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4: A Constitutional Crisis

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A Constitutional Crisis

As soon as Cleveland was seated in the presidential chair, he had to deal with a tremendous onslaught of office seekers. In ordinary business affairs, a man responsible for general policy and management would never be expected to fritter away his time and strength in receiving applicants for employment. The fact that such servitude is imposed upon the President of the United States shows that American political arrangements are still rather barbaric, for such usages are more suitable to some kinglet seated under a tree to receive the petitions of his tribesmen than they are to a republican magistrate charged with the welfare of millions of people distributed over a vast continent. Office seekers apparently regard themselves as a privileged class with a right of personal access to the President, and any appearances of aloofness or reserve on his part gives sharp offense. The exceptional force of such claims of privilege in the United States may be attributed to the participation which members of Congress have acquired in the appointing power. The system thus created imposes upon the President the duties of an employment agent, and at the same time engages Congressmen in continual occupation as office brokers. The President cannot deny himself to Congressmen, since he is dependent upon their favor for opportunity to get legislative consideration for his measures.

It was inevitable that numerous changes in office should take place when the Democratic party came into power, after being excluded for twenty-four years. It may be admitted that, in a sound constitutional system, a change of management in the public business would not vacate all offices any more than in private business, but would affect only such leading positions as are responsible for policy and discipline. Such a sensible system, however, had existed only in the early days of the republic and at the time of Cleveland's accession to office federal offices were generally used as party barracks. The situation which confronted President Cleveland he thus described in later years:

"In numerous instances the post-offices were made headquarters for local party committees and organizations and the centers of partisan scheming. Party literature favorable to the postmaster's party, that never passed regularly through the mails, was distributed through the post-offices as an item of party service; and matter of a political character, passing through the mails in the usual course and addressed to patrons belonging to the opposite party, was withheld; disgusting and irritating placards were prominently displayed in many post-offices, and the attention of Democratic inquirers for mail matter was tauntingly directed to them by the postmaster; and in various other ways postmasters and similar officials annoyed and vexed those holding opposite political opinions, who, in common with all having business at public offices, were entitled to considerate and obliging treatment. In some quarters, official incumbents neglected public duty to do political work and especially in Southern States, they frequently were not only inordinately active in questionable political work, but sought to do party service by secret and sinister manipulation of colored votes, and by other practices inviting avoidable and dangerous collisions between the white and colored population."(1)

(1)Cleveland, Presidential Problems, pp. 42-43.

The Administration began its career in March, 1885. The Senate did not convene until December. Meanwhile, removals and appointments went on in the public service, the total for ten months being six hundred and forty-three which was thirty-seven less than the number of removals made by President Grant in seven weeks, in 1869.

In obedience to the statute of 1869, President Cleveland sent in all the recess appointments within thirty days after the opening of the session. They were referred to various committees according to the long established custom of the Senate, but the Senate moved so slowly that three months after the opening of the session, only seventeen nominations had been considered, fifteen of which the Senate confirmed.

Meanwhile, the Senate had raised an issue which the President met with a force and a directness probably unexpected. Among the recess appointments was one to the office of District Attorney for the Southern District of Alabama, in place of an officer who had been suspended in July 1885, but whose term of office expired by limitation on December 20, 1885. Therefore, at the time the Senate took up the case, the Tenure of Office Act did not apply to it, and the only question actually open was whether the acting officer should be confirmed or rejected. Nevertheless, the disposition to assert control over executive action was so strong that the Senate drifted into a constitutional struggle over a case that did not then involve the question of the President's discretionary power of removal from office, which was really the point at issue.

On December 26, 1885, the Judiciary Committee notified the Attorney-General to transmit "all papers and information in the possession of the Department" regarding both the nomination and "the suspension and proposed removal from office" of the former incumbent. On January 11, 1886, the Attorney-General sent to the Committee the papers bearing upon the nomination, but withheld those touching the removal on the ground that he had "received no direction from the President in relation to their transmission." The matter was debated by the Senate in executive session and on January 25, 1886, a resolution was adopted which was authoritative in its tone and which directed the Attorney-General to transmit copies of all documents and papers in relation to the conduct of the office of District Attorney for the Southern District of Alabama since January 1, 1885. Within three days, Attorney-General Garland responded that he had already transmitted all papers relating to the nomination; but with regard to the demand for papers exclusively relating to the suspension of the former incumbent he was directed by the President to say "that it is not considered that the public interests will be promoted by a compliance."

The response of the Attorney-General was referred to the Judiciary Committee which, on the 18th of February, made an elaborate report exhibiting the issue as one which involved the right of Congress to obtain information. It urged that "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." The report, which was signed only by the Republican members of the Committee, was an adroit partisan performance, invoking traditional constitutional principles in behalf of congressional privilege. A distinct and emphatic assertion of the prerogative of the Senate was made, however, in resolutions recommended to the Senate for adoption. Those resolutions censured the Attorney-General and declared it to be the duty of the Senate "to refuse its advice and consent to proposed removals of officers" when papers relating to them "are withheld by the Executive or any head of a department."

On the 2nd of March, a minority report was submitted, making the point of which the cogency was obvious, that inasmuch as the term of the official concerning whose suspension the Senate undertook to inquire had already expired by legal limitation, the only object in pressing for the papers in his case must be to review an act of the President which was no longer within the jurisdiction of the Senate, even if the constitutionality of the Tenure of Office Act should be granted. The report also showed that of the precedents cited in behalf of the majority's contention, the applicability could be maintained only of those which were supplied by cases arising since 1867, before which time the right of the President to remove officers at his own discretion was fully conceded.

The controversy had so far followed the ordinary lines of partisan contention in Congress, which public opinion was accustomed to regard with contemptuous indifference as mere sparring for points in the electioneering game. President Cleveland now intervened in a way which riveted the attention of the nation upon the issue. Ever since the memorable struggle which began when the Senate censured President Jackson and did not end until that censure was expunged, the Senate had been chary of a direct encounter with the President. Although the response of the Attorney-General stated that he was acting under the direction of the President, the pending resolutions avoided any mention of the President but expressed "condemnation of the refusal of the Attorney-General under whatever influence, to send to the Senate" the required papers. The logical implication was that, when the orders of the President and the Senate conflicted, it was the duty of the Attorney-General to obey the Senate. This raised an issue which President Cleveland met by sending to the Senate his message of March 1, 1886, which has taken a high rank among American constitutional documents. It is strong in its logic, dignified in its tone, terse, direct, and forceful in its diction.

Cleveland's message opened with the statement that "ever since the beginning of the present session of the Senate, the different heads of the departments attached to the executive branch of the government have been plied with various requests and documents from committees of the Senate, from members of such committees, and at last from the Senate itself, requiring the transmission of reasons for the suspension of certain officials during the recess of that body, or for papers touching the conduct of such officials." The President then observed that "though these suspensions are my executive acts, based upon considerations addressed to me alone and for which I am wholly responsible, I have had no invitation from the Senate to state the position which I have felt constrained to assume." Further on, he clinched this admission of full responsibility by declaring that "the letter of the Attorney-General in response to the resolution of the Senate... was written at my suggestion and by my direction."

This statement made clear in the sight of the nation that the true issue was between the President and the Senate. The strength of the Senate's position lay in its claim to the right of access to the records of public offices "created by laws enacted by themselves." The counterstroke of the President was one of the most effective passages of his message in its effect upon public opinion. "I do not suppose," he said, "that the public offices of the United States are regulated or controlled in their relations to either House of Congress by the fact that they were 'created by laws enacted by themselves.' It must be that these instrumentalities were enacted for the benefit of the people and to answer the general purposes of government under the Constitution and the laws, and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation."

The President asserted that, as a matter of fact, no official papers on file in the departments had been withheld. "While it is by no means conceded that the Senate has the right, in any case, to review the act of the Executive in removing or suspending a public officer upon official documents or otherwise, it is considered that documents and papers of that nature should, because they are official, be freely transmitted to the Senate upon its demand, trusting the use of the same, for proper and legitimate purposes, to the good faith of that body; and though no such paper or document has been especially demanded in any of the numerous requests and demands made upon the departments, yet as often as they were found in the public offices they have been furnished in answer to such applications." The point made by the President, with sharp emphasis, was that there was nothing in his action which could be construed as a refusal of access to official records; what he did refuse to acknowledge was the right of the Senate to inquire into his motives and to exact from him a disclosure of the facts, circumstances, and sources of information that prompted his action. The materials upon which his judgment was formed were of a varied character. "They consist of letters and representations addressed to the Executive or intended for his inspection; they are voluntarily written and presented by private citizens who are not in the least instigated thereto by any official invitation or at all subject to official control. While some of them are entitled to Executive consideration, many of them are so irrelevant or in the light of other facts so worthless, that they have not been given the least weight in determining the question to which they are supposed to relate." If such matter were to be considered public records and subject to the inspection of the Senate, the President would thereby incur "the risk of being charged with making a suspension from office upon evidence which was not even considered."

Issue as to the status of such documents was joined by the President in the sharpest possible way by the declaration: "I consider them in no proper sense as upon the files of the department but as deposited there for my convenience, remaining still completely under my control. 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."

Moreover, there were cases in which action was prompted by oral communications which did not go on record in any form. As to this, Cleveland observed, "It will not be denied, I suppose, that the President may suspend a public officer in the entire absence of any papers or documents to aid his official judgment and discretion; and I am quite prepared to avow that the cases are not few in which suspensions 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 documents presented for my examination." Nor were such representations confined to members of his own party for, said he, "I recall a few suspensions which bear the approval of individual members identified politically with the majority in the Senate." The message then reviewed the legislative history of the Tenure of Office Act and questioned its constitutionality. The position which the President had taken and would maintain was exactly defined by this vigorous statement in his message:

"The requests and demands which by the score have for nearly three months been presented to the different Departments of the government, whatever may be their form, have but one complexion. They assume the right of the Senate to sit in judgement 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 relinquish them, and my duty to the chief magistracy which I must preserve unimpaired in all its dignity and vigor, compel me to refuse compliance with these demands."

There is a ringing quality in the style of this message not generally characteristic of President Cleveland's state papers. It evoked as ringing a response from public opinion, and this effect was heightened by a tactless allusion to the message made at this time in the Senate. In moving a reference of the message to the Judiciary Committee, its chairman, Senator Edmunds of Vermont, remarked that the presidential message brought vividly to his mind "the communication of King Charles I to the Parliament, telling them what, in conducting their affairs, they ought to do and ought not to do." The historical reference, however, had an application which Senator Edmunds did not foresee. It brought vividly to mind what the people of England had endured from a factional tyranny so relentless that the nation was delighted when Oliver Cromwell turned Parliament out of doors. It is an interesting coincidence that the Cleveland era was marked by what in the book trade was known as the Cromwell boom. Another unfortunate remark made by Senator Edmunds was that it was the first time "that any President of the United States has undertaken to interfere with the deliberations of either House of Congress on questions pending before them, otherwise than by message on the state of the Union which the Constitution commands him to make from time to time." The effect of this statement, however, was to stir up recollections of President Jackson's message of protest against the censure of the Senate. The principle laid down by Jackson in his message of April 15, 1834, was that "the President is the direct representative of the American people," whereas the Senate is "a body not directly amenable to the people." However assailable this statement may be from the standpoint of traditional legal theory, it is indubitably the principle to which American politics conform in practice. The people instinctively expect the President to guard their interests against congressional machinations.

There was a prevalent belief that the Senate's profession of motives, of constitutional propriety, was insincere and that the position it had assumed would never have been thought of had the Republican candidate for President been elected. A feeling that the Senate was not playing the game fairly to refuse the Democrats their innings was felt even among Senator Edmunds' own adherents. A spirit of comity traversing party lines is very noticeable in the intercourse of professional politicians. Their willingness to help each other out is often manifested, particularly in struggles involving control of party machinery. Indeed, a system of ring rule in a governing party seems to have for its natural concomitant the formation of a similar ring in the regular opposition, and the two rings maintain friendly relations behind the forms of party antagonism. The situation is very similar to that which exists between opposing counsel in suits at law, where the contentions at the trial table may seem to be full of animosity and may indeed at times really develop personal enmity, but which as a general rule are merely for effect and do not at all hinder cooperation in matters pertaining to their common professional interest.

The attitude taken by the Senate in its opposition to President Cleveland jarred upon this sense of professional comity, and it was very noticeable that in the midst of the struggle some questionable nominations of notorious machine politicians were confirmed by the Senate. It may have been that a desire to discredit the reform professions of the Administration contributed to this result, but the effect was disadvantageous to the Senate. The Nation on March 11, 1886, in a powerful article reviewing the controversy observed: "There is not the smallest reason for believing that, if the Senate won, it would use its victory in any way for the maintenance or promotion of reform. In truth, in the very midst of the controversy, it confirmed the nomination of one of Baltimore's political scamps." It is certainly true that the advising power of the Senate has never exerted a corrective influence upon appointments to office; its constant tendency is towards a system of apportionment which concedes the right of the President to certain personal appointments and asserts the reciprocal right of Congressmen to their individual quotas.

As a result of these various influences, the position assumed by the Republicans under the lead of Senator Edmunds was seriously weakened. When the resolutions of censure were put to the vote on the 26th of March, that condemning the refusal of the Attorney-General to produce the papers was adopted by thirty-two ayes to twenty-six nays—a strict party vote; but the resolution declaring it to be the duty of the Senate in all such cases to refuse its consent to removals of suspended officials was adopted by a majority of only one vote, and two Republican Senators voted with the Democrats. The result was, in effect, a defeat for the Republican leaders, and they wisely decided to withdraw from the position which they had been holding. Shortly after the passage of the resolutions, the Senate confirmed the nomination over which the contest started, and thereafter the right of the President to make removals at his own discretion was not questioned.

This retreat of the Republican leaders was accompanied, however, by a new development in political tactics, which from the standpoint of party advantage, was ingeniously conceived. It was now held that, inasmuch as the President had avowed attachment to the principle of tenure of office during good behavior, his action in suspending officers therefore implied delinquency in their character or conduct from which they should be exonerated in case the removal was really on partisan grounds. In reporting upon nominations, therefore, Senate committees adopted the practice of noting that there were no charges of misconduct against the previous incumbents and that the suspension was on account of "political reasons." As these proceedings took place in executive session, which is held behind closed doors, reports of this character would not ordinarily reach the public, but the Senate now voted to remove the injunction of secrecy, and the reports were published. The manifest object of these maneuvers was to exhibit the President as acting upon the "spoils system" of distributing offices. The President's position was that he was not accountable to the Senate in such matters. In his message of the 1st of March he said: "The pledges I have made were made to the people, and to them I am responsible for the manner in which they have been redeemed. I am not responsible to the Senate, and I am unwilling to submit my actions and official conduct to them for judgement."

While this contest was still going on, President Cleveland had to encounter another attempt of the Senate to take his authority out of his hands. The history of American diplomacy during this period belongs to another volume in this series,(1) but a diplomatic question was drawn into the struggle between the President and the Senate in such a way that it requires mention here. Shortly after President Cleveland took office, the fishery articles of the Treaty of Washington had terminated. In his first annual message to Congress, on December 8, 1885, he recommended the appointment of a commission to settle with a similar commission from Great Britain "the entire question of the fishery rights of the two governments and their respective citizens on the coasts of the United States and British North America." But this sensible advice was denounced as weak and cowardly. Oratory of the kind known as "twisting the lion's tail" resounded in Congress. Claims were made of natural right to the use of Canadian waters which would not have been indulged for a moment in respect of the territorial waters of the United States. For instance, it was held that a bay over six miles between headlands gave free ingress so long as vessels kept three miles from shore —a doctrine which, if applied to Long Island Sound, Delaware Bay, or Chesapeake Bay, would have impaired our national jurisdiction over those waters. Senator Frye of Maine took the lead in a rub-a-dub agitation in the presence of which some Democratic Senators showed marked timidity. The administration of public services by congressional committees has the incurable defect that it reflects the particular interests and attachments of the committeemen. Presidential administration is so circumstanced that it tends to be nationally minded; committee administration, just as naturally, tends to be locally minded. Hence, Senator Frye was able to report from the committee on foreign relations a resolution declaring that a commission "charged with the consideration and settlement of the fishery rights... ought not to be provided for by Congress." Such was the attitude of the Senate towards the President on this question, that on April 13, 1886, this arrogant resolution was adopted by thirty-five ayes to 10 nays. A group of Eastern Democrats who were in a position to be affected by the longshore vote, joined with the Republicans in voting for the resolution, and among them Senator Gorman of Maryland, national chairman of the Democratic party.

President Cleveland was no more affected by this Senate resolution than he had been by their other resolutions attacking his authority. He went ahead with his negotiations and concluded treaty arrangements which the Senate, of course, rejected; but, as that result had been anticipated, a modus vivendi which had been arranged by executive agreements between the two countries went into effect, regardless of the Senate's attitude. The case is a signal instance of the substitution of executive arrangements for treaty engagements which has since then been such a marked tendency in the conduct of the foreign relations of the United States.

A consideration which worked steadily against the Senate in its attacks upon the President, was the prevalent belief that the Tenure of Office Act was unconstitutional in its nature and mischievous in its effects. Although Senator Edmunds had been able to obtain a show of solid party support, it eventually became known that he stood almost alone in the Judiciary Committee in his approval of that act. The case is an instructive revelation of the arbitrary power conferred by the committee system. Members are loath to antagonize a party chairman to whom their own bills must go for approval. Finally, Senator Hoar dared to take the risk, and with such success that on June 21, 1886, the committee reported a bill for the complete repeal of the Tenure of Office Act, the chairman—Senator Edmunds—alone dissenting. When the bill was taken up for consideration, Senator Hoar remarked that he did not believe there were five members of the Senate who really believed in the propriety of that act. "It did not seem to me to be quite becoming," he explained, "to ask the Senate to deal with this general question, while the question which arose between the President and the Senate as to the interpretation and administration of the existing law was pending. I thought, as a party man, that I had hardly the right to interfere with the matter which was under the special charge of my honorable friend from Vermont, by challenging a debate upon the general subject from a different point of view."

Although delicately put, this statement was in effect a repudiation of the party leadership of Edmunds and in the debate which ensued, not a single Senator came to his support. He stood alone in upholding the propriety of the Tenure of Office Act, arguing that without its restraint "the whole real power and patronage of this government was vested solely in the hands of a President of the United States and his will was the law." He held that the consent of the Senate to appointments was an insufficient check if the President were allowed to remove at his own will and pleasure. He was answered by his own party colleagues and committee associates, Hoar and Evarts. Senator Hoar went so far as to say that in his opinion there was not a single person in this country, in Congress or out of Congress, with the exception of the Senator from Vermont, who did not believe that a necessary step towards reform "must be to impose the responsibility of the Civil Service upon the Executive." Senator Evarts argued that the existing law was incompatible with executive responsibility, for "it placed the Executive power in a strait-jacket." He then pointed out that the President had not the legal right to remove a member of his own Cabinet and asked, "Is not the President imprisoned if his Cabinet are to be his masters by the will of the Senate?" The debate was almost wholly confined to the Republican side of the Senate, for only one Democrat took any part in it. Senator Edmunds was the sole spokesman on his side, but he fought hard against defeat and delivered several elaborate arguments of the "check and balance" type. When the final vote took place, only three Republicans actually voted for the repealing bill, but there were absentees whose votes would have been cast the same way had they been needed to pass the bill.(2)

President Cleveland had achieved a brilliant victory. In the joust between him and Edmunds, in lists of his adversary's own contriving, he had held victoriously to his course while his opponent had been unhorsed. The granite composure of Senator Edmunds' habitual mien did not permit any sign of disturbance to break through, but his position in the Senate was never again what it had been, and eventually he resigned his seat before the expiration of his term. He retired from public life in 1891, at the age of sixty-three.

From the standpoint of the public welfare, it is to be noted that the issue turned on the maintenance of privilege rather than on the discharge of responsibility. President Cleveland contended that he was not responsible to the Senate but to the people for the way in which he exercised his trusteeship. But the phrase "the people" is an abstraction which has no force save as it receives concrete form in appropriate institutions. It is the essential characteristic of a sound constitutional system that it supplies such institutions, so as to put executive authority on its good behavior by steady pressure of responsibility through full publicity and detailed criticism. This result, the Senate fails to secure because it keeps trying to invade executive authority, and to seize the appointing power instead of seeking to enforce executive responsibility. This point was forcibly put by "The Nation" when it said: "There is only one way of securing the presentation to the Senate of all the papers and documents which influence the President in making either removals or appointments, and that is a simple way, and one wholly within the reach of the Senators. They have only to alter their rules, and make executive sessions as public as legislative sessions, in order to drive the President not only into making no nominations for which he cannot give creditable reasons, but into furnishing every creditable reason for the nomination which he may have in his possession."(3)

During the struggle, an effort was made to bring about this very reform, under the lead of a Republican Senator, Orville H. Platt of Connecticut. On April 13,1886, he delivered a carefully prepared speech, based upon much research, in which he showed that the rule of secrecy in executive sessions could not claim the sanction of the founders of the government. It is true that the Senate originally sat with closed doors for all sorts of business, but it discontinued the practice after a few years. It was not until 1800, six years after the practice of public sessions had been adopted, that any rule of secrecy was applied to business transacted in executive sessions. Senator Platt's motion to repeal this rule met with determined opposition on both sides of the chamber, coupled with an indisposition to discuss the matter. When it came up for consideration on the 15th of December, Senator Hoar moved to lay it on the table, which was done by a vote of thirty-three to twenty-one. Such prominent Democratic leaders as Gorman of Maryland and Vest of Missouri voted with Republican leaders like Evarts, Edmunds, Allison, and Harrison, in favor of Hoar's motion, while Hoar's own colleague, Senator Dawes, together with such eminent Republicans as Frye of Maine, Hawley of Connecticut, and Sherman of Ohio voted with Platt. Thus, any party responsibility for the result was successfully avoided, and an issue of great constitutional importance was laid away without any apparent stir of popular sentiment.


(1) See The Path of Empire, by Carl Russell Fish (in The Chronicles of America,).

(2) The bill was passed by thirty yeas and twenty-two nays, and among the nays were several Senators who while members of the House had voted for repeal. The repeal bill passed the House by a vote of 172 to 67, and became law on March 3, 1887

(3) The Nation, March 11, 1888.

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