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CHAPTER III
Immediately after the change of administration in 1885, the pressure began for the ousting of Republican office-holders and the substitution of Democrats in their places. While I claim to have earned a position which entitles me to resent the accusation that I either openly or covertly favor swift official decapitation for partizan purposes, I have no sympathy with the intolerant people who, without the least appreciation of the meaning of party work and service, superciliously affect to despise all those who apply for office as they would those guilty of a flagrant misdemeanor. It will indeed be a happy day when the ascendancy of party principles, and the attainment of wholesome administration, will be universally regarded as sufficient rewards of individual and legitimate party service. Much has already been accomplished in the direction of closing the door of partizanship as an entrance to public employment; and though this branch of effort in the public interest may well be still 40 further extended, such extension certainly should be supplemented by earnest and persuasive attempts to correct among our people long-cherished notions concerning the ends that should be sought through political activity, and by efforts to uproot pernicious and office-rewarding political methods. I am not sure that any satisfactory progress can be made toward these results, until our good men with unanimity cease regarding politics as necessarily debasing, and by active participation shall displace the selfish and unworthy who, when uninterrupted, control party operations. In the meantime, why should we indiscriminately hate those who seek office? They may not have entirely emancipated themselves from the belief that the offices should pass with party victory; but even if this is charged against them, it can surely be said that in all other respects they are in many instances as honest, as capable, and as intelligent as any of us. There may be reasons and considerations which properly defeat their aspirations, but their applications are not always disgraceful. I have an idea that sometimes the greatest difference between them and those who needlessly abuse them and gloat over their discomfiture, consists in the fact that the office-seekers desire office, and their critics, being 41 more profitably employed, do not. I feel constrained to say this much by way of defending, or at least excusing, many belonging to a numerous contingent of citizens, who, after the 4th of March, 1885, made large drafts upon my time, vitality, and patience; and I feel bound to say that in view of their frequent disappointments, and the difficulty they found in appreciating the validity of the reasons given for refusing their applications, they accepted the situation with as much good nature and contentment as could possibly have been anticipated. It must be remembered that they and their party associates had been banished from Federal office-holding for twenty-four years.

I have no disposition to evade the fact that suspensions of officials holding presidential commissions began promptly and were quite vigorously continued; but I confidently claim that every suspension made was with honest intent and, I believe, in accordance with the requirements of good administration and consistent with prior executive pledges. Some of these officials held by tenures unlimited as to their duration. Among these were certain internal-revenue officers who, it seemed to me, in analogy with others doing similar work but having a limited tenure, ought to consider a like 42 limited period of incumbency their proper term of office; and there were also consular officials and others attached to the foreign service who, I believe it was then generally understood, should be politically in accord with the administration.

By far the greater number of suspensions, however, were made on account of gross and indecent partizan conduct on the part of the incumbents. The preceding presidential campaign, it will be recalled, was exceedingly bitter, and governmental officials then in place were apparently so confident of the continued supremacy of their party that some of them made no pretense of decent behavior. In numerous instances the post-offices were made headquarters for local party committees and organizations and the centers of partizan scheming. Party literature favorable to the postmasters’ 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 43 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 voters, and by other practices inviting avoidable and dangerous collisions between the white and colored population.

I mention these things in order that what I shall say later may be better understood. I by no means attempt to describe all the wrongdoing which formed the basis of many of the suspensions of officials that followed the inauguration of the new administration. I merely mention some of the accusations which I recall as having been frequently made, by way of illustrating in a general way certain phases of pernicious partizanship that seemed to me to deserve prompt and decisive treatment. Some suspensions, however, were made on proof of downright official malfeasance. Complaints 44 against office-holders based on personal transgression or partizan misconduct were usually made to the Executive and to the heads of departments by means of letters, ordinarily personal and confidential, and also often by means of verbal communications. Whatever papers, letters, or documents were received on the subject, either by the President or by any head of department, were, for convenience of reference, placed together on department files. These complaints were carefully examined; many were cast aside as frivolous or lacking support, while others, deemed of sufficient gravity and adequately established, resulted in the suspension of the accused officials.

Suspensions instead of immediate removals were resorted to, because under the law then existing it appeared to be the only way that during a recess of the Senate an offending official could be ousted from his office, and his successor installed pending his nomination to the Senate at its next session. Though, as we have already seen, the law permitted suspensions by the President “in his discretion,” I considered myself restrained by the pledges I had made from availing myself of the discretion thus granted without reasons, and felt bound to 45 make suspensions of officials having a definite term to serve, only for adequate cause.

It will be observed further on that no resistance was then made to the laws pertaining to executive removals and suspensions, on the ground of their unconstitutionality; but I have never believed that either the law of 1867 or the law of 1869, when construed as permitting interference with the freedom of the President in making removals, would survive a judicial test of its constitutionality.

Within thirty days after the Senate met in December, 1885, the nominations of the persons who had been designated to succeed officials suspended during the vacation were sent to that body for confirmation, pursuant to existing statutes.

It was charged against me by the leader of the majority in the Senate that these nominations of every kind and description, representing the suspensions made within ten months succeeding the 4th of March, 1885, numbered six hundred and forty-three. I have not verified this statement, but I shall assume that it is correct. Among the officials suspended there were two hundred and seventy-eight postmasters, twenty-eight district attorneys, and 46 twenty-four marshals, and among those who held offices with no specified term there were sixty-one internal-revenue officers and sixty-five consuls and other persons attached to the foreign service.

It was stated on the floor of the Senate, after it had been in session for three months, that of the nominations submitted to that body to fill the places of suspended officials fifteen had been confirmed and two rejected.

Quite early in the session frequent requests in writing began to issue from the different committees of the Senate to which these nominations were referred, directed to the heads of the several departments having supervision of the offices to which the nominations related, asking the reasons for the suspension of officers whose places it was proposed to fill by means of the nominations submitted, and for all papers on file in their departments which showed the reasons for such suspensions. These requests foreshadowed what the senatorial construction of the law of 1869 might be, and indicated that the Senate, notwithstanding constitutional limitations, and even in the face of the repeal of the statutory provision giving it the right to pass upon suspensions by the President, was still inclined to insist, directly 47 or indirectly, upon that right. These requests, as I have said, emanated from committees of the Senate, and were addressed to the heads of departments. As long as such requests were made by committees I had no opportunity to discuss the questions growing out of such requests with the Senate itself, or to make known directly to that body the position on this subject which I felt bound to assert. Therefore the replies made to committees by the different heads of departments stated that by direction of the President they declined furnishing the reasons and papers so requested, on the ground that the public interest would not be thereby promoted, or on the ground that such reasons and papers related to a purely executive act. Whatever language was used in these replies, they conveyed the information that the President had directed a denial of the requests made, because in his opinion the Senate could have no proper concern with the information sought to be obtained.

It may not be amiss to mention here that while this was the position assumed by the Executive in relation to suspensions, all the information of any description in the possession of the Executive or in any of the departments, which would aid in determining the character 48 and fitness of those nominated in place of suspended officials, was cheerfully and promptly furnished to the Senate or its committees when requested.

In considering the requests made for the transmission of the reasons for suspensions, and the papers relating thereto, I could not avoid the conviction that a compliance with such requests would be to that extent a failure to protect and defend the Constitution, as well as a wrong to the great office I held in trust for the people, and which I was bound to transmit unimpaired to my successors; nor could I be unmindful of a tendency in some quarters to encroach upon executive functions, or of the eagerness with which executive concession would be seized upon as establishing precedent.

The nominations sent to the Senate remained neglected in the committees to which they had been referred; the requests of the committees for reasons and papers touching suspensions were still refused, and it became daily more apparent that a sharp contest was impending. In this condition of affairs it was plainly intimated by members of the majority in the Senate that if all charges against suspended officials were abandoned and their suspensions based entirely upon the ground that the spoils belonged 49 to the victors, confirmations would follow. This, of course, from my standpoint, would have been untruthful and dishonest; but the suggestion indicated that in the minds of some Senators, at least, there was a determination to gain a partizan advantage by discrediting the professions of the President, who, for the time, represented the party they opposed. This manifestly could be thoroughly done by inducing him to turn his back upon the pledges he had made, and to admit, for the sake of peace, that his action arose solely from a desire to put his party friends in place.

Up to this stage of the controversy, not one of the many requests made for the reasons of suspensions or for the papers relating to them had been sent from the Senate itself; nor had any of them been addressed to the President. It may seem not only strange that, in the existing circumstances, the Senate should have so long kept in the background, but more strange that the Executive, constituting a co?rdinate branch of the Government, and having such exclusive concern in the pending differences, should have been so completely ignored. I cannot think it uncharitable to suggest in explanation that as long as these requests and refusals were confined to Senate committees 50 and heads of departments, a public communication stating the position of the President in the controversy would probably be avoided; and that, as was subsequently made more apparent, there was an intent, in addressing requests to the heads of departments, to lay a foundation for the contention that not only the Senate but its committees had a right to control these heads of departments as against the President in matters relating to executive duty.

On the 17th of July, 1885, during the recess of the Senate, one George M. Duskin was suspended from the office of District Attorney for the Southern District of Alabama, and John D. Burnett was designated as his successor. The latter at once took possession of the office, and entered upon the discharge of its duties; and on the 14th of December, 1885, the Senate having in the meantime convened in regular session, the nomination of Burnett was sent to that body for confirmation. This nomination, pursuant to the rules and customs of the Senate, was referred to its Committee on the Judiciary. On the 26th of December, that committee then having the nomination under consideration, one of its members addressed a communication to the Attorney-General of the United States, requesting him, “on behalf of the Committee on 51 the Judiciary of the Senate and by its direction,” to send to such member of the committee all papers and information in the possession of the Department of Justice touching the nomination of Burnett, “also all papers and information touching the suspension and proposed removal from office of George M. Duskin.” On the 11th of January, 1886, the Attorney-General responded to this request in these terms:

    The Attorney-General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the suspension of Duskin from office, he has as yet received no direction from the President in relation to their transmission.

At this point it seems to have been decided for the first time that the Senate itself should enter upon the scene as interrogator. It was not determined, however, to invite the President to answer this new interrogator, either for the protection and defense of his high office or in self-vindication. It appears to have been also decided at this time to give another form to the effort the Senate itself was to undertake to secure the “papers and information” which its Committee had been unable to secure. In pursuance of this plan the following resolution 52 was adopted by the Senate in executive session on the 25th of January, 1886:

    Resolved, That the Attorney-General of the United States be, and he hereby is, directed 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, a.d. 1885, in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama.

The language of this resolution is more adroit than ingenuous. While appearing reasonable and fair upon its face, and presenting no indication that it in any way related to a case of suspension, it quickly assumes its real complexion when examined in the light of its surroundings. The requests previously made on behalf of Senate committees had ripened into a “demand” by the Senate itself. Herein is found support for the suggestion I have made, that from the beginning there might have been an intent on the part of the Senate to claim that the heads of departments, who are members of the President’s Cabinet and his trusted associates and advisers, owed greater obedience to the Senate than to their executive chief in affairs which he and they regarded as exclusively within executive functions. As to the real meaning and purpose of the resolution, a glance 53 at its accompanying conditions and the incidents preceding it makes manifest the insufficiency of its disguise. This resolution was adopted by the Senate in executive session, where the entire senatorial business done is the consideration of treaties and the confirmation of nominations for office. At the time of its adoption Duskin had been suspended for more than six months, his successor had for that length of time been in actual possession of the office, and this successor’s nomination was then before the Senate in executive session for confirmation. The demand was for copies of documents and papers in relation to the conduct of the office filed since January 1, 1885, thus covering a period of incumbency almost equally divided between the suspended officer and the person nominated to succeed him. The documents and papers demanded could not have been of any possible use to the Senate in executive session, except as they had a bearing either upon the suspension of the one or the nomination of the other. But as we have already seen, the Attorney-General had previously sent to a committee of the Senate all the papers he had in his custody in any way relating to the nomination and the fitness of the nominee, whether such papers had reference 54 to the conduct of the office or otherwise. Excluding, therefore, such documents and papers embraced in the demand as related to the pending nomination, and which had already been transmitted, it was plain that there was nothing left with the Attorney-General that could be included in the demand of the Senate in its executive session except what had reference to the conduct of the previous incumbent and his suspension. It is important to recall in this connection the fact that this subtle demand of the Senate for papers relating “to the conduct of the office” followed closely upon a failure to obtain “all papers and information” touching said suspension, in response to a plain and blunt request specifying precisely what was desired.
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