This opinion was a.s.serted by Mr. Fish in his instructions to the counsel. When the Government of the United States received it, it seemed to me that it was ent.i.tled to apply it in its high discretion; and to give it to such persons ent.i.tled to its protection or consideration as it should see fit. I made a careful argument in support of this view. I thought, accordingly, that the balance of the fund, after compensating all persons, not yet paid, for claims directly resulting from damage done on the high seas by Confederate cruisers, and the cla.s.s of insurance companies above mentioned, should be paid to persons who had paid premiums for war risks after the sailing of any Confederate cruiser. I maintained this doctrine as well as I could against the powerful arguments I have named. There were other very strong arguments on the same side, and I had the gratification of being a.s.sured by several Senators that my presentation of the case had convinced them. Mr. Blaine, who had, himself, earnestly engaged in the debate, said that he thought that the opinion of the majority of the Senators had been changed by my argument.

CHAPTER XI THE PRESIDENT'S POWER OF REMOVAL

The two most important questions of the construction of the Const.i.tution which came up in our early history have been finally put at rest in our day. I have had something to do with disposing of both of them. With the disposition of one of them I had a leading part.

The first of these questions was whether in executing the powers conferred upon it by the Const.i.tution, Congress must confine itself to such means and instrumentalities as are strictly and indispensably necessary to their accomplishment; or whether it might select, among the measures which fairly promote such Const.i.tutional ends, any method which it shall think for the public interest, exercising this power in a liberal way, and remembering in doing so that it is a Const.i.tution-- the vital power of a free people,--we are defining and limiting, and not an ordinary power of attorney.

This question first came up in Washington's Administration, on the bill for establishing a National Bank. Seldom any doubt is raised now as to the Const.i.tutional power of the National Government to accomplish and secure any of the great results which we could not secure before the war, by reason of what is called the doctrine of State Rights. Democrat and Republican, men of the South and men of the North, now agree in exercising without a scruple the power of Congress to protect American interests by the tariff, to endow and to subsidize railroads across the continent, and to build an Oceanic ca.n.a.l.

I have in my possession, in Roger Sherman's and James Madison's handwriting, a paper which contains the first statement of a controversy which divided parties and sections, which inspired Nullification, and which entered largely in the strife which brought on the Civil War.

(In Roger Sherman's handwriting.) "You will admit that Congress have power to provide by law for raising, depositing and applying money for the purposes enumerated in the Const.i.tution." X (and generally of regulating the finances). "That they have power so far as no particular rules are pointed out in the Const.i.tution to make such rules and regulations as they may judge necessary and proper to effect these purposes. The only question that remains is--Is a bank (a necessary and) a proper measure for effecting these purposes? And is not this a question of expediency rather than of right?"

(The following, on the same slip of paper, is in James Madison's handwriting.) "Feb. 4, 1791. This handed to J. M. by Mr.

Sherman during the debate on the const.i.tutionality of the bill for a National bank. The line marked X given up by him on the objection of J. M. The interlineation of 'a necessary &' by J. M. to which he gave no other answer than a smile."

The other matter relates to the power of removal from office.

Upon that the Const.i.tution is silent. In the beginning two views were advocated. There was a great debate in 1789, which Mr. Evarts declares, "decidedly the most important and best considered debate in the history of Congress." The claim that the power of removal is vested absolutely in the President by the Const.i.tution prevailed in the House of Representatives, under the lead of Madison, by a majority of twelve, and by the casting vote of John Adams in the Senate. Mr. Madison said:

"The decision that is at this time made will become the permanent exposition of the Const.i.tution; and on a permanent exposition of the Const.i.tution will depend the genius and character of the whole Government."

One party claimed that the power of removal was a necessary incident to the power of appointment, and vested in the President by virtue of his power to appoint. It was claimed also on the same side that the President's duty to see the laws faithfully executed could not be discharged if subordinates could be kept in office against his will. In most cases the President never executes the laws himself, but only has to see them executed faithfully.

This view prevailed, as we have seen, in Washington's Administration.

It continued to be acted upon till the time of President Johnson.

In General Jackson's time its soundness was challenged by Webster, Calhoun and Clay. But there was no attempt to resist it in practice. Mr. Webster in 1835 earnestly dissented from the original decision, while he admitted that he considered it "a settled point; settled by construction, settled by precedent, settled by the practice of the Government, and settled by statute." It remained so settled, until, in the strife which followed the rebellion, a two-thirds majority in Congress was induced by apprehension of a grave public danger to attempt to wrest this portion of the executive power from the hands of Andrew Johnson. The statute of March 2, 1867, as construed by nearly two-thirds of the Senate, enacted that officers appointed by the predecessor of President Johnson, who, by the law in force when they were appointed, and by the express terms of their commission, were removable at the pleasure of the President, should remain in office until the Senate should consent to the appointment of their successors, or approve their removal.

In 1867 Congress undertook to determine by statute the construction of the Const.i.tution as to this disputed question. Some persons claimed that that power existed in the provision--"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Const.i.tution in the Government of the United States, or in any Department officer thereof."

The Const.i.tutionality and effect of this statute were debated on the trial of President Johnson. But it served its purpose during the last two years of Johnson's Administration. Five days after Grant's inauguration, the House of Representatives, by a vote of 138 to 16, pa.s.sed a bill totally repealing it.

The Senate was unwilling to let go the hold which it had acquired on the Executive power, but proposed to suspend the law for one year, so that there might be no obstacle in the path of General Grant to the removal of the obnoxious officials who had adhered to Andrew Johnson. So a compromise was agreed upon. It permitted the President to suspend officers during the vacation of the Senate, but restored officers so suspended at the close of the next session, unless, in the meantime, the advice and consent of the Senate had been obtained to a removal or the appointment of a successor.

President Grant, in his message of December, 1869, urged the repeal of this modified act on the ground that--

"It could not have been the intention of the framers of the Const.i.tution that the Senate should have the power to retain in office persons placed there by Federal appointment, against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced on him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?"

The House acted on this recommendation, and pa.s.sed a bill for the repeal of the statutes of 1867 and 1869 by a vote of 159 to 25. For this bill the whole Ma.s.sachusetts delegation, including Mr. Dawes and myself, voted. It was never acted on in the Senate. In 1872 a similar bill pa.s.sed the House without a division.

The Democratic Party has invariably supported the position of Madison and Jackson, that the power of removal is vested by the Const.i.tution in the President, and cannot be controlled by legislation.

This was the condition of matters when Mr. Cleveland came into office March 4, 1885. The Revised Statutes, Sections 1767-1772, contained in substance the law as it was left by the legislation of 1867 and 1869 (Sec. 1767): "Every person holding any civil office to which he has been or hereafter may be appointed by and with the consent of the Senate, and who shall have become duly qualified to act therein, shall be ent.i.tled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor, in his place, except as herein otherwise provided."

The President was however authorized to suspend civil officers during the recess, except Judges, until the next session of the Senate, and to designate a subst.i.tute who should discharge the duties of the office, himself being subject to removal by the designation of another.

The President was further required to nominate within thirty days after the commencement of each session of the Senate persons to fill all vacancies in office, which existed at the meeting of the Senate, whether temporarily filled or not, and in place of all officers suspended. If no appointment were made, with the advice and consent of the Senate during such session, the office was to be in abeyance.

It will be seen that this statute required the a.s.sent of the Senate to the exercise of the President's power of removal, although without its consent he could suspend the officer so as to deprive him of the emoluments of his office.

So the appointment of a new officer by the advice and consent of the Senate operated in such case as a removal of the person them holding office, and a failure of the Senate to confirm such proposed appointment had the effect to restore the officer suspended, or temporarily removed.

Under these conditions there grew up a very earnest controversy between President Cleveland and the Republican majority in the Senate, led by the Judiciary Committee, of which Mr. Edmunds was then Chairman. It has been, I suppose from the beginning of the Government, the practice of the President to furnish to the Senate all papers and doc.u.ments in his possession relating to the fitness of officials nominated to the Senate.

Mr. Cleveland made no objection, if I understood him correctly, to continuing that practice. But he claimed that the Senate had nothing to do with the exercise of his power of removal, and therefore was not ent.i.tled to be informed of the evidence upon which he acted in that. So he refused and sustained the heads of Departments in refusing the request of the Senate to send for its information the doc.u.ments on file relating to removals.

This position was encountered by the Republican majority, some of them claiming that the Senate had the same rightful share in the removals as in appointments, and that no difference was to be made between the two cases. Others believed, as I did, that although the power of removal might be exercised by the President alone on his own responsibility, without requiring the advice and consent of the Senate, still that while the President was proceeding under the law by which the appointment itself operated as a removal, and a failure to affirm the appointment restored the old officer to his place again, that the Senate whose action was to have that important effect, was ent.i.tled not only to know whether the public interest would be served by the appointment of the proposed official on his own merits solely, but also whether it would be best served by the removal of his predecessor or by the restoration to office of his predecessor. Both the President and the Senate were acting under the existing law, treating it as in force and valid. Now suppose it were true that the question of advising and consenting to the appointment proposed by the President were a very doubtful one indeed, the question on its merits being closely balanced; and the officer to be removed or restored according as the Senate should consent or refuse to consent, was a man of conspicuous and unquestioned capacity and character, against whom no reasonable objection was brought, to be removed for political reasons solely. The Senate certainly, in exercising its power had the right to consider all that the President had a right to consider, and therefore it seems to me that we were justified, in that cla.s.s of cases, in asking for the doc.u.ments in his possession bearing upon the question of removal.

It will be observed that in none of the arguments of this Const.i.tutional question has it been claimed that the President had the right without statute authority to suspend public officers, even if he had the right to remove them. That right, if he had it at all, he got under the statute under which he and the Senate were acting.

On the 17th of July, 1885, the President issued an order suspending George M. Duskin of Alabama, from the office of Attorney of the United States, by virtue of the authority conferred upon him by Sec. 1768 of the Revised Statutes, which is a reenactment of the law of which I have just spoken.

On the 14th of December, 1885, the President nominated to the Senate John D. Burnett, vice George M. Duskin, suspended.

The Chairman of the Committee on the Judiciary, as had been usual in such cases, addressed a note to the Attorney-General, asking that all papers and information in the possession of the Department touching the conduct and administration of the officer proposed to be removed, and touching the character and conduct of the person proposed to be appointed, be sent to the Committee for its information. To this the Attorney- General replied that he was directed by the President to say that there been sent already to the Judiciary Committee all papers in the Department relating to the fitness of John D.

Burnett, recently nominated, but that it was not considered that the public interests would be promoted by a compliance with said resolution and the transmission of the papers and doc.u.ment therein mentioned to the Senate in Executive session.

That made a direct issue. Thereupon a very powerful report affirming the right of the Senate to require such papers was prepared by Mr. Edmunds, Chairman of the Committee on the Judiciary, and signed by George F. Edmunds, Chairman, John J. Ingalls, S. J. R. McMillan, George F. h.o.a.r, James F. Wilson and William M. Evarts.

This was accompanied by a dissenting report by the minority of the Committee, signed by James L. Pugh, Richard c.o.ke, George C. Vest and Howell E. Jackson, afterward a.s.sociate Justice of the Supreme Court of the United States.

So it will be seen that the two sides were very powerfully represented. The report of the Committee was encountered by a message from President Cleveland, dated March 1, 1886, in which the President claimed that these papers in the Attorney- General's Department were in no sense upon its files, but were deposited there for his convenience. He said: "I suppose if I desired to take them into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain." Continuing, the President says that the demands of the Senate "a.s.sume the right 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."

He refers to the laws upon which the Senate based its demand and said: "After an existence of nearly twenty years of almost innocuous desuetude these laws are brought forth--apparently the repealed as well as the unrepealed--and put in the way of an Executive who is willing, if permitted, to attempt an improvement in the methods of administration. The Const.i.tutionality of these laws is by no means admitted."

The President seemed to forget that he had taken action under those laws, and had expressly cited them as the authority for his action, in his message announcing the suspension of the official.

The controversy waxed warm in the Senate, and in the press throughout the country. The effect of it was that the confirmation of Mr. Cleveland's nominees for important offices was postponed for several months, in some cases eight to ten, but as they were exercising their functions under temporary appointments, it made no difference to them. When they were at last confirmed by the Senate, they received commissions dated from the appointment which took place after the advice and consent of the Senate.

So the four years, for which they could hold office, began to run then, and when a new Administration of a different politics came into power, they held their office for a period considerably more than four years, except a few who were actually removed by President Harrison.

I do not think the people cared much about the dispute. The sympathy was rather with President Cleveland. The people, both Republicans and Democrats, expected that the political control of the more important offices would be changed when a new party came into power, and considered Mr. Edmunds's Const.i.tutional argument as a mere ingenious device to protract the day when their political fate should overtake the Republican officials.

I united with the majority of the Committee in the report, for the reasons I have stated above. I still think the position of the Senate right, and that of the President wrong. But I never agreed to the claim that the Senate had anything to do with the President's power of removal. So I took the first opportunity to introduce a bill repealing the provisions of the statute relating to the tenure of office, which interfered with the President's power of removal, so that we might go back again to the law which had been in force from the foundation of the Government, in the controversy with President Jackson.

A majority of the Republicans had attempted to do that, as I have said, in the first session of Congress under President Grant. But it had been defeated by the Senate. So I introduced in the December session, 1886, a bill which became a law March 3, 1887, as follows:

"Be enacted, etc., That sections 1767, 1768, 1769, 1770, 1771, and 1772 of the Revised Statutes of the United States are hereby repealed.

"Sec. 2. This repeal shall not affect any officer heretofore suspended under the provisions of said sections, or any designation, nomination or appointment heretofore made by virtue of the provisions thereof.

"Approved, March 3, 1887."

But the blood of my Republican a.s.sociates was up. I got a few Republican votes for my Bill. It pa.s.sed the House by a vote of 172 to 67. Every Ma.s.sachusetts Representative voted for the Bill, as did Speaker Reed. But in general the votes against it were Republican votes. Governor Long made an able speech in its favor.

In the Senate three Republicans only voted with me. Among the nays were several Senators who, as members of the House, had voted for a Bill involving the same principle in 1869.

Mr. Evarts, though absent at the time of this vote, declared his approval of the Bill in debate; and so, I think, did Mr.

Dawes, although of that I am not sure. Mr. Edmunds opposed it with all his might and main.

Mr. Sherman, always a good friend of mine, remonstrated with me. He asked me with great seriousness, if I was conscious of the extent of the feeling among the Republicans of the Senate at my undertaking to act in opposition to them on this and one or two other important matters, to which he alluded. I replied that I must of course do what seemed to be my duty, and that in my opinion I was rendering a great service to the Republican Party in getting rid of the controversy in which the people sympathized generally with the Democrats, and that I thought the gentlemen who differed from me, would come to my way of thinking pretty soon. The result proved the soundness of my judgment. I do not think a man can be found in the Senate now who would wish to go back to the law which was pa.s.sed to put fetters on the limbs of Andrew Johnson.

I have asked several gentlemen who voted against the repeal whether they did not think so, and they all now agree that the measure was eminently wise and right. The opposition to the statute of 1887 was but the dying embers of the old fires of the Johnson controversy.