The military spirit, which failed in the effort to set aside a
fundamental law as if it were a transient order, was more successful at
the Executive Mansion, which at once assumed the character of military
head-quarters. To the dishonor of the civil service, and in total
disregard of precedent, the President surrounded himself with officers
of the Army, and substituted military forms for those of civil life,
detailing for this service members of his late staff. The earliest
public notice of this military occupation appeared in the “Daily
Morning Chronicle” of March 8, 1869, understood to be the official
organ of the Administration:--
“President Grant was not at the White House yesterday, but the
following members of his staff were occupying the Secretaries’
rooms and acting as such: Generals Babcock, Porter, Badeau, and
Dent.”
This is to be regarded not only in its strange blazonry of the
Presidential pretension, but also as the first apparition of that minor
_military ring_ in which the President has lived ever since.
Thus installed, Army officers became secretaries of the President,
delivering his messages to both Houses of Congress, and even
authenticating Presidential acts as if they were military orders. Here,
for instance, is an official communication:--
EXECUTIVE MANSION, Washington, D. C.,
March 15, 1869.
ROBERT MARTIN DOUGLAS, Esq.:
SIR,--You are hereby appointed Assistant Private Secretary to the
President, to date from the 15th March, 1869.
By order of the President,
HORACE PORTER,
_Brevet Brigadier-General, Secretary_.[123]
Mark the words, “By order of the President,” and then the signature,
“Horace Porter, Brevet Brigadier-General, Secretary.”
The Presidential pretension which I exhibit on the simple facts,
besides being of doubtful legality, to say the least, was of evil
example, demoralizing alike to the military and civil service, and
an undoubted reproach to republican institutions in that primary
principle, announced by Jefferson in his first Inaugural Address,
“the supremacy of the civil over the military authority.”[124] It
seemed only to remain that the President should sign his Messages,
“Commander-in-Chief of the Army of the United States.” Evidently a new
order of things had arrived.
Observe the mildness of my language, when I call this Presidential
pretension “of doubtful legality.” The law shall speak for itself.
Obviously it was the same for our military President as for his
predecessors, and it was recent also:--
“The President is hereby authorized to appoint a private secretary
at an annual salary of $3,500, an assistant secretary at an annual
salary of $2,500, a short-hand writer at an annual salary of
$2,500, a clerk of pardons at an annual salary of $2,000, and three
clerks of the fourth class.”[125]
It cannot be doubted that this provision was more than ample; for
Congress, by Act of July 20, 1868, repealed so much as authorized
a clerk of pardons, and also one of the three clerks of the fourth
class.[126] Therefore there could be no necessity for a levy of
soldiers to perform the duties of secretaries, and the conduct of the
President can be explained only by the supposition that he preferred
to be surrounded by Army officers rather than by civilians, continuing
in the Executive Mansion the traditions of head-quarters: all which,
though agreeable to him and illustrating his character, was an anomaly
and a scandal.
In extenuation of this indefensible pretension, we have been reminded
of two things: first, that according to the record Washington sent
his first message by General Knox,--when in fact General Knox held
no military office at that time, but was actually Secretary of War;
and, secondly, that the military officers now occupying the Executive
Mansion are detailed for this service without other salary than that of
their grade. As the Knox precedent is moonshine, the minor military
ring can be vindicated only as a “detail” for service in the Executive
Mansion.
Here again the law shall speak. By Act of Congress of March 3, 1863, it
is provided that “details to special service shall only be made with
the consent of the commanding officer of forces in the field”;[127] but
this, it will be seen, refers to a state of war. Congress, by Act of
July 16, 1866, authorized the President to “detail from the Army all
the officers and agents of this Bureau” [for the Relief of Freedmen and
Refugees];[128] also, by Act of July 28, 1866, to “detail” officers
of the Army, not exceeding twenty at any time, “to act as president,
superintendent, or professor” in certain colleges.[129] And then
again, by Act of July 15, 1870, it provided that “any retired officer
may, on his own application, be detailed to serve as professor in any
college.”[130] As there is no other statute authorizing details, this
exceptional transfer of Army officers to the Executive Mansion can be
maintained only on some undefined prerogative.
The Presidential pretension, which is continued to the present time,
is the more unnatural when it is considered that there are at least
three different statutes in which Congress has shown its purpose to
limit the employment of military officers in civil service. As long
ago as July 5, 1838, it was positively provided that no Army officers
should be separated from their regiments and corps “for employment on
civil works of internal improvement, or be allowed to engage in the
service of incorporated companies”; nor any line officer to be acting
paymaster or disbursing agent for the Indian Department, “if such
extra employment require that he be separated from his regiment or
company, or otherwise interfere with the performance of the military
duties proper.”[131] Obviously the will of Congress is here declared,
that officers should not be allowed to leave their posts for any
service which might _interfere with the performance of the military
duties proper_. This language is explicit. Then came the Act of March
30, 1868, which provides that “any officer of the Army or Navy of
the United States, who shall, after the passage of this Act, accept
or hold any appointment in the diplomatic or consular service of the
Government, shall be considered as having resigned his said office,
and the place held by him in the military or naval service shall be
deemed and taken to be vacant.”[132] To a considerate and circumspect
President, who recognized the law in its spirit as well as its letter,
this provision, especially when reinforced by the earlier statute,
would have been a rule of action in analogous cases, and therefore an
insurmountable obstacle to a pretension which takes Army officers from
their proper duties and makes them Presidential secretaries. A later
statute adds to the obstacle. By Act of Congress of July 15, 1870, it
is provided:--
“That it shall not be lawful for any officer of the Army of the
United States on the active list _to hold any civil office, whether
by election or appointment_; and any such officer _accepting or
exercising the functions of a civil office_ shall at once cease
to be an officer of the Army, and his commission shall be vacated
thereby.”[133]
It is difficult to imagine anything plainer than these words. No
Army officer not on the retired list can hold any civil office; and
then, to enforce the inhibition, it is provided that in “accepting or
exercising the functions” of such office the commission is vacated.
Now the Blue Book, which is our political almanac, has under the head
of “Executive Mansion” a list of “secretaries” and “clerks,” beginning
as follows: “Secretaries, General F. T. Dent, General Horace Porter,
General O. E. Babcock,” when, in fact, there are no such officers
authorized by law. Then follow the “Private Secretary,” “Assistant
Private Secretary,” and “Executive Clerks,” authorized by law, but
placed below those unauthorized. Nothing is said of being detailed for
this purpose. They are openly called “Secretaries,” which is a title of
office; and since it is at the Executive Mansion, it must be a civil
office; and yet, in defiance of law, these Army officers continue
to exercise its functions, and some of them enter the Senate with
messages from the President. The apology that they are “detailed” for
this service is vain; no authority can be shown for it. But how absurd
to suppose that a rule against the exercise of a civil office can be
evaded by a “detail”! If it may be done for three Army officers, why
not for three dozen? Nay, more, if the civil office of Secretary at
the Executive Mansion may be created without law, why not some other
civil office? And what is to hinder the President from surrounding
himself not only with secretaries, but with messengers, stewards, and
personal attendants, even a body-guard, all detailed from the Army?
Why may he not enlarge the military circle at the Executive Mansion
indefinitely? If the President can be justified in his present course,
there is no limit to his pretensions in open violation of the statute.
Here the Blue Book testifies again; for it records the names of the
“secretaries” in their proper places as Army officers,--thus presenting
them as holding two incompatible offices.
I dismiss this transaction as another instance of Presidential
pretension, which, in the interest of Republican Government, should be
arrested.
UNREPUBLICAN SUBORDINATION OF THE WAR DEPARTMENT TO THE
GENERAL-IN-CHIEF.
From the Executive Mansion pass now to the War Department, and there
we witness the same Presidential pretensions by which law, usage, and
correct principle are lost in the will of One Man. The supremacy of the
civil power over the military is typified in the Secretary of War, a
civilian, from whom Army officers receive orders. But this beautiful
rule, with its lesson to the military of subordination, was suddenly
set aside by our President, and the Secretary of War degraded to be
a clerk. The 5th of March witnessed a most important order from the
President, placing the Military Departments under officers of his
choice,--purporting to be signed by the Assistant Adjutant-General by
command of the General of the Army, but actually ignoring the Secretary
of War.[134] Three days later, March 8th, witnessed another order
professing to proceed from the President, whereby in express terms the
War Department was subordinated to the General-in-Chief, being William
T. Sherman, who at the time was promoted to that command. Here are the
words:
“The chiefs of staff corps, departments, and bureaus will report to
and act under the immediate orders of the General commanding the
Army.”[135]
This act of revolution, exalting the military power above the civil,
showed instant fruits in an order of the General, who, upon assuming
command, proceeded to place the several bureau officers of the War
Department upon his military staff,[136] so that for the time there
was a military dictatorship with the President at its head, not merely
in spirit but in actual form. By-and-by John A. Rawlins, a civilian by
education and a respecter of the Constitution, became Secretary of War,
and, though bound to the President by personal ties, he said, “Check
to the King.” By General Order, issued from the War Department March
26, 1869, and signed by the Secretary of War, the offensive order was
rescinded, and it was enjoined that “all official business which by
law or regulations requires the action of the President or Secretary
of War will be submitted by the chiefs of staff corps, departments,
and bureaus to the Secretary of War.”[137] Public report said that
this restoration of the civil power to its rightful supremacy was
not obtained without an intimation of resignation on the part of the
Secretary.