The American Commonwealth. Viscount James Bryce

and in France, and even in monarchical Germany. But in America the treaty-confirming power of the Senate opens a particularly easy and tempting door to such practices.

      The other executive function of the Senate, that of confirming nominations submitted by the president, has been discussed in the chapter on the powers of that officer. It is there explained how senators have used their right of confirmation to secure for themselves a huge mass of federal patronage, and how by means of this right, a majority hostile to the president can thwart and annoy him. Sometimes he ought to be thwarted; yet the protection which the Senate provides against abuses of his nominating power is far from complete.

      Does the control of the Senate operate to prevent abuses of patronage by the president? To some extent it does, yet less completely than could be wished. When the majority belongs to the same party as the president, appointments are usually arranged, or to use a familiar expression, “squared,” between them, with a view primarily to party interests. When the majority is opposed to the president, they are tempted to agree to his worst appointments, because such appointments discredit him and his party with the country, and become a theme of hostile comment in the next electioneering campaign. As the initiative is his, it may be the nominating president, and not the confirming Senate, whom public opinion will condemn. These things being so, it may be doubted whether this executive function of the Senate is now a valuable part of the Constitution. It was designed to prevent the president from making himself a tyrant by filling the great offices with his accomplices or tools. That danger has passed away, if it ever existed; and Congress has other means of muzzling an ambitious chief magistrate. The more fully responsibility for appointments can be concentrated upon him, and the fewer the secret influences to which he is exposed, the better will his appointments be. On the other hand, it must be admitted that the participation of the Senate causes in practice less friction and delay than might have been expected from a dual control. The appointments to the cabinet offices are confirmed as a matter of course. Those of diplomatic officers are seldom rejected. “Little tiffs” are frequent when the senatorial majority is in opposition to the executive, but the machinery, if it does not work smoothly, works well enough to carry on the ordinary business of the country, though a European observer, surprised that a democratic country allows such important business to be transacted with closed doors, is inclined to agree with the view lately advanced in the Senate that nominations ought to be discussed publicly rather than in secret executive session.

      The judicial function of the Senate is to sit as a high court for the trial of persons impeached by the House of Representatives. The senators “are on oath or affirmation,” and a vote of two-thirds of those present is needed for a conviction. Of the process, as affecting the president, I have spoken in Chapter 5. It is applicable to other officials. Besides President Johnson, eight persons in all have been impeached, viz.:

      Six federal judges, of whom three were acquitted, and three convicted, one for violence and drunkenness, another for having joined the Secessionists of 1861, a third (a judge of the Commerce Court) for conduct in pending suits which tended to his own profit. Impeachment is the only means by which a federal judge can be got rid of.

      One senator, who was acquitted for want of jurisdiction, the Senate deciding that a senatorship is not a “civil office” within the meaning of art. III, § 4 of the Constitution.

      One minister, a secretary of war, who resigned before the impeachment was actually preferred, and escaped on the ground that being a private person he was not impeachable.

      Rarely as this method of proceeding has been employed, it could not be dispensed with; and it is better that the Senate should try cases in which a political element is usually present, than that the impartiality of the Supreme Court should be exposed to the criticism it would have to bear, did such political questions come before it. Most senators are or have been lawyers of eminence, so that so far as legal knowledge goes they are competent members of a court.

CHAPTER 12

       The Senate: Its Working and Influence

      Most Americans consider the Senate one of the successes of their Constitution, a worthy monument of the wisdom and foresight of its founders. Foreign observers have repeated this praise, and have perhaps, in their less perfect knowledge, sounded it even more loudly.

      The aims with which the Senate was created, the purposes it was to fulfil, are set forth, under the form of answers to objections, in five letters (61–65), all by Alexander Hamilton, in the Federalist. ¹ These aims were the five following:

      To conciliate the spirit of independence in the several states, by giving each, however small, equal representation with every other, however large, in one branch of the national government;

      To create a council qualified, by its moderate size and the experience of its members, to advise and check the president in the exercise of his powers of appointing to office and concluding treaties;

      To restrain the impetuosity and fickleness of the popular House, and so guard against the effects of gusts of passion or sudden changes of opinion in the people;

      To provide a body of men whose greater experience, longer term of membership, and comparative independence of popular election, would make them an element of stability in the government of the nation, enabling it to maintain its character in the eyes of foreign states, and to preserve a continuity of policy at home and abroad;

      To establish a court proper for the trial of impeachments, a remedy deemed necessary to prevent abuse of power by the executive.

      All of these five objects have been more or less perfectly attained; and the Senate has acquired a position in the government which Hamilton scarcely ventured to hope for. In 1788 he wrote: “Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with the House of Representatives the affections and support of the entire body of the people themselves.”

      It may be doubted whether the Senate has excelled the House in attachment to the public good; but it has certainly shown greater capacity for managing the public business, and has won the respect, if not the affections, of the people, by its sustained intellectual power.

      The Federalist did not think it necessary to state, nor have Americans generally realized, that this masterpiece of the Constitution-makers was in fact a happy accident. No one in the Convention of 1787 set out with the idea of such a Senate as ultimately emerged from their deliberations. It grew up under the hands of the Convention, as the result of the necessity for reconciling the conflicting demands of the large and the small states. The concession of equal representation in the Senate induced the small states to accept the principle of representation according to population in the House of Representatives; and a series of compromises between the advocates of popular power, as embodied in the House, and those of monarchical power, as embodied in the president, led to the allotment of attributes and functions which have made the Senate what it is. When the work which they had almost unconsciously perfected was finished, the leaders of the Convention perceived its excellence, and defended it by arguments in which we feel the note of sincere conviction. Yet the conception they formed of it differed from the reality which has been evolved. Although they had created it as a branch of the legislature, they thought of it as being first and foremost a body with executive functions. And this, at first, it was. The traditions of the old Congress of the Confederation, in which the delegates of the states voted by states, the still earlier traditions of the executive councils, which advised the governors of the colonies while still subject to the British Crown, clung about the Senate and affected the minds of the senators. It was a small body, originally of twenty-six, even in 1810 of thirty-four members only, a body not ill fitted for executive work. Its members, regarding themselves as a sort of congress of ambassadors from their respective states, were accustomed to refer for advice and instructions each to his state legislature. So late as 1828, a Senator after arguing strongly against a measure declared that he would nevertheless vote for it, because