his own cabinet,' because if he did he would be deemed accountable for its decisions, an American President always does, because he is accountable, and really needs advice to help him, not to shield him.2

3

The so-called cabinet is unknown to the statutes as well as to the Constitution of the United States. So is the English cabinet unknown to the law of England. But then the English cabinet is a part, is, in fact, a committee, though no doubt an informal committee, of a body as old as Parliament itself, the Privy Council, or Curia Regis. Of the ancient institutions of England which reappear in the Constitution of the United States, the Privy Council is not one. It may have seemed to the Convention of 1787 to be already obsolete. Even in England it was then already a belated survival from an earlier order of things, and now it lives on only in its committees, three of which, the Board of Trade, the Education department, and the Agricultural department, serve as branches of the administration, one, the Judicial Committee, is a law court, and one, the Cabinet, is the virtual executive of the nation. The framers of the American Constitution saw its unsuitability to their conditions. It was nominated, while with them a council must have been elective. Its only effect would have been to control the President, but for domestic administration control is scarcely needed, because the President has only to execute the laws, while in foreign affairs and appointments the

1 Queen Anne was the last English sovereign who sat in her own cabinet council, though indeed the cabinet had not yet then become the close body it is now.

2 Another illustration of the contrast may be found in the fact that when the head of one of the seven departments is absent from Washington the under secretary of the department is often asked to replace him in the cabinet council.

3 A privy council however appears in the original Constitution of Delaware. (See post, Chapter XXXVII.)

Senate controls him already. A third body, over and above the two Houses of Congress, was in fact superfluous. The Senate may appear in some points to resemble the English Privy Council of the seventeenth century, because it advises the executive; but there is all the difference in the world between being advised by those whom you have yourself chosen and those whom election by others forces upon you. So it happens that the relations of the Senate and the President are seldom cordial, much less confidential, even when he and the majority of the Senate belong to the same party, because the Senate and the President are rival powers jealous of one another.

CHAPTER X

THE SENATE

THE National Legislature of the United States, called Congress, consists of two bodies, sufficiently dissimilar in composition, powers, and character to require a separate description. Their respective functions bear some resemblance to those of the two Houses of the English Parliament, which had before 1787 suggested the creation of a double-chambered legislature in all but three of the original thirteen States of the Confederation. Yet the differences between the Senate and the British House of Lords, and in a less degree between the House of Representatives and the British House of Commons, are so considerable that the English reader must be cautioned against applying his English standards to the examination of the American system.1

The Senate consists of two persons from each State, who must be inhabitants of that State, and at least thirty years of age. They are elected by the legislature of their State for six years, and are re-eligible. One-third retire every two years, so that the whole body is renewed in a period of six years, the old members being thus at any given moment twice as numerous as the new

1 "How many bishops have you got in your Upper House?" is the question which an eminent Englishman is reported to have asked soon after his arrival in America.

As there are

members elected within the last two years. now thirty-eight States, the number of senators, originally twenty-six, is now seventy-six. This great and unforeseen augmentation must be borne in mind when considering the purposes for which the Senate was created, for some of which a small body is fitter than a large one. As there remain only eight Territories 1 which can be formed into States, the number of senators will not (unless, indeed, existing States are divided, or more than one State created out of some of the Territories) rise beyond ninety-two. This is of course much below the present nominal strength of the English House of Lords 2 (about 560), and below that of the French Senate (300), and the Prussian Herrenhaus (432). No senator can hold any office under the United States. The Vice-President of the Union is ex officio president of the Senate, but has no vote, except a casting vote when the numbers are equally divided. Failing him (if, for instance, he dies, or falls sick, or succeeds to the presidency), the Senate chooses one of its number to be president pro tempore. His authority in questions of order is very limited, the decision of such questions being held to belong to the Senate itself.3

The functions of the Senate fall into three classes

I reckon in neither the Indian territory, which lies west of Arkansas, nor Alaska, because these districts are not likely within an assignable time to contain a civilized population such as would entitle them to be formed into States.

2 At the accession of George III. the House of Lords numbered only 174 members.

3 The powers of the Lord Chancellor as Speaker of the English House of Lords are much narrower than those of the Speaker in the House of Commons. It is worth notice that as the Vice-President is not chosen by the Senate, but by the people, and is not strictly speaking a member of the Senate, so the Lord Chancellor is not chosen to preside by the House of Lords, but by the sovereign, and is not necessarily a peer. This, however, seems to be merely a coincidence, and not the result of a wish to imitate England.

legislative, executive, and judicial.' Its legislative function is to pass, along with the House of Representatives, bills which become Acts of Congress on the assent of the President, or even without his consent if passed a second time by a two-thirds majority of each House, after he has returned them for reconsideration. Its executive functions are:-(a) To approve or disapprove the President's nominations of Federal officers, including judges, ministers of state, and ambassadors. (b) To approve, by a majority of two-thirds of those present, of treaties made by the President-i.e. if less than two-thirds approve, the treaty falls to the ground. Its judicial function is to sit as a court for the trial of impeachments preferred by the House of Representatives.

The most conspicuous, and what was at one time deemed the most important feature of the Senate, is that it represents the several States of the Union as separate commonwealths, and is thus an essential part of the Federal scheme. Every State, be it as great as New York or as small as Delaware, sends two senators, no more and no less. This arrangement was long resisted by the delegates of the larger States in the Convention of 1787, and ultimately adopted because nothing less would reassure the smaller States, who feared to be

2

1 To avoid prolixity, I do not give in the text all the details of the constitutional powers and duties of the Houses of Congress: these will be found in the text of the Constitution printed in the Appendix.

2 New York is twice as large as Scotland, and as populous as Scotland, Northumberland, and Durham taken together. Delaware is a little smaller than Norfolk, with about the population of Bedfordshire. It is therefore as if Bedfordshire had in one House of a British legislature as much weight as all Scotland together with Northumberland and Durham, a state of things not very conformable to democratic theory. Nevada has now a population about equal to that of Caithness (40,000), but is as powerful in the Senate as New York. This State, which consists of burnt-out mining camps, is really a sort of rotten borough for and controlled by the great "silver men."