22

HAMILTON'S PLAN AND JAY'S PRACTICE.

plan very similar to both the plan and fundamental principles of the civil service law. Indeed it may be said that the law is only an enlargement and improvement of his plan. His "select assembly" would have been, what the Civil Service Commissioners are to-day, a material aid to the President, if not in fact a sort of second Cabinet. He says ("The Federalist," p. 355): "It will be agreed on all hands that the power of appointment, in ordinary cases, can be properly modified only in one of three ways. It ought to be vested in a single man; or in a select assembly of moderate number; or in a single man, with the concurrence of such an assembly." He deprecated "party bargains" (p. 356) as a mode of distributing offices, because " party victories" would "be more considered than the intrinsic merit of the candidate" or "the advancement of the service."

The Federalist papers were intended by their authors -Hamilton, Madison, and Jay-to be explanations of the Constitution. So it is hardly necessary to say that Hamilton's plan is what he believed to be the Constitution's plan.

John Jay, the first Chief Justice of the United States Supreme Court, did not, so far as I know, formulate any plan for or expatiate at length concerning the distribution of offices. But his actions, when Governor of New York, in 1795, spoke louder than plans, or even the emphatic words he then used, for he refused to make removals on account of politics, notwithstanding Gov. Clinton's officeholders had bitterly opposed him, and his (Jay's) political friends "anticipated the spoils of victory."

(Life of Jay, i, 392.) When one of the

*These words were written by William Jay, John Jay's son and biographer, before the delivery of Senator Marcy's spoils doctrine speech.

TWO OTHER CIVIL SERVICE LAWS.

23

council of four men that then confirmed nominations, advised the Governor to appoint a Federalist to office, on account of "his zeal and usefulness," he replied: "That, sir, is not the question. Is he fit for the office?" In his inaugural address he said (i, 389): "To regard my fellow-citizens with an equal eye, to cherish and advance merit wherever found, * * * are obligations of which I perceive and acknowledge the full force."

The civil service law, so far as non-competitive examinations are concerned, is not without precedent. Two other acts, namely, sections 164 and 1753 of the United States Revised Statutes, provide as follows:

§ 164. No clerk shall be appointed in any department, in [any] of the four classes above designated, until he has been examined and found qualified by a board of three examiners.

§ 1753. The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks to enter; and for this purpose he may employ suitable persons to conduct such inquiries, and may prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the civil service.

The civil service law is a careful elaboration and improvement of sections 164 and 1753. Therefore one is about as unconstitutional as the other. But even if all were unconstitutional, the abuses they are designed to correct would have to be dealt with by some other law. The law not only seems to be constitutional, but it or a law similar to it seems to be expressly authorized by the Constitution itself.* It causes, it must be admit

* Art. i, § 8, says: "The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The United States Supreme Court says (106 U. S. Repts., 371): "With

24

EMINENT LEGAL OPINIONS.

ted, a radical change. Therefore it is not strange that it should meet with opposition, for doubt and distrust are the natural consequences of all radical governmental changes. The Constitution itself was not an exception to this rule, for it was voted down by two of the States,* and even some of its framers doubted its permanent utility. Is it strange then that some men doubt the utility of the civil service law?

The Constitution requires that the President "shall take care that the laws be faithfully executed." In harmony with and apparently in view of this fact, the civil

in the legitimate scope of this grant Congress is permitted to determine for itself what is necessary and what is proper."

In the practical application of government, the public functionaries must be left at liberty to exercise the powers with which the people by the Constitution and laws have intrusted them. They must have a wide discretion as to the choice of means; and the only limitation upon that discretion would seem to be that the means are appropriate to the end. (Story on Const., § 432.)

The subject is the execution of those great powers on which the welfare of the nation depends. * **This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate and which were conducive to the end. (4 Wheaton, 415.)

The question whether a statute is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints and prohibitions. It may not be declared void because deemed to be opposed to natural justice and equity. (74 New York Reports, 509.)

The construction given to a statute by those charged with the duty of executing it, ought not to be overruled without cogent reasons. The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterward called upon to interpret. (113 United States Reports, 571.)

* Rhode Island and North Carolina. George Bancroft says (His. of Const., ii, 350): "Neither of the two States which lingered behind remonstrated against the establishment of a new government before their consent; nor did they ask the United States to wait for them. The worst that can be said of them is that they were late in arriving."

HOW TO ADAPT LAWS TO THE PEOPLE.

25

service law authorizes the President to make his own rules for its execution, and requires the Commissioners to aid him, "as he may request," in preparing them. As the rules are subject to such modifications as the President and his aids may find necessary, they ought in the course of time to become not only satisfactory as rules, but also important adjuncts to the law itself. This is well, for the law, which has not yet, except in certain places, had a fair trial, may have faults of both omission and commission, the exact nature of and remedy for which time only will determine.* Therefore, in the meantime, good rules will give it strength as well as facilitate its execution. The execution of the law, like the law itself, is simple, but it is laborious, for examinations are held in nearly every State and Territory twice a year.

*Sir George Cornwall Lewis says ("Methods of Observation and Reasoning in Politics," i, 173): "A government is, by the nature of its action, constantly trying experiments upon the community. All new measures, all laws enacted for the first time, are in the nature of experiments. They are not indeed scientific experiments; but they are experiments made for a practical purpose, and they are regarded merely as provisional and tentative until experience has proved their fitness and they are confirmed by the proof of practical success. Being tried, not in corpore vili, but upon the lives and fortunes of the people, the conduct of the experiment must be regulated by the nature of the subject upon which it is made. Hence the progress of such experiments is carefully watched by the legislature, while the executive authorities proceed cautiously and gently with a new law, feeling their way as they advance, and exercising their discretion as to its more rapid or tardy advancement, either generally or in particular districts. It is by trying a new law on a people, as the maker of new apparel fits it on the body, and by enlarging here and diminishing there, where it does not suit the shape, that the legislature gradually adapts its work to the wants and feelings of the community. This is an experimental process, for the purpose, not of ascertaining a general truth, but of improving the institution, and of giving it the form best suited to the circumstances of the nation."

CHAPTER II.

COMPETITIVE

EXAMINATIONS.

Their Utility proved by trial by Probation, examinations for Promotion, contrasts with non-Competitive Examinations, &c.-Appointees independent of Politicians.-The education required.—Opinions and Experiences of practical men, &c.

THE Competitive examinations, which may be called the backbone of the civil service law system, about which there is more or less complaint, are a simple mode of ascertaining the relative theoretical qualifications of applicants for office, and of naming those who are entitled to trial by probation as to their practical qualifications before final appointment. The proceedings of the examiners are as impartial as are those of a court of justice, and "are open to such spectators as can be accommodated without interfering with the quiet due to those being examined."* The examiners. know the applicants and their respective papers by numbers, not by names. There is therefore practically no reason for favoritism on the part of the examiners, *A 10-year-old but still valid rule. The 1896 Commissioners say (August 24): "Visitors may be admitted."

Regulation 21. The examination papers of each applicant shall be marked only with a number. The name and number shall be placed in a sealed envelope, which shall not be opened until after the papers are marked. [Ten years old, but still valid, as is also Reg. 35.]

Regulation 35. Complaints which show injustice or unfairness on the part of any Examining Board, or any one acting under the Commission, or any error in marking, will be considered by the Commission, and, if necessary, it will revise the marking and grading on the papers, or order a new examination, or otherwise do justice in the premises.

It (the Commission) does not regard itself or the examiners as hav