I am inclined to think, therefore, that the enlarged powers of Congress are the fruits rather of an immensely increased efficiency of organization, and of the redoubled activity consequent upon the facility of action secured by such organization, than of any definite and persistent scheme of conscious usurpation. It is safe to say that Congress always had the desire to have a hand in every affair of federal government; but it was only by degrees that it found means and opportunity to gratify that desire, and its activity, extending its bounds wherever perfected processes of congressional work offered favoring prospects, has been enlarged so naturally and so silently that it has almost always seemed of normal extent, and has never, except perhaps during one or two brief periods of extraordinary political disturbance, appeared to reach much beyond its acknowledged constitutional sphere.
It is only in the exercise of those functions of public and formal consultation and coöperation with the President which are the peculiar offices of the Senate, that the power of Congress has made itself offensive to popular conceptions of constitutional propriety, because it is only in the exercise of such functions that Congress is compelled to be overt and demonstrative in its claims of over-lordship. The House of Representatives has made very few noisy demonstrations of its usurped right of ascendency; not because it was diffident or unambitious, but because it could maintain and extend its prerogatives quite as satisfactorily without noise; whereas the aggressive policy of the Senate has, in the acts of its "executive sessions," necessarily been overt, in spite of the closing of the doors, because when acting as the President's council in the ratification of treaties and in appointments to office its competition for power has been more formally and directly a contest with the executive than were those really more significant legislative acts by which, in conjunction with the House, it has habitually forced the heads of the executive departments to observe the will of Congress at every important turn of policy. Hence it is that to the superficial view it appears that only the Senate has been outrageous in its encroachments upon executive privilege. It is not often easy to see the true constitutional bearing of strictly legislative action; but it is patent even to the least observant that in the matter of appointments to office, for instance, senators have often outrun their legal right to give or withhold their assent to appointments, by insisting upon being first consulted concerning nominations as well, and have thus made their constitutional assent to appointments dependent upon an unconstitutional control of nominations.
This particular usurpation has been put upon a very solid basis of law by that Tenure-of-Office Act, which took away from President Johnson, in an hour of party heat and passion, that independent power of removal from office with which the Constitution had invested him, but which he had used in a way that exasperated a Senate not of his own way of thinking. But though this teasing power of the Senate's in the matter of the federal patronage is repugnant enough to the original theory of the Constitution, it is likely to be quite nullified by that policy of civil-service reform which has gained so firm, and mayhap so lasting, a footing in our national legislation; and in no event would the control of the patronage by the Senate have unbalanced the federal system more seriously than it may some day be unbalanced by an irresponsible exertion of that body's semi-executive powers in regard to the foreign policy of the government. More than one passage in the history of our foreign relations illustrates the danger. During the single congressional session of 1868-9, for example, the treaty-marring power of the Senate was exerted in a way that made the comparative weakness of the executive very conspicuous, and was ominous of very serious results. It showed the executive in the right, but feeble and irresolute; the Senate masterful, though in the wrong. Denmark had been asked to part with the island of St. Thomas to the United States, and had at first refused all terms, not only because she cared little for the price, but also and principally because such a sale as that proposed was opposed to the established policy of the powers of Western Europe, in whose favor Denmark wished to stand; but finally, by stress of persistent and importunate negotiation, she had been induced to yield; a treaty had been signed and sent to the Senate; the people of St. Thomas had signified their consent to the cession by a formal vote; and the island had been actually transferred to an authorized agent of our government, upon the faith, on the part of the Danish ministers, that our representatives would not have trifled with them by entering upon an important business transaction which they were not assured of their ability to conclude. But the Senate let the treaty lie neglected in its committee-room; the limit of time agreed upon for confirmation passed; the Danish government, at last bent upon escaping the ridiculous humiliation that would follow a failure of the business at that stage, extended the time and even sent over one of its most eminent ministers of state to urge the negotiation by all dignified means; but the Senate cared nothing for Danish feelings and could afford, it thought, to despise President Grant and Mr. Fish, and at the next session rejected the treaty, and left the Danes to repossess themselves of the island, which we had concluded not to buy after all.
It was during this same session of 1868-9 that the Senate teased the executive by throwing every possible obstacle in the way of the confirmation of the much more important treaty with Great Britain relative to the Alabama claims, nearly marring for good and all one of the most satisfactory successes of our recent foreign policy;18 but it is not necessary to dwell at length upon these well-known incidents of our later history, inasmuch as these are only two of innumerable instances which make it safe to say that from whatever point we view the relations of the executive and the legislature, it is evident that the power of the latter has steadily increased at the expense of the prerogatives of the former, and that the degree in which the one of these great branches of government is balanced against the other is a very insignificant degree indeed. For in the exercise of his power of veto, which is of course, beyond all comparison, his most formidable prerogative, the President acts not as the executive but as a third branch of the legislature. As Oliver Ellsworth said, at the first session of the Senate, the President is, as regards the passage of bills, but a part of Congress; and he can be an efficient, imperative member of the legislative system only in quiet times, when parties are pretty evenly balanced, and there are no indomitable majorities to tread obnoxious vetoes under foot.
Even this rapid outline sketch of the two pictures, of the theory and of the actual practices of the Constitution, has been sufficient, therefore, to show the most marked points of difference between the two, and to justify that careful study of congressional government, as the real government of the Union, which I am about to undertake. The balances of the Constitution are for the most part only ideal. For all practical purposes the national government is supreme over the state governments, and Congress predominant over its so-called coördinate branches. Whereas Congress at first overshadowed neither President nor federal judiciary, it now on occasion rules both with easy mastery and with a high hand; and whereas each State once guarded its sovereign prerogatives with jealous pride, and able men not a few preferred political advancement under the governments of the great commonwealths to office under the new federal Constitution, seats in state legislatures are now no longer coveted except as possible approaches to seats in Congress; and even governors of States seek election to the national Senate as a promotion, a reward for the humbler services they have rendered their local governments.
What makes it the more important to understand the present mechanism of national government, and to study the methods of congressional rule in a light unclouded by theory, is that there is plain evidence that the expansion of federal power is to continue, and that there exists, consequently, an evident necessity that it should be known just what to do and how to do it, when the time comes for public opinion to take control of the forces which are changing the character of our Constitution. There are voices in the air which cannot be misunderstood. The times seem to favor a centralization of governmental functions such as could not have suggested itself as a possibility to the framers of the Constitution. Since they gave their work to the world the whole face of that world has changed. The Constitution