VIII.

THE CABINET IN CONGRESS.

ITS CONSTITUTIONALITY-THE PRACTICE AND PRECEDENTS-INFORMATION DERIVABLE FROM THE ADMISSION OF THE CABINET-ABSORPTION OF THE POWER OF THE LEGISLATURE BY THE EXECUTIVE-ITS EFFECT ON STATE RIGHTS-TIME OF WAR UNFORTUNATE FOR SUCH A CHANGEDANGERS OF INTIMACY BETWEEN LEGISLATIVE AND EXECUTIVE DEPARTMENTS-VETO POWER-CUSTOM IN OTHER COUNTRIES-RELATIONS OF THE DIFFERENT DEPARTMENTS-BRITISH CONSTITUTION IN THIS RESPECT-ITS HISTORY-ENGLISH HABITS IN PARLIAMENT-TITTLEBAT TITMOUSE, M. P.-A CABINET PICTURE-ELEVATION OF PARLIAMENTARY ORATORY AND STATESMANSHIP.

Delivered in the House of Representatives, January 26, 1865.

"Men are naturally propense to corruption; and if he whose will and interest it is to corrupt men, be furnished with the means, he will never fail to do it. Power, honors, riches, and the pleasures that attend them, are the baits by which men are drawn to prefer a personal interest before the public good.”—Algernon Sidney.

THE House having proceeded to the consideration of the joint resolution reported by Mr. PENDLETON, to provide that the heads of Executive Departments may occupy seats on the floor of the House of Representatives, Mr. Cox said: Mr. Speaker, the House is under obligations to the committee for presenting this measure. Great good and no harm will come from a free and full discussion of the distribution of the powers of the Government. In all innovations the burden is upon those who propose them to show their utility. The committee have proposed to change the machinery of our Government in two ways: first, that the heads of Departments shall have at all times the right to occupy seats and participate in debate upon all matters relating to the business of their departments; secondly, that on two days of the week they shall attend the House and give information on all questions submitted to them. I propose to discuss the question in the following order: First, to answer the report; second, to show the dangers of this innovation.

I. To answer the report. Under this head I consider, first, the constitutionality of the measure. The committee entertain no doubt on this head. There is no provision against it in the Constitution, and it is regarded as part of that power by which "each House may determine the rules of its proceedings." I will not contest our power to pass the resolution. But the discussion of its merits will show that its passage will be an infraction of the spirit if not of the letter of the Constitution, which provides that no "person holding any office under the United States shall be a member of either House during his continuance in office." The same reasoning upon which this clause of disqualification is founded should forbid the admission of the Cabinet into Congress, either to debate or answer inquiries. I shall show that there is a stronger reason for the rejection of this measure than for the rejection of the Cabinet as members. That stronger reason is, that in case of membership they are liable to expulsion and censure, responsible to their constituents, who hold over them the rod of public opinion, backed by suffrage; while in the other case they are responsible to no one for their official tenure but the Chief Executive, whose subordinates and servants they are. A hundred censures cannot move them from their places. So long as they suit the President, they can contemn the severest criticism and loudest anathemas of Congress. When this clause of disqualification for membership was adopted it met with no opposition in the Convention. So says Judge Story. He adds further:

"It has been deemed by one commentator an admirable provision against venality, though not perhaps sufficiently guarded to prevent evasion. And it has been elaborately vindicated by another with uncommon earnestness."-1 Story, p. 310, sec. 440.

And here it may be proper to say that the committee have invoked the wisdom and learning of Judge Story to sustain their views. This is a mistake. The committee have quoted only the arguments presented by him in favor of that side. He states, with equal point, the arguments upon the other, leaving the decision to the judgment of the student. The committee have not done justice to the question in thus presenting the case. I will supply the omission by citing the omitted portions:

"The other part of the clause, which disqualifies persons holding any office under the United States from being members of either House during their continuation in office, has been still more universally applauded; and has been vindicated upon the highest grounds of public policy. It is doubtless founded in a deference to State jealousy and a sincere desire to obviate the fears, real or imaginary, that the General Government would obtain an undue preference over the State Governments. It has also the strong recommendation that it prevents any undue influence from office, either upon the party himself or those with whom he is associated in legislative deliberations."

And after the passage quoted by the committee, he proceeds to say:

"Such is the reasoning by which many enlightened statesmen have not only been led to doubt, but even to deny the value of this constitutional disqualification. And even the most strenuous advocates of it are compelled so far to admit its force as to concede that the measures of the Executive Government, so far as they fall within the immediate department of a particular office, might be more directly and fully explained on the floor of the House. Still, however, the reasoning from the British practice has not been deemed satisfactory by the public; and the guard interposed by the Constitution has been received with general approbation, and has been thought to have worked well during our experience under the national Government. Indeed, the strongly marked parties in the

British Parliament, and their consequent dissensions, have been ascribed to the non-existence of any such restraints; and the progress of the influence of the Crown, and the supposed corruptions of legislation, have been by some writers traced back to the same original blemish. Whether these inferences are borne out by historical facts is a matter upon which different judgments may arrive at different conclusions; and a work like the present is not the proper place to discuss them."-1 Story, pp. 313, 314.

So that we may draw from these citations four reasons against the measures proposed by the committee: first, the extreme party dissensions, owing to the presence of executive agents in the House; second, the progress of the undue influence of the Executive; third, the corruptions of the Legislature; fourth, a well-grounded jealousy of Federal predominance over State Governments. But to me the principal reason is the undue and corrupting influence of such a connection upon both the Cabinet and Congress. If this reasoning be found valid, then the Constitution is violated in its essential spirit by the disturbance of that healthful equilibrium between the Legislature and Executive which it was designed by the framers of the Constitution to avoid. But of these points I will speak particularly hereafter.

Second: The practice and precedents referred to by the committee.

The committee appeal to legislation and practice-to the law of 1787 -authorizing the head of the Treasury to make report in person or in writing, to either branch. Because of these precedents they regard the power as unquestioned. The fact that this law and custom, used in 1789 by the Departments of State and of the Treasury, and yet unrepealed, has fallen into desuetude, is rather evidence that not only has the guard of the Constitution been regarded as salutary as against membership, but, by "general approbation," against the entrée of the Cabinet into the debates and deliberation of Congress. At least, as Judge Story says, the reasoning from the British practice has not been deemed satisfactory by the public. In fact, as I shall show, the British experience led to their exclusion here. And yet the "rules," say the committee, 66 now recommended are almost identical with those of the British House of Commons." The gentleman from Vermont [Mr. MORRILL] has most thoroughly answered this portion of the report.

Third: As to the influence of the Executive upon the Legislature. The committee state that the object of the resolution is to influence legislation by the Executive. They would recognize that influence and give it authority. Assuming that such an influence will, does, and must exist, they propose to make it open, official, and honorable, instead of secret, unrecognized, and liable to abuse. This sort of argument would find its par value in an argument like the following: Robbery in the shape of burglary will exist. It is all wrong, but it exists. Let us recognize the fact, and by law make it open, honorable, and authoritative, instead of secret, nocturnal, and liable to be abused. Let us authorize highway robbery as something bold and romantic. Or, prostitution exists, secret and dangerous; let us license and legalize it; and the practice, so deleterious when secret, will lose its depravity when open. Executive influence upon legislation is wrong, dangerous, and subversive of freedom. It exists, but is now covert and dangerous; let us make it open, bold, and authoritative, and it will be innoxious.

If the mode were constitutional and it would dignify and purify the executive influence, I might vote for it. But I cannot see that because you increase the opportunities of executive contact with the Legislature you diminish the contagion and the fatal corruption as its consequence. Because you debar the Cabinet member from a vote, do you prevent his influence in the House? If you require open debate, do you stop secret intrigue? Did not Walpole debate and corrupt the House? Did not the younger Pitt defy Parliament even in debate, and coerce the Commons? The whipper-in on a division, the manager of the House, were not these incident to open and authorized discussion? The Government felt more interest in the result of the vote, because it had been called directly to the bar. It stopped at no means to secure its triumph. The threats of the third George again and again to leave the island and to place those under the royal ban who voted against his measures, was the accompaniment of the fiercest wrangles of Parliament and the most open arraignment of ministers. I admit that if the influence of the Executive is desirable in our legislation, it should be open, declared, and authorized, rather than secret, concealed, and unauthorized. But this resolution facilitates the secrecy and authorizes the influence which we deprecate and should prevent.

Fourthly: As to the information to be derived from the admission of the Cabinet, and the cases cited by the committee. Two objects are sought by this measure, say the committee: first, general debate; second, information from Cabinet officers. Both are included in the second specification. If the object were only information, we have the means provided already. Conferences by committees with the Departments furnish one medium. The citations appended to the report of the committee show that this is almost always a prerequisite to the maturing of measures. In the cases cited on pages 11, 12, 13, et seq., of the report, the complaints were, not that the Departments would not furnish information or recommend measures, but that in those particular instances the information was not definite or the recommendation made in writing. But the debates in those cases show that such information and recommendation were easily ob tained. In the cases of the legal tender and gold bills, the debate brought out the letters of the Secretary of the Treasury. In the case of the loan bill, the instance cited is most unfortunate as an argument for this measure. The appearance of the Secretary and Assistant Secretary of the Treasury upon the floor of the House had the effect of subverting the judgment of the House. The gentleman from Pennsylvania had moved that the interest of the bonds should be paid in currency. It was carried by twenty-one majority. When reported to the House, lo! it was defeated 59 to 81, a change of forty-two on a question as to which the House were informed of the facts, and as to which the executive officers only expressed their wish and opinion! What humiliation! No undue arguments were used. No bribe or corruption is charged. Simply their presence on the floor turned the heads of forty-two statesmen! If their casual visit and the expression of a wish without argumentation could work such wonders, what sort of a body would we become with the presence of the Cabinet here twice a week for information and at all times for debate and influence? The other instance cited is senatorial, on the bounty question.

The only trouble in that case was, that the chairman of the Military Committee had missed seeing the Secretary of War, and failed to possess himself of any authentic letter or recommendation of the Department. No one doubted but that he might have received the information. The point was, not that the recommendation was not made, but, as Senator CLARK said (page 17), the information had not been asked for, and, as Senator GRIMES said, there had been no action of the Administration on the subject, or at least no unity of action. Afterwards, the letter of Mr. Stanton was read, and the difficulty properly obviated. So far, then, as the Congress requires information and advice from the Departments, they can always obtain it, perhaps in over-abundance. If it come not in the graces of oratory, it will come in the more pithy, and, in this age, more useful, and, in this House, indispensable, form of writing and printing. If the ordinary reports of the Departments and the answers to resolutions of inquiry are not sufficient, will not these informal interviews of members and committees with the heads of Departments answer every purpose? If the object of the measure is information, we have the media now. If it be to influence action, that influence must be for good or evil. If for good, always and inevitably, Congress is utterly inconsequential and insig nificant―a registering body, a contemptible and expensive nonentity, worse than the fifth wheel to a coach. For what, sir, is the need of Congress if all the recommendations of the Executive are to be invariably followed? Better dispense with all legislation, or make our system conform to that cited by the committee from Europe and South America, where, except in England (owing to peculiar circumstances hereafter considered), the Legislature is the tool of the ministry, as the ministry too often is the tool of the monarchy. If the Cabinet influence is generally good and only exceptionably vicious, we have the means already of reaching its valuable suggestions, and I do not propose to enlarge its sphere of evil. But if the influence of the Executive is generally evil, corrupting to both Cabinet and Congress, aggrandizing unduly one department of power to the detriment of another, and consequently to the derangement of our system, and if it is only occasionally good, then we are bound not only to prevent but to guard with extreme jealousy every attempt to encroach with such influence upon the province of the Legislature.

In the remarks which I have submitted, I meet the two propositions of the committee as elaborated by them: First, that Congress should avail itself of the best possible means of information in relation to measures; for do we not have at our command all that we could get by the presence of the Cabinet in the House? Second, as to the character of the influence of the Executive upon the Legislature; for have I not shown that this measure will not prevent its being secret, corruptive, or unauthorized?

Fifthly: A few words as to the argument ab inconvenienti. The committee somewhat anticipate this objection. They say (page 5) that "it has been said that the time of the Secretaries would be so engrossed that they could not attend to the discharge of their other duties. If this shall prove true, they must have more assistance." It is answer enough to appeal to members as to the condition of their own business now before the Departments. They are nearly all behind. We must have the ear of the heads of Departments; and if they are compelled to attend here, and