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ing the fear of Hamilton that "sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate." But the power of the President to appoint is a power exercised only by the permission of the Senate. The President is not a free agent in the exercise of the appointing power. Unlike the king of England he does not deal with one man, the responsible head of the majority party in Commons. The President must deal with ninety Senators. It would be "discourteous" to a Senator for him to appoint a man who is personally offensive to that particular Senator, quite irrespective of the reasons that animate that Senator. Virtually the Senate has now become the appointing power, although to save the shadow of the Constitution appointments are still made by the President.
Hamilton explained why the convention deemed it wise that treaties should be ratified by the Senate. The President was not to be given that absolute authority possessed by a sovereign in the negotiation of treaties that would enable the President to betray his country if he were venal, but at the same time he was to be given such latitude as would insure "that perfect secrecy and immediate despatch" which are sometimes requisite." As showing the relation that Hamilton conceived would exist between the President and the Senate in the negotiation and ratification of treaties he said: "Should any circumstances occur which require the advice and consent of the Senate he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other."
Once again we see how the spirit of the Constitution has been perverted by the assumption of the Senate. The President negotiates a treaty; but that treaty the Senate regards in the same light as it does an appropriation bill passed by the House. It is merely a scheme, a "project," an outline ex
pressing the views of the negotiators, which the Senate will accept or reject at its pleasure, and of recent years the Senate has shown what amounts almost to a mania to amend treaties; and unless the President accepts the amendment a treaty that may have been the work of months of careful and intricate negotiations is wrecked. President McKinley, in his great desire to remain on harmonious terms with the Senate, permitted that body a further and unconstitutional grant of authority. By the terms of the treaty with Great Britain relating to the tenure and disposition of real and personal property, possessions of the United States beyond the seas were to be permitted to adhere to the convention upon notice "being given by the representative of the United States at London, by direction of the President." This the Senate amended to read "by direction of the treaty-making power of the United States," which gives to the Senate the right to direct the American ambassador in London, for which no warrant can be found in the Constitution.
Jackson, jealous of his own prerogatives and the encroachments of the Senate, used this admonitory language in defining the line of division between the executive and legislative branches of the government. "The resolution of the Senate presupposes a right in that body to interfere in this exercise of executive power. If the principle be once admitted the constitutional independence of the Executive Department would be as effectually destroyed and its powers as effectually transferred to the Senate as if that end had been accomplished by an amendment to the Constitution.'
The Senate now assumes the right not only to amend treaties, so that by the power of amendment it exercises the same control over the conduct of foreign relations as it does over the national purse, but also to be consulted in advance of and during the progress of treaty negotiations; and if it is not consulted in advance it resents the implied imputation of presidential distrust. That "perfect secrecy and immediate despatch," which Hamilton deemed requisite, are of course
impossible if the Senate must be consulted in advance; and even after the unofficial advice of the Senate has been taken, Senators are not precluded from reversing their judgment. The late Secretary Hay complained bitterly of certain Senators opposing a treaty in the Senate the terms of which they had acquiesced in while that treaty was under negotiation. More than once I have heard Mr. Hay say that in dealing with foreign governments he felt as if he had one hand tied behind his back and a ball and chain about his leg, as he was always hampered by the Senate.
38. A DEFENSE OF THE SENATE.
Senator Henry C. Lodge is one of the most outspoken defenders of the powers which the Senate has developed in recent years. He thus explains the attitude of the Senate with regard to its constitutional rights and prerogatives: .
"When the President of the United States shall meet the Senate in the Senate Chamber for the consideration of executive business, he shall have a seat on the right of the chair."
This is the rule at the present time, and although it is never put into practical operation it has importance not merely as embodying an unbroken tradition but as a formal recognition of certain constitutional principles of very great moment. By this rule are recognized the right of the President to consult personally with the Senate, the position of the Senators as the President's only constitutional advisers and the equality of the Senate in the conduct of all executive business in which, under the Constitution, they are entitled to share. The right of the President personally to consult the Senate as a body involves also the correlative right of the Senate, in the language of the Constitution, to advise the President. To the Senate alone is given this right to advise the Executive. The members of the Cabinet are often loosely spoken of as the constitutional advisers of the President. They are, as a matter of fact, nothing of the sort. They are not created by the Constitution, but by the laws which the
Constitution authorizes Congress to pass in order to carry out its provisions. The Constitution contemplates the establishment of executive departments, and says that the President may require the opinion in writing of the heads of such departments, but these departments can only exist by the pleasure of Congress and the President is not bound to consult their chiefs. A story is told of Lincoln's submitting a proposition which he favored to his Cabinet. All were against it; "Seven nays; one yea," said the President; "the ayes have it, and it is so ordered." Whether apocryphal or not the anecdote illustrates the distinction between the constitutional Senate and the statutory Cabinet. An adverse majority in the Senate cannot be overcome in that way, for the Constitution gives the Senate power, and the law alone creates the Cabinet, whose members represent in the last analysis simply the policy and will of the Executive. The equality of the Senate in executive business-the last point recognized by the rule is shown by the care taken from the beginning to make it perfectly clear that the President is neither to preside over nor to share in the discussions of the Senate, but is to deal with them as an organized body under the guidance of their own presiding officer.
Such being the theory of the Constitution, never abandoned since the beginning, the manner in which it has been worked out in practice shows at once the position of the Senate today. Since August, 1789, the President has never consulted or sat with the Senate in person to consider executive business, either in relation to nominations or to treaties. But while the inconvenience of personal consultation thus early was made apparent it became at once equally obvious that to hold no consultation with a body of constitutional advisers about nominations and treaties upon which they had the power to put an absolute veto would be at once dangerous and absurd.
In 1789 Washington sent in the nomination of Benjamin Fishburn for the place of Naval Officer at the port of Savannah. He was rejected by the Senate. Fishburn had been an old soldier, and was well known to Washington, who was very
much annoyed by his rejection. When he sent in another name for the same place he transmitted a message to the Senate in which he said: "Whatever may have been the reasons which induced your dissent, I am persuaded that they were such as you deemed sufficient. Permit me to submit to your consideration, whether, on occasions where the propriety of nominations appears questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you. Probably my reasons for nominating Mr. Fishburn may. tend to show that such a mode of proceeding, in such cases, might be useful. I will therefore detail them." He then went on to give an account of Colonel Fishburn and the reasons which had led to his nomination. The motives which influenced the Senate in the rejection of Fishburn do not appear, but the passage which has been quoted from Washington's special message demonstrates not only his belief in the need of consultation with the Senate about nominations, but the absolute necessity for it in order to prevent constant friction between the Senate and the Executive. This case undoubtedly led, therefore, to the practice which has been continued to the present time of the President consulting with Senators in regard to appointments. As the Senate, after it has confirmed a nomination, becomes equally responsible with the President for the appointment, it is obvious that the right of consultation under the Constitution, which has already been defined, must be exercised in some way. Thus it came about that informal consultations with individual Senators took the place of the cumbrous and inconvenient method of consulting the Senate as a body, and in this way the intent of the Constitution has been carried out. Nothing, therefore, is more inept than to criticise a President because he consults the Senators from a State in regard to an appointment in that State or from it. The Senators are his constitutional advisers. In some way he must consult them, and it is impossible that any President should be able to know enough about