During this period I have taken a leading part in all questions affecting the security of the right of suffrage conferred by the Constitution of the United States on the colored people, of honesty in elections, of questions affecting disputed titles to seats in the Senate, and the extension of suffrage to women.

A very interesting question, now happily almost forgotten, came up at the December session of 1878, and was renewed at the following March session of 1879.

In 1878 the Democrats had a majority in the House of Representatives, while the Republicans had the Presidency and the Senate. In March, 1879, there was a Democratic majority in the Senate and in the House, but a Republican President. The Democratic Party chafed exceedingly under the National laws for securing the purity of elections and for securing impartial juries in the courts of the United States. In the December session of 1878, the House inserted a provision repealing these laws. They insisted, in conference, on keeping in this provision, and refused to consent to the passage of the Executive, Legislative and Judicial Appropriation Bill, unless the Senate and the President would yield to their demand. Mr. Beck of Kentucky, one of the conferrees on the part of the Senate, representing what was then the Democratic minority, but what became at the March session the majority, stated the doctrine of the House, as announced by their conferrees—adding that he agreed with it—that unless the States should be allowed to conduct their own elections in their own way, free from all Federal interference, they would refuse under their Constitutional right to make appropriations to carry on the Government.

This was in defiance of the express provision of the Constitution that Congress might at any time alter the regulations prescribed by the State Legislatures as to time, place and manner of holding elections for Senators and Representatives.

Mr. Beck declared that that course would be adopted and adhered to, no matter what came of the Appropriation Bills. He was followed by Mr. Thurman of Ohio, the leader of his party in the Senate, and Chairman of the Judiciary when it came into power. He said it was a question upon which he had thought long and deeply, one of the gravest which ever arose for the consideration of the American Congress, and added:

"We claim the right, which the House of Commons in England established after two centuries of contest, to say that we will not grant the money of the people unless there is a redress of grievances . . . . England was saved from despotism and an absolute monarchy by the exercise of the power of the House of Commons to refuse supplies except upon conditions that grievances should be redressed . . . . It is a mistake to suppose that it was a fight simply between the Throne and the Commons; it was equally a fight between the Lords and the Commons; and the result of two centuries of contest in England was the rule that the House of Lords had no right to amend a Money Bill."

This startling proposition claimed that it was in the power of the House of Representatives to control the entire legislation of the country. It could, if the doctrine of Mr. Beck and Mr. Thurman had prevailed, impose any condition upon an appropriation for the Judges' salaries, for the salaries of all executive officers, for carrying on the courts, and for all other functions of the Government.

I made a careful study of this question and satisfied the Senate,—and I think I satisfied Mr. Beck and Mr. Thurman, —that the doctrine had no support in this country, and had no support even in England. An examination of Parliamentary history, which I studied carefully, afforded the material for giving a narrative of every occasion when the Commons exerted their power of withholding supplies as a means of compelling a redress of grievances, from the Conquest to the present hour. I did not undertake in a speech in the Senate to recite the authorities in full. But I summed up the result of the English and American doctrine in a few sentences, which may be worth recording here.

"First. The Commons never withheld the supplies as a means of coercing the assent of the Crown or the Lords to legislation.

"Second. The supplies withheld were not the supplies needed for the ordinary functions of government, to which the ordinary revenues of the Crown were sufficient, but were for extraordinary occasions, as to pay the King's debts, or to conduct foreign wars.

"Third. That when the hereditary revenues of the Crown, or those settled on the King for life at the beginning of his reign, ceased to be sufficient for the maintenance of government and for public defence, the practice of withholding supplies ceased.

"Fourth. There has been no instance since the Revolution of 1688 of attaching general legislation to a bill for raising or appropriating money, and scarcely, if ever, such an instance before that date. When such an attempt has been made it has been resisted, denounced and abandoned, and the English Constitutional authorities, without exception, are agreed that such a proceeding is unwarrantable, revolutionary and destructive of the English Constitution.

"It is true that the luxury or ambition of Kings or their indulgent bounty to their favorites led them to assemble Parliament and to ask additional supplies from their subjects. It is also true that these requests furnished the occasion to the Commons to stipulate for redress of grievances. But the grievances so redressed had no relation to the laws of the Realm. These laws were made or altered by the free assent of the three estates in whom the law-making power vested by the Constitution. The grievances of which the Commons sought redress, whether from Tudor, Plantagenet or Stuart, were the improper use of prerogatives, the granting of oppressive monopolies, the waging of costly foreign wars, the misconduct of favorites and the like. The improvident expenditure of the royal patrimony, the granting the crown land or pensions to unworthy persons, is a frequent ground of complaint.

"But there is a broader and simpler distinction between the two cases. The mistake, the gross, palpable mistake, which these gentlemen fall into in making this comparison, lies at the threshold. The House of Commons, in its discretion, used to grant, and sometimes now grants, supplies to the King. The American Congress, in its discretion, never grants supplies to the President under any circumstances whatever. The only appropriation of the public money to which that term can properly apply, the provision for the President's compensation, is by design and of purpose placed wholly out of the power of Congress. The provision is peremptory that—

"'The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.'

"Alexander Hamilton, in No. 72 of the 'Federalist,' declares that the very purpose of this enactment is to put it beyond the power of Congress to compel the President 'to surrender at discretion his judgment to their inclinations.'"

Almost immediately after I entered the Senate the case came up of the title of William Pitt Kellogg to a seat in the Senate from Louisiana.

In January, 1877, a Republican Legislature was organized in Louisiana, which recognized Mr. Packard as the lawful Governor of the State. Packard had been elected, according to the claim of the Republicans, at the same election at which the Republican electors, who cast their votes for President Hayes, had been chosen. That Legislature elected Kellogg. When President Hayes refused to continue his support of the Republican government in Louisiana by military force, the Democrats organized the Legislature, a Democratic Governor took possession of power, and the Republican State Legislature melted away. It had done little or nothing, except to elect Mr. Kellogg.

Under these circumstances, the Democrats on the Committee on Privileges and Elections, and in the Senate, claimed that the recognition of the Democratic Governor had an ex post facto operation which determined the title and right of the Legislature who undertook to elect Mr. Spofford, Mr. Kellogg's competitor. The Republicans, on the other hand, claimed that nothing which occurred afterward could operate to determine the question of the lawfulness of the Kellogg Legislature, or its power to elect a Senator. That must be settled by the law and the fact. Upon these we thought Kellogg's title to be clear. Kellogg was seated. But when the Democrats got a majority, two years later, the Committee on Privileges and Elections, under the lead of Benjamin H. Hill of Georgia, undertook to set aside this judgment, and to seat Mr. Spofford. Mr. Hill made a long and, it is unnecessary to say, an able report, setting forth the view taken by himself and by the majority of the Committee, and recommended the admission of Mr. Spofford. I advised the Republican minority to decline to follow the Democrats into the discussion of the evidence, and to put the case alone and squarely on the authority of the previous judgment of the Senate. This I did in the following report:

The undersigned, a minority of the Committee on Privileges and Elections, to whom was referred the memorial of Henry M. Spofford, claiming the seat now occupied by William Pitt Kellogg, submit the following as their views:

On the 30th day of November, 1877, the Senate passed the following resolutions.

"Resolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a seat in the Senate of the United States from the State of Louisiana for the term of six years, commencing on the 4th of March, 1877, and that he be admitted thereto on taking the proper oath.

"Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States."

The party majority in the Senate has changed since Mr. Kellogg took the oath of office in pursuance of the above resolution. Nothing else has changed. The facts which the Senate considered and determined were in existence then, as now. It is sought, by a mere superiority of numbers, for the first time, to thrust a Senator from the seat which he holds by virtue of the express and deliberate final judgment of the Senate.

The act which is demanded of this party majority would be, in our judgment, a great public crime. It will be, if consummated, one of the great political crimes in American history, to be classed with the Rebellion, with the attempt to take possession by fraud of the State Government of Maine, and with the overthrow of State Governments in the South, of which it is the fitting sequence. Political parties have too often been led by partisan zeal into measures which a sober judgment might disapprove; but they have ever respected the constitution of the Senate.

The men whose professions of returning loyalty to the Constitution have been trusted by the generous confidence of the American people are now to give evidence of the sincerity of their vows. The people will thoroughly understand this matter, and will not likely to be deceived again.

We do not think proper to enter here upon a discussion of the evidence by which the claimant of Mr. Kellogg's seat seeks to establish charges affecting the integrity of that Senator. Such evidence can be found in abundance in the slums of great cities. It is not fit to be trusted in cases affecting the smallest amount of property, much less the honor of an eminent citizen, or the title to an object of so much desire as a seat in the Senate. This evidence is not only unworthy of respect or credit, but it is in many instances wholly irreconcilable with undisputed facts, and Mr. Kellogg has met and overthrown it at every point.

GEORGE F. HOAR, ANGUS CAMERON, JOHN A. LOGAN.

The Democratic majority presented their report, without asking to have it read. Then we of the minority presented ours, and had it read. It attracted the attention of the Senate and of the country. My report contains but a few sentences. That of the Democratic minority occupies eight columns of very fine print in the Congressional Record. The result was that some of the Southern Democrats, including Mr. Bayard of Delaware, General Gordon of Georgia, General Wade Hampton of South Carolina, and Mr. Pendleton, of Ohio, refused to support their associates in the extreme measure of unseating a Senator when nothing had happened to affect the judgment which seated him, except that the majority of the Senate had changed. Some of the Democratic gentlemen, however, while resting upon the old judgment of the Senate, and while refusing to set that aside, thought the Democratic charges made out on the evidence, and that Mr. Kellogg's conduct and character deserved the severest denunciation. Senator Pendleton, of Ohio, however, with a courage and manliness that did him infinite credit, after stating what his Democratic brethren said: "I am bound to say that I have read the evidence carefully, and there is nothing in it that in the least warrants any imputation upon the integrity of that Senator."

In speaking of my Committee service, perhaps I ought to say that I was appointed one of the Regents of the Smithsonian Institution in the year 1881. I liked the position exceedingly. I was very much interested in the work of the Institution, and enjoyed meeting the eminent scholars and men of science who were its members. After I had been a member a year or two a very eminent Republican Senator complained that I was getting more than my share of the prominent places in the gift of the Senate, and specified the Regency of the Smithsonian Institution as an instance. I thought there was great justice in the complaint, and accordingly I resigned and Justin S. Morrill was put in my place. It was a very fortunate thing. Mr. Morrill's influence secured the construction of the National Museum building, which I do not think it likely that I could have accomplished. That Museum was then in charge of the Secretary of the Smithsonian Institution.

A somewhat similar thing happened to me later. In the year 1885 the Nominating Committee of the Senate, of which Senator Allison was then Chairman, proposed my name for the Committee on Foreign Relations. I should have liked that service very much. I should have liked to study the history of our diplomacy, and the National interests specially in charge of that Committee, better than anything else I can think of. But I was then a member of the Committees on the Judiciary, Privileges and Elections, Library, Patents and the Select Committee to Inquire into the Claims of Citizens of the United States against Nicaragua, no one of which I desired to give up. On the other hand, Senator Frye of Maine, a very able Senator to whom the Republicans of Massachusetts were under special obligations for his services in their campaigns, was not at that time placed in positions on Committee service such as his ability and merit entitled him to. Accordingly I told the Committee I thought they had better amend their report and put Mr. Frye on the Committee on Foreign Relations instead of myself. That was done.

I incline to think that if that had not been done, and I had remained on the Committee for Foreign Relations, that I could have defeated the Spanish Treaty, prevented the destruction of the Republic in the Philippine Islands, and the commitment of this country to the doctrine that we can govern dependencies under our Constitution, in which the people have no political or Constitutional rights but such as Congress choose to recognize.

I am not sure that modesty or disinterestedness has much place in the matter of the acceptance of high political office. We often hear a gentleman say: "I am not fit to be Judge; I am not fit to be Governor, or Senator, or member of Congress. I think other men are better qualified, and I will not consent to stand in their way." This is often said with the utmost sincerity. But anybody who acts on such a feeling ought to remember that if he accept the office, it will not be filled by a worse man than he; if he accept the office, it being a political office, he is sure that the office will be filled by a man who will desire to accomplish, and will do his best to accomplish, the things he thinks for the public good. He should also remember, so far as the matter of ability is concerned, that other men are likely to be much better judges of his capacity than he is himself. If men are likely often to overrate their own capacity, they are also very often likely to underrate it.

Let me not be understood as commending the miserable self- seeking which too often leads men to urge their own claims without regard to the public interests. A man who is his own candidate is commonly a very bad candidate for his party.

One vote, more than once, would have saved the country from what I think its wretched policy in regard to the Philippine Islands. There was just one vote to spare when the Spanish Treaty was ratified. One Senator waited before voting until the roll-call was over and the list of the votes read by the clerk, before the finally voted for the treaty. He said he did not wish to butt his head against the sentiment of his State if he could do no good; but if his vote would defeat it, he should vote against it. If there had been one less vote, his vote would have defeated it. The Treaty would have been lost, in my opinion, if Senator Gray, one of the Commissioners who made it, who earnestly protested against it, but afterward supported it, had not been a member of the Commission. The resolution of Mr. Bacon, declaring our purpose to recognize the independence of the Philippine people, if they desired it, was lost also by a single vote. The Philippine Treaty would have been lost but for Mr. Bryan's personal interposition in its behalf. It would have been defeated, in my judgment, if Speaker Reed, a man second in influence and in power in this country to President McKinley alone, had seen it to be his duty to remain in public life, and lead the fight against it.

So I think it is rarely safe for a man who is in political life for public, and not for personal ends, and who values the political principles which he professes, to decline any position of power, either from modesty, doubt of his own ability, or from a desire to be generous to other men.

My twenty years' service on the Committee on the Judiciary, so far as it is worth narrating, will appear in the account of the various legal and Constitutional questions which it affected.

CHAPTER VIII THE RIVER AND HARBOR BILL

I have throughout my whole public political life acted upon my own judgment. I have done what I thought for the public interest without much troubling myself about public opinion. I always took a good deal of pride in a saying of Roger Sherman's. He was asked if he did not think some vote of his would be very much disapproved in Connecticut, to which he replied that he knew but one way to ascertain the public opinion of Connecticut; that was to ascertain what was right. When he had found that out, he was quite sure that it would meet the approval of Connecticut. That in general has been in my judgment absolutely and literally true of Massachusetts. It has required no courage for any representative of hers to do what he thought was right. She is apt to select to speak for her, certainly those she sends to the United States Senate, in whose choice the whole Commonwealth has a part, men who are in general of the same way of thinking, and governed by the same principles as are the majority of her people. When she has chosen them she expects them to act according to their best judgement, and not to be thinking about popularity. She likes independence better than obsequiousness. The one thing the people of Massachusetts will not forgive in a public servant is that he should act against his own honest judgment to please them. I am speaking of her sober, second thought. Her people, like the rest of mankind, are liable to waves of emotion and of prejudice. This is true the world over. It is as true of good men as of bad men, of educated as of ignorant men, whenever they are to act in large masses. Alexander Hamilton said that if every Athenian citizen had been a Socrates, still every Athenian assembly would have been a mob. So I claim no credit that I have voted and spoken as I thought, always without stopping to consider whether public opinion would support me.

The only serious temptation I have ever had in my public life came to me in the summer of 1882, when the measure known as the River and Harbor Bill was pending. The bill provided for an expenditure of about eighteen million dollars. Of this a little more than four million was for the execution of a scheme for the improvement of the Mississippi River and its tributaries, which had been recommended by President Arthur in a special message. All the other appropriations put together were a little less than fourteen million dollars. The bill passed both Houses. President Arthur vetoed it, alleging as a reason that the measure was extravagant; that the public works provided for in it were of local interest, not for the advantage of international or interstate commerce; and that it had got through by a system of log-rolling, the friends of bad schemes in one State joining with the friends of bad schemes in another, making common cause to support the bill. He added that in that way, the more objectionable the measure, the more support it would get. The press of the country, almost without exception, supported the President. The reasons which applied to each improvement were not well understood by the public. So the conductors of the newspapers naturally supposed the President to be in the right in his facts. The Democratic newspapers were eager to attack Republican measures. Where there were factions in the Republican Party, the Republican papers of one faction were ready to attack the men who belonged to the other. The independent newspapers welcomed any opportunity to support their theory that American public life was rotten and corrupt. So when the question came up whether the bill should pass notwithstanding the objections of the President, there was a storm of indignation throughout the country against the men who supported it.

But the committees who had supported it and who had reported it, and who knew its merits, and the men who had voted for it in either House of Congress, could not well stultify themselves by changing their votes, although some of them did. I was situated very fortunately in that respect. I had been absent on a visit to Massachusetts when the bill passed. So I was not on record for it. I had given it no great attention. The special duties which had been assigned to me related to other subjects. So when the measure came up in the Senate I had only an opinion founded on my general knowledge of the needs of the country and the public policy, that it was all right. My reelection was coming on. I was to have a serious contest, if I were a candidate, with the supporters of General Butler, then very powerful in the State. He, in fact, was elected Governor in the election then approaching. My first thoughts were that I was fortunate to have escaped this rock. But when the vote came on I said to myself: "This measure is right. Is my father's son to sneak home to Massachusetts, having voted against a bill that is clearly righteous and just, because he is afraid of public sentiment?" Senator McMillan, the Chairman of the Committee who had charge of the bill, just before my name was called, asked me how I meant to vote. I told him I should vote for the bill, because I believed it to be right, but that it would lose me the support of every newspaper in Massachusetts that had been friendly to me before. I voted accordingly. The vote was met by a storm of indignation from one end of Massachusetts to the other, in which every Republican newspaper in the State, so far as I know, united. The Springfield Republican and the Boston Herald, as will well be believed, were in glory. The conduct of no pick- pocket or bank robber could have been held up to public indignation and contempt in severer language than the supporters of that bill. A classmate of mine, an eminent man of letters, a gentleman of great personal worth, addressed a young ladies' school, or some similar body in Western Massachusetts, on the subject of the decay of public virtue as exemplified by me. He declared that I had separated myself from the best elements in the State.

The measure was passed over the President's veto. But it cost the Republican Party its majority in the House of Representatives. A large number of the member of the House who had voted for it lost their seats. If the question of my reelection had come on within a few weeks thereafter, I doubt whether I should have got forty votes in the whole Legislature. If I had flinched or apologized, I should have been destroyed. But I stood to my guns. I wrote a letter to the people of Massachusetts in which I took up case by case each provision of the bill, and showed how important it was for the interest of commerce between the States, or with foreign countries, and how well it justified the moderate expenditure. I pointed out that the bill had been, in proportion to the resources of the Government, less in amount than those John Quincy Adams and Daniel Webster had formerly advocated; that Mr. Webster, with the single exception of his service for preserving the Union, prided himself on his support of this policy of public improvement more than on anything else in his life, and had made more speeches on that subject than on any other. Mr. Adams claimed to be the author of the policy of internal improvements. So that it was a Massachusetts policy, and a Massachusetts doctrine. I asked the people of Massachusetts to consider whether they could reasonably expect to get their living by manufacture, to which nearly the whole State was devoted, bringing their raw material and their fuel and their iron and coal and cotton and wool from across the continent, and then carrying the manufactured article back again to be sold at the very places where the material came from, in competition with States like Pennsylvania and New York and Ohio and Indiana, unless the cost of transportation was, so far as possible, annihilated.

I concluded by saying that I knew they would not come to my way of thinking that afternoon or that week, but that they were sure to come to it in the end. With very few exceptions the letter did not change the course of the newspapers, or of the leading men who had zealously committed themselves to another doctrine. But it convinced the people, and I believe it had a very great effect throughout the country, and was the means of saving the policy of internal improvements from destruction.

Mr. Clapp, of the Boston Journal, with a manliness that did him infinite credit, declared publicly in its columns that he had been all wrong, and that I was right. The Worcester Spy, edited by my dear friend and near kinsman, Evarts Greene, had with the rest of the press attacked my vote. Mr. Greene himself was absent at the time, so the paper was then in charge of an associate. When Mr. Greene returned I asked him to spend an afternoon at my house. That was before my letter came out. I had sent to Washington for all the engineers' reports and other documents showing the necessity of every item of the bill. Mr. Greene made a careful study of the bill and agreed with me.

The Boston Herald also obtained all the material from Washington and sent it to a very able gentleman who, though not taking any part in the ordinary conduct of the Herald, was called upon for services requiring special ability and investigation. They asked him to answer my letter. He spent five days in studying the matter, and then wrote to the managing editor of the paper than Mr. Hoar was entirely right, and that he should not write the article desired. The Herald, however, did not abandon its position. It kept up the war. But I ought to say it so far modified its action that it supported me for reelection the next winter.

The Springfield Republican saw and seized its opportunity. It attacked the River and Harbor Bill savagely. It said: "Mr. Hoar is a candidate for reelection and has dealt himself a very severe blow. The Commonwealth was prepared to honor Messrs. Crapo and Hoar anew. To-day it pauses, frowns and reflects." So it kept up the attack. It had previously advocated the selection of Mr. Crapo as candidate for Governor. It bitterly denounced me. Mr. Crapo had himself voted for the River and Harbor Bill. It could not consistently maintain its bitter opposition to me, because of my vote, while supporting Mr. Crapo. So it declared it could no longer support him.

When the State Convention came the feeling was still strong, though somewhat abated. I had been asked by the Committee, a good while before, to preside at the Convention. This I did. I was received rather coldly when I went forward. But I made no apologies. I began my speech by saying: "It gives me great pleasure to meet this assembly of the representatives of the Republicans of Massachusetts. I have seen these faces before. They are faces into which I am neither afraid nor ashamed to look." The assembly hesitated a little between indignation at the tone of defiance, and approval of a man's standing by his convictions. The latter feeling predominated, and they broke out into applause. But the resolutions which the Committee reported contained a mild but veiled reproof of my action.

Mr. Crapo was defeated in the Convention. I have no doubt he would have been nominated for Governor, but for his vote for the River and Harbor Bill. His successful competitor, Mr. Bishop, was a gentleman of great personal worth, highly esteemed throughout the Commonwealth, and of experience in State administration. But it was thought that his nomination had been secured by very active political management, concerted at the State House, and that the nomination did not fairly represent the desire of the people of the Commonwealth. Whatever truth there may have been in this, I am very sure that Mr. Crapo's defeat could not have been compassed but for his vote for the River and Harbor Bill. The result of the above feeling, however, was that the Republican campaign was conducted without much heart, and General Butler was elected Governor.

When the election of Senator came in the following winter, I was opposed by what remained of the feeling against the River and Harbor Bill. My principal Republican competitors were Mr. Crapo, whose friends rightly thought he had been treated with great injustice; and Governor Long, a great public favorite, who had just ended a brilliant and most acceptable term of service as Governor. Governor Long had presided at a public meeting where President Arthur had been received during the summer, and had assured him that his action had the hearty approval and support of the people of the Commonwealth. I had, of course, no right to find the least fault with the supporters of Governor Long. He would have been in every way a most acceptable and useful Senator. I ought to say that, as I understood it, he hardly assumed the attitude of a candidate for the place, and declared in a public letter or speech that he thought I ought to be reelected. So, after a somewhat earnest struggle I was again chosen.

One curious incident happened during the election. The morning after the result was declared, a story appeared in the papers that Mr. Crapo's supporters had been led to come over to me by the statement that one of them had received a telegram from him withdrawing his name, and advising that course. The correspondent of one of the papers called upon Mr. Crapo, who answered him that he had never sent any such telegram to Boston. So it was alleged that somebody who favored me had brought about the result by this false statement. A newspaper correspondent called on me in Washington, and asked me about the story. I told him that I had not heard of the story, but that if it turned out to be true I, of course, would instantly decline the office. A full investigation was made of the matter, and it turned out that Mr. Crapo had sent such a telegram to a member of the Legislature in New Bedford, who had taken it to Boston and made it known.

The next winter, at my suggestion, a resolution was passed calling upon the Secretary of War, Mr. Lincoln, to specify which items in the River and Harbor Bill of the previous winter were not, in his opinion, advisable, or did not tend to promote international or interstate commerce. He replied specifying a very few items only, amounting altogether to a very few thousand dollars. This reply was made by the Secretary of War, as he told me in private afterward, by the express direction of the President, and after consultation with him. That ended the foolish outcry against the great policy of internal improvement, which has helped to make possible the marvels of our domestic commerce, one of the most wonderful creations of human history. The statistics of its vast extent, greater now, I think, than all the foreign commerce of the world put together, from the nature of the case, never can be precisely ascertained. It is not only wonderful in its amount, but in its origin, its resources, and in its whole conduct. All its instrumentalities are American. It is American at both ends, and throughout all the way. This last year a bill providing for an expenditure of sixty millions, nearly four times the amount of that which President Arthur, and the newspapers that supported him, thought so extravagant, passed Congress without a murmur of objection, and if I mistake not, without a dissenting vote.

I should like to put on record one instance of the generosity and affection of Mr. Dawes. He had not voted when his name was called, expecting to vote at the end of the roll-call. He meant to vote against the passage of the bill over the veto. But when he heard my vote for it, he saw that I was bringing down on my head a storm of popular indignation, and made up his mind that he would not throw the weight of his example on the side against me. So, contrary to his opinion of the merits of the bill, he came to my side, and voted with me.

I suppose a good many moralists will think that it is a very wicked thing indeed for a man to vote against his convictions on a grave public question, from a motive like this, of personal friendship. But I think on the whole I like better the people, who will love Mr. Dawes for such an act, than those who will condemn him. I would not, probably, put what I am about to say in an address to a Sunday-school, or into a sermon to the inmates of a jail or house of correction. I cannot, perhaps, defend it by reason. But somehow or other, I am strongly tempted to say there are occasions in life where the meanest thing a man can do is to do perfectly right. But I do not say it. It would be better to say that there are occasions when the instinct is a better guide than the reason. At any rate, I do not believe the recording angel made any trouble for Mr. Dawes for that vote.

CHAPTER IX CHINESE TREATY AND LEGISLATION

Much of what I have said in the preceding chapter is, in substance, applicable to my vote on another matter in which I had been compelled to take an attitude in opposition to a large majority of my own party and to the temporary judgment of my countrymen: that is the proposed legislation in violation of the Treaty with China; the subsequent Treaty modifying that negotiated in 1868 by Mr. Seward on our part, and Mr. Burlingame for China; and the laws which have been enacted since, upon the subject of Chinese immigration. I had the high honor of being hung in effigy in Nevada by reason of the report that I had opposed, in secret Session of the Senate, the Treaty of 1880. My honored colleague, Mr. Dawes, and I were entirely agreed in the matter. Mr. Dawes complained good-naturedly to Senator Jones, of Nevada, that he had been neglected when the Nevada people had singled me out for that sole honor, to which Mr. Jones, with equal good-nature, replied that if Mr. Dawes desired, he would have measures taken to correct the error, which had inadvertently been made.

In 1868 the late Anson Burlingame, an old friend of mine and a man highly esteemed in Massachusetts, who had been sent to China as the American Minister in Mr. Lincoln's time, was appointed by the Chinese Government its Ambassador, or Envoy, to negotiate treaties with the United States and several European powers. He made a journey through this country and Europe, travelling with Oriental magnificence, in a state which he was well calculated to maintain and adorn. It was just after we had put down the Rebellion, abolished slavery, and made of every slave a freeman and every freeman a citizen. The hearts of the people were full of the great doctrines of liberty which Jefferson and the Fathers of our country had learned from Milton and the statesmen of the English Commonwealth.

The Chinese Treaty was concluded on the 28th of July, 1868, between Mr. Seward and Mr. Burlingame and his associate Plenipotentiaries Chih-Kang and Sun Chia-Ku. It contained the following clause:

"The United States of American and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects respectively from one country to the other for purposes of curiosity, of trade, or as permanent residents."

Article VII. of the same Treaty stipulated that citizens of each power should enjoy all the privileges of the public educational institutions under the control of the government of the other, enjoyed by the citizens or the subjects of the most favored nation, and that the citizens of each might, themselves, establish schools in the others' country. Congress passed an Act, July 27, 1868, to a like effect, to which the following is the preamble to the first section:

"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore," etc.

Thereafter, in the first term of the Administration of President Hayes, in the December Session of 1878, a bill was introduced which, almost defiantly, as it seemed to me, violated the faith of the country pledged by the Burlingame Treaty. There had been no attempt to induce China to modify that Treaty. I resisted its passage as well as I could. But my objection had little effect in the excited condition of public sentiment. The people of the Pacific coast were, not unnaturally, excited and alarmed by the importation into their principal cities of Chinese laborers, fearing, I think without much reason, that American laboring men could not maintain themselves in the competition with this thrifty and industrious race who lived on food that no American could tolerate, and who had no families to support, and who crowded together, like sardines in a box, in close and unhealthy sleeping apartments.

I supposed that the labor of this inferior class would raise the condition of better and more intelligent laborers. That, however, was a fairly disputable question. But I could not consent to striking at men, as I have just said, because of their occupation. This bill was vetoed by President Hayes, who put his objections solely upon the ground that the bill was in violation of the terms of the existing Treaty. The House, by a vote of 138 yeas to 116 nays, refused to pass the bill over the veto.

But in 1880 a Treaty was negotiated, and approved by the Senate and ratified July 19, 1881, which relieved the United States from the provisions of the Burlingame Treaty, and permitted the exclusion of Chinese laborers. I made a very earnest speech, during a debate on this Treaty in Executive Session of the Senate, in opposition to it. The Senate did me the honor, on the motion of Mr. Dawes, of a vote authorizing my speech to be published, notwithstanding the rule of secrecy. But one Senator from the Pacific coast complained, I think with some reason, that I was permitted to publish my argument on one side when he not only was not permitted to publish his on the other, but his constituents had no means of knowing that he had defended his views or made proper answer to mine. So I thought it hardly fair to make by speech public, and it was not done.

Later, in the spring of 1882, a bill was passed to carry into effect the Treaty of 1880. That I resisted as best I could. In opposition to this bill I made an earnest speech showing it to be in conflict with the doctrines on which our fathers founded the Republic; with the principles of the Constitutions of nearly all the States, including that of California, and with the declarations of leading statesmen down to the year 1868. I showed also that the Chinese race had shown examples of the highest qualities of manhood, of intelligence, probity and industry. I protested against a compact between the two greatest nations of the Pacific, just as we were about to assert our great influence there, which should place in the public law of the world, and in the jurisprudence of America, the principle that it is fitting that there should be hereafter a distinction in the treatment of men by governments and in the recognition of their right to the pursuit of happiness by a peaceful change of their homes, based, not on conduct, not on character, but upon race and occupation; by asserting that you might justly deny to the Chinese what you might not justly deny to the Irish, that you might justly deny to the laborer what you might not deny to the idler. I pointed out that this declaration was extorted from unwilling China by the demand of America; and that laborers were henceforth to be classed, in the enumeration of American public law, with paupers, lazzaroni, harlots, and persons afflicted with pestilential diseases. I ended what I had to say as follows:

"Humanity, capable of infinite depths of degradation, is also capable of infinite heights of excellence. The Chinese, like all other races, has given us its examples of both. To rescue humanity from this degradation is, we are taught to believe, the great object of God's moral government on earth. It is not by injustice, exclusion, caste, but by reverence for the individual soul that we can aid in this consummation. It is not by Chinese policies that China is to be civilized. I believe that the immortal truths of the Declaration of Independence came from the same source with the Golden Rule and the Sermon on the Mount. We can trust Him who promulgated these laws to keep the country safe that obeys them. The laws of the universe have their own sanction. They will not fail. The power that causes the compass to point to the north, that dismisses the star on its pathway through the skies, promising that in a thousand years it shall return again true to its hour and keeps His word, will vindicate His own moral law. As surely as the path on which our fathers entered a hundred years ago led to safety, to strength, to glory, so surely will the path on which we now propose to enter bring us to shame, to weakness, and to peril."

The Statute then enacted, expired by its own limitations twenty years afterward. Meantime the prejudice against Chinese labor had modified somewhat. The public had become somewhat more considerate of their rights and, at any rate, there was a desire to maintain some show of decency in legislating the matter. So a more moderate Statute was enacted in 1902. I was the only person who voted against it in either House. It was, of course, clear that resistance was useless. It was not worth while, it seemed to me, to undertake to express my objections at length. I contented myself with the following brief remonstrance:

"Mr. President, I think this bill and this debate indicate a great progress in sentiment. The sentiment of the country has passed, certainly so far as it is represented by a majority of the Senate, the stage, if it ever was in it, of a reckless seeking to accomplish the result of Chinese exclusion without regard to constitutional restraints, treaty obligations, or moral duties. There was in some quarters, as it seemed to me, in olden times, a disregard of all these restraints, certainly in the press, certainly in the harangues which were made to excited crowds in various parts of the country. Among others I can remember a visit of the apostle of Chinese exclusion to Boston Common which indicated that spirit.

"Now, that has gone largely, and the Senate has discussed this question with a temperate desire on the part of all classes and all Senators, whatever ways of thinking they have, to do what seemed to them for the benefit of labor, the quality of the citizenship of this country, in a moderate and constitutional fashion.

"But I cannot agree with the principle on which this legislation or any legislation on the subject which we have had in the country since 1870 rests. I feel bound to enter a protest. I believe that everything in the way of Chinese exclusion can be accomplished by reasonable, practical and wise measures which will not involve the principle of striking at labor, and will not involve the principle of striking at any class of human beings merely because of race, without regard to the personal and individual worth of the man struck at. I hold that every human soul has its rights, dependent upon its individual personal worth and not dependent upon color or race, and that all races, all colors, all nationalities contain persons entitled to be recognized everywhere they go on the face of the earth as the equals of every other man."

I do not think any man ever hated more than I have hated the affectation or the reality of singularity. I know very well that the American people mean to do right, and I believe with all my heart that the men and the party with whom I have acted for fifty years mean to do right. I believe the judgment of both far better than my own. But every man's conscience is given to him as the lamp for his path. He cannot walk by another light.

It is also true that the great political principles which have been in issue for the last thirty years, have been, in general, those that have been debated for centuries, and which cannot be settled by a single vote, in a legislative body, by the result of a single election, or even by the opinion of a single generation. In nearly every one of what I am sorry to say are the numerous instances where I have been compelled to act upon my judgment against that of my own party, and even against that of the majority of my own countrymen, the people have subsequently come around to my way of thinking, and in all of them, I believe, I have had on my side the opinion of the great men of the great generations of the past. Certainly the Chinese Exclusion Bill and the Chinese Treaty; the Spanish Treaty and the War against the Philippine people could not have lived an hour before the indignation of the American people at any time from the beginning down to the time when, in 1876, they celebrated the centennial of their Independence.

CHAPTER X THE WASHINGTON TREATY AND THE GENEVA AWARD

The Treaty of Washington, creditable to all who engaged in it, not to be judged by its details, but by its great effect in securing peace to the world, saved Great Britain from a war with us, in which it is not unlikely that the nations of Europe who hated her would have come to take part on our side. But it saved us from the greater danger of having the war spirit renewed and intensified by this gigantic struggle, from an international hatred which would not have cooled again for a century; or, if we did not declare war, from taking the ignoble attitude of a great and free people lying in wait for an opportunity to revenge itself.

It was the purpose of that Treaty to remove every cause of quarrel. One constant cause of quarrel, for many years, had been the exercise of our right to fish on the shores of Newfoundland. In the Treaty it was agreed that the United States should have, in addition to her existing rights for ten years, and for such further times as the parties should agree, the right to take fish on the sea coast of the British Provinces north of us, with permission to land for the purpose of drying nets and curing fish, and that we were to pay for the privilege a sum to be fixed by arbitrators. Two of these arbitrators were to be appointed by the United States and Great Britain; the other, who would serve as umpire, to be agreed upon by the two powers, or, if not agreed upon within a certain time, then to be appointed by the Emperor of Austria. Great Britain insisted upon having the Belgian Minister to the United States for the third arbitrator, and refused to name or suggest or agree to any other person. So the time expired. Thereupon the Belgian Minister, Mr. Delfosse, was selected by the Emperor of Austria. Mr. Delfosse's own fortune in public life depended upon his Sovereign's favor. We had already notified Great Britain that, if the Belgian Minister were selected, he would probably deem himself disqualified by reason of the peculiar connection of his Government with that of Great Britain. When the Treaty was negotiated, Earl de Grey, Chairman of the Commissioners, said, speaking of the Government to whom the matter might be referred: "I do not name Belgium, because Great Britain has treaty arrangements with that Government which might be supposed to incapacitate it." Belgium, as was notorious, was dependent upon Great Britain to maintain its political existence against the ambitions of France and Germany. Mr. Delfosse's sovereign was the son of the brother of Queen Victoria's mother and Prince Albert's father, and was, himself, brother of Carlotta, wife of Maximilian, whom we had lately compelled France to abandon to his fate.

The referee awarded that we should make a payment to Great Britain for this fishery privilege of five million five hundred thousand dollars. We never valued them at all. We abandoned them at the end of ten years. It would have been much better to leave the matter to Great Britain herself. If she had been put upon honor she would not have made such an award. No English Judge who valued his reputation would have suggested such a thing, as it seemed to us.

I would rather the United States should occupy the position of paying that award, after calling the attention of England to its injustice and wrong, than to occupy the position of England when she pocketed the money. A war with England would have been a grievous thing to her workingmen who stood by us in our hour of peril, and to all that class of Englishmen whom we loved, and who loved us. Such a war would have been a war between the only two great English-speaking nations of the world, and the two nations whose policy, under methods largely similar, though somewhat different, were determined by the public opinion of their people.

If however our closer and friendlier relations with England are to result in our adopting her social manners, her deference to rank and wealth, and of adopting her ideas of empire and the method of treating small and weak nations by great and strong ones, it would be better that we had kept aloof, and that the old jealousy and dislike engendered by two wars had continued.

A very interesting question was settled during the Administration of President Hayes as to the disposition of the $15,500,000 recovered from Great Britain by the award of the tribunal of Geneva for the violation of the obligations of neutrality during the Civil War. Great Britain, after what we had claimed what was full notice of what was going on, permitted certain war vessels to be constructed in England for the Confederate Government. She permitted those vessels to leave her ports and, by a preconcerted arrangement, to receive their armament, also procured in Great Britain. She turned a deaf, an almost contemptuous ear, to the remonstrances of Mr. Adams, our Minister. The Foreign Office, after a while, informed him that they did not wish to receive any more representations on that subject. But, as the War went on and the naval and military strength of the United States increased and became more manifest, Great Britain became more careful. At last some Rebel rams were built by the Lairds, ship-builders of Liverpool. Mr. Adams procured what he deemed sufficient evidence that they were intended for the Confederate service, and made a demand on Lord Russell, the British Foreign Minister, that they be detained. To this Lord Russell replied that he had submitted the matter to the Law officers of her Majesty's Government, and they could see no reason for interfering. To this Mr. Adams instantly replied that he received the communication with great regret, adding, "It would be superfluous in me to point out to your Lordship that this is war." Lord Russell hastily reconsidered his opinion, and ordered the rams to be stopped.

He afterward, as appears in his biography by Spencer Walpole, admitted his error in not interfering in the case of the vessels that had gone out before. But the mischief was done. The terror of these Confederate vessels had driven our commerce from the sea, or had compelled our merchant vessels to sail under foreign flags, and had enormously increased the rate of insurance to those who kept the sea under our flag.

After the War had ended a demand for compensation was earnestly pressed upon Great Britain. A demand was made to refer the claims to arbitration, and a Treaty negotiated for that purpose by Reverdy Johnson under Andrew Johnson's Administration, was rejected by the Senate, on the ground, among other reasons, that the element of chance entered into the result.

Thereafter, in General Grant's time, a Joint High Commission to deal with this controversy was agreed upon between the two countries, which sat in Washington, in 1871. The Commissioners in behalf of the United States were Hamilton Fish, Secretary of State; Robert C. Schenck, then our Minister to England; Samuel Nelson, Judge of the Supreme Court; Ebenezer Rockwood Hoar, lately Attorney-General, and George H. Williams, afterward Attorney-General. On behalf of Great Britain there were Earl de Grey and Ripon, afterward Marquis of Ripon; Sir Stafford H. Northcote, afterward Earl of Idesleigh; Edward Thornton, then the British Minister here; John A. MacDonald, Premier of Canada, and Montague Bernard, Professor of International Law at Oxford. The two countries could not, in all probability, have furnished men more competent for such a purpose. They agreed upon a treaty. The rules by which neutral governments were to be held to be bound for the purposes of the arbitration were agreed on beforehand in the Treaty itself. They agreed to observe these rules between themselves in the future, and to invite other maritime powers to accede to them. The Treaty also contained a statement that Her Britannic Majesty had "authorized her High Commissioners and Plenipotentiaries to express in a friendly spirit the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels." I am not aware a like apology has ever been made by Great Britain during her history, to any other country. There was a provision also, for the reference of some other matters in dispute between the two countries. One of these related to the fisheries— a source of irritation between this country and the British possessions north of us ever since the Revolution.

I will not undertake to tell that part of the story here. It was agreed to submit the questions of the claims growing out of the escape of the Rebel cruisers to a tribunal which was to sit at Geneva. Of this, one member was to be appointed by each of the parties, and the others by certain designated foreign governments. Our Commissioner was Charles Francis Adams, who had borne himself so wisely and patiently during the period of the Civil War. The English Commissioner was Sir Alexander Cockburn, Lord Chief Justice of England. The United States was represented by Caleb Cushing, William M. Evarts and Morrison R. Waite, afterward Chief Justice of the United States, as counsel.

Adams rarely betrayed any deep emotion on any public occasion, however momentous. But it must have been hard for him to conceal the thrill of triumph, after the ignominy to which he had submitted during that long and anxious time, when he heard the tribunal pronounce its judgment, condemning Great Britain to pay $15,500,000 damages for the wrong-doing against which he had so earnestly and vainly protested. Perhaps the feeling of his grandfather when he signed the Treaty of Independence in 1783 might alone be compared to it. Yet his father, John Quincy Adams, had something of the same feeling when, at the close of a war which put an end forever to the impressment of American seamen, and made the sailor in his ship as safe as the farmer in his dwelling, he signed the Treaty which secured our boundary and our fisheries as they had been secured by his father.* John Quincy Adams had struck, by the direction of his father, in 1815, a seal which he gave to his son, with the injunction to give it to his, bearing the motto, "Piscemur, venemur, ut olim,"—We keep our hunting grounds and our fishing grounds as of old. I doubt if three such achievements, by three successive generations, can be found in the annals of any other family however illustrious.

[Footnote] * This story is told more fully at page 147. It seems appropriate in both places. [End of Footnote]

The $15,500,000 was promptly paid. Then came the question what to do with it. There was no doubt anywhere, that the owners of vessels or cargoes that had been captured or destroyed by the cruisers for whose departure from British ports Great Britain was in fault, were entitled to be paid. That, however, would not consume the fund. The fund had been paid in gold coin by Great Britain, September 9, 1873, and had been covered into the Treasury the same day. This sum was invested in a registered bond for the amount, of the five per cent. loan of 1881, dated September 10, 1873, inscribed, "Hamilton Fish, Secretary of State, in trust. To be held subject to the future disposition of Congress, etc." This sum largely exceeded what was necessary to make good the principal of all losses directly resulting from the damages caused by the insurgent cruisers, above what had already been reimbursed from insurance. These claims were popularly termed the "claims for direct damages."

The question what to do with the balance was the subject of great dispute throughout the country, and of much debate in both Houses of Congress. Some persons claimed that the owners directly damaged should receive interest. That would still leave a large part of the fund undisposed of. It was insisted that the remainder belonged to the Government for the benefit of the whole people who had borne the burden and cost of the war. Others claimed that, as nothing but direct damages were lawfully assessable, the balance should be paid back to Great Britain. Still others claimed that the persons who had suffered indirectly by the loss of voyages, the increased rates of insurance, and the breaking up of business, were justly entitled to the money. Still others, perhaps the most formidable and persistent of all, claimed that the underwriters who had paid insurance on vessels or cargoes destroyed, were entitled to the money on the familiar principle that an insurer who pays a loss is subrogated to all the legal and equitable claims of the party insured.

These disputes prevented any disposition of the fund by Congress until the summer of 1874.

Judge Hoar, who was then a Member of the House of Representatives, suggested that as everybody agreed that the claims for direct damage ought to be paid, that it was not fair that they should be kept waiting longer in order to settle the dispute about the rest of the fund. In accordance with his suggestion a Court was provided for by Act of Congress, whose duty it was to receive and examine all claims directly resulting from damages caused by the insurgent cruisers. They were directed, however, not to allow any claim where the party injured had received indemnity from any insurance company, except to the excess of such claim above the indemnity. They were further authorized to allow interest at the rate of four per cent. The Court performed its duty. When its judgments had been paid there still remained a large balance. The ablest lawyers in the Senate, in general, pressed the claim of the insurance companies to the balance of the fund, including Mr. Edmunds, Judge Davis, Judge Thurman and Mr. Bayard. I took up the question with a strong leaning for the insurance companies. I was, of course, impressed by the well-known principle of law that the underwriter who had paid for property destroyed by the cause against which he had insured, was entitled to be substituted to all other rights or remedies which the owner may have for reimbursement of his loss. I was very much impressed also in favor of the insurance companies, who were making what they doubtless believed an honest and just claim, fortified by many of the best legal opinions in Congress and out of it, by the character of the attacks made on them, especially by General Butler. These attacks appealed to the lowest passions and prejudices. It was said that the companies were rich; that they made their money out of the misfortunes of their countrymen; that they were trying to get up to their arm-pits in the National Treasury, and that they employed famous counsel. If there be anything likely to induce a man with legal or judicial instincts to set his teeth against a proposition, it is that style of argument.

But I came to the conclusion, both from the history of the proceedings at Geneva, and from the nature of the submission, that the claim that had been established against Great Britain was a National claim, made by National authority for a National injury. That this was the character of the claim our counsel gave express notice to Great Britain and to the tribunal. This opinion was asserted by Mr. Fish in his instructions to the counsel. When the Government of the United States received it, it seemed to me that it was entitled to apply it in its high discretion; and to give it to such persons entitled to its protection or consideration as it should see fit. I made a careful argument in support of this view. I thought, accordingly, that the balance of the fund, after compensating all persons, not yet paid, for claims directly resulting from damage done on the high seas by Confederate cruisers, and the class of insurance companies above mentioned, should be paid to persons who had paid premiums for war risks after the sailing of any Confederate cruiser. I maintained this doctrine as well as I could against the powerful arguments I have named. There were other very strong arguments on the same side, and I had the gratification of being assured by several Senators that my presentation of the case had convinced them. Mr. Blaine, who had, himself, earnestly engaged in the debate, said that he thought that the opinion of the majority of the Senators had been changed by my argument.

CHAPTER XI THE PRESIDENT'S POWER OF REMOVAL

The two most important questions of the construction of the Constitution which came up in our early history have been finally put at rest in our day. I have had something to do with disposing of both of them. With the disposition of one of them I had a leading part.

The first of these questions was whether in executing the powers conferred upon it by the Constitution, Congress must confine itself to such means and instrumentalities as are strictly and indispensably necessary to their accomplishment; or whether it might select, among the measures which fairly promote such Constitutional ends, any method which it shall think for the public interest, exercising this power in a liberal way, and remembering in doing so that it is a Constitution— the vital power of a free people,—we are defining and limiting, and not an ordinary power of attorney.

This question first came up in Washington's Administration, on the bill for establishing a National Bank. Seldom any doubt is raised now as to the Constitutional power of the National Government to accomplish and secure any of the great results which we could not secure before the war, by reason of what is called the doctrine of State Rights. Democrat and Republican, men of the South and men of the North, now agree in exercising without a scruple the power of Congress to protect American interests by the tariff, to endow and to subsidize railroads across the continent, and to build an Oceanic canal.

I have in my possession, in Roger Sherman's and James Madison's handwriting, a paper which contains the first statement of a controversy which divided parties and sections, which inspired Nullification, and which entered largely in the strife which brought on the Civil War.

(In Roger Sherman's handwriting.) "You will admit that Congress have power to provide by law for raising, depositing and applying money for the purposes enumerated in the Constitution." X (and generally of regulating the finances). "That they have power so far as no particular rules are pointed out in the Constitution to make such rules and regulations as they may judge necessary and proper to effect these purposes. The only question that remains is—Is a bank (a necessary and) a proper measure for effecting these purposes? And is not this a question of expediency rather than of right?"

(The following, on the same slip of paper, is in James Madison's handwriting.) "Feb. 4, 1791. This handed to J. M. by Mr. Sherman during the debate on the constitutionality of the bill for a National bank. The line marked X given up by him on the objection of J. M. The interlineation of 'a necessary &' by J. M. to which he gave no other answer than a smile."

The other matter relates to the power of removal from office. Upon that the Constitution is silent. In the beginning two views were advocated. There was a great debate in 1789, which Mr. Evarts declares, "decidedly the most important and best considered debate in the history of Congress." The claim that the power of removal is vested absolutely in the President by the Constitution prevailed in the House of Representatives, under the lead of Madison, by a majority of twelve, and by the casting vote of John Adams in the Senate. Mr. Madison said:

"The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole Government."

One party claimed that the power of removal was a necessary incident to the power of appointment, and vested in the President by virtue of his power to appoint. It was claimed also on the same side that the President's duty to see the laws faithfully executed could not be discharged if subordinates could be kept in office against his will. In most cases the President never executes the laws himself, but only has to see them executed faithfully.

This view prevailed, as we have seen, in Washington's Administration. It continued to be acted upon till the time of President Johnson. In General Jackson's time its soundness was challenged by Webster, Calhoun and Clay. But there was no attempt to resist it in practice. Mr. Webster in 1835 earnestly dissented from the original decision, while he admitted that he considered it "a settled point; settled by construction, settled by precedent, settled by the practice of the Government, and settled by statute." It remained so settled, until, in the strife which followed the rebellion, a two-thirds majority in Congress was induced by apprehension of a grave public danger to attempt to wrest this portion of the executive power from the hands of Andrew Johnson. The statute of March 2, 1867, as construed by nearly two-thirds of the Senate, enacted that officers appointed by the predecessor of President Johnson, who, by the law in force when they were appointed, and by the express terms of their commission, were removable at the pleasure of the President, should remain in office until the Senate should consent to the appointment of their successors, or approve their removal.

In 1867 Congress undertook to determine by statute the construction of the Constitution as to this disputed question. Some persons claimed that that power existed in the provision—"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department officer thereof."

The Constitutionality and effect of this statute were debated on the trial of President Johnson. But it served its purpose during the last two years of Johnson's Administration. Five days after Grant's inauguration, the House of Representatives, by a vote of 138 to 16, passed a bill totally repealing it. The Senate was unwilling to let go the hold which it had acquired on the Executive power, but proposed to suspend the law for one year, so that there might be no obstacle in the path of General Grant to the removal of the obnoxious officials who had adhered to Andrew Johnson. So a compromise was agreed upon. It permitted the President to suspend officers during the vacation of the Senate, but restored officers so suspended at the close of the next session, unless, in the meantime, the advice and consent of the Senate had been obtained to a removal or the appointment of a successor.

President Grant, in his message of December, 1869, urged the repeal of this modified act on the ground that—

"It could not have been the intention of the framers of the Constitution that the Senate should have the power to retain in office persons placed there by Federal appointment, against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced on him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?"

The House acted on this recommendation, and passed a bill for the repeal of the statutes of 1867 and 1869 by a vote of 159 to 25. For this bill the whole Massachusetts delegation, including Mr. Dawes and myself, voted. It was never acted on in the Senate. In 1872 a similar bill passed the House without a division.

The Democratic Party has invariably supported the position of Madison and Jackson, that the power of removal is vested by the Constitution in the President, and cannot be controlled by legislation.

This was the condition of matters when Mr. Cleveland came into office March 4, 1885. The Revised Statutes, Sections 1767-1772, contained in substance the law as it was left by the legislation of 1867 and 1869 (Sec. 1767): "Every person holding any civil office to which he has been or hereafter may be appointed by and with the consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor, in his place, except as herein otherwise provided."

The President was however authorized to suspend civil officers during the recess, except Judges, until the next session of the Senate, and to designate a substitute who should discharge the duties of the office, himself being subject to removal by the designation of another.

The President was further required to nominate within thirty days after the commencement of each session of the Senate persons to fill all vacancies in office, which existed at the meeting of the Senate, whether temporarily filled or not, and in place of all officers suspended. If no appointment were made, with the advice and consent of the Senate during such session, the office was to be in abeyance.

It will be seen that this statute required the assent of the Senate to the exercise of the President's power of removal, although without its consent he could suspend the officer so as to deprive him of the emoluments of his office.

So the appointment of a new officer by the advice and consent of the Senate operated in such case as a removal of the person them holding office, and a failure of the Senate to confirm such proposed appointment had the effect to restore the officer suspended, or temporarily removed.

Under these conditions there grew up a very earnest controversy between President Cleveland and the Republican majority in the Senate, led by the Judiciary Committee, of which Mr. Edmunds was then Chairman. It has been, I suppose from the beginning of the Government, the practice of the President to furnish to the Senate all papers and documents in his possession relating to the fitness of officials nominated to the Senate.

Mr. Cleveland made no objection, if I understood him correctly, to continuing that practice. But he claimed that the Senate had nothing to do with the exercise of his power of removal, and therefore was not entitled to be informed of the evidence upon which he acted in that. So he refused and sustained the heads of Departments in refusing the request of the Senate to send for its information the documents on file relating to removals.

This position was encountered by the Republican majority, some of them claiming that the Senate had the same rightful share in the removals as in appointments, and that no difference was to be made between the two cases. Others believed, as I did, that although the power of removal might be exercised by the President alone on his own responsibility, without requiring the advice and consent of the Senate, still that while the President was proceeding under the law by which the appointment itself operated as a removal, and a failure to affirm the appointment restored the old officer to his place again, that the Senate whose action was to have that important effect, was entitled not only to know whether the public interest would be served by the appointment of the proposed official on his own merits solely, but also whether it would be best served by the removal of his predecessor or by the restoration to office of his predecessor. Both the President and the Senate were acting under the existing law, treating it as in force and valid. Now suppose it were true that the question of advising and consenting to the appointment proposed by the President were a very doubtful one indeed, the question on its merits being closely balanced; and the officer to be removed or restored according as the Senate should consent or refuse to consent, was a man of conspicuous and unquestioned capacity and character, against whom no reasonable objection was brought, to be removed for political reasons solely. The Senate certainly, in exercising its power had the right to consider all that the President had a right to consider, and therefore it seems to me that we were justified, in that class of cases, in asking for the documents in his possession bearing upon the question of removal.

It will be observed that in none of the arguments of this Constitutional question has it been claimed that the President had the right without statute authority to suspend public officers, even if he had the right to remove them. That right, if he had it at all, he got under the statute under which he and the Senate were acting.

On the 17th of July, 1885, the President issued an order suspending George M. Duskin of Alabama, from the office of Attorney of the United States, by virtue of the authority conferred upon him by Sec. 1768 of the Revised Statutes, which is a reenactment of the law of which I have just spoken.

On the 14th of December, 1885, the President nominated to the Senate John D. Burnett, vice George M. Duskin, suspended. The Chairman of the Committee on the Judiciary, as had been usual in such cases, addressed a note to the Attorney-General, asking that all papers and information in the possession of the Department touching the conduct and administration of the officer proposed to be removed, and touching the character and conduct of the person proposed to be appointed, be sent to the Committee for its information. To this the Attorney- General replied that he was directed by the President to say that there been sent already to the Judiciary Committee all papers in the Department relating to the fitness of John D. Burnett, recently nominated, but that it was not considered that the public interests would be promoted by a compliance with said resolution and the transmission of the papers and document therein mentioned to the Senate in Executive session.

That made a direct issue. Thereupon a very powerful report affirming the right of the Senate to require such papers was prepared by Mr. Edmunds, Chairman of the Committee on the Judiciary, and signed by George F. Edmunds, Chairman, John J. Ingalls, S. J. R. McMillan, George F. Hoar, James F. Wilson and William M. Evarts.

This was accompanied by a dissenting report by the minority of the Committee, signed by James L. Pugh, Richard Coke, George C. Vest and Howell E. Jackson, afterward Associate Justice of the Supreme Court of the United States.

So it will be seen that the two sides were very powerfully represented. The report of the Committee was encountered by a message from President Cleveland, dated March 1, 1886, in which the President claimed that these papers in the Attorney- General's Department were in no sense upon its files, but were deposited there for his convenience. He said: "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." Continuing, the President says that the demands of the Senate "assume the right to sit in judgment 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."

He refers to the laws upon which the Senate based its demand and said: "After an existence of nearly twenty years of almost innocuous desuetude these laws are brought forth—apparently the repealed as well as the unrepealed—and put in the way of an Executive who is willing, if permitted, to attempt an improvement in the methods of administration. The Constitutionality of these laws is by no means admitted."

The President seemed to forget that he had taken action under those laws, and had expressly cited them as the authority for his action, in his message announcing the suspension of the official.

The controversy waxed warm in the Senate, and in the press throughout the country. The effect of it was that the confirmation of Mr. Cleveland's nominees for important offices was postponed for several months, in some cases eight to ten, but as they were exercising their functions under temporary appointments, it made no difference to them. When they were at last confirmed by the Senate, they received commissions dated from the appointment which took place after the advice and consent of the Senate. So the four years, for which they could hold office, began to run then, and when a new Administration of a different politics came into power, they held their office for a period considerably more than four years, except a few who were actually removed by President Harrison.

I do not think the people cared much about the dispute. The sympathy was rather with President Cleveland. The people, both Republicans and Democrats, expected that the political control of the more important offices would be changed when a new party came into power, and considered Mr. Edmunds's Constitutional argument as a mere ingenious device to protract the day when their political fate should overtake the Republican officials.

I united with the majority of the Committee in the report, for the reasons I have stated above. I still think the position of the Senate right, and that of the President wrong. But I never agreed to the claim that the Senate had anything to do with the President's power of removal. So I took the first opportunity to introduce a bill repealing the provisions of the statute relating to the tenure of office, which interfered with the President's power of removal, so that we might go back again to the law which had been in force from the foundation of the Government, in the controversy with President Jackson. A majority of the Republicans had attempted to do that, as I have said, in the first session of Congress under President Grant. But it had been defeated by the Senate. So I introduced in the December session, 1886, a bill which became a law March 3, 1887, as follows:

"Be enacted, etc., That sections 1767, 1768, 1769, 1770, 1771, and 1772 of the Revised Statutes of the United States are hereby repealed.

"Sec. 2. This repeal shall not affect any officer heretofore suspended under the provisions of said sections, or any designation, nomination or appointment heretofore made by virtue of the provisions thereof.

"Approved, March 3, 1887."

But the blood of my Republican associates was up. I got a few Republican votes for my Bill. It passed the House by a vote of 172 to 67. Every Massachusetts Representative voted for the Bill, as did Speaker Reed. But in general the votes against it were Republican votes. Governor Long made an able speech in its favor.