The Civil Service and the Patronage/Chapter 09

by Carl Russell Fish

CHAPTER IX.

A STRUGGLE FOR THE PATRONAGE.

1865-1887.

The more effective for party warfare the patronage became, the more bitter grew the struggle for its control, and the more persistently did the contestants resort to the constitution for support. That the administration of the civil service was an executive function could scarcely be denied; but the constitution left open the question how this power was to be divided between the two branches of the executive, the president and the Senate. Instances of constant minor friction, occasioned by the rejection of nominations, have been given; and the comprehensive plans of 1826 and 1836 for limiting the president, while due primarily to partisan opposition, illustrate the continued jealousy of the Senate. Nor, in spite of the defeat of these proposals, had the president's prerogative remained entirely unscathed. Madison regarded the Four Years' Law of 1820 as an unconstitutional encroachment: if Congress could limit the term to four years, it could make it one day, and tenure would be at the pleasure of Congress and not of the president. As a matter of fact, however, the result of the limited term had been to increase the power of the executive, and to all intents and purposes Lincoln found his legal relation to the civil service little different from that of Washington.

The immense expansion of presidential power during the Civil War naturally tended to heighten the Senate's distrust, and under this stress it put its views more effectually upon record than during the eighty years preceding. The first act creating the national banking system in 1862 gave the comptroller of the currency a term of five years, during which he could be removed only by and with the advice and consent of the Senate. How far this was an intentional reversal of the practice urged by Madison in the famous debate of 1789 and accepted since that time, it is impossible to say; but evidently the significance of the change was not realized by the majority in Congress, for in the amendatory bank bill of 1864 the provision was modified, and the president was merely called upon to state to the Senate the causes of the removal.^[1] In 1863, again, a clause was added to the military appropriation bill forbidding the payment of money to men appointed during the recess of the Senate “to fill a vacancy in any existing office, which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate.”^[2] In the light of these provisions, it seems not improbable that the clause of the act of 1864 requiring the president to submit reasons for the removal of consular clerks^[3] was inserted rather from a desire to limit the power of the former than to protect the latter, particularly as it was not part of the original bill of 1856. This manifest jealousy of the overgrown power of the president suggests that, even if Lincoln had lived, a contest would have been inevitable; but where there would have been discussion, mutual concessions, and final agreement under Lincoln, there was war under Andrew Johnson.

The inauguration of the new president in 1865 seemed fairly propitious. As a result of Lincoln's wise decision to make no changes at the beginning of his second term, the administrative machine had settled down with the prospect of running on quietly for four years. Johnson seemed prepared to follow out Lincoln's policy. The calm was, however, delusive. It is unnecessary even to enumerate the causes that brought about the divergence of the president and a majority of the Republicans in Congress; for our purpose it is sufficient to note that, at a time when the relations between the two branches of the executive were particularly strained, the man who became president was utterly devoid of tact, opinionated and somewhat obstinate, a good fighter but a poor leader.

When it became evident that a struggle for supremacy was to ensue, Johnson began to strengthen his position. Three resignations allowed him to reconstruct his cabinet to his satisfaction, except that Stanton remained in the war department. A. W. Randall, the new postmaster-general, became the organizer of the president's forces;^[4] and through the year 1866 various conventions were held in which the presidential programme was enunciated. The most important was that at Philadelphia, in August, where an address was adopted which was intended to appeal to all the elements opposed to the congressional scheme of reconstruction, and which invoked the watch-word “Union,” so potent before 1860. The statement that this convention was composed almost wholly of office-holders and office-seekers does not seem quite justified: no greater proportion of its members is found in the Blue Books of 1867 and 1869 than is usual in such conventions; but after adjournment many individuals and whole delegations visited the president, and doubtless the patronage was one of the topics discussed at these conferences.^[5] Shortly afterward, the laying of the corner-stone of the Douglas monument in Chicago gave Johnson the opportunity to “swing round the circle.” In his speeches during this journey he freely declared his intention of not allowing his enemies to enjoy government positions, epitomizing his views at St. Louis in the vigorous assertion that he would “kick 'em out” of office.^[6]

The president intended then to use the patronage in his struggle with Congress, and he found it an apt and powerful instrument. Fear of removal might be counted on to keep some Republicans loyal to their official chief, while the Democrats, who constituted the bulk of his supporters, would be especially pleased to get back to the pastures from which they had been driven five years previous. Moreover, no president except Lincoln had had such numerous rewards to distribute. The most important additions to the list of presidential officers were the 364 internal revenue collectors and assessors; but the subordinate service was swelled in almost every department. Although the army was immediately reduced, its reorganization necessitated the appointment of about two thousand officers for the regular establishment.^[7]

The actual proscription began shortly after the Philadelphia convention, when the postmaster-general, Randall, is said to have sent out a “bread and butter” circular, demanding that office-holders support the policy there outlined.^[8] Resignations and removals were daily noted in the press from this time on. Owing to the chaotic conditions of Johnson's presidency, it is impossible to get a clear idea of the amount of change. The executive journal of the Senate records 903 removals; but some senators accused the president of sending in many nominations without stating that the cause of the vacancy was removal, and sometimes from the same place two or three removals were made. Moreover, the proscription continued throughout the administration, and the initial sweep was not particularly severe; an official report gave the total number of removals during 1866 at only 466 out of a possible 2934.^[9] There were great local differences: of twelve internal revenue officers in Wisconsin, ten were changed; in Ohio, nearly all; in Indiana, only about one-half; and in California, only one. Removals could not, of course, be made very rapidly at first, as time was necessary to discover who were the friends and who the enemies of the president. The intention, however, was clear.

It was natural that this sweep, although not so extensive as several that had gone before, should arouse more bitterness than any other; and the anger of the Republicans was seven times heated by the appointment of some hated Copperheads to take the place of the martyrs who had been decapitated. The fact that the important military appointments in the South were made with discretion could not serve to mitigate their wrath; and, arrogant in the strength of their majorities in Congress, they were not content to sit idly by and allow the president to go on in this course unchecked; it would be dangerous to permit him to build up a party of his own, and the Republicans felt bound in honor to protect such of their friends as were still in office.^[10]

The position of the president was, however, firmly based on long-established constitutional interpretations, while the part that congressmen played in allotting appointments rested on custom alone; probably no one had ever realized how independent the former really was in theory, for practice had always been based on mutual concession. Never before had a strong, determined president faced two houses of Congress opposed to him in so momentous a crisis; and for the first time the question of their respective constitutional powers over the patronage became one of widespread interest. In order to make the succeeding events intelligible, it is necessary to discuss briefly the constitutional provisions on this subject, and the questions that were left open.^[11]

Two clauses of the constitution relate to the president's authority on this subject: —

“He shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments.

“The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Both these provisions were incomplete. The first contained no mention of removals, an omission which the first Congress, under the lead of Madison, interpreted as meaning that the power of removal was one of the general executive functions belonging to the president ex officio. This construction was maintained to the time of Johnson, but not without severe criticism from those who believed that the power of appointment carried with it that of removal, and that consequently the consent of the Senate was necessary for both alike. This opinion was most conspicuously put forward in the great debate of 1836; but it was held both before and after, and was supported by many distinguished thinkers on constitutional law, by a statement of Hamilton in the Federalist, by a closely analogous decision of the Supreme Court, and, on the testimony of Justice McLean, by the opinion of Chief-justice Marshall and the court when he was at its head.^[12] It might, then, fairly be considered a moot point in 1866, although seventy-seven years of practice should have counted heavily in favor of the established interpretation.

The significance of the other clause depends upon the meaning of the word “happen.” The alternatives were most clearly set forth by Reverdy Johnson, who described the sentence as involving an ellipsis, it being possible to make it read either “happen to exist” or “happen to occur.” If “occur” were taken, the provision obviously referred merely to cases in which the vacancy was one newly arising during the recess for which the appointment was to be made. As an actual fact, the official practice had been to take the other interpretation, and this had the support of a number of attorneys-general.^[13]

The deductions from the “happen to exist” reading were far-reaching. If the president issued a commission to a man for a certain post, the appointee would under any circumstances be secure therein until the end of the next session of Congress; but unless the president had sent in his name to the Senate and that body had confirmed it, his tenure would cease at that date. There was, however, no reason why the president should not at once reappoint him, for, when his commission expired, a vacancy happened “to exist.” There was no easily assignable legal reason, therefore, why the president might not neglect to send in the name at all, and with a little trouble completely obviate the necessity of consulting the Senate. This extreme possibility was a theoretical rather than a practical danger, for not even Johnson showed an inclination to push his power to such an extreme;^[14] but it furnished a good argument for alarmist orators.

The Republican counter attack was first directed against the president's control of the army and navy. In July, 1866, a statute provided that no officer in the military or naval service should “in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial.”^[15] In the first session of the thirty-ninth Congress, a bill was introduced into the House for the purpose of reversing the current interpretations of the constitutional clauses and of establishing those favorable to the Senate. It did not, however, become a law. On the first day of the next session, Mr. Williams of Oregon asked leave to bring into the Senate a similar bill, denominated a bill “to regulate the tenure of offices.” It was read twice, and two days later referred to the joint select committee on retrenchment.^[16]

The bill, which became the Tenure-of-Office Act of 1867 as reported by Mr. Edmunds from this committee, was designed emphatically to assert the share of the Senate in the removing power. The first clause provided that all officers except members of the cabinet, duly appointed with the advice and consent of the Senate, should be entitled to hold their offices until a successor had in like manner been appointed. The second contained a provision that, for causes which should seem to him to be sufficient, the president might suspend any officer and appoint a temporary successor; such cases should be reported to the Senate within twenty days after the meeting of Congress next following; if the Senate agreed that the causes warranted removal, the office was to be vacant, and a nomination could be made; if not, the old incumbent was to resume his functions. The third clause represented an attempt to define the word “happen” by the addition of the words “by death, resignation, expiration of terms of office, or other lawful cause”; that is, the president was not to have power to fill vacancies caused by removal; if the Senate should not, in its next session, confirm a successor to the officer who died or resigned or lost his office by the expiration of his commission, the office was to remain in abeyance, and its functions were to be performed by whatever officer could lawfully execute them in case of accidental vacancy. The fourth section provided that the act should not be construed to extend the term of any officer which was already limited by law.^[17]

There was no doubt that this bill, at any rate in its main provisions, would pass both houses of Congress; yet the debate was long and acrimonious, and requires review. The primary constitutional question as to the exercise of the removing power, which was involved in the first section, was discussed with great learning by Reverdy Johnson and Williams of Oregon.^[18] The same champions led the discussion of the second and third clauses of the bill in a debate which was more animated and less hackneyed. Johnson defended the existing practice, and showed the inconvenience that would arise if the president could fill only vacancies “occurring,” and not all those “existing,” during the recess; and Hendricks illustrated this point by showing that the bill establishing the Freedmen's Bureau was passed early enough to prevent the vacancies which it created from occurring in the recess of the Senate, but too late to be filled before the Senate adjourned. He disapproved of the recommissioning of men rejected by the Senate, and was inclined to believe it unconstitutional; but he did not explain how the contingency was to be avoided.^[19] Williams based his constitutional interpretation on two leading ideas: “One is that this filling up is to be temporary; and the other that it is to be exercised within a given time. . . . I understand this clause as to vacancies . . . to be intended simply to bridge over that space of time which may intervene between different sessions of the Senate.”

The debate naturally wandered from constitutional questions to those of expediency. Williams of Pennsylvania said of the bill in the House, “It proposes to improve the rare advantage of the dissociation between the party in power here and the President of its own choice, for the correction of a great evil, by a surrender and dedication of the spoil which that party may be supposed to have won, upon the public altar, and for the nation's benefit through all coming time.” It would have been somewhat difficult to explain the precise nature of this sacrifice, but the idea that an exceptional occasion was to be used for permanent gain was a common one in the Republican press.^[20]

It was Senator Sumner, in fact, who was the first to admit the real cause of the proposed act. “At last,” said he, “the country is opening its eyes to the actual condition of things. Already it sees that Andrew Johnson, who came to supreme power by a bloody accident, has become the successor of Jefferson Davis in the spirit by which he is governed and in the mischief he is inflicting on his country. . . . He is a usurper, who promising to be a Moses, has become a Pharaoh. Do you ask for evidence? It is found in public acts which are beyond question. It is already written in the history of our country. And now in the maintainance of his usurpation he has employed the power of removal from office. Some, who would not become the partisans of his tyranny he has, according to his own language, ‘kicked out.’ Others are left, but silenced by this menace. . . . Wherever any vacancy occurs, whether in the loyal or the rebel States, it is filled by the partisans of his usurpation. Other vacancies are created to provide for these partisans. I need not add that just in proportion as we sanction such nominations or fail to arrest them, according to the measure of our power, we become parties to his usurpation.”^[21] Up to this time the debate had been conducted with decorum, but from now on speeches became more and more violent and partisan.

Amendments were offered from time to time. Some were merely with intent to clarify and improve the bill, as that of Sherman, which added an enforcement clause. He pointed out that the bill passed in Lincoln's time, against the payment of salaries to officers appointed in certain defined ways, had not been observed; and, at his suggestion, very heavy penalties were created for those paying or receiving salaries for services rendered contrary to the Tenure-of-Office Bill.^[22] A more important amendment was that introduced by Mr. Van Winkle, fixing a definite term of four years for all presidential offices not heretofore limited by law. This roused Mr. Johnson, who remembered the issues of the almost forgotten past. “I do not know,” said he, “that any statute ever passed has created more trouble and done more mischief than that fixing a short term of office for these several appointees.” His protest did not strike a responsive chord, and the amendment seems to have failed merely because the managers were unwilling to encumber the bill with miscellaneous matter.^[23]

Sumner, who, throughout the debate acted as chief toreador in baiting the presidential bull, skilfully escaping by just the breadth of a hair from being caught in a breach of senatorial privilege, proposed to make the appointment of all officers receiving over one thousand dollars annual salary subject to the confirmation of the Senate. This led to a fierce onslaught of radical oratory. Sumner acknowledged that it would increase the labors of the Senate; but he would not have them shirk their duty, and the duty of the hour was “protection to the loyal and patriotic citizen. . . . You may ask,” he added, “protection against whom? I answer plainly, protection against the President of the United States. . . . There was no such duty on our fathers . . . because there was no President of the United States who had become the enemy of his country.” Nevertheless, Fessenden and Edmunds succeeded in convincing the majority that the Senate's time could be more profitably spent than in protecting the night watchmen of New York and Boston.^[24]

By far the most important amendment, however, was that introduced by Mr. Howe when the bill was first brought in by the committee, by which it was proposed to strike out the clause excepting the cabinet officers. This, like Mr. Sumner's amendment, received its support from the Republican radicals, who entirely reprobated the theory of Edmunds and Reverdy Johnson that these officers should be the confidential advisers of the president. So little conception was shown of the nature of our government, that Mr. Howe compared the relations of the heads of departments and the president to those between the king and the ministers in England. The more moderate Republicans, voting with the Democrats, defeated the proposition in the Senate. In the House it was again put forward, and was more ably supported; the report of Mr. Jenckes, setting forth the patronage which the various secretaries dispensed, was used with much effect; and this, combined with the desire to protect Stanton in his place at the head of the war department, secured the passage of the amendment, though by a narrow majority. A conference committee was then appointed to adjust the differences between the Senate and the House, and a compromise was agreed upon, to the effect that the heads of departments should hold for the term of the president by whom they were appointed, and one month thereafter, subject to removal by and with the advice and consent of the Senate. The bill with this amendment was vetoed by the president, was passed over his veto, and became a law on March 2, 1867.^[25]

The debate as a whole is disappointing, because so little desire was shown to improve the opportunity presented to accomplish a real reform. Few senators seemed to sympathize with Mr. Howe's statement that he found no special fault with the doctrine, “which,” he added, “I believe has been preached only for thirty or forty years, that to the victor belong the spoils; but the victory which entitles a man or a party to the spoils is a victory which is achieved by the assent of the American people; it is not a victory which is attained by desertion.” Yet, although few of the Republicans defended the existing system, and although they occasionally mentioned reform as a desirable object, the only senator whose remarks indicated intelligent consideration of it was Mr. Doolittle, who called attention to the success of British-American administration of Indian affairs, and drew lessons therefrom. Some senators were, of course, conversant with Mr. Jenckes's reform bill; but they seem to have been little influenced by its principles. The only object in mind, other than the immediate one of restraining Andrew Johnson, was the assertion of the dignity of the Senate^[26] and the general lessening of executive powers. Reverdy Johnson, whose speeches and discussions were by far the ablest throughout the debate, called attention to the fact that power might be abused by the Senate as well as by the president; but this argument did not appeal to the senators in general. The Tenure-of-Office Bill of 1867 marked the first definite success that the Senate had obtained in its contest with the president for the control of the patronage; it was a partisan measure, directed against a particular president.

The attitude of the president toward the new act was a question of the utmost interest. He had vetoed it in an able message, in which he claimed that it was unconstitutional; and, now that it had been passed over his veto,^[27] the question remained whether he would accept the restrictions imposed or would disregard the action of Congress.^[28] On March 7 a long list of nominations was sent to the Senate, among which was one that might have precipitated the crisis if either side had so desired. A certain man was nominated in place of another “to be removed”; the name was referred to a committee, but was withdrawn by the president before a report had been made. Soon after a man was nominated in the place of another “to be removed for inefficiency,” and the Senate evinced its satisfaction with the cause expressed by confirming the nomination.^[29] Still, the president could not be said to have committed himself to the policy of always stating a cause.

In December, 1867, the judiciary committee reported a series of resolutions intended to regulate the activity of the Senate under the new law. It was provided that the president and Senate could remove an officer by the nomination and confirmation of a successor; that, in case an officer were suspended, the Senate might consent to his removal by confirming the nomination of another to his position, without specifically approving or disapproving the cause of suspension; and that cases of suspension be referred to the committee most interested in the offices involved.^[30]

While the Senate was thus carefully avoiding the issue, but was exercising liberally its undoubted power of rejecting nominations, the president was preparing to force the question into the courts. He struck directly at Stanton, the foremost of the men whom the law was designed to protect, asking for his resignation on May 5, 1867, and, on his refusal to resign, suspending him one week later. Johnson, in his notification to Stanton, made no reference to the Tenure-of-Office Act, but gave as his authority the power vested in him as “president by the Constitution and laws of the United States.” Stanton protested that no legal cause of removal, or of suspension, was given; but he yielded, and Grant consented to act in his place. On December 12, 1867, Johnson, strictly in accord with the provisions of the new law, but still with no reference to it, reported the suspension to the Senate.^[31] His plan seems to have been that, if the Senate refused to concur in removing Stanton, Grant should refuse to give up his office, and Stanton would thus be forced to appeal to the courts. This plan was submitted to the commander-in-chief, who approved of it provisionally, but after an examination of the law refused to perform his part of it. Consequently Grant remained at his post until January 13, 1868, when the Senate formally refused to agree to the removal of Stanton; whereupon Grant wrote to the latter that, by virtue of the Tenure-of-Office Act, the suspension was at an end, and that he was ready to hand over the office.^[32]

On February 21, Johnson announced to the Senate that he had removed Stanton and appointed General Lorenzo Thomas in his place “ad interim.”^[33] This was the first definite announcement on his part that he did not recognize the validity of the law passed nearly a year before, and the House at once proceeded to impeach him. It does not fall within the purpose of this work to follow the progress of that trial. The chief point of dispute rested on the interpretation of that ambiguous clause which was the result of the compromise between the Senate and the House on the question whether the provisions of the bill should or should not apply to cabinet officers; and the defence held that Stanton had not been appointed by Johnson, that the latter was serving a term of his own, not a remnant of the term of Lincoln, and that consequently the removal was not in violation of the law. This position was held by just enough Republican senators to prevent the accusers of the president from securing the two-thirds majority necessary for conviction in an impeachment trial, and, to the disgust of most of the Republicans, the outcome was an acquittal.

The crucial vote was taken on May 26, and Stanton at once tendered his resignation to the president. The latter had already, on April 23, sent in the nomination of General Schofield as secretary of war, “in place of E. M. Stanton, removed.” The Republican majority could not overlook this assertion of the president's right to remove, nor could they, now that they lacked the two-thirds vote, profitably continue the contest; they, therefore, on May 28, confirmed the appointment, but expressed their opinion that the secretary of war had not been “legally removed,” but had voluntarily relinquished his post.^[34]

All efforts to bring the matter to a determination had now failed. In December, 1868, the president recognized the law sufficiently to recommend its repeal; but practically until the end of his term the president administered the civil service under one interpretation of the constitution and the Senate under another. Technically the president fared the best, for the Senate had to recognize his nominations if it wished to take any share whatever in the appointments, and in practice it often assented to a nomination in which the last occupant was mentioned as “removed” or “to be removed.”^[35] In fact, the executive journal does not read differently from the journals of previous administrations. The Senate's power of rejection, however, was not in question, and consequently it could throw out nominations to its heart's content, and the obstinate pertinacity of the two branches of the appointing power led to many prolonged contests.^[36]

Congress indulged, too, in many petty annoyances. Already, in 1867, it had cut down the contingent fund for the state department from $60,000 to $30,000, and now it proposed to limit the number of special agents who could be appointed by the several departments. Sumner, who realized the needs of the state department, vigorously opposed this action; Seward furnished him with a letter showing how moderately the power had been used during the existing administration, and the bill failed. The irritation was carried so far that the Senate's confirmation of the nomination of Reverdy Johnson as minister to England could be referred to as an act of gracious courtesy.^[37]

The battle was over. Both sides had spent their ammunition, and the administration went out amid desultory firing along the outposts.

It was generally considered that the Tenure-of-Office Act was passed as an emergency measure, and would be repealed as soon as the Republicans elected a president of their own faith. President Grant, in his first annual message, earnestly recommended its repeal. Already in April, 1869, however, the new Congress had expressed its approval of the act by amending it. The first two sections were so remodelled as to allow suspension at the discretion of the president, for he was no longer required to report to the Senate “the evidence and reasons” for his acts; and cabinet members were placed on the same footing as other officers.^[38] On the other hand, in order to prevent the president from keeping in office men commissioned during the recess, he was ordered to nominate persons for all vacancies within thirty days after the commencement of each session, and, in case of rejection, to send in another name as soon as possible. The enforcement clauses were retained. The House had desired a total repeal, but the Senate had stiffly refused to yield what it had gained, and its subsequent action showed that it had no intention to yield up a power which it had so long desired. The executive journal reflects this increased interest in appointments, and the tenacity with which the Senate maintained its position.

In March, 1869, Senator Edmunds introduced a resolution to the effect that “the term of office of all officers affected by the act regulating the tenure of certain civil offices is limited by that act upon the pleasure of the President of the United States in the appointment of others to said offices by and with the advice and consent of the Senate,” and that “the President of the United States may rightfully, under and in the spirit of existing laws, nominate to the Senate persons for office according to his discretion and independent of any question respecting the conduct or capacity of any incumbent.” This failed of approval, as did also a resolution of contrary intent offered by Senator Trumbull the following December, “That in case of a nomination sent to the Senate in place of an officer suspended by the President, it is the duty of the committee having the nomination in charge to inquire into the propriety of the change proposed.” December 17, 1869, a resolution was proposed “that in the consideration of nominations and other subjects submitted to it [the Senate] by the President, . . . it is its right to be furnished with all papers and documents relating to such matter belonging to the files of the Executive branch of the Government or any Department thereof.” This resolution also failed, and for it was substituted a respectful request for information in the particular case then under discussion.^[39]

As no fixed rules were adopted, the practice of the Senate varied. Usually, nominations in the place of officers suspended were confirmed without comment. Sometimes there was investigation, and occasionally evidence was printed for the use of the Senate. Often this was in answer to a protest on the part of the officer suspended.^[40] The result was nearly always an ultimate approval of the action of the president. So regular was this action that in 1886 Senator Hoar said that no suspended officer had ever been reappointed. This is not quite correct: December 6, 1869, President Grant sent in a list of officers of the Indian department “suspended during the recess of the Senate, pursuant to the provisions of the second section of ‘An act to amend an act regulating the tenure of certain civil offices,’ approved, April 5, 1869,” and requesting the Senate to consent to their removal. In the case of seven, consent was refused, and when they had served out their terms one of these seven was nominated for reappointment and was confirmed.^[41] There was constant pressure to make public the results of these investigations, and often the injunction of secrecy was removed.^[42] The main motive for this was that it was found impossible to preserve absolute secrecy, and that as a result garbled reports got abroad. In 1871 it was voted that the executive journal be printed to the end of the fortieth Congress (1869), and in 1901 it was published to the end of the fifty-first (1891). In 1885 it was voted that nominations and confirmations be daily printed in the Record.^[43]

There was constant friction between the Senate and the successive presidents over minor questions of form. In December, 1870, the Senate felt it necessary to declare that the president could restore a suspended officer without consulting it. In 1873 it returned as not “regular” the nomination of Richard Busteed to a judicial position, “to take effect on the resignation of David C. Humphreys”; and in 1874 it returned other nominations, “it being the judgment of the Senate that commissions ought not to antedate the time of actual appointment.”^[44] A very annoying practice of the Senate was to request the return of its resolutions confirming or rejecting nominations, in order that it might reconsider them. December 19, 1872, the chair ruled that such motion was out of order, as the Senate had completed its function, and could not reopen the question without the initiative of the president. The latter, however, usually complied with such requests, or sent a message stating that the commissions had been signed, and were therefore beyond his power of recall. In some cases Grant ignored the requests,^[45] and the officers in question continued to serve.

Under Hayes the Senate was more aggressive than under Grant, and December 11, 1877, resolved “that the President be respectfully requested to inform the Senate, with a view to the transaction of its executive business, whether in any of the instances of nominations hitherto sent to the Senate, stated to be for appointment in place of officers removed, such removals had been made at the time of sending such nominations to the Senate.” The president was able to reply, January 14, 1878, “that in the instances referred to removals had not been made at the time the nominations were sent to the Senate. The form used for such nominations was one found to have been in existence and heretofore used in some of the departments, and was intended to inform the Senate that if the nominations proposed were approved it would operate to remove an incumbent whose name was indicated.”^[46] Such nominations were nearly always approved by the Senate simply by the confirmation of successors to the persons removed.^[47]

In addition to this constant manifestation of interest and assertion of minor rights, the Senate used vigorously throughout this period its power of rejecting nominations. Under Grant there were 58 contested cases, of which 9 resulted in rejection; under Hayes 92 contests, 51 being decided against the president; in Garfield's short administration there were 7 contests with 2 rejections; 37 of Arthur's nominations were contested, 8 successfully; Cleveland suffered 8 defeats in 30 contests.^[48] The Senate had always possessed the power of rejection, and had at times used it freely, but never before so continuously in the case of nominations by presidents with whom the majority were on friendly terms. To be sure, some of these rejections reflect special hostility to Grant and Hayes; but on the whole they were scattered pretty evenly, and indicate a fixed policy of aggression rather than a temporary expedient. In the same way, the Senate had presumably always had the power to ask for information concerning nominations, but it had never before exercised it so freely. Particularly it interested itself in ascertaining whether appointments were divided evenly among the several states. A characteristic resolution is that of April 8, 1878, “That the annexed messages be respectfully returned to the President with the request that the Senate be informed of the residence of the nominee, where that fact is omitted, and whether the nomination is to remove an incumbent where that statement is omitted.”^[49]

These are outward and visible signs of the inward political growth of a new power of the Senate — the attempt of the senators by combination to make the president a mere clerk to transmit to the Senate as a constitutional body nominations handed to him unofficially by the individual senators. A crisis was brought about in the spring of 1881, when President Garfield attempted to reward some of his New York supporters at the expense of the friends of Senator Conkling. The latter protested; the other senator, Platt, joined him, as did Vice-president Arthur, Postmaster-general James, and sixty out of eighty-one Republican assemblymen of New York. Garfield persisted in sending the most offensive of the nominations — that of Mr. Robertson to be collector — to the Senate, whereupon Conkling and Platt resigned. In a letter to Governor Cornell they stated the facts, and added that they were forced to choose between “plain and sworn duty” and “disloyalty to the administration which they had helped to bring in.” The letter continued, “Although party service may be fairly considered in making selections of public officers, it can hardly be maintained that the Senate is bound to remove, without cause, incumbents, merely to make places for those whom any individual, even the President or a member of the Cabinet, wishes to repay for being recreant to others and serviceable to him.”^[50]

This action on the part of the New York senators must be regarded as an attempt to enforce the doctrine that not only could the Senate control appointments, but that the senators should severally control those for their respective states — a doctrine which may be considered as the high-water mark of the Senate's claims. Fortunately, the New York legislature did not support this theory, and Conkling and Platt were defeated for reëlection. Nor can the subsequent election of the latter be regarded as in any way a vindication of the principle here set forth; it was due rather to changed circumstances, and to his own great skill. The Senate itself rejected the doctrine put forward by unanimously confirming Robertson.^[51]

The notoriety of this incident did much to promote interest in the repeal of the Tenure-of-Office Act. This had been urged by Grant and Hayes, and a bill for the purpose had been passed in the House of Representatives.^[52] In April, 1884, President Arthur asked the Senate to consent to the removal of a certain officer, whereupon Senator Hoar proposed a resolution, “That in the judgment of the Senate it is within the constitutional power of the President to remove the officer named in his message if, in his judgment, the public interests require.” This was too radical a departure, and Senator Edmunds's resolution, that “in view of the foregoing message the Senate advise and consent to the removal,” was passed; but Senator Hoar succeeded in affixing to it the clause, “and that the Senate does not hereby express an opinion as to the constitutional relations of the President and the Senate in the matter of removal from office.”^[53]

Senator Hoar did not lose interest in the matter, and did not let others lose it. He was assisted by the agitation in favor of civil service reform and by a vigorously worded message of President Cleveland in 1886. December 14, 1885, he introduced a bill to repeal the Tenure-of-Office Law, which was referred to the judiciary committee; but it is significant that in the House a corresponding bill was given to the committee on the reform of the civil service. The debate in the House was unimportant, and the bill passed by a vote of 172 to 67.^[54] In the Senate the discussion was more keen. Hoar, in his introductory remarks, said that he did not suppose there were ten men in the Senate who objected to the repeal. The next day, however, Senator Edmunds vigorously defended the original act. He ably reviewed the constitutional arguments, and dwelt at some length on the danger of giving the patronage into the hands of the president alone; he dwelt upon the removals then being so rapidly made by the existing administration, and on the necessity of some regulation to restrain the president; the repeal of the Tenure-of-Office Act, he declared, would be a step backward in civil service reform, by facilitating removals.^[55] Hoar replied in a speech longer than his first, in which he maintained the unconstitutionality of the act of 1867, pointed out (incorrectly) that no suspended officer had ever been reappointed, that in all encounters with the executive the Senate had been worsted, and that the prestige of the latter could not fail to suffer from the attempt to control the president. He added, that the first step in civil service reform was to impose the responsibility of it on the president.^[56]

The repealing bill finally passed the Senate by a vote of 32 to 22; perhaps the speech of Senator Edmunds had given the question a partisan cast, for the negative vote was composed of Republicans, while Hoar and Ingalls were the only prominent members of that party to vote in the affirmative. As the Senate bill was not amended in the House, it was forwarded to the president as soon as passed by the latter body, and on the same day he approved it.^[57] Thus the original interpretation of Madison was allowed to revive, and responsibility was once more concentrated. Yet, while the Senate resumed the legal position it had held previous to 1867, the history of the intervening years could not be forgotten; its prestige was too firmly fixed to depend on a single act, and the senators unofficially and by “courtesy” have continued to this day the main dispensers of the patronage.

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1. Congressional Globe, 37 Cong. 3 sess. Appendix, 189; 38 Cong. 1 sess. Appendix, 169.
2. Ibid. 37 Cong. 3 sess. Appendix, 183-184. The following provisions point in the same direction. In 1843 it was provided that one cadet for West Point should be taken from each congressional district, thus suggesting by inference that each member should have the appointment of one. In 1862 the intention was made plainer, — that the “number allowed at the Academy” (Annapolis) should be “two for every member,” while the president was to have two for the District of Columbia and ten “at large” and three to be selected from enlisted boys. It was not, however, until 1875 that it was distinctly stated that the nomination should be made “on the recommendation of the member” (Eaton, Civil Service in Great Britain, 285).
3. Congressional Globe, 38 Cong. 1 sess. 1115, and Appendix, 182.
4. Gorham, Stanton, ii. 311.
5. Nation, August 3, 27, 1866; a list of members is to be found in the New York Tribune, August 14, 1866; see also August 21, 1866.
6. See Sumner in Congressional Globe, 39 Cong. 2 sess. 542.
7. Executive Journal, xiii. 11-19 (December 22, 1862); Blue Books, 1861, 1863, 1865; Blaine, Twenty Years of Congress, ii. 124.
8. New York Tribune, August 21, 22, 1866; Congressional Globe, 39 Cong. 2 sess. 493.
9. Fish, in American Historical Association, Reports, 1899, i. 83; Congressional Globe, 39 Cong. 2 sess. 492, 1517.
10. New York Tribune, August 14, 23, 25, 27, September 27, 1866. It was the report at Washington that two thousand removals were made. Congressional Globe, 39 Cong. 2 sess. 1041; Nation, May 1, August 16, September 1, 1866; August 22, November 2, 1867; January 2, 1868.
11. This brief discussion is almost entirely from Miss Salmon's Appointing Power of the President, and the debate on the Tenure-of-Office Act of 1867 as found in the Congressional Globe.
12. Congressional Globe, 39 Cong. 2 sess. 434, 438, 440. Federalist (Ford ed.), 511. The case is that of ex-parte Hennen, 13 Peters, 259.
13. Congressional Globe, 39 Cong. 2 sess. 409, 410.
14. Ibid. 39 Cong. 2 sess. 492. He did, however, frequently reappoint men rejected by the Senate. Ibid. 390; also 39 Cong. 3 sess. 436.
15. Ibid. 39 Cong. 1 sess. Appendix, 338.
16. Congressional Globe, 39 Cong. 2 sess. 17.
17. Ibid. 39 Cong. 2 sess. 382.
18. Ibid. 39 Cong. 2 sess. 438, 440, 460, 461.
19. Congressional Globe, 39 Cong. 2 sess. 386-387, 409-410, 441. See also report of the judiciary committee of the Senate, 1888. Executive Journal, xxvi. 196-202.
20. Congressional Globe, 39 Cong. 2 sess. 18; Nation, February 7, July 12, 1866.
21. Congressional Globe, 39 Cong. 2 sess. 542.
22. Ibid. 39 Cong. 2 sess. 390, 404, 405.
23. Ibid. 39 Cong. 2 sess. 406.
24. Congressional Globe, 39 Cong. 2 sess. 470, 525-528, 543, 547.
25. Nation, February 7, 1867; Congressional Globe, 39 Cong. 2 sess. 382-388, 938, 969, 1514, 1964, 1977; E. C. Mason, Veto Power, § 28.
26. Congressional Globe, 39 Cong. 2 sess. 460, 524, 1040.
27. C. E. Chadsey, Struggle between President Johnson and Congress over Reconstruction (Columbia University, Studies in History, viii. No. 1), 135.
28. Nation, October 17, 1867.
29. Executive Journal, xv. 349, 366, 376 (March 7, 8, 1867); 465, 572 (March 18, 28, 1867).
30. Ibid. xvi. 105 (December 13, 1867). This account of the events leading up to the trial of President Johnson is drawn from Professor Dunning's chapter on the trial of President Johnson. W. A. Dunning, Essays on Reconstruction, 253-303.
31. Executive Journal, xvi. 95.
32. Ibid. 130; C. M. De Witt, Impeachment of Andrew Johnson, chs. iii. and iv.
33. Executive Journal, xvi. 170.
34. Executive Journal, xvi. 236, 239.
35. Richardson, Messages and Papers of the Presidents, vi. 673; Executive Journal, xvi. 303, 306 (July 13, 1868); 319 (July 18, 1868).
36. The case of the postmastership at Newburgh, New Jersey, is an illustration. Johnson renominated J. H. Reeve, whose term had expired; Reeve was rejected, again renominated, and again rejected (Executive Journal xv. 249, 328, 429, 451). Benjamin H. Mace was next named and rejected (Ibid. 699, 710). A Mr. Lomas was put up and defeated (Ibid. 714, 741). The president once more brought forward Mr. Reeve, who, according to the journal, was confirmed (Ibid. 743, 758); but either the record is defective or the president imagined that there must have been a rejection, for he nominated William A. Boyce “in place of J. H. Reeve, rejected” (Ibid. 763). Boyce was thrown out (Ibid. 766); Lomas was now tried again, and he at last was confirmed (Ibid. 847).
37. Congressional Globe, 40 Cong. 2 sess. 845, 952, 1769; Nation, February 21, 1867; Nation, June 18, 1868.
38. December 6, 1869, Richardson, Messages and Papers of the Presidents, vii. 38; Statutes at Large, xvi. 6-7 (ch. x.).
39. Executive Journal, xvii. 22, 313, 320, 323.
40. Ibid. xvii. 323, 365, 403; xix. 250, 297; xxi. 319, 439.
41. Congressional Record, 49 Cong. 2 sess. 140-141; Executive Journal, xvii. 289-290, 545-546, 622, 682.
42. Ibid. xvii. 311; xxv. 340.
43. Ibid. xxvii. 434, 461-462, 475-477, 487-488, 501-504, 507, 516-517, 588, 590, 598; xviii. 110; xxv. 197. See also back of title-page of each volume.
44. Ibid. xvii. 594; xviii. 396; xix. 437.
45. Executive Journal, xviii. 352, 386, 400; xix. 460; xx. 178; xxi. 353; xxii. 97.
46. Ibid. xxi. 169, 199.
47. Exceptions, see p. 202 above; also Executive Journal, xx. 375. The latter was the case of a military officer.
48. Executive Journal, session for the periods mentioned.
49. Executive Journal, xxi. 287; see also xvii. 187, 383, and xxi. 55.
50. Nation, May 19, 1881.
51. Nation, June 23; July 28, 1881.
52. Richardson, Messages and Papers of the Presidents, vii. 38, 605; Congressional Record, 49 Cong. 2 sess. 113.
53. Executive Journal, xxiv. 249, 254.
54. Richardson, Messages, viii. 380-381; Senate Journal, 49 Cong. 1 sess. i. No. 83; House Reports, 49 Cong. 2 sess. i. No. 3539; House Journal, 49 Cong. 2 sess. 834 (March 3, 1887); Congressional Record, 49 Cong. 2 sess. 2700. The figures are taken from the Record, which is evidently corrected. Eighty did not vote.
55. Congressional Record, 49 Cong. 2 sess. 113, 136-140.
56. Ibid. 140-141.
57. Senate Journal, 49 Cong. 2 sess. 84, 569, 603 (December 17, 1886). Statutes at Large, xxiv. 500.