Part 89

The military will be expected to sustain, and not to interfere with, the proceedings of the courts.

On the same 28th of August the following telegram was sent to Mr. Stanton by Major-General Baird, then (owing to the absence of General Sheridan) in command of the military at New Orleans:

Hon. EDWIN M. STANTON, Secretary of War:

A convention has been called, with the sanction of Governor Wells, to meet here on Monday. The lieutenant-governor and city authorities think it unlawful, and propose to break it up by arresting the delegates. I have given no orders on the subject, but have warned the parties that I could not countenance or permit such action without instructions to that effect from the President. Please instruct me at once by telegraph.

The 28th of August was on Saturday. The next morning, the 29th, this dispatch was received by Mr. Stanton at his residence in this city. He took no action upon it, and neither sent instructions to General Baird himself nor presented it to me for such instructions. On the next day (Monday) the riot occurred. I never saw this dispatch from General Baird until some ten days or two weeks after the riot, when, upon my call for all the dispatches, with a view to their publication, Mr. Stanton sent it to me.

These facts all appear in the testimony of Mr. Stanton before the Judiciary Committee in the impeachment investigation.

On the 30th, the day of the riot, and after it was suppressed, General Baird wrote to Mr. Stanton a long letter, from which I make the following extract:

SIR: I have the honor to inform you that a very serious riot has occurred here to-day. I had not been applied to by the convention for protection, but the lieutenant-governor and the mayor had freely consulted with me, and I was so fully convinced that it was so strongly the intent of the city authorities to preserve the peace, in order to prevent military interference, that I did not regard an outbreak as a thing to be apprehended. The lieutenant-governor had assured me that even if a writ of arrest was issued by the court the sheriff would not attempt to serve it without my permission, and for to-day they designed to suspend it. I inclose herewith copies of my correspondence with the mayor and of a dispatch which the lieutenant-governor claims to have received from the President. I regret that no reply to my dispatch to you of Saturday has yet reached me. General Sheridan is still absent in Texas.

The dispatch of General Baird of the 28th asks for immediate instructions, and his letter of the 30th, after detailing the terrible riot which had just happened, ends with the expression of regret that the instructions which he asked for were not sent. It is not the fault or the error or the omission of the President that this military commander was left without instructions; but for all omissions, for all errors, for all failures to instruct when instruction might have averted this calamity, the President was openly and persistently held responsible. Instantly, without waiting for proof, the delinquency of the President was heralded in every form of utterance. Mr. Stanton knew then that the President was not responsible for this delinquency. The exculpation was in his power, but it was not given by him to the public, and only to the President in obedience to a requisition for all the dispatches.

No one regrets more than myself that General Baird's request was not brought to my notice. It is clear from his dispatch and letter that if the Secretary of War had given him proper instructions the riot which arose on the assembling of the convention would have been averted.

There may be those ready to say that I would have given no instructions even if the dispatch had reached me in time, but all must admit that I ought to have had the opportunity.

The following is the testimony given by Mr. Stanton before the impeachment investigation committee as to this dispatch:

Q. Referring to the dispatch of the 28th of July by General Baird, I ask you whether that dispatch on its receipt was communicated?

A. I received that dispatch on Sunday forenoon. I examined it carefully, and considered the question presented. I did not see that I could give any instructions different from the line of action which General Baird proposed, and made no answer to the dispatch.

Q. I see it stated that this was received at 10.20 p.m. Was that the hour at which it was received by you?

A. That is the date of its reception in the telegraph office Saturday night. I received it on Sunday forenoon at my residence. A copy of the dispatch was furnished to the President several days afterwards, along with all the other dispatches and communications on that subject, but it was not furnished by me before that time. I suppose it may have been ten or fifteen days afterwards.

Q. The President himself being in correspondence with those parties upon the same subject, would it not have been proper to have advised him of the reception of that dispatch?

A. I know nothing about his correspondence, and know nothing about any correspondence except this one dispatch. We had intelligence of the riot on Thursday morning. The riot had taken place on Monday.

It is a difficult matter to define all the relations which exist between the heads of Departments and the President. The legal relations are well enough defined. The Constitution places these officers in the relation of his advisers when he calls upon them for advice. The acts of Congress go further. Take, for example, the act of 1789 creating the War Department. It provides that--

There shall be a principal officer therein to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States; and, furthermore, the said principal officer shall conduct the business of the said Department in such manner as the President of the United States shall from time to time order and instruct.

Provision is also made for the appointment of an inferior officer by the head of the Department, to be called the chief clerk, "who, whenever said principal officer shall be removed from office by the President of the United States," shall have the charge and custody of the books, records, and papers of the Department.

The legal relation is analogous to that of principal and agent. It is the President upon whom the Constitution devolves, as head of the executive department, the duty to see that the laws are faithfully executed; but as he can not execute them in person, he is allowed to select his agents, and is made responsible for their acts within just limits. So complete is this presumed delegation of authority in the relation of a head of Department to the President that the Supreme Court of the United States have decided that an order made by a head of Department is presumed to be made by the President himself.

The principal, upon whom such responsibility is placed for the acts of a subordinate, ought to be left as free as possible in the matter of selection and of dismissal. To hold him to responsibility for an officer beyond his control; to leave the question of the fitness of such an agent to be decided for him and not by him; to allow such a subordinate, when the President, moved by "public considerations of a high character," requests his resignation, to assume for himself an equal right to act upon his own views of "public considerations" and to make his own conclusions paramount to those of the President--to allow all this is to reverse the just order of administration and to place the subordinate above the superior.

There are, however, other relations between the President and a head of Department beyond these defined legal relations, which necessarily attend them, though not expressed. Chief among these is mutual confidence. This relation is so delicate that it is sometimes hard to say when or how it ceases. A single flagrant act may end it at once, and then there is no difficulty. But confidence may be just as effectually destroyed by a series of causes too subtle for demonstration. As it is a plant of slow growth, so, too, it may be slow in decay. Such has been the process here. I will not pretend to say what acts or omissions have broken up this relation. They are hardly susceptible of statement, and still less of formal proof. Nevertheless, no one can read the correspondence of the 5th of August without being convinced that this relation was effectually gone on both sides, and that while the President was unwilling to allow Mr. Stanton to remain in his Administration, Mr. Stanton was equally unwilling to allow the President to carry on his Administration without his presence.

In the great debate which took place in the House of Representatives in 1789, in the first organization of the principal Departments, Mr. Madison spoke as follows:

It is evidently the intention of the Constitution that the first magistrate should be responsible for the executive department. So far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to the country. Again: Is there no danger that an officer, when he is appointed by the concurrence of the Senate and has friends in that body, may choose rather to risk his establishment on the favor of that branch than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy reduce the power of the President to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it is unjust. The high executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the executive power only to be removed by a revolution in the Government.

Mr. Sedgwick, in the same debate, referring to the proposition that a head of Department should only be removed or suspended by the concurrence of the Senate, used this language:

But if proof be necessary, what is then the consequence? Why, in nine cases out of ten, where the case is very clear to the mind of the President that the man ought to be removed, the effect can not be produced, because it is absolutely impossible to produce the necessary evidence. Are the Senate to proceed without evidence? Some gentlemen contend not. Then the object will be lost. Shall a man under these circumstances be saddled upon the President who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible you weaken and destroy the strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with the conduct of an officer?