Thirty Years' View (Vol. I of 2)

CHAPTER XXX.

EXCLUSION OF MEMBERS OF CONGRESS FROM CIVIL OFFICE APPOINTMENTS

An inquiry into the expediency of amending the constitution so as to prevent the appointment of any member of Congress to any federal office of trust or profit, during the period for which he was elected, was moved at the session 1825-26, by Mr. Senator Thomas W. Cobb, of Georgia; and his motion was committed to the consideration of the same select committee to which had been referred the inquiries into the expediency of reducing executive patronage, and amending the constitution in relation to the election of President and Vice-President. The motion as submitted only applied to the term for which the senator or representative was elected – only carried the exclusion to the end of his constitutional term; but the committee were of opinion that such appointments were injurious to the independence of Congress and to the purity of legislation; and believed that the limitation on the eligibility of members should be more comprehensive than the one proposed, and should extend to the President's term under whom the member served as well as to his own – so as to cut off the possibility for a member to receive an appointment from the President to whom he might have lent a subservient vote: and the committee directed their chairman (Mr. Benton) to report accordingly. This was done; and a report was made, chiefly founded upon the proceedings of the federal convention which framed the constitution, and the proceedings of the conventions of the States which adopted it – showing that the total exclusion of members of Congress from all federal appointments was actually adopted in the convention on a full vote, and struck out in the absence of some members; and afterwards modified so as to leave an inadequate, and easily evaded clause in the constitution in place of the full remedy which had been at first provided. It also showed that conventions of several of the States, and some of the earlier Congresses, endeavored to obtain amendments to the constitution to cut off members of Congress entirely from executive patronage. Some extracts from that report are here given to show the sense of the early friends of the constitution on this important point. Thus:

"That, having had recourse to the history of the times in which the constitution was formed, the committee find that the proposition now referred to them, had engaged the deliberations of the federal convention which framed the constitution, and of several of the State conventions which ratified it.

"In an early stage of the session of the federal convention, it was resolved, as follows:

"'Article 6, section 9. The members of each House (of Congress) shall be ineligible to, and incapable of holding, any office under the authority of the United States, during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.'

"It further appears from the journal, that this clause, in the first draft of the constitution, was adopted with great unanimity; and that afterwards, in the concluding days of the session, it was altered, and its intention defeated, by a majority of a single vote, in the absence of one of the States by which it had been supported.

"Following the constitution into the State conventions which ratified it, and the committee find, that, in the New-York convention, it was recommended, as follows:

"'That no senator or representative shall, during the time for which he was elected, be appointed to any office under the authority of the United States.

"By the Virginia convention, as follows:

"'That the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the term for which they shall respectively be elected.'

"By the North Carolina convention, the same amendment was recommended, in the same words.

"In the first session of the first Congress, which was held under the constitution, a member of the House of Representatives submitted a similar proposition of amendment; and, in the third session of the eleventh Congress, James Madison being President, a like proposition was again submitted, and being referred to a committee of the House, was reported by them in the following words:

"'No senator or representative shall be appointed to any civil office, place, or emolument, under the authority of the United States, untill the expiration of the presidential term in which such person shall have served as a senator or representative.'

"Upon the question to adopt this resolution, the vote stood 71 yeas, 40 nays. – wanting but three votes of the constitutional number for referring it to the decision of the States.

"Having thus shown, by a reference to the venerable evidence of our early history, that the principle of the amendment now under consideration, has had the support and approbation of the first friends of the constitution, the committee will now declare their own opinion in favor of its correctness, and expresses its belief that the ruling principle in the organization of the federal government demands its adoption."

It is thus seen that in the formation of the constitution, and in the early ages of our government, there was great jealousy on this head – great fear of tampering between the President and the members – and great efforts made to keep each independent of the other. For the safety of the President, and that Congress should not have him in their power, he was made independent of them in point of salary. By a constitutional provision his compensation was neither to be diminished nor increased during the term for which he was elected; – not diminished, lest Congress should starve him into acquiescence in their views; – not increased, lest Congress should seduce him by tempting his cupidity with an augmented compensation. That provision secured the independence of the President; but the independence of the two Houses was still to be provided for; and that was imperfectly effected by two provisions – the first, prohibiting office holders under the federal government from taking a seat in either House; the second, by prohibiting their appointment to any civil office that might have been created, or its emoluments increased, during the term for which he should have been elected. These provisions were deemed by the authors of the federalist (No. 55) sufficient to protect the independence of Congress, and would have been, if still observed in their spirit, as well as in their letter, as was done by the earlier Presidents. A very strong instance of this observance was the case of Mr. Alexander Smythe, of Virginia, during the administration of President Monroe. Mr. Smythe had been a member of the House of Representatives, and in that capacity had voted for the establishment of a judicial district in Western Virginia, and by which the office of judge was created. His term of service had expired: he was proposed for the judgeship: the letter of the constitution permitted the appointment: but its spirit did not. Mr. Smythe was entirely fit for the place, and Mr. Monroe entirely willing to bestow it upon him. But he looked to the spirit of the act, and the mischief it was intended to prevent, as well as to its letter; and could see no difference between bestowing the appointment the day after, or the day before, the expiration of Mr. Smythe's term of service: and he refused to make the appointment. This was protecting the purity of legislation according to the intent of the constitution; but it has not always been so. A glaring case to the contrary occurred in the person of Mr. Thomas Butler King, under the presidency of Mr. Fillmore. Mr. King was elected a member of Congress for the term at which the office of collector of the customs at San Francisco had been created, and had resigned his place: but the resignation could not work an evasion of the constitution, nor affect the principle of its provision. He had been appointed in the recess of Congress, and sent to take the place before his two years had expired – and did take it; and that was against the words of the constitution. His nomination was not sent in until his term expired – the day after it expired – having been held back during the regular session; and was confirmed by the Senate. I had then ceased to be a member of the Senate, and know not whether any question was raised on the nomination; but if I had been, there should have been a question.

But the constitutional limitation upon the appointment of members of Congress, even when executed beyond its letter and according to its spirit, as done by Mr. Monroe, is but a very small restraint upon their appointment, only applying to the few cases of new offices created, or of compensation increased, during the period of their membership. The whole class of regular vacancies remain open! All the vacancies which the President pleases to create, by an exercise of the removing power, are opened! and between these two sources of supply, the fund is ample for as large a commerce between members and the President – between subservient votes on one side, and executive appointments on the other – as any President, or any set of members, might choose to carry on. And here is to be noted a wide departure from the theory of the government on this point, and how differently it has worked from what its early friends and advocates expected. I limit myself now to Hamilton, Madison and Jay; and it is no narrow limit which includes three such men. Their names would have lived for ever in American history, among those of the wise and able founders of our government, without the crowning work of the "Essays" in behalf of the constitution which have been embodied under the name of "Federalist" – and which made that name so respectable before party assumed it. The defects of the constitution were not hidden from them in the depths of the admiration which they felt for its perfections; and these defects were noted, and as far as possible excused, in a work devoted to its just advocation. This point (of dangerous commerce between the executive and the legislative body) was obliged to be noticed – forced upon their notice by the jealous attacks of the "Anti-Federalists" – as the opponents of the constitution were called: and in the number 55 of their work, they excused, and diminished, this defect in these terms:

"Sometimes we are told, that this fund of corruption (Executive appointments) is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of the government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices, therefore, can be dealt out to the existing members, but such as may become vacant by ordinary casualties; and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain."

Such was their defence – the best which their great abilities, and ardent zeal, and patriotic devotion, could furnish. They could not deny the danger. To diminish its quantum, and to cover with a brilliant declamation the little that remained, was their resource. And, certainly if the working of the government had been according to their supposition, their defence would have been good, I have taken the liberty to mark in italics the ruling words contained in the quotation which I have made from their works – "ordinary casualties." And what were they? deaths, resignations, removals upon impeachment, and dismissions by the President and Senate. This, in fact, would constitute a very small amount of vacancies during the presidential term; and as new offices, and those of increased compensation, were excluded, the answer was undoubtedly good, and even justified the visible contempt with which the objection was repulsed. But what has been the fact? what has been the working of the government at this point? and how stands this narrow limitation of vacancies to "ordinary casualties?" In the first place, the main stay of the argument in the Federalist was knocked from under it at the outset of the government; and so knocked by a side-blow from construction. In the very first year of the constitution a construction was put on that instrument which enabled the President to create as many vacancies as he pleased, and at any moment that he pleased. This was effected by yielding to him the kingly prerogative of dismissing officers without the formality of a trial, or the consent of the other part of the appointing power. The authors of the Federalist had not foreseen this construction: so far from it they had asserted the contrary: and arguing logically from the premises, "that the dismissing power was appurtenant to the appointing power," they had maintained in that able and patriotic work – (No. 77) – that, as the consent of the Senate was necessary to the appointment of an officer, so the consent of the same body would be equally necessary to his dismission from office. But this construction was overruled by the first Congress which sat under the constitution. The power of dismission from office was abandoned to the President alone; and, with the acquisition of this prerogative, the power and patronage of the presidential office was instantly increased to an indefinite extent; and the argument of the Federalist against the capacity of the President to corrupt members of Congress, founded on the small number of places which he could use for that purpose, was totally overthrown. This is what has been done by construction. Now for the effects of legislation: and without going into an enumeration of statutes so widely extending and increasing executive patronage in the multiplication of offices, jobs, contracts, agencies, retainers, and sequiturs of all sorts, holding at the will of the President, it is enough to point to a single act – the four years' limitation act; which, by vacating almost the entire civil list – the whole "Blue Book" – the 40,000 places which it registers – in every period of a presidential term – puts more offices at the command of the President than the authors of the Federalist ever dreamed of; and enough to equip all the members and all their kin if they chose to accept his favors. But this is not the end. Large as it opens the field of patronage, it is not the end. There is a practice grown up in these latter times, which, upon every revolution of parties, makes a political exodus among the adversary office-holders, marching them off into the wilderness, and leaving their places for new-comers. This practice of itself, also unforeseen by the authors of the Federalist, again over-sets their whole argument, and leaves the mischief from which they undertook to defend the constitution in a degree of vigor and universality of which the original opposers of that mischief had never formed the slightest conception.

Besides the direct commerce which may take place between the Executive and a member, there are other evils resulting from their appointment to office, wholly at war with the theory of our government, and the purity of its action. Responsibility to his constituents is the corner-stone and sheet-anchor, in the system of representative government. It is the substance without which representation is but a shadow. To secure that responsibility the constitution has provided that the members shall be periodically returned to their constituents – those of the House at the end of every two years, those of the Senate at the end of every six – to pass in review before them – to account for what may have been done amiss, and to receive the reward or censure of good or bad conduct. This responsibility is totally destroyed if the President takes a member out of the hands of his constituents, prevents his return home, and places him in a situation where he is independent of their censure. Again: the constitution intended that the three departments of the government, – the executive, the legislative, and the judicial – should be independent of each other: and this independence ceases, between the executive and legislative, the moment the members become expectants and recipients of presidential favor; – the more so if the President should have owed his office to their nomination. Then it becomes a commerce, upon the regular principle of trade – a commerce of mutual benefit. For this reason Congress caucuses for the nomination of presidential candidates fell under the ban of public opinion, and were ostracised above twenty years ago – only to be followed by the same evil in a worse form, that of illegal and irresponsible "conventions;" in which the nomination is an election, so far as party power is concerned; and into which the member glides who no longer dares to go to a Congress caucus; – whom the constitution interdicts from being an elector – and of whom some do not blush to receive office, and even to demand it, from the President whom they have created. The framers of our government never foresaw – far-seeing as they were – this state of things, otherwise the exclusion of members from presidential appointments could never have failed as part of the constitution, (after having been first adopted in the original draught of that instrument); nor repulsed when recommended by so many States at the adoption of the constitution; nor rejected by a majority of one in the Congress of 1789, when proposed as an amendment, and coming so near to adoption by the House.

Thus far I have spoken of this abuse as a potentiality – as a possibility – as a thing which might happen: the inexorable law of history requires it to be written that it has happened, is happening, becomes more intense, and is ripening into a chronic disease of the body politic. When I first came to the Senate thirty years ago, aged members were accustomed to tell me that there were always members in the market, waiting to render votes, and to receive office; and that in any closely contested, or nearly balanced question, in which the administration took an interest, they could turn the decision which way they pleased by the help of these marketable votes. It was a humiliating revelation to a young senator – but true; and I have seen too much of it in my time – seen members whose every vote was at the service of government – to whom a seat in Congress was but the stepping-stone to executive appointment – to whom federal office was the pabulum for which their stomachs yearned – and who to obtain it, were ready to forget that they had either constituents or country. And now, why this mortifying exhibition of a disgusting depravity? I answer – to correct it: – if not by law and constitutional amendment (for it is hard to get lawgivers to work against themselves), at least by the force of public opinion, and the stern rebuke of popular condemnation.

I have mentioned Mr. Monroe as a President who would not depart, even from the spirit of the constitution, in appointing, not a member, but an ex-member of Congress, to office. Others of the earlier Presidents were governed by the same principle, of whom I will only mention (for his example should stand for all) General Washington, who entirely condemned the practice. In a letter to General Hamilton (vol. 6, page 53, of Hamilton's Works), he speaks of his objections to these appointments as a thing well known to that gentleman, and which he was only driven to think of in a particular instance, from the difficulty of finding a Secretary of State, successor to Mr. Edmund Randolph. No less than four persons had declined the offer of it; and seeing no other suitable person without going into the Senate, he offered it to Mr. Rufus King of that body – who did not accept it: and for this offer, thus made in a case of so much urgency, and to a citizen so eminently fit, Washington felt that the honor of his administration required him to show a justification. What would the Father of his country have thought if members had come to him to solicit office? and especially, if these members (a thing almost blasphemous to be imagined in connection with his name) had mixed in caucuses and conventions to procure his nomination for President? Certainly he would have given them a look which would have sent such suppliants for ever from his presence. And I, who was senator for thirty years, and never had office for myself or any one of my blood, have a right to condemn a practice which my conduct rebukes, and which the purity of the government requires to be abolished, and which the early Presidents carefully avoided.

CHAPTER XXXI.

DEATH OF THE EX-PRESIDENTS JOHN ADAMS AND THOMAS JEFFERSON

It comes within the scope of this View to notice the deaths and characters of eminent public men who have died during my time, although not my contemporaries, and who have been connected with the founding or early working of the federal government. This gives me a right to head a chapter with the names of Mr. John Adams and Mr. Jefferson – two of the most eminent political men of the revolution, who, entering public life together, died on the same day, – July 4th, 1826, – exactly fifty years after they had both put their hands to that Declaration of Independence which placed a new nation upon the theatre of the world. Doubtless there was enough of similitude in their lives and deaths to excuse the belief in the interposition of a direct providence, and to justify the feeling of mysterious reverence with which the news of their coincident demise was received throughout the country. The parallel between them was complete. Born nearly at the same time, Mr. Adams the elder, they took the same course in life – with the same success – and ended their earthly career at the same time, and in the same way: – in the regular course of nature, in the repose and tranquillity of retirement, in the bosom of their families, and on the soil which their labors had contributed to make free.

Born, one in Massachusetts, the other in Virginia, they both received liberal educations, embraced the same profession (that of the law), mixed literature and science with their legal studies and pursuits, and entered early into the ripening contest with Great Britain – first in their counties and States, and then on the broader field of the General Congress of the Confederated Colonies. They were both members of the Congress which declared Independence – both of the committee which reported the Declaration – both signed it – were both employed in foreign missions – both became Vice Presidents – and both became Presidents. They were both working men; and, in the great number of efficient laborers in the cause of Independence which the Congresses of the Revolution contained, they were doubtless the two most efficient – and Mr. Adams the more so of the two. He was, as Mr. Jefferson styled him, "the Colossus" of the Congress – speaking, writing, counselling – a member of ninety different committees, and (during his three years' service) chairman of twenty five – chairman also of the board of war and board of appeals: his soul on fire with the cause, left no rest to his head, hands, or tongue. Mr. Jefferson drew the Declaration of Independence, but Mr. Adams was "the pillar of its support, and its ablest advocate and defender," during the forty days it was before the Congress. In the letter which he wrote that night to Mrs. Adams (for, after all the labors of the day, and such a day, he could still write to her), he took a glowing view of the future, and used those expressions, "gloom" and "glory," which his son repeated in the paragraph of his message to Congress in relation to the deaths of the two ex-Presidents, which I have heard criticized by those who did not know their historical allusion, and could not feel the force and beauty of their application. They were words of hope and confidence when he wrote them, and of history when he died. "I am well aware of the toil, and blood, and treasure, that it will cost to maintain this Declaration, and to support and defend these States; yet through all the gloom, I can see the rays of light and glory!" and he lived to see it – to see the glory – with the bodily, as well as with the mental eye. And (for the great fact will bear endless repetition) it was he that conceived the idea of making Washington commander-in-chief, and prepared the way for his unanimous nomination.