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 rights 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 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
his action. It was also manifest if it was desired to deal with this
issue directly and fairly, disembarrassed by any finesse for position,
it could at any time 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 the 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
President’s 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 good faith of that body in the controversy
should be assumed, to reject or ignore all nominations made to succeed
suspended officers unless the documents and papers upon which the
suspension was based were furnished and the Senate was 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 its essential features entitled it
to citation as an authoritative precedent; and that neither the
Constitution nor the existing law afforded any justification for the
action of the Senate in the promises.
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 the complete and absolute responsibility of the President
for all suspensions and the fact that the Executive 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 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 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 supplemented by the following concession of
the independent and unlimited 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, this
issue was thus distinctly invited at the close of the message:
Every pledge 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 wilfully 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 least 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, because
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. The question of suspension or removal was therefore
eliminated from the case and the discussion as related to the person
suspended continued as a sort of post-mortem proceeding. Shortly
after the resolutions of the committee were passed, the same person
who superseded the suspended and defunct 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.
V
I have thus attempted, after fourteen years of absolute calm, to
recount the prominent details of the strife; and I hope that 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
committee’s majority report, seven dealt more or less prominently
with the President’s Civil Service reform professions and his pledges
against the removal of officials on purely partizan 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 partizan 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 partizan 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 President’s 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
partizanship,” or for a like reason, differently expressed, and that
nothing was alleged against them affecting their personal character.
If the terms thus used by the committee in designating causes for
suspension mean that the persons suspended were guilty of offensive
partizanship 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 partizan 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.
It is worth recalling, when referring to committee reports on
nomination, 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 partizan 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, an unfavorable 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, after sharp and irritating discussion, 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 afterward 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 pretense 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 divide with others, and invested with powers, not to be
surrendered, but to be used, under the guidance of patriotic intention
and an unclouded conscience.