WASHINGTON, _January 31, 1843_.
_To the House of Representatives_:
At the last session of Congress a resolution was passed by the House of
Representatives requesting me to cause to be communicated to the House
"the several reports made to the Department of War by Lieutenant-Colonel
Hitchcock relative to the affairs of the Cherokee Indians, together with
all information communicated by him concerning the frauds he was charged
to investigate; also all facts in the possession of the Executive
relating to the subject."
A resolution of the same import had been passed by the House of
Representatives on the 18th of May last, requiring the Secretary of
War to communicate to the House the same reports and matters. After
consultation with me and under my directions, the Secretary of War
informed the House that the reports referred to relative to the affairs
of the Cherokees contained information and suggestions in reference
to the matters which it was supposed would become the subject of a
negotiation between that Department and the delegates of the Cherokee
Nation. It was stated by him that the nature and subject of the report,
in the opinion of the President and the Department, rendered its
publication at that time inconsistent with the public interest. The
negotiation referred to subsequently took place, and embraced the
matters upon which Lieutenant-Colonel Hitchcock had communicated his
views. That negotiation terminated without the conclusion of any
arrangement. It may, and in all probability will, be renewed. All the
information communicated by Lieutenant-Colonel Hitchcock respecting the
Cherokees--their condition as a nation and their relations to other
tribes--is herewith transmitted. But his suggestions and projects
respecting the anticipated propositions of the delegates and his views
of their personal characters can not in any event aid the legislation of
Congress, and in my opinion the promulgation of them would be unfair and
unjust to him and inconsistent with the public interest, and they are
therefore not transmitted.
The Secretary of War further stated in his answer to the resolution that
the other report referred to in it, relating to the alleged frauds which
Lieutenant-Colonel Hitchcock was charged to investigate, contained such
information as he (Colonel Hitchcock) was enabled to obtain by _ex
parte_ inquiries of various persons whose statements were necessarily
without the sanction of an oath, and which the persons implicated had
had no opportunity to contradict or explain. He expressed the opinion
that to promulgate those statements at that time would be grossly unjust
to those persons and would be calculated to defeat rather than promote
the objects of the inquiry, and he remarked that sufficient opportunity
had not been given to the Department to pursue the investigation or to
call upon the parties affected for explanations or to determine on the
measures proper to be adopted. And he hoped these reasons would be
satisfactory for not transmitting to the House at that time the reports
referred to in its resolution.
It would appear from the report of the Committee on Indian Affairs, to
whom the communication of the Secretary of War was referred, and which
report has been transmitted to me, together with the resolutions of the
House adopted on the recommendation of the committee, and from those
resolutions, that the reasons given by the Secretary were not deemed
satisfactory and that the House of Representatives claims the right to
demand from the Executive and heads of Departments such information as
maybe in their possession relating to "subjects of the deliberations
of the House and within the sphere of its legitimate powers," and that
in the opinion of the House the reports and facts called for by its
resolution of the 18th of May related to subjects of its deliberations
and were within the sphere of its legitimate powers, and should have
been communicated.
If by the assertion of this claim of right to call upon the Executive
for all the information in its possession relating to any subject of the
deliberation of the House, and within the sphere of its legitimate
powers, it is intended to assert also that the Executive is bound to
comply with such call without the authority to exercise any discretion
on its part in reference to the nature of the information required or to
the interests of the country or of individuals to be affected by such
compliance, then do I feel bound, in the discharge of the high duty
imposed upon me "to preserve, protect, and defend the Constitution of
the United States," to declare in the most respectful manner my entire
dissent from such a proposition. The instrument from which the several
departments of the Government derive their authority makes each
independent of the other in the discharge of their respective functions.
The injunction of the Constitution that the President "shall take care
that the laws be faithfully executed" necessarily confers an authority
commensurate with the obligation imposed to inquire into the manner in
which all public agents perform the duties assigned to them by law. To
be effective these inquiries must often be confidential. They may result
in the collection of truth or of falsehood, or they may be incomplete
and may require further prosecution. To maintain that the President
can exercise no discretion as to the time in which the matters thus
collected shall be promulgated or in respect to the character of
the information obtained would deprive him at once of the means of
performing one of the most salutary duties of his office. An inquiry
might be arrested at its first stage and the officers whose conduct
demanded investigation may be enabled to elude or defeat it. To require
from the Executive the transfer of this discretion to a coordinate
branch of the Government is equivalent to the denial of its possession
by him and would render him dependent upon that branch in the
performance of a duty purely executive.
Nor can it be a sound position that all papers, documents, and
information of every description which may happen by any means to come
into the possession of the President or of the heads of Departments must
necessarily be subject to the call of the House of Representatives
_merely_ because they relate to a subject of the deliberations of the
House, although that subject may be within the sphere of its legitimate
powers. It can not be that the only test is whether the information
relates to a legitimate subject of deliberation. The Executive
Departments and the citizens of this country have their rights and
duties as well as the House of Representatives, and the maxim that the
rights of one person or body are to be so exercised as not to impair
those of others is applicable in its fullest extent to this question.
Impertinence or malignity may seek to make the Executive Departments the
means of incalculable and irremediable injury to innocent parties by
throwing into them libels most foul and atrocious. Shall there be no
discretionary authority permitted to refuse to become the instruments
of such malevolence?
And although information comes through a proper channel to an executive
officer it may often be of a character to forbid its being made public.
The officer charged with a confidential inquiry, and who reports its
result under the pledge of confidence which his appointment implies,
ought not to be exposed individually to the resentment of those whose
conduct may be impugned by the information he collects. The knowledge
that such is to be the consequence will inevitably prevent the
performance of duties of that character, and thus the Government will
be deprived of an important means of investigating the conduct of its
agents.
It is certainly no new doctrine in the halls of judicature or of
legislation that certain communications and papers are privileged, and
that the general authority to compel testimony must give way in certain
cases to the paramount rights of individuals or of the Government. Thus
no man can be compelled to accuse himself, to answer any question that
tends to render him infamous, or to produce his own private papers
on any occasion. The communications of a client to his counsel and
the admissions made at the confessional in the course of religious
discipline are privileged communications. In the courts of that country
from which we derive our great principles of individual liberty and the
rules of evidence it is well settled--and the doctrine has been fully
recognized in this country--that a minister of the Crown or the head of
a department can not be compelled to produce any papers or disclose any
transactions relating to the executive functions of the Government which
he declares are confidential or such as the public interest requires
should not be divulged; and the persons who have been the channels of
communication to officers of the State are in like manner protected
from the disclosure of their names. Other instances of privileged
communications might be enumerated if it were deemed necessary. These
principles are as applicable to evidence sought by a legislature as
to that required by a court.
The practice of the Government since its foundation has sanctioned the
principle that there must necessarily be a discretionary authority in
reference to the nature of the information called for by either House
of Congress.
The authority was claimed and exercised by General Washington in 1796.
In 1825 President Monroe declined compliance with a resolution of the
House of Representatives calling for the correspondence between the
Executive Departments of this Government and the officers of the United
States Navy and others at or near the ports of South America on the
Pacific Ocean. In a communication made by the Secretary of War in 1832
to the Committee of the House on the Public Lands, by direction of
President Jackson, he denies the obligation of the Executive to furnish
the information called for and maintains the authority of the President
to exercise a sound discretion in complying with calls of that
description by the House of Representatives or its committees. Without
multiplying other instances, it is not deemed improper to refer to the
refusal of the President at the last session of the present Congress to
comply with a resolution of the House of Representatives calling for
the names of the members of Congress who had applied for offices. As no
further notice was taken in any form of this refusal, it would seem to
be a fair inference that the House itself admitted that there were cases
in which the President had a discretionary authority in respect to the
transmission of information in the possession of any of the Executive
Departments.
Apprehensive that silence under the claim supposed to be set up in the
resolutions of the House of Representatives under consideration might be
construed as an acquiescence in its soundness, I have deemed it due to
the great importance of the subject to state my views, that a compliance
in part with the resolution may not be deemed a surrender of a necessary
authority of the Executive.
Many of the reasons which existed at the date of the report of the
Secretary of War of June 1, 1842, for then declining to transmit the
report of Lieutenant-Colonel Hitchcock concerning the frauds which he
was charged to investigate have ceased to operate. It has been found
wholly impracticable to pursue the investigation in consequence of the
death and removal out of the country of those who would be called upon
to testify, and in consequence of the want of adequate authority or
means to render it effectual. It could not be conducted without expense.
Congress at its last session prohibited the payment of any account
or charge whatever growing out of or in any way connected with any
commission or inquiry, except military and naval courts-martial and
courts of inquiry, unless special appropriations should be made for the
payment of such accounts and charges. Of the policy of that provision of
law it does not become me to speak, except to say that the institution
of inquiries into the conduct of public agents, however urgent the
necessity for such inquiry may be, is thereby virtually denied to the
Executive, and that if evils of magnitude shall arise in consequence
of the law I take to myself no portion of the responsibility.
In relation to the propriety of directing prosecutions against the
contractors to furnish Indians rations who are charged with improper
conduct, a correspondence has been had between the War Department and
the Solicitor of the Treasury, which is herewith transmitted in a
conviction that such prosecution would be entirely ineffectual.
Under these circumstances I have thought proper to direct that
the report of Lieutenant-Colonel Hitchcock concerning the frauds
which he was charged to investigate be transmitted to the House of
Representatives, and it accordingly accompanies this message. At
the same time, I have to request the House to consider it so far
confidential as not to direct its publication until the appropriate
committee shall have examined it and expressed their opinion whether
a just regard to the character and rights of persons apparently
implicated, but who have not had an opportunity to meet the imputations
on them, does not require that portions at least of the report should
not at present be printed.
This course is adopted by me from a desire to render justice to all and
at the same time avoid even the appearance of a desire to screen any,
and also to prevent the exaggerated estimate of the importance of the
information which is likely to be made from the mere fact of its being
withheld.
The resolution of the House also calls for "all facts in the possession
of the Executive, from any source, relating to the subject." There are
two subjects specified in the resolution--one "relative to the affairs
of the Cherokee Indians," and another "concerning the frauds he
[Lieutenant-Colonel Hitchcock] was charged to investigate."
All the papers in the War Department or its bureaus relating to the
affairs of the Cherokee Indians, it is believed, have been from time
to time communicated to Congress and are contained in the printed
documents, or are now transmitted, with the exception of those portions
of Lieutenant-Colonel Hitchcock's report hereinbefore mentioned, and
excepting the correspondence with the Cherokee delegates in the
negotiations which took place during the last summer, which are not
supposed to be within the intent of the resolution of the House. For
the same reason a memorial from the Old Settlers, or Western Cherokees,
as they term themselves, recently presented, is not transmitted. If
these or any other public documents should be desired by the House,
a specification of them will enable me to cause them to be furnished
if it should be found proper.
All the papers in the War Office or its bureaus known or supposed to
have any relation to the alleged frauds which Lieutenant-Colonel
Hitchcock was charged to investigate are herewith transmitted.