I have referred to these matters because it seems to me they indicate the animus and intent which characterized the first stages of a discussion that involved the rights and functions of the Executive branch of the Government. It was perfectly apparent that the issue was between the President and the Senate, and that the question constituting that issue was whether or not the Executive was invested with the right and power to suspend officials without the interference of the Senate or any accountability to that body for the reasons of his action. It was also manifest if it was desired to deal with this issue directly and fairly, disembarrassed by any finesse for position, it could at any time have been easily done, if only one of the many requests for reasons for suspensions, which were sent by committees of the Senate to heads of departments, had been sent by the Senate itself to the President.
Within three days after the passage by the Senate, in executive session, of the resolution directing the Attorney-General to transmit to that body the documents and papers on file relating to the management and conduct of the office from which Mr. Duskin had been removed, and to which Mr. Burnett had been nominated, the Attorney-General replied thereto as follows:
In response to the said resolution, the President of the United States directs me to say that the papers that were in this department relating to the fitness of John D. Burnett, recently nominated to said office, having already been sent to the Senate Committee on the Judiciary, and the papers and documents which are mentioned in the said resolution, and still remaining in the custody of this department, having exclusive reference to the suspension by the President of George M. Duskin, the late incumbent of the office of District Attorney for the Southern District of Alabama, it is not considered that the public interests will be promoted by a compliance with said resolution and the transmission of the papers and documents therein mentioned to the Senate in executive session.
This response of the Attorney-General was referred to the Senate Committee on the Judiciary. Early in February, 1886, a majority of the committee made a report to the Senate, in which it seems to have been claimed that all papers—whatever may be their personal, private, or confidential character—if placed on file, or, in other words, if deposited in the office of the head of a department, became thereupon official papers, and that the Senate had therefore a right to their transmittal when they had reference to the conduct of a suspended official, and when that body had under advisement the confirmation of his proposed successor. Much stress was laid upon the professions made by the President of his adherence to Civil Service reform methods, and it was broadly hinted that, in the face of six hundred and forty-three suspensions from office, these professions could hardly be sincere. Instances were cited in which papers and information had been demanded and furnished in previous administrations, and these were claimed to be precedents in favor of the position assumed by the majority of the committee. Almost at the outset of the report it was declared:
The important question, then, is whether it is within 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.
In conclusion, the majority recommended the adoption by the Senate of the following resolutions:
Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January and set forth in the report of the Committee on the Judiciary, as in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof.
Resolved, That it is under these circumstances the duty of the Senate to refuse its advice and consent to proposed removals of officers, the documents and papers in reference to the supposed official or personal misconduct of whom are withheld by the Executive or any head of a department when deemed necessary by the Senate and called for in considering the matter.
Resolved, That the provision of Section 1754 of the Revised Statutes, declaring that persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointment to civil offices provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices, ought to be faithfully and fully put in execution, and that to remove or to propose to remove any such soldier whose faithfulness, competency, and character are above reproach, and to give place to another who has not rendered such service, is a violation of the spirit of the law and of the practical gratitude the people and the Government of the United States owe to the defenders of constitutional liberty and the integrity of the Government.
The first of these resolutions contains charges which, if true, should clearly furnish grounds for the impeachment of the Attorney-General—if not the President under whose “influence” he concededly refused to submit the papers demanded by the Senate. A public officer whose acts are “in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof,” can scarcely add anything to his predicament of guilt.
The second resolution has the merit of honesty in confessing that the intent and object of the demand upon the Attorney-General was to secure the demanded papers and documents for the purpose of passing upon the President’s reasons for suspension. Beyond this, the declaration it contains, that it was the “duty of the Senate to refuse its advice and consent to proposed removals of officers” when the papers and documents relating to their “supposed official or personal misconduct” were withheld, certainly obliged the Senate, if the resolution should be adopted, and if the good faith of that body in the controversy should be assumed, to reject or ignore all nominations made to succeed suspended officers unless the documents and papers upon which the suspension was based were furnished and the Senate was thus given an opportunity to review and reverse or confirm the President’s executive act, resting, by the very terms of existing law, “in his discretion.”
The third resolution is grandly phrased, and its sentiment is patriotic, noble, and inspiriting. Inasmuch, however, as the removal of veteran soldiers from office did not seem to assume any considerable prominence in the arraignment of the administration, the object of the resolution is slightly obscure, unless, as was not unusual in those days, the cause of the old soldier was impressed into the service of the controversy for purposes of general utility.