The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-03-02

is no mysterious power of transmutation in de-
partmental custody, nor is there magic in the
underlined and sacred solemnity OF department.
files. If the presence of these papers in the pno-
lie Offices is stumbling block in the way of the
performance<of senatorial duty, it can be easily
removed.
1.-THE papers and documents which have been
described derive no official character from any
constitutional. statutory, or other requirement.
making them necessary to the performance OF
the official duty of the executive. It will not be
denied, / suppose, that the President may sus-
pend public officer in the entire absence of any
papers or documents to aid his official judgment
and discretion. And / am quite prepared to
avow that the not few in which sus
pensions from Office have depended more upon
oral representations made to me by citizens of
known good repute, and by members of the
House of Representatives and Senators of the
United States, than upon any letters and docu-
ments presented for my examin nation. / have
not felt justified in suspecting the veracity, in
tegrity and patriotism of Senators, or ignoring
their representations, because they were not In
party affiliaton with the majority of their asso-
clates; and recall few suspensions which bear
the approval Of individual members identified
politically with the majority in the Senate.
While. therefore, l am constrained to deny
the right of the Senate to the papers and
documents described, so far as the right to
the same is based upon the claim that they are,
in any view of the subject, official, am also led
unequvocally to dispute the right of the Senate,
by the aid of any documents whatever or in any
way save through the judicial progress of trial
impeachm ent, to review or reverse the act of the
executive in the suspension, during the recess
OF the Senate, of federal officials believe the
power to remove or suspend such officials is
vested in the President alone by the Consttu-
ton, which, in express terms, provides that the
executive power shall be vested in President
of the United States of America, and that he
shall take care that the laws be faithfully exc
cuted.'
"Tl-e Senate belongs to the legislative branch
OF the government When the Constitution, by
express provision, sIperadded to it's legislative
duties the right to advise and consent to appoint
ments to Office and to sit as q court of inn
peachment it conferred upon that body all
the control and regulation of executive action
supposed to be necessary for the safety of the
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 departure from the general plan of our
government, should be held, under familiar
maxim of construction, 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. legislative con-
struction was given to that instrument, in which
the independence of the executive in the matter
of removals from Office was fully sustained. 1
think it will be found that in the subsequent
discussions OF this question there was generally,
II not at all times, proposition pending to in
some way curtail this power of the President by
legislation, which furnishes evidence that to
limit such power it was supposed to be
necessary to supplement- the Constitution
by such legislation. The first enactment
OF this description was passed under
a stress of partisanship and political bitterness
which eliminated in the Presidents impeach-
ment This law provided that the federal officers
to which it applied could only be suspended dur
ing the recess of the Senate when shown by evi-
dence satisfactory to the President to be guilty
of misconduct in Office, crime, or when incapa-
BILE 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 Presi
dent to report to the Senate such suspensions,
with the evidence and reasons for his action in
the cases. This statute, passed in 1867, when
Congress was overwhelmingly and bitterly op-
posed, politically, to the President. may he re-
garded as an indication that even then it was
thought necessary by q Congress determined
upon the subjugation of the executive to
legislative will to furnish itself law for
that purpose, instead of attempting to
reach the object intended by an invocation
of many pretended constitutional rights The
law which thus found its way to our statute
book was plain in its terms, and its intent need
ed no avowal. If valid and now in operation, it
would justify the present course Of the Senate
and command the obedience of the executive to
its demands 1t may, however, be remarked in
passing, that, under the law, the President has
the privilege of presenting to the BODY which
assumed to review his executive acts his reasons
therefor instead Of being excluded from explana-
tion or judged by papers found in the depart
ments.
1.-TWO years after the law of 1867 was passed,
and within less than five weeks after the inaug-
uration Of President in political accord with
both branches OF Congress, the sections of the
act regulating suspensions from Office during the
recess OF the Senate were entirely repealed, and
in their places were substituted provisions
which, instead of limiting the causes of
suspensions to misconduct crime, disabil-
ity or disqualification, expressly permitted
suspensions by the President in his
discretion, and completely abandoned the re-
quirement obligiug him to report to the Senate
the evidence and reasons for his action. With
these notifications, and with all branches of the
government in political harmony, and in the alb
sence of partisan incentive to captious OBJ
struction, the law as it was left by the amend
ment of 1869 was much less destructive of ex-
ecutive discretion. And yet the great General
and patriotic citizen who, on the 4th of March,
1899, assumed the duties of chief executive and
for whose freer administration of his high
Office the most hateful restraints Of the law of
1867 were, on the 9th day of April, 1869 re-
moved, mindful of his obligation to defend and
protect every prerogative of his great trust, and
apprehensive of the injury threatened the pub
lie service in the continued operation 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. l am unable to state whether
or not this recomm endaton 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 various characters.
''And so it happens that after an existence of
nearly twenty years of almost innocuous desue
tude, these laws are brought forth, apparently
the repealed as we'll as the unrepealed and put
in the way of an executive who is willing, if per-
mitted. attempt Improvement in the
methods of administration.
"The constitutonality of these laws is by no
means admitted. But why should the provis-
ions of the repealed law, which requires specific
cause for suspension and report to the Senate
of evidence and reasons be now in effect ap-
piled to the present executive instead of those of
the law afterwards passed and unrepealed, which
distinctly permits suspensions by the President
in his discretion and carefully omts the re-
qurement that evidence and reasons for his