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CHAPTER IV
I have referred to these matters because it seems to me they indicate the animus and intent which characterized the first stages of a discussion that involved the rights and functions of the Executive branch of the Government. It was perfectly apparent that the issue was between the President and the Senate, and that the question constituting that issue was whether or not the Executive was invested with the right and power to suspend officials without the interference of the Senate or any accountability to that body for the reasons of his action. It was also manifest if it was desired to deal with this issue directly and fairly, disembarrassed by any finesse for position, it could at any time have been easily done, if only one of the many requests for reasons for suspensions, which were sent by committees of the Senate to heads of departments, had been sent by the Senate itself to the President.

Within three days after the passage by the Senate, in executive session, of the resolution 56 directing the Attorney-General to transmit to that body the documents and papers on file relating to the management and conduct of the office from which Mr. Duskin had been removed, and to which Mr. Burnett had been nominated, the Attorney-General replied thereto as follows:

    In response to the said resolution, the President of the United States directs me to say that the papers that were in this department relating to the fitness of John D. Burnett, recently nominated to said office, having already been sent to the Senate Committee on the Judiciary, and the papers and documents which are mentioned in the 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.

This response of the Attorney-General was referred to the Senate Committee on the Judiciary. Early in February, 1886, a majority of the committee made a report to the Senate, in which it seems to have been claimed that all papers—whatever may be their personal, private, or confidential character—if placed on file, or, in other words, if deposited in the office 57 of the head of a department, became thereupon official papers, and that the Senate had therefore a right to their transmittal when they had reference to the conduct of a suspended official, and when that body had under advisement the confirmation of his proposed successor. Much stress was laid upon the professions made by the President of his adherence to Civil Service reform methods, and it was broadly hinted that, in the face of six hundred and forty-three suspensions from office, these professions could hardly be sincere. Instances were cited in which papers and information had been demanded and furnished in previous administrations, and these were claimed to be precedents in favor of the position assumed by the majority of the committee. Almost at the outset of the report it was declared:

    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.

In conclusion, the majority recommended the adoption by the Senate of the following resolutions:

    Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate 58 copies of papers called for by its resolution of the 25th of January and set forth in the report of the Committee on the Judiciary, as in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof.

    Resolved, That it is under these circumstances the duty of the Senate to refuse its advice and consent to proposed removals of officers, the documents and papers in reference to the supposed official or personal misconduct of whom are withheld by the Executive or any head of a department when deemed necessary by the Senate and called for in considering the matter.

    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 59 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 60 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 61 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 62 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 63 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 64 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 65 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 66 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 67 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 68 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 69 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.

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