III

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 partizan 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 ascendancy 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 partizanship as

an entrance to public employment; and though this branch of effort in

the public interest may well be still further extended, such extension

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 partizan 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 centers of partizan scheming. Party literature

favorable to the postmasters’ party, that never passed regularly

through the mails, was distributed through the post-offices as an item

of party service, and matter of a political character, passing through

the mails in the usual course 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 was tauntingly directed to

them by the postmaster; and in various other ways postmasters and

similar 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 especially 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,

by way of illustrating in a general way certain phases of pernicious

partizanship that seemed to me to deserve prompt and decisive

treatment. Some suspensions, however, were made on proof of downright

official malfeasance. Complaints against office-holders based on

personal transgression or partizan misconduct 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, while 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 nomination

to the Senate at its next session. Though, as we have already seen,

the law permitted suspensions by the President “in his discretion,” I

considered myself restrained 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. Among the officials

suspended there were 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 it had been in session

for three months, that of the nominations submitted to that body to

fill the places of suspended officials fifteen had been confirmed and

two rejected.

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, directed to the heads of the several departments having

supervision of the offices to which the nominations related, asking 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. As long as

such requests were made by committees I had no opportunity to discuss

the questions growing out of such 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 to committees

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 the 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

proper 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, all the

information of any description in the possession of the Executive or in

any of the departments, which would aid in determining the character

and fitness of those nominated in place of suspended officials, was

cheerfully and promptly furnished to the Senate or its committees 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 apparent 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 partizan

advantage by discrediting the professions of 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.

Up to this stage of the controversy, not one of the many requests made

for the reasons of suspensions or for the papers relating to them had

been sent from the Senate itself; 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 not only the Senate but 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 Senate having in the meantime convened in regular session,

the nomination of Burnett was sent to that body 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 decided at

this time to give another form to the effort the Senate itself was to

undertake to secure the “papers and information” which its Committee

had been unable to secure. In pursuance of this plan the following

resolution was adopted by the Senate in executive session on the 25th

of January, 1886:

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 had 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 Senate in executive session 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 could not 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 included in the demand of 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.

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