The Civil Service and the Patronage

Front matter

HARVARD HISTORICAL STUDIES

PUBLISHED UNDER THE DIRECTION OF THE DEPARTMENT OF HISTORY AND GOVERNMENT FROM THE INCOME OF

The Henry Warren Torrey Fund

Preface.

PREFACE.

This work is the outgrowth of a statistical study of removals from office begun in the Seminary of American History and Institutions at Harvard University. The results of this preliminary study were published in the Annual Report of the American Historical Association for 1899. The interest thus aroused led to a broader investigation, which has been continued for about five years. From materials accumulated not strictly pertinent to the subject of this volume, an article on “Lincoln and the Patronage” was contributed to the American Historical Review for October, 1902.

The subject which this book attempts to treat defies concise definition; and as the boundaries have perhaps not been drawn so as to satisfy all who will be led by its title to refer to it, a few words are necessary to guide those who use it. The leading words of the title limit each other; it is a history of the civil service from the standpoint of the patronage, and of the patronage with regard solely to the public offices. The aim has been to give fully the development of policy and practice as to the relation of these two elements of our public life, from the foundation of the government to the present day. In addition, it has been thought wise to outline the dis

policy of each successive administration, though in some instances this has been done very briefly; in the case of a few very important administrations the subject has been treated still more broadly, so as to include practice as well as policy. The work of Miss Salmon on the Appointing Power of the President has left me free to leave out constitutional questions, except when they become questions of politics; and the problem of civil service reform has been treated historically, and not from the standpoint of expediency.

I have had access to the collections of the Harvard College Library and the libraries of Boston, of Brown University, the American Antiquarian Society at Worcester, the Rhode Island Historical Society, the Wisconsin Historical Society, the Library of Congress, and the departmental libraries at Washington; and I desire to express my thanks to the officials of these institutions for their uniform interest and assistance. Thanks are particularly due to the owners of private collections of manuscripts and newspapers, whose courtesy in opening them for research evinces the general interest felt in historical studies. Most of all, I wish to record my appreciation of the kindness of Professor Albert Bushnell Hart and Professor Edward Channing, to whose inspiration and guidance the inception and development of this monograph are chiefly to be attributed.

CARL RUSSELL FISH.

Madison, Wisconsin, May 30, 1904.

Chapter I. Establishment of the National Civil Service. 1789-1801.

ESTABLISHMENT OF THE NATIONAL CIVIL SERVICE.

1789-1801.

The makers of the constitution fully realized that the adjustment of the power of appointment to office required careful consideration. From their youth up they had seen the rivalry for office, they had felt the influence of the patronage, in the politics of colony and state. John Adams complained that Governor Hutchinson of Massachusetts passed over proper candidates in order to advance members of his own family; and, while this particular charge may be unjust, it is certainly true that in most cases colonial governors owed their positions wholly to favoritism, and that one of their chief duties was to use the offices within their gift for the upbuilding of a British party. All Americans were familiar, moreover, with the power wielded in England by the “King's Friends,” the most mighty faction ever based almost solely on the distribution of offices, and the source to which the colonies attributed much of the evil treatment which had estranged them from the mother country. While they knew, however, the evil possibilities of the patronage, they regarded the disease as peculiarly characteristic of monarchy, and were unacquainted with the new conditions presented by a democratic form of government.

A mechanical system for the choice of public servants existed at that time in no considerable country except China, to whose example the convention at Philadelphia was not likely to turn;

nor in the ancient civilizations could any precedent for such a scheme be found. The responsibility for appointments must be personal, and the question to be decided was, in what person or persons it should reside. The national civil service under the Confederation was so small, and the conditions were so exceptional, that the experience to be drawn from its history was slight. It was practically certain, moreover, even before the convention of 1787 met, that the old system must be changed. The call for a constitution was largely the result of a reaction against the extreme democracy and decentralization of the Revolution; and it is not strange, therefore, to find in the earliest plans for “a more perfect union” the proposal to transfer the appointing power from Congress to the executive. In other words, the question of the civil service was part and parcel of the more general problem of the extent of the executive power, and was itself scarcely drawn into debate.

While it was thus tacitly admitted that the power of appointment should be taken from the legislature, the feeling was by no means universal that the executive could be safely intrusted with it. The idea of a council, one of whose duties should be to aid and limit the president in making appointments, was pertinaciously pressed. Its chief supporter was George Mason, who could point for authority to the constitutions of several states, and particularly to that of New York, which provided for a special council of appointment. It was urged, however, that the Senate could perform these functions; and it was said by Davie of North Carolina that this proposition was strongly supported by the smaller states because of their equal representation in that body. Opposition arose from those who feared the power, not of the executive alone, but of the whole central government; and Dickinson, supported by Randolph, suggested that officers be selected by the president with the advice and consent of the Senate, “except where by law the appointment shall be vested in the Legislatures or Executives of the several States.” This plan, so foreign to the spirit of the convention, was dropped by unanimous consent; and the two following clauses were finally framed, and have stood unchanged to the present time.

The president “shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments.

“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

In the debates on the adoption of the constitution, these clauses received a fair share of attention, though in all probability no single vote was changed because of them. In Pennsylvania the power of the Senate was most feared. “Centinel,” the strongest Antifederalist writer, predicted that the Senate would control appointments; and it was argued that, since that body was to judge officials when they were impeached, it should not share in their election. Thomas McKean replied that in practice the president would name the successful candidate in nominating him; and James Wilson relied upon the president's power to fill vacancies during the recess of Congress, to secure him his proper share of influence. In New York the Antifederalists occupied different ground from those of the neighboring state; and George Clinton, who was perhaps of all Americans the man best fitted by experience to judge, feared lest the president, by choosing subordinates from his own circle, should build up “an imperfect aristocracy, bordering on monarchy.” Similar differences of opinion existed among Federalists, and John Adams

and Roger Sherman carried on an interesting correspondence with regard to the subject in 1789. Adams graphically depicted the chances for combination and corruption opened by the participation of the Senate; and, while he perhaps underrated the danger of according the full power to the executive, he certainly grasped the nature of the problem better than his correspondent, who argued that the senators would in general be the most respectable citizens of their respective states, and deduced therefrom that they would be diffident about recommending even friends and kindred of other members, “lest they should be thought unduly to favor a person who is related to a member of their body.”

On one point there was widespread criticism: it was claimed that the president would be able to control the action of Congress by appointing its members to offices, and that congressmen should therefore be made ineligible during their terms. Roger Sherman answered this objection boldly by declaring that for many places they would be best fitted, and that all danger was prevented by the provision that they could accept no positions which had been created, or the emoluments of which had been increased, during their terms. Such arguments did not fully meet the issue; and three state conventions, those of New York, Virginia, and North Carolina, included a clause providing for such a restriction in their suggested amendments to the constitution. It will be found that at a later period this question assumed a peculiar importance.

While these discussions were progressing, it was claimed that in the very struggle then being waged instances of the evils dreaded were present. The Antifederalists, particularly in Pennsylvania, asserted that the Federalist mail authorities curtailed the circulation of newspapers hostile to the proposed constitution. These charges are made with great particularity, and may contain a kernel of truth; for the carriage of newspapers was not a part of the regular mail service, but was arranged

for by special bargain with the riders, a system which afforded opportunity for favoritism. A change in postal regulations made about this time may, however, explain the facts presented.

More extensive and more telling were the charges made by the Federalists. James Wilson of Pennsylvania pointed out that the transfer of the customs from the states to the national government, and the establishment of many new judicial and administrative offices, would turn the stream of patronage into a new channel, and that the constitution would therefore be opposed by all those who profited by existing conditions. Francis Hopkinson, in his famous satire, The New Roof, depicted the old woman who led the opposition to the improvement as using the cornice of the old roof for a cupboard, and as boiling her pot with the shingles that blew off. Specific charges were also made. The fact that Elbridge Gerry held no office in Massachusetts did not prevent the Federalists from attributing his opposition to a desire to retain one; and Luther Martin was accused of refusing to sign the draft of the constitution because he despaired of receiving under it an office that he desired.

The charges of interested opposition seemed most reasonable in New York. There the patronage was particularly valuable, owing to the commercial importance of New York City, where goods destined for a large part of New Jersey and of Connecticut paid duty. It will be remembered that New York had been willing that the Congress of the Confederation should lay certain customs dues, if the state government might retain the appointment of the collecting officers. In the state convention of 1788 the charge was definitely made that Governor Clinton was using this patronage to defeat the constitution. A prompt denial was made; it was pointed out that some of the state officials supported the new plan, and the charge was partly

withdrawn. Undoubtedly the state machine formed the chief prop of the opposition; but Clinton, as will be shown later, was moderate in his use of the appointing power, and it is extremely improbable that he made any direct threats of removal or promises of reward. The more serious accusation made by the Federalists, that the governor was chiefly influenced in his opposition by fear of loss of prestige, must be dismissed as entirely unfounded. It was perfectly natural that the men in office should oppose the constitution: they represented the ideas of the Revolution; they had been the active agents in destroying the governmental control of Great Britain over the colonies; and by their type of mind they were opposed to centralized government and vigorous administration. The adoption of the constitution marked a change of party dominance; and many of the men prominent in 1787 by 1790 had retired, some to be restored by the Democratic wave of 1800.

When the new government was installed, almost the first task with which it had to deal was that of filling the offices, in order that the constitution, and the laws as they were passed, might be executed. The question of qualification was left entirely to the discretion of President Washington, who formed his plans with the punctilious exactness which was characteristic of him. Early in May, after his inauguration, he wrote to Edward Rutledge, “I anticipate that one of the most difficult and delicate parts of the duty of my office will be that which relates to nominations for appointments;” and in the same letter he remarked that he had made it a rule to say nothing definite on particular appointments until his mind was made up. In 1796 he said that his plan was “to lay the recommendations . . . by, until the hour comes when nominations are to be made, and then after reference to them and an attention to other circumstances (which is often essential) prefer those who seem to have the greatest fitness for the office.”

There can be no doubt that Washington considered fitness for the post to be filled a sine qua non for appointment. His

letters constantly repeat this, and he was a man honest even with himself. An excellent example is a letter of May 21, 1789, to Mary Wooster: “ Madam, I have duly received your affecting letter, dated the 8th day of this month. Sympathizing with you as I do in the great misfortunes, which have befallen your family in consequence of the war, my feelings as an individual would forcibly prompt me to do everything in my power to repair those misfortunes. But as a public man, acting only with reference to the public good, I must be allowed to decide upon all points of my duty, without consulting my private inclinations and wishes. I must be permitted, with the best lights I can obtain, and upon a general view of characters and circumstances, to nominate such persons alone to offices, as in my judgment shall be the best qualified to discharge the functions of the departments to which they shall be appointed.” This absolute requirement of capacity seems to have been generally understood, and nearly every existing application for office under Washington dwells on the applicant's ability.

There is a broad difference between appointing only fit men to office, and appointing those who are most fit; and Washington pursued this second aim also. It was a difficult task. There were many applicants who appealed to his benevolence; and it must have been particularly hard to turn away soldiers of the Revolution, great numbers of whom urged their sufferings upon him as just ground for reward. Yet he always answered that these considerations could not offset superior efficiency. He refused to make public office a bounty, though in some cases he did assist such applicants with his private means. One class of seekers he cut off from all hope of office by writing to his nephew, Bushrod Washington, that relationship must be an absolute bar to preferment. So clear did he make the honesty of his attempt to fulfil his difficult task impartially, that sometimes even disappointed candidates acknowledged the justice or the necessity of his selections.

Into Washington's idea of fitness, however, several elements entered. The ability to perform the functions of the post was, of course, essential; but that alone was not a sufficient qualification. A large and loose-jointed federation, such as the United States was in 1789, made geographical considerations of special importance. From the very beginning of the attempts at union, honors had been distributed with anxious care among the several states and sections, the nice balance maintained between Virginia and Massachusetts being particularly noticeable. Washington himself was indebted to such considerations for a part of his prestige, as it is scarcely possible that he could have been chosen commander-in-chief in 1775 had he lived in Delaware. As president, he prudently consulted geography in making his general appointments: his cabinet at first contained two men from Virginia, one from New York, and one from Massachusetts. When party lines came to be drawn more closely, the task became more arduous. John Adams wrote to his wife, January 7, 1796, “There seems to be a necessity of distributing the offices about the States in some proportion to their numbers; but in the southern part of the Union, false politics have struck their roots so deep, that it is very difficult to find gentlemen who are willing to accept of public trusts, and at the same time capable of discharging them.” Still, a certain balance of sections was always preserved in the cabinet. After the retirement of Jefferson and Hamilton, it consisted of one member from Virginia, one from Pennsylvania, and two from New England; afterward Maryland was substituted for Pennsylvania. The balance would appear more nearly perfect if Timothy Pickering were counted as from the West, where he lived when appointed, and not as from New England, where he was born and died.

In addition to this attempt to prevent jealousies between the several sections was the desire to make each choice acceptable to the section especially concerned. The constitution was as yet but an experiment; and Washington, who was responsible for

its success, wished it to be put in force, not only by competent men, but by men known and respected in the localities in which they were to serve: he preferred to have the federal authority represented by men who had been esteemed and honored by their neighbors. He therefore considered the previous career of the various men whose names were presented, and allowed any marks of the confidence of their fellow-citizens to count in their favor. To have previously held an elective office was considered the best recommendation. Some administrative officers were transferred from the State to the national service, — as Oliver Wolcott, comptroller of public accounts for Connecticut, who was made an auditor.

This qualification was particularly insisted upon for judicial appointments. The new judiciary had much to contend against. Legal changes are always looked upon with disfavor; and Washington wished to draw into the national service, so far as possible, judges from the benches of the states. This plan would serve to create a judiciary tried and therefore trustworthy, would indicate that the line of promotion lay from the State to the nation, and would tend to lessen the rancor of the disappointed. His letters to Madison show the solicitude with which he applied himself to the filling of the judicial list; and it is largely owing to this care that the national courts so soon acquired the confidence of the public.

To Washington's anxiety that the officers of the general government should be men of established reputation, was added a desire that they should be sound supporters of the new system; that is, political orthodoxy was considered as one of the elements of fitness for office. The supreme importance of this qualification in later periods lends special interest to the

attitude of the first president in regard to it. It is, however, a subject so elusive that his policy can be made clear only by a somewhat detailed account of the conditions existing, and a study of some characteristic instances of his practice.

In one sense, Washington had a clear field before him in the creation of a civil service: there were absolutely no hold-over officers; the servants of the Confederation became private citizens the moment the new government was established. Justice demanded, however, that the men thus legislated out of office should be considered as having a special claim to the new offices that involved similar functions, and Washington recognized these claims whenever he was convinced that the old occupant possessed the requisite qualifications. John Jay, who had been president of the old Congress and was in 1789 secretary of foreign affairs, was given his choice among the new offices, partly because of the new president's esteem for him, but partly, doubtless, because of his official position. Jefferson, who held the ministry to France, the most important post in the diplomatic service after that to England, which Adams had vacated to become vice-president, was made secretary of state. Samuel Osgood, who had been commissioner of the board of the treasury, was appointed postmaster-general; Charles Thomson, the secretary of the old Congress, might have been secretary of the Senate, but declined, as he expected a higher office; and Washington broke his rule of not interfering with departmental appointments, to recommend Thomson's assistant secretary, Roger Alden, to Jefferson for a place in the state department. In addition, the governor and judges elected by Congress for the Northwest Territory were reappointed, with the exception of General Varnum, who had died in the interregnum.

A similar policy was pursued with regard to the state offices. Richard Henry Lee, writing early in June, 1789, says: “Conversing on the subject of these appointments [those in the

revenue service] lately with the P., I mentioned two principles which I had the pleasure to hear him approve of. The first that State officers in similar lines who had behaved well, deserved preference in the service of the United States; and that having discharged these duties undivided, now that they become divided, the same officers were entitled to the best.” Many applications for office were grounded on these principles, and such statistics as can be obtained tend to show that the rule was adhered to. There were 136 offices in the customs service as at first established under the new government: in 42 cases the old occupants were reappointed; in 4 cases they received some office in the service; in 15 cases they were not appointed; and in 75 cases either there is no record or the office was a new one.

The fact that such was the general policy gives peculiar importance to one case in which it was not carried out, that is, in Rhode Island. The struggle for the adoption of the constitution was particularly bitter in that state, and even before it was finally decided Washington began to receive applications for office. John Brown and John Francis, great merchants who favored the new establishment, sent him a letter of advice: they describe the iniquities of the opposition, and “sincearly Hope that none of these carrectors may be promoted to Aney office,” and “take the Libberty of Recommending a core of Honest Faithfull and Vigilent Custom House Officers for this Department Such as will cause Every Copper of the Revenew . . . to be punctually paid to the Treasury of the United States.” While the Antifederalists were yet in control of the state, they had elected a board of customs officers with but one of their opponents upon it. When the constitution was at last adopted, it was fully expected that a change would be made; and one of the Rhode Island senators was asked to advise the president to divide the offices between the several parties. The subject excited much local interest, and was most carefully considered

by the administration. The very pressure put upon it by the one side and the other showed how bitter the previous contest had been, and how important it was that the new officers should be such as would not only perform their duties well, but would strengthen the hold of the constitution on the people. Each case was minutely considered.

The list of customs officers finally made out contained ten new names, only two of those who had served under the state being appointed. One of those retained was Theodore Foster, naval officer at Providence, who has just been referred to as the single Federalist in office. As a matter of fact, Foster, though generally rated as a Federalist, had friends and enemies in both parties, and seems to have been reported to Washington as an Antifederalist. Immediately after his second appointment he was elected senator, and his successor as naval officer was Ebenezer Thompson, who had been collector under the state government and was avowedly opposed to the adoption of the constitution. Job Comstock, the other representative of the old corps of officials, declined to serve the new government; but on the declination of Aborn, the newly selected surveyor at Pawtuxet, Zachariah Rhodes, the old incumbent there, who had been passed over when the list was first made out, was chosen.

The fact that two representatives of the state board of customs officials were thus persistently retained may indicate that Washington judged it proper to recognize to that extent the Antifederalist element. The remaining officers, both in the customs and in the judicial service, seem to have been all strong Federalists; and at least three of them had previously held state offices, but had lost them during the “Know Ye” troubles. If the general government hoped to allay political rancor in Rhode Island by recognizing both factions, it was unsuccessful. Three years later, on occasion of a vacancy in Rhode Island, Henry Marchant wrote a letter to Hamilton carefully estimating

the several candidates, and adding, “It is indeed to be regretted that this affair should assume a Party Complection.”

A similar care was observed in making the North Carolina appointments, for the conditions were similar. So far as can now be discovered, there were no reappointments in the state. There exists in Jefferson's handwriting, under date of June 7, 1790, an annotated list of candidates for the judicial positions there, such as it has always been customary to prepare for the president's use in important cases; in it one man is definitely recommended as being a “federalist.” The fact that Jefferson made this note shows that the term “federalist” was not used in its later party signification, but referred to those who had supported the adoption of the constitution. If ever political discrimination was justifiable, it was at this time; and fair-minded Republicans of a later date recognized that the conditions had been unusual, and that it was especially important that the constitution should be in the hands of its friends while receiving its trial. Nor should the sharpness of the distinction drawn be exaggerated. Washington wrote with regard to the district judgeship of Maryland: “Mr. Paca has been mentioned for that appointment, and, although his sentiments have not been altogether in favor of the general government, and a little adverse on the score of paper emission, I do not know but his appointment on some other accounts might be a proper thing.” The important post of collector of New York was given to General John Lamb, a vigorous Antifederalist.

When political strife grew hotter and the Republican and Federalist parties began to emerge, and when, too, the irascibility of old age came upon him, Washington became more of a party man. He made only seventeen removals, and these strictly for the efficiency of the service; but in 1795 he wrote to Pickering, “I shall not, whilst I have the honor of administrating the

government, bring men into any office of consequence knowingly whose political tenets are adverse to the measures the general government is pursuing; for this, in my opinion, would be a sort of political suicide.” It was the popular charge of the Republicans that, in his second term, after the dismissal of Randolph, he confined his appointments to members of the Federalist party; and certainly in 1798 he advised McHenry to be cautious about enlisting Jacobins in the new army.

Such seem to have been the ideals which Washington set before himself, and which he attempted, with his usual conscientiousness, to realize. Like all his policies, they were proper and practical; but he was not omnipresent, he could not control his subordinates in all their actions, and his practice did not, therefore, accord wholly with his theory. The members of the cabinet were given power to appoint their clerks, and how unrestricted that power was, the long employment of Freneau in the state department shows.

By many avenues, intrigue and faction crept in. The following extract from a letter exhibiting the political situation in Savannah shows what a part local politics played in the establishment of the civil service: “Col.o Few will nominate me with the others. Our other Senator [James Gunn] I expect no Friendship from. . . . His Man will be a Wretch who now fills the Office of Collectorship at this place — his Name is Ruben Wilkinson — he is from our back Woods low and illiterate as possible, but served our Honorable Senator Gunn in geting him Votes.” In a similar way the other possible candidates were discussed. Theodore Foster, senator from Rhode Island, wrote February 17, 1791, of the difficulties of steering between the Scylla of favoritism and the Charybdis of ingratitude in making sugges

to the president, and spoke of charges made against the former Rhode Island delegate of improperly using his influence. It is said that in New York, where Hamilton's advice was naturally potent, the appointments were such as tended to aid the Schuyler faction and weaken Clinton, but the force of this charge is weakened by the appointment of Lamb. The Livingston family, so great an influence in that state, felt slighted; and perhaps their turning to Jefferson is to be thus accounted for. It lies not in man to give universal satisfaction; and small as was the part which politics played in the selections of the first administration, the government did not escape the charge of intolerance. John Tyler, Sr., was one of the judges of the admiralty court of Virginia, the functions of which, under the constitution, fell to the United States district court. Tyler was not the only admiralty judge; and Cyrus Griffin as judge of the federal Court of Appeals in Cases of Capture had as high, if not higher, claim, and was appointed. Yet Tyler was displeased and wrote, long after the event, “This kind of conduct began the strong distinction which has embittered the cup of life, and, in a great measure, produced a spirit of retaliation.”