CHAPTER XI

THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY

THE Senate is not only a legislative but also an executive Chamber; in fact in its early days the executive functions seem to have been thought the more important; and Hamilton went so far as to speak of the national executive authority as divided between two branches, the President and the Senate. These executive functions are two, the power of approving treaties, and that of confirming nominations to office submitted by the President.

To what has already been said regarding the functions of the President and Senate as regards treaties (see above, Chapter VI.) I need only add that the Senate through its right of confirming or rejecting engagements with foreign powers, secures a general control over foreign policy. It is in the discretion of the President whether he will communicate current negotiations to it and take its advice upon them, or will say nothing till he lays a completed treaty before it. One or other course is from time to time followed, according to the nature of the case, or the degree of friendliness existing between the President and the majority of the Senate. But in general, the President's best policy is to keep the leaders of the senatorial majority, and in particular the committee on Foreign Relations, informed of the progress of any pending negotiation. He thus feels the pulse of the Senate, and foresees what kind of arrangement he can induce it to sanction, while at the same time a good understanding between himself and his coadjutors is promoted. It is well worth his while to keep the Senate in good humour, for, like other assemblies, it has a collective self-esteem which makes it seek to gain all the information and power it can draw in. The right of going into secret session enables the whole Senate to consider despatches communicated by the President; and the more important ones,

having first been submitted to the Foreign Relations committee, are thus occasionally discussed without the disadvantage of publicity. Of course no momentous secret can be long kept, even by the committee, according to the proverb in the Elder Edda"Tell one man thy secret, but not two; if three know, the world knows."

This control of foreign policy by the Senate goes far to meet that terrible difficulty which a democracy, or indeed any free government, finds in dealing with foreign Powers. If every step to be taken must be previously submitted to the governing assembly, the nation is forced to show its whole hand, and precious opportunities of winning an ally or striking a bargain may be lost. If on the other hand the executive is permitted to conduct negotiations in secret, there is always the risk, either that the governing assembly may disavow what has been done, a risk which makes foreign states legitimately suspicious and unwilling to negotiate, or that the nation may have to ratify, because it feels bound in honour by the act of its executive agents, arrangements which its judgment condemns. The frequent participation of the Senate in negotiations diminishes these difficulties, because it apprises the executive of what the judg ment of the ratifying body is likely to be, and it commits that body by advance. The necessity of ratification by the Senate in order to give effect to a treaty, enables the country to retire from a doubtful bargain, though in a way which other Powers find disagreeable, as England did when the Senate rejected the Reverdy Johnson treaty of 1869. European statesmen may ask what becomes under such a system of the boldness and promptitude so often needed to effect a successful coup in foreign policy, or how a consistent attitude can be maintained if there is in the chairman of the Foreign Relations committee a sort of second foreign secretary. The answer is that America is not Europe. The problems which the Foreign Office of the United States has to deal with are far fewer and usually far simpler than those of the Old World. The republic keeps consistently to her own side of the Atlantic; nor is it the least of the merits of the system of senatorial control that it has tended, by discouraging the executive from schemes which may prove resultless, to diminish the taste for foreign enterprises, and to save the country from being entangled with alliances, protectorates, responsibilities of all sorts beyond its own frontiers. It is the easier for the Americans to

practise this reserve because they need no alliances, standing unassailable in their own hemisphere. The circumstances of England, with her powerful European neighbours, her Indian Empire, and her colonies scattered over the world, are widely different. Yet different as the circumstances of England are, the day may come when in England the question of limiting the at present all but unlimited discretion of the executive in foreign affairs will have to be dealt with; and the example of the American Senate will then deserve and receive careful study. Yet it must be remembered that many of the most important acts done in the sphere of foreign relations are purely executive acts (as for instance, the movement of troops and ships) which the Senate cannot control.

The Senate may and occasionally does amend a treaty, and return it amended to the President. There is nothing to prevent it from proposing a draft treaty to him, or asking him to prepare one, but this is not the practice. For ratification a vote of twothirds of the senators present is required. This gives great power to a vexatious minority, and increases the danger, evidenced by several incidents in the history of the Union, that the Senate or a faction in it may deal with foreign policy in a narrow, sectional, electioneering spirit. When the interest of any group of States is, or is supposed to be, opposed to the making of a given treaty, that treaty may be defeated by the senators from those States. They tell the other senators of their own party that the prospects of the party in the district of the country whence they come will be improved if the treaty is rejected and a bold aggressive line is taken in further negotiations. Some of these senators, who care more for the party than for justice or the common interests of the country, rally to the cry, and all the more gladly if their party is opposed to the President in power, because in defeating the treaty they humiliate his administration. Supposing their party to command a majority, the treaty is probably rejected, and the settlement of the question at issue perhaps indefinitely postponed. It may be thought

1 Parliament may of course interfere, and sometimes does interfere; but the parliamentary majority which supports the ministry of the day usually (and probably wisely) forbears to press the Foreign Office for information which it is declared to be undesirable to furnish.

In 1886 a resolution was all but carried in the House of Commons, desiring all treaties to be laid before Parliament for its approval before being finally concluded.

that the party acting so vexatiously will suffer in public esteem. This happens in extreme cases; but the public are usually so indifferent to foreign affairs, and so little skilled in judging of them, that offences of the kind I have described may be committed with practical impunity. It is harder to fix responsibility on a body of senators than on the executive; and whereas the executive has usually an interest in settling diplomatic troubles, whose continuance it finds annoying, the Senate has no such interest, but is willing to keep them open so long as there is a prospect of sucking some political advantage out of them. habit of using foreign policy for electioneering purposes is not confined to America. We have seen it in England, we have seen it in France, we have seen it 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

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. Quite recently a patronage dispute arose between President Cleveland and the Republican majority in the Senate. They required the President to send to the Senate along with each nomination to a place vacant by the removal of the previous holder, not only a statement of reasons for the removal, but all the papers in the possession of the executive relating to the matter. The President seems to have been willing to state his reasons, while denying the legal right of the Senate to require them, but he refused to transmit such documents as he deemed confidential. The Senate complained and passed resolutions, but had of course no power to compel the President's compliance. It was suggested by some senators that the true remedy for improper removals from partisan motives would be that the Senate should discuss nominations publicly, instead of, as now, in secret executive session. This would be the best way of putting the President in the wrong, if he made bad nominations, and of putting the Senate in the right if it refused to confirm nominations where no adequate ground for the removal of the prior incumbent had been shown. Public discussion certainly seems the plan most conformable to a democratic government;

and a European observer is surprised that American opinion allows such important business to be transacted with closed doors.

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 is 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.

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 V. It is applicable to other officials, including Federal judges. Besides President Johnson, six persons in all have been impeached, viz. :—

Four Federal judges, of whom two were acquitted, and two