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they hold their offices only during the pleasure of the appointing power, and subject to the liability of assessment for political purposes."
The vices of the present system are that the public service cannot have unrestricted freedom of choice from among those who are most competent; that unnecessary offices are created to make sinecures for constituents and political dependents; that, by polítical or personal influence, incompetent employes are put into office, and kept in office, to the great detriment of the public interests; that politics becomes a profession; that the doors of public lise are too often closed to men of ability and character; that political contests are no longer the battle-fields of great principles, but are sordid struggles for the division of the spoils; and that the country can be disgraced, and the wheels of Government brought almost to a stand-still, by a Senatorial wrangle over the appointment of doorkeepers.
Judge Tourgee, while he does not go so far as President Grant, President Hayes and President Garfield have done, in condemning the present system of appointment to office, yet concedes that the system, as tried by its effects, is not perfect, and that some change and amendment may well be sought. To that end, he proposes, as a scheme of civil service resorm, “a short, secure term, with a preliminary examination, not competitive, graded in its character to meet the requirements of the various ranks and services, and leaving to the appointing power discretion to appoint from any who shall pass the examination required for the specific grade."
The fatal defects in this proposed scheme of reform can readily be shown. Judge Tourgee condemns changes which do not accomplish reform or amendment,-his scheme of reform accomplishes no change. It is simply the old system over again. The preliminary examination, not competitive, is the pass examination of the present system, to which only those are eligible whom the appointing power may choose to invite. The power to nominate for a pass examination, and to appoint those who shall stand its test, is practically an unrestricted power of appointment. The “short and secure term " would prove in practice to be a four years term, and the officer would be rotated out of office so soon as he had become familiar with, and competent to perform, his duties. This plan of so-called reform would not remove one of the evils of the present system.
But the scheme which the Civil Service Reform Association proposes is very different.
It limits the application of the reform to non-political offices, that is, to offices which have no representative political character, which do not mould or shape the national policy, as approved by the people at the polls, but which simply do the business of the Government. For the individual and irresponsible exercise of discretion by the appointing officers, it substitutes an uniform systein, under which every citizen, without regard to political or personal affiliation, is entitled to offer himself for the service of the Government. In this respect the reform is democratic, and in thorough sympathy with the essential principles of a republican Government. These examinations are not to be nominal, as are the pass examinations under the present system, but they are to be real tests of average intelligence and educatiɔn. All favoritism and all unfair discrimination is to be prevented by causing the examinations to be conducted upon an uniform system, and under the supervision of officers not subject to partisan influences. From among those who shall be graded highest, alter open competitive examination, the appointment shall be made by selection, and, in order that actual experience in the duties of the office shall test the ability of the applicant, no absolute appointment shall be made until after a period of probationary service. That the officer, when appointed, shall devote his whole time and energies to the service of the public, and not to that of any party or any individual, the reform contemplates a tenure, not for life, but during good behavior, and subject only to removal for cause and after hearing, with freedom from political assessments, and a prohibition of the prostitution of the officer's official authority or influence to political purposes.
Such is, in general terms, the reform which Judge Tourgee condemns as impracticable and undesirable.
Judge Tourgee contends that this is “a great revolution and a proposition to overturn not only the practice, but apparently some of the basis principles, of the Government.” If it be a revolution, it is a revolution of a very conservative character, for it is a return to the principles and practices of the founders of the Government, and, so far from its being an endeavor to overturn the basis principles of the Government, it strives only to make practical
application of those principles, and to abolish the corrupt practices which are sapping the life of the nation. It would seem that when the Revolution had wrested the Colonies from the British Crown, and, by an union of the States and their citizens, had established a republican Government in the place of a monarchical and aristocratic Government, one of the basis principles of that new Government would of necessity be the right of every citizen to offer himself for the service of the Government in any vacant office whose duties he was qualified to persorm, and the correlative right of the Government to avail itself of the services of such citizen, whatever might be his religious or political views. That is the fundamental right which this reform seeks to re-establish, and which Judge Tourgee opposes.
Judge Tourgee pleads for the inalienable right of every citizen to become an office-holder by supplanting the present incumbent. When he talks of the unquestionable rights of a great class of citizens, which the reform of the civil service will abridge, he means only the right of every citizen to promote himself into office, and some more or less trained official out of office. Does he mean to imply that this is a natural right, indefeasible and not to be restrained ? Does he mean that it is the right of any citizen to be appointed to any given office without regard to his knowledge or fitness for its duties? He will scarcely say that. Yet, ií this right is to be qualified and limited by the applicant's fitness for the office, how is that fitness to be ascertained ?
If it be lawful and Constitutional for the appointing officer, be he President, Cabinet officer, or chief of a department, to test in any way satisfactory to himself the fitness of the competing applicants for office, and to select from among them him who shall most satisfactorily answer the test,-if that be no invasion of any Constitutional or legal right, how is the applicant injured if he be sent to a board for examination ?
Does not Judge Tourgee know that these unquestionable rights of appointment to office, of which he talks, have no existence in point of fact ? Does he not know that the avenues to public employment are not open to citizens at large? Does he not know that any citizen, be he ever so competent for the duties of any particular vacant post, cannot, under the system in force, be appointed, . unless he can obtain the requisite political or personal influence to support his claim ?
Yet Judge Tourgee assails as undemocratic, unrepublican, and conflicting with the fundamental principles of free government, that measure of reform which would give to the Government an untrammelled liberty of selection for its service from among those best fitted therefor, and which would confirm to every citizen the right of serving the Government upon proof of his ability. Religious and political tests are odious; but what possible objection can there be to a test of fitness ?
Judge Tourgee contends that there is a lack of Constitutional power to sustain the proposed reform.
“ The Constitution of the United States empowers Congress to 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." .
It would seem that the Constitutional power of Congress to “vest the appointment of inserior officers must necessarily include the power to determine the terms and conditions of the appointment. The Constitution makes no original grant of the appointment of these officers to the President, and any power which he may exercise can only be exercised by him under the grant by Congress.
In 1822, President Monroe held Judge Tourgee's opinion, and he asserted, in his message of that year, with regard to army and naval officers, that Congress had no right under the Constitution to impuse any restraint by law on the power granted to the President, so as to prevent his making a free selection for those offices from the whole body of his fellow-citizens; but the Senate wholly disagreed as to this doctrine, and held that Congress had the power of prescribing the conditions of his exercise of the power of appointment ; and the country, then and ever since, has acquiesced in that construction of the power.
Under this Constitutional provision, Congress has, in numerous instances, without cavil or question, vested the appointment of officers in the President, the courts, and Cabinet officers, and prescribed the conditions of appointment. District attorneys, mar-' shals, registers in bankruptcy and court clerks, are only illustrations of a large class of officers authorized to be appointed for definite terms and under specified conditions.
By the Act of the third of March, 1865, the appointing officers are directed to give the preference for appointments to civil office to “ persons honorably discharged from the military or naval service." By the Act of the second of July, 1862, every person appointed to office is obliged to take an oath of allegiance and loyalty. By the Act of the second of March, 1867, (the Tenure of Office Act,) any person holding any civil office to which he has been, or may hereafter be, appointed, by and with the advice and consent of the Senate, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by appointment, with the like advice and consent, of a successor.
By the Act of the third of March, 1871, 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 the service into which he seeks to enter.”
Under Judge Tourgee's view of the Constitution, each and all of these acts of Congress are unconstitutional, because it is only competent for Congress to create an office and to authorize an appointment to fill it, but not to restrict the action of the appointing power, either as to the mode of appointment or as to the tenure of the office,
If this opinion be a fair illustration of the soundness of Judge Tourgee's views upon Constitutional and legal questions, it is not to be regretted, in the interest of the administration of justice, that he has deserted law for literature, and devoted himself to the writing of political novels, rather than of judicial opinions.
Judge Tourgee's next objection is to the life tenure ; he contends that it naturally and inevitably inclines to formalism, routine and blind adherence to established methods, and that it establishes an office-holding class, and threatens the liberties of the country, by creating a civil service army with which an ambitious usurper may overturn our institutions.
To this it is to be answered that the tenure of office proposed is not for life, but for good behavior, and that the officers are only to be removable for cause.