Part 18

This doubt as to the exact _status_ in the system of the chief ministers of state is a most striking commentary on the system itself. Its complete self is logical and simple. But its complete self exists only in theory. Its real self offers a surprise and presents a mystery at every change of view. The practical observer who seeks for facts and actual conditions of organization is often sorely puzzled to come at the real methods of government. Pitfalls await him on every side. If constitutional lawyers of strait-laced consciences filled Congress and officered the departments, every clause of the Constitution would be accorded a formal obedience, and it would be as easy to know beforehand just what the government will be like inside to-morrow as it is now to know what it was like outside yesterday. But neither the knowledge nor the consciences of politicians keep them very close to the Constitution; and it is with politicians that we have to deal nowadays in studying the government. Every government is largely what the men are who constitute it. If the character or opinions of legislators and administrators change from time to time, the nature of the government changes with them; and as both their characters and their opinions do change very often it is very hard to make a picture of the government which can be said to have been perfectly faithful yesterday, and can be confidently expected to be exactly accurate to-morrow. Add to these embarrassments, which may be called the embarrassments of human nature, other embarrassments such as our system affords, the embarrassments of subtle legal distinctions, a fine theoretical plan made in delicate hair-lines, requirements of law which can hardly be met and can easily and naturally be evaded or disregarded, and you have in full the conception of the difficulties which attend a practical exposition of the real facts of federal administration. It is not impossible to point out what the Executive was intended to be, what it has sometimes been, or what it might be; nor is it forbidden the diligent to discover the main conditions which mould it to the forms of congressional supremacy; but more than this is not to be expected.

VI.

CONCLUSION.

Political philosophy must analyze political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie.--BAGEHOT.

Congress always makes what haste it can to legislate. It is the prime object of its rules to expedite law-making. Its customs are fruits of its characteristic diligence in enactment. Be the matters small or great, frivolous or grave, which busy it, its aim is to have laws always a-making. Its temper is strenuously legislative. That it cannot regulate all the questions to which its attention is weekly invited is its misfortune, not its fault; is due to the human limitation of its faculties, not to any narrow circumscription of its desires. If its committee machinery is inadequate to the task of bringing to action more than one out of every hundred of the bills introduced, it is not because the quick clearance of the docket is not the motive of its organic life. If legislation, therefore, were the only or the chief object for which it should live, it would not be possible to withhold admiration from those clever hurrying rules and those inexorable customs which seek to facilitate it. Nothing but a doubt as to whether or not Congress should confine itself to law-making can challenge with a question the utility of its organization as a facile statute-devising machine.

The political philosopher of these days of self-government has, however, something more than a doubt with which to gainsay the usefulness of a sovereign representative body which confines itself to legislation to the exclusion of all other functions. Buckle declared, indeed, that the chief use and value of legislation nowadays lay in its opportunity and power to remedy the mistakes of the legislation of the past; that it was beneficent only when it carried healing in its wings; that repeal was more blessed than enactment. And it is certainly true that the greater part of the labor of legislation consists in carrying the loads recklessly or bravely shouldered in times gone by, when the animal which is now a bull was only a calf, and in completing, if they may be completed, the tasks once undertaken in the shape of unambitious schemes which at the outset looked innocent enough. Having got his foot into it, the legislator finds it difficult, if not impossible, to get it out again. "The modern industrial organization, including banks, corporations, joint-stock companies, financial devices, national debts, paper currency, national systems of taxation, is largely the creation of legislation (not in its historical origin, but in the mode of its existence and in its authority), and is largely regulated by legislation. Capital is the breath of life to this organization, and every day, as the organization becomes more complex and delicate, the folly of assailing capital or credit becomes greater. At the same time it is evident that the task of the legislator to embrace in his view the whole system, to adjust his rules so that the play of the civil institutions shall not alter the play of the economic forces, requires more training and more acumen. Furthermore, the greater the complication and delicacy of the industrial system, the greater the chances for cupidity when backed by craft, and the task of the legislator to meet and defeat the attempts of this cupidity is one of constantly increasing difficulty."[57]

Legislation unquestionably generates legislation. Every statute may be said to have a long lineage of statutes behind it; and whether that lineage be honorable or of ill repute is as much a question as to each individual statute as it can be with regard to the ancestry of each individual legislator. Every statute in its turn has a numerous progeny, and only time and opportunity can decide whether its offspring will bring it honor or shame. Once begin the dance of legislation, and you must struggle through its mazes as best you can to its breathless end,--if any end there be.

It is not surprising, therefore, that the enacting, revising, tinkering, repealing of laws should engross the attention and engage the entire energy of such a body as Congress. It is, however, easy to see how it might be better employed; or, at least, how it might add others to this overshadowing function, to the infinite advantage of the government. Quite as important as legislation is vigilant oversight of administration; and even more important than legislation is the instruction and guidance in political affairs which the people might receive from a body which kept all national concerns suffused in a broad daylight of discussion. There is no similar legislature in existence which is so shut up to the one business of law-making as is our Congress. As I have said, it in a way superintends administration by the exercise of semi-judicial powers of investigation, whose limitations and insufficiency are manifest. But other national legislatures command administration and verify their name of "parliaments" by talking official acts into notoriety. Our extra-constitutional party conventions, short-lived and poor in power as they are, constitute our only machinery for that sort of control of the executive which consists in the award of personal rewards and punishments. This is the cardinal fact which differentiates Congress from the Chamber of Deputies and from Parliament, and which puts it beyond the reach of those eminently useful functions whose exercise would so raise it in usefulness and in dignity.

An effective representative body, gifted with the power to rule, ought, it would seem, not only to speak the will of the nation, which Congress does, but also to lead it to its conclusions, to utter the voice of its opinions, and to serve as its eyes in superintending all matters of government,--which Congress does not do. The discussions which take place in Congress are aimed at random. They now and again strike rather sharply the tender spots in this, that, or the other measure; but, as I have said, no two measures consciously join in purpose or agree in character, and so debate must wander as widely as the subjects of debate. Since there is little coherency about the legislation agreed upon, there can be little coherency about the debates. There is no one policy to be attacked or defended, but only a score or two of separate bills. To attend to such discussions is uninteresting; to be instructed by them is impossible. There is some scandal and discomfort, but infinite advantage, in having every affair of administration subjected to the test of constant examination on the part of the assembly which represents the nation. The chief use of such inquisition is, not the direction of those affairs in a way with which the country will be satisfied (though that itself is of course all-important), but the enlightenment of the people, which is always its sure consequence. Very few men are unequal to a danger which they see and understand; all men quail before a threatening which is dark and unintelligible, and suspect what is done behind a screen. If the people could have, through Congress, daily knowledge of all the more important transactions of the governmental offices, an insight into all that now seems withheld and private, their confidence in the executive, now so often shaken, would, I think, be very soon established. Because dishonesty can lurk under the privacies now vouchsafed our administrative agents, much that is upright and pure suffers unjust suspicion. Discoveries of guilt in a bureau cloud with doubts the trustworthiness of a department. As nothing is open enough for the quick and easy detection of peculation or fraud, so nothing is open enough for the due vindication and acknowledgment of honesty. The isolation and privacy which shield the one from discovery cheat the other of reward.

Inquisitiveness is never so forward, enterprising, and irrepressible as in a popular assembly which is given leave to ask questions and is afforded ready and abundant means of getting its questions answered. No cross-examination is more searching than that to which a minister of the Crown is subjected by the all-curious Commons. "Sir Robert Peel once asked to have a number of questions carefully written down which they asked him one day in succession in the House of Commons. They seemed a list of everything that could occur in the British empire or to the brain of a member of parliament."[58] If one considered only the wear and tear upon ministers of state, which the plague of constant interrogation must inflict, he could wish that their lives, if useful, might be spared this blight of unending explanation; but no one can overestimate the immense advantage of a facility so unlimited for knowing all that is going on in the places where authority lives. The conscience of every member of the representative body is at the service of the nation. All that he feels bound to know he can find out; and what he finds out goes to the ears of the country. The question is his, the answer the nation's. And the inquisitiveness of such bodies as Congress is the best conceivable source of information. Congress is the only body which has the proper motive for inquiry, and it is the only body which has the power to act effectively upon the knowledge which its inquiries secure. The Press is merely curious or merely partisan. The people are scattered and unorganized. But Congress is, as it were, the corporate people, the mouthpiece of its will. It is a sovereign delegation which could ask questions with dignity, because with authority and with power to act.

Congress is fast becoming the governing body of the nation, and yet the only power which it possesses in perfection is the power which is but a part of government, the power of legislation. Legislation is but the oil of government. It is that which lubricates its channels and speeds its wheels; that which lessens the friction and so eases the movement. Or perhaps I shall be admitted to have hit upon a closer and apter analogy if I say that legislation is like a foreman set over the forces of government. It issues the orders which others obey. It directs, it admonishes, but it does not do the actual heavy work of governing. A good foreman does, it is true, himself take a hand in the work which he guides; and so I suppose our legislation must be likened to a poor foreman, because it stands altogether apart from that work which it is set to see well done. Members of Congress ought not to be censured too severely, however, when they fail to check evil courses on the part of the executive. They have been denied the means of doing so promptly and with effect. Whatever intention may have controlled the compromises of constitution-making in 1787, their result was to give us, not government by discussion, which is the only tolerable sort of government for a people which tries to do its own governing, but only _legislation_ by discussion, which is no more than a small part of government by discussion. What is quite as indispensable as the debate of problems of legislation is the debate of all matters of administration. It is even more important to know how the house is being built than to know how the plans of the architect were conceived and how his specifications were calculated. It is better to have skillful work--stout walls, reliable arches, unbending rafters, and windows sure to "expel the winter's flaw"--than a drawing on paper which is the admiration of all the practical artists in the country. The discipline of an army depends quite as much upon the temper of the troops as upon the orders of the day.

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion.

Congress could not be too diligent about such talking; whereas it may easily be too diligent in legislation. It often overdoes that business. It already sends to its Committees bills too many by the thousand to be given even a hasty thought; but its immense committee facilities and the absence of all other duties but that of legislation make it omnivorous in its appetite for new subjects for consideration. It is greedy to have a taste of every possible dish that may be put upon its table, as an "extra" to the constitutional bill of fare. This disposition on its part is the more notable because there is certainly less need for it to hurry and overwork itself at law-making than exists in the case of most other great national legislatures. It is not state and national legislature combined, as are the Commons of England and the Chambers of France. Like the Reichstag of our cousin Germans, it is restricted to subjects of imperial scope. Its thoughts are meant to be kept for national interests. Its time is spared the waste of attention to local affairs. It is even forbidden the vast domain of the laws of property, of commercial dealing, and of ordinary crime. And even in the matter of caring for national interests the way has from the first been made plain and easy for it. There are no clogging feudal institutions to embarrass it. There is no long-continued practice of legal or of royal tyranny for it to cure,--no clearing away of old debris of any sort to delay it in its exercise of a common-sense dominion over a thoroughly modern and progressive nation. It is easy to believe that its legislative purposes might be most fortunately clarified and simplified, were it to square them by a conscientious attention to the paramount and controlling duty of understanding, discussing, and directing administration.

If the people's authorized representatives do not take upon themselves this duty, and by identifying themselves with the actual work of government stand between it and irresponsible, half-informed criticism, to what harassments is the executive not exposed? Led and checked by Congress, the prurient and fearless, because anonymous, animadversions of the Press, now so often premature and inconsiderate, might be disciplined into serviceable capacity to interpret and judge. Its energy and sagacity might be tempered by discretion, and strengthened by knowledge. One of our chief constitutional difficulties is that, in opportunities for informing and guiding public opinion, the freedom of the Press is greater than the freedom of Congress. It is as if newspapers, instead of the board of directors, were the sources of information for the stockholders of a corporation. We look into correspondents' letters instead of into the Congressional Record to find out what is a-doing and a-planning in the departments. Congress is altogether excluded from the arrangement by which the Press declares what the executive is, and conventions of the national parties decide what the executive shall be. Editors are self-constituted our guides, and caucus delegates our government directors.

Since all this curious scattering of functions and contrivance of frail, extra-constitutional machinery of government is the result of that entire separation of the legislative and executive branches of the system which is with us so characteristically and essentially constitutional, it is exceedingly interesting to inquire and important to understand how that separation came to be insisted upon in the making of the Constitution. Alexander Hamilton has in our own times, as well as before, been "severely reproached with having said that the British government was the 'best model in existence.' In 1787 this was a mere truism. However much the men of that day differed they were all agreed in despising and distrusting _a priori_ constitutions and ideally perfect governments, fresh from the brains of visionary enthusiasts, such as sprang up rankly in the soil of the French revolution. The Convention of 1787 was composed of very able men of the English-speaking race. They took the system of government with which they had been familiar, improved it, adapted it to the circumstances with which they had to deal, and put it into successful operation. Hamilton's plan, then, like the others, was on the British model, and it did not differ essentially in details from that finally adopted."[59] It is needful, however, to remember in this connection what has already been alluded to, that when that convention was copying the English Constitution, that Constitution was in a stage of transition, and had by no means fully developed the features which are now recognized as most characteristic of it. Mr. Lodge is quite right in saying that the Convention, in adapting, improved upon the English Constitution with which its members were familiar,--the Constitution of George III. and Lord North, the Constitution which had failed to crush Bute. It could hardly be said with equal confidence, however, that our system as then made was an improvement upon that scheme of responsible cabinet government which challenges the admiration of the world to-day, though it was quite plainly a marked advance upon a parliament of royal nominees and pensionaries and a secret cabinet of "king's friends." The English constitution of that day had a great many features which did not invite republican imitation. It was suspected, if not known, that the ministers who sat in parliament were little more than the tools of a ministry of royal favorites who were kept out of sight behind the strictest confidences of the court. It was notorious that the subservient parliaments of the day represented the estates and the money of the peers and the influence of the King rather than the intelligence and purpose of the nation. The whole "form and pressure" of the time illustrated only too forcibly Lord Bute's sinister suggestion, that "the forms of a free and the ends of an arbitrary government are things not altogether incompatible." It was, therefore, perfectly natural that the warnings to be so easily drawn from the sight of a despotic monarch binding the usages and privileges of self-government to the service of his own intemperate purposes should be given grave heed by Americans, who were the very persons who had suffered most from the existing abuses. It was something more than natural that the Convention of 1787 should desire to erect a Congress which would not be subservient and an executive which could not be despotic. And it was equally to have been expected that they should regard an absolute separation of these two great branches of the system as the only effectual means for the accomplishment of that much desired end. It was impossible that they could believe that executive and legislature could be brought into close relations of cooperation and mutual confidence without being tempted, nay, even bidden, to collude. How could either maintain its independence of action unless each were to have the guaranty of the Constitution that its own domain should be absolutely safe from invasion, its own prerogatives absolutely free from challenge? "They shrank from placing sovereign power anywhere. They feared that it would generate tyranny; George III. had been a tyrant to them, and come what might they would not make a George III."[60] They would conquer, by dividing, the power they so much feared to see in any single hand.