conduct of all its agents, proceeded to call for this information, and got it as a matter of course. It was not exercising a jurisdiction to confirm or reject Russell for anything, or to ratify or reject a treaty. It was getting information in a general way for its general purposes in the exercise of its general duty. (Emphasis supplied.) 28

The Senate Committee on the Judiciary was instructed on March 13, 1822, to procure from the Secretary of State a letter written by a Mr. Jennings of the State of Indiana, recommending one Dewey for appointment as United States Attorney for Indiana. The Senator indicated that the resolution instructing the committee to obtain this paper implied that the power to secure the same extended to a private paper, so far as such a paper can be a private paper, and described the document in question as being a letter that the Senate had reason to believe was in the files of our Department of State. The paper was turned over to the Committee without objection.20

The Secretary of War was directed by the Senate on October 30, 1828, to furnish copies of the reports of the Inspector-General of the Army of the United States, confidential as well as others, including the details of all statements and instructions. This order, the Senator informs us, was adopted in executive session and was complied with by the Secretary of War as a matter of course.3 30

The Senator similarly cited numerous other occasions on which the executive had without argument surrendered information to Congress.31 But of all the cases amassed by the Senator from Vermont in this discussion, his last probably had the most telling effect. In March and April 1879 the Senate Judiciary Committee, controlled by a Democratic majority, had sought and received from the Attorney-General, the same type of information which Cleveland and his Attorney-General, Mr. Garland, were refusing to submit to the Republican-controlled Senate Judiciary Committee in 1886. The information requested in 1879 concerned nominations for certain vacancies and also dealt with the propriety of the removal of one Michael Schaeffer, Chief Justice of the Supreme Court of the Territory of Utah and the appointment of David Corbin to that office. To cap the climax, Senator Edmunds gleefully noted that in 1879 some of the most famous Democrats of the era were on that

28 17 Cong. Rec. 2217 (1886).

29 Ibid.

80 lbid.

81 17 Cong. Rec. 2219-2220 (1886); Josephson, The Politicos (Harcourt Brace & Co., 1938) p. 100 et seq.

judiciary committee, three of whom were presently members of Cleveland's Cabinet, and one of whom was the present Attorney-General, Mr. Garland. The Democratic Senatorial Committee had asked for information and the Republican Executive had acceded to the request. Edmunds concluded his recitation of this incident with the following biting peroration:

Alas, for the Democracy of those days! Think sir, of the infinite idiocy, unpatriotism, usurpation of that number of five Senators of the United States of the Democratic Party assailing a Republican Attorney-General and a Republican President with the insulting and impertinent inquiry as to papers and information touching a man, to be removed whose successor was nominated to accomplish his removal. And yet those men were in their day and in those times among the headlights of the Democratic locomotives. There was Thurman-his light is put out-the greatest Democrat in the United States (applause in the galleries) and the best one, and the noblest one, and the bravest one, for he had the courage not long ago in your State, sir, to denounce the Democratic frauds on the ballot. There was Thurman, and there was Joe McDonald, a name familiar in the West as well as in the East as the embodiment of upright Democratic pluck and constitutional law; and there was Garland, whom we all knew here, the leader on the Democratic side of the Senate, and running over with constitutional and statute and reported law, knowing his rights as a Senator and as a member of the committee and knowing his duties; and Lamar, and then all the rest of us on this side, joining in what the present President of the United States calls an impertinent invasion of his rights in asking for information from him. Sir, if I was going to be rhetorical, I should say just here:

O shame! Where is thy blush? . . .32

It is submitted that Mr. Edmunds presented well the answer of his era to the "precedent" argument of the executive branch. His answer is that there is no precedent for the statement that the executive branch may withhold information from the Congress and their committees of investigation, when the former branch feels that the submission of such information is for the public interest. He contends that, because of its responsibility to present to Congress information on the state of the union and otherwise, the executive branch must comply with requests. for information and documents from the legislative branch and its committees. He supports this proposition by examples of the continued adherence of the executive branch to this norm and he shows that refusals are usually based solely on political and party arguments.

The Republican House majority in the Eightieth Congress carried this argument one step further. They passed a resolution requiring the 82 17 Cong. Rec. 2221 (1886).

executive branch to furnish them with whatever information they requested. To understand the position of the Republican House of Representatives in the Eightieth Congress, it is necessary to examine the piece of legislation they introduced, House Joint Resolution 342 of the Eightieth Congress, Second Session.33

34

The intent and purpose of this joint resolution of the House of Representatives, is best revealed by a study of its legislative history, brief though it be, in comparison with that of many bills considered by Congress.35 As is true with much controversial legislation, the emotional attitude of the House of Representatives, when considering this resolution, was not especially calm and tranquil.

Before proceeding any further, it should be emphasized that House Joint Resolution 342 was never enacted into law. The history of this resolution, in fact, may be stated in a very few words.

The resolution was introduced into the House of Representatives on March 5, 1948, was referred to the Committee on Expenditures in the Executive Departments on that same date, and was favorably reported out of committee, without hearings, on March 22, 1948. Though accompanied by a majority report, included also was a stinging retort by the minority, and an answer to the minority report by the majority of the committee. By special resolution,37 House Joint Resolution 342 was taken up quickly on the floor of the House by the Committee of the Whole on the State of the Union,38 was debated for two days, after which it was reported favorably by the Committee of the Whole to the House of Representatives and finally was passed by the House of Representatives on May 13, 1948. Referred to the Senate Committee

36

33 H. J. Res. 342, 80th Cong., 2d Sess. (1948).

34 Cf. the following statements concerning a “joint resolution" to be found in Cannon, Procedure in the House of Representatives (V. S. Govt. Printing Office, 1948) p. 228:

"A joint resolution is a bill within the meaning of the rules and must be signed by the President, with the exception of proposed amendments to the Constitution.

"A joint resolution is the proper vehicle for authorization of invitations to foreign governments, correction of errors in bills which have gone to the President, enlargement of scope of inquiries provided by law, authorization of deviation from form prescribed by bills." (Emphasis supplied.)

35 See, for example, the two bound volumes, published by the National Labor Relations Board, which comprise the Legislative History of the Labor-Management Relations Act of 1947, popularly called the Taft-Hartley Law.

30 H. R. Rep. No. 1595, parts I and II, 80th Cong., 2d Sess. (1948).

37 H. Res. 575, 80th Cong., 2d Sess. (1948).

38 For information on the Committee of the Whole on the State of the Union, sec. Clarence Cannon, op. cit. supra note 16, at 95 et seq.

on Expenditures in the Executive Departments on May 14, 1948, the resolution died there. The reason for the demise of the resolution in the Senate Committee is quite apparent when one recalls that convention summer of 1948--the deliberate inactivity of a Republican Congress, endeavoring to obstruct the plans and hopes of the President, and his so-called must legislation-which the Senate refused even to consider.

As introduced, House Joint Resolution 342 was comparatively mild, its real teeth being inserted while it was in committee,-though, of course, the three section resolution, as originally introduced, was still highly unacceptable to the executive branch. It provided that all executive departments and agencies of the Federal Government, the Secretaries of the respective departments and agencies, and all persons acting under authority granted these agencies were authorized and directed to furnish the congressional committees any information, books, records and memoranda in the agency's possession that the respective committee might deem necessary for its investigation, provided that the request was made upon a majority vote of the members of the committee and provided that the request had the approval of the Speaker or the President pro tempore, depending whether it was committee of the House of Representatives or of the Senate. Under the resolution, the committee request would be accompanied by a certificate of the committee, signed by the committee clerk, attesting to the majority vote; and the approval of the Speaker or the President pro tempore was to be indicated by a letter over his signature. These provisions were found in Section 1 of House Joint Resolution 342, the real core of the Resolution as it was introduced.3

39 H. J. Res. 342, 80th Cong., 2d Sess., § 1, (1948) reads as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

"That all executive departments and agencies of the Federal Government created by the Congress, and the Secretaries thereof, and all individuals acting under or by virtue of authority granted said departments and agencies, are, and each of them hereby is, authorized and directed to make available and to furnish to any and all of the standing, special, or select committees of the House of Representatives and the Senate, acting under the authority of any Federal Statute, Senate or House resolution, joint or concurrent resolution, such information, books, records, and memoranda in the possession of or under the control of any of said departments, agencies, Secretarics, or individuals as may, by any of said committees, be deemed to be necessary to enable it to carry on the investigations, perform the duties, falling within its jurisdiction, when requested to do so: Provided, That said request shall be made only by a majority vote of all the members of the committee voting therefor at a formal meeting of the committee: And provided further, That if the com

Under Section 2 of this resolution, which was added in committee, when information, books, records, or memoranda were received from a governmental department or agency or from any administrative officer of such an agency, as a result of a request previously made under the first section of the resolution, the committee would immediately meet and determine, by majority vote, what, if any, part of such information should be made public and what part should be deemed to be confidential. If any part of that portion of such records declared confidential were divulged by a member of the committee or by any employee of the committee or any other individual obtaining knowledge of such information because of the disclosure of such information to the committee, any such offender would be liable to prosecution for having committed a misdemeanor and could be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both, at the discretion of the court. In addition, if the offender was an employee of the United States, he would be dismissed from office or discharged from his employment.""

mittee be a committee created by the Senate, upon approval of the President or the President pro tempore of the Senate: And provided further, That if the committee making such request be a committee created by or acting under the authority of the House of Representatives, upon approval of the Speaker or Acting Speaker of the House of Representatives, such majority vote of the committee to be shown by a certificate of the chairman of the committee, countersigned by the clerk; the approval of the President or President pro tempore of the Senate or the Speaker or Acting Speaker of the House of Representatives to be shown by letter over his signature. Any officer or employee in any such executive department or agency who fails or refuses to comply with a request of any committee of the Congress made in accordance with the foregoing provisions of this section shall, upon conviction thereof, be punished by a fine not exceeding $1,000 or by imprisonment for not exceeding 1 year, or both, at the discretion of the court."

40 H. J. Res. 342, 80th Cong., 2d Sess., § 2, (1948) reads as follows:

"When, by virtue of section 1, any committee of the Congress shall have received information, books, records, or memoranda from any of the departments, agencies, Secretaries, or individuals in pursuance of a request made under the authority of said section, it shall forthwith, by majority vote of the membership of said committee, determine what, if any, part of such information shall be made public and what part shall be deemed to be confidential, and it shall thereafter be unlawful for any member of said committee or any employee thereof to divulge or to make known in any manner whatever not provided by law to any person any part of the information so disclosed to said committee and which has by said committee been declared to be confidential; and any offense against the foregoing provision shall be a misdemeanor and shall be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, at the discretion of the court; and, if the offender be an employee of the United States, he shall be dismissed from office or discharged from employment."