This is part two of a two-part series. Read part one here.
I propose now to recount some incidents that followed the conditions which I have attempted to describe in a previous paper.
At this point, I cannot keep out of mind the story of the preacher who divided his discourse into three heads. He declared it to be his intention, under his first head, to speak of some things that he knew all about, and of which his congregation knew nothing; under his second head, he proposed to deal with matters that both he and his hearers fully understood; and under the third head, he promised to discuss topics concerning which neither he nor they had any knowledge. I shall not adopt this division in its entirety. Though I do not see how I can avoid speaking of some things that are within my knowledge, and not thoroughly within yours, and while I shall be quite satisfied to traverse ground equally familiar to both you and me, I must utterly repudiate our preachers third head, and shall studiously avoid the mention of topics of which all of us are ignorant. There is another matter in relation to which I desire to have an understanding with you. In the recital of events with which I have had to do, I would be glad to speak always in an impersonal way, but I will not agree to be constantly casting about for turns of expression for that purpose. If, therefore, in speaking of things done by me, and things done to me, I use the pronouns “I” and “me,” I hope I may indulge in that easier form of statement without being accused of egotism.
Immediately after the change of administration in 1885, the pressure began for the ousting of Republican office-holders, and the substitution of Democrats in their places. While I claim to have earned a position which entitles me to resent the accusation that I either openly or covertly favor swift official decapitation for partisan purposes, I have no sympathy with the intolerant people who, without the least appreciation of the meaning of party work and service, superciliously affect to despise all those who apply for office as they would those guilty of a flagrant misdemeanor. It will indeed be a happy day when the ascendency of party principles, and the attainment of wholesome administration, will be universally regarded as sufficient rewards of individual and legitimate party service. Much has already been accomplished in the direction of closing the door of partisanship as an entrance to public employment; and though this branch of effort might well be still further extended, it certainly should be supplemented by earnest and persuasive attempts to correct among our people long-cherished notions concerning the ends that should be sought through political activity, and by efforts to uproot pernicious and office-rewarding political methods. I am not sure that any satisfactory progress can be made toward these results, until our good men with unanimity cease regarding politics as necessarily debasing, and by active participation shall displace the selfish and unworthy who, when uninterrupted, control party operations. In the meantime, why should we indiscriminately hate those who seek office? They may not have entirely emancipated themselves from the belief that the offices should pass with party victory; but even if this is charged against them, it can surely be said that in all other respects they are in many instances as honest, as capable, and as intelligent as any of us. There may be reasons and considerations which properly defeat their aspirations, but their applications are not always disgraceful. I have an idea that sometimes the greatest difference between them and those who needlessly abuse them and gloat over their discomfiture consists in the fact that the office-seekers desire office, and their critics, being more profitably employed, do not. I feel constrained to say this much by way of defending, or at least excusing, many belonging to a numerous contingent of citizens, who, after the 4th of March, 1885, made large drafts upon my time, vitality, and patience, and I feel bound to say that in view of their frequent disappointments, and the difficulty they found in appreciating the validity of the reasons given for refusing their applications, they accepted the situation with as much good nature and contentment as could possibly have been anticipated. It must be remembered that they and their party associates had been banished from Federal office-holding for twenty-four years.
I have no disposition to evade the fact that suspensions of officials holding presidential commissions began promptly, and were quite vigorously continued; but I confidently claim that every suspension made was with honest intent, and I believe in accordance with the requirements of good administration and consistent with prior Executive pledges. Some of these officials held by tenures unlimited as to their duration. Among these were certain internal revenue officers who, it seemed to me, in analogy with others doing similar work but having a limited tenure, ought to consider a like limited period of incumbency their proper term of office; and there were also consular officials and others attached to the foreign service who, I believe it was then generally understood, should be politically in accord with the administration. By far the greater number of suspensions, however, were made on account of gross and indecent partisan conduct on the part of the incumbents. The preceding presidential campaign, it will be recalled, was exceedingly bitter, and governmental officials then in place were apparently so confident of the continued supremacy of their party that some of them made no pretense of decent behavior. In numerous instances the post offices were made headquarters for local party committees and organizations and the centres of partisan scheming. Party literature favorable to the postmasters party, that never passed through the mails, was distributed through the post offices as an item of party service, and matter of a political character, passing regularly through the mails and addressed to patrons belonging to the opposite party, was withheld; disgusting and irritating placards were prominently displayed in many post offices, and the attention of Democratic inquirers for mail matter tauntingly directed to them by the post-master; and in various ways postmasters and other officials annoyed and vexed those holding opposite political opinions, who, in common with all having business at public offices, were entitled to considerate and obliging treatment. In some quarters official incumbents neglected public duty to do political work, and in Southern States they frequently were not only inordinately active in questionable political work, but sought to do party service by secret and sinister manipulation of colored voters, and by other practices inviting avoidable and dangerous collisions between the white and colored population.
I mention these things in order that what I shall say later may be better understood. I by no means attempt to describe all the wrongdoing which formed the basis of many of the suspensions of officials that followed the inauguration of the new administration. I merely mention some of the accusations which I recall as having been frequently made, as illustrating in a general way certain phases of pernicious partisanship that seemed to me to deserve prompt and effective treatment. Some suspensions, however, were made on proof of downright official malfeasance, as distinguished from personal transgression or partisan misconduct. Complaints against office-holders based on the latter charges were usually made to the Executive and to the heads of departments by means of letters, ordinarily personal and confidential, and also often by means of verbal communications. Whatever papers, letters, or documents were received on the subject, either by the President or by any head of department, were, for convenience of reference, placed together on department files. These complaints were carefully examined; many were cast aside as frivolous or lacking support, and others, deemed of sufficient gravity and adequately established, resulted in the suspension of the accused officials.
Suspensions instead of immediate removals were resorted to, because under the law then existing it appeared to be the only way that during a recess of the Senate an offending official could be ousted from his office, and his successor installed pending his confirmation at the Senates next session. Though, as we have already seen, the law permitted suspensions by the President in his discretion, I considered myself re- strained by the pledges I had made from availing myself of the discretion thus granted without reasons, and felt bound to make suspensions of officials having a definite term to serve only for adequate cause.
It will be observed further on that no resistance was then made to the laws pertaining to Executive removals and suspensions, on the ground of their unconstitutionality; but I have never believed that either the law of 1867 or the law of 1869, when construed as permitting interference with the freedom of the President in making removals, would survive a judicial test of its constitutionality.
Within thirty days after the Senate met in December, 1885, the nominations of the persons who had been designated to succeed officials suspended during the vacation were sent to that body for confirmation, pursuant to existing statutes.
It was charged against me by the leader of the majority in the Senate that these nominations of every kind and description, representing the suspensions made within ten months succeeding the 4th of March, 1885, numbered six hundred and forty-three. I have not verified this statement, but I shall assume that it is correct. The list presented contained among the suspended officials two hundred and seventy- eight postmasters, twenty-eight district attorneys, and twenty-four marshals, and among those who held offices with no specified term there were sixty-one internal revenue officers and sixty-five consuls and other persons attached to the foreign service.
It was stated on the floor of the Senate, after that body had been in session for three months, that of the nominations thus submitted there had been fifteen confirmations and two rejections.
Quite early in the session frequent requests in writing began to issue from the different committees of the Senate to which these nominations were referred, to the heads of the several departments having supervision of the offices to which the nominations related, asking for the reasons for the suspension of officers whose places it was proposed to fill by means of the nominations submitted, and for all papers on file in their departments which showed the reasons for such suspensions. These requests foreshadowed what the senatorial construction of the law of 1869 might be, and indicated that the Senate, notwithstanding constitutional limitations, and even in the face of the repeal of the statutory provision giving it the right to pass upon suspensions by the President, was still inclined to insist, directly or indirectly, upon that right. These requests, as I have said, emanated from committees of the Senate, and were addressed to the heads of departments. On this footing I had not the opportunity to discuss the questions growing out of the requests with the Senate itself, or to make known directly to that body the position on this subject which I felt bound to assert. Therefore the replies made by the different heads of departments stated that by direction of the President they declined furnishing the reasons and papers so requested, on the ground that public interest would not be thereby promoted, or on the ground that such reasons and papers related to a purely executive act. Whatever language was used in these replies, they conveyed the information that the President had directed a denial of the requests made, because in his opinion the Senate could have no pro- per concern with the information sought to be obtained.
It may not be amiss to mention here that while this was the position assumed by the Executive in relation to suspensions, any information in the executive departments touching the propriety of the confirmation of persons nominated for office, all the information of any description in the possession of the Executive or in any of the departments, which would aid in the discharge of that duty, was cheerfully and promptly furnished when requested.
In considering the requests made for the transmission of the reasons for suspensions, and the papers relating thereto, I could not avoid the conviction that a compliance with such requests would be to that extent a failure to protect and defend the Constitution, as well as a wrong to the great office I held in trust for the people, and which I was bound to transmit unimpaired to my successors; nor could I be unmindful of a tendency in some quarters to encroach upon executive functions, or of the eagerness with which executive concession would be seized upon as establishing precedent.
The nominations sent to the Senate remained neglected in the committees to which they had been referred; the requests of the committees for reasons and papers touching suspensions were still refused, and it became daily more am parent that a sharp contest was impending. In this condition of affairs it was plainly intimated by members of the majority in the Senate that if all charges against suspended officials were abandoned and their suspensions based entirely upon the ground that the spoils belonged to the victors, confirmations would follow. This, of course, from my standpoint, would have been untruthful and dishonest; but the suggestion indicated that in the minds of some Senators, at least, there was a determination to gain a partisan advantage by discrediting the President, who, for the time, represented the party they opposed. This manifestly could be thoroughly done by inducing him to turn his back upon the pledges he had made, and to admit, for the sake of peace, that his action arose solely from a desire to put his party friends in place; and such a scheme promised to be more easy and expeditious than an attempt to force access to the reasons and papers underlying suspensions, and if successful to make public a predetermined impeachment of executive action thereon.
Up to this stage of the controversy, not one of the many requests made for the reasons for suspensions or for the papers relating to them had been sent from the Senate as a body; nor had any of them been addressed to the President. It may seem not only strange that, in the existing circumstances, the Senate should have so long kept in the background, but more strange that the Executive, constituting a coördinate branch of the Government, and having such exclusive concern in the pending differences, should have been so completely ignored. I cannot think it uncharitable to suggest in explanation that as long as these requests and refusals were confined to Senate committees and heads of departments, a public communication stating the position of the President in the controversy would probably be avoided; and that, as was subsequently made more apparent, there was an intent, in addressing requests to the heads of departments, to lay a foundation for the contention that the Senate or its committees had a right to control these heads of departments as against the President in matters relating to executive duty.
On the 17th of July, 1885, during the recess of the Senate, one George M. Duskin was suspended from the office of District Attorney for the Southern District of Alabama, and John D. Burnett was designated as his successor. The latter at once took possession of the office, and entered upon the discharge of its duties; and on the 14th of December, 1885, the nomination of Burnett was sent to the Senate for confirmation. This nomination, pursuant to the rules and customs of the Senate, was referred to its Committee on the Judiciary. On the 26th of December, that committee then having the nomination under consideration, one of its members addressed a communication to the Attorney General of the United States, requesting him, “on behalf of the Committee on the Judiciary of the Senate and by its direction,” to send to such member of the committee all papers and information in the possession of the Department of Justice touching the nomination of Burnett; “also all papers and information touching the suspension and proposed removal from office of George M. Duskin.” On the 11th of January, 1886, the Attorney General responded to this request in these terms: “The Attorney General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the suspension of Duskin from office, he has as yet received no direction from the President in relation to their transmission.”
At this point it seems to have been decided for the first time that the Senate itself should enter upon the scene as interrogator. It was not determined, however, to invite the President to answer this new interrogator, either for the protection and defense of his high office or in self-vindication. It appears to have been also determined at this time to give another form to the effort the Senate was to undertake anew, to secure the papers and information touching the suspension and proposed removal from office of George M. Duskin. In pursuance of this plan the following resolution was on the 25th of January, 1886, adopted by the Senate in executive session: —
“Resolved, That the Attorney General of the United States be, and he hereby is, directed to transmit to the Senate copies of all documents and papers that have been filed in the Department of Justice since the 1st day of January, A. D. 1885, in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama.”
The language of this resolution is more adroit than ingenuous. While appearing reasonable and fair upon its face, and presenting no indication that it in any way related to a case of suspension, it quickly assumes its real complexion when examined in the light of its surroundings. The requests previously made on behalf of Senate committees have ripened into a “demand” by the Senate itself. Herein is found support for the suggestion I have made, that from the beginning there might have been an intent on the part of the Senate to claim that the heads of departments who are members of the President’s Cabinet, and his trusted associates and advisers, owed greater obedience to the Senate than to their Executive chief in affairs which he and they regarded as exclusively within Executive functions. As to the real meaning and purpose of the resolution, a glance at its accompanying conditions and the incidents preceding it makes manifest the insufficiency of its disguise. This resolution was adopted by the Senate in executive session, where the entire senatorial business done is the consideration of treaties and the confirmation of nominations for office. At the time of its adoption Duskin had been suspended for more than six months, his successor had for that length of time been in actual possession of the office, and this successor’s nomination was then before the executive session of the Senate for confirmation. The demand was for copies of documents and papers in relation to the conduct of the office filed since January 1, 1885, thus covering a period of incumbency almost equally divided between the suspended officer and the person nominated to succeed him. The documents and papers demanded couldn’t have been of any possible use to the Senate in executive session, except as they had a bearing either upon the suspension of the one or the nomination of the other. But as we have already seen, the Attorney General had previously sent to a committee of the Senate all the papers he had in his custody in any way relating to the nomination and the fitness of the nominee, — whether such papers had reference to the conduct of the office or otherwise. Excluding, therefore, such documents and papers embraced in the demand as related to the pending nomination, and which had already been transmitted, it was plain that there was nothing left with the Attorney General that could be desired by the Senate in its executive session except what had reference to the conduct of the previous incumbent and his suspension. It is important to recall in this connection the fact that this subtle demand of the Senate for papers relating to the conduct of the office followed closely upon a failure to obtain all papers and information touching said suspension, in response to a plain and blunt request specifying precisely what was desired.
I have referred to these matters because it seems to me they indicate the animus and intent which characterized the first stages of a discussion that involved the right and functions of the Executive branch of the Government. It was perfectly apparent that the issue was between the President and the Senate, and that the question constituting that issue was whether or not the Executive branch of the Government was invested with the right and power to suspend officials without the interference of the Senate or any accountability to that body for the reasons of its action. It must have been fully understood that if it was desired to deal with this issue directly and fairly, disembarrassed by any finesse for position, it could have been easily done, if only one of the many requests for reasons for suspensions, which were sent by committees of the Senate to heads of departments, had been sent by the Senate itself to the President.
Within three days after the passage by the Senate, in executive session, of the resolution directing the Attorney General to transmit to that body the documents and papers on file relating to the management and conduct of the office from which Mr. Duskin had been removed, and to which Mr. Burnett had been nominated, the Attorney General replied thereto as follows: —
“In response to the said resolution, the President of the United States directs me to say that the papers that were in this department relating to the fitness of John D. Burnett, recently nominated to said office, having already been sent to the Senate Committee on the Judiciary, and the papers and documents which are mentioned in the said resolution and still remaining in the custody of this department, having exclusive reference to the suspension by the President of George M. Duskin, the late incumbent of the office of District Attorney for the Southern District of Alabama, it is not considered that the public interests will be promoted by a compliance with said resolution and the transmission of the papers and documents therein mentioned to the Senate in executive session.”
This response of the Attorney General was referred to the Senate Committee on the Judiciary. Early in February, 1886, a majority of the committee made a report to the Senate, in which it seems to have been claimed that all papers—whatever may be their personal, private, or confidential character—if placed on file, or, in other words, if deposited in the office of a head of a department, became thereupon official papers, and that the Senate had therefore a right to their transmittal when they had reference to the conduct of a suspended official, and when that body had under advisement the confirmation of his proposed successor. Much stress was laid upon the professions made by the President of his adherence to Civil Service reform methods, and it was broadly hinted that, in the face of six hundred and forty-three suspensions from office, these professions could hardly be sincere. Instances were cited in which papers and information had been demanded and furnished in previous administrations, and these were claimed to be precedents in favor of the position assumed by the majority of the committee. Almost at the outset of the report it was declared: —
“The important question, then, is whether it is within the constitutional competence of either House of Congress to have access to the official papers and documents in the various public offices of the United States, created by laws enacted by themselves.”
In conclusion, the majority recommended the adoption by the Senate of the following resolutions:
“Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January and set forth in the report of the Committee on the Judiciary, as in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof.
“Resolved, That it is under these circumstances the duty of the Senate to refuse its advice and consent to proposed removals of officers, the documents and papers in reference to the supposed official or personal misconduct of whom are withheld by the Executive or any head of a department when deemed necessary by the Senate and called for in considering the matter.
“Resolved, That the provision of section 1754 of the Revised Statutes, declaring that persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointment to civil offices provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices, ought to be faithfully and fully put in execution, and that to remove or to propose to remove any such soldier whose faithfulness, competency, and character are above reproach, and to give place to another who has not rendered such service, is a violation of the spirit of the law and of the practical gratitude the people and the Government of the United States owe to the defenders of constitutional liberty and the integrity of the Government.”
The first of these resolutions contains charges which, if true, should clearly furnish grounds for the impeachment of the Attorney General, — if not the President under whose “influence” he concededly refused to submit the papers demanded by the Senate. A public officer whose acts are “in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof," can scarcely add anything to his predicament of guilt.
The second resolution has the merit of honesty in confessing that the intent and object of the demand upon the Attorney General was to secure the demanded papers and documents for the purpose of passing upon the Presidents reasons for suspension. Beyond this, the declaration it contains, that it was the duty of the Senate to refuse its advice and consent to proposed removals of officers when the papers and documents relating to their “supposed official or personal misconduct” were withheld, certainly obliged the Senate, if the resolution should be adopted, and if the Senate’s good faith in the controversy should be assumed, to reject or ignore all nominations made to succeed suspended officers unless that body was furnished the documents and papers upon which the suspension was based, and thus given an opportunity to review and reverse or confirm the President’s executive act, resting, by the very terms of existing law, “in his discretion.”
The third resolution is grandly phrased, and its sentiment is patriotic, noble, and inspiriting. Inasmuch, however, as the removal of veteran soldiers from office did not seem to assume any considerable prominence in the arraignment of the administration, the object of the resolution is slightly obscure, unless, as was not unusual in those days, the cause of the old soldier was impressed into the service of the controversy for purposes of general utility.
A minority report was subsequently submitted, signed by all the Democratic members of the committee, in which the allegations of the majority report were sharply controverted. It was therein positively asserted that no instance could be found in the practice of the Government whose similarity in all essential features entitled it to citation as an authoritative precedent; and that neither the Constitution nor the existing law afforded any justification for the demand of the Senate.
These two reports, of course, furnished abundant points of controversy. About the time of their submission, moreover, another document was addressed to the Senate, which, whatever else may be said of it, seems to have contributed considerably to the spirit and animation of the discussion that ensued. This was a message from the President, in which his position concerning the matter in dispute was defined. In this communication complete and absolute responsibility for all suspensions was confessed; and the fact that the President had been afforded no opportunity to speak for himself was stated in the following terms:
“Though these suspensions are my executive acts based upon considerations addressed to me alone, and for which I am wholly responsible, I have had no invitation from the Senate to state the position which I have felt constrained to assume in relation to the same, or to interpret for myself my acts and motives in the premises. In this condition of affairs I have forborne addressing the Senate upon the subject, lest I might be accused of thrusting myself unbidden upon the attention of that body.”
This statement was accompanied by the expression of a hope that the misapprehension of the Executive position, indicated in the majority report just presented and published, might excuse his then submitting a communication. He commented upon the statement in the report that “the important question, then, is whether it is within the constitutional competence of either House of Congress to have access to the official papers and documents in the various public offices of the United States, created by laws enacted by themselves,” by suggesting that though public officials of the United States might be created by laws enacted by the two Houses of Congress, this fact did not necessarily subject their offices to congressional control, but, on the contrary, that “these instrumentalities were created for the benefit of the people, and to answer the general purposes of government under the Constitution and the laws; and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation.” While not conceding that the Senate had in any case the right to review Executive action in suspending officials, the President disclaimed any intention to withhold official papers and documents when requested; and as to such papers and documents, he expressed his willingness, because they were official, to continue as he had theretofore done in all cases, to lay them before the Senate without inquiry as to the use to be made of them, and relying upon the Senate for their legitimate utilization. The proposition was expressly denied, however, that papers and documents inherently private or confidential, addressed to the President or a head of department, having reference to an act so entirely executive in its nature as the suspension of an official, and which was by the Constitution as well as by existing law placed within the discretion of the President, were changed in their nature and instantly became official when placed for convenience or for other reasons in the custody of a public department. The contention of the President was thus stated: “There is no mysterious power of transmutation in departmental custody, nor is there magic in the undefined and sacred solemnity of departmental files. If the presence of these papers in the public office is a stumbling-block in the way of the performance of senatorial duty, it can be easily removed.”
The Senate’s purposes were characterized in the message as follows: “The requests and demands which by the score have for nearly three months been presented to the different departments of the Government, whatever may be their form, have but one complexion. They assume the right of the Senate to sit in judgment upon the exercise of any exclusive discretion and Executive function, for which I am solely responsible to the people from whom I have so lately received the sacred trust of office. My oath to support and defend the Constitution, my duty to the people who have chosen me to execute the powers of their great office and not relinquish them, and my duty to the chief magistracy which I must preserve unimpaired in all its dignity and vigor, compel me to refuse compliance with these demands.”
This was immediately followed by this unqualified avowal of the power of the Senate in the matter of confirmation:
“To the end that the service may be improved, the Senate is invited to the fullest scrutiny of the persons submitted to them for public office, in recognition of the constitutional power of that body to advise and consent to their appointment. I shall continue, as I have thus far done, to furnish, at the request of the confirming body, all the information I possess touching the fitness of the nominees placed before them for their action, both when they are proposed to fill vacancies and to take the place of suspended officials. Upon a refusal to confirm, I shall not assume the right to ask the reasons for the action of the Senate nor question its determination. I cannot think that anything more is required to secure worthy incumbents in public office than a careful and independent discharge of our respective duties within their well-defined limits.”
As it was hardly concealed that by no means the least important senatorial purpose in the pending controversy was to discredit the Civil Service reform pledges and professions of the Executive, in concluding the message this issue was thus distinctly invited: —
“Every pledge which I have made by which I have placed a limitation upon my exercise of executive power has been faithfully redeemed. Of course the pretense is not put forth that no mistakes have been committed; but not a suspension has been made except it appeared to my satisfaction that the public welfare would be promoted thereby. Many applications for suspension have been denied, and an adherence to the rule laid down to govern my action as to such suspensions has caused much irritation and impatience on the part of those who have insisted upon more changes in the offices.
“The pledges I have made were made to the people, and to them I am responsible for the manner in which they have been redeemed. I am not responsible to the Senate, and I am unwilling to submit my actions and official conduct to them for judgment.
“There are no grounds for an allegation that the fear of being found false to my professions influences me in declining to submit to the demands of the Senate. I have not constantly refused to suspend officials and thus incurred the displeasure of political friends, and yet willfully broken faith with the people, for the sake of being false to them.
“Neither the discontent of party friends nor the allurements, constantly offered, of confirmation of appointees conditioned upon the avowal that suspensions have been made on party grounds alone, nor the threat proposed in the resolutions now before the Senate that no confirmation will be made unless the demands of that body be complied with, are sufficient to discourage or deter me from following in the way which I am convinced leads to better government for the people.”
The temper and disposition of the Senate may be correctly judged, I think, from the remarks made upon the presentation of this message by the chairman of the Committee on the Judiciary and the acknowledged leader of the majority. On a formal motion that the message be printed and lie upon the table, he moved as an amendment that it be referred to the committee of which he was chairman, and said: “I merely wish to remark in moving to refer this document to the Committee on the Judiciary, that it very vividly brought to my mind the communications of King Charles I. to the Parliament, telling them what, in conducting their affairs, they ought to do and ought not to do; and I think I am safe in saying that it is the first time in the history of the Republican United States, that any President of the United States has undertaken to interfere with the deliberations of either House of Congress on questions pending before them, otherwise than by messages on the state of the Union which the Constitution commands him to make from time to time. This message is devoted simply to a question for the Senate itself, in regard to itself, that it has under consideration. That is its singularity. I think it will strike reflecting people in this country as somewhat extraordinary, if in this day of reform anything at all can be thought extraordinary.”
King Charles I. fared badly at the hands of the Parliament; but it was most reassuring to know that, after all said and done, the Senate of the United States was not a bloodthirsty body; and that the chairman of its Committee on the Judiciary was one of the most courteous and amiable of men, at heart, when outside of the Senate.
The debate upon the questions presented by the report and resolutions recommended by the majority of the committee, and by the minority report and the presidential message, occupied almost exclusively the sessions of the Senate for over two weeks. More than twenty-five Senators participated, and the discussion covered such a wide range of argument that all considerations relevant to the subject, and some not clearly related to it, seem to have been presented. At the close of the debate, the resolution condemning the Attorney General for withholding the papers and documents which the Senate had demanded was passed by thirty-two votes in the affirmative, and twenty-five in the negative; the next resolution, declaring it to be the duty of the Senate to refuse its advice and consent to proposed removals of officers when papers and documents in reference to their alleged misconduct were withheld, was adopted by a majority of only a single vote; and the proclamation contained in the third resolution, setting forth the obligations of the Government and its people to the veterans of the civil war, was unanimously approved, except for one dissenting voice.
The controversy thus closed arose from the professed anxiety of the majority in the Senate to guard the interests of an official who was suspended from office in July, 1885, and who was still claimed to be in a condition of suspension. In point of fact, however, that official’s term of office expired by limitation on the 20th of December, 1885, before the demand for papers and documents relating to his conduct in office was made, before the resolutions and reports of the Committee on the Judiciary were presented, and before the commencement of the long discussion in defense of the right of a suspended incumbent. This situation escaped notice in Executive quarters, became the appointee to succeed the suspended officer having been actually installed and in the discharge of the duties of the position for more than six months, and his nomination having been sent to the Senate very soon after the beginning of its session, the situation or duration of the former incumbent’s term was not kept in mind. The expiration of his term was, however, distinctly alleged in the Senate on the second day of the discussion, and by the first speaker in opposition to the majority report. There was, therefore, no question of suspension or removal remaining in the case, but still the discussion continued; and shortly after the resolutions of the committee were passed, the same person who superseded the suspended officer was again nominated to succeed him by reason of the expiration of his term; and this nomination was confirmed.
At last, after stormy weather, Duskin, the suspended, and Burnett, his successor, were at rest. The earnest contention that beat about their names ceased, and no shout of triumph disturbed the supervening quiet.
I have attempted this evening, after fourteen years of absolute calm, to recount the prominent details of the strife; and I hope that I may assume that your interest in the subject is still sufficient to justify me in a further brief reference to some features of the dispute and certain incidents that followed it, which may aid to a better appreciation of its true character and motive.
Of the elaborate speeches made in support of the resolutions and the committees majority report, seven dealt more or less prominently with the Presidents Civil Service reform professions and his pledges against the removal of officials on purely partisan grounds. It seems to have been assumed that these pledges had been violated. At any rate, without any evidence worthy of the name, charges of such violation ranged all the way from genteel insinuation to savage accusation. Senators who would have stoutly refused to vote for the spoils system broadly intimated or openly declared that if suspensions had been made confessedly on partisan grounds they would have interposed no opposition. The majority seem to have especially admired and applauded the antics of one of their number, who, in intervals of lurid and indiscriminate vituperation, gleefully mingled ridicule for Civil Service reform with praise of the forbidding genius of partisan spoils. In view of these deliverances and as bearing upon their relevancy, as well as indicating their purpose, let me again suggest that the issue involved in the discussion as selected by the majority of the Committee on the Judiciary, and distinctly declared in their report, was whether, as a matter of right, or, as the report expresses it, as within constitutional competence, either House of Congress should have access to the official papers and documents in the various public offices of the United States, created by laws enacted by themselves. It will be readily seen that if the question was one of senatorial right, the Presidents Civil Service reform pledges had no honest or legitimate place in the discussion.
The debate and the adoption of the resolutions reported by the committee caused no surrender of the Executive position. Nevertheless, confirmations of those nominated in place of suspended officers soon began, and I cannot recall any further embarrassment or difficulty on that score. I ought to add, however, that in many cases, at least, these confirmations were accompanied by reports from the committee to which they had been referred, stating that the late incumbent had been suspended for “political reasons,” or on account of “offensive partisanship,” or for a like reason, differently expressed, and that nothing was alleged against them affecting their personal character. In some instances these reports indicate that the committee had been allowed to examine the charges made, and the papers relating to them. If the terms I have given as having been used by the committee in designating causes for suspension mean that the persons suspended were guilty of offensive partisanship or political offenses, as distinguished from personal offenses and moral or official delinquencies, I am satisfied with the statement. And here it occurs to me to suggest that if offenses and moral or official delinquencies, not partisan in their nature, had existed, they would have been subjects for official inspection and report, and such reports, being official documents, would have been submitted to the committee or to the Senate, according to custom, and would have told their own story, and excluded committee comment. Thus the studied and carefully repeated statement of the committee in these cases of suspension, that no charge was made against the person suspended affecting his personal character (if that means a charge of wrongdoing not partisan), was superfluous, unless intended to convey the impression that the suspended officer was entirely innocent of any conduct meriting dismissal. It is a circumstance worth remembering when referring to these reports, that they belong to the executive business of the Senate, and are, therefore, among the secrets of that body. Those I have mentioned, nevertheless, were by special order made public, and published in the proceedings of the Senate in open session. This extraordinary, if not unprecedented, action, following long after the conclusion of the dispute, easily interprets its own intent, and removes all covering from a design to accomplish partisan advantage. The declaration of the resolutions that it was the duty of the Senate to refuse its advice and consent to the proposed removal of officers when the papers and documents relating to their supposed misconduct were withheld, was abandoned, and the irrevocable removal of such officers by confirmation of their successors was entered upon, with or without the much desired papers and documents, and was supplemented by the publication of committee reports, from which the secrecy of the executive session had been removed, to the end that, pursuant to a fixed determination, senatorial interpretation might be publicly given to the President’s action in making suspensions.
I desire to call attention to one other incident connected with the occurrences already narrated. On the 14th of December, 1885, — prior to the first request or demand upon any executive department relating to suspensions, and of course before any controversy upon the subject arose, — a bill was introduced in the Senate by one of the most distinguished and able members of the majority in that body, and also a member of its Committee on the Judiciary, for the total and complete repeal of the law of 1869, which, it will be remembered, furnished the basis for the contention we have considered. This repealing bill was referred to the Senate Committee on the Judiciary, where it slumbered until the 21st of June, 1886, — nearly three months after the close of the contention, — when it was returned to the Senate with a favorable report, the chairman of the committee alone dissenting. When the bill was presented for discussion, the Senator who introduced it explained its object as follows: —
“This bill repeals what is left of what is called the Tenure of Office act, passed under the administration of Andrew Johnson, and as a part of the contest with that President. It leaves the law as it was from the beginning of the Government until that time, and it repeals the provision which authorizes the suspension of civil officers and requires the submission of that suspension to the Senate.” On a later day, in discussing the bill, he said, after referring to the early date of its introduction: “It did not seem to me to be quite becoming to ask the Senate to deal with this general question, while the question which arose between the President and the Senate as to the interpretation and administration of the existing law was pending. I thought as a party man that I had hardly the right to interfere with the matter which was under the special charge of my honorable friend from Vermont, by challenging a debate upon the general subject from a different point of view. This question has subsided and is past, and it seems to me now proper to ask the Senate to vote upon the question whether it will return to the ancient policy of the Government, to the rule of public conduct which existed from 1789 until 1867, and which has practically existed, notwithstanding the condition of the statute book, since the accession to power of General Grant on the 4th of March, 1869.”
The personnel of the committee which reported favorably upon this repealing bill had not been changed since all the members of it politically affiliating with the majority in the Senate joined in recommending the accusatory report and resolutions, which, when adopted, caused the question between the President and the Senate, in the language of the introducer of the repealing bill, to “subside.”
This repealing act passed the Senate on the 17th of December, 1886, by thirty affirmative votes against twenty-two in the negative. A short time afterwards it passed in the House of Representatives by a majority of one hundred and five.
Thus was an unpleasant controversy happily followed by an expurgation of the last vestige of statutory sanction to an encroachment upon constitutional executive prerogatives, and thus was a time-honored interpretation of the Constitution restored to us. The President, freed from the Senate’s claim of tutelage, became again the independent agent of the people, representing a coördinate branch of their Government, charged with responsibilities which, under his oath, he ought not to avoid or share, and invested with powers, not to be surrendered, but to be used, under the guidance of patriotic intentions, a clear conscience, and an unfaltering faith in the Divine Ruler of the universe, who fails not when sincere and lofty human endeavor humbly seeks his aid.
This is part two of a two-part series. Read part one here.
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