CHAPTER X

THE SENATE

THE National Legislature of the United States, called Congress, consists of two bodies, sufficiently dissimilar in composition, powers, and character to require a separate description. Their respective functions bear some resemblance to those of the two Houses of the English Parliament, which had before 1787 suggested the creation of a double-chambered legislature in all but three of the original thirteen States of the Confederation. Yet the differences between the Senate and the British House of Lords, and in a less degree between the House of Representatives and the British House of Commons, are so considerable that the English reader must be cautioned against applying his English standards to the examination of the American system.1

The Senate consists of two persons from each State, who must be inhabitants of that State, and at least thirty years of age. They are elected by the legislature of their State for six years, and are re-eligible. One-third retire every two years, so that the whole body is renewed in a period of six years, the old members being thus at any given moment twice as numerous as the new members elected within the last two years. As there are now forty-two States, the number of senators, originally twenty-six, is now eighty-four. This great and unforeseen augmentation must be borne in mind when considering the purposes for which the Senate was created, for some of which a small body is fitter than a large one. As there remain only five Territories which can be formed into States, the number of

1 "How many bishops have you got in your Upper House?" is the question which an eminent Englishmen is reported to have asked soon after his arrival in America.

2 See note 1 to page 43.

3 I reckon in neither the Indian territory, which lies west of Arkansas, nor Alaska, because these districts are not likely within an assignable time to contain a civilized population such as would entitle them to be formed into States.

senators will not (unless, indeed, existing States are divided, or more than one State created out of some of the Territories) rise beyond ninety-four. This is of course much below the present nominal strength of the English House of Lords 1 (about 560), and below that of the French Senate (300), and the Prussian Herrenhaus (432). No senator can hold any office under the United States. The Vice-President of the Union is ex officio president of the Senate, but has no vote, except a casting vote when the numbers are equally divided. Failing him (if, for instance, he dies, or falls sick, or succeeds to the presidency), the Senate chooses one of its number to be president pro tempore. His authority in questions of order is very limited, the decision of such questions being held to belong to the Senate itself.2

The functions of the Senate fall into three classes-legislative, executive, and judicial. Its legislative function is to pass, along with the House of Representatives, bills which become Acts of Congress on the assent of the President, or even without his consent if passed a second time by a two-thirds majority of each House, after he has returned them for reconsideration. Its executive functions are:-(a) To approve or disapprove the President's nominations of Federal officers, including judges, ministers of state, and ambassadors. (b) To approve, by a majority of two-thirds of those present, of treaties made by the President-i.e. if less than two-thirds approve, the treaty falls to the ground. Its judicial function is to sit as a court for the trial of impeachments preferred by the House of Representatives.

The most conspicuous, and what was at one time deemed the most important feature of the Senate, is that it represents the several States of the Union as separate commonwealths, and is thus an essential part of the Federal scheme. Every State, be it as great as New York or as small as Delaware, sends two

1 At the accession of George III. the House of Lords numbered only 174 members.

2 The powers of the Lord Chancellor as Speaker of the English House of Lords are much narrower than those of the Speaker in the House of Commons. It is worth notice that as the Vice-President is not chosen by the Senate, but by the people, and is not strictly speaking a member of the Senate, so the Lord Chancellor is not chosen to preside by the House of Lords, but by the sovereign, and is not necessarily a peer. This, however, seems to be merely a coincidence, and not the result of a wish to imitate England.

3 To avoid prolixity, I do not give in the text all the details of the constitutional powers and duties of the Houses of Congress: these will be found in the text of the Constitution printed in the Appendix.

senators, no more and no less.1 This arrangement was long resisted by the delegates of the larger States in the Convention of 1787, and ultimately adopted because nothing less would reassure the smaller States, who feared to be overborne by the larger. It is now the provision of the Constitution most difficult to change, for "no State can be deprived of its equal suffrage in the Senate without its consent," a consent most unlikely to be given. There has never, in point of fact, been any division of interests or consequent contests between the great States and the small ones. But the provision for the equal representation of all States had the important result of making the slave-holding party, during the thirty years which preceded the Civil War, eager to extend the area of slavery in order that by creating new Slave States they might maintain at least an equality in the Senate, and thereby prevent any legislation hostile to slavery.

The plan of giving representatives to the States as commonwealths has had several useful results. It has provided a basis for the Senate unlike that on which the other House of Congress is chosen. Every nation which has formed a legislature with two houses has experienced the difficulty of devising methods of choice sufficiently different to give a distinct character to each house. Italy has a Senate composed of persons nominated by the Crown. The Prussian House of Lords is partly nominated, partly hereditary, partly elective. The Spanish senators are partly hereditary, partly official, partly elective. In the Germanic Empire, the Federal Council consists of delegates of the several kingdoms and principalities. France appoints her senators by indirect election. In England the members of the House of Lords now sit by hereditary right; and those who propose to reconstruct that ancient body are at their wits' end to discover some plan by which it may be strengthened, and made practically

1 New York is twice as large as Scotland, and as populous as Scotland, Northumberland, and Durham taken together. Delaware is a little smaller than Norfolk, with about the population of Bedfordshire. It is therefore as if Bedfordshire had in one House of a British legislature as much weight as all Scotland together with Northumberland and Durham, a state of things not very conformable to democratic theory. Nevada has now a population about equal to that of Caithness (40,000), but is as powerful in the Senate as New York. This State, which consists of burnt-out mining camps, is really a sort of rotten borough for and controlled by the great "silver men."

2 Hamilton perceived that this would be so; see his remarks in the Constitutional Convention of New York in 1788.-Elliot's Debates, p. 213.

useful, without such a direct election as that by which members are chosen to the House of Commons.1 The American plan, which is older than any of those in use on the European continent, is also better, because it is not only simple, but natural, i.e. grounded on and consonant with the political conditions of America. It produces a body which is both strong in itself and different in its collective character from the more popular house.

It also constitutes, as Hamilton anticipated, a link between the State Governments and the National Government. It is a part of the latter, but its members derive their title to sit in it from their choice by State legislatures. In one respect this connection is no unmixed benefit, for it has helped to make the national parties powerful, and their strife intense, in these lastnamed bodies. Every vote in the Senate is so important to the great parties that they are forced to struggle for ascendency in each of the State legislatures by whom the senators are elected. The method of choice in these bodies was formerly left to be fixed by the laws of each State, but as this gave rise to much uncertainty and intrigue, a Federal statute was passed in 1866 providing that each House of a State legislature shall first vote separately for the election of a Federal senator, and that if the choice of both Houses shall not fall on the same person, both Houses in joint meeting shall proceed to a joint vote, a majority of each House being present. Even under this arrangement, a senatorial election often leads to long and bitter struggles; the minority endeavouring to prevent a choice, and so keep the seat vacant. Quite recently in Illinois, Indiana, and New Jersey, the legislatures fought for months together over the election of a

senator.

The method of choosing the Senate by indirect election has excited the admiration of foreign critics, who have found in it a sole and sufficient cause of the excellence of the Senate as a legislative and executive authority. I shall presently inquire whether the critics are right. Meantime it is worth observing that the election of senators has in substance almost ceased to be indirect. They are still nominally chosen, as under the letter of the Constitution they must be chosen, by the State legislatures.

1 Under a recent statute, two persons may be appointed by the Crown to sit in the House of Lords as Lords of Appeal, with the dignity of baron for life. The Scotch and Irish peers enjoy hereditary peerages, but are elected to sit in the House of Lords, the latter for life, the former for each parliament.

VOL. I

H

The State legislature means, of course, the party for the time dominant, which holds a party meeting (caucus) and decides on the candidate, who is thereupon elected, the party going solid for whomsoever the majority has approved. Now the determination of the caucus has very often been arranged beforehand by the party-managers. Sometimes when a vacancy in a senatorship approaches, the aspirants for it put themselves before the people of the State. Their names are discussed at the State party convention held for the nomination of party candidates for State offices, and a vote in that convention decides who shall be the party nominee for the senatorship. This vote binds the party within and without the State legislature, and at the election of members for the State legislature, which immediately precedes the occurrence of the senatorial vacancy, candidates for seats in that legislature are frequently expected to declare for which aspirant to the senatorship they will, if elected, give their votes.1 Sometimes the aspirant, who is of course a leading State politician, goes on the stump in the interest of those candidates for the legislature who are prepared to support him, and urges his own claims while urging theirs. I do not say that things have, in most states, gone so far as to make the choice by the legislature of some particular person as senator a foregone conclusion when the legislature has been elected. Circumstances may change; compromises may be necessary; still, it is now generally true that a greatly reduced freedom of choice remains with the legislature. The people, or rather those wirepullers who manage the people and act in their name, have practically settled the matter at the election of the State. legislature. So hard is it to make any scheme of indirect election work according to its original design; so hard is it to keep even a written and rigid constitution from bending and warping under the actual forces of politics.3

1 The Constitution of the State of Nebraska (1875) allows the electors in voting for members of the State legislature to "express by ballot their preference for some person for the office of U.S. senator. The votes cast for such candidates shall be canvassed and returned in the same manner as for State officers." This is an attempt to evade and by a side wind defeat the provision of the Federal Constitution which vests the choice in the legislature.

2 This happened recently in Nebraska, and seems to be not uncommon. The famous struggle of Mr. Douglas and Mr. Lincoln for the Illinois senatorship in 1858 was conducted in a stump campaign.

3 A proposal recently made to amend the Federal Constitution by taking the election of senators away from the legislatures in order to vest it in the people of