Part 4

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.