As soon as Cleveland was seated in the presidential chair, he had to
deal with a tremendous onslaught of office seekers. In ordinary business
affairs, a man responsible for general policy and management would
never be expected to fritter away his time and strength in receiving
applicants for employment. The fact that such servitude is imposed
upon the President of the United States shows that American political
arrangements are still rather barbaric, for such usages are more
suitable to some kinglet seated under a tree to receive the petitions of
his tribesmen than they are to a republican magistrate charged with the
welfare of millions of people distributed over a vast continent. Office
seekers apparently regard themselves as a privileged class with a right
of personal access to the President, and any appearances of aloofness or
reserve on his part gives sharp offense. The exceptional force of
such claims of privilege in the United States may be attributed to the
participation which members of Congress have acquired in the appointing
power. The system thus created imposes upon the President the duties
of an employment agent, and at the same time engages Congressmen in
continual occupation as office brokers. The President cannot deny
himself to Congressmen, since he is dependent upon their favor for
opportunity to get legislative consideration for his measures.
It was inevitable that numerous changes in office should take place
when the Democratic party came into power, after being excluded for
twenty-four years. It may be admitted that, in a sound constitutional
system, a change of management in the public business would not vacate
all offices any more than in private business, but would affect only
such leading positions as are responsible for policy and discipline.
Such a sensible system, however, had existed only in the early days of
the republic and at the time of Cleveland's accession to office federal
offices were generally used as party barracks. The situation which
confronted President Cleveland he thus described in later years:
"In numerous instances the post-offices were made headquarters for local
party committees and organizations and the centers of partisan scheming.
Party literature favorable to the postmaster's 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 votes, and by other practices
inviting avoidable and dangerous collisions between the white and
colored population."*
* Cleveland, "Presidential Problems," pp. 42-43.
The Administration began its career in March, 1885. The Senate did not
convene until December. Meanwhile, removals and appointments went on
in the public service, the total for ten months being six hundred and
forty-three which was thirty-seven less than the number of removals made
by President Grant in seven weeks, in 1869.
In obedience to the statute of 1869, President Cleveland sent in all the
recess appointments within thirty days after the opening of the
session. They were referred to various committees according to the long
established custom of the Senate, but the Senate moved so slowly
that three months after the opening of the session, only seventeen
nominations had been considered, fifteen of which the Senate confirmed.
Meanwhile, the Senate had raised an issue which the President met with
a force and a directness probably unexpected. Among the recess
appointments was one to the office of District Attorney for the Southern
District of Alabama, in place of an officer who had been suspended in
July 1885, but whose term of office expired by limitation on December
20, 1885. Therefore, at the time the Senate took up the case, the Tenure
of Office Act did not apply to it, and the only question actually
open was whether the acting officer should be confirmed or rejected.
Nevertheless, the disposition to assert control over executive action
was so strong that the Senate drifted into a constitutional struggle
over a case that did not then involve the question of the President's
discretionary power of removal from office, which was really the point
at issue.
On December 26, 1885, the Judiciary Committee notified the
Attorney-General to transmit "all papers and information in the
possession of the Department" regarding both the nomination and "the
suspension and proposed removal from office" of the former incumbent. On
January 11, 1886, the Attorney-General sent to the Committee the papers
bearing upon the nomination, but withheld those touching the removal
on the ground that he had "received no direction from the President in
relation to their transmission." The matter was debated by the Senate
in executive session and on January 25, 1886, a resolution was
adopted which was authoritative in its tone and which directed the
Attorney-General to transmit copies of all documents and papers in
relation to the conduct of the office of District Attorney for the
Southern District of Alabama since January 1, 1885. Within three days,
Attorney-General Garland responded that he had already transmitted all
papers relating to the nomination; but with regard to the demand for
papers exclusively relating to the suspension of the former incumbent he
was directed by the President to say "that it is not considered that the
public interests will be promoted by a compliance."
The response of the Attorney-General was referred to the Judiciary
Committee which, on the 18th of February, made an elaborate report
exhibiting the issue as one which involved the right of Congress to
obtain information. It urged 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." The report, which was signed only by the Republican
members of the Committee, was an adroit partisan performance, invoking
traditional constitutional principles in behalf of congressional
privilege. A distinct and emphatic assertion of the prerogative of the
Senate was made, however, in resolutions recommended to the Senate for
adoption. Those resolutions censured the Attorney-General and declared
it to be the duty of the Senate "to refuse its advice and consent
to proposed removals of officers" when papers relating to them "are
withheld by the Executive or any head of a department."
On the 2nd of March, a minority report was submitted, making the point
of which the cogency was obvious, that inasmuch as the term of the
official concerning whose suspension the Senate undertook to inquire had
already expired by legal limitation, the only object in pressing for the
papers in his case must be to review an act of the President which
was no longer within the jurisdiction of the Senate, even if the
constitutionality of the Tenure of Office Act should be granted.
The report also showed that of the precedents cited in behalf of the
majority's contention, the applicability could be maintained only of
those which were supplied by cases arising since 1867, before which time
the right of the President to remove officers at his own discretion was
fully conceded.
The controversy had so far followed the ordinary lines of partisan
contention in Congress, which public opinion was accustomed to regard
with contemptuous indifference as mere sparring for points in the
electioneering game. President Cleveland now intervened in a way which
riveted the attention of the nation upon the issue. Ever since the
memorable struggle which began when the Senate censured President
Jackson and did not end until that censure was expunged, the Senate
had been chary of a direct encounter with the President. Although the
response of the Attorney-General stated that he was acting under the
direction of the President, the pending resolutions avoided any mention
of the President but expressed "condemnation of the refusal of the
Attorney-General under whatever influence, to send to the Senate" the
required papers. The logical implication was that, when the orders
of the President and the Senate conflicted, it was the duty of the
Attorney-General to obey the Senate. This raised an issue which
President Cleveland met by sending to the Senate his message of March
1, 1886, which has taken a high rank among American constitutional
documents. It is strong in its logic, dignified in its tone, terse,
direct, and forceful in its diction.
Cleveland's message opened with the statement that "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 documents 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 papers touching
the conduct of such officials." The President then observed that "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." Further on, he clinched this admission of full
responsibility by declaring that "the letter of the Attorney-General in
response to the resolution of the Senate... was written at my suggestion
and by my direction."
This statement made clear in the sight of the nation that the true issue
was between the President and the Senate. The strength of the Senate's
position lay in its claim to the right of access to the records
of public offices "created by laws enacted by themselves." The
counterstroke of the President was one of the most effective passages
of his message in its effect upon public opinion. "I do not suppose,"
he said, "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 enacted 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 President asserted that, as a matter of fact, no official papers
on file in the departments had been withheld. "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 especially 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 point made by the President, with
sharp emphasis, was that there was nothing in his action which could be
construed as a refusal of access to official records; what he did refuse
to acknowledge was the right of the Senate to inquire into his motives
and to exact from him a disclosure of the facts, circumstances, and
sources of information that prompted his action. The materials upon
which his judgment was formed were of a varied character. "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." If such matter were to be considered
public records and subject to the inspection of the Senate, the
President would thereby incur "the risk of being charged with making a
suspension from office upon evidence which was not even considered."
Issue as to the status of such documents was joined by the President
in the sharpest possible way by the declaration: "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."
Moreover, there were cases in which action was prompted by oral
communications which did not go on record in any form. As to this,
Cleveland observed, "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." Nor were such
representations confined to members of his own party for, said he, "I
recall a few suspensions which bear the approval of individual members
identified politically with the majority in the Senate." The message
then reviewed the legislative history of the Tenure of Office Act and
questioned its constitutionality. The position which the President had
taken and would maintain was exactly defined by this vigorous statement
in his message:
"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 judgement 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."
There is a ringing quality in the style of this message not generally
characteristic of President Cleveland's state papers. It evoked as
ringing a response from public opinion, and this effect was heightened
by a tactless allusion to the message made at this time in the Senate.
In moving a reference of the message to the Judiciary Committee, its
chairman, Senator Edmunds of Vermont, remarked that the presidential
message brought vividly to his mind "the communication of King Charles I
to the Parliament, telling them what, in conducting their affairs, they
ought to do and ought not to do." The historical reference, however, had
an application which Senator Edmunds did not foresee. It brought vividly
to mind what the people of England had endured from a factional tyranny
so relentless that the nation was delighted when Oliver Cromwell turned
Parliament out of doors. It is an interesting coincidence that the
Cleveland era was marked by what in the book trade was known as the
Cromwell boom. Another unfortunate remark made by Senator Edmunds was
that it was the first time "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 message on
the state of the Union which the Constitution commands him to make from
time to time." The effect of this statement, however, was to stir up
recollections of President Jackson's message of protest against the
censure of the Senate. The principle laid down by Jackson in his message
of April 15, 1834, was that "the President is the direct representative
of the American people," whereas the Senate is "a body not directly
amenable to the people." However assailable this statement may be
from the standpoint of traditional legal theory, it is indubitably the
principle to which American politics conform in practice. The people
instinctively expect the President to guard their interests against
congressional machinations.
There was a prevalent belief that the Senate's profession of motives,
of constitutional propriety, was insincere and that the position it had
assumed would never have been thought of had the Republican candidate
for President been elected. A feeling that the Senate was not playing
the game fairly to refuse the Democrats their innings was felt even
among Senator Edmunds' own adherents. A spirit of comity traversing
party lines is very noticeable in the intercourse of professional
politicians. Their willingness to help each other out is often
manifested, particularly in struggles involving control of party
machinery. Indeed, a system of ring rule in a governing party seems to
have for its natural concomitant the formation of a similar ring in the
regular opposition, and the two rings maintain friendly relations behind
the forms of party antagonism. The situation is very similar to that
which exists between opposing counsel in suits at law, where the
contentions at the trial table may seem to be full of animosity and may
indeed at times really develop personal enmity, but which as a general
rule are merely for effect and do not at all hinder cooperation in
matters pertaining to their common professional interest.
The attitude taken by the Senate in its opposition to President
Cleveland jarred upon this sense of professional comity, and it was
very noticeable that in the midst of the struggle some questionable
nominations of notorious machine politicians were confirmed by
the Senate. It may have been that a desire to discredit the reform
professions of the Administration contributed to this result, but the
effect was disadvantageous to the Senate. "The Nation" on March 11,
1886, in a powerful article reviewing the controversy observed: "There
is not the smallest reason for believing that, if the Senate won, it
would use its victory in any way for the maintenance or promotion of
reform. In truth, in the very midst of the controversy, it confirmed the
nomination of one of Baltimore's political scamps." It is certainly true
that the advising power of the Senate has never exerted a corrective
influence upon appointments to office; its constant tendency is towards
a system of apportionment which concedes the right of the President
to certain personal appointments and asserts the reciprocal right of
Congressmen to their individual quotas.
As a result of these various influences, the position assumed by the
Republicans under the lead of Senator Edmunds was seriously weakened.
When the resolutions of censure were put to the vote on the 26th of
March, that condemning the refusal of the Attorney-General to produce
the papers was adopted by thirty-two ayes to twenty-six nays--a strict
party vote; but the resolution declaring it to be the duty of the
Senate in all such cases to refuse its consent to removals of suspended
officials was adopted by a majority of only one vote, and two Republican
Senators voted with the Democrats. The result was, in effect, a defeat
for the Republican leaders, and they wisely decided to withdraw from the
position which they had been holding. Shortly after the passage of the
resolutions, the Senate confirmed the nomination over which the contest
started, and thereafter the right of the President to make removals at
his own discretion was not questioned.
This retreat of the Republican leaders was accompanied, however, by a
new development in political tactics, which from the standpoint of party
advantage, was ingeniously conceived. It was now held that, inasmuch as
the President had avowed attachment to the principle of tenure of
office during good behavior, his action in suspending officers therefore
implied delinquency in their character or conduct from which they should
be exonerated in case the removal was really on partisan grounds. In
reporting upon nominations, therefore, Senate committees adopted the
practice of noting that there were no charges of misconduct against the
previous incumbents and that the suspension was on account of "political
reasons." As these proceedings took place in executive session, which is
held behind closed doors, reports of this character would not ordinarily
reach the public, but the Senate now voted to remove the injunction of
secrecy, and the reports were published. The manifest object of these
maneuvers was to exhibit the President as acting upon the "spoils
system" of distributing offices. The President's position was that he
was not accountable to the Senate in such matters. In his message of the
1st of March he said: "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 judgement."
While this contest was still going on, President Cleveland had to
encounter another attempt of the Senate to take his authority out of his
hands. The history of American diplomacy during this period belongs to
another volume in this series,* but a diplomatic question was drawn into
the struggle between the President and the Senate in such a way that it
requires mention here. Shortly after President Cleveland took office,
the fishery articles of the Treaty of Washington had terminated. In his
first annual message to Congress, on December 8, 1885, he recommended
the appointment of a commission to settle with a similar commission
from Great Britain "the entire question of the fishery rights of the two
governments and their respective citizens on the coasts of the United
States and British North America." But this sensible advice was
denounced as weak and cowardly. Oratory of the kind known as "twisting
the lion's tail" resounded in Congress. Claims were made of natural
right to the use of Canadian waters which would not have been indulged
for a moment in respect of the territorial waters of the United States.
For instance, it was held that a bay over six miles between headlands
gave free ingress so long as vessels kept three miles from shore--a
doctrine which, if applied to Long Island Sound, Delaware Bay, or
Chesapeake Bay, would have impaired our national jurisdiction over those
waters. Senator Frye of Maine took the lead in a rub-a-dub agitation in
the presence of which some Democratic Senators showed marked timidity.
The administration of public services by congressional committees has
the incurable defect that it reflects the particular interests and
attachments of the committeemen. Presidential administration is
so circumstanced that it tends to be nationally minded; committee
administration, just as naturally, tends to be locally minded. Hence,
Senator Frye was able to report from the committee on foreign relations
a resolution declaring that a commission "charged with the consideration
and settlement of the fishery rights... ought not to be provided for by
Congress." Such was the attitude of the Senate towards the President
on this question, that on April 13, 1886, this arrogant resolution was
adopted by thirty-five ayes to 10 nays. A group of Eastern Democrats who
were in a position to be affected by the longshore vote, joined with the
Republicans in voting for the resolution, and among them Senator Gorman
of Maryland, national chairman of the Democratic party.
* See "The Path of Empire," by Carl Russell Fish (in "The
Chronicles of America").
President Cleveland was no more affected by this Senate resolution than
he had been by their other resolutions attacking his authority. He went
ahead with his negotiations and concluded treaty arrangements which the
Senate, of course, rejected; but, as that result had been anticipated,
a modus vivendi which had been arranged by executive agreements between
the two countries went into effect, regardless of the Senate's
attitude. The case is a signal instance of the substitution of executive
arrangements for treaty engagements which has since then been such a
marked tendency in the conduct of the foreign relations of the United
States.
A consideration which worked steadily against the Senate in its attacks
upon the President, was the prevalent belief that the Tenure of Office
Act was unconstitutional in its nature and mischievous in its effects.
Although Senator Edmunds had been able to obtain a show of solid party
support, it eventually became known that he stood almost alone in
the Judiciary Committee in his approval of that act. The case is an
instructive revelation of the arbitrary power conferred by the committee
system. Members are loath to antagonize a party chairman to whom their
own bills must go for approval. Finally, Senator Hoar dared to take
the risk, and with such success that on June 21, 1886, the committee
reported a bill for the complete repeal of the Tenure of Office Act, the
chairman--Senator Edmunds--alone dissenting. When the bill was taken up
for consideration, Senator Hoar remarked that he did not believe there
were five members of the Senate who really believed in the propriety of
that act. "It did not seem to me to be quite becoming," he explained,
"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."
Although delicately put, this statement was in effect a repudiation of
the party leadership of Edmunds and in the debate which ensued, not
a single Senator came to his support. He stood alone in upholding
the propriety of the Tenure of Office Act, arguing that without its
restraint "the whole real power and patronage of this government was
vested solely in the hands of a President of the United States and
his will was the law." He held that the consent of the Senate to
appointments was an insufficient check if the President were allowed to
remove at his own will and pleasure. He was answered by his own party
colleagues and committee associates, Hoar and Evarts. Senator Hoar went
so far as to say that in his opinion there was not a single person in
this country, in Congress or out of Congress, with the exception of the
Senator from Vermont, who did not believe that a necessary step towards
reform "must be to impose the responsibility of the Civil Service
upon the Executive." Senator Evarts argued that the existing law was
incompatible with executive responsibility, for "it placed the Executive
power in a strait-jacket." He then pointed out that the President had
not the legal right to remove a member of his own Cabinet and asked, "Is
not the President imprisoned if his Cabinet are to be his masters by
the will of the Senate?" The debate was almost wholly confined to the
Republican side of the Senate, for only one Democrat took any part in
it. Senator Edmunds was the sole spokesman on his side, but he fought
hard against defeat and delivered several elaborate arguments of the
"check and balance" type. When the final vote took place, only three
Republicans actually voted for the repealing bill, but there were
absentees whose votes would have been cast the same way had they been
needed to pass the bill.*
* The bill was passed by thirty yeas and twenty-two nays, and
among the nays were several Senators who while members of the House had
voted for repeal. The repeal bill passed the House by a vote of 172 to
67, and became law on March 3, 1887
President Cleveland had achieved a brilliant victory. In the joust
between him and Edmunds, in lists of his adversary's own contriving,
he had held victoriously to his course while his opponent had been
unhorsed. The granite composure of Senator Edmunds' habitual mien did
not permit any sign of disturbance to break through, but his position in
the Senate was never again what it had been, and eventually he resigned
his seat before the expiration of his term. He retired from public life
in 1891, at the age of sixty-three.
From the standpoint of the public welfare, it is to be noted that
the issue turned on the maintenance of privilege rather than on the
discharge of responsibility. President Cleveland contended that he was
not responsible to the Senate but to the people for the way in which he
exercised his trusteeship. But the phrase "the people" is an abstraction
which has no force save as it receives concrete form in appropriate
institutions. It is the essential characteristic of a sound
constitutional system that it supplies such institutions, so as to
put executive authority on its good behavior by steady pressure of
responsibility through full publicity and detailed criticism. This
result, the Senate fails to secure because it keeps trying to invade
executive authority, and to seize the appointing power instead of
seeking to enforce executive responsibility. This point was forcibly
put by "The Nation" when it said: "There is only one way of securing
the presentation to the Senate of all the papers and documents which
influence the President in making either removals or appointments, and
that is a simple way, and one wholly within the reach of the Senators.
They have only to alter their rules, and make executive sessions as
public as legislative sessions, in order to drive the President not only
into making no nominations for which he cannot give creditable reasons,
but into furnishing every creditable reason for the nomination which he
may have in his possession."*
* "The Nation," March 11, 1888.
During the struggle, an effort was made to bring about this very reform,
under the lead of a Republican Senator, Orville H. Platt of Connecticut.
On April 13, 1886, he delivered a carefully prepared speech, based upon
much research, in which he showed that the rule of secrecy in executive
sessions could not claim the sanction of the founders of the government.
It is true that the Senate originally sat with closed doors for all
sorts of business, but it discontinued the practice after a few years.
It was not until 1800, six years after the practice of public sessions
had been adopted, that any rule of secrecy was applied to business
transacted in executive sessions. Senator Platt's motion to repeal
this rule met with determined opposition on both sides of the chamber,
coupled with an indisposition to discuss the matter. When it came up for
consideration on the 15th of December, Senator Hoar moved to lay it on
the table, which was done by a vote of thirty-three to twenty-one. Such
prominent Democratic leaders as Gorman of Maryland and Vest of Missouri
voted with Republican leaders like Evarts, Edmunds, Allison, and
Harrison, in favor of Hoar's motion, while Hoar's own colleague, Senator
Dawes, together with such eminent Republicans as Frye of Maine, Hawley
of Connecticut, and Sherman of Ohio voted with Platt. Thus, any party
responsibility for the result was successfully avoided, and an issue of
great constitutional importance was laid away without any apparent stir
of popular sentiment.