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Observe the mildness of my language, when I call this Presidential pretension" of doubtful legality." The law shall speak for itself. Obviously it was the same for our military President as for his predecessors, and it was recent also:
"The President is hereby authorized to appoint a private secretary at an annual salary of $3,500, an assistant secretary at an annual salary of $2,500, a short-hand writer at an annual salary of $2,500, a clerk of pardons at an annual salary of $2,000, and three clerks of the fourth class." 1
It cannot be doubted that this provision was more than ample; for Congress, by Act of July 20, 1868, repealed so much as authorized a clerk of pardons, and also one of the three clerks of the fourth class.2 Therefore there could be no necessity for a levy of soldiers to perform the duties of secretaries, and the conduct of the President can be explained only by the supposition that he preferred to be surrounded by Army officers rather than by civilians, continuing in the Executive Mansion the traditions of head-quarters: all which, though agreeable to him and illustrating his character, was an anomaly and a scandal.
In extenuation of this indefensible pretension, we have been reminded of two things: first, that according to the record Washington sent his first message by General Knox, when in fact General Knox held no military office at that time, but was actually Secretary of War; and, secondly, that the military officers now occupying the Executive Mansion are detailed for this service without other salary than that of their grade. As
1 Act of July 23, 1866: Statutes at Large, Vol. XIV. pp. 206-7.
the Knox precedent is moonshine, the minor military ring can be vindicated only as a "detail" for service in the Executive Mansion.
Here again the law shall speak. By Act of Congress of March 3, 1863, it is provided that " details to special service shall only be made with the consent of the commanding officer of forces in the field"; but this, it will be seen, refers to a state of war. Congress, by Act of July 16, 1866, authorized the President to "detail from the Army all the officers and agents of this Bureau" [for the Relief of Freedmen and Refugees];2 also, by Act of July 28, 1866, to "detail" officers of the Army, not exceeding twenty at any time, "to act as president, superintendent, or professor" in certain colleges. And then again, by Act of July 15, 1870, it provided that "any retired officer may, on his own application, be detailed to serve as professor in any college."4 As there is no other statute authorizing details, this exceptional transfer of Army officers to the Executive Mansion can be maintained only on some undefined prerogative.
The Presidential pretension, which is continued to the present time, is the more unnatural when it is considered that there are at least three different statutes in which Congress has shown its purpose to limit the employment of military officers in civil service. As long ago as July 5, 1838, it was positively provided that no Army officers should be separated from their regiments and corps "for employment on civil works of internal improvement, or be allowed to engage in the service of incorporated companies"; nor any line officer to be act1 Statutes at Large, Vol. XII. p. 736.
2 Ibid., Vol. XIV. p. 174.
3 Ibid., p. 336.
4 Ibid., Vol. XVI. p. 320.
ing paymaster or disbursing agent for the Indian Department, "if such extra employment require that he be separated from his regiment or company, or otherwise interfere with the performance of the military duties. proper."1 Obviously the will of Congress is here declared, that officers should not be allowed to leave their posts for any service which might interfere with the performance of the military duties proper. This language is explicit. Then came the Act of March 30, 1868, which provides that "any officer of the Army or Navy of the United States, who shall, after the passage of this Act, accept or hold any appointment in the diplomatic or consular service of the Government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed. and taken to be vacant."2 To a considerate and circumspect President, who recognized the law in its spirit as well as its letter, this provision, especially when reinforced by the earlier statute, would have been a rule of action in analogous cases, and therefore an insurmountable obstacle to a pretension which takes Army officers from their proper duties and makes them Presidential secretaries. A later statute adds to the obstacle. By Act of Congress of July 15, 1870, it is provided:·
"That it shall not be lawful for any officer of the Army of the United States on the active list to hold any civil office, whether by election or appointment; and any such officer accepting or exercising the functions of a civil office shall at once cease to be an officer of the Army, and his commission shall be vacated thereby."
1 Statutes at Large, Vol. V. p. 260.
2 Ibid., Vol. XV. p. 58.
8 Ibid., Vol. XVI. p. 319.
It is difficult to imagine anything plainer than these words. No Army officer not on the retired list can hold. any civil office; and then, to enforce the inhibition, it is provided that in "accepting or exercising the functions" of such office the commission is vacated. Now the Blue Book, which is our political almanac, has under the head of "Executive Mansion" a list of "secretaries" and "clerks," beginning as follows: "Secretaries, General F. T. Dent, General Horace Porter, General O. E. Babcock," when, in fact, there are no such officers authorized by law. Then follow the "Private Secretary," "Assistant Private Secretary," and "Executive Clerks," authorized by law, but placed below those unauthorized. Nothing is said of being detailed for this purpose. They are openly called "Secretaries," which is a title of office; and since it is at the Executive Mansion, it must be a civil office; and yet, in defiance of law, these Army officers continue to exercise its functions, and some of them enter the Senate with messages from the President. The apology that they are "detailed" for this service is vain; no authority can be shown for it. But how absurd to suppose that a rule against the exercise of a civil office can be evaded by a detail"! If it may be done for three Army officers, why not for three dozen? Nay, more, if the civil office of Secretary at the Executive Mansion may be created without law, why not some. other civil office? And what is to hinder the President from surrounding himself not only with secretaries, but with messengers, stewards, and personal attendants, even a body-guard, all detailed from the Army? Why may he not enlarge the military circle at the Executive Mansion indefinitely? If the President can be justified in his present course, there is no limit to
his pretensions in open violation of the statute. the Blue Book testifies again; for it records the names of the "secretaries" in their proper places as Army officers, thus presenting them as holding two incompatible offices.
I dismiss this transaction as another instance of Presidential pretension, which, in the interest of Republican Government, should be arrested.
UNREPUBLICAN SUBORDINATION OF THE WAR DEPARTMENT TO THE GENERAL-IN-CHIEF.
FROM the Executive Mansion pass now to the War Department, and there we witness the same Presidential pretensions by which law, usage, and correct principle are lost in the will of One Man. The supremacy of the civil power over the military is typified in the Secretary of War, a civilian, from whom Army officers receive orders. But this beautiful rule, with its lesson to the military of subordination, was suddenly set aside by our President, and the Secretary of War degraded to be a clerk. The 5th of March witnessed a most important order from the President, placing the Military Departments under officers of his choice, purporting to be signed by the Assistant Adjutant-General by command of the General of the Army, but actually ignoring the Secretary of War.1 Three days later, March 8th, witnessed another order professing to proceed from the President, whereby in express terms the War Department was subordinated to the General-in-Chief, being William T. Sherman, who at the time was promoted to that command. Here are the words:
1 General Orders, No. 10.