The Senate: New Style

FOR many years William Jennings Bryan had been an ardent advocate of popular election of Senators. By a happy coincidence it fell to him, as Secretary of State, to make official announcement that the Seventeenth Amendment had become a part of the Constitution. On May 8, 1913, Mr. Bryan declared: ‘I will proudly attach my signature to the statement that this epoch-making reform has arrived.’ Then came upon him the spirit of prophecy, and he foretold: —

We will find that instead of having the Senate filled up with representatives of predatory wealth who use their power to oppose the things that the people love — we will find that the honor of a position in that body will be reserved as a prize with which to reward those who have proven themselves capable of the discharge of public duties and men to be trusted with the people’s interests.

To be sure, the purist did not fail to notice that this was not a mere forecast of what was to result, but that the repetition of that phrase — ‘we will find ‘ — indicated a fixed determination to find the representatives of predatory wealth eliminated from the Senate, and their places reserved as prizes for those who seek ‘the things that the people love.’

There were those who doubted whether Mr. Bryan was warranted in implying that the signing of that proclamation was to mark the moment when ‘this epoch-making reform has arrived.’ By direct primaries, by primary elections, by pledges exacted from candidates for State legislatures, the legal election of Senators by the legislatures in many of the States had been reduced to as much of an empty formality as the choice of President by the Electoral College. The people pressed the button; the members of the State legislature did the rest.

Into the Senate came an increasing number of members who recognized that their real electors had not been the legislatures. Their presence there was evidence of the growth the movement was making, and their votes overcame the Senate’s resistance. Four times the House had passed a popular-election amendment, but the Senate had not allowed it to come to a vote. At last the Senate yielded to the inevitable and gave its concurrence. By such slow degrees, through a score of years, had this epoch-making reform arrived.

Nevertheless, that proclamation did set up a milestone of some importance. It determined that in form as well as in fact the process of election under which had been chosen the men who had made the Senate the most powerful upper chamber in the world was now to give place to the process identical with that by which governors and congressmen are chosen.

The Senate of the Sixty-third Congress was the last Senate all of whose members, in form at least, had been chosen by the process which the States, by their ratification of the Seventeenth Amendment, had discredited and discarded.

I

What manner of men filled that Senate? It may prove of interest, as a basis for comparison, to review certain easily ascertainable facts as to the personnel of the last Senate elected by the process ordained by the framers of the Constitution.

In making such a comparison, it is to be remembered that a single decade is a very brief period in the life of such a great historic legislative body as the Senate. Furthermore, this particular decade has brought revolutionary changes: woman suffrage, doubling the potential electorate and introducing puzzling variables among the assumed constants of politics; the World War, with its upheaval in economic conditions, in industrial methods, and in political thought; and the inevitable reaction from the autocratic tendencies developed under war stress. Differences which may be noted between the Senates of to-day and of ten years ago may be merely sporadic and transient. In a decade of such kaleidoscopic change, none but the merest tyro will expect to discover clearly marked tendencies which can confidently be attributed to the arrival of that epoch-making reform which Mr. Bryan took such pride in proclaiming.

The shifting of politics has given us a Senate to-day made up of 51 Republicans, 43 Democrats, and two FarmerLabor members, in contrast with the 43 Republicans, 52 Democrats and one Progressive in the membership in 1914.

Ku-Kluxers may be relieved to know that in the present Senate all but three (as compared with five in 1914) are natives of the United States, the exceptions being Senators Couzens (born in Ontario), Gooding (born in England), and Magnus Johnson (born in Sweden). Less migratory conditions within the United States may be indicated by the fact that 51 (as compared with 45 in 1914) are sons of the States that they represent. Ohio, as in 1914, leads as the ' Mother of Senators,’ with seven of her ‘jewels’ in the Senate. Pennsylvania has six; Massachusetts and New York, five each; Maine, Illinois, Virginia, and Kentucky, four each. There is a striking contrast in this matter between the Senate of to-day and that of 1897, when, according to McConachie, ‘thirty-six [members] were of Southern nativity, twenty-eight from the Atlantic group north of Mason and Dixon’s line, nineteen from the Northwest and the West.’ No such proportion now holds true, nor does the following generalization appear to retain its validity: ‘The South not only reared her own Senators but cradled those of the new frontier States, which one by one enlarged the Union.’ Of the twelve States that have no sons in the Senate, all but three (New Hampshire, Rhode Island, and Florida) are States of the Far West. In further contrast between the different sections, it may be observed that in the section made up of the New England, the North Atlantic, and the North Central States only two sons of States outside that region were sent to the Senate; the eight South Atlantic States chose no Senator bred outside that section—five of them sent only their own sons; on the other hand, of the sixteen Senators from the great Mountain region, twelve had been born outside its borders, and half the Senators from the Pacific States were born in the Mississippi Valley.

The average age of Senators to-day, as in 1914, is a trifle over 57 years, but the extremes are not so far apart: there is but one who is under forty, and but one who has reached his eightieth year.

In the matter of education — to judge from the very inadequate data available — the Senate makes a rather better showing than ten years ago. Although several have thought it good politics to stress in the Congressional Directory the fact that they have had the advantage of only a commonschool education, seventy-six out of the ninety-six members have attended some university, college, or normal school. Yale heads the list of universities, having seven of her sons in the Senate; Harvard, five; University of Michigan, four; University of Virginia, three; and the Naval Academy, one.

As to the callings from which Senators are drawn, the most striking thing is the heavy preponderance of lawyers, — sixty, as compared with sixty-nine in 1914. Several others have had years of legal training. Nineteen of the present Senate have been prosecuting attorneys, in offices ranging from county attorney to attorney-general of the State. Two have been deans of law schools, and two others have been professors of law. Six have held judicial office, including one justice of a Federal Circuit Court, and one chief justice and two associate justices of State Supreme Courts.

The distribution of these lawyerSenators presents interesting contrasts. Of the sixteen from the South Central States, everyone is a lawyer — although Senator Heflin tells the world that when first elected to Congress (twenty years ago) he gave up the law practice and since that time has devoted his time to the study of public questions. That may explain much. In the entire section south of the Potomac and west to include Texas and Oklahoma, of twenty-eight Senators all but four are lawyers. On the other hand, from the States north of the Potomac and the Ohio and west to include Wisconsin, of thirty-two Senators only seventeen are lawyers; while in the great Mountain section, from Montana to the Mexican border, only half the Senators are lawyers. The contrast in distribution between parties is not less pronounced: 86 per cent of the Democratic Senators are lawyers, while only 45 per cent of the Republicans are of that profession. The explanation seems to be partly a matter of tradition and of the relative diversification of industry. In the North and in the newer States of the West more varied careers present themselves for the young man’s choice, while frequent party overturns make politics seem a far less constant object of devotion than in the South. Racial preferences or aptitudes may have something to do with the matter. An Irishman’s allegiance to the Democratic party is proverbial, and he takes to the combination of politics and the law as a duck takes to water; a man of Scandinavian descent, on the other hand, may take to politics quite as naturally, but not so inevitably by way of the law, and he usually votes the Republican ticket.

Apparently the proportion of lawyers in the Senate is lessening and the type is changing. In the days when there were giants in the senatorial land, probably three fourths of them were lawyers. Such were Webster and Clay, Benton and Calhoun; but their experience in the law and their point of view as lawyers in the Senate were apparently very different from those of many of the lawyers in that chamber to-day.

Of other callings, agriculture claims the largest number of Senators. Five put themselves down as plain ‘ farmers,’ though only two of them have felt it necessary to establish their title by engaging in milking contests before reporters’ cameras. Stock-raisers and planters raise the number of this unofficial agricultural block — not Bloc — to about fifteen, not including those whose work has been in organizing or in journalizing the tillers of the soil. Including the teachers of law mentioned above, there are at least eight Senators who have been college or university professors, two of whom have been college presidents. There are five journalists or publishers, four bankers, two physicians, and one dentist, and two men whose principal activity has been the management of ‘public utilities.’ Perhaps the most unexpected calling represented is that of the well-driller.

Long continuity of service has been one of the causes which has most contributed to the power and prestige of the Senate and to the influence of individual Senators and of the States which they have represented. There come to mind the many six-year terms of Morrill and Frye, of Webster and Hoar, of Sherman and Allison. If the comparison be made between the two houses of the present Congress, it is found that the percentages of members of the Senate who have served during the terms of three, two, and one previous Congresses are 41, 57, and 75, as compared with the percentages of members of the House who have served for these same periods — 41, 56, and 71. In other words, although the elections of the Representatives come three times as frequently, thus multiplying the chances for change in that branch as compared with the Senate, the proportion of men who have served six, lour and two years in the House is almost exactly the same as that of the men who have seen the same length of service in the Senate.

While it seems evident that the biennial labor turnover’ in the Senate is decidedly on the increase, one important modification must not be overlooked. Not less than thirty of the members of the Senate had been ‘graduated’ into that body, after having served from one to ten terms in the House of Representatives. It is no mere coincidence that most of the Senate’s expert parliamentarians and many of its ablest debaters had received long courses of training in the more strenuous arena of the House. Very striking is the contrast in the security of tenure of the men from the South and from the other sections. In the Mountain section, only two of the sixteen Senators had served in the House, and neither of these had there completed more than three years before entering the Senate. The Southern States have seven Senators who have served from ten to twenty years in the House — an average of fourteen years.

Of the ninety-six Senators, thirty-six before going to Washington had taken a ‘preparatory’ course in politics in the legislatures of their several States, the larger proportion of such men coming from New England, the South Atlantic States and the Mountain region. A considerable number had seen service as members of State constitutional conventions, delegates to national conventions, or presidential electors. Eight — most of them from the Southern States — had been mayors of their home cities.

More significant is the number of State Governors who have become Senators. In 1881 and in 1897 the percentage of Senators who had been Governors was 16; in 1914, it was 27; in 1924, it was 26. This ‘gubernatorial’ element seems to be shifting: in comparing the Senate of 1924 with that of 1914, the number of former Governors from the New England and North Atlantic States rose from three to six; from the Middle States, from four to eight; from the Western States, from seven to eight; but from the Southern States it fell from ten to five. Of the twenty-six former Governors in the Senate fourteen have come directly, in many cases resigning the governorship to take the present position, It is a safe forecast that this element in the future will increase, particularly from the industrial and commercial States. Now that election to the Senate is by direct vote of the people from all over the State, the governorship is the one office in which the would-be Senator can most effectively display the qualities that may not necessarily best fit him for service in the Senate, but those which will best command the attention of the voters who can send him thither.

The Senate used to be called a millionaires’ club. It is to be expected that under popular suffrage the ‘merely rich man’ will not prove a good vote-getter. Yet the party-manager is peculiarly susceptible to the charms of a candidate ‘with a barrel,’ and American voters have no objection to a man of great wealth in high office — note the Democratic nomination of octogenarian Henry Gassaway Davis for Vice-President and the frequent efforts to induce Henry Ford to become a candidate for various offices.

Years ago Mr. Bryce remarked that some men were in the Senate because they were rich and others because they meant to be rich. The former may be of great service; the latter — however appealing may be their pose as friends of the common people — are a grave menace: a moral pointed by the recent history of exSenator Albert B. Fall.

For many years there probably has not been a time when so few Senators have been helped to their scats by a record of military service. As late as 1914 the Senate still contained five veterans of the Union Army, five of the Confederate Army and five who had seen service in the war with Spain. Of the Civil War veterans alone remains Senator Warren, who was an officer in the 49th Massachusetts Infantry. Eight Senators fought in the war with Spain, and five were officers in the World War, two of them having been commissioned officers also in the war of 1898.

Twenty years from now it may confidently be expected that the proportion of World War veterans will be greatly increased, not only because the rank and file of its soldiers will then have reached the normal age for senatorial service, but for the less pertinent reason that, as actual service rendered becomes shrouded in the mist of tradition, the political influence of veterans’ organizations, now largely exerted in pressure for the bonus and various other preferences, will then be seeking offices and pensions.

Progress toward a seat in the Senate is doubtless furthered by bonds of fellowship formed outside of politics. One is not only known but helped by the company he keeps. Accurate data as to Senators’ membership in fraternal orders are not available, yet from their own biographical sketches it is clear that more than one in five of them are Masons. There is also a considerable number of Odd Fellows, Elks, Red Men, and Woodmen. The champion ‘joiner’ in the entire Senate is probably Senator Owen, who describes himself thus: ‘An Episcopalian; Mason, 32°; Mystic Shrine; Knight Templar; A T Ω; ∅ K; Elk; Moose; M. W. A; etc.’ But the largest zoological collection embodied in one man seems to be Senator Edwards, who is not only a Mason but at the same time an Elk, a Moose, and an Eagle.

More than one Senator is reputed to be on intimate terms with the Ku Klux Klan, though none avows membership in that masked and robed band.

II

In the Senate, March 15, 1924, while there was under debate the proposal so to amend the Constitution as to give to the people of the several States the power to ratify or reject future amendments, the debate took an unexpected turn. The Senators found themselves led into a discussion of the success or failure of what Mr. Bryan called ‘this epoch-making reform.’ A delicate question, that — for the Senate Chamber!

Said Senator Fess: ‘I sometimes question the wisdom even of the change effected by the Seventeenth Amendment. Whether or not we have elevated the standard of this body by the change in the manner of the election of Senators is still an open question.’ Pressed to state whether he had been in favor of that Amendment at the time of its ratification, he replied: ‘Originally ... I was a believer that the change proposed by the Seventeenth Amendment would be a benefit to the country. That was when the Amendment was adopted. Since then I have come to have serious doubts as to whether or not the change has been beneficial.’ Another Senator gave as one reason ‘why the Seventeenth Amendment is not a success’ the fact that ‘so small a proportion of the citizenry takes advantage of the opportunities that it gives,’ and added: ‘I think on the whole the Amendment has not worked anything like as well as we had hoped.’

That in the Senate such doubts should have been expressed by some of its most intelligent members as to the ‘wisdom’ and ‘success’ of the Seventeenth Amendment is significant. The men who took most active part in this debate were Senators from Ohio, Pennsylvania, and Montana. Yet the history of senatorial elections in their own States affords ample evidence on one point. The Seventeenth Amendment has made a closed chapter of such scandalous legislative elections as those of Payne (Ohio, 1886), Quay (Pennsylvania, 1890 and 1899), and Clark (Montana, 1899 and 1900). So far as its effect upon conditions within the States is concerned, the record of the Seventeenth Amendment is for the most part ‘to the good,’ and that part of its record deserves full recognition in making up the final account of success or failure.

But whether we have elevated the standard of this body (the Senate) by the change in the manner of the election of Senators is — as Senator Fess says — still ‘an open question.’ No one believes that a seat in the present Senate has been bought as seats were bought by Clark and Stephenson. There are men of great wealth in the Senate, but none whose presence there finds its sole explanation in the fact that he is a Crœsus. Past-masters in the arts effective in manipulating State legislatures, like Gorman and Platt, like Quay and Penrose, do not find their exact counterparts in the Senate Chamber to-day. The candidate who is obviously backed by a railway or a trust stands little chance of election, but, during a six-year term, unsuspected fealty to such masters may develop. Obstructionists like Hale and constructionists like Aldrich are reluctant to take their chances in a popular election.

But these are negative results or tendencies. What of the positive ones? The Senate is apparently becoming more like the House, both in type, or personnel, and in the rate of rotation in office. Men are now coming to the Senate with less of law-making experience than their predecessors had had in State legislatures or in the national House of Representatives.

There seems to be a distinct tendency to turn from men wise in council to men with more dramatic and executive qualities. The spellbinder, the eloquent prosecuting attorney catches the applause and the votes. An aptitude for getting things done—or promising to get things done — often makes a stronger appeal to the voter than does a capacity for deliberate — often, perhaps, too deliberate — study of what it is wisest to do. It is going to be harder for a Senator of independence in the future to hold to a course that does not square with the opinion of the day, for his chance of reëlection will be largely determined not by whether his acts have been wise but by whether they have been popular.

A decade of experience with the popular election of Senators still leaves the doubt whether in our exultation at the supposed banishment of the ‘reactionaries,’ of Mr. Bryan’s ‘representatives of predatory wealth,’ and other ‘belated survivals,’ we have not reason for concern lest the Senate has lost something of the distinction of manner, the real as contrasted with the spurious ‘courtesy of the Senate,’ the poise of judgment, and the pride in cooperation to get the Senate’s normal work done, which characterized Senate leaders of an earlier generation. Men who have watched Senators come and go for the past thirty years say, ‘Now, it’s every man for himself!’

Popular election of Senators has brought ‘costs’ — by no means money costs, alone — which were not fully appraised in advance. In the first place there is the cost of the election, itself. It must be recognized that the shifting of the election of Senators from the State capitol to the ballot booths has enormously increased the output of money and of energy necessary to make the candidate’s qualification known throughout his state-wide constituency.

A second cost is in the necessity of the Senator’s keeping in touch with his constituency, while at his work. Under the new system this necessity constitutes a serious strain which many Senators evidently feel. They think they must justify their senatorial existence in their huge constituencies by speeches mainly for ‘home consumption’ and by votes that appeal to the mass. Partisanship, ‘ bloc ‘ loyalty, and sheer demagogy have certainly been encouraged by popular election.

A third cost is found in the impairment in his work caused by his campaigns for election. What chance has a Senator for reelection, if he sticks to his desk in the Senate Chamber, while his opponents are attacking his record before the voters in every county in his State? Nor is it alone his ambition for reëlection to the Senate that distracts him from his task. The story goes that some years ago a Senator was asked: ‘How many candidates for the presidency are there in the Senate?’ More anxious to seem modest than truthful, he replied: ‘Ninety-five!’ As long ago as 1835, John Quincy Adams commented that the Senate was becoming a breeding place for presidential candidates, and that at that moment it contained four aspirants for the presidency. But Benton and Calhoun, Clay and Webster aspired before the days of presidential primaries. It is a safe guess that never before have so many presidential bees been buzzing in the Senate Chamber as during the present session, and these ambitions for higher station, like those for reëlection to the Senate, apparently lead to greater truckling to popular favor in the aspirant’s speeches and votes, and certainly cut scandalously into his actual service in the Senate.

The open season for primary campaigns began about February 15. From that date to April 10 there were 75 roll calls and 33 yea-and-nay votes. Of four Senators seeking reëlection, the record during that period was as follows: —

	Roll Calls	Votes
A. ELKINS	19	7
B. FERNALD	1	0
C. McCORMICK	13	4
D. STERLING	10	2

Of two presidential aspirants, the record was: —

	Roll Calls	Votes
E. JOHNSON	4	1
F. UNDERWOOD	14	4

The rules of the Senate still require that ‘No Senator shall absent himself from the service of the Senate without leave.’ Yet in recent years it is not a rare occurrence for a Senator to absent himself from the chamber for many consecutive weeks while he plays golf in Florida or politics in some State a thousand miles away. In most of the above cases the Senators had provided themselves with ‘general pairs,’ and, when attention was called to the absence of one of these Senators, that fact was at once and indignantly advanced as a complete vindication.

How remote is this point of view from that of earlier days is seen from Benton’s statement that in his thirty years’ service in the Senate he had never there seen an instance of ' pairing off,’ although he knew that it had since been introduced. When for the first time in 1840 a member of the House gave as his reason for not voting that he was ‘paired off’ with a colleague whose affairs required him to go home, Benton writes: ‘It was a strange annunciation, and called for rebuke. . . ♦ John Quincy Adams immediately proposed to the House the adoption of this resolution: “Resolved, that the practice, first openly avowed at this session of Congress, of pairing off, involves on the part of the members resorting to it, the violation of the Constitution of the United States, of an express rule of this House, and of the duties of both parties in the transaction to their immediate constituents, to this House, and to their Country!’”

The securing of a general pair is little else than a meaningless gesture of compliance with the Senate rule or with the Senator’s oath of faithful service. During the present session there have been before the Senate two proposals for amendments of the Constitution, bills for farmers’ relief, for immigration restriction, and for the abatement of twenty-five per cent on the income-tax levy of 1923. Not one of these was essentially a partisan measure; each called for discriminating discussion and modification. Yet underlying the general pair is the assumption that on every question that may arise in one Senator’s absence, his vote will be offset by that of his pair, and that thus his absence is justified. Half a great State’s share in the work of the dominant branch of Congress is embodied in that one Senator. How does a general pair, covering weeks of sport or of fencemending, square with so great a public trust?

III

At any time the tracing of the effects from a single change in political institutions is a dubious enterprise. A more unfortunate time than the present session of Congress could hardly be chosen for attempting any estimate of the effects wrought in a decade by change in the method of electing Senators. In the first place, this Congress began its session on the eve of a tumultuous election campaign, in which not a few Senators were distracted by their presidential aspirations, while nearly one in three of its members was perturbed over problems relating to his own reëlection.

In the second place, the advent of a third party in the Senate and the readiness of the self-styled ‘Progressive Republicans’ to join with the Democrats in every manner of obstruction, though not making common cause with them in any constructive programme, have made effective teamplay impossible. The month-long struggle, result ing at last in the election of a minority member as chairman of the only committee in which a contest was attempted, was the curtain-raiser for a session of uncertainty, disorder and delay.

In the third place, the Senate has developed an unprecedented passion for investigations. The distractions of these sideshows have become so great that the main circus is left with very scant attendance. The ol her day. when the presiding officer’s gavel fell, to open the regular session, the Republican whip was the only other Senator in the Chamber. One member suggested in debate that in order to secure the presence of a quorum in the Senate Chamber, an investigating committee be assigned a meeting-place in each of its four corners. Each committee is coming to designate its ‘Prosecutor’ — a title novel and ominous in Senate development. The Constitution ordained the Senate to serve as a high court of impeachment, not as a grand jury. Nor would any reputable prosecuting attorney in the presence of a grand jury allow himself such riotous licence as one and another of these notoriety-seeking ‘Prosecutors’ has introduced into some of these hearings.

Not only do formal reports and recommendations come from these committees to the Senate, but the newspapers’ reports of the most irrelevant testimony and gossip daily become in turn the text for Senate debate. Early disclosures cast grave suspicion upon former Secretary Fall and other high officers of the present administration. Those charges deserved to be followed without fear or favor to the very end, and where guilt could be proved, the punishment should have been swift and condign. But the freedom of debate, which the Senate has always been so reluctant to curb, has been most grievously abused.

Up to date, the present session has a record notable for stalled legislation. The minority leader delights to say that responsibility for the inaction rests ‘on the majority, which has no programme.’ The taunt is unjust, for the fact is that the real majority is made up of the Democrats, the two Farmer-Labor members, and the LaFollette senators who persistently join with the Democrats in practically every act that can weaken or embarrass the Republicans thus left in the lurch. For obstructive tactics this alignment is ideal; for orderly doing of the day’s work of the Senate it is impossible.

There has been little deliberate filibustering, perhaps because few measures have yet been advanced to the killing stage. But there has been enormous waste of time. John Adams once described the Senate over which he presided as ‘a select council of statesmen, true to their duties, not ambitious of logomachy, and not making their honorable station subsidiary to other objects.’ Not ambitious of logomachy! There comes to mind that speech on Soviet Russia — a speech running through the better part of the sessions of three days; a speech, be it said, which contained much of valuable information and evident attempt at fairness of judgment, but prolix, repetitious, apparently planless, and read from proof sheets in dreary monotone; and that other speech, on the power of removal — a speech of three times the length and one third the substance of the masterly one in which the subject had been covered on the previous day by Senator Borah. These are but samples. Have our Senators forgotten that Edward Everett was the ‘orator’ on a certain memorial occasion at Gettysburg, when Abraham Lincoln also delivered an address?

Will the partisan haranguer, the self-advertiser and the long-winded orator force the Senate to adopt a workable closure? As experience proves, such a step would be taken with great reluctance. Such abuses of freedom of debate as the present session has witnessed may perhaps be more salutarily corrected by the slower process of education in the electorate. The forecast that popular election will fill the Senate with men who will fight for ‘the things that the people love’ sets one pondering on Love’s proverbial blindness.

IV

In this first session of the Sixty-eighth Congress the Senate, which has made such halting progress in doing its own part in the essential work of a legislative body, has made startling encroachments in other fields of governmental activity. Three resolutions have been introduced, requesting the President to call for the resignation of high officials in his Administration. Hitherto, controversies over removals between the Senate and the President — with a single exception, as far as the writer recalls — have been over the attempt of the Senate to prevent the President’s making removals for personal or partisan reasons. In 1910 a resolution was introduced in the Senate, calling upon President Taft to request the resignation of the Secretary of the Interior, but it never was brought to a vote. By what Senator Reed has characterized as ‘ a cheap and nasty method,’ the Senate forced Secretary Denby out of office; the resolution against the Attorney-General was modified, and the request for his removal was eliminated; the third resolution, aimed at AssistantSecretary Roosevelt, still hangs fire. In the resolution calling for court action to cancel the ‘oil leases,’ the President was authorized and ‘directed’ to employ special counsel, and members of the Attorney-General’s staff were specifically excluded from such service. In authorizing investigation of the work of the AttorneyGeneral, the Senate elected the committee, instead of providing for its appointment by the President pro tempore, as is the usual practice, and virtually allowed the Democratic proposer of the resolution to place himself upon the committee and to name as its chairman one of the most vociferous members of the Farm Bloc — a convincing illustration of the utter breakdown of party responsibility. Day after day, by arguments that seem to convince only the sponsor for the resolution and one or two others, the Senate has been forced to listen to an attack upon the legality of Mr. Mellon’s holding the position of Secretary of the Treasury. In a committee authorized to investigate the Division of Internal Revenue, after it had virtually completed its task as at first planned, a resolution was passed by Senator Couzens and the two Democratic members, — the proposal not having been before suggested to the chairman or to the other Republican member, — authorizing the employment of one of the country’s most sensational criminal lawyers as the committee’s ‘Prosecutor’ in a field of inquiry not in contemplation at the time the committee was raised, this ‘Prosecutor’ to be paid out of the pocket of the multimillionaire who had instigated the appointment of the committee, and whose personal controversy with the Secretary of the Treasury had for months been a matter of national notoriety.

The sequel to this sharp practice within a Senate committee is of recent memory. The chairman of the committee sought to have the committee discharged from its task, and the President sent to the Senate a message transmitting a letter of protest from the Secretary of the Treasury together with a vigorous assertion of the duty of the Executive to resist unwarranted intrusion by the Senate, and the admonition: It is time that we returned to a government under and in accordance with the usual forms of the law of the land.’

In the Senate debate over this message there was not the slightest attempt made to justify the action of the committee in authorizing the employment of a Prosecutor to be paid by the private funds of a Senator with a grievance; but several Senators professed to find in it a grave affront, to the dignity of the Senate. The attempt was made to torture the President’s words into a condemnation of all the Senate’s investigating committees and a refusal for the future to submit to its committees the documents or information necessary for their work. One Senator declared that only by express disavowal of intent to criticize more than the Prosecutor-hiring by that one committee could the President be ‘acquitted of sending to the Senate of the United States as arrogant a message, I undertake to say, as since the days of the Tudors and Stuarts was ever sent by the Executive to a parliamentary body of English-speaking people.’

But it is hardly necessary for Democratic assailants of the President to turn back the pages of history to the days of the Tudors and the Stuarts. They will find interest and pertinence in the context of these two passages from special messages addressed to the Senate by two great Democratic Presidents : —

It is now . . . my solemn conviction that I ought no longer, from any motive, nor in any degree, to yield to these unconstitutional demands. Their continued repetition imposes on me, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive. . . .

Compliance with such demands would ultimately subject the independent constitutional action of the Executive, in a matter of great national concernment, to the domination and control of the Senate; if not acquiesced in, it would lead to collisions between coordinate branches of the Government, well calculated to expose the parties to indignity and reproach, and to inflict on the public interest serious and lasting mischief. (ANDREW JACKSON, Message to the Senate, February 2, 1835.)

The requests and demands which by the score have for nearly three months been presented to the different departments of the Government, whatever their form, have but one complexion. They assume the right of the Senate to sit in judgment upon the exercise of my exclusive discretion and Executive function, for which I am solely responsible to the people from whom I have so lately received the sacred trust of office. My oath to support and defend the Constitution, my duty to the people who have chosen me to execute the powers of their great office and not to relinquish them, and my duty to the Chief Magistracy, which I must preserve unimpaired in all its dignity and vigor, compel me to refuse compliance with these demands. (GROVER CLEVELAND, Message to the Senate, March 1, 1886.)

Both of these assertions of Executive independence were called forth by Senate resolutions asking for papers and other information upon the basis of which the President had removed certain officials. In each case the President maintained his right to refuse information the transmittal of which in his opinion was not essential to the performance of a constitutional function of the Senate. In neither case would compliance with the Senate’s request have meant such a derogation from the dignity of the Executive nor such an interference with the responsible carrying-on of the Executive functions as would have been involved in acquiescence in a millionaire Senator’s paying from his own purse the fees of an inquisitor to go scandalhunting through the files of a great Department of the Government.¹ It is well to recall that in these former controversies public sentiment strongly sided with Jackson and with Cleveland in their resistance to what was deemed the Senate’s ‘unwarranted intrusion.’

V

‘The Kingdom of Heaven cometh not with observation.’ It may be that thus the Seventeenth Amendment’s ‘epoch-making reform’ is stealing upon us, without our full discernment of its coming. In State elections and in State legislatures the gains due to that Amendment are obvious. ‘ But whether or not we have elevated the standard of this body by the change in the manner of the election of Senators is still an open question’ — a question to which the record of the past five months contributes little that will weigh for an answer in the affirmative. The patience, persistence, and skill with which some exhaustive investigating was pursued in the early weeks of the session well deserve the high praise they have received. But sensational disclosures bred a love for sensation, and the partisan and the self-advertiser leapt to their opportunity, until the Senate Chamber often was filled with ‘sound and fury, signifying nothing.’

From the niches on its walls look down the busts of a score of VicePresidents, beginning with John Adams, under whom the Senate worked out its first precedents, and Thomas Jefferson, whose Manual is still the authority regulating much of the Senate’s procedure. Nothing has disturbed the calm of those pale faces. But if, during the present session, those ears could have been unstopped and if those lips could have uttered the thoughts that arose in those twenty former Presidents of the Senate, what would have been their comments? Many a time I have found myself wondering if John Adams would have turned to his next neighbor, Thomas Jefferson, with the comment which he confided to his wife, one hundred and thirty years ago: ‘I have not been absent a day. It is to be sure, a punishment to hear other people talk five hours every day, and not be at liberty to talk at all myself, especially as much that I hear appears to me very young, inconsiderate and inexperienced.’

1. May 6, 1924, on motion of one of its minority members, the select committee charged with investigating the Bureau of Internal Revenue, after long debate but without a record vote, was authorized to employ counsel. So it is to be assumed that the aforesaid lawyer, Francis J. Heney, will be employed, but that he will be paid for his researches by the United States instead of by Senator Couzens.↩