Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

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 entitled 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 documents 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 entitled 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 class of cases, in asking for the documents in his possession bearing upon the question of removal.

It will be observed that in none of the arguments of this Constitutional 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 document 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. Hoar, 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 Coke, George C. Vest and Howell E. Jackson, afterward Associate 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 "assume 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 Constitutionality 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.