THE INDEPENDENCE OF THE EXECUTIVE

In dealing with “The Independence of the Executive,” I shall refer
first of all to the conditions in which the Presidency of the United
States had its origin, and shall afterward relate an incident within
my own experience involving the preservation and vindication of an
independent function of this high office.

When our original thirteen States, actuated by “a decent respect for
the opinions of mankind,” presented to the world the causes which
impelled them to separate from the mother country and to cast off
all allegiance to the Crown of England, they gave prominence to the
declaration that “the history of the present King of Great Britain is
a history of repeated injuries and usurpations, all having in direct
object the establishment of an absolute tyranny over these States.”
This was followed by an indictment containing not less than eighteen
counts or accusations, all leveled at the King and the King alone.
These were closed or clenched by this asseveration: “A Prince whose
character is thus marked by every act which may define a tyrant is
unfit to be the ruler of a free people.” In this arraignment the
English Parliament was barely mentioned, and then only as “others,”
with whom the King had conspired by “giving his assent to their act of
pretended legislation,” and thus giving operative force to some of the
outrages which had been put upon the colonies.

It is thus apparent that in the indictment presented by the thirteen
colonies they charged the King, who in this connection may properly be
considered as the Chief Executive of Great Britain, with the crimes and
offenses which were their justification for the following solemn and
impressive decree:

We, therefore, the Representatives of the United States of
America, in General Congress assembled, appealing to the
Supreme Judge of the World for the rectitude of our intentions,
do, in the name and by the authority of the good People of
these Colonies, solemnly publish and declare that these United
Colonies are, and of right ought to be, free and independent
States; that they are absolved from all allegiance to the
British Crown, and that all political connection between them
and the State of Great Britain is, and ought to be, totally
dissolved; and that as free and independent States they have
full power to levy war, conclude peace, contract alliances,
establish commerce, and do all other acts and things which
independent States may of right do. And for the support of this
Declaration, with a firm reliance on the protection of Divine
Providence, we mutually pledge to each other our lives, our
fortunes, and our sacred honor.

To this irrevocable predicament had the thirteen States or colonies
been brought by their resistance to the oppressive exercise of
executive power.

In these circumstances it should not surprise us to find that when,
on the footing of the Declaration of Independence, the first scheme
of government was adopted for the revolted States, it contained
no provision for an executive officer to whom should be intrusted
administrative power and duty. Those who had suffered and rebelled
on account of the tyranny of an English King were evidently chary of
subjecting themselves to the chance of a repetition of their woes
through an abuse of the power that might necessarily devolve upon an
American President.

Thus, under the Articles of Confederation, “The United States of
America,” without an executive head as we understand the term, came to
the light; and in its charter of existence it was declared that “the
articles of this Confederation shall be inviolably observed by every
State, and the Union shall be perpetual.”

Let us not harbor too low an opinion of the Confederation. Under its
guidance and direction the war of the Revolution was fought to a
successful result, and the people of the States which were parties
to it became in fact free and independent. But the Articles of
Confederation lacked the power to enforce the decree they contained of
inviolable observance by every State; and the union, which under their
sanction was to be permanent and lasting, early developed symptoms of
inevitable decay.

It thus happened that within ten years after the date of the Articles
of Confederation their deficiencies had become so manifest that
representatives of the people were again assembled in convention to
consider the situation and to devise a plan of government that would
form “a more perfect union” in place of the crumbling structure which
had so lately been proclaimed as perpetual.

The pressing necessity for such action cannot be more forcibly
portrayed than was done by Mr. Madison when, in a letter written a
short time before the convention, he declared:

Our situation is becoming every day more and more critical. No
money comes into the Federal treasury; no respect is paid to
the Federal authority; and people of reflection unanimously
agree that the existing Confederacy is tottering to its
foundation. Many individuals of weight, particularly in the
Eastern district, are suspected of leaning towards monarchy.
Other individuals predict a partition of the States into two or
more confederacies.

It was at this time universally conceded that if success was to
follow the experiment of popular government among the new States, the
creation of an Executive branch invested with power and responsibility
would be an absolutely essential factor. Madison, in referring to the
prospective work of the convention, said:

A national executive will also be necessary. I have scarcely
ventured to form my own opinion yet, either of the manner in
which it ought to be constituted, or of the authorities with
which it ought to be clothed.

We know that every plan of government proposed or presented to
the convention embodied in some form as a prominent feature the
establishment of an effective Executive; and I think it can be safely
said that no subject was submitted which proved more perplexing and
troublesome. We ought not to consider this as unnatural. Many members
of the convention, while obliged to confess that the fears and
prejudices that refused executive power to the Confederacy had led to
the most unfortunate results, were still confronted with a remnant of
those fears and prejudices, and were not yet altogether free from the
suspicion that the specter of monarchy might be concealed behind every
suggestion of executive force. Others less timid were nevertheless
tremendously embarrassed by a lack of definite and clear conviction as
to the manner of creating the new office and fixing its limitations.
Still another difficulty, which seems to have been all-pervading and
chronic in the convention, and which obstinately fastened itself
to the discussion of the subject, was the jealousy and suspicion
existing between the large and small States. I am afraid, also, that
an unwillingness to trust too much to the people had its influence
in preventing an easy solution of the executive problem. The first
proposal made in the convention that the President should be elected by
the people was accompanied by an apologetic statement by the member
making the suggestion that he was almost unwilling to declare the mode
of selection he preferred, “being apprehensive that it might appear
chimerical.” Another favored the idea of popular election, but thought
it “impracticable”; another was not clear that the people ought to act
directly even in the choice of electors, being, as alleged, “too little
informed of personal characters in large districts, and liable to
deception”; and again, it was declared that “it would be as unnatural
to refer the choice of a proper character for Chief Magistrate to the
people as it would to refer a trial of colors to a blind man.”

A plan was first adopted by the convention which provided for the
selection of the President by the Congress, or, as it was then called,
by the National Legislature. Various other plans were proposed, but
only to be summarily rejected in favor of that which the convention
had apparently irrevocably decided upon. There were, however, among
the members, some who, notwithstanding the action taken, lost
no opportunity to advocate, with energy and sound reasons, the
substitution of a mode of electing the President more in keeping with
the character of the office and the genius of a popular government.
This fortunate persistence resulted in the reopening of the subject
and its reference, very late in the sessions of the convention, to a
committee who reported in favor of a procedure for the choice of the
Executive substantially identical with that now in force; and this was
adopted by the convention almost unanimously.

This imperfect review of the incidents that led up to the establishment
of the office of President, and its rescue from dangers which
surrounded its beginning, if not otherwise useful, ought certainly to
suggest congratulatory and grateful reflections. The proposition that
the selection of a President should rest entirely with the Congress,
which came so near adoption, must, I think, appear to us as something
absolutely startling; and we may well be surprised that it was ever
favorably considered by the convention.

In the scheme of our national Government the Presidency is
preëminently the people’s office. Of course, all offices created by
the Constitution, and all governmental agencies existing under its
sanction, must be recognized, in a sense, as the offices and agencies
of the people–considered either as an aggregation constituting the
national body politic, or some of its divisions. When, however, I now
speak of the Presidency as being preëminently the people’s office,
I mean that it is especially the office related to the people as
individuals, in no general, local, or other combination, but standing
on the firm footing of manhood and American citizenship. The Congress
may enact laws; but they are inert and vain without executive impulse.
The Federal courts adjudicate upon the rights of the citizen when their
aid is invoked. But under the constitutional mandate that the President
“shall take care that the laws be faithfully executed,” every citizen,
in the day or in the night, at home or abroad, is constantly within the
protection and restraint of the Executive power–none so lowly as to be
beneath its scrupulous care, and none so great and powerful as to be
beyond its restraining force.

In view of this constant touch and the relationship thus existing
between the citizen and the Executive, it would seem that these
considerations alone supplied sufficient reason why his selection
should rest upon the direct and independent expression of the people’s
choice. This reason is reinforced by the fact that inasmuch as Senators
are elected by the State legislatures, Representatives in Congress
by the votes of districts or States, and judges are appointed by the
President, it is only in the selection of the President that the body
of the American people can by any possibility act together and directly
in the equipment of their national Government. Without at least this
much of participation in that equipment, we could hardly expect that a
ruinous discontent and revolt could be long suppressed among a people
who had been promised a popular and representative government.

I do not mean to be understood as conceding that the selection of a
President through electors chosen by the people of the several States,
according to our present plan, perfectly meets the case as I have
stated it. On the contrary, it has always seemed to me that this plan
is weakened by an unfortunate infirmity. Though the people in each
State are permitted to vote directly for electors, who shall give voice
to the popular preference of the State in the choice of President, the
voters throughout the nation may be so distributed, and the majorities
given for electors in the different States may be such, that a minority
of all the voters in the land can determine, and in some cases actually
have determined, who the President should be. I believe a way should be
devised to prevent such a result.

It seems almost ungracious, however, to find fault with our present
method of electing a President when we recall the alternative from
which we escaped, through the final action of the convention which
framed the Constitution.

It is nevertheless a curious fact that the plan at first adopted,
vesting in Congress the presidential election, was utterly inconsistent
with the opinion of those most prominent in the convention, as well
as of all thoughtful and patriotic Americans who watched for a happy
result from its deliberations, that the corner-stone of the new
Government should be a distinct division of powers and functions
among the Legislative, Executive, and Judicial branches, with the
independence of each amply secured. Whatever may have been the real
reasons for giving the choice of the President to Congress, I am sure
those which were announced in the convention do not satisfy us in this
day and generation that such an arrangement would have secured either
the separateness or independence of the Executive department. I am glad
to believe this to be so palpable as to make it unnecessary for me to
suggest other objections, which might subject me to the suspicion of
questioning the wisdom or invariably safe motives of Congress in this
relation. It is much more agreeable to acknowledge gratefully that a
danger was avoided, and a method finally adopted for the selection of
the Executive head of the Government which was undoubtedly the best
within the reach of the convention.

The Constitution formed by this convention has been justly extolled by
informed and liberty-loving men throughout the world. The statesman
who, above all his contemporaries of the past century, was best able
to pass judgment on its merits formulated an unchallenged verdict when
he declared that “the American Constitution is the most wonderful work
ever struck off at a given time by the brain and purpose of man.”

We dwell with becoming pride upon the intellectual greatness of the
men who composed the convention which created this Constitution. They
were indeed great; but the happy result of their labor would not have
been saved to us and to humanity if to intellectual greatness there had
not been added patriotism, patience, and, last but by no means least,
forbearing tact. To these traits are we especially indebted for the
creation of an Executive department, limited against every possible
danger of usurpation or tyranny, but, at the same time, strong and
independent within its limitations.

The Constitution declares: “The executive power shall be vested in a
President of the United States of America,” and this is followed by a
recital of the specific and distinctly declared duties with which he is
charged, and the powers with which he is invested. The members of the
convention were not willing, however, that the executive power which
they had vested in the President should be cramped and embarrassed by
any implication that a specific statement of certain granted powers and
duties excluded all other executive functions; nor were they apparently
willing that the claim of such exclusion should have countenance in the
strict meaning which might be given to the words “executive power.”
Therefore we find that the Constitution supplements a recital of the
specific powers and duties of the President with this impressive and
conclusive additional requirement: “He shall take care that the laws be
faithfully executed.” This I conceive to be equivalent to a grant of
all the power necessary to the performance of his duty in the faithful
execution of the laws.

The form of Constitution first proposed to the convention provided that
the President elect, before entering upon the duties of his office,
should take an oath, simply declaring: “I will faithfully execute the
office of President of the United States.” To this brief and very
general obligation there were added by the convention the following
words: “and will to the best of my judgment and power preserve,
protect, and defend the Constitution of the United States.” Finally,
the “Committee on Style,” appointed by the convention, apparently to
arrange the order of the provisions agreed upon, and to suggest the
language in which they would be best expressed, reported in favor of an
oath in these terms: “I will faithfully execute the office of President
of the United States, and will to the best of my ability preserve,
protect, and defend the Constitution of the United States”; and this
form was adopted by the convention without discussion, and continues to
this day as the form of obligation which binds the conscience of every
incumbent of our Chief Magistracy.

It is therefore apparent that as the Constitution, in addition to
its specification of especial duties and powers devolving upon
the President, provides that “he shall take care that the laws be
faithfully executed,” and as this was evidently intended as a general
devolution of power and imposition of obligation in respect to any
condition that might arise relating to the execution of the laws, so
it is likewise apparent that the convention was not content to rest
the sworn obligation of the President solely upon his covenant to
“faithfully execute the office of President of the United States,” but
added thereto the mandate that he should preserve, protect, and defend
the Constitution, to the best of his judgment and power, or, as it was
afterward expressed, to the best of his ability. Thus is our President
solemnly required not only to exercise every power attached to his
office, to the end that the laws may be faithfully executed, and not
only to render obedience to the demands of the fundamental law and
executive duty, but to exert all his official strength and authority
for the preservation, protection, and defense of the Constitution.

* * * * *

I have thus far presented considerations which while they have to do
with my topic are only preliminary to its more especial and distinct
discussion. In furtherance of this discussion it now becomes necessary
to quote from the Constitution the following clause found among its
specification of presidential duty and authority:

And he shall nominate, and by and with the advice of the Senate
shall appoint ambassadors, other public ministers and consuls,
judges of the Supreme Court, and all other officers of the
United States whose appointments are not herein otherwise
provided for, and which shall be established by law.

This clause was the subject of a prolonged and thorough debate in
Congress which occurred in the year 1789 and during the first session
of that body assembled under the new Constitution.

The question discussed involved distinctly and solely the independent
power of the President under the Constitution to remove an officer
appointed by him by and with the advice of the Senate. The discussion
arose upon a bill then before the Congress, providing for the
organization of the State Department, which contained a provision that
the head of the department to be created should be removable from
office by the President. This was opposed by a considerable number on
the ground that as the Senate coöperated in the appointment, it should
also be consulted in the matter of removal; it was urged by others that
the power of removal in such cases was already vested in the President
by the Constitution, and that the provision was therefore unnecessary;
and it was also contended that the question whether the Constitution
permitted such removal or not should be left untouched by legislative
action, and be determined by the courts.

Those insisting upon retaining in the bill the clause permitting
removal by the President alone, claimed that such legislation would
remove all doubt on the subject, though they asserted that the absolute
investiture of all executive power in the President, reinforced by
the constitutional command that he should take care that the laws be
faithfully executed, justified their position that the power already
existed, especially in the absence of any adverse expression in the
Constitution. They also insisted that the removal of subordinate
officers was an act so executive in its character, and so intimately
related to the faithful execution of the laws, that it was clearly
among the President’s constitutional prerogatives, and that if it was
not sufficiently declared in the Constitution, the omission should be
supplied by the legislation proposed.

In support of these positions it was said that the participation of the
Senate in the removal of executive officers would be a dangerous step
toward breaking down the partitions between the different departments
of the Government which had been carefully erected, and were regarded
by every statesman of that time as absolutely essential to our national
existence; and stress was laid upon the unhappy condition that would
arise in case a removal desired by the President should be refused
by the Senate, and he thus should be left, still charged with the
responsibility of the faithful execution of the laws, while deprived
of the loyalty and constancy of his subordinates and assistants, who,
if resentful of his efforts for their removal, would lack devotion
to his work, and who, having learned to rely upon another branch
of the Government for their retention, would be invited to defiant
insubordination.

At the time of this discussion the proceedings of the Senate took
place behind closed doors, and its debates were not published, but its
determinations upon such questions as came before it were made public.

The proceedings of the other branch of the Congress, however, were
open, and we are permitted through their publication to follow the very
interesting discussion of the question referred to in the House of
Representatives.

The membership of that body included a number of those who had been
members of the Constitutional Convention, and who, fresh from its
deliberations, were necessarily somewhat familiar with its purposes and
intent. Mr. Madison was there, who had as much to do as any other man
with the inauguration of the convention and its successful conclusion.
He was not only especially prominent in its deliberations, but
increased his familiarity with its pervading spirit and disposition by
keeping a careful record of its proceedings. In speaking of his reasons
for keeping this record he says:

The curiosity I had felt during my researches into the history
of the most distinguished confederacies, particularly those
of antiquity, and the deficiency I found in the means of
satisfying it, more especially in what related to the process,
the principles, the reasons and the anticipations which
prevailed in the formation of them, determined me to preserve
as far as I could an exact account of what might pass in the
convention while executing its trust, with the magnitude of
which I was duly impressed, as I was by the gratification
promised to future curiosity, by an authentic exhibition of
the objects, the opinions and the reasonings from which a new
system of government was to receive its peculiar structure
and organization. Nor was I unaware of the value of such a
contribution to the fund of materials for the history of a
Constitution on which would be staked the happiness of a
people great in its infancy and possibly the cause of liberty
throughout the world.

This important debate also gains great significance from the fact that
it occurred within two years after the completion of the Constitution,
and before political rancor or the temptations of partizan zeal had
intervened to vex our congressional counsels.

It must be conceded, I think, that all the accompanying circumstances
gave tremendous weight and authority to this first legislative
construction of the Constitution in the first session of the first
House of Representatives, and that these circumstances fully warranted
Mr. Madison’s declaration during the debate:

I feel the importance of the question, and know that our
decision will involve the decision of all similar cases. The
decision that is at this time made will become the permanent
exposition of the Constitution, and on a permanent exposition
of the Constitution will depend the genius and character of the
whole Government.

The discussion developed the fact that from the first a decided
majority were of the opinion that the Executive should have power of
independent removal, whether already derived from the Constitution
or to be conferred by supplementary legislation. It will be recalled
that the debate arose upon the clause in a pending bill providing that
the officer therein named should “be removable by the President,”
and that some of the members of the House, holding that such power
of removal was plainly granted to the Constitution, insisted that it
would be useless and improper to assume to confer it by legislative
enactment. Though a motion to strike from the bill the clause objected
to had been negatived by a large majority, it was afterward proposed,
in deference to the opinions of those who suggested that the House
should go no further than to give a legislative construction to the
Constitution in favor of executive removal, that in lieu of the words
contained in the bill, indicating a grant of the power, there should
be inserted a provision for a new appointment in case of a vacancy
occurring in the following manner:

Whenever the said principal officer shall be removed from
office by the President of the United States, or in any other
case of vacancy.

This was universally acknowledged to be a distinct and unequivocal
declaration that, under the Constitution, the right of removal was
conferred upon the President; and those supporting that proposition
voted in favor of the change, which was adopted by a decisive majority.
The bill thus completed was sent to the Senate, where, if there was
opposition to it on the ground that it contained a provision in
derogation of senatorial right, it did not avail; for the bill was
passed by that body, though grudgingly, and, as has been disclosed,
only by the vote of the Vice-President, upon an equal division of the
Senate. It may not be amiss to mention, as adding significance to the
concurrence of the House and the Senate in the meaning and effect of
the clause pertaining to removal as embodied in this bill, that during
that same session two other bills creating the Treasury Department
and the War Department, containing precisely the same provision, were
passed by both Houses.

I hope I shall be deemed fully justified in detailing at some length
the circumstances that led up to a legislative construction of the
Constitution, as authoritative as any surroundings could possibly make
it, in favor of the constitutional right of the President to remove
Federal officials without the participation or interference of the
Senate.

This was in 1789. In 1886, ninety-seven years afterward, this question
was again raised in a sharp contention between the Senate and the
President. In the meantime, as was quite natural perhaps, partizanship
had grown more pronounced and bitter, and it was at that particular
time by no means softened by the fact that the party that had become
habituated to power by twenty-four years of substantial control of the
Government, was obliged, on the 4th of March, 1885, to make way in the
executive office for a President elected by the opposite party. He
came into office fully pledged to the letter of Civil Service reform;
and passing beyond the letter of the law on that subject, he had said:

There is a class of government positions which are not within
the letter of the Civil Service statute, but which are so
disconnected with the policy of an administration, that the
removal therefrom of present incumbents, in my opinion, should
not be made during the terms for which they were appointed,
solely on partizan grounds, and for the purpose of putting
in their places those who are in political accord with the
appointing power.

The meaning of this statement is, that while, among the officers not
affected by the Civil Service law, there are those whose duties are so
related to the enforcement of the political policy of an administration
that they should be in full accord with it, there are others whose
duties are not so related, and who simply perform executive work; and
these, though beyond the protection of Civil Service legislation,
should not be removed merely for the purpose of rewarding the party
friends of the President, by putting them in the positions thus made
vacant. An adherence to this rule, based upon the spirit instead of
the letter of Civil Service reform, I believe established a precedent,
which has since operated to check wholesale removals solely for
political reasons.

The declaration which I have quoted was, however, immediately followed
by an important qualification, in these terms:

But many men holding such positions have forfeited all just
claim to retention, because they have used their places for
party purposes, in disregard of their duty to the people;
and because, instead of being decent public servants, they
have proved themselves offensive partizans and unscrupulous
manipulators of local party management.

These pledges were not made without a full appreciation of the
difficulties and perplexities that would follow in their train. It
was anticipated that party associates would expect, notwithstanding
Executive pledges made in advance, that there would be a speedy and
liberal distribution among them of the offices from which they had been
inexorably excluded for nearly a quarter of a century. It was plainly
seen that many party friends would be disappointed, that personal
friends would be alienated, and that the charge of ingratitude, the
most distressing and painful of all accusations, would find abundant
voice. Nor were the difficulties overlooked that would sometimes
accompany a consistent and just attempt to determine the cases in
which incumbents in office had forfeited their claim to retention. That
such cases were numerous, no one with the slightest claim to sincerity
could for a moment deny.

With all these things in full view, and with an alternative of escape
in sight through an evasion of pledges, it was stubbornly determined
by the new Executive that the practical enforcement of the principle
involved was worth all the sacrifices which were anticipated. And while
it was not expected that the Senate, which was the only stronghold left
to the party politically opposed to the President, would contribute an
ugly dispute to a situation already sufficiently troublesome, I am in a
position to say that even such a contingency, if early made manifest,
would have been contemplated with all possible fortitude.

The Tenure of Office act, it will be remembered, was passed in 1867 for
the express purpose of preventing removals from office by President
Johnson, between whom and the Congress a quarrel at that time raged, so
bitter that it was regarded by sober and thoughtful men as a national
affliction, if not a scandal.

An amusing story is told of a legislator who, endeavoring to persuade
a friend and colleague to aid him in the passage of a certain measure
in which he was personally interested, met the remark that his bill
was unconstitutional with the exclamation, “What does the Constitution
amount to between friends?” It would be unseemly to suggest that in the
heat of strife the majority in Congress had deliberately determined to
pass an unconstitutional law, but they evidently had reached the point
where they considered that what seemed to them the public interest and
safety justified them, whatever the risk might be, in setting aside
the congressional construction given to the Constitution seventy-eight
years before.

The law passed in 1867 was exceedingly radical, and in effect
distinctly purported to confer upon the Senate the power of preventing
the removal of officers without the consent of that body. It was
provided that during a recess of the Senate an officer might be
suspended only in case it was shown by evidence satisfactory to the
President, that the incumbent was guilty of misconduct in office or
crime, or when for any reason he should become incapable or legally
disqualified to perform his duties; and that within twenty days after
the beginning of the next session of the Senate, the President should
report to that body such suspension, with the evidence and reasons for
his action in the case, and the name of the person designated by the
President to perform temporarily the duties of the office. Then follows
this provision:

And if the Senate shall concur in such suspension and advise
and consent to the removal of such officer, they shall so
certify to the President, who may thereupon remove said
officer, and by and with the advice and consent of the Senate
appoint another person to such office. But if the Senate shall
refuse to concur in such suspension, such officer so suspended
shall forthwith resume the functions of his office.

On the 5th of April, 1869, a month and a day after President Johnson
was succeeded in the Presidency by General Grant, that part of the
act of 1867 above referred to, having answered the purpose for which
it was passed, was repealed, and other legislation was enacted in its
place. It was provided in the new statute that the President might “in
his discretion,” during the recess of that body, suspend officials
until the end of the next session of the Senate, and designate suitable
persons to perform the duties of such suspended officer in the
meantime; and that such designated persons should be subject to removal
in the discretion of the President by the designation of others. The
following, in regard to the effect of such suspension, was inserted in
lieu of the provision on that subject in the law of 1867 which I have
quoted:

And it shall be the duty of the President within thirty days
after the commencement of each session of the Senate, except
for any office which in his opinion ought not to be filled, to
nominate persons to fill all vacancies in office which existed
at the meeting of the Senate, whether temporarily filled or
not, and also in the place of all officers suspended; and
if the Senate, during such session, shall refuse to advise
and consent to an appointment in the place of any suspended
officer, then, and not otherwise, the President shall nominate
another person as soon as practicable to said session of the
Senate for said office.

This was the condition of the so-called tenure of office legislation
when a Democratic President was inaugurated and placed in expected
coöperation with a Republican majority in the Senate–well drilled,
well organized, with partizanship enough at least to insure against
indifference to party advantage, and perhaps with here and there a
trace of post-election irritation.

Whatever may be said as to the constitutionality of the Tenure of
Office laws of 1867 and 1869, certainly the latter statute did not
seem, in outside appearance, to be charged with explosive material
that endangered Executive prerogative. It grew out of a bill for
the absolute and unconditional repeal of the law of 1867 relating
to removals and suspensions. This bill originated in the House of
Representatives, and passed that body so nearly unanimously that
only sixteen votes were recorded against it. In the Senate, however,
amendments were proposed, which being rejected by the House, a
committee of conference was appointed to adjust, by compromise if
possible, the controversy between the two bodies. This resulted in an
agreement by the committee upon the provisions of the law of 1869,
as a settlement of the difficulty. In the debate in the House of
Representatives on the report of the committee, great uncertainty and
differences of opinion were developed as to its meaning and effect.
Even the House conferees differed in their explanation of it. Members
were assured that the proposed modifications of the law of 1867, if
adopted, would amount to its complete repeal; and it was also asserted
with equal confidence that some of its objectionable limitations upon
executive authority would still remain in force. In this state of
confusion and doubt the House of Representatives, which a few days
before had passed a measure for unconditional repeal, with only sixteen
votes against it, adopted the report of the conference committee with
sixty-seven votes in the negative.

So far as removals following suspensions are concerned, the language of
the law of 1869 certainly seems to justify the understanding that in
this particular it virtually repealed the existing statute.

The provision permitting the President to suspend only on certain
specified grounds was so changed as to allow him to make such
suspensions “in his discretion.” The requirements that the President
should report to the Senate “the evidence and reasons for his action in
the case,” and making the advice and consent of the Senate necessary
to the removal of a suspended officer, were entirely eliminated; and
in lieu of the provision in the law of 1867 that “if the Senate shall
refuse to concur in such suspension, such officer so suspended shall
forthwith resume the functions of his office,” the law of 1869, after
requiring the President to send to the Senate nominations to fill the
place of officers who had been “in his discretion” suspended, declared
“that if the Senate, during such session, shall refuse to advise and
consent to an appointment in the place of any suspended officer,”–that
is, shall refuse to confirm the person appointed by the President in
place of the officer suspended,–not that “such officer so suspended
shall resume the functions of his office,” but that “then, and not
otherwise, the President shall nominate another person as soon as
practicable to said session of the Senate for said office.”

It seems to me that the gist of the whole matter is contained in a
comparison of these two provisions. Under the law of 1867 the incumbent
is only conditionally suspended, still having the right to resume his
office in case the Senate refuses to concur in the suspension; but
under the law of 1869 the Senate had no concern with the suspension
of the incumbent, nor with the discretion vested in the President in
reference thereto by the express language of the statute; and the
suspended incumbent was beyond official resuscitation. Instead of the
least intimation that in any event he might “resume the functions of
his office,” as provided in the law of 1867, it is especially declared
that in case the Senate shall refuse to advise and consent to the
appointment of the particular person nominated by the President in
place of the suspended official, he shall nominate another person
to the Senate for such office. Thus the party suspended seems to
be eliminated from consideration, the Senate is relegated to its
constitutional rights of confirming or rejecting nominations as it sees
fit, and the President is reinstated in his undoubted constitutional
power of removal through the form of suspension.

In addition to what is apparent from a comparison of these two
statutes, it may not be improper to glance at certain phases of
executive and senatorial action since the passage of the law of 1869
as bearing upon the theory that, so far as it dealt with suspensions
and their effect, if it did not amount to a repeal of the law of 1867,
it at least extinguished all its harmful vitality as a limitation of
executive prerogative. It has been stated, apparently by authority,
that President Grant within seven weeks after his inauguration on the
4th of March, 1869, sent to the Senate six hundred and eighty cases of
removals or suspensions, all of which I assume were entirely proper and
justifiable. I cannot tell how many of the cases thus submitted to the
Senate were suspensions, nor how many of them purported to be removals;
nor do I know how many nominations of new officers accompanying them
were confirmed. It appears that ninety-seven of them were withdrawn
before they were acted upon by the Senate; and inasmuch as the law of
1867 was in force during four of the seven weeks within which these
removals and suspensions were submitted, it is barely possible that
these withdrawals were made during the four weeks when the law of 1867
was operative, to await a more convenient season under the law of
1869. Attention should be here called, however, to the dissatisfaction
of President Grant, early in his incumbency, with the complexion of
the situation, even under the repealing and amendatory law of 1869.
In his first annual message to the Congress in December, 1869, he
complained of that statute as “being inconsistent with a faithful
and efficient administration of the Government,” and recommended its
repeal. Perhaps he was led to apprehend that the Senate would claim
under its provisions the power to prevent the President from putting
out of office an undesirable official by suspension. This is indicated
by the following sentence in his message: “What faith can an Executive
put in officials forced upon him, and those, too, whom he has suspended
for reason?” Or it may be possible that he did not then appreciate
how accommodatingly the law might be construed or enforced when the
President and Senate were in political accord. However these things may
be, it is important to observe, in considering the light in which the
law of 1869 came to be regarded by both the Executive and the Senate,
that President Grant did not deem it necessary afterward to renew his
recommendation for its repeal, and that at no time since its enactment
has its existence been permitted to embarrass executive action prior to
the inauguration of a President politically opposed to the majority in
the Senate.

The review which I have thus made of the creation of our national
Executive office, and of certain events and incidents which interpreted
its powers and functions, leads me now to a detailed account of the
incident mentioned by me at the beginning as related to the general
subject under discussion and in which I was personally concerned.
But before proceeding further, I desire to say that any allusion I
may have made, or may hereafter make, recognizing the existence of
partizanship in certain quarters does not arise from a spirit of
complaint or condemnation. I intend no more by such allusions than
to explain and illustrate the matters with which I have to deal by
surrounding conditions and circumstances. I fully appreciate the fact
that partizanship follows party organization, that it is apt to be
unduly developed in all parties, and that it often hampers the best
aspirations and purposes of public life; but I hope I have reached
a condition when I can recall such adverse partizanship as may have
entered into past conflicts and perplexities, without misleading
irritation or prejudice.

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