and again showers of stinging questions, too, from friends and foes alike, questions great and small, direct and indirect, pertinent and impertinent, concerning every detail of administration and every tend- ency of policy. But, although the initiative in legislation and the general direction of the business of parlia- ment are the undisputed prerogatives of " the government," as the Ministry is called, they have not, of course, all the time of the House at their disposal. During the session, certain days of each week are set apart for the introduction and debate of bills brought in by private mem- bers, who, at the opening of the session, draw lots to decide the precedence of their bills or motions on the orders of the day. If many THE HOUSE OF REPRESENTATIVES. 121 draw, those who get last choice of time find the session near its end, and private members' days being absorbed by belated government measures, before their opportunity has come, and must content themselves with hoping for better for- tune next year ; but time is generally found for a very fair and full consideration of a large number of private members' bills, and no mem- ber is denied a chance to air his favorite opin- ions in the House or to try the patience of his fellow -members by annual repetitions of the same proposition. Private members generally find out by long experience, however, that they can exert a more telling influence upon legisla- tion by pressing amendments to government schemes, and can effect more immediate and sat- isfactory results by keeping the Ministry con- stantly in mind of certain phases of public opin- ion, than they could hope to exert or effect by themselves introducing measures upon which their party might hesitate to unite. Living as he does under a system which makes it the min- ister's wisest policy to allow the utmost freedom of debate, each member can take as prominent a part in the proceedings of the House as his abilities give him title to take. If he have any- thing which is not merely frivolous to say, he will have repeated opportunities to say it ; for the Commons cough down only the bores and tho talkors for tVio snko of talk. 122 CONGRESSIONAL GOVERNMENT. The House of Commons, as well as our House of Representatives, has its committees, even its standing committees, but they are of the old-fash- ioned sort which merely investigate and report, not of the new American type which originate and conduct legislation. Nor are they appointed by the Speaker. They are chosen with care by a " Committee of Selection " composed of members of both parties. The Speaker is kept carefully apart from politics in all his functions, acting as the impartial, judicial president of the body. "Dignity of presence, courtliness of manner, great physical endurance, courage and impartial- ity of judgment, a consummate tact, and familiar- ity, ' born of life-long experience,' with the writ- ten and unwritten laws of the House," such are the qualities of the ideal Speaker. When he takes the chair he turns his back on partisan alliances and serves both parties alike with even hand. Such are the traditions of the office that its occupant feels himself as strictly bound to unbiased judgment as is the chiefest judge of the realm ; and it has become no uncommon thing for a Speaker of tried ability to preside during several successive Parliaments, whether the party to whose suffrages he originally owed his eleva- tion remains in power or no. His political prin- ciples do not affect his fitness for judicial func- tions. THE HOUSE OF REPRESENTATIVES. 123 The Commons in session present an interest- ing picture. Constrained by their habits of de- bate to sit in quarters suitable for the purpose, they crowd together in a hall of somewhat cramped proportions. It seems a place fit for hand to hand combats. The cushioned benches on which the members sit rise in close series on either side of a wide central aisle which they face. At one end of this aisle is raised the Speaker's chair, below and in front of which, invading the spaces of the aisle, are the desks of the wigged and gowned clerks. On the front benches nearest the Speaker and to his right sit the cabinet ministers, the leaders of the Gov- ernment ; opposite, on the front benches to the Speaker's left, sit the leaders of the Opposition. Behind and to the right-of the ministers gather the majority ; behind and to the left of their leaders, the minority. Above the rear benches and over the outer aisles of the House, beyond " the bar," hang deep galleries from which the outside world may look down upon the eager contests of the two parties which thus sit face to face with only the aisle between them. From these galleries the fortunate listen to the words of leaders whose names fill the ear of the world. The organization of the French Assembly is in the main similar to that of the British Com- mons. Its leaders are the executive officers of 124 CONGRESSIONAL GOVERNMENT. the government, and are chosen from the ranks of the legislative majority by the President of the Republic, much as English cabinets are chosen by English sovereigns. They too are re- sponsible for their policy and the acts of their administration to the Chamber which they lead. They, like their British prototypes, are the ex- ecutive committee of the legislative body, and upon its will their tenure of office depends. It cannot be said, however, that the proceed- ings of the French Assembly very closely resem- ble those of the British Commons. In the hall of the Deputies there are no close benches which face each other, and no two homogeneous parties to strive for the mastery. There are parties and parties, factions and factions, coteries and coteries. There are Bonapartists and Legiti- matists, Republicans and Clericals, stubborn re- actionists and headlong radicals, stolid con- servatives and vindictive destructionists. One hears of the Centre, the Right Centre and the Left Centre, the Right, the Left, the Extreme Right and the Extreme Left. Some of these are, of course, mere factions, mere groups of ir- reconcilables ; but several of them are, on the other hand, numerous and powerful parties upon whose mutual attractions and repulsions depend the formation, the authority, and the duration of cabinets. THE BOUSE OF REPRESENTATIVES. 125 Of course, too, there is in a body so made up a great deal of combustible material which the slightest circumstance suffices to kindle into a sudden blaze. The Assembly would not be French if it were not always excitable and some- times uproarious. Absolute turbulence is so probable a contingency in its economy that a very simple and quickly applicable device is pro- vided for its remedy. Should the deputies lose their heads altogether and become unmanage- able, the President mayjw on his hat, and by that sign, unless calm be immediately restored, the sitting is adjourned for one hour, at the ex- piration of which time it is to be expected that the members may resume the business of the day in a cooler frame of mind. There are other rules of procedure observed in the Chamber which seem to foreign eyes at first sight very novel ; but which upon closer examination may be seen to differ from some of the practices of our own House of Representatives in form rather than in essence. In France greater freedom of speech is allowed individual members than is possible under committee government, but rec- ognition is not given to just any one who first gets the floor and catches the presiding officer's eye, as it is in the House of Commons, where none but the ministers are accorded any right of precedence in gaining a hearing. Those who 126 CONGRESSIONAL GOVERNMENT. wish to speak upon any pending question " in- scribe " their names beforehand on a list in the keeping of the President, and the discussion is usually confined to thos