Chapter 7

"It must not be forgotten that the rules governing this body are founded deep in human experience; that they are the result of centuries of tireless effort in legislative hall, to conserve, to render stable and secure, the rights and liberties which have been achieved by conflict. By its rules, the Senate wisely fixes the limits to its own power. Of those who clamor against the Senate and its mode of procedure it may be truly said, 'They know not what they do.' In this Chamber alone are preserved, without restraint, two essentials of wise legislation and of good government--the right of amendment and of debate. Great evils often result from hasty legislation, rarely from the delay which follows full discussion and deliberation. In my humble judgment, the historic Senate, preserving the unrestricted right of amendment and of debate, maintaining intact the time-honored parliamentary methods and amenities which unfailingly secure action after deliberation, possesses in our scheme of government a value which can not be measured by words. The Senate is a perpetual body. In the terse words of an eminent Senator now present: 'The men who framed the Constitution had studied thoroughly all former attempts at Republican government. History was strewn with the wrecks of unsuccessful democracies. Sometimes the usurpation of the executive power, sometimes the fickleness and unbridled license of the people, had brought popular governments to destruction. To guard against these dangers, they placed their chief hope in the Senate. The Senate which was organized in 1789, at the inauguration of the Government, abides and will continue to abide, one and the same body, until the Republic itself shall be overthrown, or time shall be no more.'

"Twenty-four Senators who have occupied seats in this Chamber during my term of office are no longer members of this body. Five of that number--Stanford, Colquitt, Vance, Stockbridge, and Wilson-- 'shattered with the contentions of the Great Hall,' full of years and of honors have passed from earthly scenes. The fall of the gavel will conclude the long and honorable terms of service of other Senators, who will be borne in kind remembrance by their associates who remain.

"I would do violence to my feelings if I failed to express my thanks to the officers of this body for the fidelity with which they have discharged their important duties, and for the kindly assistance and unfailing courtesy of which I have been the recipient.

"For the able and distinguished gentleman who succeeds me as your presiding officer, I earnestly invoke the same co-operation and courtesy which you have so generously accorded me.

"Senators, my parting words have been spoken, and I now discharge my last official duty, that of declaring the Senate adjourned without day."

V THE SENATE OF THE UNITED STATES

DIFFICULTY OF FORMULATING A FEDERAL CONSTITUTION--THE CONVENTION OF 1787 SEES THE NECESSITY FOR A GENERAL GOVERNMENT WITH PLENARY POWERS--JEALOUSY OF THE SMALLER TOWARD THE LARGER STATES-- BRITISH PARLIAMENT TAKEN, WITH QUALIFICATIONS, AS THE MODEL FOR THE HOUSES OF CONGRESS--EQUAL STATE REPRESENTATION IN THE SENATE-- NON-EXISTENCE OF ANY METHOD FOR TERMINATING DEBATES IN THE SENATE-- POTENCY OF THE PRESIDENT'S VETO--ABUSE OF THE _CLOTURE_ IN THE HOUSE--PROCEDURE IN THE EVENT OF THE FAILURE OF THE PEOPLE TO ELECT A PRESIDENT OR A VICE-PRESIDENT--THE HAYES-TILDEN CONTEST--DANGER OF USURPATION OF POWER BY THE EXECUTIVE--THE SENATE AS A HIGH COURT OF IMPEACHMENT--TRIAL OF CHASE OF MARYLAND--TRIAL OF BELKNAP, SECRETARY OF WAR--TRIAL OF PRESIDENT JOHNSON.

It is a well-known fact in our political history that the convention which formulated our Federal Constitution greatly exceeded the powers delegated to its members by their respective States. It was the supreme moment, and upon the action of the historic assemblage depended events of far-reaching consequence. The Constitution of the United States is the enduring monument to the courage, the forecast, the wisdom of the members of the Convention of 1787. It was theirs to cut the Gordian knot, to break with the past, and, regardless of the jealousies and antagonisms of individual States, to establish the more perfect union, which has been declared by an eminent British statesman "the greatest work ever struck off at a given time from the brain and purpose of man."

The oft-quoted expression of Gladstone is, however, more rhetorical than accurate. The Constitution of the United States was not "struck off at a given time," but as declared by Bancroft, "the materials for its building were the gifts of the ages." In the words of Lieber, "What the ancients said of the avenging gods, that they were shod with wool, is true of great ideas in government. They approach slowly. Great truths dwell a long time with small minorities."

The period following the treaty of peace with Great Britain in 1783, which terminated the War of the Revolution, has been not inaptly designated "the critical period of American history." The Revolutionary Government, under which Washington had been chosen to the chief command of the colonial forces, the early battles fought, and the Declaration of Independence promulgated, had been superseded in 1781 by a Government created under the Articles of Confederation. The latter Government, while in a vital sense a mere rope of sand, was a long step in the right direction; the earnest of the more perfect union yet to follow.

Under the Government, more shadowy than real, thus created, the closing battles of the Revolution were fought, independence achieved, a treaty of peace concluded, and our recognition as a sovereign Republic obtained from our late antagonist and other European nations.

The Articles of Confederation, submitted for ratification by the Colonial Congress to the individual States while the country was yet in the throes of a doubtful struggle, fell far short of establishing what in even crude form could properly be designated a Government. The Confederation was wholly lacking in one essential of all Governments: the power to execute its own decrees. Its avowed purpose was to establish "a firm league of friendship," or, as the name indicates, a mere confederation of the colonies. The parties to this league were independent political communities, and by express terms, each State was to retain all rights, sovereignty, and jurisdiction not expressly delegated to the Confederation. In a Congress consisting of a single House were vested the powers thus grudgingly conferred. Its members were to be chosen by the States as such; upon every question the vote was given by States, each, regardless of population, having but a single vote. The revenues and the regulation of foreign commerce were to remain under the control of the respective States, and no provision was made for borrowing money for the necessary maintenance of the general Government. In a word, in so far as a Government at all, it was in the main one of independent States, and in no sense that with which we are familiar, a Government of the entire people. Whatever existed of executive power was in a committee of the Congress; the only provision for meeting the expenses of the late war and the interest upon the public debt was by requisition upon the States, with no shadow of power for its enforcement.

Under the conditions briefly mentioned, with the United States of America a byword among the nations, the now historic Convention of 1787 assembled in Philadelphia, in the room where eleven years earlier had been promulgated the Declaration of Independence. It consisted of fifty-five members; and without a dissenting voice, Washington, a delegate from Virginia, was elected its President. Not the least of his public services was now to be rendered in the work of safeguarding the fruits of successful revolution by a stable Government. Chief among the associates with whom he was daily in earnest, anxious counsel in the great assemblage, were men whose names live with his in history. If Franklin, Wilson, Sherman, King, Randolph, Rutledge, Mason, Pinckney, Hamilton, Madison, and their associates had rendered no public service other than as builders of the Constitution, that alone would entitle them to the measureless gratitude of all future generations of their countrymen.

When they were assembled, the startling fact was at once apparent that, under the Confederation, with its constituent States at times in almost open hostility to one another, the country was gradually drifting into a condition of anarchy.

It is our glory to-day, and will be that of countless on-coming generations, that the men of '87 were equal to the stupendous emergency. Regardless of instructions, expressed or implied, the master spirits of the Convention, looking beyond local prejudices and State environment, and appealing to time for vindication, with a ken that now seems more than human, discerned the safety, the well-being, the glory of their countrymen, bound up in a general Government of plenary powers, a Government "without a seam in its garment, to foreign nations."

To this end the proposition submitted by Paterson of New Jersey, in the early sittings of the Convention, for a mere enlargement of the powers of the Confederation, was decisively rejected. With the light that could be gleaned from the pages of Montesquieu, the suggestive lessons to be drawn from the fate of the short-lived republics whose wrecks lay along the pathway of history, and from the unwritten Constitution of the mother country, as their only guides, the leaders of the Convention were at once in the difficult role of constructive statesmen. The Herculean task to which with unwearied effort they now addressed themselves was that of "builders" of the Constitution; the establishers, for the ages, of the fundamental law for a free people.

One of the perils which early beset the Convention, and whose spectre haunted its deliberations till the close, was the hostility engendered by the dread and jealousy of the smaller toward the larger States. This fact will in some measure explain what in later years have been denominated the anomalies of the Constitution. To a correct understanding of the motives of the builders, and an appreciation of their marvellous accomplishment, it must not be forgotten that "The foundations of the Constitution were laid in compromise." The men of '87 had but recently emerged from the bloody conflict through which they had escaped the domination of kingly power. With the tyranny of George the Third yet burning in their memories, it is not to be wondered that the Revolutionary patriots of the less populous States were loath to surrender rights, deemed, by them, secure under their local governments; that they dreaded the establishment of what they apprehended might prove an overshadowing--possibly unlimited--central authority.

The creation of a general Government, with its three separate and measurably independent departments, happily concluded, with the delegated powers of each distinctly enumerated, the salient question as to the basis of representation in the Congress at once pressed for determination. Upon the question of provision for a chief executive, and his investment with the powers necessarily incident to the great office, there was after much debate a practical consensus of opinion. And practical unanimity in the end prevailed regarding the judicial department, with its great court without a prototype at its creation, and even yet without a counterpart in foreign Governments.

The rock upon which the Convention barely escaped early dissolution, was the basis of representation in the Congress created under the great co-ordinate legislative department. The model for our Senate and House of Representatives was unquestionably the British Parliament. This statement is to be taken with weighty qualifications; for hereditary or ecclesiastical representation, as in the House of Lords, is wholly unknown in our system of government. The significant resemblance is that of our Lower House to the British Commons. In these respective chambers, the people, as such, have representation.

The earnest, at times violent, contention of the smaller States, in our historic Convention, was for equal representation in both branches of the proposed national legislature. This was strenuously resisted by the larger States under the powerful leadership of Madison of Virginia, and Wilson of Pennsylvania. Their equally earnest, and by no means illogical contention was for popular representation in each House, as outlined in the Virginia plan which had been taken as the framework of the proposed Constitution. The opposing views appeared wholly irreconcilable, and for a time the parting of the ways seemed to have been reached. Threats of dissolution were not uncommon in the Chamber, and for many days the spirit of despair brooded over the Convention. A delegate from Maryland vehemently declared: "The Convention is on the verge of dissolution, scarcely held together by the strength of a hair." Well has it been said: "In even the contemplation of the fearful consequence of such a calamity, the imagination stands aghast."

At the crucial moment mentioned, Sherman and Ellsworth presented upon behalf of Connecticut the first and most far-reaching of the great compromises of the Constitution. The Connecticut plan was in brief to the effect that in fixing the ratio of representation there should be recognition alike of the federal and of the national feature in government, in a word, that in the Lower House the national, and in the upper the federal principle should have full recognition. This was a departure from the Virginia plan to the extent that it in effect proposed the establishment of a federal republic,--in the concrete, that the House should be composed of representatives chosen directly by the people from districts of equal population; while representation in the Senate should be that of the States, each, regardless of population, to have two members, to be chosen at stated periods by their respective legislatures.

After heated debate, this compromise was carried by a bare majority, and the provision for popular representation in the House, and equal State representation in the Senate, became engrafted upon our Federal Constitution. This feature, an eminent foreign writer has declared, "is the chief American contribution to the common treasures of political civilization." The eminent writer, De Tocqueville, has well said: "The principle of the independence of the States triumphed in the formation of the Senate, and that of the sovereignty of the nation in the composition of the House of Representatives."

The success of the Connecticut plan made possible that of other essential compromises which followed; and the result was, as the sublime consummation of wise deliberation and patriotic concession, the establishment of the Government of the United States.

It is the proud boast of the Briton, that "the British Constitution has no single date from which its duration is to be reckoned, and that the origin of English law is as undiscoverable as that of the Nile." Our Government, buttressed upon a written Constitution of enumerated and logically implied powers, had its historic beginning upon that masterful day, April 30, 1789, when Washington took solemn oath of office as our first President.

The Senate of the United States has been truly declared "the greatest deliberative body known to men." By Constitutional provision it consists of two members from each State, chosen by the Legislature thereof, for the term of six years. No person has the legal qualification for Senator "unless he shall have attained the age of thirty years, be an inhabitant of the State for which he is chosen, and have been nine years a citizen of the United States." No State, without its consent, can ever be deprived, even by Constitutional amendment, of its equal representation in the Senate. Nevada with a population of less than forty thousand has her equal voice with New York with a population exceeding seven million. This anomaly was occasioned by concession by the larger to the smaller States in the Convention of 1787, a concession which made possible the establishment of the federal Union.

One essential difference between the House of Representatives and the Senate is that to the latter "the previous question" is unknown; no method existing for terminating debate, other than by unanimous consent. Here, unlimited discussion and amendment can have their perfect work. Within the last three or four decades many fruitless attempts have been made to introduce a modified "previous question" or _cloture,_ by which the Senate could be brought to an immediate vote. At first blush such change might seem desirable, but experience has demonstrated the wisdom of the method to which there has been such steady adherence. It secures time for consideration and full discussion upon every question. In the end the vote will be taken. Debate is rarely prolonged beyond reasonable limit. Not infrequently the public welfare is imperilled by too much, rather than too little, legislation. It was the belief of Jefferson that government should touch the citizen at the fewest possible points. The quaint lines of the old English poet have lost nothing of their significance:

"How small, of all that human hearts endure, That part which laws or kings can cause or cure!"

The House of Representatives has in large degree ceased to be a deliberative body. Under the iron rule of the "previous question" measures of importance are hurriedly passed without the possibility of discussion or amendment. The rights of the minority are at times but as the dust in the balance.

Unlike the House of Lords, the Senate is in reality an important factor in legislation. As is well known in recent years, government in Great Britain is virtually that of the House of Commons, in large measure through a cabinet practically of its own appointment. The King is little more than a ceremonial figure-head, and the House of Lords is almost in a death struggle for existence. The end would probably come by serious attempt upon its part to thwart the popular will as expressed through the House of Commons. The power of Edward the Seventh is but a shadow of that exercised almost without let or hindrance by the predecessors of Queen Victoria. The veto power, so potent an instrumentality in the hands of the American President, is to all intents a dead letter in the mythical British Constitution. For a century and a half it has remained in practical abeyance. It is believed that its attempted exercise at this day would produce revolution; possibly endanger the existence of the throne.

By means of what is known as a suspension of the rules, under the operation of the "previous question," much important legislation is enacted in our House of Representatives, without the minority having the privilege of debate, or amendment, or even the necessary time to a full understanding of the pending measure. The constantly recurring "River and Harbor Bill," with its enormous sum total of appropriations, is a striking object lesson of the vicious character of such methods.

In the light of what has been suggested, the wisdom displayed in the establishment of the bicameral, or two-chamber system, in our legislative scheme, is strikingly apparent. At the time of its creation, it had no counterpart in any of the Governments of continental Europe. Its only prototype, in so far as it was such, was the British House of Lords as already indicated.

Save only in the right to originate revenue bills, the power of the Senate is concurrent with that of the House in all matters of legislation; and these are wisely subject to amendment by the Senate. The presiding officer of the Senate is the Vice-President of the United States, and in his absence a Senator chosen as President _pro tempore._

In the event of a failure on the part of the people to elect a President or a Vice-President of the United States, through electors duly appointed at the stated time, the duty of such election devolves upon the House and the Senate acting independently of each other. The choice of President is limited to the three candidates who have received the highest number of votes in the several electoral colleges. The determination is by the House of Representatives, the vote being by States. In such event the vote of Nevada would again count equally with that of New York. In the contingency mentioned, of a failure to elect a Vice-President, the election devolves upon the Senate, each Senator having a personal vote; and the person chosen must by Constitutional requirement be one of the two receiving the highest number of electoral votes. In 1836, Mr. Van Buren of New York received a majority of the electoral votes for President; but no person receiving a majority for the second office, Colonel Richard M. Johnson, of Kentucky, one of the two persons eligible, was chosen by the Senate. No similar instance has occurred in our history.

In the Presidential election of 1800, and in that of 1824, the ultimate determination was by the House of Representatives. In the former, Jefferson and Burr each received seventy-three electoral votes, without specification as to whether intended for the first or second office. The protracted struggle which followed resulted in the choice of Jefferson for the higher office. This fortunate termination was in large measure through the influence of Alexander Hamilton, and was the initial step in the bitter personal strife which eventuated in his early death at the hands of Burr. In the light of events, we may well believe that not the least of the public services of Hamilton was his unselfish interposition at the critical moment mentioned. The possibility of similar complication again arising in the election of the President was soon thereafter obviated by the Twelfth Amendment to the Constitution.

Seldom in Presidential contests has there been such an array of great names presented as in that of 1824. The era of good feeling which characterized the administration of Monroe found sudden termination in the rival candidacy of two members of his cabinet, for the succession--Mr. Adams, Secretary of State, and Mr. Crawford, of the Treasury. The other aspirants were Clay, the brilliant Speaker of the House of Representatives, and Jackson, with laurels yet fresh from the battlefield of New Orleans. Mr. Clay receiving the smallest number of electoral votes, and no candidate the majority thereof, the selection again devolved upon the House, resulting eventually in the choice of John Quincy Adams.