I am disposed to think, however, that the decline in the character of the Presidents is not the cause, but only the accompanying manifestation, of the declining prestige of the presidential office. That high office has fallen from its first estate of dignity because its power has waned; and its power has waned because the power of Congress has become predominant. The early Presidents were, as I have said, men of such a stamp that they would under any circumstances have made their influence felt; but their opportunities were exceptional. What with quarreling and fighting with England, buying Louisiana and Florida, building dykes to keep out the flood of the French Revolution, and extricating the country from ceaseless broils with the South American Republics, the government was, as has been pointed out, constantly busy, during the first quarter century of its existence, with the adjustment of foreign relations; and with foreign relations, of course, the Presidents had everything to do, since theirs was the office of negotiation.
Moreover, as regards home policy also those times were not like ours. Congress was somewhat awkward in exercising its untried powers, and its machinery was new, and without that fine adjustment which has since made it perfect of its kind. Not having as yet learned the art of governing itself to the best advantage, and being without that facility of legislation which it afterwards acquired, the Legislature was glad to get guidance and suggestions of policy from the Executive.
But this state of things did not last long. Congress was very quick and apt in learning what it could do and in getting into thoroughly good trim to do it. It very early divided itself into standing committees which it equipped with very comprehensive and thorough-going privileges of legislative initiative and control, and set itself through these to administer the government. Congress is (to adopt Mr. Bagehot's description of Parliament) "nothing less than a big meeting of more or less idle people. In proportion as you give it power it will inquire into everything, settle everything, meddle in everything. In an ordinary despotism the powers of the despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part in dull business: he keeps the rest for the court, or the harem, or for society." But Congress "is a despot who has unlimited time,—who has unlimited vanity,—who has, or believes he has, unlimited comprehension,—whose pleasure is in action, whose life is work." Accordingly it has entered more and more into the details of administration, until it has virtually taken into its own hands all the substantial powers of government. It does not domineer over the President himself, but it makes the Secretaries its humble servants. Not that it would hesitate, upon occasion, to deal directly with the chief magistrate himself; but it has few calls to do so, because our latter-day Presidents live by proxy; they are the executive in theory, but the Secretaries are the executive in fact. At the very first session of Congress steps were taken towards parceling out executive work amongst several departments, according to a then sufficiently thorough division of labor; and if the President of that day was not able to direct administrative details, of course the President of to-day is infinitely less able to do so, and must content himself with such general supervision as he may find time to exercise. He is in all every-day concerns shielded by the responsibility of his subordinates.
It cannot be said that this change has raised the cabinet in dignity or power; it has only altered their relations to the scheme of government. The members of the President's cabinet have always been prominent in administration; and certainly the early cabinets were no less strong in political influence than are the cabinets of our own day; but they were then only the President's advisers, whereas they are now rather the President's colleagues. The President is now scarcely the executive; he is the head of the administration; he appoints the executive. Of course this is not a legal principle; it is only a fact. In legal theory the President can control every operation of every department of the executive branch of the government; but in fact it is not practicable for him to do so, and a limitation of fact is as potent as a prohibition of law.
But, though the heads of the executive departments are thus no longer simply the counselors of the President, having become in a very real sense members of the executive, their guiding power in the conduct of affairs, instead of advancing, has steadily diminished; because while they were being made integral parts of the machinery of administration, Congress was extending its own sphere of activity, was getting into the habit of investigating and managing every thing. The executive was losing and Congress gaining weight; and the station to which cabinets finally attained was a station of diminished and diminishing power. There is no distincter tendency in congressional history than the tendency to subject even the details of administration to the constant supervision, and all policy to the watchful intervention, of the Standing Committees.
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,