Chapter 10

I transmit herewith a communication of 25th instant from the Secretary of the Interior, submitting, with accompanying papers, the draft of a proposed amendment to the first section of the act ratifying an agreement with the Crow Indians in Montana, approved April 11, 1882, requested by said Indians, for the purpose of increasing the amount of the annual payments under said agreement and reducing the number thereof, in order that sufficient means may be provided for establishing them on their individual allotments.

The matter is presented for the consideration and action of Congress.

GROVER CLEVELAND.

EXECUTIVE MANSION, _Washington, February 4, 1886_.

_To the Senate_:

By its resolution in executive session of March 18, 1885, the Senate advised and consented to the ratification of the convention concluded November 12, 1884, between the United States of America and the United States of Mexico, touching the boundary line between the two countries where it follows the bed of the Rio Grande and the Rio Gila.

The ratifications could not, however, be exchanged between the two contracting parties and the convention proclaimed until after it had received the constitutional sanction of the Government of Mexico, whose Congress but recently convened.

In a note to the Secretary of State of December 26, 1885, Mr. Matias Romero, the minister of Mexico here, advises him of a decree issued by the Mexican Senate in its session of December 11 last, approving, with certain modifications, the convention in question:

"The modifications made in the said treaty by the Mexican Senate are not essential," says Mr. Romero, "since they consist mainly in the rectification of the mistake made when the Gila River was mentioned as a part of the boundary line, the Colorado River being omitted, and in the correction of an error in the Spanish translation."

That the Senate may have the matter fully before it, I herewith transmit a copy of Mr. Romero's note of December 26, 1885, with its inclosure, and return the convention in the original for such further consideration and direction as the Senate in its constitutional prerogative may deem necessary and proper.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 4, 1886_.

THE PRESIDENT OF THE SENATE PRO TEMPORE.

SIR: In response to the Senate resolution dated January 5, 1886--

That the Secretary of the Interior be, and hereby is, directed to communicate to the Senate a copy of each report made by the Government directors of the Union Pacific Railroad Company from date of first appointment of such directors to the present time--

I transmit herewith a communication from the Secretary of the Interior, dated the 2d instant, with the copies required.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 4, 1886_.

THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.

SIR: In response to House resolution of January 27, 1886--

That the Secretary of the Interior be, and is hereby, requested to furnish this House with copies of any and all contracts or leases which are to be found on file in said Department between the Southern Pacific Company and any and every railroad or railroads to which land grants were made, or which received any subsidies from the United States; also a copy of the charter of incorporation of the Southern Pacific Company; also all and every contract or contracts on file between the Pacific Steamship Company and any and every land grant or subsidized railroad company or companies--

I transmit herewith a communication from the Secretary of the Interior, dated the 2d instant, inclosing the copies required.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 4, 1886_.

_To the Senate and House of Representatives_:

I transmit herewith a communication of 3d instant from the Secretary of the Interior, submitting, with accompanying papers, a draft of a bill authorizing the use of certain funds belonging to the Miami Indians in Indian Territory, proceeds of sales of their lands, for the purpose of relieving their present pressing necessities.

The matter is presented for the consideration and action of Congress.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 8, 1886_.

_To the Senate and House of Representatives_:

I transmit herewith a letter from the Secretary of the Interior, dated 5th instant, inclosing the recommendation of the Commissioner of Indian Affairs for the insertion in the act making appropriations for the current and contingent expenses of the Indian Department for the year ending June 30, 1887, of an item providing for an agent for the Winnebago Indians in Wisconsin, at a salary of $1,500 per annum.

The matter is respectfully submitted for the consideration and action of Congress.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 8, 1886_.

THE PRESIDENT OF THE SENATE PRO TEMPORE.

SIR: In response to Senate resolution of January 7, 1886--

That the Secretary of the Interior be, and hereby is, directed to communicate to the Senate whether any surveys of the public lands have been made within the last two years in the State of Nebraska; whether there are any unsurveyed public lands within said State; also what recommendations have been made within the last three years by the surveyors-general of said district as to the discontinuance of said office, and whether it is advisable that the office of surveyor-general of said district should cease and be discontinued under the provisions of section 2218 of the Revised Statutes of the United States--

I transmit herewith a communication from the Secretary of the Interior, dated the 3d instant, inclosing the information desired.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 15, 1886_.

_To the Senate and House of Representatives_:

I transmit herewith, for the consideration of Congress, a communication, under date of the 9th instant, from the Secretary of the Interior, and the accompanying last annual report of the Government directors of the Union Pacific Railway Company.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 15, 1886_.

_To the Senate and House of Representatives_:

I transmit herewith a communication of the 12th instant from the Secretary of the Interior, submitting, with accompanying papers, the draft of a bill prepared by the Commissioner of Indian Affairs to amend the third section of the act of March 3, 1885, "to provide for the sale of the Sac and Fox and Iowa Indian reservations in the States of Nebraska and Kansas, and for other purposes."

The matter is presented for the consideration and action of Congress.

GROVER CLEVELAND.

EXECUTIVE MANSION, _February 16, 1886_.

_To the Senate of the United States_:

I transmit herewith, in response to a resolution of the Senate of the 9th instant, a statement showing the payments of awards of the commissioners appointed under the conventions between the United States and France concluded April 30, 1803, and July 4, 1831, and between the United States and Spain concluded February 22, 1819, prepared from the books in the Department of the Treasury, under the direction of the Secretary of the Treasury, at the request of the Secretary of State.

Also, for the further information of the Senate, a report prepared by direction of the Secretary of State, from the original records in his custody, of the awards made by the said commissioners in claims allowed by them.

GROVER CLEVELAND.

EXECUTIVE MANSION, _Washington, D.C., March 1, 1886_.

_To the Senate of the United States_:

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 demands 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 the papers touching the conduct of such officials, or for all papers and documents relating to such suspensions, or for all documents and papers filed in such Departments in relation to the management and conduct of the offices held by such suspended officials.

The different terms from time to time adopted in making these requests and demands, the order in which they succeeded each other, and the fact that when made by the Senate the resolution for that purpose was passed in executive session have led to the presumption, the correctness of which will, I suppose, be candidly admitted, that from first to last the information thus sought and the papers thus demanded were desired for use by the Senate and its committees in considering the propriety of the suspensions referred to.

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.

But the report of the Committee on the Judiciary of the Senate lately presented and published, which censures the Attorney-General of the United States for his refusal to transmit certain papers relating to a suspension from office, and which also, if I correctly interpret it, evinces a misapprehension of the position of the Executive upon the question of such suspensions, will, I hope, justify this communication.

This report is predicated upon a resolution of the Senate directed to the Attorney-General and his reply to the same. This resolution was adopted in executive session devoted entirely to business connected with the consideration of nominations for office. It required the Attorney-General "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, 1885, in relation to the management and conduct of the office of district attorney of the United States for the southern district of Alabama."

The incumbent of this office on the 1st day of January, 1885, and until the 17th day of July ensuing, was George M. Duskin, who on the day last mentioned was suspended by an Executive order, and John D. Burnett designated to perform the duties of said office. At the time of the passage of the resolution above referred to the nomination of Burnett for said office was pending before the Senate, and all the papers relating to said nomination were before that body for its inspection and information.

In reply to this resolution the Attorney-General, after referring to the fact that the papers relating to the nomination of Burnett had already been sent to the Senate, stated that he was directed by the President to say that--

The papers and documents which are mentioned in 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.

Upon this resolution and the answer thereto the issue is thus stated by the Committee on the Judiciary at the outset of the report:

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.

I do not suppose 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 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.

The complaint of the committee that access to official papers in the public offices is denied the Senate is met by the statement that at no time has it been the disposition or the intention of the President or any Department of the executive branch of the Government to withhold from the Senate official documents or papers filed in any of the public offices. 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 specifically 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 letter of the Attorney-General in response to the resolution of the Senate in the particular case mentioned in the committee's report was written at my suggestion and by my direction. There had been no official papers or documents filed in his Department relating to the case within the period specified in the resolution. The letter was intended, by its description of the papers and documents remaining in the custody of the Department, to convey the idea that they were not official; and it was assumed that the resolution called for information, papers, and documents of the same character as were required by the requests and demands which preceded it.

Everything that had been written or done on behalf of the Senate from the beginning pointed to all letters and papers of a private and unofficial nature as the objects of search, if they were to be found in the Departments, and provided they had been presented to the Executive with a view to their consideration upon the question of suspension from office.

Against the transmission of such papers and documents I have interposed my advice and direction. This has not been done, as is suggested in the committee's report, upon the assumption on my part that the Attorney-General or any other head of a Department "is the servant of the President, and is to give or withhold copies of documents in his office according to the will of the Executive and not otherwise," but because I regard the papers and documents withheld and addressed to me or intended for my use and action purely unofficial and private, not infrequently confidential, and having reference to the performance of a duty exclusively mine. 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.

Even the committee in its report appears to concede that there may be with the President or in the Departments papers and documents which, on account of their unofficial character, are not subject to the inspection of the Congress. A reference in the report to instances where the House of Representatives ought not to succeed in a call for the production of papers is immediately followed by this statement:

The committee feels authorized to state, after a somewhat careful research, that within the foregoing limits there is scarcely in the history of this Government, until now, any instance of a refusal by a head of a Department, or even of the President himself, to communicate official facts and information, as distinguished from private and unofficial papers, motions, views, reasons, and opinions, to either House of Congress when unconditionally demanded.

To which of the classes thus recognized do the papers and documents belong that are now the objects of the Senate's quest?

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.

Are all these, simply because they are preserved, to be considered official documents and subject to the inspection of the Senate? If not, who is to determine which belong to this class? Are the motives and purposes of the Senate, as they are day by day developed, such as would be satisfied with my selection? Am I to submit to theirs at the risk of being charged with making a suspension from office upon evidence which was not even considered?

Are these papers to be regarded official because they have not only been presented but preserved in the public offices?

Their nature and character remain the same whether they are kept in the Executive Mansion or deposited in the Departments. There is no mysterious power of transmutation in departmental custody, nor is there magic in the undefined and sacred solemnity of Department files. If the presence of these papers in the public offices is a stumbling block in the way of the performance of Senatorial duty, it can be easily removed.

The papers and documents which have been described derive no official character from any constitutional, statutory, or other requirement making them necessary to the performance of the official duty of the Executive.

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. I have not felt justified in suspecting the veracity, integrity, and patriotism of Senators, or ignoring their representations, because they were not in party affiliation with the majority of their associates; and I recall a few suspensions which bear the approval of individual members identified politically with the majority in the Senate.

While, therefore, I am constrained to deny the right of the Senate to the papers and documents described, so far as the right to the same is based upon the claim that they are in any view of the subject official, I am also led unequivocally to dispute the right of the Senate by the aid of any documents whatever, or in any way save through the judicial process of trial on impeachment, to review or reverse the acts of the Executive in the suspension, during the recess of the Senate, of Federal officials.

I believe the power to remove or suspend such officials is vested in the President alone by the Constitution, which in express terms provides that "the executive power shall be vested in a President of the United States of America," and that "he shall take care that the laws be faithfully executed."

The Senate belongs to the legislative branch of the Government. When the Constitution by express provision superadded to its legislative duties the right to advise and consent to appointments to office and to sit as a court of impeachment, it conferred upon that body all the control and regulation of Executive action supposed to be necessary for the safety of the people; and this express and special grant of such extraordinary powers, not in any way related to or growing out of general Senatorial duty, and in itself a departure from the general plan of our Government, should be held, under a familiar maxim of construction, to exclude every other right of interference with Executive functions.

In the first Congress which assembled after the adoption of the Constitution, comprising many who aided in its preparation, a legislative construction was given to that instrument in which the independence of the Executive in the matter of removals from office was fully sustained.

I think it will be found that in the subsequent discussions of this question there was generally, if not at all times, a proposition pending to in some way curtail this power of the President by legislation, which furnishes evidence that to limit such power it was supposed to be necessary to supplement the Constitution by such legislation.

The first enactment of this description was passed under a stress of partisanship and political bitterness which culminated in the President's impeachment.

This law provided that the Federal officers to which it applied could only be suspended during the recess of the Senate when shown by evidence satisfactory to the President to be guilty of misconduct in office, or crime, or when incapable or disqualified to perform their duties, and that within twenty days after the next meeting of the Senate it should be the duty of the President "to report to the Senate such suspension, with the evidence and reasons for his action in the case."

This statute, passed in 1867, when Congress was overwhelmingly and bitterly opposed politically to the President, may be regarded as an indication that even then it was thought necessary by a Congress determined upon the subjugation of the Executive to legislative will to furnish itself a law for that purpose, instead of attempting to reach the object intended by an invocation of any pretended constitutional right.

The law which thus found its way to our statute book was plain in its terms, and its intent needed no avowal. If valid and now in operation, it would justify the present course of the Senate and command the obedience of the Executive to its demands. It may, however, be remarked in passing that under this law the President had the privilege of presenting to the body which assumed to review his executive acts his reasons therefor, instead of being excluded from explanation or judged by papers found in the Departments.

Two years after the law of 1867 was passed, and within less than five weeks after the inauguration of a President in political accord with both branches of Congress, the sections of the act regulating suspensions from office during the recess of the Senate were entirely repealed, and in their place were substituted provisions which, instead of limiting the causes of suspension to misconduct, crime, disability, or disqualification, expressly permitted such suspension by the President "in his discretion," and completely abandoned the requirement obliging him to report to the Senate "the evidence and reasons" for his action.