« VorigeDoorgaan »
THE TERM AND TENURE OF OFFICE. I PON no subject within the sphere of civil administration is
there a greater contrariety of views or a less instructed public opinion than in regard to the proper term and tenure of office. Popular speech seldom discriminates between term and tenure, and even our statutes hardly escape confusion on the subject, plain as it is that term but marks the length of time for which the office is bestowed and tenure only the condition subject to which, for the prescribed period, it may be held. When the Federal Constitution declares that judges shall “ hold their offices during good behaviour" it creates a tenure, but not a term. It is, therefore, no contradiction to affirm of two persons that they hold office by different tenures, yet for equal terms.
The term of the President of the United States and that of the humblest postmaster, nominated by the President, are each for four years; but, so diverse is the tenure that, while only the judgment of the Senate upon an impeachment can sever that of the President, the tenure of the postmaster-frail as the holding of an autumn leaf,—may be severed any moment by the merest caprice of official authority; if not justly or legally, yet under the usage we have tolerated.
The crude and discordant thought and the lamentable prejudices among our people, concerning the proper term and tenure of offices, are what might we'l have been expected from the utter neglect of the subject in our teaching and literature. What institution of learning has ever given any instruction upon these
subjects? Where have they not-like everything else pertaining to administrative affairs- been treated as unworthy the attention of students and statesmen and fit only to be handed over to the politicians and partisan majorities ?
In the early debates upon the Federal Constitution, the question of the proper term and tenure of the President, the members of Congress and the judges were well considered; but little was said, and in the Constitution not a word, about the term and tenure of subordinates. Those matters-like the great power of removal itself—were left to mere inference and construction; nor should we be much surprised. For the more than a hundred thousand federal officials, the hundreds of millions of annual revenues, the vast wealth and population and the immense volume of public business and official duties, expanded across a continent, which now give such subjects their perilous importance, were then not only unknown, but they were inconceivable. That power which we find so formidable and those parts of public affairs which now so alarm us, in the eyes of the framers of the Constitution, whom so many
new and grave questions made anxious, only concerned a few dozen • clerks, and only two millions of revenue. There were then neither parties nor chieftains nor great patronage, to make contentions.
But may we not well be surprised that, in presence of the steady growth of such elements of peril—and especially that during the last forty years, within which personal corruption and partisan despotism have silently accomplished a demoralizing revolution in both the terms and tenures of the great body of federal officialsthere should not have been, either in our legislative chambers or in our political literature, a single presentation of the subject upon the basis of principle or policy ; nor, indeed, hardly the least instruction concerning it in our academies, colleges or universities? Year after year our graduates have been committed to the sweeping currents of partisan politics, without principles, without matured theories, without books of instruction, or even suggestions drawn either from our own experience or that of foreign nations. Neither in our great works upon constitutional law, nor in those upon political ethics or science, is the subject thus presented, or in anyway treated as worthy of thoughtful study. Story and Kent, Lieber, Woolsey and Cooley alike—and our college text books as well-leave us without light or guidance on the subject. Indeed, .so complete has been the neglect that there is hardly so much as a reference in the index of any standard work under the head of term or tenure of office. What, then, more natural than the discordant practices and theories which have existed ? Judges of the Supreme, Circuit and District Courts of the United States, protected by the Federal Constitution, retain their tenure of good behavior ; but the federal judges for the Territories, holding under laws framed—the first of them in 1850–in the spirit of the modern spoils system, are given a term of four years and a tenure “at the pleasure" of the appointing power; a provision which I must regard as being as repugnant to that Constitution, which says that Judges of the “Supreme and inferior Courts shall hold their offices during good behavior," as it certainly has been disastrous to the independence and character of the territorial courts.
The Judges of some States hold during good behavior, those of others for only a single year, while between such extremes are a motley variety of tenures, and ever varying length of terms; changing not only with nearly every State line, but greatly within the same generation in the same State. New York, for example, in 1846, yielding to a spoils system policy earliest and most developed in that State, changed her judicial tenure from good behavior to a term of eight years, and, under a partial reaction against that policy, has since extended the eight years term to one of fourteen years. From the same causes, Pennsylvania reduced her judicial tenure of good behavior to a term of fourteen years, in 1850 ; but in 1874, so alarming had the evil effects of a short term become, that the fourteen years' term was extended to twenty-one years. A contrariety, equally striking, is illustrated in most other offices. The terms of school officers, commissioners, mayors, State Senators and Governors, for example, vary in different States and cities from one year to six years, the extension made beyond one year in most cases—as, notably, in Pennsylvania and Missouri,-having been resorted to as a check upon partisan intrigue and corrupt elections, which short terms had greatly aggravated. The whole official system of late years is without the evidence of accepted principles or matured thought,—as consused and miscellaneous as the surface of the earth, which volcanoes have upheaved and earthquakes have shaken.
For much the same reasons, in nearly if not quite a majority of the States, sessions of the Legislature have been dispensed with for each alternate year. Nowhere, I believe, have official terms been shortened since public attention has been somewhat aroused to the evil of bad administration.
Theories have been as discordant as statutes. On one hand, we see men insisting upon permanency in office as essential to efficiency and reform ; on the other, those who denounce stability of tenure and length of term as an aristocratic monopoly. In the name of justice, they demand rotation in office. Some contend that only a fixed term of years can arrest disastrous corruption and partisan despotism ; while others insist that such a term would certainly increase both those evils. There are many who, aroused and alarmed as never before at the ruinous aspect of our politics, would directly appeal to Congress to enact a short fixed term of office for all subordinates in the executive department ; but there are yet more who would legislate concerning admissions and removals without, at this time at least, fixing any term by law. On one side, intense partisans tell us that parties cannot be sustained without being able to give many places to which a stable term and tenure would be fatal ; while on the other, the most candid and thoughtful citizens assure us that parties may trust to sound principles and good administration, repudiating spoils and office mongering by which parties are only debauched and enfeebled. The admirable resolutions of the last Massachusetts Republican State Convention postulate the conditions of reform in the alternative, by declaring “ for a tenure of office during good behavior or for a reasonable fixed term," allowing removals only for cause; and, therefore, leaving open the main question: "For how long a holding of office should the law provide ?”
We shall better see where the truth lies between such extremes, if, in the outset, we get a clear view of the sphere of Civil Service Reform and of the offices directly affected by it.
A great proportion of those who regard patronage and spoils as essential to the life of parties, and short term and rotation in office as essential to patronage and spoils,--and, therefore, oppose all reform which would suppress such essentials,--are doubtless sincere and patriotic; but they are laboring under great misapprehensions. Confusion of thought, or the neglect of thought, is the cause of most of their difficulty. We must, therefore, discriminate with some care, even at the peril of being thought didactic and commonplace.
I. Official life,--government itself,--exists under three great divisions, civil, military, and naval. In the two latter, in all the foremost states of the world, patronage,—the bestowing of offices by mere favor—and short, precarious terms and tenure have given place, in later years, to selections under stern test of capacity; and to a system which requires the education and experience which come from study and long terms of service. Those results were reached by slow stages. Until after 1850 the commissions of our army and navy offices declared their tenure to be “ during the pleasure of the President.” Senator Benton says that tenure was based on British precedents and “that it departs from the principle of our republican institutions, which requires a tenure during good behaviour;" a view which contrasts widely with that of some of the party leaders of our day.
In Great Britain and in every other European state, down almost to the birth of men now alive, the tenure of military offices was as precarious and as much a matter of mere favor and patronage as that of civil offices. George III. and his minister Grenville but reflected the spirit of their times, in refusing to recognize any distinction between civil and military officials on the score of tenure or term. Statesmen and generals had held the hope of pillage and plunder to be the most powerful incentives both to enlistments and to efficiency in battle, without the prospect of which no war could be safely undertaken. They reasoned concerning colonels, captains and soldiers as our politicians reason concerning collectors, postmasters and book-keepers, George III., for example, deprived General Conway and Colonel Barrè-sympathizers in our causeof their commands for political reasons alone, and extended a remorseless proscription to military and civil subordinates alike.
A spoils system of office, in name and spirit, is only the reproduction in the civil life of this Republic, of the barbarous outgrown feudal war code of the European monarchies. And, but for the stern lessons taught on our battle fields, who will venture to say that official terms would not now be as short, tenure as precarious, and the spoils system as potential in the army and navy as in our civil affairs ? Indeed, an act of 1862, not superseded with