checking, that this was an established power. Let me cite just one

case.

When Robert Walpole, who was a Prime Minister, was toppled from office, the new party under the elder William Pitt, started investigating 20 years of what they termed his misdeeds. In large part it dealt with foreign affairs, because the investigators felt they had been badly handled for a long time. In that investigation, an opposition spokesman, who was joined by Walpole's own son, Horace Walpole, conceded that "we have a right to inquire into the conduct of our public affairs." I just want to read what William Pitt said. He summarized the precedents and again, from a personal check, I believe he did it justly-and said: "We are called the Grand Inquest of the Nation" (by the way, when you read the records of the ratification conventions, time and time again you run across the language, the legislature is the Grand Inquest of the Nation, those who wrote our Constitution and those who voted to adopt it, knew full well what the Grand Inquest of the Nation was) "we are called the Grand Inquest of the Nation and, as such, it is our duty to inquire into every step of public management, either abroad or at home, in order to see that nothing has been done amiss." And in fact William Yonge, who was one of the leaders of the opposition, conceded that there is no limit on investigation of domestic affairs. And I may add, they clapped the Solicitor of the Treasury in jail when he refused to testify on the ground of self-incrimination.

How did this look to Colonial eyes? We have wonderful testimony recorded by James Wilson in 1774. James Wilson became one of the great leaders of the Constitutional Convention. He was the leading proponent of the Constitution at the Pennsylvania ratification convention. Let me read what he said:

The House of Commons have checked the progress of arbitrary power and have supported with honor to themselves and with advantage to the Nation, the character of grand inquisitors of the Realm. The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the ban of the House to give an account of their conduct.

Understandably, the Colonial practices reflected this background. Professor Potts of Pennsylvania, concluded in the University of Pennsylvania Law Review in 1926, "The Colonial Assemblies, like the House of Commons, early assumed, usually without question the right to investigate the conduct of the other departments of the government." including the right to examine official books and records, including Army affairs. Such practices found specific expression in the Maryland Constitution of 1776, which empowered the House to "call for all public or official papers and records, and send for persons whom they may judge necessary in the course of inquiry concerning affairs relating to the public interest."

Now comes the Continental Congress and sets up a Department of Foreign Affairs presided over by a Secretary, like our Secretary of State. In creating this Department of Foreign Affairs, the Continental Congress provided that, "any Member of Congress shall have access to all the papers of his office, provided that no copies shall be taken of matters of a secret nature without the special leave of Congress."

So here was a Continental Congress which really controlled the Executive, but was so jealous, remembering history and Walpole, that it said, notwithstanding that you are a part of the Congress, we want at all times to have access to your records. Thus not even foreign affairs, as this Continental Congress showed, not even foreign affairs were immune from congressional inquiry. There were no secrets.

All of this was summarized by the Supreme Court in 1927 in McGrain v. Daugherty:

In actual legislative practice, power to secure needed information by such (investigatory) means has long been treated as an attribute of power to legislate. It was so regarded in the British Parliament and in the Colonial Legislature before the American Revolution.

No decision has ever questioned that. And I may say that history richly fortifies it.

The Court went on to say-and I am jumping ahead a little"this power was both asserted and exerted by the House of Representatives in 1792, when it appointed a Select Committee to inquire into the (General) St. Clair expedition and authorized the Committee to send for necessary persons, papers, and records. Mr. Madison, who had taken an important part in framing the Constitution only 5 years before, and four of his associates in that work, were Members of the House of Representatives at the time and all voted for the inquiry.'

So I submit to you, the power of inquiry is a judicially recognized attribute of the legislative power.

The Attorney General dismissed McGrain v. Daugherty because it was Mally Daugherty, who was an Ohio banker and the brother of the Attorney General, Harry Daugherty, that was summoned to produce bank records for an investigation of charges of corruption against Harry Daugherty. Hence, the Attorney General's memorandum said, McGrain is limited to private persons. That is about as ridiculous a statement as one could make, because McGrain itself said that Congress has jurisdiction to inquire into "the administration of the Department of Justice-whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties." The Attorney General would have it that although you can investigate it, you may only question his brother. In fact, the vast bulk of the parliamentary and Colonial investigations were directed at officials, not at private persons. And as the McGrain quotation shows, they cited General St. Clair, a public person to justify the investigation of a private person.

So much for pre-1787.

Now, I come to something that is of extreme importance, and which has been pretty much neglected. In 1789 the first Congress passed a statute. It was drafted by Alexander Hamilton and approved by President Washington. It imposed a duty on the Secretary of the Treasury to give information to either House of the Legislature, "in person or in writing (as may be required), respecting all matters *** which shall appertain to his office." This is a constitutional construction of the greatest moment. The first Congress is one of the most respected interpreters of the Constitution, because as McGrain remarked, there were at least five Members of the House

who sat in the convention, and there were probably 18 all told, who sat in the convention and in the several ratification conventions. They knew at first hand what those who framed and those who adopted the Constitution meant.

Senator ERVIN. I believe Alexander Hamilton is credited with being an advocate of strong executive powers as well as strong power of the Government generally.

Mr. BERGER. He was. I will come to that later, if you will permit me to go along, because I am going to talk about the executive power. Let's remember that Hamilton had drafted much of The Federalist, and that Washington was the presiding officer of the Federal Convention, and would not blindly sign something that he didn't understand. And parenthetically, when an investigation of Hamilton's conduct of the Treasury was later rumored, Washington wrote: "No one... wishes more devoutly than I do that they (the charges) may be probed to the bottom, be the result what it may be." He welcomed investigation. He didn't try to put a foot against the door.

I may add that Attorney General Cushing advised the President in 1854 that the 1789 statute made explicit what was "by legal implication" the duty of all Members of the Cabinet, and concluded that Congress, "may at all times call on them for information or explanation in matters of official duty."

When we reflect on the 1816 Senate Committee Report that Mr. Acheson cited to you, remember, it was not only Cushing who spoke to the contrary but there is a powerful statement by President Jackson, another one by President Buchanan, and still another by President Polk, recognizing a broad power of investigation of the executive branch.

Now, let me turn to the executive power, sir. My question is, what is there in the executive power that cuts down this established attribute of the legislative power, the power of inquiry?

The Attorney General's memorandum argues that since the President is invested with "executive power" and is directed to "take care that the laws be faithfuly executed," and since he is supreme in his domain, his department cannot be compelled to give information which the President determines to withhold. Right there, let's look at what the arch-priest of the separation of powers, Montesquieu, said. Montesquieu was cited time and time again in the several conventions as the great man on separation of powers. He built on what he thought was the English practice. And he said:

The Legislature should have the means of examining in what manner its laws have been executed by public officials.

In a word, here was one of the giants of the separation of powers, who did not conceive that the executive power in any way cut down the power of inquiry.

The Attorney General would have us assume that the execution of the laws requires that Congress be kept in the dark whether the laws it has enacted are in fact being faithfully executed. I can't make sense of that.

To better arrive at the meaning of the separation of powers, the intention of the framers, let's see how the scene appeared to them. In 1789 there was a pervasive fear, Mr. Chairman, that a strong execu

tive might transform his office into a Monarchy. I don't have the citation here, but I can safely say to you that the ratification conventions, the Convention in Philadelphia are studied with expressions of fear by big men that the strong executive will speedily become a Monarch. The belief prevalent at the end of the colonial period was, in the words of Professor Corwin, that:

***The Executive Magistracy was a natural enemy, the Legislative Assembly the natural friend of liberty.

Why was that? That wasn't just an attachment to a dogma. It emerged because throughout the colonial period, the assemblies were selected by the Colonies, but the governor and the justices were saddled on them by the Crown. The darling of the Colonials was their legislature, and they carried that over, and it took quite awhile for them to be disenchanted.

To be sure, Madison feared that all power might be sucked into a legislative vortex. That was because of events which occurred between 1776 and 1789. But he concluded-and this is important, Mr. Chairman-that "in republican government, the legislative authority necessarily predominates." Congress is being treated like a junior partner, if not like an office boy, when it is in fact a senior partner of the government. Presumably such considerations led Roger Sherman to say in the constitutional convention that the Executive was "nothing more than an instrument for carrying the will of Congress into effect." Even the leader of the strong executive party, James Wilson, who favored an executive "independent of the legislature," neverthless stated that the only strictly Executive powers "were those of executing the laws and appointing officers."

On this issue, I combed the record of the Philadelphia Convention. of all of the ratification conventions, so that I can safely say that was the prevalent view. They were told time and time again, we are not giving the President any more power than the governors have. He just has the power to execute the laws. So Justices Holmes, Brandeis, Black, Douglas, Frankfurter, and Jackson, found it to be. And the extraordinary thing is not merely that there is no word in the Constitution that expresses any intention whatsoever to curtail the normal attribute of the legislative power, or that the Executive power is to rise above this attribute, but there is not a single word in any one of the conventions expressing any intention to curtail the legislative power of investigation. Instead time after time there is a reference to the grand inquest of the Nation in one context or another.

And the reason was because the founders had before them Montesquieu and the English experience. They saw it as a basic value in the separation of powers that ultimate surveillance should rest in the legislature. That was the view of Woodrow Wilson, which Senator Fulbright read to you. And it was the view of Mr. Acheson's great friend, Felix Frankfurter, when he was a professor. Writing in 1924, when the Senate hit pay dirt in the Teapot Dome Investigation, he said, the power of investigations must be untrammeled.

Now, let me direct your attention to a cognate factor, the significance of which may not at first appear, and which by the way also bears on the whole issue of secrecy of the Pentagon papers. The Constitution, as you know, requires each House to keep a journal and

to publish it, except "such part as may in their judgment require secrecy." This provision passed by a very narrow margin over James Wilson's vigorous objection. He said:

The people have a right to know what their agents are doing or have done, and it should not be in the option of the legislature to conceal their proceedings. Later when George Mason and Elbridge Gerry renewed the objection and pressed for publication of all proceedings, they were told "cases might arise where secrecy might be necessary in both Houses." for example, "measures preparatory to a declaration of war." We all agree, we wouldn't want to publish that in the New York Times. But observe how narrow was the explanation to justify secrecy. Nevertheless, when this came into the ratification conventions, it again met harsh criticism. Patrick Henry said in Virginia: "The liberties of a people never were secure when the transaction of their rulers may be concealed from them." that "to cover with a veil of secrecy the common routine of business is an abomination.”

To quiet such fears, John Marshall, who was a leader for adoption in the Virginia convention, said: "Secrecy is only used when it would be fatal and pernicious to publish the schemes of government," as when "debating on the propriety of declaring war, or on military arrangements."

When we talk about the ratification conventions, I beg to remind you that Jefferson and Madison thought they were vastly more important than the Philadelphia Convention. And why? Because until the Convention submitted the Constitution to the State convention for ratification, it was just a proposal, a piece of paper. It was only when it was adopted, that it became a significant institution. And it was only adopted after heated debate by a narrow margin, when one assurance or another was made that it only means this or that. It is not open to us to repudiate assurances that were made to procure

ratification.

The moral I want to draw from this is that here was an express grant, the only express grant of secrecy in the Constitution, to enable Congress to conceal from the public, and it was subjected to severe criticism and narrowly approved and construed. Now comes the President and invokes an implied "uncontrolled discretion" to conceal anything and everything from his great partner in government, the Congress!

So much for the Executive power.

What does the role of the President, as Commander in Chief add to his right to withhold information? Does it immunize military affairs from disclosure, military secrets?

He can act as commander only as long as he is given an army. As you know, only Congress can raise and support armies. It can withdraw support. It can't make appropriations for more than 2 years. Article I provides that, "no money shall be drawn from the Treasury but in the consequence of appropriations made by law." All that Congress has to do is to withhold or withdraw appropriations and the President hasn't got as much as a tin soldier. He has only an empty title.

Can it be that Congress cannot preliminarily inquire whether such withdrawal is necessary, whether it has got to withdraw an appropriation or withhold it, or to make a larger one? Must Congress,