This was the condition of the so-called tenure of office legislation when a Democratic President was inaugurated and placed in expected coöperation with a Republican majority in the Senate—well drilled, well organized, with partizanship enough at least to insure against indifference to party advantage, and perhaps with here and there a trace of post-election irritation.
Whatever may be said as to the constitutionality of the Tenure of Office laws of 1867 and 1869, certainly the latter statute did not seem, in outside appearance, to be charged with explosive material that endangered Executive prerogative. It grew out of a bill for the absolute and unconditional repeal of the law of 1867 relating to removals and suspensions. This bill originated in the House of Representatives, and passed that body so nearly unanimously that only sixteen votes were recorded against it. In the Senate, however, amendments were proposed, which being rejected by the House, a committee of conference was appointed to adjust, by compromise if possible, the controversy between the two bodies. This resulted in an agreement by the committee upon the provisions of the law of 1869, as a settlement of the difficulty. In the debate in the House of Representatives on the report of the committee, great uncertainty and differences of opinion were developed as to its meaning and effect. Even the House conferees differed in their explanation of it. Members were assured that the proposed modifications of the law of 1867, if adopted, would amount to its complete repeal; and it was also asserted with equal confidence that some of its objectionable limitations upon executive authority would still remain in force. In this state of confusion and doubt the House of Representatives, which a few days before had passed a measure for unconditional repeal, with only sixteen votes against it, adopted the report of the conference committee with sixty-seven votes in the negative.
So far as removals following suspensions are concerned, the language of the law of 1869 certainly seems to justify the understanding that in this particular it virtually repealed the existing statute.
The provision permitting the President to suspend only on certain specified grounds was so changed as to allow him to make such suspensions “in his discretion.” The requirements that the President should report to the Senate “the evidence and reasons for his action in the case,” and making the advice and consent of the Senate necessary to the removal of a suspended officer, were entirely eliminated; and in lieu of the provision in the law of 1867 that “if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office,” the law of 1869, after requiring the President to send to the Senate nominations to fill the place of officers who had been “in his discretion” suspended, declared “that if the Senate, during such session, shall refuse to advise and consent to an appointment in the place of any suspended officer,”—that is, shall refuse to confirm the person appointed by the President in place of the officer suspended,—not that “such officer so suspended shall resume the functions of his office,” but that “then, and not otherwise, the President shall nominate another person as soon as practicable to said session of the Senate for said office.”
It seems to me that the gist of the whole matter is contained in a comparison of these two provisions. Under the law of 1867 the incumbent is only conditionally suspended, still having the right to resume his office in case the Senate refuses to concur in the suspension; but under the law of 1869 the Senate had no concern with the suspension of the incumbent, nor with the discretion vested in the President in reference thereto by the express language of the statute; and the suspended incumbent was beyond official resuscitation. Instead of the least intimation that in any event he might “resume the functions of his office,” as provided in the law of 1867, it is especially declared that in case the Senate shall refuse to advise and consent to the appointment of the particular person nominated by the President in place of the suspended official, he shall nominate another person to the Senate for such office. Thus the party suspended seems to be eliminated from consideration, the Senate is relegated to its constitutional rights of confirming or rejecting nominations as it sees fit, and the President is reinstated in his undoubted constitutional power of removal through the form of suspension.
In addition to what is apparent from a comparison of these two statutes, it may not be improper to glance at certain phases of executive and senatorial action since the passage of the law of 1869 as bearing upon the theory that, so far as it dealt with suspensions and their effect, if it did not amount to a repeal of the law of 1867, it at least extinguished all its harmful vitality as a limitation of executive prerogative. It has been stated, apparently by authority, that President Grant within seven weeks after his inauguration on the 4th of March, 1869, sent to the Senate six hundred and eighty cases of removals or suspensions, all of which I assume were entirely proper and justifiable. I cannot tell how many of the cases thus submitted to the Senate were suspensions, nor how many of them purported to be removals; nor do I know how many nominations of new officers accompanying them were confirmed. It appears that ninety-seven of them were withdrawn before they were acted upon by the Senate; and inasmuch as the law of 1867 was in force during four of the seven weeks within which these removals and suspensions were submitted, it is barely possible that these withdrawals were made during the four weeks when the law of 1867 was operative, to await a more convenient season under the law of 1869. Attention should be here called, however, to the dissatisfaction of President Grant, early in his incumbency, with the complexion of the situation, even under the repealing and amendatory law of 1869. In his first annual message to the Congress in December, 1869, he complained of that statute as “being inconsistent with a faithful and efficient administration of the Government,” and recommended its repeal. Perhaps he was led to apprehend that the Senate would claim under its provisions the power to prevent the President from putting out of office an undesirable official by suspension. This is indicated by the following sentence in his message: “What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason?” Or it may be possible that he did not then appreciate how accommodatingly the law might be construed or enforced when the President and Senate were in political accord. However these things may be, it is important to observe, in considering the light in which the law of 1869 came to be regarded by both the Executive and the Senate, that President Grant did not deem it necessary afterward to renew his recommendation for its repeal, and that at no time since its enactment has its existence been permitted to embarrass executive action prior to the inauguration of a President politically opposed to the majority in the Senate.
The review which I have thus made of the creation of our national Executive office, and of certain events and incidents which interpreted its powers and functions, leads me now to a detailed account of the incident mentioned by me at the beginning as related to the general subject under discussion and in which I was personally concerned. But before proceeding further, I desire to say that any allusion I may have made, or may hereafter make, recognizing the existence of partizanship in certain quarters does not arise from a spirit of complaint or condemnation. I intend no more by such allusions than to explain and illustrate the matters with which I have to deal by surrounding conditions and circumstances. I fully appreciate the fact that partizanship follows party organization, that it is apt to be unduly developed in all parties, and that it often hampers the best aspirations and purposes of public life; but I hope I have reached a condition when I can recall such adverse partizanship as may have entered into past conflicts and perplexities, without misleading irritation or prejudice.
III
Immediately after the change of administration in 1885, the pressure began for the ousting of Republican office-holders and the substitution of Democrats in their places. While I claim to have earned a position which entitles me to resent the accusation that I either openly or covertly favor swift official decapitation for partizan purposes, I have no sympathy with the intolerant people who, without the least appreciation of the meaning of party work and service, superciliously affect to despise all those who apply for office as they would those guilty of a flagrant misdemeanor. It will indeed be a happy day when the ascendancy of party principles, and the attainment of wholesome administration, will be universally regarded as sufficient rewards of individual and legitimate party service. Much has already been accomplished in the direction of closing the door of partizanship as an entrance to public employment; and though this branch of effort in the public interest may well be still further extended, such extension certainly should be supplemented by earnest and persuasive attempts to correct among our people long-cherished notions concerning the ends that should be sought through political activity, and by efforts to uproot pernicious and office-rewarding political methods. I am not sure that any satisfactory progress can be made toward these results, until our good men with unanimity cease regarding politics as necessarily debasing, and by active participation shall displace the selfish and unworthy who, when uninterrupted, control party operations. In the meantime, why should we indiscriminately hate those who seek office? They may not have entirely emancipated themselves from the belief that the offices should pass with party victory; but even if this is charged against them, it can surely be said that in all other respects they are in many instances as honest, as capable, and as intelligent as any of us. There may be reasons and considerations which properly defeat their aspirations, but their applications are not always disgraceful. I have an idea that sometimes the greatest difference between them and those who needlessly abuse them and gloat over their discomfiture, consists in the fact that the office-seekers desire office, and their critics, being more profitably employed, do not. I feel constrained to say this much by way of defending, or at least excusing, many belonging to a numerous contingent of citizens, who, after the 4th of March, 1885, made large drafts upon my time, vitality, and patience; and I feel bound to say that in view of their frequent disappointments, and the difficulty they found in appreciating the validity of the reasons given for refusing their applications, they accepted the situation with as much good nature and contentment as could possibly have been anticipated. It must be remembered that they and their party associates had been banished from Federal office-holding for twenty-four years.