The constitutional obligation that the President " shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient,"27 has, upon occasion, given rise to controversy between Congress and the President as to the right of the former to compel the furnishing to it of information as to specific matters. As a result of these contests it is practically established that the President may exercise a full discretion as to what information he will furnish, and what he will withhold.28

25 126 U. S. 273; 8 Sup. Ct. Rep. 850; 31 L. ed. 747.

26 128 U. S. 315; 9 Sup. Ct. Rep. 90; 32 L. ed. 450.

27 U. S. Const.. Art. II. Sec. III.

28 In Field v. People (3 III.. 79) the general question as to the right of a governor to refuse, at his discretion, to supply the legislature with information and papers demanded of him. was carefully considered by the court. In the course of its opinion the court say:

"The President may require the opinion of the heads of departments, their views, counsel, and advice, relative to the legality or policy of measures. In this exercise of the right he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet counsel, it is always private and confidential, and is so regarded, not only by the officers but by the law also; for none of the officers or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any official confidential intercourse between the Governor and Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer what amount of money is in the Treasury, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, etc. These are all public matters, in reference to which there can be no secrecy, nor confidence, and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law or to matters of fact recorded for public information.

During the administration of Cleveland a vigorous and long continued controversy was waged as to the right of the Senate or of its committees to obtain from the office of the Attorney-General certain papers bearing upon certain suspensions from office made by the President. At this time the law of 1867, as amended by that of 1869, was in force, which placed various limitations upon the powers of the President with respect to suspensions and removals from office. One George W. Duskin having been suspended, during the recess of the Senate, from the office of District Attorney, and one J. D. Burnett appointed as his successor, the Senate, when called upon to confirm the nomination of Burnett, through the Judiciary Committee called upon the Attorney-General to send to it all papers and information in the Department of Justice bearing upon the nomination of Burnett, as well as "all papers and information touching the suspension and proposed removal from office of George W. Duskin." To this request the following reply was given: " The Attorney-General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the suspension of Duskin from office, he has as yet received no direction from the President in relation to their transmission."

" The reasoning in favor of the Governor's authority to remove the Secretary, because of the latter's duty to register his official acts, can have no application to the Secretary of State; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed by the Constitution. In the performance of this, as of other duties, he does not act as the Governor's officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law."

Previously to this the committees of the Senate had made requests for information upon the heads of various of the other departments, which requests had been refused at the direction of the President. The Senate now, January 25, 1886, however, as a body, and not through one of its committees, made a demand in the following terms: " Resolved, that the Attorney-General of the United States be, and he hereby is, directed to transmit to the Senate copies of all documents and papers ... in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama." To this demand the Attorney-General replied: "In response to the said resolution, the President of the United States directs me to say . . . that the papers and documents which are mentioned in the said resolution and still remaining in the custody of the Department, having exclusive reference to the suspension by the President of George M. Duskin ... it is not considered that the public interests will be promoted by a compliance with the said resolution." Thereupon the Senate adopted a vigorous resolution of condemnation of the action of the President,29 declaring it to be " in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof." Accompanying this resolution a majority and minority report were made by the Judiciary Committee.30 to the Senate argued at length the propriety and constitutionality of his position.

On March 1, 1886, President Cleveland in a special message

29 Feb. 18, 1886. Sen. Miscl. Doc. No. 74. 49th Cong., 1st Sess. 30 Senate Report No. 135, 49th Cong., 1st Sess.

The constitutionality of his position would seem to be clear. The point has never been precisely passed upon in the courts, but in Totten v. United States31 the court declared that an action against the Government in the Court of Claims upon a contract for secret services could not be maintained because " the secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery." The opinion then goes on to declare, obiter, " It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated."32