have the satisfaction of being secure in a petty independence which gives them a chance to be tricky and scheming. There are ways and ways of obeying; and if Congress be not pleased, why need they care? Congress did not give them their places, and cannot easily take them away.
Still it remains true that all the big affairs of the departments are conducted in obedience to the direction of the Standing Committees. The President nominates, and with legislative approval appoints, to the more important offices of the government, and the members of the Cabinet have the privilege of advising him as to matters in most of which he has no power of final action without the concurrence of the Senate; but the gist of all policy is decided by legislative, not by executive, will. It can be no great satisfaction to any man to possess the barren privilege of suggesting the best means of managing the every-day routine business of the several bureaux so long as the larger plans which that business is meant to advance are made for him by others who are set over him. If one is commanded to go to this place or to that place, and must go, will he, nill he, it can be but small solace to him that he is left free to determine whether he will ride or walk in going the journey. The only serious questions are whether or not this so great and real control exerted by Congress can be exercised efficiently and with sufficient responsibility to those whom Congress represents, and whether good government is promoted by the arrangement.
No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government, and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. And if it be his duty to obey, still more is obedience the bounden duty of his subordinates. The power of making laws is in its very nature and essence the power of directing, and that power is given to Congress. The principle is without drawback, and is inseparably of a piece with all Anglo-Saxon usage; the difficulty, if there be any, must lie in the choice of means whereby to energize the principle. The natural means would seem to be the right on the part of the representative body to have all the executive servants of its will under its close and constant supervision, and to hold them to a strict accountability: in other words, to have the privilege of dismissing them whenever their service became unsatisfactory. This is the matter-of-course privilege of every other master; and if Congress does not possess it, its mastery is hampered without being denied. The executive officials are its servants all the same; the only difference is that if they prove negligent, or incapable, or deceitful servants Congress must rest content with the best that can be got out of them until its chief administrative agent, the President, chooses to appoint better. It cannot make them docile, though it may compel them to be obedient in all greater matters. In authority of rule Congress is made master, but in means of rule it is made mere magistrate. It commands with absolute lordship, but it can discipline for disobedience only by slow and formal judicial process.
Upon Machiavelli's declaration that "nothing is more important to the stability of the state than that facility should be given by its constitution for the accusation of those who are supposed to have committed any public wrong," a writer in the "Westminster Review" makes this thoughtful comment: "The benefit of such a provision is twofold. First, the salutary fear of the probable coming of a day of account will restrain the evil practices of some bad men and self-seekers; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution; ... the distinction is lost between accusation and calumny."53 And of course it was these benefits which our federal Constitution was meant to secure by means of its machinery of impeachment. No servant of the state, not even the President himself, was to be beyond the reach of accusation by the House of Representatives and of trial by the Senate. But the processes of impeachment, like those of amendment, are ponderous and difficult to handle. It requires something like passion to set them a-going; and nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overcrow party interest may secure a conviction; nothing less can. Indeed, judging by our past experiences, impeachment may be said to be little more than an empty menace. The House of Representatives is a tardy grand jury, and the Senate an uncertain court.
Besides, great crimes such as might speed even impeachment are not ordinary things in the loosest public service. An open-eyed public opinion can generally give them effective check. That which usually and every day clogs and hampers good government is folly or incapacity on the part of the ministers of state. Even more necessary, therefore, than a power clothed with authority to accuse, try, and punish for public crime is some ultimate authority, whose privilege it shall be to dismiss for inefficiency. Impeachment is aimed altogether above the head of business management. A merchant would not think it fair, even if it were lawful, to shoot a clerk who could not learn the business. Dismissal is quite as effective for his purposes, and more merciful to the clerk. The crying inconvenience of our system is, therefore, that the constitutional authority whose prerogative it is to direct policy and oversee administration has fewer facilities for getting its work well done than has the humblest citizen for obtaining satisfactory aid in his own undertakings. The authority most interested in appointments and dismissals in the civil service has little to do with the one and less to do with the other. The President appoints with the sanction of the Senate, and cannot dismiss his advisers without legislative consent;54 yet the ministers in reality serve, not the President, but Congress, and Congress can neither appoint nor dismiss. In other words, the President must in both acts take the initiative, though he is not the real master; and Congress, which is the real master, has in these vital matters only a consultative voice, which it may utter, through its upper chamber, only when its opinion is asked. I should regard my business as a hopeless undertaking if my chief agent had to be appointed by a third party, and, besides being himself put beyond my power of control, were charged with the choice and discipline of all his subordinates, subject not to my directions, but simply to my acquiescence!
The relations existing between Congress and the departments must be fatally demoralizing to both. There is and can be between them nothing like confidential and thorough coöperation. The departments may be excused for that attitude of hostility which they sometimes assume towards Congress, because it is quite human for the servant to fear and deceive the master whom he does not regard as his friend, but suspects of being a distrustful spy of his movements. Congress cannot control the officers of the executive without disgracing them. Its only whip is investigation, semi-judicial examination into corners suspected to be dirty. It must draw the public eye by openly avowing a suspicion of malfeasance, and must then magnify and intensify the scandal by setting its Committees to cross-examining scared subordinates and sulky ministers. And after all is over and the murder out, probably nothing is done. The offenders, if any one has offended, often remain in office, shamed before the world, and ruined in the estimation of all honest people, but still drawing their salaries and comfortably waiting for the short memory of the public mind to forget them. Why unearth the carcass if you cannot remove it?
Then, too, the departments frequently complain of the incessant exactions made upon them by Congress. They grumble that they are kept busy in satisfying its curiosity and in meeting the demands of its uneasy activity. The clerks have ordinarily as much as they can do in keeping afoot the usual routine business of their departments; but Congress is continually calling upon them for information which must be laboriously collected from all sorts of sources, remote and accessible. A great speech in the Senate may cost them hours of anxious toil: for the Senator who makes it is quite likely beforehand to introduce a resolution calling upon one of the Secretaries for full statistics with reference to this, that, or the other topic upon which he desires to speak. If it be finance, he must have comparative tables of taxation; if it be commerce or the tariff, he cannot dispense with any of the minutest figures of the Treasury accounts; whatever be his theme, he cannot lay his foundations more surely than upon official information, and the Senate is usually unhesitatingly ready with an easy assent to the resolution which puts the whole clerical force of the administration at his service.