The President's cabinet; studies in the origin, formation and structure of an American institution

Front matter

STUDIES IN THE ORIGIN, FORMATION AND STRUCTURE OF AN AMERICAN INSTITUTION

BY

HENRY BARRETT LEARNED

Contents

CHAPTER PAGE

INTRODUCTION ...... 1

I. HISTORIC SIGNIFICANCE OF THE TERM "CABI- NET" IN ENGLAND .... 9 Notes: 1. Bibliographical . . . - . 44 2. From Macaulay to Bagehot: 1848-

Introduction

f TV TO man can rule a people aloneTj However primi- ~~ ±\ five a government may be, the chief, called by whatever name, is bound to rely for his successful direction of it on aid outside himself. Frpm_ jthe distant beginnings of historic polity, whether these beginnings are studied in the Homeric poems, in the traditions that lay behind the Roman Commonwealth and the succeeding Empire or in the slender records of the German tribes — so far at least as these tribes had a common permanent head — kings had their groups or councils of intimate_adyjsers. When Moses complained that he was not able to "bear this people alone, because it was too heavy for him, ' ' the Lord had him gather seventy men of the elders of Israel and "bring them into the tabernacle of the congregation" to stand there and bear with him the burden of the people.

Essential factors of kingly influence and power these councils were in any system of government. The simplest form of council was one composed of assistants selected by the chief from among his immediate friends and following, such as his household servants and officers. These intimate assistants were at their leader's beck and call. Helping him to formulate plans and then to carry them out, they sustained his sway. Some such body characteristic of force and efficiency stood at the very beginnings of successful government. But it marked not only primitive organization, for it appeared under many and varying guises and forms all through the course of the historic ages. The ancient empires of the East knew it. Eoman administrators utilized it. Diocletian developed it. Charlemagne would have been helpless without it. In the progressive organization of the medieval Church it found a place. By means of it the Capetians laid those firm foundations on which monarchs of a later time established absolutism in France during the sixteenth and seventeenth centuries. In England the course and development of the royal council have been traced with exceptional clearness through various stages until in Lancastrian days it became known as the Privy Council. In time an inner body differentiated itself from the Privy Council. This inner council, attracting attention, was occasionally termed the Cabinet Council early in the seventeenth century. This was the precursor of the Cabinet Committee over which after many difficulties Parliament was destined at length to gain a controlling grasp — the committee around which the working government of England is organized, and by means of which that government is directed.

Into the manifold and subtle intricacies of these many historic councils it is not the plan to enter. Whatever is true regarding the origin of the American President 's Cabinet Council, that institution was in no sense a conscious imitation of any organization in existence at the epoch of its creation. Nevertheless it was certainly the expression of a need quite as old as

INTRODUCTION government — the need, in brief, of a corps of closely associated assistants qualified to aid an executive chief magistrate in whom leadership and directive force were intended to be vigorous and really effective.

Such officers as at first constituted the President's Cabinet — three Secretaries known as heads of departments and an Attorney-General — were similar to administrative officers found not only in the government of England but elsewhere in western Europe. Indeed they were foreshadowed by somewhat similar officials in the various American colonies, although not by exact prototypes.

The term cabinet or cabinet council is English. There was just a sufficient analogy between the group of officials which formed the English Cabinet late in the eighteenth century and the American President's intimate advisers at the same time1 to make the application of the English term to the American group appear to be reasonably significant. It should, however, be remembered that the English Cabinet Committee had developed in the course of a complicated evolution of party practices and peculiar circumstances into a parliamentary committee which was largely responsible even at that time to the House of Commons. Historic processes were pressing it forward to its goal, a place of such influence that it was to become the deciding factor in matters of government policy long before the close of the nineteenth century. Its spokesman and director was already customarily known as the Prime Minister. The President's Cabinet, in contrast to the English institution, was essentially and simply an advisory council quite independent of the Legislature. The President summoned it if he wished to do so. To the President alone its members were responsible. It had at the start no pivotal place in the structure of the American government, certainly no place that was so recognized outside of its immediate membership. Indeed _the principle of the Cabinet's distinct association with the executive chief alonejwas not determined until early practices under Washington_ajid his immediate successors had developed the principle into clearness, and given it authority. Moreover, the responsibility imposed upon the President by the Constitution has always tended to keep the Cabinet a subordinate element in our government. As an advisory body it has beei^j^4ete¥eftti«g_a4dition to the executive, at times helping mjichJu^HfB^JaTor ma*4 the reputation of a President, for +-'hg C^net ^'"st often be utilize"d to create if not to direcj^a President's policy, and to shape his attitude toward various problems of moment*' to the nati^njaLjatolfaie. TTnspjvn in if.s working^" hnt. presumably supporting him in his plans, the Cabinet^ is a combination of qualified experts that has stood behind every chief magistrate. The President may of course ignore the advice of his council, but — as Alexander Hamilton cogently observed in 18001 — no President can as a rule afford to do so. If one were to seek identity of type for the President's Cabinet, one could probably discover it more easily in the organization of the French monarchy before 1789 than in the

i WorTcs (ed. H. C. Lodge), VI, 419.

INTRODUCTION government of England, for the Cabinet is a veritable conseil du roi.

From a time soon after the formation of the Constitution down to the present day the associates of the President who compose the Cabinet have been freely termed "constitutional advisers. " Hamilton thus characterized them.2 Such usage, although loose, rests partly on the fact that the Constitution as well as the statute law helped to predetermine a council.

The Constitution referred to the "principal officer in each of the executive Departments, " and again to the "Heads of Departments ' r : the President might require their opinions "in writing " upon any subject relating to the duties of their respective offices. Although not expressly enjoining executive departments, the Constitution thus clearly contemplated principal officers. In accordance with this view the first Congress under the new government in 1789 proceeded among its earliest acts to draw up laws for the establishment of three Secretaryships, and to provide for the office of Attorney-General. By 1792, or perhaps a little earlier, the practice of President Washington brought these four officers together as an advisory council. In 1793 the body was popularly termed the Cabinet. In the course of time Washington's practice, persisted in by his successors, became an established custom.

Five other officials with duties clearly defined in the laws have since been added to the original four, making to-day a council of nine regular advisers about

2 For a discussion of this usage see chapter XIII, pp. 389 ff.

the President. Although the laws which from time to time have provided for the creation of these nine officials have taken no account of their combination into a body of counsellors, it should be observed, nevertheless, that the Secretary of the Navy (1798), the Secretary of the Interior (1849), the Secretary of Agriculture (1889), and the Secretary of Commerce and Labor (1903) were regularly conceived of as "cabinet" associates of the chief magistrate at the different times at which the bills creating these respective offices were discussed, passed, and sanctioned. In fact it is assumed to-day simply as a matter of course that the "Secretary" of a new department will become as such an intimate adviser and associate of the President, and that by mere custom he is entitled to cabinet place and rank. Yet there has never been either constitutional or legal provision requiring the President to consult or to summon the Cabinet. Once only has the term Cabinet been allowed thus far to slip into a federal statute, the word appearing for the first time in a law signed by President Roosevelt on February 26, 1907. The Cabinet, in brief, remains to-day what it was at the beginning, a customary body \ of advisers. '

No thoroughly complete history of such a customary institution as the President's Cabinet can, I think, be written. Here and there for lack of evidence its story must ever remain unknown — concealed 'by impenetrable darkness. Research and discovery, however, aided by inference and reflection, should yield much

INTRODUCTION in the way of reliable information on the following subjects :

I. Origin, Formation, and Structure. II. Practices and Personnel.

The present — and first — series of Studies has been written chiefly from such historic materials as throw light especially on the origin and structural offices of the institution. This series is consequently limited to setting forth the anatomy in contrast to the functions of the Cabinet. It seemed essential to discover and present those factors and influences which could account for the early summoning under President Washington of the council, and for the council's natural enlargement by the gradual addition of chief offices. The historic development of administrative work, which not only brought heavy tasks to the shoulders of the secretariat but also increased the responsibility of the President, has had to be observed and frequently commented on. While under this first phase of the subject I have refrained from venturing far into the domain of political practices, and have avoided the entanglements of personal factors, at very few points in the narrative could I forget how important practices and personnel must always have been to the vitality of the institution as an element in the workings of the national government.

In order to complete my plan I have in process of construction a second series of Studies which are concerned with the whole subject of Cabinet Practices and Personnel. This second series is designed to consider such subjects as cabinet appointments and resignations, the qualifications of cabinet officers, the influence of the Cabinet on executive policy and on legislation, the history of the cabinet meeting; and to set forth some of the curious episodes that have occasionally marked the history of the institution.

Chapter I Historic Significance Of The Term " Cabinet " In

ENGLAND

THE period of three centuries following the Norman Conquest was a formative one for English institutions. The circumstances of the Conquest brought immense authority to the Crown. This authority was certain to be controlled and limited as English liberties were secured.

The original nucleus of royal power was the curia regis. The early history of this body would involve an account of the gradual and complicated process by which judicial, executive, legislative and political functions were separated, one from another, and assigned to different organs. Out of the curia regis there developed the King's Council.1 "At no time," says a recent writer,2 "did English kings fail to have particular counsellors, known as consiliarii, consultores, familiares, domestici, or aulici, including men of the household, of the curia, and of the exchequer. In this they were like other kings (most notably the King of France), other princes, and even bishops and barons who possessed councils of uncertain composition. "

1 A. V. Dicey, The Privy Council (1887), pp. 2, 6-7.

2 James F. Baldwin, "The Beginnings of the King's Council" in Transactions of the Eoyal Historical Society (1905), XIX, n. s. 29 ff.

Just when the King's personal advisers began to have a recognized position as a distinct and organized body it is not easy to say. The view of Bishop Stubbs that this council can be traced only from the minority of Henry III can no longer be accepted because of the discovery of good evidence that the King's Council was already distinct and organized in the reign of John. It seems possible that it may yet be distinguished as early as Henry II 's reign. But there is no positive proof.3 We know that the Common Council of the realm claimed under Henry III the right to nominate as well as to confirm great officers,4 and thus to force the King to choose worthy associates as his personal advisers. But the problem presented numberless practical difficulties, especially as there was at the time no developed or clearly defined legislative power apart from the King — no Parliament with acknowledged prerogatives.

The historic process of the thirteenth and fourteenth centuries brought the King's Council to its maturity by the close of the Plantagenet period. It was then the one sworn council of the King. Not large in numbers, it possessed, nevertheless, real power and efficiency as well as great dignity. Devoted to the work of legislation as well as administration, touching at times on the domain of a jealous and watchful Parliament, it was the mainspring of government. The powerful status to which it had attained was the result

3 Stubbs, Constitutional History of England, 4th ed. II, 40 ff. For the more recent view, Baldwin in Trans, of the Royal Hist. Soc., op. cit., p. 32.

* Stubbs, Constitutional History, II, 41.

of the cumulative effect of custom rather than of statutory regulation.5

In the fifteenth century under the house of Lancaster the Council, now coming to be known as the Privy Council, reached its greatest power. Through force of many circumstances it was able to overshadow alike the Crown, Parliament, and the people. It had fallen from its great traditions and its prestige by the time of Henry VII 's accession; but it afforded the later Tudors, intent upon building up a great system of centralization, a royal instrument by means of which they were enabled to establish organized and efficient rule throughout the kingdom. Under their sway the Privy Council gathered together and held all the threads of administration and diplomacy.6 In its effectiveness as a Tudor organ, it has been characterized as "practically the predecessor of the modern Cabinet of Ministers/'7

Soon after the coming to the throne of the obstinate and injudicious line of the Stuarts, the problem of the relations of the King to his personal associates and close political advisers began to assume a foremost

5 Baldwin, "Early Records of the King's Council" in American Historical Review (October, 1905), XI, 1-15. "Antiquities of the King's Council" in English Historical Review (January, 1906), XXI, 1-20. "The King's Council from Edward I to Edward III" in Eng. Hist. Rev. (January, 1908), XXIII, 1-14. "The Privy Council of the Time of Richard II" in Amer. Hist. Rev. (October, 1906), XII, 1-14.

6 Dicey, Privy Council; J. F. Baldwin, as previously cited; Lord Eustace Percy, The Privy Council under the Tudors (Stanhope Prize Essay, 1907), pp. 1-2.

1 Acts of the Privy Council of England (1542-1547). J. R. Dasent, ed., I, Preface, viii.

place. By the beginning of the reign of Charles I it was clearly defined. What its solution would be was determined as a result of the political upheaval which followed. In the seventeenth century parliamentary government germinated. It developed markedly in the eighteenth century. The maturity of the system is one of the characteristic features of English government in the nineteenth century.

The personal monarchy of Charles I, with all that it implied in the way of restriction of popular rights and widespread oppression, was more than a progressive people could endure. At the very outset of the reign the claims of the Crown and Parliament were felt to be incompatible. The Commons demanded supremacy in the state and attempted to extract from the King a promise that he would change his ministers whenever the Commons were displeased with them. Parliament really was striving to make the government dependent upon itself. In other words the idea of parliamentary leadership was assuming a positive and aggressive maturity. At the time, as perhaps never before, English popular opinion won not only expression but very capable direction. It was inevitably an epoch of experiment, but of experiment which often was made along conservative and older lines.

The demand that the King submit to the guidance of such worthy counsellors as Parliament could trust was so frequently reiterated after 1640 that its reiteration is strong evidence that it had assumed the aspect of a very vital political principle. Among numerous instances it was clearly formulated in the petition preceding the Grand Remonstrance (1641), in a document according to which the King's subjects beg —

That your Majesty will .... be pleased to remove from your council all such as persist to favour and promote any of those pressures and corruptions wherewith your people have been grieved, and that for the future your Majesty will vouchsafe to employ such persons in your great and public affairs, and to take such to be near you in places of trust, as your Parliament may have cause to confide in ... .8

Such a demand, when put into practical shape, meant a government residing in a body of men acting under the control of Parliament.

It is not necessary to analyze the steps taken or projected by the Long Parliament from 1640 onwards for the purpose of wresting from Charles certain special powers and thereby gaining control over administrative, financial, judicial, and military affairs. It is enough to say that by 1644 Parliament was fully determined in its purpose to control such matters. In the first half of that year, in view of the indefinite continuance of the war, two ordinances were passed, dated respectively February 16 and May 22, which provided for the so-called Committee of Both Kingdoms. This Committee, composed of seven Peers,

8 S. K. Gardiner, Constitutional Documents of the Puritan Revolution (1889), p. 129. Gardiner prints his volume for everyday use, and consequently he omits old-fashioned italics and numerous capital letters and some superfluous commas. The same passage may be found in J. Rushworth, Historical Collections, IV, 438. Of. the similar demand of the Grand Eemonstrance, Gardiner's Documents, pp. 131, 153, 154. See also the demand in the Ten Propositions of June 24, 1641. Ibid., p. 92. Cf. pp. 125, 171 (Nineteen Propositions), 246, 340 (Humble Petition and Advice of 1657).

fourteen Commoners, and four Commissioners of the Scottish Parliament, was to "order and direct whatsoever doth or may concern the managing of the war .... and whatsoever may concern the peace of his Majesty's dominions." By Mr. Gardiner it is regarded as "the first attempt to give practical shape to the idea of a government residing in a body of men acting under the control of Parliament. "9 Here, according to the same writer, the student of English institutions comes upon "the first germ of the modern Cabinet system." The Committee exercised "general executive powers under responsibility to Parliament. .... Though it was not, like a modern Cabinet, composed of persons of only one shade of political opinion, the opinion that the war ought to be carried on with vigour was decidedly preponderant in it." "That the Committee thus instituted," he adds, "could never be more than an interesting experiment was the natural result of the fact that the Parliament from which it sprung had no claim to be regarded as a national body."10

The Committee of Both Kingdoms disappeared in 1648, within about four years of its creation. What the reader should observe is this: that the demand

9S. E. Gardiner, Constitutional Documents, Introd., pp. xliii-xliv, 190, 192. The first Ordinance, it will be observed, was limited to three months. Cf. C. H. Firth, The House of Lords during the Civil War (1910), pp. 138-141.

10 Gardiner, History of the Great Civil War, I, 357 ff. As yet Gardiner is the only historian who has given these Ordinances any careful attention, although Mr. Firth touches upon them in his most recent book, The House of Lords during the Civil War. Cf. D. Masson, The Life of John Milton, III (ed. 1896), 41, 331, 579, 585.

which called it into existence represented a sound and fundamental principle, which was repeatedly voiced or formulated during the epoch, and was never afterwards surrendered, at least by the more liberal leaders. In brief, the later and matured English Cabinet Committee was the consummate and practical achievement of this persistent demand.

II

As the seventeenth century in England witnessed the crude beginnings of parliamentary government, so that century first began to attach political significance to the term cabinet. The term had originally appeared in the language of the sixteenth century. Francis Bacon was among the earliest writers to reflect in his Essays^ its political sense. From Bacon's time it may be traced with many varieties of shadings through Speed, Walter Yonge, Massinger, Clarendon, Selden, Pepys, Sir John Eeresby and Evelyn to Bolingbroke, Swift, Roger North, and other memoir writers of Queen Anne's and the Georgian epoch.12

An extract from the State Papers dated at London, June 8, 1622, reads as follows: "Chamberlain to Carleton. A Cabinet Council is talked of, to which the most secret and important business may be committed "13 This is the earliest usage of the term

"Ed. S. H. Keynolds (Oxford: 1891), p. 148, foot note a.

13 Calendars of State Papers— Domestic (1619-1623), p. 404. Cf. also Mid. (1623-1625), pp. 156, 203. On April 23, 1625: ''There is talk of that I can discover in these valuable and miscellaneous sources. By the last decade of the century, however, the term is frequently found in them.

The varied and often vague applications of the term it is needless to dwell upon. For much of the seventeenth century it signified a body of royal counsellors or ministers which met in private, a committee of state apt to be concerned with such secret and informal measures as Parliament could not easily fathom or control. It was seldom used without opprobrium even well into the eighteenth century. There is no better illustration of this than in two discussions of the term as it cropped up in Parliament in the years 1692 and 1711 respectively.

" i Cabinet-Council' [retorted an angry member in the House of Commons in November, 1692] is not a word to be found in our Law-books. We knew it not before; we took it for a nick-name. Nothing can fall out more unhappily than to have a distinction made of the l Cabinet ' and * Privy Council.' .... If some of the Privy Council must be trusted, and some not, to whom must any gentleman apply? Must he ask, 'Who is a Cabinet-Counsellor?' This creates mis-

a selected or Cabinet Council, whereto none are admitted but the Duke of Buckingham, the Lords Treasurer and Chamberlain, Lord Brooke, and Lord Conway. ' ' Walter Yonge probably refers to the same matter when he records in June, 1625, this entry in his Diary (p. 83, Camden Society, 1848) : "The King made choice of six of the nobility for his Council of the Cabinet." On July 14, 1630, Sir Thomas Eoe referred to Sir Henry Vane — as Mr. Gardiner long since (1886) pointed out — as one "who is of the Cabinet." Cal of St. Papers — Domestic (1629-1631), p. 306. According to Clarendon (History, I, 263, ed. of 1826), within a few years the terms "Committee of State," "Junto," and "Cabinet Council" were used synonymously when a group of royal advisers was referred to.

trust in the people "u "The method of the

cabinet [declared another member on the same occasion] is not the method nor the practice of England .... things are concerted in the Cabinet, and then

brought to the council If this method be, you

will never know who gives advice "15

In January, 1711, discussion arose in the House of Lords over the question of using the term cabinet council — as at first it was proposed to do — or ministers in a resolution of censure. It was objected that both terms were ambiguous. Both terms, moreover, were unknown to the law. Of the two, ministers or ministry was called "too copious " in its meaning, for the Cabinet Council, it was observed, did not take in all the ministers. The discussion became strenuous and was delaying really important and pressing business, when the Earl of Peterborough gave it an amusing turn by reminding his colleagues of a distinction with which he was familiar. He had heard, he said, that "the Privy Counsellors were such as were thought to know every thing and knew nothing ; and .... those of the Cabinet Council thought nobody knew any thing but themselves "16

However reproachful the reflections cast on the term by members of Parliament might be, " cabinet " or "cabinet council" was well recognized and in frequent use by the last decade of the seventeenth century.

Thus on June 16, 1690, the Marquis of Carmarthen, writing to King William III, says : "The Lords of the

Cabinet think "17 A week later: "Her Majesty

is very diligent at cabinet councils The Queen

hereupon called the cabinet council and gave several

orders "u On September 5, 1694, there was

recorded the draft of a summons "to the Cabinet Council to meet this day at 5 p.m "19

III

Behind the term, which it has been comparatively easy to trace, was the thing — the Committee or Council of the Cabinet. It would certainly be vain to seek any precise beginnings for such a committee; the search for these would lead inevitably into a maze of practices which are found far back in history. But two matters are tolerably clear : in the first place some such committee began to attract enough attention to be noted in the records of the first quarter of the seventeenth century; and writers of authority in that century regarded the Cabinet Committee as an offshoot of the Privy Council, itself the traditional organ of executive power. Eoger North, for example, basing his statements on records left by his brother, Francis North, the Lord Keeper Guilford, intimately associated with the government of Charles II, could say of the Cabinet Council this : " as offices of the law, out of clerkships, spawn other offices, so this council was

derived from the Privy Council, which, originally, was

the same thing Assemblies, at first, reasonably

constituted of a due number and temper for dispatch of affairs committed to them, by improvident increase, came to be formal and troublesome, the certain consequence of multitude, and thereby a new institution becomes necessary: whereupon it is found easier and safer to substitute than to dissolve. Thus the cabinet council, which, at first, was but in the nature of a private conversation, came to be a formal council, and had the direction of most transactions of the Government, foreign and domestic. ' >2° Although this well-known passage may have been descriptive of what took place under Charles II near the opening of the reign, it can reasonably be interpreted as having had, in its author's mind, a more general and wider application. In the wider sense it affords a statement close to historic truth.

Institutions have a way of appearing before they are named. And this postulate would tend to turn the student on the trail of the Cabinet Committee into the Tudor epoch. Knowledge of the workings of the Privy Council within the epoch is still very incomplete, but it is larger than that of the Stuart epoch, for as yet the acts of the Council after 1604 have not been printed.21 Under the Tudors the mass of admin-

20 E. North, Lives of the Norths (London: 1826, 3 vols. ), II, 50-51. Cf. John Trenchard, A Short History of Standing Armies in England (1698), for a similar view.

21 Lord Eustace Percy, op. cit., pp. 35-39, 68 ff. G. W. Prothero, Introd. to Statutes and Constitutional Documents (1559-1625), pp. xcviii ff.

istrative, judicial and executive business in the hands of the Privy Council was enormous. The size of the Council increased, especially under Edward VI and Mary. With larger tasks than ever to perform, it was inevitable that it should delegate some of its jurisdiction if not its authority. Under Edward VI and his successor the work of the Privy Council was divided among sundry committees, the most notable of which was probably the Committee of State of 1553. From this point Sir William E. Anson dates the permanency of the practice of discussing important business in an interior council. This committee may be regarded, according to the same writer, as the precursor of the Committee of State of 1640 which Clarendon described as being termed by way of reproach a "Cabinet Council." "It seems," says Anson, "almost inevitable that unless the entire Privy Council was often reconstituted the treatment of important matters must pass into the hands of a few. The Council would always contain men qualified for one cause or another to be Councillors of the Crown but not possessed of the practical sagacity, promptitude of judgment, and force of character which come into play when some crisis calls for immediate action and nothing that can be done is free from risk. The men who possess these qualities would be the men to form the l Committee of State/ the ' junto,' the ' Cabinet.' >>22

22 Anson, The Law and Custom of the Constitution, Pt. II, The Crown (2d ed., 1896), pp. 92-93. Anson draws his conclusion from Burnet's History of the He formation, V, 119, from the minutes of a cabinet council of August 16, 1640 (The HardwicJce Papers, II, 147), and from Clarendon's comments in his History, Bk. II, ss. 61, 99. Lord Eustace