Part 10

The Presidential pretension, which is continued to the present time, is the more unnatural when it is considered that there are at least three different statutes in which Congress has shown its purpose to limit the employment of military officers in civil service. As long ago as July 5, 1838, it was positively provided that no Army officers should be separated from their regiments and corps “for employment on civil works of internal improvement, or be allowed to engage in the service of incorporated companies”; nor any line officer to be acting paymaster or disbursing agent for the Indian Department, “if such extra employment require that he be separated from his regiment or company, or otherwise interfere with the performance of the military duties proper.”[131] Obviously the will of Congress is here declared, that officers should not be allowed to leave their posts for any service which might _interfere with the performance of the military duties proper_. This language is explicit. Then came the Act of March 30, 1868, which provides that “any officer of the Army or Navy of the United States, who shall, after the passage of this Act, accept or hold any appointment in the diplomatic or consular service of the Government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant.”[132] To a considerate and circumspect President, who recognized the law in its spirit as well as its letter, this provision, especially when reinforced by the earlier statute, would have been a rule of action in analogous cases, and therefore an insurmountable obstacle to a pretension which takes Army officers from their proper duties and makes them Presidential secretaries. A later statute adds to the obstacle. By Act of Congress of July 15, 1870, it is provided:--

“That it shall not be lawful for any officer of the Army of the United States on the active list _to hold any civil office, whether by election or appointment_; and any such officer _accepting or exercising the functions of a civil office_ shall at once cease to be an officer of the Army, and his commission shall be vacated thereby.”[133]

It is difficult to imagine anything plainer than these words. No Army officer not on the retired list can hold any civil office; and then, to enforce the inhibition, it is provided that in “accepting or exercising the functions” of such office the commission is vacated. Now the Blue Book, which is our political almanac, has under the head of “Executive Mansion” a list of “secretaries” and “clerks,” beginning as follows: “Secretaries, General F. T. Dent, General Horace Porter, General O. E. Babcock,” when, in fact, there are no such officers authorized by law. Then follow the “Private Secretary,” “Assistant Private Secretary,” and “Executive Clerks,” authorized by law, but placed below those unauthorized. Nothing is said of being detailed for this purpose. They are openly called “Secretaries,” which is a title of office; and since it is at the Executive Mansion, it must be a civil office; and yet, in defiance of law, these Army officers continue to exercise its functions, and some of them enter the Senate with messages from the President. The apology that they are “detailed” for this service is vain; no authority can be shown for it. But how absurd to suppose that a rule against the exercise of a civil office can be evaded by a “detail”! If it may be done for three Army officers, why not for three dozen? Nay, more, if the civil office of Secretary at the Executive Mansion may be created without law, why not some other civil office? And what is to hinder the President from surrounding himself not only with secretaries, but with messengers, stewards, and personal attendants, even a body-guard, all detailed from the Army? Why may he not enlarge the military circle at the Executive Mansion indefinitely? If the President can be justified in his present course, there is no limit to his pretensions in open violation of the statute. Here the Blue Book testifies again; for it records the names of the “secretaries” in their proper places as Army officers,--thus presenting them as holding two incompatible offices.

I dismiss this transaction as another instance of Presidential pretension, which, in the interest of Republican Government, should be arrested.

UNREPUBLICAN SUBORDINATION OF THE WAR DEPARTMENT TO THE GENERAL-IN-CHIEF.

From the Executive Mansion pass now to the War Department, and there we witness the same Presidential pretensions by which law, usage, and correct principle are lost in the will of One Man. The supremacy of the civil power over the military is typified in the Secretary of War, a civilian, from whom Army officers receive orders. But this beautiful rule, with its lesson to the military of subordination, was suddenly set aside by our President, and the Secretary of War degraded to be a clerk. The 5th of March witnessed a most important order from the President, placing the Military Departments under officers of his choice,--purporting to be signed by the Assistant Adjutant-General by command of the General of the Army, but actually ignoring the Secretary of War.[134] Three days later, March 8th, witnessed another order professing to proceed from the President, whereby in express terms the War Department was subordinated to the General-in-Chief, being William T. Sherman, who at the time was promoted to that command. Here are the words:

“The chiefs of staff corps, departments, and bureaus will report to and act under the immediate orders of the General commanding the Army.”[135]

This act of revolution, exalting the military power above the civil, showed instant fruits in an order of the General, who, upon assuming command, proceeded to place the several bureau officers of the War Department upon his military staff,[136] so that for the time there was a military dictatorship with the President at its head, not merely in spirit but in actual form. By-and-by John A. Rawlins, a civilian by education and a respecter of the Constitution, became Secretary of War, and, though bound to the President by personal ties, he said, “Check to the King.” By General Order, issued from the War Department March 26, 1869, and signed by the Secretary of War, the offensive order was rescinded, and it was enjoined that “all official business which by law or regulations requires the action of the President or Secretary of War will be submitted by the chiefs of staff corps, departments, and bureaus to the Secretary of War.”[137] Public report said that this restoration of the civil power to its rightful supremacy was not obtained without an intimation of resignation on the part of the Secretary.

THE SECRETARY OF THE NAVY BY DEPUTY.

Kindred in character was the unprecedented attempt to devolve the duties of the Navy Department upon a deputy, so that orders were to be signed “A. E. Borie, Secretary of the Navy, per D. D. Porter, Admiral,” as appears in the official journal of May 11, 1869,--or, according to another instance, “David D. Porter, Vice-Admiral, for the Secretary of the Navy.” The obvious object of this illegal arrangement was to enable the incumbent, who stood high on the list of gift-makers, to be Secretary without being troubled with the business of the office. Notoriously he was an invalid, unused to public business, who, according to his own confession, modestly pleaded that he could not apply himself to work more than an hour a day; but the President soothed his anxieties by promising a deputy who would do the work. And thus was this great department made a plaything; but public opinion and other counsels arrested the sport. Here I mention, that, when this incumbent left his important post, it is understood that he was allowed to nominate his successor.

PRESIDENTIAL PRETENSION AT THE INDIAN BUREAU.

At the same time occurred the effort to absorb the Indian Bureau into the War Department, changing its character as part of the civil service. Congress had already repudiated such an attempt;[138] but the President, not disheartened by legislative failure, sought to accomplish it by manipulation and indirection. First elevating a member of his late staff to the head of the Bureau, he then, by a military order dated May 7, 1869,[139] proceeded to detail for the Indian service a long list of “officers left out of their regimental organizations by the consolidation of the infantry regiments,”--assuming to do this by authority of the Act of Congress of June 30, 1834, which, after declaring the number of Indian agents, and how they shall be appointed, provides that “it shall be competent for the President to require any military officer of the United States to execute the duties of Indian agent.”[140] Obviously this provision had reference to some exceptional exigency, and can be no authority for the general substitution of military officers, instead of civilians confirmed by the Senate and bound with sureties for the faithful discharge of their duties. And yet upward of sixty Army officers were in this way foisted into the Indian service. The Act of Congress of July 15, 1870, already quoted,[141] creating an incompatibility between military and civil service, was aimed partly at this abuse, and these officers ceased to be Indian agents. But this attempt is another illustration of Presidential pretension.

MILITARY INTERFERENCE AT ELECTIONS.

Then followed military interference in elections, and the repeated use of the military in aid of the revenue law under circumstances of doubtful legality, until at last General Halleck and General Sherman protested: the former in his report of October 24, 1870, saying, “I respectfully repeat the recommendation of my last Annual Report, that military officers should not interfere in local civil difficulties, unless called out in the manner provided by law;”[142] and the latter, in his Report of November 10, 1870, “I think the soldiers ought not to be expected to make individual arrests, or to do any act of violence, except in their organized capacity as a _posse comitatus_ duly summoned by the United States marshal, and acting in his personal presence.”[143] And so this military pretension, invading civil affairs, was arrested.

PRESIDENTIAL PRETENSION AGAIN.

Meanwhile this same Presidential usurpation, subordinating all to himself, became palpable in another form. It was said of Gustavus Adolphus, that he drilled his Diet to vote at the word of command. Such at the outset seemed to be the Presidential policy with regard to Congress. We were to vote as he desired. He did not like the Tenure-of-Office Act, and during the first month of his administration his influence was felt in both branches of Congress to secure its repeal; all of which seemed more astonishing when it was considered that he entered upon his high trust with the ostentatious avowal that all laws would be faithfully executed, whether they met his approval or not, and that he should have no policy to enforce against the will of the people.[144] That beneficent statute, which he had upheld in the impeachment of President Johnson, was a limitation on the Presidential power of appointment, and he could not brook it. Here was plain interference with his great perquisite of office, and Congress must be coerced to repeal it. The House acted promptly and passed the desired bill. In the Senate there was delay and a protracted debate, during which the official journal announced: “The President, in conversation with a prominent Senator a few days since, declared that it was his intention not to send in any nominations of importance until definite action was taken by Congress upon the Tenure-of-Office Bill.”[145]

Here I venture to add, that a member of the Cabinet pressed me to withdraw my opposition to the repeal, saying that the President felt strongly upon it. I could not understand how a Republican President could consent to weaken the limitations upon the Executive, and so I said,--adding, that in my judgment he should rather reach forth his hands and ask to have them tied. Better always a government of law than of men.

PRESIDENTIAL INTERFERENCE IN LOCAL POLITICS.

In this tyrannical spirit, and in the assumption of his central imperialism, he has interfered with political questions and party movements in distant States, reaching into Missouri, and then into New York, to dictate how the people should vote, then manipulating Louisiana through a brother-in-law appointed Collector. With him a custom-house seems less a place for the collection of revenue than an engine of political influence, through which his dictatorship may be maintained.

Authentic testimony places this tyrannical abuse beyond question. New York is the scene, and Thomas Murphy, Collector, the Presidential lieutenant. Nobody doubts the intimacy between the President and the Collector, who are bound in friendship by other ties than those of seaside neighborhood. The Collector was determined to obtain the control of the Republican State Convention, and appealed to a patriot citizen for help, who replied, that in his judgment “it would be a delicate matter for office-holders to undertake to dictate to the associations in the different districts who should go from them to the State Convention, and still more delicate to attempt to control the judgments of men employed in the different departments as to the best men to represent them.” The brave Collector lieutenant of the President said, “that he should not hesitate to do it; that it was General Grant’s wish, and General Grant was the head of the Republican Party, and should be authority on this subject.”[146] Plainly, the Republican Party was his perquisite, and all Republicans were to do his bidding. From other testimony it appears that the President, according to the statement of his lieutenant, “wanted to be represented in the Convention,” being the Republican State Convention of New York,--“wanted to have his friends there in the Convention”; and the Presidential lieutenant, being none other than the famous Collector, offered to appoint four men in the custom-house for the witness, if he would secure the nomination of certain persons as delegates from his district, and he promised “that he would immediately send their names on to Washington and have them appointed.”[147] And so the Presidential dictatorship was administered. Offices in the custom-house were openly bartered for votes in the State Convention. Here was intolerable tyranny, with demoralization like that of the slave-market.

But New York is not the only scene of this outrage. The Presidential pretension extends everywhere; nor is it easy to measure the arrogance of corruption or the honest indignation it quickens into life.

PRESIDENTIAL CONTRIVANCE AGAINST SAN DOMINGO.

These Presidential pretensions, in all their variety, personal and military, with reckless indifference to law, naturally ripened in the contrivance, nursed in hot-house secrecy, against the peace of the island of San Domingo: I say deliberately, against the peace of that island, for under the guise of annexing a portion there was menace to the Black Republic of Hayti. This whole business, absolutely indefensible from beginning to end, being wrong at every point, is the special and most characteristic product of the Administration, into which it infused and projected itself more than into anything else. In this multiform disobedience we behold our President. Already I have referred to this contrivance as marking an epoch in Presidential pretensions. It is my duty now to show its true character as a warning against its author.

A few weeks only after beginning his career as a civilian, and while occupied with military usurpations and the perquisites of office, he was tempted by overtures of Dominican plotters, headed by the usurper Baez and the speculator Cazneau: the first an adventurer, conspirator, and trickster, described by one who knows him well as “the worst man living of whom he has any personal knowledge”;[148] and the second, one of our own countrymen, long resident on the island, known as disloyal throughout the war, and entirely kindred in character to Baez. Listening to these prompters, and without one word in Congress or in the press suggesting annexion of the island or any part of it, the President began his contrivance; and here we see abuse in every form and at every step, absolutely without precedent in our history.

The agent in this transaction was Orville E. Babcock, a young officer figuring in the Blue Book of the time as one of the unauthorized “secretaries” at the Executive Mansion, and also as a major of engineers. His published instructions, under date of July 13, 1869, were simply to make inquiries; but the plot appears in a communication of the same date from the Secretary of the Navy, directed to the Seminole, a war-ship, with an armament of one eleven-inch gun and four thirty-two pounders, “to give him the _moral support_ of its guns”; and this was followed by a telegraphic instruction to Key West for another war-ship “to proceed without a moment’s delay to San Domingo City, to be placed at the disposal of General Babcock while on that coast.”[149] With such “moral support” the emissary of the President obtained from the usurper Baez that famous Protocol stipulating the annexion of Dominica to the United States in consideration of $1,500,000, which the young officer, fresh from the Executive Mansion, professed to execute as “Aide-de-Camp to his Excellency General Ulysses S. Grant, President of the United States,”--as if, instead of Chief Magistrate of a Republic, the President were a military chieftain with his foot in the stirrup, surrounded by a military staff. The same instrument contained the unblushing stipulation, that “his Excellency General Grant, President of the United States, promises, _privately, to use all his influence_, in order that the idea of annexing the Dominican Republic to the United States may acquire such a degree of popularity among members of Congress as will be necessary for its accomplishment”:[150] which is simply that the President shall become a lobbyist to bring about the annexion by Congress. Such was the strange beginning, illegal, unconstitutional, and offensive in every particular, but showing the Presidential character.

On his return to Washington, the young officer, who had assumed to be “Aide-de-Camp to his Excellency General Ulysses S. Grant,” and had bound the President to become a lobbyist for a wretched scheme, instead of being disowned and reprimanded, was sent back to the usurper with instructions to negotiate two treaties,--one for the annexion of the half-island of Dominica, and the other for the lease of the Bay of Samana.[151] By the Constitution of the United States “ambassadors and other public ministers” are appointed by the President by and with the advice and consent of the Senate; but our Aide-de-Camp had no such commission. Presidential prerogative empowered him. Nor was naval force wanting. With three war-ships at his disposal,[152] he concluded negotiations with Baez and obtained the two treaties. Naturally force was needed to keep the usurper in power while he sold his country, and naturally such a transaction required a Presidential Aide-de-Camp unknown to Constitution or Law, rather than a civilian duly appointed according to both.

PRESIDENTIAL VIOLATIONS OF CONSTITUTIONAL AND INTERNATIONAL LAW.

On other occasions it has been my solemn duty to expose the outrages which attended this hateful business, where at each step we are brought face to face with Presidential pretension: first, in the open seizure of the war powers of the Government, as if he were already Cæsar, forcibly intervening in Dominica and menacing war to Hayti, all of which is proved by the official reports of the State Department and Navy Department, being nothing less than war by kingly prerogative, in defiance of that distinctive principle of Republican Government, first embodied in our Constitution, which places the war powers under the safeguard of the legislative branch, making any attempt by the President “to declare war” an undoubted usurpation. But our President, like Gallio, cares for none of these things. The open violation of the Constitution was naturally followed by a barefaced disregard of that equality of nations which is the first principle of International Law, as the equality of men is the first principle of the Declaration of Independence; and this sacred rule was set aside in order to insult and menace Hayti, doing unto the Black Republic what we would not have that Republic do unto us, nor what we would have done to any white power. To these eminent and most painful Presidential pretensions, the first adverse to the Constitution and the second adverse to International Law, add the imprisonment of an American citizen in Dominica by the Presidential confederate, Baez, for fear of his hostility to the treaty, if he were allowed to reach New York,--all of which was known to his subordinates, Babcock and Cazneau, and doubtless to himself. What was the liberty of an American citizen compared with the Presidential prerogative? To one who had defied the Constitution, on which depends the liberty of all, and then defied International Law, on which depends the peace of the world, a single citizen immured in a distant dungeon was of small moment. But this is only an illustration. Add now the lawless occupation of the Bay of Samana for many months after the lapse of the treaty, keeping the national flag flying there, and assuming a territorial sovereignty which did not exist. Then add the protracted support of Baez in his usurped power, to the extent of placing the national flag at his disposal, and girdling the island with our ships of war, all at immense cost, and to the neglect of other service where the Navy was needed.

This strange succession of acts, which, if established for a precedent, would overturn Constitution and Law, was followed by another class of Presidential manifestations: first, an unseemly importunity of Senators during the pendency of the treaty, visiting the Capitol as a lobbyist, and summoning them to his presence in squads, in obvious pursuance of the stipulation made by his Aide-de-Camp and never disowned by him,--being intervention in the Senate, reinforced by all the influence of the appointing power, whether by reward or menace, all of which was as unconstitutional in character as that warlike intervention on the island; and then, after debate in the Senate, when the treaty was lost on solemn vote, we were called to witness his self-willed effrontery in prosecuting the fatal error, returning to the charge in his Annual Message at the ensuing session, insisting upon his contrivance as nothing less than the means by which “our large debt abroad is ultimately to be extinguished,” and gravely charging the Senate with “folly” in rejecting the treaty,--and yet, while making this astounding charge against a coördinate branch of Government, and claiming such astounding profits, he blundered geographically in describing the prize.[153]