SEEEEE SESSIONS EE TEE SENATE:
Their Origin, their Motive, their Object, their Effect.
EEEEEE EESEEEEE EE THE SENATE:
"i‘heir Origin, their Motive, their Object, their Eh’eet.
BY DORMAN B. EATON.
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HENRY BESSEY, PRINTER,
N0. 47 CEDAR S EEEE T.
1886.
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EXPLANATORY.
IN the absence of some explanation it is very likely that, in speaking of
the Senate as plainly as I shall, without ever having been a Senator, I
should subject myself to the charge of presumption. Let me say, there-
fore, that for many years my interest in public administration has led
me to reflections and inquiries as to the manner in which it is affected
by secret sessions of the Senate.
Prior to April last, I had been for twelve years a Civil Service Com-
missioner, though for a portion of the time with no very active duties.
This period covers the oficial life of three Presidents, as such, and a
considerable portion of that of two others.
The duties of a Civil Service Commissioner afiord unusual opportunities
for learning and appreciating not only the object and effects of these
sessions but the views taken of them both by Senators and Presidents;
and I may add that these views are very diverse.
I had become so painfully impressed with the disastrous effects of these
sessions, that, before leaving ofiice, I had resolved to use the first opportu-
nity for inviting public attention to them. These pages are the result.
D. B. E.
NEW-YORK, December, 1886.
SESRET SESSIONS OF THE SENATE.

I
No. 1.-—THE CHARACTER AND SIGNIFICANCE OF THE SEcRET
SESSIONS OF THE SENATE.
THERE is no part of the Government of so great importance
or of such far-reaching influence which the people so little
understand as the secret sessions of the Senate. Hardly no-
ticed at all by the people generally, these sessions are at once
an anomaly in our official life, an evasion of ofiicial duty and
responsibility on the part of Senators, and one of the most
prolific sources of partisanship and corruption in our politics.
All intelligent citizens are aware that the Constitution of the
United States requires the President to submit his nominations
to the Senate, without whose approval appointments cannot be
made. It is a matter quite generally known, doubtless, that the
Senate acts on these nominations only at what are called secret
sessions. But few persons, except students of political science
and those who have had special experience in public afiairs, have
any conception of the origin, character, object, or practical ef-
fects of these sessions. One of the objects of the secrecy has
been to keep the people in ignorance. The very fact that the
sessions have been behind closed doors has not only kept from
the view of the people the acts of individual Senators, which
they would have condemned, but has made it practically impos-
sible to directly trace to the secrecy of the sessions the responsi-
bility for the disastrous consequences which the publicity, every-
where else prevailing, would have made manifest. Thus pro-
6
tected by the darkness and stealth of their own proceedings, and
beginning in a limited way, at a time when appointments were
rare, and the exercise of the appointing power was patriotic
and pure, secret sessions became familiar before they became
suspected. When at a later day that power had become not
only potential in our politics, but a prolific source of partisan-
ship and corruption, these sessions, from the very fact of their
secrecy, for a long time escaped exposure and therefore condem-
nation. The prevailing view, until‘ quite recently, has undoubt-
edly been that secret sessions are either a part of our Consti-
tutional system, or that they are a necessary, or at least a
justifiable, even if a mischievous, practice of the Senate.
The eminent statesmen who have been members of the
Senate, the able and worthy men who are now Senators, the
exalted functions of the Senate in connection with treaties, its
great public debates, the leading part which, by reason of the
longer terms of its members and their superior abilities and ex-
perience, the Senate has been enabled to take in our legislation,
have all contributed to this favorable and forbearing judgment.
In recent years, however, the profound respect in which the
Senate had been held has given place to a growing suspicion
and distrust of its action and motives, especially at its secret
sessions. The increasing and alarming corruptions attending
the election of Senators, the greater number of mere politicians
or millionaires who have lately gained seats in the Senate, the
uprising of the high and bold sentiment which has secured ad-
ministrative reform, the vicious continuance of the Senatorial
usurpation made under the tenure of o-fiice acts, the disinc-lina-
tion of Senators to surrender the patronage which a four years’
term gives them, the arrogant and partisan spirit of the Senate,
as illustrated by the revolutionary attempt of Senators Conklin g
and Platt to coerce President Garfield, the facility with which
unworthy nominations have been confirmed without the people
being enabled to fix the responsibility of a vote upon any Sen-
ator or upon either party, the growing habit on the part of
Senators of combining for dictating nominations to the Presi-
dent, and, above all, the late audacious attempt of the Senate
7
to enforce publicity against the President while screening its
own action in the darkness and irresponsibility of a suspicious
and cowardly secrecy—all these considerations have turned a
stern and relentless criticism upon the motive and effects of
these anomalous secret sessions. The people are asking why
Senators are so anxious to conceal their doings.
The Senate has shown that it feels the force of the aroused pub-
lic opinion. Senator Platt, of Connecticut, has been encouraged
to bring forward a resolution, already supported by three other
Senators, and upon which the debate is to be resumed early in
the approaching session, for public action on all nominations.
It does not, however, relate to the approval of treaties
where different considerations are involved. The first chal-
lenge and exposure of Senatorial secrecy have made its long
toleratio-n a matter of surprise and curiosity. It is instantly
seen to be repugnant to that universal publicity which is at
once the safety and the great characteristic of our Constitutional
system. We are recalled to the fact that our Government is,
above all others, one that needs and seeks to secure a citizenship
thoroughly informed concerning the action of its public oilicers.
Everywhere under the Constitution there are requirements for
public action, appealing to public intelligence on grounds of
public interest alone ; and nowhere are there to be State secrets
or secret proceedings at the mere pleasure or for the benefit
of public officers. Each House of Congress is required by the
Constitution to keep journals of its proceedings, and to make
them public. Every court must be a public court. The Consti-
tution guarantees to every criminal a speedy public ‘trial, and to
all civil suitors a trial according to the common law, which was
a public trial. The Constitution forbids any abridgment of
the freedom of the press, which necessarily involves a right of
access to otficial proceedings. N o sentiment or conviction was
more potential in framing our political system, and none has
been more strengthened by it, than that which ailirms that all
its actions shall be based on public considerations, executed
under the public eye by oflicers responsible to public opinion,
and solely for promoting the public welfare. Of all the branches
8
of the Government the United States Senate alone has rebelled
against this sentiment, and the spirit of these provisions, by con-
cealing its action on nominations behind locked doors and barred
windows, under rules secretly made ; thus suppressing in that
great and vital sphere of action, which involves the highest
range of appointments and removals all over the Union, that pub-
licity which is a vital principle in a Republic, and violating at the
same time that freedom of speech and freedom of the press
which the Constitution expressly provides for.
Every grade of appointments and removals made by the
President, from Ambassadors to Postmasters, from Judges of
the Supreme Courts and Governors of Territories to Marshals
and Auditors, from members of the Cabinet to Collectors and
Postmasters, from Major-Generals and Admirals to Lieutenants
and Paymasters, with all the corrupt influences, the bartering
of votes in the Senate for votes for Senators or their friends,
the scandalous relations between a Senatorial vote for a nomina-
tion and another nomination made or to be made which stand
behind and determine the fate of so many nominations—together
with all the vicious relations between the confirmation of Post-
masters and Collectors, and the partisan corruption with which
Senators may be connected in the States and cities—all these
things are covered in the impenetrable, everlasting darkness
and silence of these secret sessions, which Senators have inter-
posed between themselves and the press and the people. It is
upon these appointments and removals, and everything con-
nected with them, more than upon anything else under the
Government, that the fraud and vcnality of our politics are
concentrated. It is in them, more than elsewhere, that our
shame, corruption and peril arise. It is there, of all places,
where light, fearless public speech, open votes, and free and
relentless criticism are most needed ; yet just there, at its own
mere pleasure, and for its own ends, the Senate enforces dark-
ness and silence.
It is by no means easy to comprehend the breadth and impor-
tance of the vast sphere of oflicial life which thus stands
eclipsed in the dark shadow of Senatorial secrecy and usurpa-
9
tion. There are, it seems, 7,318 oificers subject to confirmation
by the Senate, of whom 3,593 belong to the civil service.
These higher ofiicers, to a large extent, fill the vacancies in a
vast army of perhaps 120,000 officials below them. The term of
the civil ofiicers, confirmed by the Senate, is but four years, hence
nearly 900 nominees for civil offices, and several hundred for
military and naval offices, are before the Senate every year.
Probably one-half of the time of Senators given to speaking
and voting is given to the matter of filling oflices. On an aver-
age there must be from three to four nominations to be acted
on by the Senate every day of its session. Now, all the votes,
all the speeches, and all the various and important action con-
nected with these sessions is never reported, or seen or known
by any one but Senators or their subordinates. They are never
understood by the people. Yet no action of the Government
more profoundly affects the moral tone of politics, the fate of
parties, or the efliciency and economy of administration. If
anything could add to our astonishment at such astounding re-
sults being 1,Wsible under our system of freedom and publicity,
it would be the fact that they have been accomplished, not by
law, not according to the Constitution, not by any action of Con-
gress, not by any consent of the Executive, not after any public
debate, not by any consent of the people, but solely through
arbitrary rules of the Senate, adopted in secret sessions, of which
nothing was reported, and nothing known by the people.
1.0
No. 2.—REVIVAL OF PARLIAMENTARY DESPOTISM IN THE SENATE.
A glance at the history of Parliamentary privileges and secret
sessions in Great Britain will facilitate a correct understanding
of the intentions of the framers of our Constitution and its true
construction.
They had carefully studied this history. They knew that the
House of Commons, which trembled before Henry VIII. and
Elizabeth, which dared do little more than formally claim the
right of free debate on its own floor under James I., which first
ventured to plainly exercise that right in the first half of the
reign of Charles I., nevertheless, within twenty years thereafter,
became so inflated, ambitious and aggressive in the exercise
of what it called its privileges, that it soon made these
privileges as dangerous to justice and liberty as the royal
prerogatives of those despots had ever been. 0n its sole
authority, the House committed those it charged with crime to
prison, inflicted arbitrary punishments, defeated the right of
petition, arrested free speech among the people, suppressed free
debate in its own hall, treated its proceedings as its own secrets,
and denied any authority except its own to direct its dissolution
or adjournment. For several generations, after royal prerogative
had ceased to threaten the freedom of debate in Parliament,
(even down almost to our Revolutiom) its actions made it plain,
that in the view of its members, the freedom they had won and
the privileges they enjoyed were to be used, not for the benefit
of the people mainly, but for themselves. They declared their
speeches and votes in Parliament to be their own secrets, which
it was a contempt and a crime for any one to publish. The right of
the public press or even of a member of the House to report them
was utterly denied and defeated. It was held to be a breach of
the privileges of Parliament to inform the people of its doings.
The House of Commons did not, like our Senate, confine itself
to barred doors and closed windows, or to such cunning and
11
cowardly threats of dismissal and expulsion as the Senate rules
provide for. It was as bold as its claim of privileges, bringing
offenders against these privileges to its bar, and imprisoning
proprietors of journals for venturing to tell the people how its
members voted or what they said. In 1641 the House of
Commons expelled one of its own members, SirEdward Deering,
and sent him to prison, for reporting his own speeches. The
secret proceedings of the Star Chamber were, indeed, at an end,
but the old Star Chamber doctrine of Scroggs and J efireys, that
it was a crime at common law to speak ill of Government,
survived in the despotic theory of Parliament that it was a
crime to report or censure the oflieial acts or sayings of its
members. It was the duty of the people, in its view, to accept
in silence as well as obey the laws as it might please Parliament
to make them. It was a breach of privilege, as well as an
impertinence, for the public press to tell the people why the
laws were made, or who was responsible for making them. For
several generations all reporting and censure of the doings of
Parliament were, as far as possible, suppressed by the despotic
exercise of its pretended privileges. The rule of secrecy as to
nominations, now enforced by our Senate, was, in principle,
relentlessly enforced by the British Parliament for more than a
century, over the whole range of its action, on the simple theory
that it was a Parliamentary privilege of members to be exempt
from the annoyance and responsibility incident to criticism
on the part of the press and the people. As late as 1747, the
editor of the Gentleman’s Magazine was arrested and brought
to the bar of the House of Commons for daring to report
Parliamentary proceedings.
The theory that the people have no right to publish the laws
or the proceedings of a legislative body without its consent was
enforced even on this side of the Atlantic. A printer was
arrested in Virginia, in 1662, for publishing the laws. Dongan,
as Governor of New-York, in 1688, was instructed to suffer no
such printing. \Vhen, in 1649, public opinion forced the
magistrates of Massachusetts to allow the publication of the
laws, they did so under protest, and the publication of public
12
documents appears not to have been provided for in Massa-
chusetts until 1719. And the General Court of Massachusetts
was the first legislative body in America to yield to the demand
of the people for publicity of debates, which it did by opening
‘ them to the public, on the motion of Mr. ()tis, in 1766.
The higher public opinion of Great Britain, as uttered through
the public press, and more powerfully by J unius than any one
else, relentlessly assailed these pretended privileges of Parliament.
The contest between the public press, asserting its own right to
free speech, and the people’s right to know and criticize the acts
of its oflicers in Parliament, on one side, and the claim of
members of Parliament in behalf of its secrecy and its privileges,
on the other side, continued through more than half a century.
Before our Constitution had been formed, as its authors well
knew, that contest had terminated in a brilliant victory for the
press and the people, to the great mortification of Parliament.
Secret sessions of Parliament were at an end. All proceedings
of that body were being regularly printed when our Constitutional
Convention was in session ; and from that day to this there have
been no secret sessions of the British Parliament. Referring to
this great triumph of the press, Mr. May uses this language
in his works, “Democracy in Europe ” and “ The Constitutional
History of England :” “The right to criticize public afiairs,
to question the action of Government, and to question the
proceedings of the Legislature, had been established. * * *
Reporters and printers having overcome the resistance of Parlia-
ment to the publication of debates, the press was brought into
closer relations with the State. Its functions were elevated,
and its responsibility increased. Statesmen now had audience of
the people. They could justify their own acts to the world.
“* * * The political education of the country had kept
pace with its material and social progress. No single cause,
perhaps, had more contributed to this result than the free
publication of debates in Parliament. If the press had done
nothing more than this for public instruction, this single service
to the cause of popular government would claim the highest
acknowledgment.”
13
No. 3.—TnE SECRET SESSIONS RULES OF THE SENATE uNCoN-
STITUTIONAL.
\Vhen the Convention to form the Federal Constitution
assembled in 1787, the long contest between the British Parlia-
ment on one side, contending for its despotic privilege of
secret sessions, and the British press and people contending, on
the other side, for the freedom of the press, for the right to
freely criticize the action of Parliament, and for open sessions,
had, as we have seen, been ended by a splendid victory for the
latter. Twenty-one years had elapsed since Massachusetts,
yielding to the same demand then triumphant in England, had
opened the debates of her Legislature to her press and people.
Nine years had elapsed since the adoption of the articles of
confederation which required the Continental Congress—a body
which appointed all the civil and naval ofiicers of the United
States—to publish, “ for the information of the people,” the
complete journal of its proceedings, save only any parts relating
to “treaties, alliances and military operations, which require
secrecy ;” it being then a time of war.
The members of that Convention knew well the history of
that contest. They certainly did not intend to re-establish that
old Parliamentary despotism in the form of Congressional or
Senatorial privilege. We have seen that every part of the sys-
tem they created requires publicity, and appeals to the intelli-
gent judgment of the people. On the subject of the publicity
of the proceedings of Congress the Constitution contains only
this language: “Each house of Congress shall keep a journal
of its proceedings, and, from time to time, publish the same,
excepting such parts as may, in their judgment, require se-
crecy.”
The exception from universal publicity, it will be observed,
applies alike to the Senate and to the House. There is no dis-
tinction based on the kind of business in which either house
14
may be engaged. The limit of discretion as to publicity is the
same whether the proceeding be a debate or a vote on a reve-
nue law, or on a confirmation of an ofiicer to serve under that
law. In each case alike there must be a journal kept and pub-
lished, unless the requirement of secrecy shall, as to some part
of the proceedings in the journal, be found to exist. Of the
existence of this requirement each house must of necessity, in
the first instance, be the judge in each case; that is, it must de-
cide whether the facts of its proceedings are such as for some
good reason require secrecy. A strict construction of the clause
cited would not allow any determination as to whether secrecy
is required until after the journal has been made up, and would,
therefore, require sessions to be always open. But a liberal and,
as I think, a reasonable construction, for attaining the end
sought, would allow any session to be held with closed doors,
at which, in the opinion of either house to be declared by its
public vote, there should be good reason to think that facts
must necessarily be stated which could not be then made public
Without peril. ‘
No broader discretion than this on the part of Congress can
with any reason he claimed under the Constitution. It plainly
allows no arbitrary rule for keeping a whole sphere of Congres-
sional action secret, irrespective of any peril from publicity. It
clearly provides for publicity as the right of the people.
A refusal to allow the people to know what their Representa-
tives or Senators say or how they vote—a suppression of all
possibility of public discussion—are not to be allowed unless
some clear public‘interest requires it. Mr. Hamilton, in the
Rderala'st, assuming it to be unquestionable that the Senate
was to act publicly on nominations, contrasts the new system
with the New-York Council of Appointment, which, he says,
acts “ when shut up in a private apartment and impenetrable to
the public eye ;” adding, that “every such Council will be a
conclave in which cabal and intrigue will have their full scope.”
What, then, must be the nature of that requirement which
can justify a surrender of a great constitutional principle of
publicity and a suppression of that freedom of the public press
15
and of the right of free speech for which the Constitution has
in express terms provided ? Does such a requirement exist
merely because members of the House or of the Senate prefer
to act in secret, or would be more comfortable if neither the
press nor the people could report or criticize their doings ‘P Does
it exist because members have made speeches or given votes
which they dread to have exposed to public censure ‘2 Does it
exist merely because the action of either House relates to the
fitnessof an appointment rather than to the fitness of the salary
for which the appointee is to serve, or the law by which he is to
be governed ?
If no such theories can be maintained, then it is plain that
every secret session and every omission to publish the full pro-
ceedings of Congress is unconstitutional, a mere usurpation of
authority, unless in the particular case there was some public
interest that would be imperiled, or at least prejudiced, by pub-
li-city. The mere fact that the proposed action is on a particular
subject—as, for example, a nomination—is in itself no justifi~
cation or requirement of secrecy, in the sense of the Constitu-
tion. The fact of the need of secrecy in each case must be
determined for that case, and hence cannot properly be deter-
mined by a rule years beforehand.
In a speech in the Senate in February last Senator Sherman
declared “there ought to be no secrets whatever in this Gov-
ernment of ours.” Upon which Senator Platt said, there is this
single exception, viz., “that there is an absolute necessity for
secrecy.” I Many Senators then denounced secrecy in terms
which are a direct condemnation of the practice of the Senate.
The reason for the publicity established by the Constitution and
for the secrecy allowed by it are in fact the same, being alike in
both cases—the protection and promotion of the public interests.
The need of secrecy can never be presumed, but must be shown
in every case. Any other view of the matter would leave the
freedom of the press and the information of the people subject
to the selfish and arbitrary rules or caprice of either house of
Congress.
If the clause of the Constitution cited means that either
16
house may by mere rules, based only on the subject-matter to
come before it, provide for secret sessions, when there are no
facts really requiring secrecy in order to prevent detriment to
the public welfare, then that clause is reduced to this: “All
proceedings of either house of Congress shall be secret. or pub-
lic, as may suit the pleasure of that house.” It may, by one
short, sweeping rule, declare that every speech and vote on
every bill or resolution whatever, shall be in secret session, which
would simply re-establish the arbitrary and despotic Parliamen-
tary privileges of the seventeenth century. If the Senate should,
after actually considering the question, whether in any of its pro-
ceedings there were any matter not safe to be made public,
wilfully and falsely make a decision in the interest of the privi-
leges and patronage of its own members, complete redress
would indeed be diflicult—far more difiicult, undoubtedly, than
when a Judge renders a corrupt judgment.
Nevertheless, it is an established legal principle, both in the
State and Federal Courts, (Burnham es. Morrissy, 14 Gray
Illass. Rep, and Kilborn 08. Thompson, U. S. Supreme Court
Rep.,) “ that the houses of Congress are not the final judges of
their own powers, when the rights and privileges of the subject
are concerned,” and that “ the legality of the action of either
house in the assertion of privilege may be reviewed by the
Courts.” To bring the Senate’s secret rules to that test, it is
only necessary that a Senator should have the patriotic courage
to disregard them—if only the Senate would dare expel him-—
when he can take the question before the Courts.
17
No. 4.——-THE SECRET SEssIoNs RULES OF THE SENATE UN-
coNsTrrUTIoNAL.
Publicity is obviously regarded by the Constitution as a
safeguard of justice, and beneficial alike to the people generally
and to members of Congress.
Judge Story, the highest legal authority on the subject, in his
work on the Constitution, referring to the clause relating to the
publication of Congressional debates, declares his view in this
emphatic language :
“The object of the whole clause is to insure publicity to the
proceedings of the Legislature, and a corresponding responsibility
of the members to their respective constituents, and it is founded
in sound policy and deep political foresight. Intrigue and cabal
are thus deprived of some of their main resources by plotting
and devising measures in secrecy. The public mind is enlightened
by an attentive examination of public measures. Patriotism,
integrity and wisdom obtain their due reward.”
The justice and wisdom of these observations have never been
questioned by any Judge or judicial writer, or, so far as I am
aware, by any one else, except Senators engaged in framing rules
or making speeches in aid of the secret sessions of their own
body and the pretended privileges of its members. It is worthy
of notice, here, as showing how decisive the purpose was in the
Constitutional Convention to make the nearest approach practi-
cable to the universal publicity of Congressional proceedings, that
the qualification in the clause requiring it, which allowed secrecy
on certain conditions, was sustained by the votes of only six States
against four, while the other parts of the clause, which would
have made publicity absolute and universal, was adopted unani-
mously. Mr. Gerry, of Massachusetts, absolutely refused to sign
the draft of the Constitution, because he feared Congress would
18
be able, after all precautions against it, “ to conceal its proceed-
ings.” He seemed to have anticipated the selfish and political
interests hostile to publicity which are now a national peril.
It is obvious that every case of secret session, that every
instance in which publicity of any part of the proceedings of
Congress is refused, is so far a restraint of the freedom of the
public press. That freedom, in a constitutional and legal sense,
is not merely a right to publish and comment upon what the
press may happen to know, but the right, as well, of having
access to, and of reporting the proceedings of public bodies for
the information of the people. Mere limitations or police
restrictions, such as the despotic governments of Europe have
imposed upon the press, are far less fatal restrictions upon its
liberty than the secret sessions of our Senate, for the latter not
only deprive the press of the very material upon which its
freedom is to be exercised, but they deprive the people of the
information which is the object of a free press, and the chief
bulwark of free‘ institutions.
In this view of the matter, we see the force of that clause in
the first amendment of the Constitution, adopted almost con-
temporaneously with the original instrument, in which Congress
is forbidden to make “any law abridging the freedom of speech
or of the press.” Is it possible, in face of such a provision,
that Senators, by a mere rule, adopted for their own comfort,
political advantage or exemption from unpleasant criticism, are
at liberty to close the doors of the Senate against both the press-
and the people alike ? If the Sen-ate may do it, the House may
do it. Where, then, would be the liberty of the press? The
State Constitutions are significant on these points.‘ “No law
shall be passed to restrain the liberty of the press.” * * *
“The printing press shall be free to every person who may
undertake to examine the prpceedings of any branch of the
Government.” This language, from the Constitutions of Massa-
chusetts, New-York, Pennsylvania and Kentucky—and other
Constitutions are nearly the same—makes plain the nature of
the liberty and publicity intended to be secured. It» means
liberty to examine the proceedings of any branch of the Gov-
19
ernment, and not doors locked and barred against the reporters
and the people. That was the kind of liberty of the people and
of the press which was plainly intended to be secured by the
Federal and State Constitutions alike. Speaking of the elements
of safety under our Government, Dr. Lieber, in his treatise on
“Civil Liberty,” says: “ The first of all we have to mention
.under this head is,‘ ‘publicity of public business.’ It further
implies, perfect freedom with which reporters may publish the
transactions of public bodies.” “Publicity, in connection with
civil liberty, means publicity in the transaction of public business
in all its branches. It is an alarm bell which calls public attention
to the spot of danger.” In Massachusetts, for example, it has
been declared by its highest Court, “that the provisions in the
Constitution securing the liberty of the press were intended to
prevent any previous restraint upon publication.” To bolt the
doors of the State House, and exclude the reporters and the
people from the sessions of the Legislature, after the model of
the secret sessions of the Federal Senate, and the British
Parliament two hundred years ago, would seem to be a pretty
effectual sort of previous restraint. Judge C-ooley’s work on
“ Constitutional Limitations” repeats this view of the subject,
condemning all such restraint.
Let us now compare with these requirements and aims the
rules for secrecy which the Senate, and the Senate alone, en-
forces:
First. In aid of secrecy, but from no warrant in the Con-
stitution, the Senate rules provide for three kinds of session:
(1) Legislative; (2) Executive; (3) Confidential legislative—
each to be separately recorded.
Second. When either of the two latter kinds of sessions are
to be held the reporters are sent away, the people are ordered
out of the galleries, the doors are closed, and none but Senators
and a few confidential officers of the Senate (a little more than
80 in all) are to be present. The clerks are to be sworn to
secrecy.
20
Third. All remarks, votes and proceedings at these latter
sessions are to be kept absolutely secret until the Senate shall,
by resolution, order their publicity.
Fourth. Any Senator who shall disclose any of these secrets
is, by the rules, made liable to expulsion, and any such ofiicer
who shall disclose them is made liable to dismissal, and also to
punishment for contempt.
.Fzzfth. In addition to this universal and absolute secrecy
covering everything which occurs in two of the three kinds of
sessions of the Senate, there is a rule applicable to the whole
business of the Senate, under which any two Senators may, at
their mere pleasure, at any moment, compel such a secret
session.
It is not too much to say that these rules are far more in
harmony with that spirit which gave birth to the secret session
of the Star Chamber, and which dominated the British Parlia-
ment under the first two Georges, than they are with the spirit
of our Constitution and the rights and liberties of a free people.
No gag of silence and servility. imposed by a secret junta
has ever been more despotic and humiliating than these rules.
That publicity of ofiicial action, which, as we have seen, was
the great aim of the Constitution, which is at once the grand
characteristic of free institutions and the supreme condition of
their safety, is made dependent upon the mere caprice of a ma-
jority of the Senate. The people are declared to have no right,
not merely to criticize or condemn their servants, but no right
to know what they say or do, without which all judgment of
their acts is impossible. We are taken back to the beginning of
the reign of George I., when Parliamentary privilege was ex-
alted over public rights. Secrecy and darkness, high privilege
and the irresponsibility of legislators to the people are made the
rule in two of the three great divisions of Senatorial functions.
Instead of publicity, which Judge Story and every writer on
the subject hold to have been the object of the whole clause
~21
of the Constitution relating to Congressional proceedings, we
have secrecy, mystery, darkness, irresponsibility to the people,
provided for by rules made with such intent, so that before
there can be the least known by the people about the votes or
speeches of their representatives, at any one of the hundreds of
secret sessions held by the Senate every year, there must first
be a repeal of this rule, or a direct vote ordering publicity. The
whole theory and presumption of the Constitution are reversed.
There is not even so much as the form or pretence of deciding
whether there is within the meaning of that instrument any
requirement or need of secrecy—any facts which could not
safely be disclosed.
22
No, 5.——Tnn Snennr SESSIONS RULES A CONDEMNATION or
SENATORS.
We have seen that these rules keep the people in utter igno-
rance as to what any Senator says and how he votes at any
one of the secret sessions held for acting on an average upon
eight hundred or nine hundred nominations each year for
filling all the highest places in the public service. Between
December last and. the adjournment of Congress there are said
to have been 2,456 nominations sent in, including 150 second
nominations of the same person. The votes and speeches on
them would be very instructive reading. ‘Ve should know, for
example, by whose votes so disreputable a nomination as that of
Thomas, of Maryland, was confirmed. If the people had been
in the habit of knowing the proceedings of the Senate on such
subjects an attempt now made to cover them with impenetrable
darkness for the first time would arouse a public indignation
and distrust which would overwhelm the Senate.
Irrespective of the motive for these rules, what are the fair
inferences from the simple fact of their existence ? \Vhy does
the Senate keep such information from the press and the people ?
There can be but three explanations :
1. Unreasoning pride of precedent and a haughty conserva-
tism obstinately insisting on continuing things as they have
been (united with a belief, on the part of some Senators, that
secrecy is useful) have doubtless had a powerful and half uncon-
scious influence, blinding Senators to the fact that these rules
are as much out of date and as needless as the sword which
John Adams were when he presided over the Senate, or the
formal answers the Senate used to make to the President’s
speech.
2. A wish to cover with absolute secrecy the intrigue, the
QM.)
kL)
vicious bartering of votes, and the miscellaneous patronage
mongering and corruption which open sessions and published
speeches and votes would certainly disclose. Every citizen
wishes to be able to hold in high esteem the most eminent
legislative body of his country. And it is but justice, as it is
most agreeable to me, to ende vor to justify the action of the
Senate on the basis of patriotism and honor. Let us, therefore,
dismiss this abhorrent View for the present.
3. The only other explanation is that, in the opinion of the
Senate, all the speeches, votes and other doings at these secret
sessions are of such a character that within the meaning of the
Constitution they cannot, without serious detriment to the
country, be made public, and that, consequently, secrecy is a
duty. ‘We need not here inquire whether this view rests on the
theory that the people cannot safely be trusted, that the speeches
and votes would disgrace the Senate, or that facts would be
disclosed which would imperil the public interests. Let us as-
sume the latter, as most honorable and complimentary to the
Senate.
\Vhat, then, is the inevitable conclusion? Only this, that
such is the moral tone of Senators, even in the view of a ma-
jority of the Senate itself, that no sense of public duty, no feel-
ing of faithful fellowship to each other, nothing less than the
threat and fear of punishment by their own body, as declared
in these rules, will restrain Senators from betraying alike the
interests of their country and the confidence of their associates.
In other words, neither the honor nor the patriotism of a Sena-
tor can be trusted. And what is the threat and fear which is
alone deemed adequate? Not a censure, not a temporary loss
of salary, which will keep a policeman to his duty; not even
the infliction of an ordinary punishment for contempt, not a sus-
pension for a term, which is effective in the army, but only
absolute expulsion from the Senate, the highest and most dis-
graceful punishment which a legislative body can inflict upon
its members. Nothing so severe, nothing so astounding, as this
humiliating impeachment of Senators by their own rules has
24
been charged against them in the public press. But for these
rules the people would gladly believe that honor and patriotism
were as effective in the Senate as elsewhere. It is no wonder
that in the late debate in the Senate a Senator, referring to this
rule for expulsion, declared, in the ‘face of his fellows—and not
one of them challenged the declaration—that “ no Senatorcan read
it, and no Senator can hear it read, without a sense of personal
degradation 1” Nevertheless, I fear shame does not always sur-
vive in the Senatorial mind when honor has been lost, for it is
hardly possible that a rule could be upheld of which every Sena-
tor is ashamed. Every Senator may be ashamed to have it go
before the people. The significance of this threat of expulsion
is not less, if we remember, that in the glorious days of the
Senate—even down to the spoils system saturnalia of 1868—
the honor and patriotism of Senators could be trusted, and were
trusted. Until that date, no threat of expulsion or other pun-
ishment for Senatorial treason or treachery in the matter of con-
firmation had ever disgraced the Senate. At no time has Sena-
torial usurpation, insolence and patronage mongering ever been
so great as in that year next following after the passage of the
Tenure of Office Act in 186 7——the most flagrant violation of the
Constitution ever perpetrated—and next before its partial re-
peal in 1869. Senators lorded over the Departments, humiliated
the President whom they declared in their power, and were the
political aut-ocrats of their States. What can be more absurd
and suspicious than this universal threat of expulsion, regardless
of the character of the offence? It is to be enforced against a
Senator for telling his constituents that he voted for Tibbs for
Postmaster, or against Dobbs for District Attorney to serve in
their midst ; that he either supported or opposed the President’s
nominee for Collector at Alaska ; that he spoke for John
Snooks or against John Smith for Consul at Hong Kong ;
or that some other Senator spoke or voted for or against some
of those persons—harmless facts in every instance—which
every constituent has a right to know, and every Sena-
tor should be ashamed to attempt to conceal. Under these
procrustean rules, such petty communications rank in enor-
25
mity with the crime a Senator would commit who should
betray pending negotiations to a hostile State, who should sell
his own vote on a confirmation for money, or who Should send
to the leader of hostile armies the plans of our Generals for an
approaching battle. Tothing so ridiculous, nothing so com-
pletely in the spirit of primitive savagery in legislation, can be
found in the Criminal Code of a civilized State. It has always
been a characteristic of usurped power exercised for vicious
and despotic purposes, that it has threatened punishment of the
highest grade regardless of the degree of guilt. When in the
old times of despotic privilege in the British Parliament, there
were 160 or more crimes punishable with death, they covered
every grade of ofience from treason, murder and rape, to poach-
ing, heresy, stealing above a shilling, and shooting rabbits. If
the great crime, in the view of the Senate, is disclosing the
precious and profitable secrets of its members rather than
damaging the public interests, its indiscriminate threat of the
supreme punishment of expulsion is easily explained.
The only possible satisfaction we, can find in considering
such rules is the fact that some Senators are oppressed
with a feeling of degradation when they read them. Before
these savage rules for expulsion were adopted in 1808 that
punishment had been thought of only for the highest of-
fences. Senator Blount was expelled in 1797 for treasonable
negotiations with an Indian tribe ; later a Senator was expelled
for taking money for recommendation for office, and Senator
Bright, of Indiana, was expelled in 1861 for treasonable cor-
respondence with J eff. Davis. \Ve may next have an expulsion
of a Senator for stating that smoking, joking and bartering are
the most constant proceedings of a secret session. In addition
to the general rules for secrecy, there is another rule (35) which
enables any two Senators, by simply making and seconding a
motion to that effect—based solely on the mere opinion of either
of them that secrecy is required—to compel the President of
the Senate to send away the reporters, to clear the people out of
the galleries, and close the doors for a secret session. This rule
may well be remembered when we come to that courtesy of the
26
Senate under which a pair of Senators control the patronage of
their State.
It is a significant illustration of the relative influence which
public and private considerations appear to have had in provid-
ing for these precious secret sessions, that. while a standing
regulation (No. 15) governing the Senate end of the Capitol,
does not permit any private citizen, however far he may have
traveled, or however pressing his need to see a Senator on pub-
lic business, to even send in a card to him during one of these
sessions, yet a curious clause in the regulation declares that
“ every call made from the Supreme Court,” that is, every notice
that a Senator has a chance to leave the place of his duty to
argue a case for a fee—perhaps through several days—must be
handed to him at once. He may go, perhaps, to argue one of
those land grant railroad cases, with which a majority of the
Senate, in supporting Senator Beck’s bill last winter, declared it
unbecoming in a Senator to have any professional connection.
But why, after all, if these entire sessions of the Senate are mere
private and secret matters of Senatorial privilege, which the
people have no right to see or know anything about, why are not
Senators as properly in the Supreme ‘Court earning fees as in
the Senate Chamber dispensing patronage? I am glad to be
able to add, for the honor of the Senate, that very nearly a ma-
jority of its members appear at all times to have been opposed
to these secret sessions.
27
No. 6.——Tnn Jorxr EVOLUTION on Snxa'ronmn COURTESY,
THE SPorLs SYsTEM AND Sscnnr Snssroxs.
The first Congress met in 1789. Both Houses were without
a quorum until April. On the 8th of that month, the House,
being fully organized, in the true spirit of the new political
system, opened its doors to the press and the people. These
doors have never since been closed, save in three or four instances,
in times of war, I believe, where imperative reasons required
secrecy. The Senate manifested an exclusive and haughty spirit
from the beginning, claiming to represent the States, and not the
people, and scorning the theory that its members are responsible
to the people for their speeches and votes.
- Disregarding the plain requirements of the Constitution,
planting itself on aristocratic Parliamentary privileges, and
making no distinction between legislative and executive sessions,
the Senate began all its sessions and continued them with closed
doors, voting down, in April, 1790, a resolution, renewed in 1791,
and again in 1792, by Senator Monroe, for opening even its
legislative sessions to the public. Its reasons for universal
secrecy were the same which the British Parliament had given
a hundred years before, and, curiously enough, were the same
which Senators now give for secret executive sessions only ; and
no Senator would now, I venture to assert, dare repeat them, as
reasons for secrecy in legislative sessions. And here, it should
be said, the Senate has no executive power, in the sense of the
Constitution, that power being conferred by it on the President
alone. The arbitrary claim of the Senate to shroud itself in
secrecy while performing certain of its duties under the name
of executive functions, is not in the least strengthened by the
classification or distinctions, which exist only in its own rules,
for its own purposes. In 1793 the Senate defeated a resolution,
which declared, in substance, and very nearly in these words,
that “the publishing of the proceedings of the Senate in the
28
newspapers is the best means of diffusing information concerning
the motives and conduct of its members, and that, without such
information given to the people, the sense of responsibility on
the part of the Senators to their constituents is in great measure
annihilated, and the best security against the abuse of power is
abandoned.” Thus early the Senate boldly repudiated the great
principle of publicity and oflicial responsibility, on which the
Constitution is based, and for which the freedom of the press
had been established. There can be no more emphatic evidence
than this of that defiant spirit of Senators, which,having become
chronic and hereditary in the Senate, has controlled the votes of
its majority on the question of publicity to this day, though it
has been reinforced with very different motives in recent times.
In February, 1793, after sitting behind barred doors for four
years, the Senate first opened them for discussion on the question
whether Mr. Gallatin was qualified to be a Senator, and later, in
the same month, voted to open them during legislative proceed-
ings from the beginning of the next session.
Neither during the first year, nor at any time prior to
December, ISOO—eleven years from the first session—was there
any rule requiring a Senator to keep any vote, speech or
proceeding secret. The honor and aristocratic exclusiveness of
every member was trusted to preserve the mysterious and
impenetrable secrecy, in which he doubtless felt a lofty pride,
without having much of the‘ selfish and partisan interest which
in this generation has enforced secrecy by threats of expulsion.
When, at the last named date, the first rule requiring secrecy was
adopted, it was on a suggestion of President Adams, and it only
related to confidential communications from the President and
to treaties pending before the Senate, it being a time when our
foreign relations were very threatening. This rule also trusted
the honor and patriotism of Senators, without the least sugges-
tion of expulsion or other punishment. More and more, as we
advance into the present century, and the number of officers
and appointments becomes greater, the evidence increases that
Senators are valuing more highly and using with more effect the
patronage incident to the power of confirmation. The desire of
29
concealment increased in the same measure. The conditions of
success in the use of that power, so as to advance their favorites
and control the politics of their States, are obviously the mutual
assistance of each other by votes and speeches in the Senate, and
the keeping of each other’s secrets from the people. Here we
have, at once, the source and the motive of the notorious
“ courtesy of the Senate” and of secret sessions, in the modern
and venal sense. In this courtesy, and in these sessions, the
spoils system has found its strength, its opportunities and its
motive in the Senate.
When the time came that the doors of the Senate were closed,
not so much in the assertion of a haughty privilege as to cover
the disreputable secrets of patronage mongering under the
courtesy, Senatorial honor naturally becomes unreliable for
keeping such secrets. The more partisan Senators, dreading
exposure, instinctively appealed to threats and fears. In 1813
the first attempt was made to impose by rule an obligation of
secrecy relative to the action of the Senate on nominations. It
failed utterly; and, until January 8, 1820, there was no rule of
the Senate requiring secrecy in regard to such matters. Indeed,
until 1829, the so-called executive journals were published.
Ever since that date, as I understand, impenetrable night has
hung over their pages, save here and there a page from which
the awful injunction of secrecy has been raised for some reason
unknown to ordinary mortals below the Senate. But before
this date the evolution of Senatorial courtesy and of the spoils
system had made them potential in the Senate and in national
politics. Prior to 1820 that system, under the guidance of
Aaron Burr, aided by Martin Van Buren, had been well de-
veloped in the State of New-York. In April, 1820, Mr. Craw-
ford, the Secretary of the Treasury, who was being warmly
supported by Mr. Van Buren, as a candidate for the Presidency,
devised a scheme for more patronage, which was with indecent
haste and without debate pushed through the Senate, and be-
came a law in that month. This law had for its object the re-
ducing of the Constitutional tenure of Collectors, Naval Officers,
Surveyors of Customs, and various other officers, to a term of
30
four years—a term before unknown in the subordinate adminis-
trative service. That term vastly increased the patronage and
political power of Senators. Jefferson wrote to Madison, Novem-
ber 29, 18530, that this law “would introduce a principle of in-
trigue and corruption which will soon leaven the mass, not only of
Senators, but of citizens, and would make these ofl‘icers syco-
phants to their Senators ”——a prophetic view which Madison
shared. Plainly enough, the Senate was then quite ready for a
rule forbidding the disclosure of its action on nominations. In
January, 1820, such a rule was for the first time adopted, but it
contained no threat of expulsion or punishment for contempt.
The Senate could still trust the honor of its members.
The unprecedented partisan prescriptions of J ackson’s ad~
ministration, in which the Senate promptly acted its part,
interpreted with emphasis the new spirit in our politics and made
it plain why secret sessions were so greatly desired. In 1832
Senator Marcy, of New-York, naturally enough, in a secret
session of the Senate, made the celebrated declaration that
New-York politicians “ could see nothing wrong in the rule
that to the victor belongs the spoils of the enemy ”—-an ap-
proval of partisan savagery and of the code of the pirate and
robber which, but for the chance removal of the injunction of
secrecy, would have been attributed to some pothouse gathering
of demagogues rather than to the American Senate. \Ve know
not how many other defences of the spoils system and of Sena-
torial courtesy are smothered in those concealed records of
secret sessions. In 1836 the greed for more patronage, which
had been rapidly growing in the Senate, caused the passage of
a law reducing to a term of four years the Constitutional tenure
of every Postmaster whose official compensation was $1,000 or
over ; a law which now annually sends from 500 to 600 nomina-
tions to the Senate, or at the rate of two every day it is in session.
This patronage absorbs a great part of the time and thought of
Senators, and not unfrequently determines the election of a
Senator. The courtesy and the spoils system in the Senate—
twin sisters in growth and corruption—had thus become fully
developed. The need of secret sessions to cover their iniquities
81
was, indeed, unquestionable. Nevertheless, even in those times,
there were patriotic Senators resolute enough to make motions
—~f or which there was a strong vote—year after year—for open
sessions and public action on nominations. Such a motion was
made by honest Senator Allen, of Ohio, in February, 1841,
which ‘received 20 votes against 26 for silently suppressing it by
laying it on the table. He renewed it 1842, in 1843 and 1848.
A similar motion was made in 1853, and renewed at the next
session by Senator Chase, which was supported in a speech by
Senator Sumner. The spoils system and the courtesy were too
strong in the Senate for such motions to succeed.
In 1867, the first Tenure of Office Act, as we have seen, was
passed. It was equally unconstitutional for its plain invasion of
the power of the Executive, and its vast augmentation of the
power and vicious influence of the Senate. Under that act no
removal or suspension of an officer could be made by the President
without reporting the reason of his action to the Senate, and‘
securing its consent. The Senate became arrogant, aggressive,
and powerful in a degree before unknown. It never before had
so good a reason to wish to conceal its action in regard to nomi-
nations, or to fear that its secrets would be disclosed by its own
members. Senatorial honor and confidence fell as patronage
and spoils increased. It was on the 25th of March, 1868, that
a rule was first adopted—the rule already cited—for enforcing
common honesty in keeping dishonest secrets of the Senate by
threats of expulsion and of punishment for contempt. It is,
indeed, a humiliating record.
We can afford to state again that it was of this rule, prompted
by such influences, made to conceal such things, that Senator
Platt, speaking amid universal silence in the Senate Chamber
last winter, made this ever memorable’ declaration : “ No Senator
can read it, and no Senator can hear it read, without a sense of
personal degradation.”
32
No. 7.——WHY SECRET Snssroxs INCREASE VICIOUS OFFICE
SEEKING AND CORRUPTION.
It was a much debated question in the Convention which
framed the Federal Constitution, whether the whole power of
appointment should be vested in the President, or be divided
between him and the Senate. Senators having no direct
responsibility for good administration, it was feared they would
yield to selfish motives and partisan influence, as had been the
case with the councils of appointments in New-York and other
States. To this objection it was answered by Hamilton, that
these councils acted in secret, but that the Senate was a whole
branch of a Legislature, which, in the words of the Federalist,
“ would be immediately under the public eye,” by reason whereof,
in the language of Judge Story, “intrigue and cabal are deprived
of some of their main resources, by plotting and devising mea-
sures in secrecy.” “To have seen how, from the beginning, the
Senate, by secret sessions, has defeated these expectations, and
has, at last, made a high Senatorial crime of the smallest part of
that universal publicity on which the fathers of the Constitution
staked the wisdom of their work and their hopes of their country.
Could that Convention have foreseen that the “public eye” was
never to see the proceedings of Senators on nominations ; that
almost in the first instance in which the dark curtain was lifted
from such proceedings, they would find the record proclaiming
that “to the victors belong the spoils ;” that within seventy-
nine years from the date of the Convention, the rules of the
Senate would declare it a ground of expulsion to disclose to a
constituent, or even to a Governor, a single line of these secret
records; and, finally, that not a single Senator would have the
moral courage to rebel against a restraint of liberty so arbitrary
and degrading: I think we may well believe that the Senate
would never have possessed the power of confirmation.
Secret sessions of the Senate, solely based on the honor of Sen-
33
ators, had become familiar facts, in the narrow sphere, where
~ known at all, before there was material for or, perhaps I should
say, a thought of the great abuses which they invite and aggravate.
In the first forty years there were less than one hundred removals,
and all the officers of the Government, down to mere clerks, were
fewer in number than the nominations of superior officers on
which the Senate has acted in a single year since the giving of
the information which a constituent has a right to know has been
made the supreme ofience on the criminal calendar of the Senate.
It was only when there were near one hundred thousand Federal
ofiicers ; when rotation in office and corrupt ofiice begging
became a trade and a peril ; when character and capacity were
subordinated to partisan services and official favoritism in making
removals and appointments ; when a third of the time of Senators
was occupied by office seekers, and half their speeches and sessions
were given to confirmations ; when Senators, having become
patronage purveyors and political potentates of their States,
openly rebelled, because they could not dictate nominations to
the President ; when the intrigues and corruption attending their
' own elections had degraded State politics, and begun to threaten
the national life ; it was only then, after the great uprising for
administrative reform had stirred them to thoughtfulness, that
the people began to comprehend the significance of the secret
sessions of the Senate, and to concentrate their attention upon
them. What is it that the Senate wishes to conceal? Why do
Senators seek darkness and secrecy, rather than light? What
right has the majority of the Senate to conceal from us that
action which should be in the public interest and for the public
eye? These are questions the people are asking, and will
continue to ask. Senator Logan, in a speech last winter in
support of Senator Platt’s resolution for suppressing secret
sessions, stated that “there is a strong desire on the part of a
great many Senators to have secret sessions every day.” Why
this strong desire ?
\Vhat valuable, disinterested plans for serving the people have
they in view which cannot be safely trusted to the public ‘? If
it be disagreeable for them to answer these questions, perhaps
34
most people can answer for themselves. There are, doubtless,
several very conservative Senators, little exposed to partisan
pressure, and with a constitutional deference for precedents and
privilege, who can make a curiously innocent apology for secret
sessions; but all well informed people know that Senatorial
fondness for such sessions is generally measured by the corrupt
intrigues, the patronage mongering, and the indefensible votes
and speeches which they wish to conceal, and that opposition to
such sessions is generally measured by the wish to suppress such
abuses. It is hardly less than an affront to common sense to
seriously argue that the abuses referred to have not been caused
and aggravated by secret sessions. ‘What would be the effect
if the inscrutable mystery and secrecy of these sessions were
extended to every officer, State and Federal, and to every act
connected with appointments and removals, so that nothing
should be known from the first intrigue for a nomination until
the issue of the commission? Could the Government long en-
dure ‘3 By that universal experience, which guides our udgment
with the promptness and certainty of an instinct, fraud, corrup-
tion, vice, cowardice, mean motives—or at least something
wrong—are always associated with the desire to conceal the
discharge of a public function. The oflicers thus skulking from
the light are believed to be knaves or cowards. \Ve know that
all vice, crime and corruption seek concealment and thrive on
it. ‘Who believes that our courts would keep down crime, that
our Legislatures would stand against bribery, that general
peculation could be prevented in administrative offices, if they
were closed in impenetrable secrecy, like the Senate, against the
press and the people? \Vho does not believe that every crim-
inal and lobbyist would rejoice at secret sessions of these bodies ‘3
And does the lobbyist who threatens Senators with the wrath
of a party, or the criminal who tenders a Senator the bribe of a
millionaire for his speech or vote in secret session, hold different
views of such sessions from those held by their fellows at the
doors of courts and Legislatures ?
By common consent the greatest abuses under our Govern-
ment stand connected with the corrupt bargains, the gross
35
bribery, the vicious intrigue, the demoralizing partisan pressure
which are concentrated upon the appointing power in all its
grades from the President to City Aldermen, from the election
of Senators to the appointment of Marshals and policemen.
Nowhere else is the clearest light, the most absolute publicity,
the boldest criticism of the press, the stern gaze of the public,
which most deepen the feeling of responsibility—nowhere else
are they so much needed as where selections for oflice are made.
Yet just here is where the Senate of the United States first set
the example of irresponsible and impenetrable secrecy, and now
leads the States and the municipal councils in a cowardly con-
cealment which facilitates corruption, disarms the power of the
higher public opinion, prevents good men getting office, while
helping bad men into ofiice. ‘Vho so much as the man of pure
life, unstained reputation and high capacity desires his scrutiny
in the Senate to be absolutely public, or declines so manfully
that opportunity for revengeful slander and partisan influence,
without possibility of self-defence, to defeat him behind the
barred doors of the Senate? \Vho, on the other hand, is so
much emboldened and aided by that secret test as the partisan
schemer, the adroit Scoundrel, the serviceable henchman, who
secretly collects recommendations, secretly slander-‘s his com-
petitors, secretly matures his plans with a Senator, secretly de-
ceives the President, with the certainty that if he can stealthily
gain a nomination, all is dark and safe beyond ? The Senate’s
rules of secrecy are a public notice to the vilest office seekers of
the land that they need not despair merely because they would
shrink from a public session, or Senators would not dare pub-
licly to vote for them.
Senator Logan, in the late debate in the Senate, said : “ The
traducer of character and the condoner of bad records will both
shrink before the free and open consideration of Executive
nominations;” and in the same debate Senator Butler declared
that if secret sessions were suppressed, “ opportunity would not
be given the assassin of private character to secretly ply his
avocation. Many an improper person would be kept out of
Government employment and many a good man escape slaugh-
36
ter in the darkness of secret session.” Senator Gibson used
language of the same import.
As every motive likely to influence Senators tends to restrain
such confessions by them on the floor of the Senate and in the
face of their fellows, we may be sure there is no exaggeration
in such statements. If, scorning all cowardly concealment and
rising to the dignity of the duty of its high place, the Senate
would open its doors and speak and vote bravely as befits a
great nation upon all nominations, thereby letting it be known
that no man whose life and character cannot hear the public
gaze need apply for its approval, a vast mass of vicious
oflice seeking and patronage mongering would be suppressed,
political morality would be raised, and the Senate itself would
at once secure a far higher place than it now holds in the esti-
mation of the people.
37
No. 8.—-—How TnE “ COURTESY OF THE SENATE ” CoNDUCEs TO
SECRET SEssIoNs AND PATRoNAeE MONCERINC.
By a curious perversion the attractive name of courtesy——
“ courtesy of the Senate”——has been used to cover one of the
least understood and most vicious practices. The framers of
the Constitution believed that the conspicuous dignity of a
Senator, performing his duty under the public eye, was a sufficient
guarantee that the action of the Senate on nominations would
have controlling reference to character and capacity. Never-
theless, knowing well those frailties of human nature, especially
liable to be exhibited by a legislative body having authority in
connection with appointments, they were not without solicitude,
as this language from the Federalist shows : “ In every exercise
of the power of appointing to office by an assembly of men we
must expect to see a public display of the private and party
likings, * * attachments and animosities which are felt
by those who compose the assembly.” ‘Vith a striking pre—
science of possible evils, the same work supplies an admirable
definition of the “ courtesy of the Senate” in these words:
“ Give us the man we wish .for this ofiice, and you shall have
the one you wish for that office ; this will be the usual condition
of the bargain.” So it has been, in fact, with the courtesy in
practice. twould be untrue and unfair, however, not to say
that a large proportion of the appointments have been based on
merit ever since the courtesy became dominant, and that many
Senators have always condemned it, and some have refused to
observe its code, however lamentably the conventional and .se-
ductive etiquette of the Senate may have suppressed their
indignation. Few men have public virtue enough to refuse the
lordship of patronage in their own State on the condition of
being relieved of trouble about it in other States. The essential
conditions of the courtesy are these :
38 .
(1.) The Senators for each State are to have their way in re-
gard to nominations for their own States.
(2.) Their wishes are to be accepted by the Senators of all
the States.
(8.) No Senator need make a real scrutiny, or can be held to
a real responsibility beyond his own State.
(4.) In other words, the Senators of each State gained the
position of patronage masters-general therein as the considera-
tion for abandoning their duties in all other States.
There have been, doubtless, many exceptions to the exact
enforcement of the courtesy. It could not be strictly applied to
the more prominent ofiicers, like foreign Ministers ; and where
the Senators from the same State were of different parties, there
were complications. Still, many persons think, and especially
those who understand New-York and Pennsylvania politics as
they were some years ago, that Senators of opposite politics have
not found much more difiiculty than New-York Aldermen of
opposite parties in apportioning their patronage and aiding each
other according to the inmost spirit of the courtesy. The
courtesy was always, in substance, a corrupt barter of duty and
honor for power and patronage. And because it was between
some of the highest oflicers in one of the-most conspicuous
places of the nation, it has been lamentably demoralizing. Its
practice was a violation of justice, and a disregard of truth and
good character which directly tended to degrade Senators, to
keep Worthy men out of ofiice, to put bad men into oflice, and
to make oflice getting suspicious and disreputable. There cannot,
in the nature of things, be a refusal or neglect to perform a high
moral and legal duty in a conspicuous place before the people,
without a degradation of the national morals, ' and general
suspicion and distrust among the people, which are in themselves
demoralizing. “Every Senator knows,” said Senator Platt, in
the late debate, “that very largely through this country the idea
2:9
is, that we bargain with each other about confirmations, '“" *
or that, through some idea of ‘Senatorial courtesy,’ we fail to
oppose men whom we ought to oppose, or favor men whom we
ought not to appoint.” The establishment of the courtesy natu-
rally made Senators ten times more anxious than before for secret
sessions. The speeches and votes for enforcing it, if made at
open session, would expose the courtesy to the people. Publicity
would be as fatal to it as it would be to all the abuses which it
greatly aggravates.
Senator Logan, in that debate, said : “ Let the doors of the
Senate Chamber be open when men’s names come before the Sen-
ate, and confirmations through the mysterious agency of ‘ Sena-
torial courtesy’ will give place to the honest man whose fair
record boldly courts inspection.” The vicious influence of this
courtesy was by no means confined to confirmations or even to
national affairs. By uniting all the Senators together in a com-
mon bond of selfish interest and mutual aid for increasing the
patronage and the political power of each to the utmost against the
President and all rivals, it made Senators political potentates in
their States as well as at \Vashington. It made the Senate more
than ever before an arrogant and aggressive body. Every Sen—
ator, in no merely formal sense, spoke, under the courtesy, if
not for the whole Senate, at least for his party in that body.
Senators were thus enabled to dictate nominations to the Presi-
dent, and they long used that power successfully. “I think the
history of the Senate will show,” said Senator Gibson in that.
debate, “that a great many of the leading Senators have in times
past regarded their wishes to the Executive as omnipotent. * *
The public patronage has been considered, in large measure, as
the political right of Senators from the State in which the ap-
pointments were to be made.” when the stern reform senti-
ment of the country gave President Garfield courage to resist
such a demand, Senators Conkling and Platt still felt sure that
Senatorial courtesy would confirm any candidate they could
force him to nominate. That usurpation of power, secured by
the Senate through the Tenure of Oflice Act of 1867, which de-
stroyed the counterpoise of the Government, had its motive and
40
its strength in the courtesy of the Senate. \Vhen the Senators
of a State could thus control the selection of all the high Fede-
ral officers to serve within its borders, they inevitably became the
purveyors general and lords paramount of Federal patronage.
It has been easy for Senators to condition the recommendations
for an appointment or votes for a confirmation of a collector,
postmaster, or any other officer upon the henchmen and fiunkies
of Senators being made clerks, messengers and chimney sweeps
under such officers. I have seen several letters from Senators
unmistakably hinting such terms for their influence or votes.
Thus Senators become almost as much political despots and
patronage mongers as they were legislators, thereby degrading
the Senatorial office itself. Hence in large measure the power,
intrigue and corruption which, partly causing and always rein-
forcing bribery by money, has been one of the causes of so
many scandals attending the election of Senators within the
present decade.
The aggressive spirit fostered by the courtesy, the Tenure of
Ofiice Acts, and the irresponsibility of secret sessions aiding each
other, have emboldened Senators to claim authority over re-
movals as well as appointments. The danger of offending a
Senator, who has not the least moral or legal right to interfere
with them, had been for many years before the Civil Service
Act the terror of the clerks in the Departments and Custom
Houses.
This Senatorial courtesy was naturally imitated by the Senates
of States and the Aldermen of cities, where secret sessions
have been as much desired and the abuses of secret confirma-
tions have been as great as at \Vashington. There is not
probably a corrupt legislator in Ohio nor an indicted Alderman
in New-York who would not, as much as the most partisan and
venal member of the national Senate, regret the abolition of
secret sessions and the suppression of the courtesy.
We need not nicely inquire when the courtesy was first
established at Washington, nor how far it has yielded, though
I am sure it has yielded very much of late, to the bold sentiment
demanding administrative reform. Its foundations were ccrtainl y
41_
well laid in 1832, when Senator Marcy dared declare, at a secret
session of the Senate, that “to the victor belongs the spoils.” It
was apparently in full force when, in 1877, Mr. Garfield declared
that “ the President could remove no ofiicer without the consent
of the Senate, not often given, unless the appointment of the
successor is agreeable to the Senator in whose State the appointee
resides.” As it was still later in full force, apparently, when
Senator Hoar cautiously, but not less significantly, said, that “in
this way the Executive may be subjected to another branch of
the Government.” It would seem not to have wholly disappeared
when, less than five years ago, Senator Pendleton, speaking of
the prevailing system, declared, in the Senate, that “it drives
Senators * * * into the neglect of their chief duties of
legislation, * * * and too often makes the support of an
Administration conditioned upon the obtaining ofiices for their
friends ;” and Senator Dawes added, that “it destroys his
independence, and makes him a slave.” I fear there is even
ground for doubt whether it will ever disappear, so long as a
majority of the Senators are not ashamed to provide for
enforcing in secrecy a system they dare not publicly defend,
and for secretly giving votes and making speeches behind barred
doors which they would not dare make in public.
42
No. 9.—Sncmrr SESSIONS OF THE SENATE NEnnLEss AND an
OBSTRUCTION To run REFORM on THE CIVIL Snnvren.
Senators speaking in the presence of their associates and
under the strongest natural bias in favor of the Senate will
be the last persons in the world to exaggerate its wrong doings.
Yet this is language bravely used by them in the debate of
last winter :
“ There is not now, and there never has been,” said Senator
Logan, “ any necessity for the consideration of nominations in
“ secret sessions.” -
“ I affirm now,” said Senator Platt, “ that I never heard a
“ word said in executive session which ought to have been
“ sa-z'dlhere, which might not just as well have been said in
“ open session, in relation to confirmation of nominations.”
Speaking of the rights of the people, Senator Gibson said : “ No
“ public interests requires that any of the proceedings of the
“ Senate should have kept secrets fro-m them.”
“ My experience here,” Senator Butler declared, “ convinces
“ me there is no necessity 0'1‘ excuse for secret sessions, except,
“ perhaps, in considering treaties with foreign countries, * *
“ and it is a somewhat curious fact that this is the only Parlia-
“ mentary body in the world with, perhaps, one exception, *3‘ *
“ which * * has rules for secret sessions.”
Secret sessions being thus shown to be utterly needless by
language thus publicly flung in the face of the majority of the
Senate, which clings to them, how are we to explain its suspi-
cious and mysterious pertinacity for darkness and barred doors,
upon any theory less creditable than that which I have but too
mildly set forth ?
Senators know well the effects of secret sessions upon the re-
form of the civil service, and this is their unchallenged judg-
43
ment: Senator Logan declared that “ open executive sessions
“ for the consideration of nominations must aid in purifying
“ the public service.”
“ If it were once understood,” said Senator Gibson, “that
“ entire publicity were the rule respecting all appointments, the
“ chief difliculty in the way of the thorough reformation of the
“ public service would be removed.”
“ My observation and experience teach me,” said Senator
Butler, “ that the nearest, surest and safest road to reform in the
“ civil service is to throw wide open our doors for executive as
“ well as legislative business.”
“ We shall never have a real thorough reform of our civil
“ service,” Senator Platt declared, “until the widest possible
“ publicity is given to the methods of Presidential nominations
“ and Senatorial confirmations.” * * “ It is a farce, a mockery
“ and a delusion to talk about Civil Service Reform as an ac-
“ complished fact while this goes on.”
These Senators do not, as my experience compels me to be-
lieve, exaggerate when they thus present the secret sessions of
the Senate as a source of corruption, and as being at this moment
one of the greatest obstacles in the way of advancing the re-
form of the civil service. The simple, disgraceful facts proved
are that the highest legislative body of the nation, claiming a
right to decide as to all removals, and potential over all the
higher appointments, has, without any need or justification
even in the partial estimate of its own members, been holding its
sessions, in defiance of the Constitution and the higher sentiments
of the people, behind the barred doors of the National Capitol,
asserting the arrogant privileges of the Star Chamber, and
haughtily denying all responsibility to the people for speech or
vote. It has held trials without evidence, and condemned with-
out self-defence, leaving no record, and allowing no appeal to
public opinion in perhaps a hundred sessions and near a thousand
cases every year. These facts and proceedings have created
such general suspicion in the national mind, have so lamentably
impaired faith in the Senate and in public virtue itself, have so
consolidated a vast army of mercenary, secrecy-loving office
44
seekers and politicians, that thereby the reform of the civil
service was made much more difficult than it would have been
had the Senate acted openly.
A reform policy is utterly repugnant to every element which
is a part of either the motive or the object of secret sessions.
These sessions are an agency through which offices are secured
by secret influences, on secret recommendations aided by secret
intrigues, for reasons which the people are denied any right to
know, and all opportunity to learn, in irresponsible and inscruta-
ble disregard of character and capacity to any extent which may
suit the policy, the politics or the interests of a majority of the
Senators, or—under the courtesy—of two Senators, or one only
in some cases.
Under the Civil Service Rules publicity is complete. Before
the examination begins, every applicant must, under oath and in
writing, state his birthplace, age, residence, physical condition,
business and occupation and where he has resided each year for
the last five years. He must prove himself of good character,
free from gross vices, and that he has not been recently guilty of
any criminal offence. A public examination, with all competitors,
then follows, and the entire record is preserved. On superior
merit, as shown by this public ordeal, all the appointments of
such applicants rest.
But there is quite another sort of antagonism between the two
systems. Every one of the more than fifteen thousand places
now filled through examinations had been a part of the direct
and vast patronage of Heads of Departments, Collectors,
Postmaster-s, and various other ofiicers, who are subject to
confirmation by the Senate ; but a part of the indirect, but real
patronage of Senators ; for the power of confirmation was, under
the courtesy and through opportunities of secret sessions,
practically a power, on the part of Senators, which they freely
used, to dictate appointments under the ofi‘icers named, as
a condition of confirming their nominations. A Senator could
thus gain places for his favorites, not only in his own State but
in other States, when his vote was needed. Such favois are,
45
I am assured, reciprocated between Senators as a part of the
courtesy.
If the President should to-morrow extend the ‘civil service
examinations, so that they would cover other post ofices and
revenue ofiices, for example, in Ohio, Pennsylvania, Indiana,
Kansas or other States, he would greatly diminish Senatorial
patronage in those States, and greatly affect the votes of
Senators and the election of Senators. ViTe need not go beyond
these points to find an explanation of the significant facts that
the courtesy, the spoils system and secret sessions have so many
friends and enemies in common.
46
No. IO.—--TH.E ONE REAsoN eIvEN FOR SEcEE'r SEssI-oNs.
Various specious excuses and apologies have been presented
for secret action on nominations, but the one reason given is
this : that there is something in the very nature of that action
which ought not to be made public. I have looked in vain for
any definite statement of what it is. If public ofiices are the
spoils of party victory, if the power of confirmation is a perquisite
of Senators, if Senators have a right to evade responsibility by
hiding themselves in their lock-up and keeping the people in
ignorance, if the courtesy of the Senate for a secret division of
patronage is defensible, if an applicant for office has no claim to
know by whom he is assailed or for what reason condemned, if
the press has no right to know and report the ofiicial proceedings
of the Senate, if the convenience of Senators is paramount to the
enlightenment of the people,—th'en, indeed, such sessions are as
j ustifiable as they certainly are convenient, not for determining
who ought to have office, but for saving Senators from the wrath
and contempt of the people.
But if, on the other hand, public office is a public trust, if
character and capacity are the supreme tests for appointments, if
the people have a right to know the action of their servants in a
vast and vital sphere of government, if freedom of the press is not
limited to what the majority of the Senate may find it convenient
or for their interest to make public, then it seems plain enough
that there is something in the very nature of such sessions which
requires publicity. It is for the apologists of a secret tribunal
for testing character and doing justice to prove how secrecy can
aid such results, or, in other words, that it was a mistake to abolish
the Star Chamber. The experience of all the most civilized
nations has caused publicity in all investigations, in all tribunals
of justice, in all legislative and executive bodies, especially when
character and the claims of justice are involved, to be so identified
with honesty, truth and right, and secrecy and concealment to be
so identified with fraud, corruption and wrong, that everything
47
which shrinks from publicity and light is instinctively condemned.
There are, and can be no arguments in favor of secret action on
nominations, which, to any person but a Senator, do not seem
suspicious, cowardly or absurd. i
No answers to the one reason given for secrecy can be so
convincing as those coming from Senators themselves. Their
statements, on the floor of the Senate, and in the faces of their
fellow Senators, must have been a painful duty. I shall quote
the language of four Senators; two from the North and two
from the South—two Democrats and two Republicans. No one,
I think, can read it without being astonished that the great evils
of secret sessions they arraign should have been so long tolerated,
or without a feeling of respect and gratitude toward the four
Senators who have had the moral courage to disclose and
denounce these evils in such patriotic and manly terms :
Senator Gibson, of La. : “Now, Mr. President, there are two
“ methods for filling the offices created by the Constitution and
“laws, one by election and the other by appointment; and I
“ submit that the reasons which compel and justify the utmost
“ publicity in the discussion of the merits and qualifications in
“ one case should prevail in the other. The offices belong
“ to the people, were created for their benefit and not for the
“ benefit of the office holders * * nor for the Senate. * * The
“ people have a right to know all about their qualifications when
“ they come to be appointed or elected.” Referring to pub-
licity, Senator Gibson further says : “ It would impose greater
“ circumspection and responsibility and better methods upon
“ the appointing power.” * * “Senators, Representatives and
“ gentlemen in private life, who now carelessly give their recom-
“ mendations right and left, without scrutiny, would be more
“ careful when it was understood that the measure of their re-
"‘ sponsibility was likewise ‘to be declared to the country and
“ not hid away in the archives of the Committee rooms.” *-
“ It would relieve the Senate from the constant discussion of
“ attacks upon private character, which secrecy holds out as a
“ temptation to those who would gratify personal malice or re-
48
“ venge by striking under cover in the dark.” * * “ The duty to
“ investigate in secret and by secret methods the character of
“ the persons assailed and the assailants, is the most humiliating
“ and disgusting work ever committed to gentlemen.” “ Let us
“ open the doors of the Senate, and we shall be no longer re-
“ quired to pass on charges springing from such motives.
“ Publicity is a process of purification, while secrecy breeds
“ suspicion of intrigues and excites odium and discontent. No
“ doubt the effect of this change would be to deprive the Senate
“ of the opportunity of seeking party advantage in the matter
“ of appointments. * * It would undoubtedly tend to relate the
“ grasp of the Senate itself upon the public patronage as one of
“ its prerogatives, and to transfer the responsibility to the ap-
“ pointing power, where it properly belongs.”
Senator Butler, of S. C. : “\Ve are here as agents and ser-
“ vants of the people, exercising a great trust for them.
“ Should they not have a full and complete account of how that
“ trust is discharged ? * * Yet when we come to transact ad-
“ ministrative duties as important as any other, namely, pass
“ judgment on public officials, we shut the doors, close the
“ blinds, and shroud ourselves in the mystery of secret sessions
“ ——at least that is the purpose, though it is not always realized.
“ * * Instead of greater secrecy in our deliberations, there
“ ought to be greater publicity. None but those who could
“ stand the focused light of the public gaze would be sent to us,
“ and great good would accrue to the public service.”
Senator Logan, of Illinois, referring first to the evils of secret
sessions, and the motives which sustain them, and the good
which would come from publicity, said: “The applicant for
“ public place, with crooked record, who expects to steal his
“ way through the mysteries of secret sessions to an ofiicial
“ position, would seek other places than the halls of the Senate
“ of the United States. * * I said it was demoralizing. * * I
“ mean secret sessions encourage Senators, if they are so dis-
“ posed, to utter what they would not desire to do in other
“ places. * * We have a rule in which we declare that we will
“ expel any member from the Senate who gives away the secrets
49
“ of the Senate. Are they not given away ? * i‘ This mysterious
“ thing of doing in secret session what you will not do openly
“is not manly. It gives the chance for men to vote in secret
“ one way ancl talk in open Senate another way.”
Senator Plait, of Conn. : “ Secrecy is odious to every human
“ being, except when he practices it himself. It is against the
“ spirit of a free government. * * It is a lineal descendant of
“ the Privy Council. *1‘ * Publicity is the one thing upon which
“ we must rely in this country for the correction of evils.
“ ‘Why do we investigate matters ‘3 \Ve order here and in the
“ other House investigations, because we think something is
“ done in secret which ought to be revealed. It is true now as
“it was eighteen centuries ago, that men love darkness rather
“ than light, because their deeds are evil.” * * “ The incom-
“ petent will not be presented here for us to discuss, as they
“ are now presented, if it be understood that their character and
“ qualifications are open to public discussion and are to receive
“ public consideration. The whole business of appointment to
“ ofiice will change.” * * “Sir, this argument becomes some-
“ thing farcical when you look it in the eye. It is a plea for
“ personal privilege on the part of Senators ,' it is a plea to be
“ exempt from unpleasant duties.” * ‘ii “ Is there any other
“ argument ‘3 Yes, I have heard one other ; that it is a Senato-
“ rial prerogative. I do not want to stop and discuss that ques-
“ tion, but I believe that right in that argument, perhaps, is the
“ greatest clisinclination which some Senators may have to the
“ opening of these doors.”
Thus it appears, by the highest possible evidence, from an
experience disregarding all interests of party or locality, from
words possible only under an overwhelming sense of duty, that
no public consideration, no private right, no intrinsic necessity,
no patriotic motive, but audacious assumption, insolent grasping
for medieeval privileges, a cowardly dread of responsibility and
an overpowering desire to conceal something which will not
bear the light, are the controlling influences which preserve the
darkness, the mystery and the mischief of these secret sessions.
But I do not doubt that a few Senators really believe that these
sessions are useful.
No. 11.—How SECRET SEssIoNs ARE DEEENDED BY SENATOR
HOAR AND SENATOR MoRIuLL.
Hardly anything connected with secret sessions is more re-
markable than the attempt made by two Senators, Mr. Hoar,
of Massachusetts, and Mr. Merrill, of Vermont, to justify them.
I have great respect for the character and public services of
these gentlemen. It may at first seem strange to some that two
Senators, each of them conspicuously free both from the tempta-
tion and the vicious use of patronage—one of them from a
State where there has been the least corruption in politics—and
the other from a State where the suppression of the spoils system
by civil service examinations is most advanced—should be the
only two Senators to speak in defence of a practice which four
Senators have in substance declared to be not only the bulwark
of that system but the great fortress and ainbuscade of cow-
ardice and patronage mongering.
Yet it is all quite natural. The slowest man to come to the
work of reform is very likely to be one quite innocent himself,
and quite ignorant of the corruption elsewhere. Whenever
any secret order, falling under suspicion, is finally arraigned by
public opinion, those most zealous and indiscreet for its defence
are quite sure to be some of its most worthy members, who natu-
rally feel most compromised and most sensitive to criticism.
I have often noticed that when a clergyman gets into trouble
with any of the sisters of the Church, his first and most vehement
defenders are the deacons.
Senator Hoar sets out with some astounding declarations and
assumptions which involve all that follows as argument. I can
notice only the most striking. He says he has heard of only
one person, not connected with newspapers, who thought a
change of secret sessions desirable! I have just quoted the
opinions of four of his fellow Senators against them. And I
must express my astonishment that any Senator can be unaware
of the distrust of secret sessions pervading thoughtful minds
51
beyond the Senate ; though Senators would not often be directly
told of the public feeling toward themselves or the Senate.
Senator Hoar next declares, that “ The public sentiment of this
“ country demands that the Senate shall do what, on full
“ deliberation and discussion, it thinks just and right. It makes
“ no other demand on us whatever ;” and further states, “ that
“ the Senate never stood higher in the estimation of the people
“ than now.”
I venture the opinion that the popular estimation of the Senate
is the very contrary of this. The Senate is believed to be so in-
terested in the preservation of its patronage and its privileges, and
to have so many members who care more for their own interests
than for the public interests, that it is incapable of wise action as
to secret sessions, unless coerced by public opinion. No fact is
clearer to well informed people, outside of the Senate, than the
fact that it has been falling in public estimation, and that in-
trigue, partisan influence and bribery by money, are becoming
more and more potent in the election of Senators. Such people,
however, know the mighty spell of the “idol of the tribe,” and
are not greatly astonished when they find a Senator utterly
misled as to the state of public opinion concerning the Senate.
I might justify my view by merely quoting the opinions of his
fellow Senators, soon to follow. It is, however, but an act of
justice to Senator Hoar to allow him to show that he is not
always so misled.
In the very month that Senator Hoar thus presented the
Senate as a body so admirably disinterested, that, when its
privileges and its patronage are involved, the dear people need
have no higher thought than to trust implicitly to its wisdom
and justice, he wrote a report and delivered a speech, in
arraignment of the alarming action of the Senate in the Payne
election case, quite in my way of thinking, and of which I
should be proud to have been the author. In that speech, and
in the report (in which Senator Frye joined) Senator Hoar used
this significant language : “ For the Senate to refuse to listen to
“ this complaint, so made, would, it seems to me, be, and be
“ everywhere taken to be, a declaration that it is indzlfl'c-re/zt to
52
I
a
the question whether its seats are to be, in the future, the subjects
of bargain and sale, or may be presented by a few millionaires
as a compliment to a friend. No more fatal blow can be
struck at the Senate, or at the purity and permanence of
republican government, than the establishment of this pre-
“ cedent.” * * “The vote in that caucus, and it is a pretty
“ significant suggestion, was by secret ballot. The Payne men,
against the earnest remonstrance of the members of the other
“ party, insisted on having the vote by secret ballot.” Here, I
may stop to say, the Senator was as fully convinced that there
was fraud and corrupt motives because the ballot was secret, as
the people are new convinced that the secret votes of the Senate
spring from the same cause. But he continues: “I think this
“ inquiry is demanded for the sake of the Senate. It is vital to
“ that free and pure government, without which no republic can
‘6
‘C
‘C
‘C
‘i
“ endure. The precedent of this case, if the Committee be e
“ sustained by the Senate, will render corruption easy hereafter,
“ when its example will be most pernicious, and its eiforts
“ worse.” True, brave and noble words, for which the country
should thank Senator Hoar. But, sad to say, that investigation
was not made; that disastrous precedent was established, and
that blow was struck at the purity and permanence of republican
government. Corruption hereafter was made the easier by the
Senate itself, to its everlasting shame. The Senate never made
a more humiliating declaration of the moral tone of its majority.
It was justly declared by Senator Hoar, in the debate, that amagis-
trate who had refused an inquiry, on such evidence as called for
an investigation in the Payne case, would have been impeached,
and that a District Attorney neglecting to make it would have
been removed. The significance of these declarations is, that
they, in efi'ect, declare the view of the Senator to be that the
sense of honor and duty, both among the people and on the
part of the Executive, is higher than in the Senate; as other-
wise his comparisons are obviously unwarranted.
The new millionaire Senator affected by such facts was left
undisturbed in his seat and he sat through all the humiliating
debate, without the least hint that he desired an inquiry for
clearing his own record-—a fact that astonished Senator Hoar.
53
Is that Senator quite certain that the Senatorial theories and
standards of honor and duty, which, one would think, might
naturally enough spring from skulking behind barred doors for
discharging the highest public functions, from indulging a
cowardly dread of public criticism, from substituting the fear
of expulsion for the honor of a Senator as the guaranty of
patriotism and good faith—is he quite certain that these theories
and standards will not go far toward explaining what so
astonished and mortified him in the Payne case ?
Senator Logan, with open eyes, well knowing the public opinion
of theWVest—a Senator, by the way, whom Senator Hoar, though
worthy to be Vice-President and to preside over the Senate—-
gave, in the same debate, this fit and true answer to Senator
Hoar’s theory of secret sessions and of the people’s estimate of
them. The people say, says Senator Logan, “these chamber
“ doors shall be open, and not only that, but they will thunder
“ at them until they are opened; and, mark what I tell you,
“ they will be opened. It will not be long either. * * You
“ gentlemen may revel in the dark for a while over nomina-
“ tions, and delight yourselves to go out and know something
“ that the people do not know. * * I warn my friends here
“ that the people of this country will know what you do. They
“ will open these doors and they will look in upon you. They
“are entitled to, and until these doors are opened the people
“ of this country cannot have an opportunity of full knowledge
“ of the workings of the Government.”
Senator Platt, knowing the public opinion of the East, adds
this answer from that section to Senator Hoar’s laudation of
the Senate : “ This is not a popular body, ‘K * it is fast
“ becoming a very unpopular body in the estimation of the
“ citizens of this country. Public sentiment compelled open
“legislative sessions of the Senate, and it now demands open
“ executive sessions of the Senate. * I venture to say,
“ that of the nearly fourteen thousand newspapers, probably ten
“ thousand of them—a very large proportion of them—have de-
“ clared their belief that this measure should be adopted.”
54
No. 12.—-How SECRET SEssIoNs ARE DEFENDED BY SENATORS.
Senator Hoar tries to justify secret sessions by declaring that
the members of State Senates, and of municipal corporations,
have generally followed the example of the National Senate in
hiding themselves from the public eye, when dealing with the
patronage. The example is unquestionably attractive to any
one having something in hand which will not bear the light.
The New-York Aldermen, a few months ago, followed the na-
tional example, as faithfully as any State Senators ever did in
dispensing patronage for carrying elections, when they locked
the doors and shut the blinds, before selling a municipal fran-
chise for $500,000 cash in hand. If the fact that States have
followed the bad practices of the nation justifies the latter,
then the denial of the right of petition by Congress and the
condemnation of John Quincy Adams, for maintaining the free-
dom of debate in its balls, were altogether right ; for these ex-
amples were followed or approved by many States.
Indeed the Senator’s argument has the full force of the logic
of the gambling grandfather, in the play, who justified his habits
by declaring that all his children and grandchildren were gam-
blers like himself. There is a public opinion aroused, I think,
which will soon settle this matter with the whole family, though
it is now dealing with the grandfather. In New-York, however,
the attack has been made at the other end of the line, also, by a
total repeal, last winter, of the law giving the New-York City
Aldermen the power of confirmation.
Both Senator Hear and Senator Merrill insist that if Senators
are to act publicly on nominations, so should the cabinet, and
Senator Hoar adds, so should grand juries. The Senate-r from
Vermont indulges his imagination somewhat grotesquely, and '
with a very broad license in dealing with this whole matter, as
if the case was one of impertinent intermeddlers, obtruding into
the sanctuary of Senatorial privilege, instead of a righteous and
5.)
indignant public opinion, calling public servants to an account.
He brings in the President, without the least sarcasm, I assume,
under the appellation of the “manliest of men,” and then the
President’s wife, as one “ glittering like the morning star,” and,
finally, the “ corps diplomatique,” as a part of his assembly,
trying to make them all ridiculous together, with that kind of
success that I should have supposed the speech intended to‘
amuse a rollicking secret session, and not for the public eye,
were it not for a memoranda in the official report which tells
us that the Senator was too ill at the time to read—and perhaps
I may add, to revise—his speech.
Mr. May, somewhere in his work on the British Consti-
tution, tells us that great men never reason so poorly and
strangely as when trying to defend their usurpations and in-
crease their power. I know no other explanation of the strange
fact that a Senator tries to find an analogy between a grand
jury and a secret session of the Senate. A grand jury is
for a mere preliminary investigation, and a precaution against
unfounded rumors. It makes formal charges with probability
of truth. Thereafter comes the trial, where no secrecy is al-
lowed, where the venerable precedents of justice prevail, where
there is defence by counsel, where law, facts and principles are
discussed, and the record is made in the open face of day ; and
after all there is an appeal. The Senate, acting on nominations,
is grand jury, State’s attorney, petty jury, judge and execu-
tioner, with the safeguards of neither, all mingled in one body,
blinded by partisan prejudice, and dominated by Senatorial
courtesy. This body, afraid to trust its own members unless
coerced to fidelity by threats of expulsion, shuts itself up behind
boltedidoors, and there, in everlasting secrecy, proceeds to try
and judge character and capacity, without legal evidence or op-
portunity of self-defence, rendering decisions without recogniz-
ing precedents, entering decrees without leaving any record,
enforcing them without allowing a chance of appeal,—all with
absolute irresponsibility to the higher public opinion on the
part of any individual Senator.
The reference to the Cabinet as an argument is not more fortu-
66
nate. The Cabinet is not a body known to the Constitution or
to the laws. In the theory of the Government, the Cabinet has
nothing whatever to do with nominations subject to confirma-
tion by the Senate. The President is solely responsible for
them, and could make all of them if he had no Cabinet, or, if
having one, all its members were in the moon. The most im-
portant of all nominations—those of the members of that ideal
body itself, called the Cabinet—made by him, are made before
that body can have any sort of existence. And here, I may
say, the President acts publicly. The nomination he publicly
sends to the Senate is his vote, and much more than a vote,
given in the face of the nation. Secrecy begins when the Sen-
ate hides the nominations, and is continued only in the secret
votes and speeches of Senators. All is public again when the
inquisitorial proceedings of the Senate are at an end.
And more than this, both these Senators, and all the other
Senators so anxious for secret sessions, insisted last winter that the
members of the Cabinet are more emphatically the subordinates
of the Senate than of the President, claiming that the Senate has
the right to demand their correspondence, as well as facts of
their co-operation with the President, to be put into the secret
archives of the Senate for use at its secret sessions.
I am glad to notice, that even so exuberant a defender of
secrecy as Senator Merrill condemns, in the rules of his body,
the threat of expulsion for Senatorial treachery, declaring that
“ the sense of decency and propriety may be trusted.” I hope
it may, but, in view of the scandalous frequency with which,
according to the statements of several Senators, the precious
secrets of their sessions have been betrayed, and especially in
view of the fact that two Whole treaties, within a year last past,
have been published in the public journals before they were acted
on by the Senate, leads me to doubt.
Senator Hoar declares the belief, and, I believe, Senator Merrill
also, that the power of confirmation would never have been given
to the Senate, had so many nominations been anticipated. As
every case of confirmation involves the same principle and duty
as a thousand cases involve, one would think that if the co-
5'7
operation of the Senate in the matter is useful at all, it would be
most needed when many cases press upon the President. Still,
I agree with them in thinking, but for very different reasons,
that had the result been foreseen, that power would never have
been given. The framers of the Constitution, plainly enough,
never imagined that Senators would conceal themselves to escape
responsibility to the people, or give votes or make speeches they
were ashamed to have made public. It may be, that the taking
of the power of confirmation from the New-York City Aldermen
is but the beginning of a reaction that will reach the National
Senate.
Both these Senators base an argument for secrecy on its
alleged fitness for what they call “confidential relations ;” and
they might as well call them secret relations as they present the
subject, between the President and the Senate. The Constitution
recognizes no more confidential relations there than it does be-
tween any other branches of the Government. These pretended
relations of confidence are the mere creation of the rules of the
Senate, in aid of secrecy and of the protection of Senators from
criticism. The only confidence known to the Constitution, or
needed by the people, is, that the President and the Senate
alike shall be faithful to their respective trusts, fair to each
other, each having confidence in sound principles and the trust-
worthiness of the people. All confidence beyond this is
the confidence of partisanship and patronage mongering. All
pretended “confidential relations,” which keep the people in
ignorance, and give great ofiicers impunity from criticism, are
as utterly vicious as they are repugnant to the spirit of our
institutions. In the matter of pending negotiations and trea-
ties, the obligation of confidence does not grow out of any rela-
tions between the President and the Senate, but out of the
duties of each to the people. It rests on Representatives and
all other ofiicers as absolutely as on Senators.
\Vhen the President and Senate are of the same party, and
the appointing power is secretly used between them to reward
their respective henchmen, pay off the party camp followers,
supply its working force, and fill its treasury for the next
58
election, the meaning of “confidential relations” is plain enough.
But what do confidential relations mean, in the view of these
Senators, when the majority of the Senate is opposed to the
President, and when both the Senators attack, ridicule, and
in some particulars, as I think, greatly misrepresent his acts?
though I am neither the apologist of the President nor an
adherent of his party.
We are not left wholly in the dark as to the practical
application of “ confidential relations,” for Senator Merrill uses
this pregnant language : “ A nomination sometimes reaches
“ the Senate which the Executive cannot, apparently, afford
“ to withdraw, and which the Senate is almost unanimously
agreed should neither be rejected nor confirmed.” Put into
plain tin-Senatorial English, such language comes to this—not as
the admitted code of the Senator, of course, but as the Senatorial
theory of politics—that aPresident, to gain a State, to silence an
adversary, to bribe an editor, may deceitfully promise a foreign
mission, a consulship, a post office, to any number of unworthy
fellows, with the safe assurance that the Senate will have neither
the patriotism to reject nor the courage to approve the nomina-
tions, but will smother them in its lock-up, under the dirty
blanket of “ confidential relations.” In other words, these
relations are those of barter, deception and cowardice. Such
defences of secrecy as these lend new force to the declaration of
the four Senators already quoted, who say that our administrative
abuses can never be removed so long as secret sessions continue.
\Ve may be sure there are always some Senators who will never
thus aid Presidential fraud and cowardice, without their reward
in the form of the nomination of some of their favorites. These
are all “ confidential relations.”
59
No. 13.-—How Sncan'r Snssrons ARE Dnrnrnnn BY
SENA'roRs.
Senator Hoar, by citing instances in which the Senate has
taken the lead of the House in reform legislation, and mainly
that of the civil service reform bill, tries to remove the sus-
picion and the presumption of indefensible motives, which he
justly assumes to arise from the fact of the secrecy of the
Senate. He is not successful. That bill did not originate
in the Senate and was not welcomed by its majority. The
Senate had ten years before received with silent hostility a
request for legislation in the same spirit made by President
Grant. The origin of that bill and that formidable power
behind it which the Senate did not think it safe to confront,
were both in that same higher public opinion which new
beats on the barred doors of the Senate. It was necessary to
go to the opposition for a champion where the courtesy and
“ confidential relations ” afford far less opportunities. I
would be glad to have Mr. Hoar name any Senator of his
party who had a serious thought of framing such bill, al--
though four-fifths at least of its strength was then in the
ranks of that party.
I hesitate as to the fit response to some parts of the speech
of the Senator from Vermont. Senator Logan tells us that
the Senate at the outset haughtily claimed that it represented
only the States, and was not therefore responsible to the peo-
ple. It might consequent-1y slam its doors in their faces.
Senator Platt knowing well the real views of Senators, formally
replied to a claim covertly made but not publicly stated by
Senators, that the old privilege and pretensions should be
preserved in order to magnify the power of the Senators.
N ow, as Senator Merrill, reared in the charming simplicity
60
of rural Vermont, is as far from needing such a reply as any one
long in the Senate can be, the cautious \Vul‘dS of his written
speech cannot overstate the longing for increased power on the
part of his fellow Senators. Nevertheless, this mild and amiable
Senator uses language which a Duke of the United Kingdom
would accept. Here are some specimens: “Open sessions
would leave the Senate with a ‘diminished independence.’ "
Certainly they would ; there would no longer be independ-
ence to make such a disgraceful confirmation as that of the
ballot box stuffing Thomas, of Maryland, without the votes
of Senators being known.
The Senator next tells us that members of the Senate
“ know the propriety and value of closed doors in Executive
“ sessions far better than any outsiders.” Happy the people,
let me say, who have their highest wisdom and sense of pro-
priety in the Senate, even if according to this Senatorial as-
sumption, all outsiders, like myself and the public journals,
are thus admonished of their utter incompetency to speak of
such high subjects as secret sessions and Senatorial privileges.
The Senator applies to the people much the same language
which Queen Elizabeth applied to members of Parliament
when they obtruded their views about the great affairs of
State. I had not thought of denying that Senators are by far
better judges than outsiders of “ the 'valite of closed doors.”
To all honest outsiders they are absolutely valueless. It is,
however, a new doctrine in this country that an outsider is
on the score of propriety incompetent to criticise a public of-
ficer, though in England it is as old as the time of the first
outsider being sent to prison for obtruding his opinion against
the infallible wisdom of members of Parliament.
The Senator next tells us, with the same unrivalled
frankness, that “the public would bring through open doors
“ no valuable contributions, nothing but premature curiosity
“ and unsolicited advice.”
61
Could a Roman or Venetian Senator have used prouder
language? Does not the Senator from Vermont think, as
the whole Senate once thought, that the same is true of open
doors for legislative sessions also ? There have been public
officers, in every age, I believe, who have thought they so
completely embodied the highest intelligence and virtue of
the nation, that it was a real misfortune to have the journals
and the people continually obtruding their unwelcome
opinions through the open doors of official life.
I know not to which this exalted theory of the Senator as
to the inability of all outsiders to contribute anything to
Senatorial wisdom worthy of respect can be the more pro-
found consolation ; to a people thus assured that their su-
premest efforts through speech and the press to improve the
government are but “premature curiosity ” when measured
against the uncomensurable attributes of their Senators, or to
these Senators themselves who can dwell, like the God of the
Buddhist, in the everlasting contemplation of such sublime
qualities incarnate in themselves alone among fifty millions
of people ! Still speaking from these sublime Senatorial
heights, the Senator from Vermont next tells the ever
curious and valueless outsiders, that the matter they humbly
bring to the doors of the Senate, being a new conceit of the
“ so-called reformers,” at which he several times laboriously
sueers, “ has not yet reached the dignity of a public ques-
“ lion.” Nevertheless, he kindly adds that the Senate will
listen, for which the outsiders should be grateful; but he
expresses a strong preference for the “ venerable precedents”
of the fathers. I hope the Senator will excuse me for refresh-
ing his memory a little. There were no Senate rules requir-
ing secrecy as to nominations until ISQO—thirty-one years
after the organization of the Senate. The rule for punishing
tattling about secret session by expulsion was adopted at the
height of the spoils system—senatorial courtesy—confiden-
62
tial relations—saturnalia in 1868—seventy-nine years after
that organization. Which of these rules, in the Senator’s
‘_ view, is one the venerable precedents of the fathers which he
prefers ? For a period of nearly five years from its organiza-
tion the Senate, reasserting the aristocratic Parliamentary
privileges of a former century, kept the doors of even its
legislative sessions closed. This is certainly one of the
“ venerable precedents” of the fathers, but does the Senator
wish to revive it P
And now as to the age and dignity of the question of open
sessions. It was raised and defeated in 1790, was renewed in
1791 by James Monroe, but defeated by avote of 9 to 17.
Since then it has been raised at various dates, as in 1792,
1793, 1800, 1813, 1820, 1841, 1842, 1843, 1848, 1853,1862,
and 1868. Until last winter there does not appear to have
been an effort to open the doors of the Senate since 1868,
either because—just as the Senator prefers to have it—there
was no man in the Senate with patriotism or moral courage
enough to raise it, or because the Senate was so given over to
“ courtesy” and “ confidential relations,” that there was
no reasonable hope that its doors could be opened. The de-
bates on several, at least, of these motions to suppress secrecy
were long and earnest. That submitted in 1853 is particu-
larly interesting, and was lost by a vote of 14 to 23. It was
made by Mr. Chase—once Senator, Secretary of the Treasury,
Chief J ustice ofthe Supreme Court of the United States—and
was supported by Mr. Sumner, the predecessor of one of the
present champions of Senatorial secrecy. Mr. Sumner de-
clared that “ executive sessions with closed doors shrouded
“ from the public gaze and public criticism, constitute an ex-
“ ccptional part of our system too much in harmony with the
“ proceedings of other governments less liberal in character.
“ The genius of our institutions requires publicity.”
Such is the new question hastily raised by the “so-called
63
reformers,” which the Senator from Vermont treats as lack-
ing that age and dignity which deserves the serious attention
of the Senate.
And now we must come down from the Senatorial heights
and to a very low level, indeed ; for the defenders of secrecy,
having first presented Senators to us as far above ordinary
mortals, next present them as impetuous, outrageous persons,
quite unsafe to be trusted.
Senator Merrill, for example, says that if sessions were
open there is danger that “ they would make outrageous
“ charges in speeches,” and would protract the debates,
talking for buncombe. This dreadful body of outsiders
would, he further says, be tempted to fill the galleries “to
witness a free spectacular entertainment,” in which, of
course, the Senators would be the actors. Senator Hoar
further exposes Senatorial frailties by declaring that it would
be dangerous to enable any Senator to provoke a debate on
the character of a nominee. I believe I have never said any
thing so uncomplimentary to the good sense, justice or
manners of Senators. I had not supposed them to be so
dangerous, or that they were hid in secrecy as friends hide
their crazy relatives. There is much more of the same sort in
these kaleidoscopic speeches. An outsider feels himself rapidly
sinking as he reads them, because he is assured that, low as
Senators may fall, the position of an outsider is always on a
plain far beneath.
Any person who has not been a Senator would think it
possible, by some fit rule, to muzzle the mouths of such
buncombe craters and defameis. Are these Senators quite
certain, since the Senate has never tried it, that the opening
of its debates would make mere beers and demagogues out
of Senators long refined by secrecy P There are people who
think that sometimes the gallery restrains the Senators to
decency, and that both Senators and reporters sometimes co-
64
operate for improving the grammar and eliminating the vul-
garity in speeches thought well enough for Senators, but not
thought well enough for outsiders. This view seems to ac-
cord with the fact that in every other country Parliamentary
publicity has increased with general refinement, intelligence
and liberty. Still the effect may be ditierent on the Ameri-
can Senate, which has such peculiar views as to the relative
values of light and darkness. As hearing on the question
whether Senators are affected much like other men by pub-
licity and light, I may mention that several of them have
told me that the manners of their associates are by no means
So good in secret sessions as in open sessions, mentioning that
there is in the former more smoking, more boorish lounging,
more violent language, and more—~but here, as I am con-
cerned for the good name of the Senate, I omit the more
striking comparisons.
It is well known how Senators, longing to smoke in open
sessions, skulk into dark passages to do so. We need not
assume smoking to be a serious immorality, to make it
illustrate the restraining influence of having the public
in the galleries ; for even Senator Merrill does all that
for us by admittingn-to use his own language —- “the
“ inevitable fumigation at every session as soon as the doors
“ are closed.”
And Senator Logan, after stating that “ secret sessions are
“ in many respects demoralizing to Senators,” declares that
“ if they were abolished our sessions would not only be more
“ orderly, but debate would be of a more dignified and ele-
“ vated character than possible under existing circumstances.”
I am compelled, therefore, to believe that vicious human
nature just as naturally prompts a Senator to secrecy for re-
jecting a good nomination and confirming a bad one, as it
prompts a bad boy to choose the night for stealing water-
melons or robbing a hen roost.
14.——How SECRET SESSIONS ARE DEFENDED BY SENATons.
WVe have now reached some very peculiar arguments for
secrecy—pathetic, ludicrous, humiliating—which shall I say?
First, Senator Merrill brings forward the modest, deserving
young men of high sensibilities (from Vermont, I suppose,
which, I think, alone produces this breed), “ who would de-
“ cline the gauntlet of sharp tongues in open session of the
“ Senate.” How shocking to think that Senators,--who, as
he has told us, are the supreme judges of proprietyr—will
thus torment such rare and charming boys ! How grievous
the mistake in our Government of having so many elective
officers, when the gauntlet of criticism to be run is not that
of Senators alone but of the whole body of people. Having
passed my boyhood in Vermont, and never seen a boy there
of the sublime modesty referred to, I wish the Senator would
tell us how many of that kind there are in the State. Dur-
ing my experience as a Civil Service Commissioner, I have,
speaking within bounds, heard hundreds of young men, after
rejoicing in the opportunity of a free public competition
where merit can win a place, express their indignation and
disgust by reason of the servility to Senators or other party
managers, and the exposure to secret and corrupt influences,
which are inevitable in seeking ofiice through Senatorial
patronage. But never have I seen a single young man or
woman, even from Vermont, with the fears referred to by its
Senator.
Next Senator Hoar seriously argues for secret sessions be-
cause he fears that in public sessions injustice would be done
to the insane, the servile, and to “ persons of mental idiosny-
cracies” who may be nominated ! I am not certain which
66
this argument is intended to more severely arraign, the
President for submitting such nominations, or Senators
for not having good manners and a sense of justice sufficient
for dealing with them as publicly and fairly as they would
be dealt with by an ordinary commission of lunacy or Court
of Justice. It would not seem to require Senators to very
frequently make the effort of restraining themselves within
the limits of propriety, if sessions for such cases were public ;
for Senator Hoar tells us, in the same speech I have been
quoting, that out of 2,087 nominations sent in by President
Cleveland, the Senate, even under the virtuous inspiration of
secrecy, has rejected only sixteen for all causes; though
truth requires me to add that the Senate approved some of
the worst nominations submitted. Perhaps the advocates of
secrecy would be willing to compromise on a rule especially
limiting secret sessions to the few cases of such unfortunates ?
I do not mean to say this would wholly prevent such persons
being nominated, for some of them are sent under the pres-
sure of Senators themselves, for the purpose of transferring
them from their own hands to the National pay-rolls.
According to the code of “confidential relations,” in
1870, General Garfield declared in Congress that, “NVe
“ press for appointment Senators, &c., throng the
“ bureaus; "i ii“ the patience of oficers is worn out.
“ They at last give way and appoint men, not because they
“ are fit, but because we ask it.” And in April, 1872, he
stated in his place that “ For many years Presidents of the
“ United States have been crying out in their agony to be
“ relieved of the unconstitutional, crushing, irresistible pres-
“ sure brought to bear upon them by the entire. body of
“their party in the legislative departments, which elected
“ them.”
This pressure, on the part of Senators. has been as great
since the present administration come in as ever before;
67
and because the President has not yielded, some Senators
have lost both their temper and their senses. Senator Platt
used this language in the Senate last winter :
“ I have found it the general, if not the universal, custom
“ of Senators to solicit nominations at the hands of the
“ President, and then come here and act on these nominations
“ in secret session. If there be a. more monstrous impropriety
“ than that, I do not know what it is 1” Yet Senators, we
are told by the Senator from Vermont, are the supreme
judges of propriety. And I may add that a Senator came
to me, as a Civil Service Commissioner, three times in one
day to get a pretty woman into office in violation of the
Civil Service Rules.
The Senator from Vermont and the Senator from Massa-
chusetts both use the argument—putting it in plain Eng-
lish—that secret sessions are needful to prevent injustice
to half reformed or intermittent drunkards !
This is certainly a surprising plea, which, I think, no one
but a Senator would have thought of, or used if it occurred to
him. Are Senators so very hard hearted, or always so
destitute of congenial experience in their body in afflictions of
this nature, that they cannot be trusted to deal with this
class of frail oflice seekers in open sessions ? .
Here again let me suggest a special rule. which should re-
cite that, “ Whereas, the public interest requires that chronic
“ old drunkards and shy young tipplers, who fear the light,
“ should not be deterred any more than they have heretofore
“ been deterred, from pressing for the public service, as they
“would be by the fear of the ungovernable abhorrence of
“ their habits sure to be expressed by Senators in open ses-
“ sions, that, therefore, all such cases shall be considered in
“ secret session.” It is true that some puritanical persons, in
presence of the situation in Mexico, or recalling the drunken
debauches of a Consul-General at Cairo not long ago, or
68
some other of the many cases in which the nation has been
dishonored by drunkards confirmed by the Senate, might
denounce such a rule. - They would insist that it would be-
come the Senate to apply a scrutiny to such cases as stern
and as absolutely public as the people themselves apply to
topers old or young who stand for election to office. Some
extremely puritanical people might, even, be so cruel as to
suggest that it would be both honorable to the Senate and
salutary as an example, if Senators had the courage to pub-
licly declare by their votes, that neither cranks nor imbeciles
nor drunkards would meet any favor, though pressed by party
leaders or tendered in exchange for favors to be expected.
But such suggestions coming in through open doors, would
be of no more importance than any other valueless contribution
from the public, which no Senator is bound to respect.
I hardly need hint to the intelligent read er that
such reasons, suggesting standards for the public
service indefensibly low, and extending probably to not
more than two or three per cent. of those nominated for otlice,
would never have been offered to justify universal secrecy by
any persons but Senators whose judgments, like those of their
associates, have been unconsciously biased by Senatorial eti-
quette, by long familiarity vsith a seductive practice, and by a
pride wounded by the stern tones in which the public voice new
challenges haughty old privileges, and the power usurped by
the Senate. After more than twenty years service in Con-
gress, in part as Senator, Mr. Blaine makes this declaration :
“ There is nothing of which a public officer can be so easily
“ persuaded as the enlarged jurisdiction which pertains to his
“' station. If the officer he of a bold mind, he arrogates power
“ for the purposes of ambition ; and even with timid men,
“ power is often assumed as a measure of protection and de-
“ fence.”
It may be mentioned here that there would be little occa-
69
sion for speeches in such cases and very few would be made.
All the reasoning on the assumption of such speeches is
merely specious. N 0 Senator would be compelled to make
any speech, but every Senator would be compelled to vote
publicly and have his vote recorded and go before the peo-
ple. That is precisely what he dreads. Yet no Senator has
referred to the public vote.
It has been with regret that I have felt compelled to dis-
sent so widely from the views of the two eminent Senators
from New England. As a son of New England I must say
I am not proud that she alone has defended Senatorial secrecy.
These Senators may think me very presumptuous in attach-
ing so much importance to publicity, and in expressing so
strongly my convictions that they have been too unmindful of
the spirit of a not less worthy generation, and have been un-
consciously. biased by the conventional philosophy and eti-
quette of the Senate. Let me, therefore, take shelter under
this language of one of the fairest, purest and most gifted
minds, in the sphere of our inquiry, which New England has
ever produced : “As to the votes of Senators and Representa-
“ tives in Congress,” says Judge Storey, “no man has yet
“ been found bold enough to vindicate a secret or ballot vote,
“ as either more safe or more wise, more promotive of inde-
“ pendence in the members, or more beneficial to their con-
“ stituents. So long as known and open responsibility is
“ valuable as a check or an incentive among the representa-
“ tives of a free people, so long a journal of their proceed-
“ ings and of their votes published in the face of the world,
“ will continue to enjoy public favor and he demanded by
“ public opinion.” (Com. on Const.) This was written in
1833. \Ve have men bold enough now to vindicate not merely
secret ballots, but secrecy as a general principle, lest cranks,
half reformed drunkards, over modest boys, and confidential
relations suffer prejudice at the hands of Senators.
'70
No. 15.—-FEAR AS AN EXcUsE FOR SEonET SESSIONS.
I now come to an excuse for secret sessions which is by
far the most comprehensive and significant of all.
It is the excuse of fear, which both the Senator from Ver-
mont and the Senator from Massachusetts have presented. It
is, as I understand their language, in substance, an averment
that, by reason of danger, Senators may, with propriety,
not only avoid public criticism and responsibility for
their otficial votes and speeches by refusing to publish them,
but that they may use the doors of the National Capital and
the public officers who serve there—whom the people pay
for serving the public—for keeping the people beyond hear-
ing distance.
As Senator Hoar states the justification with the most pre-
cision and breadth, I give his language, which is this :
“ It is important to the public that the Senator should be
“ free from the bias occasioned by the desire to make friends,
“ or the fear to make enemies when he votes upon nomina-
“ tions, as that he should be free from the corruptinginfluence
“ of personal gain. The Senator who votes to reject an un-
“ worthy aspirant is pretty sure to have to ac-
“count to somebody. Public discussion here must involve
“ public discussion elsewhere with every disappointed man.”
Saying it is a matter of public and not private interest, he
further says that : “ It is as much for the public interest to
“ protect the independence of the Senator in this way, as it is
“ to protect the independence of the Judges by a life tenure.”
The language quoted has obviously no force except as it
assumes that Senators have such fears of making enemies,
and of being called to account for their votes, that they can-
71
not be trusted to vote honestly in public sessions, wherefore,
it is justifiable and necessary for them to skulk into secrecy to
reinforce their courage !
The Senators named, I am sure, are as fearless as any
others, and the excuse they present therefore takes no hues
from their personality, but fairly exhibits the moral tone and
the fears of the majority of the Senate which has supported
secrecy. In what I have to say of this excuse, I have no
personal reference to either of the two Senators. It has
been made clear, I trust, that the Constitution contemplated
public debates and a public record of votes and proceedings.
The questions of the danger to Members of Congress by rea-
son of their public acts and of the need ofa tenure of some
strength to give them courage for these duties, were both
carefully considered in framing that instrument ; and it was
decided that a term of six years for Senators and an exemp-
tion from all liability to be called to account elsewhere for
words spoken in debate were quite sufficient. This plea for
secrecy from fear is not only an impeachment of these pro-
visions but an excuse for violating the Constitution. It says,
in substance, that inasmuch as the Constitution has not given
Senators a tenure for life, and a majority of the Senate has
not the moral courage to publicly reject a bad nomination,
or approve a good one, it may go and hide itself in secrecy,
and do in the dark what it is too cowardly to do in the light.
Every person seeking the office of Senator should know its
responsibilities and his own weakness. If he finds his
courage is unequal to the position, it would, perhaps, become
him to withdraw.
It seems to me better for Senators and for the
country that this rule of secrecy should stand in its naked
ugliness, with all the suspicious and indignation which it
awakens without any attempt at apology, rather than be
72
justified at the expense of the manhood and the dignity
of the Senate,
But let us look further and see whether the matter has
any better aspect, whether there is any cause for fear on the
part of Senators. For every nomination made by the Presi- '
dent, he has to resist the solicitations, the threats and the
cunning intrigues of from five to fifty other applicants, fre-
quently with noisy, partlsan delegations behind them. Upon
the public selection of one of them to send to the Senate, the
wrath and revenge of all the others are concentrated upon the
President alone. The seventy—six Senators altogether have
to deal with only this singly nominee ; or if, with any of the
other applicants, only by reason of the vicious hopes, which
are born of their secret sessions, bringing some of the
baffled oficice seekers to their doors. Nor is this the worst of
the pressure upon the President ; for among those with whom
he has to contend may be from one to ten Senators, in many
cases, who in no mild language assert their pretended right to
control patronage from their own States, if they do not make
it plain enough to him how they propose to retaliate, if their
claims are not conceded. I can command no language ade-
quate to express my indignation and disgust at instances of
that nature of which I have had very convincing proof.
It is safe to say that the President has to stand more pres-
sure and more threats every month in connection with ap-
pointments, saying nothing of removals, than all the Senators
in a whole year. Two Presidents have had the pistols of
angry otfice seekers levelled at their hearts and a third lost his
life by reason of his high responsibility. The Surveyor of the
Port of New York is now incapacitated by the shot of an of-
fice seeker in consequence of the discharge of his duty to ad-
vise a removal. But who ever heard of a Senator being
even threatened in connection with the power of confirma-
tion ?
73
Every collector and postmaster at the head of a large office,
and every head of a Bureau and Secretary at Washington
has to take a responsibility in connection with appointments
and removals much more embarassing and ten times more
dangerous than any action of the kind pertaining to the of-
fice of a Senator, even if we include his patronage mongering
activities—being much the greater part—which are mere
usurpations and intermeddlings. ‘W hat would be-said if one
of ‘those officers, if from fear he declined to make a recommen-
dation for office, unless he could do it in secrecy.
Senator Hoar makes the suggestion that if a Senator had a
life tenure, like a Judge, he might, like a Judge, have the
courage to discharge his duties publicly. The Police Justices
of New York City, with a limited term of years, have more
than 60,000 criminals, many of them desperadoes of the
worst kind, before them every year. They publicly fine and
send to prison more dangerous fellows every month than all
our Federal Senators together have to deal with in a decade.
The Judges who condemned the Anarchists in Chicago and
the Molly McGuires in Pennsylvania had terms but little
longer than those of Senators. Their risks were a hundred
fold greater. Many of the policemen and nearly all the Man
shals, Constables, Sheriffs and Justices of the Peace, allover
the land, who in the discharge of their official duties act pub-
licly and alone, incurring a peril many times greater than a
Senator is ever exposed to, have terms of office shorter than
those of Senators ; yet they would be disgraced if found devis-
ing plans for eluding personal identity and responsibility in
the discharge of their duties. It would disgrace any one of
these officers to be found afraid to arrest single handed the
most dangerous fellow ever nominated to the Senate—or even
the whole sixteen rejected by the Senate at the last session.
The Senators of Rome are said to have been unawed when
barbarian soldiers crowded and brandished their arms before
74
them, and history tells us, I believe, of those who had the
courage to leave their places to go and die for the honor and
manhood of a Roman Senator. Coke and Pym braved a
Stuart King for free speech and went to prison for it, as
Digges and Eliot for the same cause braved another Stuart
King, with the same certain fate before them, which cost
Eliot his life in prison.
The seventy-six American Senators having, according to
the figures of the Senator from Massachusetts, risen to
that lofty height of heroism required for rejecting 16, while
conferring 1,749 of President Cleveland’s nominations, are
now so frightened at the thought “ of having to account” to
these awful sixteen, that they persist in using the Senate end
of the Capital as a citadel of refuge and the public otficers as
sentinels and guards for keeping everybody at a distance.
Surely, every Senator ought to have an armed body guard
as well as a clerk?
But, seriously, if this generation has witnessed anything
so ridiculous and cowardly, in this great country, as this
danger-theory of the Senate in presence of the facts, I know
not what it is. The frightening of regiments to a place of
shelter with batteries of quaker guns is respectable in com-
parison, for these guns give at least the appearance of danger.
I am quite aware that this fearfulness of the majority of
the Senate is of a peculiar kind and is altogether different from
physical fear. Its results are alternately so lamentable and
so comical that it is worth while to glance at its nature. It is
mos-t exactly described as “Senatorial cowardice,” though it
is thoroughly despised by many Senators who are never at-
tacked by the disease.
It goes very hard with Senators who are candidates for the
Presidency, that is with a majority of all such candidates. It
is most severe, however, with Senators just before the ex-
piration of their terms, especially in States where the vote is
75
likely to be close. There is not a prescription known to
medical science, whose healing powers are so rapid for a cure,
as a re-election is for this disease. \Vhat those afflicted with
this disease especially dread is the loss of patronage and the
diminution of influence. Senators who would brave a lien or
stand unmoved in the iron hail of battle and carnage are almost
certain to have a nervous prostration whenever, near the end
of their terms, a party journal is angry or a disappointed office
seeker threatens.
It is a striking peculiarity of this disease that its prostra-
ting effects are greatly aggravated by yielding to any natural
fears, as a fear of criticism for example.
Such yielding tends to fix the disease upon the back-bone,
where it soon becomes chronic. Those who have studied the dis-
ease most carefully are strong in the belief that if Senators had
years ago boldly faced the impudent office seekers and openly
challenged public opinion by public action based on character
and sound principles, instead of disclosing the existence of
this Senatorial cowardice by hiding themselves in darkness
behind Sentinels, the disease would have nearly or quite dis—
appeared before this time, much in the way that witchcraft
disappeared when people had the courage and good sense to
confront and expose its pretentious.
Other beneficial effects beside the suppression of secret ses-
sions might have followed. The whole Senatorial character
mighthave been as manly, noble and unsuspected as the char-
acter of any other persons of distinction. Senators, in that
event, would now, like all other persons of intelligence, be able
to comprehend the inexpressible absurdity of pleading fear as
a justification for secrecy. They might look with a noble
contempt upon the puny threats of revenge made by a few
disappointed petty-office seekers. They might have a clear
and consoling conviction that a strict obedience to the Consti-
tution, a paramount regard for character, capacity and the
76
public interests when acting on nominations, and the utmost
publicity in all the proceedings of the Senate, are at once the
glory of that body, the strength of a party, and the honor and
safety of a Senator.
I must refer again to the fact that it is not any embarrass-
ment in connection with speeches or the making of thcm
public which Senators most dread. One of the salutary re-
sults of publicity would be that Senators Would no longer at-
tempt to exercise a usurped power over removals. If they
spoke at all on that subject, it would be as it should be, for
the public ear, by attacking or defending the policy of the
Administration in that regard.
Each Senator would feel compelled to look into the merits
of each nomination so far as to give a public vote that would
not disgrace him, which is more than is now done. Only in
comparatively rare cases would speeches be made on nomina-
tions, or could they be useful. Mere explanations would be
quite sufficient and would be all the talking done, save in
the cases where the nomination of an ofiicer of a high grade,
or for a peculiar service, would be a sort of declaration of
policy, involving public interests, upon which public speeches
for public information would be as proper and salutary as
upon any question which could come before the Senate.
The need of taking the trouble of knowing the facts before
venturing a public vote on a nomination is a reason why
some Senators desire secret sessions, but is far from the main
reason. The main reason is that the publication of votes
would expose the bargains and their consummation under
the courtesy.
It would disclose to the President, to office seekers and to
the whole country, not only how far Senators were true to their
professions, but what Senators are responsible for good nom-
inations being defeated and for bad ones being approved. A
Senator could no longer, as now, according to the confessions of
77
some of them, vote one way and cause it to be understood that
they voted the other way. We should know what Senators share
the responsibility and all the precious secrets of these courtesy
patronage mongering intrigues and bargains through which a
Senator from Virginia has brought nearly as much dishonor
upon one party and President as a Senator from Maryland
has in the same way brought upon another party and Presi-
dent. It the votes, to say nothing of the speeches, upon the
disgraceful confirmations of Thomas and Dement, and the
rejection of Groode for Solicitor-General and of Matthews, the
colored man nominated for Recorder at Washington, could be
made public, I have reason to think the cause of public
sessions would be much strengthened among the people. Well
authenticated rumor has it that Senator Hoar thought the
‘ rejection of Mr. Goode an outrage; but, of course, no un-
Senatorial mortal is ever to be wiser on these points.
Senator Edmunds is reported to have explained (in an in-
terview published in the “ New York World” and “ Boston
Post,” last August), the facts alleged by some persons, that
many unworthy nominations have been confirmed under
President Cleveland (which I infer that Senator holds to be
the case) by declaring that “ the Democrats vote solidly for
“ them as a general thing,” and that “certain Republicans
“ who believe in the spoils idea, vote with the Democrats.”
1 hope that distinguished Senator is able to see, as I am, that
such public statements and charges, united with that con-
cealment of the facts by the Senate which prevents the people
from knowing where the responsibility rests for such ofiicial
prostitution or the facts concerning it, constitute, alike
whether the Senator’s explanation of the interview be true or
'false, one of the strongest possible arguments for public
sessions of the Senate. It is about equally a national misfor-
tune to have nominations thus disposed of, and to have the pub-
lic statement of such charges forever remain unanswered. I am
78
nevertheless not without fears that the Senator’s long cham-~
pionship of the largest claims of the Senate, in derogation-
of what I must regard as the constitutional functions of the-
President, will lead him to support secret sessions in aid of
these claims, however incompatible that position may seem to
be with his extreme demand for executive publicity made in
the Senate last winter.
I must pass over various other arguments by which the
great benefits of open sessions might be illustrated. One
guarantee of their being early established is the disagreeable
and sometimes false positions in which the representatives of
the Press frequently place Senators in their natural anxiety to
give the people the information they have a right to. I
might quote the ample language in which Senators have
pathetically and indignantly expressed their disgust and
helplessness, because unable to put themselves right before
the public by declaring the simple and harmless truth. The
position of Senators is indeed as humiliating as it is annoy-
ing, and if a man was obliged to be a Senator, he would be a
legitimate object of sympathy.
The acceptance of the rule of secrecy, under the threat of
expulsion for its violation, is a compromise of the true man--
hood of a statesman, if not a suggestion of servility. It is
not complimentary to the self respect of Senators that no one
of them has yet had the courage to apply the proper remedy.
Senator Logan, who was a hero on the battlefield, tamely
says in his speech last winter : “ If I dared to do it, I would
“ tell every day what my vote was in every secret session.
Why not tell it, with something of the heroism of Coke and
Eliot? Why not show that moral courage, which is higher
2"
than all physical courage, by publicly declaring in the Senate‘
that he denies its right to impose on him a new obligation, the‘
obligation of zservile secrecy—as to his acts as a public ser-
vant—in violation of the Constitution and of the higher senti-s
79
ment of the people, as one of the conditions upon which he
holds his place as a Senator from Illinois? So noble
a defiance would cause a thrill of patriotic admiratlon
from one end of the Union to the other, which,
if it did not make him President, would make
him more famous in the civil than in the military his-
tory of his country. I do not mean to say the Senator would
in tact ‘incur the least danger of expulsion. The time is past
for that. No body so scared by reason of its secrets as to
threaten expulsion for tattling the most trifling of them
would ever have the courage to expel a Senator for proclaim-
ing the whole of them from the housetops. If in a panic
the Senate should expel the Senator, Illinois would send
him back, not by a majority of one, but of many, and the
thundering applause of her people would resound from ocean
to ocean as the death knell of secret sessions. If he loses
this grandest opportunity of his life, I, nevertheless, quite
agree with him that secret cannot long continue ; but I also
think he should never again declare he does not fear to have
all the votes and speeches of his lite made public. For
people generally think that a man of true moral courage will
always prove it, rather than merely declare it, when it is a.
plain duty and there is a fine opportunity to do so.
Several influences will powerfully aid the cause of pub-
licity. The public press, noW fully awakened to a sense of
its right and duty to know and to inform the people of the
proceedings of the Senate, will be far more vigorous and per-
sistent than formerly in the pursuit of the facts and in setting
forth its conclusions as to the votes of Senators and the
reasons for them.
The rapidly increasing number of the nominations to be
acted upon will, with the growing demands of legislation,
soon make it impossible for the Senators to act the meddling
and mischievous part they have in connection with appoint‘
8i)
, ments and removals. But beyond all this and quite as
potential will be the aggressive activity and fearless dis-
cussion springing from that high public sentiment which
has already done so much for administrative reform. It is
sure to grow more and more intelligent and powerful. The
cause of publicity and the cause of reform have as a rule only
common interests and common enemies.
If the Senate has not now the discretion to open its doors,
they will soon be opened from without, as the proclamation
of a victory as glorious for the people as it will be humiliating
to the Senate. I believe the Senate has now the courage and
the wisdom to do its duty.