244 



CONGRESS. (SUSPENSIONS FBOM OFFICE.) 



people ; and this express and special grant of such 

 extraordinary powers, not in any way related to or 

 growing out of general senatorial duty, and in itself a 

 departure from the general plan of our Government, 

 should be held, under a familiar maxim of construc- 

 tion, to exclude every other right of interference with 

 executive functions. 



In the first Congress which assembled after the 

 adoption of the Constitution, comprising many who 

 aided in its preparation, a legislative construction was 

 given to that instrument in which the independence 

 of the Executive in the matter of removals from office 

 was fully sustained. 



I think it will be found that in the subsequent dis- 

 cussions of this question there was generally, if not 

 at all times, a proposition pending to in some way cur- 

 tail this power of the President by legislation, which 

 furnishes evidence that to limit such power it was 

 supposed to be necessary to supplement the Consti- 

 tution by such legislation. 



The first enactment of this description was passed 

 under a stress of partisanship and political bitterness 

 which culminated in the President's impeachment. 



This law provided that the Federal officers to which 

 it applied could only be suspended during the recess 

 of the Senate when shown by evidence satisfactory to 

 the President to be guilty of misconduct in office, or 

 crime, or when incapable or disqualified to perform 

 their duties, and that within twenty days after the 

 next meeting of the Senate it should be the duty of 

 the President " to report to the Senate such suspen- 

 sion, with the evidence and reasons for his action in 

 the case." 



This statute passed in 1867 when Congress was over- 

 whelmingly and bitterly opposed politically to the 

 President, may be regarded as an indication that even 

 then it was thought necessary by a Congress deter- 

 mined upon the subjugation of the Executive to legis- 

 lative will to furnish itself a law for that purpose, in- 

 stead of attempting to reach the object intended by an 

 invocation of any pretended constitutional right. 



The Jaw which thus found its way to our statute- 

 book was plain in its termSj and its intent needed no 

 avowal. If valid and now in operation it would jus- 

 tify the present course of the Senate and command 

 the obedience of the Executive to its demands. It may, 

 however, be remarked in passing that, under this law 

 the President had the priviledge of presenting to the 

 body which assumed to review his executive acts his 

 reasons therefor, instead of being excluded from 

 explanation or judged by papers found in the depart- 

 ments. 



Two years after the law of 1867 was passed, and 

 within less than five weeks after the inauguration of a 

 President in political accord with both branches of 

 Congress, the sections of the act regulating suspen- 

 sions from office during the recess of the Senate were 

 entirely repealed, and m their place were substituted 

 provisions which, instead of limiting the causes of 

 suspension to misconduct, crime, disability, or dis- 

 qualification, expressly permitted such suspension by 

 the President ' f in his discretion," and completely 

 abandoned the requirement obliging him to report 

 to the Senate " the evidence and reasons " for his 

 action. 



With these modifications and with all branches of the 

 Government in political harmony, and in the absence 

 of partisan incentive to captious obstruction, the law 

 as it was left by the amendment of 1869 was much 

 less destructive of executive discretion. And yet the 

 great general and patriotic citizen who on the 4th day 

 of March, 1869, assumed the duties of Chief Execu- 

 tive, and for whose freer administration of his high 

 office the most hateful restraints of the law of 1867 

 were on the 5th day of April, 1869, removed, mindful 

 of his obligation to defend and protect every preroga- 

 tive of his great trust, and apprehensive of the injury 

 threatened the public service in the continued opera- 

 tion of these statutes even in their modified form, in 

 his first message to Congress advised their repeal, and 



set forth their unconstitutional character and hurtful 

 tendency in the following language : 



" It may be well to mention here the embarrass- 

 ment possible to arise from leaving on the statute- 

 books the so-called ' tenure-of- office acts ' and to ear- 

 nestly recommend their total repeal. It could not 

 have been the intention of the framers of the Constitu- 

 tion, when providing that appointments made by the 

 President should receive trie consent of the Senate, 

 that the latter should have the power to retain in 

 office persons placed there by Federal appointment 

 against the will of the Presdient. The law is incon- 

 sistent with a faithful and efficient administration of 

 the Government. What faith can an Executive put 

 in officials forced upon 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 ? " 



I am_ unable to state whether or not this recom- 

 mendation for a repeal of these laws has been since 

 repeated. If it has not, the reason can probably be 

 found in the experience which demonstrated the fact 

 that the necessities of the political situation but rarely 

 developed their vicious character. 



And so it happens that 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 improve- 

 ment in the methods of administration. 



The constitutionality of these laws is by no means 

 admitted. But why should the provisions of the re- 

 pealed law, which required specific cause for suspen- 

 sion and a report to the Senate of " evidence and 

 reasons," be now, in effect, applied to the present 

 Executive, instead of the law, afterward passed and 

 unrepealed, which distinctly permits suspensions by 

 the President " in his discretion," and carefully omits 

 the requirement that " evidence and reasons for his 

 action in the case " shall be reported to the Senate. 



The requests and demands which by the score have 

 for nearly three months been presented to the dif- 

 ferent departments of the Government whatever may 

 be their form, have but one complexion. They as- 

 sume 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 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 

 to relinquish them, and my duty to the chief magis- 

 tracy, which I must preserve unimpaired in all its 

 dignity and vigor, compel me to refuse compliance with 

 these demands. 



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 1 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 as- 

 sume the right to ask the reasons for the action of the 

 Senate nor question its determination. 1 can not think 

 that anything more is required to secure worthy in- 

 cumbents in public office than a careful and independ- 

 ent discharge of our respective duties within their 

 well-defined limits. 



Though the propriety of suspensions might be bet- 

 ter assured if the action of the President was sub- 

 ject to review by the Senate, yet if the Constitution 

 and the laws have placed this responsibility upon the 

 executive branch ot the Government, it should not be 

 divided nor the discretion which it involves relin- 

 quished. 



It has been claimed that the present Executive, hav- 



