The American Commonwealth. Viscount James Bryce

representatives of the people, or foregoing his own opinion at their bidding.¹³

      As the president is charged with the whole federal administration, and responsible for its due conduct, he must of course be allowed to choose his executive subordinates. But as he may abuse this tremendous power the Constitution associates the Senate with him, requiring the “advice and consent” of that body to the appointments he makes.¹⁴ This confirming power has become a political factor of the highest moment. The framers of the Constitution probably meant nothing more than that the Senate should check the president by rejecting nominees who were personally unfit for the post to which he proposed to appoint them. The Senate has always, except in its struggle with President Johnson, left the president free to choose his cabinet ministers. But it early assumed the right of rejecting a nominee to any other office on any ground which it pleased, as for instance, if it disapproved his political affiliations, or wished to spite the president. Presently the senators from the state wherein a federal office to which the president had made a nomination lay, being the persons chiefly interested in the appointment, and most entitled to be listened to by the rest of the Senate when considering it, claimed to have a paramount voice in deciding whether the nomination should be confirmed. Their colleagues approving, they then proceeded to put pressure on the president. They insisted that before making a nomination to an office in any state he should consult the senators from that state who belonged to his own party, and be guided by their wishes. Such an arrangement benefited all senators alike, because each obtained the right of practically dictating the appointments to those federal offices which he most cared for, viz., those within the limits of his own state; and each was therefore willing to support his colleagues in securing the same right for themselves as regarded their states respectively. Of course when a senator belonged to the party opposed to the president, he had no claim to interfere, because places are as a matter of course given to party adherents only. When both senators belonged to the president’s party they agreed among themselves as to the person whom they should require the president to nominate. By this system, which obtained the name of the “courtesy of the Senate”, the president was practically enslaved as regards appointments, because his refusal to be guided by the senator or senators within whose state the office lay exposed him to have his nomination rejected. The senators, on the other hand, obtained a mass of patronage by means of which they could reward their partisans, control the federal civil servants of their state, and build up a faction devoted to their interests.¹⁵ Successive presidents chafed under the yoke, and sometimes carried their nominees either by making a bargain or by fighting hard with the senators who sought to dictate to them. But it was generally more prudent to yield, for an offended senator could avenge a defeat by playing the president a shrewd trick in some other matter; and as the business of confirmation is transacted in secret session, intriguers have little fear of the public before their eyes. The senators might, moreover, argue that they knew best what would strengthen the party in their state, and that the men of their choice were just as likely to be good as those whom some private friend suggested to the president. Thus the system throve and still thrives, though it received a blow from the conflict in 1881 between President Garfield and one of the New York senators, Mr. Roscoe Conkling. This gentleman, finding that Mr. Garfield would not nominate to a federal office in that state the person he proposed, resigned his seat in the Senate, inducing his co-senator Mr. Platt to do the same. Both then offered themselves for reelection by the state legislature of New York, expecting to obtain from it an approval of their action, and thereby to cow the president. The state legislature, however, in which a faction hostile to the two senators had become powerful, rejectd Mr. Conkling and Mr. Platt in favour of other candidates. So the victory remained with Mr. Garfield, while the nation, which had watched the contest eagerly, rubbed its hands in glee at the unexpected denouement.

      It need hardly be added that the “courtesy of the Senate” would never have attained its present strength but for the growth, in and since the time of President Jackson, of the so-called Spoils System, whereby holders of federal offices have been turned out at the accession of a new president to make way for the aspirants whose services, past or future, he is expected to requite or secure by the gift of places.¹⁶

      The right of the president to remove from office has given rise to long controversies on which I can only touch. In the Constitution there is not a word about removals; and very soon after it had come into force the question arose whether, as regards those offices for which the confirmation of the Senate is required, the president could remove without its consent. Hamilton had argued in the Federalist (though there is reason to believe that he afterwards changed his opinion) that the president could not so remove, because it was not to be supposed that the Constitution meant to give him so immense and dangerous a reach of power. Madison argued soon after the adoption of the Constitution that it did permit him so to remove, because the head of the executive must have subordinates whom he can trust, and may discover in those whom he has appointed defects fatal to their usefulness. This was also the view of John Marshall. When the question came to be settled in the Senate during the presidency of Washington, Congress, influenced perhaps by respect for his perfect uprightness, took the Madisonian view and recognized the power of removal as vested in the president alone. So matters stood till a conflict arose in 1866 between President Johnson and the Republican majority in both houses of Congress. In 1867, Congress fearing that the president would dismiss a great number of officials who sided with it against him, passed an act, known as the Tenure of Office Act, which made the consent of the Senate necessary to the removal of officeholders, even of the president’s (so-called) cabinet ministers, permitting him only to suspend them from office during the time when Congress was not sitting. The constitutionality of this act has been much doubted, and its policy is now generally condemned. It was a blow struck in the heat of passion. When President Grant became president in 1869, the act was greatly modified, and in 1887 it was repealed.

      How dangerous it is to leave all offices tenable at the mere pleasure of a partisan executive using them for party purposes, has been shown by the fruits of the Spoils System. On the other hand a president ought to be free to choose his chief advisers and ministers, and even in the lower ranks of the civil service it is hard to secure efficiency if a specific cause, such as could be proved to a jury, must be assigned for dismissal.

      The Constitution permits Congress to vest in the courts of law or in “the heads of departments” the right of appointing to “inferior offices.” This provision has been used to remove many posts from the nomination of the president, and by the Civil Service Reform Act of 1883 competitive examinations were instituted for about thirty-four thousand. Of the now enormous number of posts—there were, in 1909, 367,794 officers and employees of the executive civil service—nearly two-thirds were in that year subject to such examinations. A greater number, however, including many postmasterships and many places under the Treasury, remain in the gift of the president;¹⁷ while even as regards those which lie with his ministers, he may be invoked if disputes arise between the minister and politicians pressing the claims of their respective friends. The business of nominating is in ordinary times so engrossing as to leave the chief magistrate of the nation little time for his other functions.

      Artemus Ward’s description of Abraham Lincoln swept along from room to room in the White House by a rising tide of office-seekers is hardly an exaggeration. From the 4th of March, when Mr. Garfield came into power, till he was shot in the July following, he was engaged almost incessantly in questions of patronage.¹⁸ Yet the president’s individual judgment has little scope. He must reckon with the Senate; he must requite the supporters of the men to whom he owes his election: he must so distribute places all over the country as to keep the local wire-pullers in good humour, and generally strengthen the party by “doing something” for those who have worked or will work for it. Although the minor posts are practically left to the nomination of the senators or congressmen from the state or district, conflicting claims give infinite trouble, and the more lucrative offices are numerous enough to make the task of selection laborious as well as thankless and disagreeable. In every country statesmen find the dispensing of patronage the most disagreeable part of their work; and the more conscientious they are, the more does it worry them. No one has more to gain from a thorough scheme of civil service reform than the president. The present system throws work on him unworthy of a fine intellect, and for which a man of fine intellect may be ill qualified. On the other hand