EXECUTIVE MANSION, _Washington, D.C., March 1, 1886_.
_To the Senate of the United States_:
Ever since the beginning of the present session of the Senate the
different heads of the Departments attached to the executive branch of
the Government have been plied with various requests and demands from
committees of the Senate, from members of such committees, and at last
from the Senate itself, requiring the transmission of reasons for the
suspension of certain officials during the recess of that body, or for
the papers touching the conduct of such officials, or for all papers and
documents relating to such suspensions, or for all documents and papers
filed in such Departments in relation to the management and conduct of
the offices held by such suspended officials.
The different terms from time to time adopted in making these requests
and demands, the order in which they succeeded each other, and the fact
that when made by the Senate the resolution for that purpose was passed
in executive session have led to the presumption, the correctness of
which will, I suppose, be candidly admitted, that from first to last the
information thus sought and the papers thus demanded were desired for
use by the Senate and its committees in considering the propriety of the
suspensions referred to.
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.
But the report of the Committee on the Judiciary of the Senate lately
presented and published, which censures the Attorney-General of the
United States for his refusal to transmit certain papers relating to a
suspension from office, and which also, if I correctly interpret it,
evinces a misapprehension of the position of the Executive upon the
question of such suspensions, will, I hope, justify this communication.
This report is predicated upon a resolution of the Senate directed to
the Attorney-General and his reply to the same. This resolution was
adopted in executive session devoted entirely to business connected
with the consideration of nominations for office. It required the
Attorney-General "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, 1885, in relation to the management and conduct of the
office of district attorney of the United States for the southern
district of Alabama."
The incumbent of this office on the 1st day of January, 1885, and until
the 17th day of July ensuing, was George M. Duskin, who on the day last
mentioned was suspended by an Executive order, and John D. Burnett
designated to perform the duties of said office. At the time of the
passage of the resolution above referred to the nomination of Burnett
for said office was pending before the Senate, and all the papers
relating to said nomination were before that body for its inspection and
information.
In reply to this resolution the Attorney-General, after referring to the
fact that the papers relating to the nomination of Burnett had already
been sent to the Senate, stated that he was directed by the President to
say that--
The papers and documents which are mentioned in 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.
Upon this resolution and the answer thereto the issue is thus stated by
the Committee on the Judiciary at the outset of the report:
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.
I do not suppose that "the public offices of the United States" are
regulated or controlled in their relations to either House of Congress
by the fact that they were "created by laws enacted by themselves."
It must be 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.
The complaint of the committee that access to official papers in the
public offices is denied the Senate is met by the statement that at no
time has it been the disposition or the intention of the President or
any Department of the executive branch of the Government to withhold
from the Senate official documents or papers filed in any of the public
offices. While it is by no means conceded that the Senate has the right
in any case to review the act of the Executive in removing or suspending
a public officer, upon official documents or otherwise, it is considered
that documents and papers of that nature should, because they are
official, be freely transmitted to the Senate upon its demand, trusting
the use of the same for proper and legitimate purposes to the good faith
of that body; and though no such paper or document has been specifically
demanded in any of the numerous requests and demands made upon the
Departments, yet as often as they were found in the public offices they
have been furnished in answer to such applications.
The letter of the Attorney-General in response to the resolution of the
Senate in the particular case mentioned in the committee's report was
written at my suggestion and by my direction. There had been no official
papers or documents filed in his Department relating to the case within
the period specified in the resolution. The letter was intended, by its
description of the papers and documents remaining in the custody of the
Department, to convey the idea that they were not official; and it was
assumed that the resolution called for information, papers, and
documents of the same character as were required by the requests and
demands which preceded it.
Everything that had been written or done on behalf of the Senate
from the beginning pointed to all letters and papers of a private and
unofficial nature as the objects of search, if they were to be found in
the Departments, and provided they had been presented to the Executive
with a view to their consideration upon the question of suspension from
office.
Against the transmission of such papers and documents I have
interposed my advice and direction. This has not been done, as is
suggested in the committee's report, upon the assumption on my part that
the Attorney-General or any other head of a Department "is the servant
of the President, and is to give or withhold copies of documents in his
office according to the will of the Executive and not otherwise," but
because I regard the papers and documents withheld and addressed to me
or intended for my use and action purely unofficial and private, not
infrequently confidential, and having reference to the performance of a
duty exclusively mine. I consider them in no proper sense as upon the
files of the Department, but as deposited there for my convenience,
remaining still completely under my control. I suppose if I desired to
take them into my custody I might do so with entire propriety, and if
I saw fit to destroy them no one could complain.
Even the committee in its report appears to concede that there may be
with the President or in the Departments papers and documents which, on
account of their unofficial character, are not subject to the inspection
of the Congress. A reference in the report to instances where the House
of Representatives ought not to succeed in a call for the production of
papers is immediately followed by this statement:
The committee feels authorized to state, after a somewhat careful
research, that within the foregoing limits there is scarcely in the
history of this Government, until now, any instance of a refusal by a
head of a Department, or even of the President himself, to communicate
official facts and information, as distinguished from private and
unofficial papers, motions, views, reasons, and opinions, to either
House of Congress when unconditionally demanded.
To which of the classes thus recognized do the papers and documents
belong that are now the objects of the Senate's quest?
They consist of letters and representations addressed to the Executive
or intended for his inspection; they are voluntarily written and
presented by private citizens who are not in the least instigated
thereto by any official invitation or at all subject to official
control. While some of them are entitled to Executive consideration,
many of them are so irrelevant, or in the light of other facts so
worthless, that they have not been given the least weight in determining
the question to which they are supposed to relate.
Are all these, simply because they are preserved, to be considered
official documents and subject to the inspection of the Senate? If not,
who is to determine which belong to this class? Are the motives and
purposes of the Senate, as they are day by day developed, such as would
be satisfied with my selection? Am I to submit to theirs at the risk of
being charged with making a suspension from office upon evidence which
was not even considered?
Are these papers to be regarded official because they have not only been
presented but preserved in the public offices?
Their nature and character remain the same whether they are kept
in the Executive Mansion or deposited in the Departments. There is no
mysterious power of transmutation in departmental custody, nor is there
magic in the undefined and sacred solemnity of Department files. If the
presence of these papers in the public offices is a stumbling block in
the way of the performance of Senatorial duty, it can be easily removed.
The papers and documents which have been described derive no official
character from any constitutional, statutory, or other requirement
making them necessary to the performance of the official duty of the
Executive.
It will not be denied, I suppose, that the President may suspend a
public officer in the entire absence of any papers or documents to
aid his official judgment and discretion; and I am quite prepared to
avow that the cases are not few in which suspensions from office have
depended more upon oral representations made to me by citizens of known
good repute and by members of the House of Representatives and Senators
of the United States than upon any letters and documents presented for
my examination. I have not felt justified in suspecting the veracity,
integrity, and patriotism of Senators, or ignoring their
representations, because they were not in party affiliation with the
majority of their associates; and I recall a few suspensions which bear
the approval of individual members identified politically with the
majority in the Senate.
While, therefore, I am constrained to deny the right of the Senate to
the papers and documents described, so far as the right to the same is
based upon the claim that they are in any view of the subject official,
I am also led unequivocally to dispute the right of the Senate by the
aid of any documents whatever, or in any way save through the judicial
process of trial on impeachment, to review or reverse the acts of the
Executive in the suspension, during the recess of the Senate, of Federal
officials.
I believe the power to remove or suspend such officials is vested in the
President alone by the Constitution, which in express terms provides
that "the executive power shall be vested in a President of the United
States of America," and that "he shall take care that the laws be
faithfully executed."
The Senate belongs to the legislative branch of the Government. When the
Constitution by express provision superadded to its legislative duties
the right to advise and consent to appointments to office and to sit as
a court of impeachment, it conferred upon that body all the control and
regulation of Executive action supposed to be necessary for the safety
of the people; and this express and special grant of such extraordinary
powers, not in any way related to or growing out of general Senatorial
duty, and in itself a departure from the general plan of our Government,
should be held, under a familiar maxim of construction, to exclude every
other right of interference with Executive functions.
In the first Congress which assembled after the adoption of the
Constitution, comprising many who aided in its preparation, a
legislative construction was given to that instrument in which the
independence of the Executive in the matter of removals from office was
fully sustained.
I think it will be found that in the subsequent discussions of this
question there was generally, if not at all times, a proposition pending
to in some way curtail this power of the President by legislation, which
furnishes evidence that to limit such power it was supposed to be
necessary to supplement the Constitution by such legislation.
The first enactment of this description was passed under a stress of
partisanship and political bitterness which culminated in the
President's impeachment.
This law provided that the Federal officers to which it applied could
only be suspended during the recess of the Senate when shown by evidence
satisfactory to the President to be guilty of misconduct in office, or
crime, or when incapable or disqualified to perform their duties, and
that within twenty days after the next meeting of the Senate it should
be the duty of the President "to report to the Senate such suspension,
with the evidence and reasons for his action in the case."
This statute, passed in 1867, when Congress was overwhelmingly and
bitterly opposed politically to the President, may be regarded as
an indication that even then it was thought necessary by a Congress
determined upon the subjugation of the Executive to legislative will to
furnish itself a law for that purpose, instead of attempting to reach
the object intended by an invocation of any pretended constitutional
right.
The law which thus found its way to our statute book was plain in its
terms, and its intent needed no avowal. If valid and now in operation,
it would justify the present course of the Senate and command the
obedience of the Executive to its demands. It may, however, be remarked
in passing that under this law the President had the privilege of
presenting to the body which assumed to review his executive acts his
reasons therefor, instead of being excluded from explanation or judged
by papers found in the Departments.
Two years after the law of 1867 was passed, and within less than
five weeks after the inauguration of a President in political accord
with both branches of Congress, the sections of the act regulating
suspensions from office during the recess of the Senate were entirely
repealed, and in their place were substituted provisions which, instead
of limiting the causes of suspension to misconduct, crime, disability,
or disqualification, expressly permitted such suspension by the
President "in his discretion," and completely abandoned the requirement
obliging him to report to the Senate "the evidence and reasons" for his
action.
With these modifications and with all branches of the Government in
political harmony, and in the absence of partisan incentive to captious
obstruction, the law as it was left by the amendment of 1869 was much
less destructive of Executive discretion. And yet the great general and
patriotic citizen who on the 4th day of March, 1869, assumed the duties
of Chief Executive, and for whose freer administration of his high
office the most hateful restraints of the law of 1867 were, on the 5th
day of April, 1869, removed, mindful of his obligation to defend and
protect every prerogative of his great trust, and apprehensive of the
injury threatened the public service in the continued operation of these
statutes even in their modified form, in his first message to Congress
advised their repeal and set forth their unconstitutional character and
hurtful tendency in the following language:
It may be well to mention here the embarrassment possible to arise from
leaving on the statute books the so-called "tenure-of-office acts," and
to earnestly recommend their total repeal. It could not have been the
intention of the framers of the Constitution, when providing that
appointments made by the President should receive the consent of the
Senate, that the latter should have the power to retain in office
persons placed there by Federal appointment against the will of the
President. The law is inconsistent with a faithful and efficient
administration of the Government. What faith can an Executive put in
officials forced upon him, and those, too, whom he has suspended for
reason? How will such officials be likely to serve an Administration
which they know does not trust them?
I am unable to state whether or not this recommendation for a repeal of
these laws has been since repeated. If it has not, the reason can
probably be found in the experience which demonstrated the fact that the
necessities of the political situation but rarely developed their
vicious character.
And so it happens that after an existence of nearly twenty years of
almost innocuous desuetude these laws are brought forth--apparently the
repealed as well as the unrepealed--and put in the way of an Executive
who is willing, if permitted, to attempt an improvement in the methods
of administration.
The constitutionality of these laws is by no means admitted. But why
should the provisions of the repealed law, which required specific cause
for suspension and a report to the Senate of "evidence and reasons,"
be now in effect applied to the present Executive, instead of the law,
afterwards passed and unrepealed, which distinctly permits suspensions
by the President "in his discretion" and carefully omits the requirement
that "evidence and reasons for his action in the case" shall be reported
to the Senate.
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 my 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 to
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.
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 can not 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.
Though the propriety of suspensions might be better assured if the
action of the President was subject to review by the Senate, yet if the
Constitution and the laws have placed this responsibility upon the
executive branch of the Government it should not be divided nor the
discretion which it involves relinquished.
It has been claimed that the present Executive having pledged himself
not to remove officials except for cause, the fact of their suspension
implies such misconduct on the part of a suspended official as injures
his character and reputation, and therefore the Senate should review the
case for his vindication.
I have said that certain officials should not, in my opinion, be removed
during the continuance of the term for which they were appointed solely
for the purpose of putting in their place those in political affiliation
with the appointing power, and this declaration was immediately followed
by a description of official partisanship which ought not to entitle
those in whom it was exhibited to consideration. It is not apparent
how an adherence to the course thus announced carries with it the
consequences described. If in any degree the suggestion is worthy of
consideration, it is to be hoped that there may be a defense against
unjust suspension in the justice of the Executive.
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 improved thereby. Many applications for
suspension have been denied, and the 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 confirmations 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 confirmations
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.