CONGRESS. (SUSPENSIONS FROM OFFICE.) 



239 



This letter, although in response to the direction of 

 the Senate that copies of any papers bearing on the 

 subject within a given period of time be transmitted, 

 assumes that the Attorney-General of the United 

 States is the servant of the President, and is to give 

 or withhold copies of documents in his office accord- 

 ing to the will of the Executive and not otherwise. 



Your committee is unable to discover, either in the 

 original act of 1789 creating the office of Attorney- 

 General or in the act of 1870 creating the department 

 of Justice, any provision which makes the Attorney- 

 General of the United States in any sense the servant 

 of or controlled by the Executive in the performance 

 of the duties imputed to him by law or the nature of 

 his office. It is true that in the creation of the De- 

 partment of State, of War, and of the Navy, it was 

 provided in substance that these Secretaries should 

 perform such duties as should from time to time be 

 enjoined upon them by the President, and should 

 conduct the business of their departments in such 

 manner as the President should direct, but the com- 

 mittee does not think it important to the main ques- 

 tion under consideration that such direction is not 

 to be found in the statute creating the Department of 

 Justice, for it is thought it must be obvious that the 

 authority intrusted by the statute in these cases to the 

 President to direct and control the performance of 

 duties was only a superintending authority to regu- 

 late the performance of the duties that the law re- 

 quired, and not to require the performance of duties 

 that the laws had not devolved upon the heads of de- 

 partments, and not to dispense with or forbid the 

 performance of such duties according as it might suit 

 the discretion or the fancy of the Executive. The 

 Executive is bound by the Constitution and by his 

 oath to take care that the laws be faithfully executed, 

 and he is himself as much bound by the regulations 

 of law as the humblest officer in the service of the 

 United States, and he can not have authority to un- 

 dertake to faithfully execute the laws, whether ap- 

 plied to his own special functions or those of the de- 

 partments created by law, otherwise than by causing, 

 so far as he lawfully may and by lawful methods, the 

 heads of departments and other officers of the United 

 States to do the duties which the law, and not his 

 will, has imputed to them. 



The important question, then, is whether it is with- 

 in 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. It may 

 be fully admitted that, except in respect of the De- 

 partment of the Treasury, there is no statute which 

 commands the head of any department to transmit to 

 either House of Congress on its demand any infor- 

 mation whatever concerning the administration of his 

 department ; but the committee believes it to be clear 

 that from the very nature of the powers intrusted by 

 the Constitution to the two Houses of Congress it is 

 a necessary incident that either House must have at 

 all times tlie right to know all that officially exists or 

 takes place in any of the departments of the Govern- 

 ment. So perfectly was this proposition understood 

 before and at the time of the formation of the Consti- 

 tution, that the Continental Congress, before the 

 adoption of the present Constitution, in establishing a 

 department of foreign affairs, and providing for a 

 principal officer thereof, thought it fit to enact that all 

 books, records, and other papers in that office should 

 be open to the inspection of any member of Congress, 

 provided that no copy should be taken of matters of 

 secret nature without special leave of Congress. It 

 was not thought necessary to enact that the^Congress 

 itself should be entitled to the production and inspec- 

 tion of such papers, for that right was supposed to 

 exist in the very nature of things ; and when under 

 the Constitution the department came to be created, 

 although the provision that each individual member 

 of Congress should have access to the papers was 

 omitted (evidently for reasons that can now be quite 



well understood) it was not thought necessary that an 

 affirmative provision should be inserted giving to the 

 Houses of Congress the right to know the contents of 

 the public papers and records in the public offices of 

 the country whose laws and whose offices they were 

 to assist in creating. 



It is believed that there is no instance of civilized 

 governments haying bodies representative of the peo- 

 ple or of states in which the right and the power of 

 those representative bodies to obtain hi one form or 

 another complete information as to every paper and 

 transaction in any of the executive departments there- 

 of does not exist, even though such papers might relate 

 to what is ordinarily an executive function, if that 

 function impinged upon any duty or function of the 

 representative bodies. A qualification of this general 

 right may, under our Constitution, exist in the case of 

 calls by the House of Representatives for papers relat- 

 ing to treaties, etc., under consideration and not yet 

 disposed of by the President and Senate. 



The committee feels authorized to state, after a some- 

 what careful research, that within the foregoing limits 

 there is scarcely in the history of this Government 

 until now any instance of a refusal by a head of a de- 

 partment, or even of the President himself, to com- 

 municate official facts and information as distinguished 

 from private and unofficial papers, motions, views, 

 reasons, and opinions, to either House of Congress 

 when unconditionally demanded. Indeed, the early 

 Journals of the Senate show great numbers of in- 

 stances of directions to the heads of departments, as, 

 of course, to furnish papers and reports upon all sorts 

 of affairs both legislative and executive. 



The instances of requests to the President and com- 

 mands to the heads of departments by each House of 

 Congress from those days until now, for papers and 

 information on every conceivable subject of public 

 affairs, are almost innumerable ; for it appears to have 

 been thought by all the Presidents who have carried 

 on the Government now for almost a century that even 

 in respect of requests to them, an independent and 

 co-ordinate branch of the Government, they were un- 

 der a constitutional duty and obligation to furnish to 

 either House the papers called for, unless, as has hap- 

 pened in very rare instances, when the request was 

 coupled with an appeal to the discretion of the Presi- 

 dent in respect of the danger of publicity to send the 

 papers if, in his judgment, it should not be incompat- 

 ible with the public welfare. 



The report, after giving a number of these 

 precedents, proceeded as follows: 



But it would seem to be needless to array further 

 precedents out of the vast mass that exists in the 

 Journals of the Houses covering probably every year 

 of the existence of the Government. The practical 

 construction of the Constitution in these respects by 

 all branches of the Government for so long a period 

 would seem upon acknowledged principles to settle 

 what are the rights and powers of the two Houses of 

 Congress in the exercise of their respective duties 

 covering every branch of the operations of the Gov- 

 ernment, and it is submitted with confidence that 

 such rights and powers are indispensable to the dis- 

 charge of their duties and do not infringe any right of 

 the Executive, and that it does not belong* to either 

 heads of departments or to the President "himself to 

 take into consideration any supposed motives or pur- 

 poses that either House may have in calling for such 

 papers, or whether their possession or knowledge of 

 their contents could be applied by either House to 

 useful purposes. 



The Constitution of the United States was adopted 

 in the light of the well -known history that even min- 

 isters of the English Crown were bound to lay before 

 Parliament all papers when demanded on pain of the 

 instant dismissal of such ministers on refusal, through 

 the rapid and effectual instrumentality of a vote of 

 want of confidence. And the Continental Congress 

 had for more than ten years itself governed the coun- 



