This is part one of a two-part series. Read part two here.
I have felt a little uncomfortable when I have read in the catalogue of your university and in the newspapers that I was to give you lectures. I am sure I shall do nothing that deserves that name. You have lectures enough to satisfy your craving. Besides, I have never intentionally delivered a lecture in my life. I am with you on the other side of the question, for I doubt if any man was ever more belabored than I have been for the last seventeen years with lectures. This mild term does not suffice, for sometimes it has seemed to me that a large section of the American people regard high public office as a sort of pillory of honor where it is worth their while to put a man for the sake of enjoying the abuse of him afterwards. A larger part of our people, more decently disposed, are benevolently willing to put at the service of a public officer all their knowledge of statecraft and to advise him in any real or imaginary emergency. It is only after their advice is disregarded that they set about the task of demonstrating that the popular choice has been a sad mistake, and that an abundance of excellent material for public place has been overlooked. It is safe to say that after every presidential election the fact is developed that in our newspaper establishments alone there are thousands who have been thus neglected.
I shall hope to fulfill my engagements with you by a brief comment upon the office of President of the United States, and by recalling some incidents of a public nature made familiar to me by my incumbency of that office.
When our original thirteen States, actuated by “a decent respect for the opinions of mankind,” presented to the world the causes which impelled them to separate from the mother country, and to cast off all allegiance to the Crown of England, they gave prominence to the declaration that “the history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States.” This was followed by an indictment containing not less than eighteen counts or accusations, all leveled at the King and the King alone. These were closed or clinched by this asseveration: “A Prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of a free people.” In this arraignment the English Parliament was barely mentioned, and then only as “others,” with whom the King had conspired by “giving his assent to their act of pretended legislation,” thus lending operative force to some of the outrages which had been put upon them.
It is thus apparent that in the indictment presented by the thirteen colonies, they charged the King, who in this case may properly be considered as the Chief Executive of Great Britain, with the crimes and offenses which were their justification for the solemn and impressive decree: —
“We, therefore, the Representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do, in the name and by the authority of the good People of these Colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; and that as free and independent States they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”
To this irrevocable predicament had the thirteen States or colonies been brought by the outrageous and oppressive exercise of executive power.
In these circumstances it should not surprise us to find that when, on the footing of the Declaration of Independence, the first scheme of government was adopted for the revolted States, it contained no provision for an executive officer to whom should be intrusted administrative power and duty. Those who had suffered and rebelled on account of the tyranny of an English King were evidently chary of subjecting themselves to the chance of a repetition of their woes through an abuse of the power that might necessarily devolve upon an American President.
Thus, under the Articles of Confederation, “The United States of America,” without an executive head as we understand the term, came to the light with the expressed guaranty of its charter existence, that “the articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual.”
Let us not harbor too low an opinion of the Confederation. Under its guidance and direction the war of the Revolution was fought to a successful result, and the people of the States which were parties to it became in fact free and independent; but the Articles of Confederation lacked the power to enforce the decree they contained of inviolable observance by every State; and the union, which under their sanction it was declared should be perpetual, early developed symptoms of inevitable decay.
It thus happened that within ten years after the date of the Articles of Confederation their deficiencies had become so manifest that representatives of the people were again assembled in convention to consider the situation and to devise a plan of government that would form a more perfect union in place of the crumbling structure which it had so lately declared should be perpetual.
The pressing necessity for such action cannot be more forcibly portrayed than was done by Mr. Madison when in a letter written a short time before the convention he declared: “Our situation is becoming every day more and more critical. No money comes into the Federal treasury; no respect is paid to the Federal authority; and people of reflection unanimously agree that the existing Confederacy is tottering to its foundation. Many individuals of weight, particularly in the Eastern district, are suspected of leaning towards monarchy. Other individuals predict a partition of the States into two or more confederacies.”
It was at this time universally conceded that if success was to follow the experiment of popular government among the new States, the creation of an Executive branch invested with power and responsibility would be an absolutely essential factor. Madison, in referring to the prospective work of the convention, said: “A national executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed.” We know that every plan of government proposed or presented to the convention embodied in some form as a prominent feature the establishment of an effective Executive; and I think it can be safely said that no subject was submitted which proved more perplexing and troublesome. We ought not to consider this as unnatural, when we remember that the members of the convention, while obliged to confess that the fears and prejudices that refused executive power to the Confederacy had led to the most unfortunate results, were still confronted with a remnant of those fears and prejudices, which discovered the spectre of monarchy behind every suggestion of executive force. I think another cause of embarrassment may be found in a lack of definite and clear conviction in the minds of members as to the manner of dealing with the subject. Still another difficulty, which seems to have been all-pervading and chronic in the convention, was the jealousy and suspicion existing between the large and small States. I am afraid, also, that an unwillingness to trust too much to the people had its influence in preventing an easy solution of the executive problem. The first proposal made in the convention that the President should be elected by the people was accompanied by an apologetic statement by the member making the suggestion that he was almost unwilling to declare the mode of selection he preferred, “being apprehensive that it might appear chimerical.” Another favored the idea of popular election, but thought it “impracticable;” another was not clear that the people ought to act directly even in the choice of electors, being, as alleged, “too little informed of personal characters in large districts, and liable to deception;” and again, it was declared that “it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people as it would to refer a trial of colors to a blind man.”
The plan first adopted by the convention provided for the selection of the President by the Congress, or, as it was then called, by the national legislature. Various other plans were proposed, but only to be summarily rejected in favor of that which the convention had apparently irrevocably determined upon. There were, however, among the members, some who lost no opportunity to advocate, with energy and sound reasons, the substitution of a mode of electing the President more in keeping with the character of the office and the genius of a popular government. This fortunate persistence resulted in the reopening of the subject and its reference, very late in the sessions of the convention, to a committee who reported in favor of a procedure for the choice of the Executive substantially identical with that now in force; and this was adopted by the convention almost unanimously.
This imperfect review of the incidents that led up to the establishment of the office of President, and its rescue from dangers which surrounded its beginning, if not otherwise useful, ought certainly to suggest congratulatory and grateful reflections. The proposition that the selection of a President should rest entirely with the Congress, which came so near adoption, must, I think, appear to us as something absolutely startling; and we may well be surprised that it was ever favorably considered by the convention.
In the scheme of our national Government the presidency is preëminently the people’s office. Of course, all offices created by the Constitution, and all governmental agencies existing under its sanction, must be recognized, in a sense, as the offices and agencies of the people—considered either as an aggregation constituting the national body politic, or some of its divisions. When, however, I now speak of the presidency as being preeminently the people’s office, I mean that it is especially the office of the people as individuals, and in no general, local, or other combination, but each standing on the firm footing of manhood and American citizenship. The laws passed by Congress are inert and vain without executive impulse; and the Federal courts pass upon the right of the citizen only when their aid is occasionally invoked; but under the constitutional mandate that the President “shall take care that the laws be faithfully executed,” every citizen, in the day or in the night, at home or abroad, is constantly within the protection and restraint of the executive power—none so lowly as to be beneath its scrupulous care, and none so great and powerful as to be beyond its restraining force.
In view of this constant touch and the relationship thus existing between the citizen and the Executive, it would seem that these considerations alone supplied sufficient reason why his selection should rest upon the direct and independent expression of the people’s choice. This reason is reinforced by the fact that inasmuch as Senators are elected by the State legislatures, Representatives in Congress by the votes of districts or States, and Judges are appointed by the President, it is only in the selection of the President that the body of the American people can by any possibility act together and directly in the equipment of their national Government. Without at least this much of participation in that equipment, we could hardly expect that a ruinous discontent and revolt could be long suppressed among a people who had been promised a popular and representative government.
I do not mean to be understood as conceding that the selection of a President through electors chosen by the people of the several States, according to our present plan, perfectly meets the case as I have stated it. On the contrary, it has always seemed to me that this plan is weakened by an unfortunate infirmity. Though the people in each State are permitted to vote directly for electors, who shall give voice to the popular preference of the State in the choice of President, the voters throughout the nation may be so disturbed and the majorities given for electors in the different States may be such that a minority of all the voters in the land can determine, and in some cases actually have determined, who the President should be. I believe a way should be devised to prevent such a result.
It seems almost ungracious, however, to find fault with our present method of electing a President when we recall the alternative from which we escaped, through the final action of the convention which framed the Constitution.
The plan at first adopted, vesting in Congress the presidential election, was determined on in the face of the universal opinion of those who were prominent in the convention, as well as of all thoughtful and patriotic Americans who watched for a happy result from its deliberations, that the corner-stone of the new Government should be a distinct division of powers and functions among the Legislative, Executive, and Judicial branches, with the independence of each amply secured. Whatever may have been the real reasons for giving the choice of the President to Congress, I am sure those which were announced in the convention do not satisfy us in this day and generation that such an arrangement would have secured either the separateness or independence of the Executive department. I am glad to believe this to be so palpable as to make it unnecessary for me to suggest other objections, which might subject me to the suspicion of questioning the infallibility of Congress in this relation. It is much more agreeable to acknowledge gratefully that a danger was avoided, and a method adopted for the selection of the executive head of the Government which was undoubtedly the best within the reach of the convention.
The Constitution formed by this convention has been justly extolled by informed and liberty-loving men throughout the world. The statesman who, above all his contemporaries of the century, was best able to pass judgment on its merits has formulated an unchallenged verdict, in which it is declared that “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.”
We dwell with becoming pride upon the intellectual greatness of the men who composed the convention. They were indeed great; but the happy result of their labor would not have been saved to us and to humanity except for their patriotism, their patience, and last, but by no means least, their forbearing tact. To these are we especially indebted for the creation of an executive department, limited against any possible danger of usurpation or tyranny, but, at the same time, strong and independent within its limitations.
The Constitution declared: “The executive power shall be vested in a President of the United States of America,” and this is followed by a recital of specific and distinctly declared duties with which he was charged, and the powers with which he was invested. The members of the convention were not willing, however, that the executive power which they had vested in the President should be cramped and embarrassed by any implication that a specific statement of certain granted powers and duties excluded all other presidential functions; nor were they apparently willing that the denial of such a claim as this should find its strongest support in the meaning which should be given to the words “executive power,” or in the authority involved in the absolute investiture of that power. Therefore we find that the Constitution supplements a recital of the specific powers and duties of the President with this impressive and conclusive additional requirement: “He shall take care that the laws be faithfully executed.” This I conceive to be equivalent to a grant of all the power necessary to the performance of his duty in the execution of the laws.
The form of Constitution first proposed to the convention provided that the President elect, before entering upon the duties of his office, should take an oath, simply declaring: “I will faithfully execute the office of President of the United States.” To this brief and very general obligation there were added by the convention the following words: “and will to the best of my judgment and power preserve, protect, and defend the Constitution of the United States.” Finally, the Committee on Style, appointed by the convention, apparently to arrange the order of the provisions agreed upon, and to suggest the language in which they would be best expressed, reported in favor of the oath: “I will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect, and defend the Constitution of the United States;” and this form was adopted by the convention without discussion.
It is therefore apparent that as the Constitution, in addition to its specification of especial dirties and powers devolving upon the President, provides that he shall take care that the laws be faithfully executed; and as this was evidently intended as general devolution of power and imposition of obligation in respect to any condition that might arise relating to the execution of the laws, so it is likewise apparent that the convention was not content to rest the sworn obligation of the President solely upon his covenant to “faithfully execute the office of President of the United States,” but added thereto the mandate that he should preserve, protect, and defend the Constitution, to the best of his judgment and power, or, as it was afterwards expressed, to the best of his ability. Thus, in one case he was to exercise every power attached to his office, to the end that the laws might be faithfully executed, and in the other his oath required of him not merely obedience to the Constitution, and not merely the performance of executive duty, but the exertion of all his official strength and authority for the preservation, protection, and defense of the Constitution.
Among the specifically mentioned constitutional duties of the President, we find the following: “And he shall nominate, and by and with the advice of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.”
The above quotations from the Constitution and the comments I have made thereon are presented as introductory to a brief mention of a debate in Congress which occurred in the year 1789 and during the first session of that body assembled under the Constitution.
The question discussed involved distinctly and solely the power of the President under the Constitution to remove an officer appointed by him by and with the advice of the Senate. The discussion arose upon a bill then before the Congress, providing for the organization of the State Department. This bill contained a provision that the head of the department to be created should be removable from office by the President. This was opposed on the ground that as the Senate coöperated in the appointment, it should also be consulted in the matter of removal; it was urged by some that the power of removal in such cases was already vested in the President by the Constitution, and that the provision was therefore unnecessary; and it was also contended that the question whether the Constitution permitted such removal or not should be left untouched by legislative action, and be determined by the courts. Those insisting upon retaining in the bill the clause permitting removal by the President alone claimed that such legislation would remove all doubt on the subject, though they asserted that the absolute investiture of all executive power in the President, reinforced by the constitutional command that he should take care that the laws be faithfully executed, justified their position that the power already existed, especially in the absence of any adverse expression in the Constitution; that the removal of subordinate officers was an act so executive in its character and so intimately related to the faithful execution of the laws, that it was clearly among the Presidents constitutional prerogatives; and if it was not sufficiently declared in the Constitution, the omission should be supplied by the legislation proposed. In support of these positions it was said that the participation of the Senate in the removal of executive officers would be a dangerous step toward breaking down the partitions between the different departments of the Government which had been carefully erected, and were regarded by every statesman of that time as absolutely essential to our national existence, and stress was laid upon the unhappy condition that would arise in case a removal desired by the President should be refused by the Senate, and he thus should be left, still charged with the responsibility of the faithful execution of the laws, while deprived of the loyalty and constancy of his subordinates and assistants, who, resentful of his efforts for their removal, would lack devotion to his work, and who, having learned to rely upon another branch of the Government for their retention, would be invited to defiant insubordination.
At the time of this discussion the proceedings of the Senate took place behind closed doors, and its debates were not published, but its determinations upon such questions as came before it were made public.
The proceedings of the other branch of the Congress, however, were open, and we are permitted through their publication to follow the very interesting discussion of the question referred to in the House of Representatives.
The membership of that body included a number of those who had been members of the Constitutional Convention, and who, fresh from its deliberations, were necessarily somewhat familiar with its purposes and intent. Mr. Madison was there, who had as much to do as any other man with the inauguration of the convention and its successful conclusion. He was not especially prominent in its deliberations, but increased his familiarity with its pervading spirit and disposition by keeping a careful record of its proceedings. In speaking of his reasons for keeping this record he says: “The curiosity I had felt during my researches into the history of the most distinguished confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it, more especially in what related to the process, the principles, the reasons and the anticipations which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the convention while executing its trust, with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity, by an authentic exhibition of the objects, the opinions and the reasonings from which a new system of government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people great in its infancy, and possibly the cause of liberty throughout the world.” This important debate also gains great significance from the fact that it occurred within two years after the completion of the Constitution, and before political rancor or the temptations of partisan zeal had intervened to vex our congressional counsels.
It must be conceded, I think, that all the accompanying circumstances gave tremendous weight and authority to this first legislative construction of the Constitution in the first session of the first House of Representatives, and that these circumstances fully warranted Mr. Madison’s declaration: “I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the Constitution, and on a permanent exposition of the Constitution will depend the genius and character of the whole Government.”
The discussion was extended, thorough, and earnest, and from the first a decided majority were of the opinion that the Executive should have power of removal, whether derived from the Constitution or conferred by law. It will be recalled that the debate arose upon the clause in a pending bill, providing that the officer therein named should “be removable by the President,” and that some of the members of the House, holding that such power of removal was plainly to be implied from the language of the Constitution, insisted that it would be useless and improper to assume to confer the power by legislative enactment. Though a motion to strike from the bill the clause objected to had been negatived by a large majority, it was afterwards proposed, in deference to the opinions of those who suggested that the House should go no further than to give a legislative construction to the Constitution in favor of executive removal, that in lieu of the words already adopted, indicating a grant of the power, there should be inserted in another part of the bill a provision regarding the filling of vacancies, containing the following clause: “Whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy.” This was universally acknowledged to be a distinct and unequivocal declaration that, under the Constitution, the right of removal was conferred upon the President; and those supporting that proposition voted in favor of the change, which was adopted by a decisive majority. The bill thus completed was sent to the Senate, where, if there was opposition to it on the ground that it contained a provision in derogation of senatorial right, it did not avail; for the bill was passed by that body, though grudgingly, and, as has been disclosed, only by the vote of the Vice President, upon an equal division of the Senate. It may not be amiss to mention, as adding significance to the concurrence of the House and Senate in the meaning and effect of the clause pertaining to removal as embodied in this bill, that during that same session two other bills creating the Treasury Department and the War Department, containing precisely the same provision, were passed by both Houses.
I trust I have not been wearisome in stating the circumstances that led up to a legislative construction of the Constitution, as authoritative as any surroundings could possibly make it, to the effect that, as a constitutional right, the President had the power of removal without the participation or interference of the Senate.
This was in 1789. In 1886, ninety-seven years afterwards, this question was again raised in a sharp contention between the Senate and the President. In the meantime, as was quite natural, perhaps, partisanship had grown more pronounced and bitter, and it was at that particular time by no means softened by the fact that the party that had become habituated to power by twenty-four years of substantial control of the Government was obliged, on the 4th of March, 1885, to make way in the executive office for a President elected by the opposite party. He came into office fully pledged to the letter of Civil Service reform; and passing beyond the letter of the law on that subject, he had said: “There is a class of government positions which are not within the letter of the Civil Service statute, but which are so disconnected with the policy of an administration, that the removal therefrom of present incumbents, in my opinion, should not be made during the terms for which they were appointed, solely on partisan grounds, and for the purpose of putting in their places those who are in political accord with the appointing power.”
The meaning of this statement is, that while, among the officers not affected by the Civil Service law, there are those whose duties are so related to the enforcement of the political policy of an administration that they should be in full accord with it, there are others of such officers whose duties are not so related, and who simply perform executive work; and these should not be removed merely for the purpose of rewarding the party friends of the President, by putting them in the positions thus made vacant. An adherence to this rule I believe established a precedent, which has since operated to check wholesale removals solely for political reasons.
The declaration which I have quoted was, however, immediately followed by an important qualification, in these terms: “But many men holding such positions have forfeited all just claim to retention, because they have used their places for party purposes, in disregard of their duty to the people; and because, instead of being decent public servants, they have proved themselves offensive partisans and unscrupulous manipulators of local party management.”
These pledges were not made without a full appreciation of the difficulties and perplexities that would follow in their train. It was anticipated that party associates would expect, notwithstanding executive pledges made in advance, that there would be a speedy and liberal distribution among them of the offices from which they had been inexorably excluded for nearly a quarter of a century. It was plainly seen that many party friends would be disappointed, that personal friends would be alienated, and that the charge of ingratitude, the most distressing and painful of all accusations, would find abundant voice. Nor were the difficulties overlooked that would sometimes accompany a consistent and just attempt to determine the cases in which incumbents in office had forfeited their claim to retention. That such cases were numerous no one, with the slightest claim to sincerity, could for a moment deny.
With all these things in full view, and with an alternative of escape in sight through an evasion of pledges, it was stubbornly determined that the practical enforcement of the principles involved was worth all the sacrifices which were anticipated. And while it was not expected that the Senate, which was the only stronghold left to the party politically opposed to the President, was to contribute an ugly dispute to a situation already sufficiently troublesome, I was in a position to say that even such a contingency, if then made manifest, would be contemplated with all possible fortitude.
The Tenure of Office act, it will be remembered, was passed in 1867 for the express purpose of preventing removals from office by President Johnson, between whom and the Congress a quarrel at that time raged so bitter that it was regarded by sober and thoughtful men as a national affliction, if not a scandal.
An amusing story is told of a legislator who, endeavoring to persuade a friend and colleague to aid him in the passage of a certain measure in which he was personally interested, met the remark that his bill was unconstitutional with the exclamation, “What does the Constitution amount to between friends?” It would be unseemly to suggest that in the heat of strife the majority in Congress had deliberately determined to pass an unconstitutional law, but they evidently had reached the point where they considered that what seemed to them the public interest and safety justified them, whatever the risk might be, in setting aside the congressional construction given to the Constitution seventy-eight years before.
The law passed in 1867 was exceedingly radical; and in effect distinctly purported to confer upon the Senate the power of preventing the removal of officers without the consent of that body. It was provided that during a recess of the Senate an officer might be suspended only in case it was shown by evidence satisfactory to the President that the incumbent was guilty of misconduct in office or crime, or when for any reason he should become incapable or legally disqualified to perform his duties; and that within twenty days after the beginning of the next session of the Senate, the President should report to that body such suspension with the evidence and reasons for his action in the case, and the name of the person designated by the President to perform temporarily the duties of the office. Then follows this provision: “And if the Senate shall concur in such suspension and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove said officer, and by and with the advice and consent of the Senate appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office.”
On the 5th of April, 1869, a month and a day after President Johnson was succeeded in the presidency by General Grant, that part of the act of 1867 above referred to, having answered the purpose for which it was passed, was repealed, and other legislation was enacted in its place. It was provided in the new statute that the President might in his discretion, during the recess of that body, suspend officials until the end of the next session of the Senate, and designate suitable persons to perform the duties of such suspended officer in the meantime; and that such designated persons should be subject to removal in the discretion of the President by the designation of others. The following, in regard to the effect of such suspension, was inserted in lieu of the provision on that subject in the law of 1867 which I have quoted: “And it shall be the duty of the President within thirty days after the commencement of each session of the Senate, except for any office which in his opinion ought not to be filled, to nominate persons to fill all vacancies in office which existed at the meeting of the Senate, whether temporarily filled or not, and also in the place of all officers suspended; and if the Senate, during such session, shall refuse to advise and consent to an appointment in the place of any suspended officer, then, and not otherwise, the President shall nominate another person as soon as practicable to said session of the Senate for said office.”
This was the condition of the so-called tenure of office legislation when a Democratic President was inaugurated and placed in expected cooperation with a Republican majority in the Senate well drilled, well organized, with partisanship enough at least to insure against indifference to party advantage, and perhaps with here and there a trace of post-election irritation.
Whatever may be said as to the constitutionality of the Tenure of Office laws of 1867 and 1869, certainly the latter statute did not seem, in outside appearance, to be charged with explosive material that endangered executive prerogative. It grew out of a bill which absolutely and unconditionally repealed the law of 1867 relating to removals and suspensions. This repealing act originated in the House of Representatives, and passed that body so nearly unanimously that only sixteen votes were recorded against it. In the Senate, however, amendments were proposed, which being rejected by the House, a committee of conference was appointed to propose a compromise of the disagreement between the two bodies. This resulted in an agreement by the committee, upon the provisions of the law of 1869, as a settlement of the controversy. In the debate in the House of Representatives on the report of the committee, great uncertainty and differences of opinion were developed as to its meaning and effect. Even the House conferees differed in their explanation of it. Members were assured that the proposed modifications of the law of 1867, if adopted, would amount to its repeal; and it was also asserted with equal confidence that some of its objectionable limitations upon executive authority would still remain in force. In this state of confusion and doubt the House of Representatives, which a few days before had passed a measure for unconditional repeal, with only sixteen votes against it, adopted the report of the conference committee with sixty-seven votes in the negative.
So far as removals following suspensions are concerned, the language of the law of 1869 certainly seems to justify the understanding that in this particular it virtually repealed the existing statute.
The provision permitting the President to suspend only on certain specified grounds was so changed as to allow him to make such suspensions “in his discretion.” The requirements that the President should report to the Senate “the evidence and reasons for his action in the case,” and making the advice and consent of the Senate necessary to the removal of a suspended officer, were entirely eliminated; and in lieu of the provision in the law of 1867 that “if the Senate shall refuse to concur in such suspension, such officer so suspended shall resume the functions of his office,” the law of 1869, after requiring the President to send to the Senate nominations to fill the place of officers who had been “in his discretion” suspended, declared “that if the Senate during such session shall refuse to advise and consent to an appointment in the place of any suspended officer,” not that “such officer so suspended shall resume the functions of his office,” but that “then and not otherwise the President shall nominate another person as soon as practicable to said session of the Senate for said office.”
It seems to me that the gist of the whole matter is contained in a comparison of these two provisions. Under the law of 1867 the incumbent is only conditionally suspended, still having the right to resume his office in case the Senate refuses to concur in the suspension; but under the law of 1869 the Senate had no concern with the suspension of the incumbent, nor with the discretion vested in the President in reference thereto by the express language of the statute; and the suspended incumbent certainly would appear to be beyond resuscitation. Instead of the least intimation that in any event he might “resume the functions of his office,” as provided in the law of 1867, it is especially declared that in case the Senate shall refuse to advise and consent to the appointment of the particular person nominated by the President in place of the suspended official, he shall nominate another person to the Senate for such office. Thus the party suspended seems to be eliminated from consideration, the Senate is relegated to its constitutional rights of confirming or rejecting nominations as it sees fit, and the President is reinstated in his undoubted constitutional power of removal, through suspension, during the recess of the Senate.
In addition to what is apparent from a comparison of these two statutes, it may not be improper to glance at certain phases of executive and senatorial action since the passage of the law of 1869 as bearing upon the reasonableness of the belief that, so far as it dealt with suspensions and their effect, if it did not amount to a repeal of the law of 1867, it at least extinguished all its harmful vitality as a limitation of executive prerogative. It has been stated apparently authoritatively that President Grant within seven weeks after his inauguration on the 4th of March, 1869, sent to the Senate 680 cases of removals or suspensions, all of which I assume were entirely proper and justifiable. I cannot tell how many of the cases thus submitted to the Senate were suspensions, nor how many of them purported to be removals; nor do I know how many nominations of new officers accompanying them were confirmed. It appears that ninety-seven of them were withdrawn before they were acted upon by the Senate; and inasmuch as the law of 1867 was in force during four of the seven weeks within which these removals and suspensions were submitted, it is barely possible that these withdrawals were made to await a more convenient season under the law of 1869. Attention should be here called, however, to the dissatisfaction of President Grant, early in his incumbency, with the complexion of the situation, even under the repealing and amendatory law of 1869. In his first annual message to the Congress in December, 1869, he complained of that statute as “being inconsistent with a faithful and efficient administration of the Government,” and recommended its repeal. Perhaps he was led to apprehend that the Senate would claim under its provisions the power to prevent the President from putting out of office an undesirable official by suspension. This is indicated by the following sentence in his message: “What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason?” Or is it possible that he did not then appreciate how, accommodatingly the law might be construed or enforced when the President and Senate were in political accord? However these things may be, it is important to observe, in considering the light in which the law of 1869 came to be regarded by both the Executive and the Senate, that President Grant did not deem it necessary afterwards to renew his recommendation for its repeal, and that at no time since its enactment has its existence been permitted to embarrass executive action prior to the inauguration of a Democratic President politically opposed to the majority in control of the Senate.
The review which I have thus attempted to make of the creation of our national Executive office, and of certain events and incidents connected with its operation, has consumed all the time which I ought to claim from you this evening. If in continuation I am to recount other events and incidents relating to the subject, in which I have been personally concerned, it must be done on another occasion. But before I now conclude, I desire to say that any allusion I may have made recognizing the existence of partisanship in certain quarters has not been made in a spirit of complaint or condemnation. I have intended to do no more by such allusions than to explain and illustrate the matters with which I have had to deal by surrounding conditions and circumstances. I fully appreciate the fact that partisanship follows party organization, that it is apt to be unduly developed in all parties, and that it often hampers the best aspirations and purposes of public life; but I hope I have reached a condition when I can recall such adverse partisanship as may have entered into past conflicts and perplexities without misleading irritation or prejudice, especially on such an occasion as this.
This is part one of a two-part series. Read part two here.
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