Term and Tenure of office in the United States

Term and Tenure of office in 1899 (United States)

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TERM AND TENURE OF OFFICE. Term measures the period for which an office is conferred. Tenure marks the conditions upon which the office is held, whether for a fixed or for an indefinite time. The term of the president and the term of the postmasters he appoints are each for four years; but the tenure of the former can be severed only by the judgment of the senate upon an impeachment, while that of the latter exists only during the pleasure of superior officers.

-Offices may be divided into three classes. civil, military and naval. In the two latter classes definite terms are now rarely found, though we read, that, among the Greeks, generals sometimes held supreme command only for the term of a day; and Roman consuls commanded armies during their short fixed terms of office. Military and naval officers, in modern times, almost invariably hold their offices, if not for indefinite periods, at least for periods determined in reference to probable efficiency of service. Yet, soldiers are generally enlisted for a defined term. (As to the tenure of military and naval officers, in the United States, see PROMOTION, REMOVALS FROM OFFICE.)

-Civil offices may also be divided into three classes: legislative, judicial and executive. To properly present [896] the important considerations by which term and tenure should be determined in these three classes-in their whole range from the president to the highway surveyor, from the national chief justice to the town justice of the peace, from the federal senator to the village trustee-would require a space far-beyond that accorded to this article. Few subjects within the range of political science have been so utterly neglected as that of the proper tenure of office, and none requires a more careful study. It is not perhaps possible to refer to any chapter where the subject is treated in even the most general manner. As a natural consequence, we find not only in different states, but in the same states at different times, for the same offices, terms of diverse lengths, and tenures of miscellaneous variety. The interests of factions and the ambition of leaders, rather than sound views of public interest, seem to have often determined both term and tenure.

-On the one side, intense partisans tell us that parties can not be sustained without being able to give many places to which a long term or a stable tenure would be fatal; while, on the other, the most experienced and thoughtful citizens assure us that parties may trust to sound principles and good administration; repudiating the spoils and office mongering by which they say parties are only debauched and enfeebled. The reasons are almost obvious why the term and tenure most appropriate for one of these three classes would not be equally appropriate for the others.

-1. So far as judicial offices are concerned, the most important considerations have been presented in the article on JUDICIARY, ELECTIVE. And see REMOVALS FROM OFFICE. It may be added, however, that nowhere is well-trained experience more valuable than upon the bench. It not only promotes facility in the doing of the business of the courts, and clearness and consistency in the interpretations of the laws, but it develops that judicial frame of mind which is unperturbed by partisan excitements, and which commands the confidence of litigants. It can hardly be denied that the inexperience which short judicial terms have brought upon the bench has not only greatly delayed the administration of justice, but has greatly impaired public confidence in the courts of every grade.

-2. Turning next to the legislative department, we find decisive reasons why the terms of those elected to represent the people should not be long. These officers represent interests, opinions and policies which are constantly changing; and, at every phase, they have an equal claim to be represented in debate; and, if sound, to be expressed in statutes. Permanency of tenure on the part of legislators would obviously tend to defeat one of the great ends of representative government. Yet, so manifest have been the advantages of that wisdom and facility which come from experience in legislation, and so deep has been the sense of peril from incompetent legislators, that a great portion of these officers-notably senators, both state and federal-have been allowed to hold their places for terms during which great changes of interests and opinions have taken place. And so strong has public opinion been in this direction of late that in many of the states, the terms of judges, senators, mayors, and school officers, as well as of various other officials, have been considerably extended within the last few years, perhaps nearly doubled since the reaction has become vigorous against the spoils system theory of rotation in office. Biennial sessions of the legislature in more than half the states are due to the same cause.

-Despite these changes, the vast volumes of crude statutes-more than a thousand pages a year in a single state-have proclaimed the incompetency of the law makers; causing needless litigation, and making justice remote and uncertain. It will be in vain that a remedy will be sought in limiting legislative power by constitutional amendments. As the statutes become more intricate and official functions more complicated, with our growing wealth and population, there will more and more be a need of larger official experience and larger official terms-to be held under a sterner responsibility-for the supreme work of legislation. Some plan may perhaps be devised for securing more experience in state legislatures, by classifying members, while increasing their terms of office, after the analogy of the national senate.

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-But in the legislative department there are inferior officers, not elected by the people-the clerks and other subordinates of congress, state legislatures and municipal councils-who are in no sense representative, but are simply ministerial officers. Next to fidelity and natural capacity, the highest qualification for these places is experience, invaluable experience, in the discharge of their duties. These duties have no honest relation to party politics, or to majorities in legislatures, but are the same at all times and under whatever dominant party. The office of speaker is, within certain limits, an obvious exception. But the less he is a partisan the more fit he is for his duties. The constitution of the United States, like that of Great Britain, confers the power of selecting and removing these subordinates upon the legislative chambers, without restriction as to term or tenure. So it is also in the state legislatures. Who will deny that economy, efficiency, purity and dignity, in legislation, alike demand that those officials should hold their places so long as they fitly perform their duties, and that they should be made to feel it to be a disgrace to allow that performance to be influenced by partisan considerations?

-Before the British spoils system was suppressed by the reforms made within this generation, there had been as demoralizing contests in the British parliament, over the appointment and removal of such subordinates, as have ever disgraced our congress or state legislatures. Now, holding during good behavior and efficiency, t
he selection of these officials in Great Britain is by methods with which no party interferes; and the discharge of their functions is treated as having no political significance. Parliament has now more time for its great work, and [897] its dignity is no longer impaired by ignominious contests about clerkships and doorkeepers. The most perfect representation, which in theory is sought, would be attained by the shortest practicable terms of office. Terms of six years for federal senators, of two, three and four years for state senators, of two and three years for governors, mayors and various other officers-as they now exist-can not be justified on the mere theory of representation. This theory is based on the right of the people at all times to have their interests and opinions reflected in the halls of legislation. But terms, even if for only a single year-the shortest we recognize-violate that theory. For the opinions of parties and individuals do not make an annual revolution, but often more frequently. When Rhode Island, following the example of Grecian republics, fixed the terms of her representatives at six months, and Connecticut added to those short terms semi-annual sessions of her legislature, each at a different place, for the more convenient and exact representation of the people; and when the factious spoils system spirit of Florence and other medieval republics reduced official terms, first to six, then to four, and finally to two months, they obviously enforced a term tending to a more exact representation than any now provided for in the United States.

-Our longer terms for such offices are justifiable only on the assumption, which they proclaim, that the experience secured by longer public service is more valuable than any ideal exactness in representation. This is an important truth, as bearing upon the proper term of mere ministerial and executive subordinates. It is a truth which senators will do well if they do not longer forget, when they stand up in their places, in the fifth or sixth year of their terms-perhaps long after the majority in the state and legislature which they pretend to represent has been changed since their election-and, in the name of justice and sound policy, demand rotation, removals and short terms on the part of their own subordinates, who represent nothing but the unchanging need of having the constant volume of public work well done, and done in the same way year after year, whichever party is in power, and whatever policy prevails.

-3. The executive department is affected by more complicated reasons. To approve or disapprove legislative enactments is the highest function of governors and presidents. To that extent they are both legislative and representative officers. Next in importance is the duty of those officers to carry into action, in the conduct of executive affairs, the principles and policy which the people approved in their election. This, too, is in a sense a representative function. Much the same reasons, therefore, which require the terms of legislative officers to be short, apply also to presidents and governors; and, in a limited degree, they apply to mayors also. In fixing the term of the president at four years, under our constitution, considerations drawn from his representative function plainly prevailed-must we not say unwisely prevailed?-to the extent that it made his term shorter than that of a senator.

-The constitution fixed the term of no officer in the executive department except that of the president and vice-president. It created no department; yet says the president may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.

Upon this narrow basis, and the precedents of the British cabinet, our cabinet has been reared; and while each of them are equally unrecognized in the constitution and laws (and with us the duty and responsibility are upon the president alone), the cabinet has been, in practice, in both countries, the great central council for advice in regard to all executive action. It is clear, therefore, that the heads of departments, who are to advise him as to his gravest duties, need to have faith in the principles and policy which the president is bound to enforce; and for that reason their tenure of office should depend mainly upon him. There may also be a few other executive officers-foreign ministers sent on special missions involving national policy would be examples-whose peculiar fitness will depend upon their sharing the views of administration, and in all such cases there should clearly be a tenure in the discretion of the president.

-When we go below such officers, we come upon those who not only, upon the theory of the constitution and the laws, but from the very necessities of government, are required to obey legal instructions from those above them to whom they are directly responsible. Each head of a department is clothed by law with the authority and duty of directing the official action, subject to the constitutional power of the president, of all the subordinates of that department. Among all the eighty or more thousands of subordinates standing in graded ranks, from the department secretaries down past great collectors and postmasters to the customs service inspectors, the keepers of light houses and of signal and life-saving stations, there is not one who, according to the laws or sound policy, has any right of advice as to the policy or principles of an administration; not one for whom obedience to legal instructions is not a plain duty; not one whose political opinions are material for good administration; hardly one whose active participation in partisan politics is not a public detriment, tending to neglect of public business and the oppression of the citizen. The duties of these officers are in no sense representative. They are not called upon to act upon any political theory. They perform no duties that depend upon the triumph of political opinions or the success of any party. Whichever party comes into power, whatever party they belong to, their duties are the same. They have no right to regard the political or religious opinions of any citizen in their official action, or need to known them. They do not, like legislators, or town and village officials, meet to consider changing interests and fluctuating politics, but, month after month and year after year, they do, or they [898] should, steadily devote themselves to the same branch of that vast, unchanging public business which, from the smaller officers to the greater, moves on, like brooks and rivers, in an unbroken order and everlasting continuity. Unjustifiable as political indifference is in the citizen, the use of official authority and influence to coerce the action of the private citizen is not less indefensible. We may not, as was found necessary in England, for a hundred years, disfranchise those officials, but we should clearly see, and should make them feel, that they not only need not, but should not, as officials, interfere with party politics or regard political opinions as qualifications for their duties.

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-Before considering what should be the term and tenure of this vast body of federal officials-referred to in the national constitution as inferior officers, and to which a vastly larger number of state and municipal officials holding like relations should be added in our reflections-it will be well to notice some objections which stand in the way of treating the subject upon its own merits. It is declared that any term and tenure which prevents these officers being removed and their successors appointed at the pleasure of the majority, disastrously restricts the freedom and effectiveness of party action, and also deprives them of essential representation in the official life of the country.

-The answer is not difficult. Under our institutions, parties are inevitable and salutary. Their great functions are to arous
e, embody, sustain and carry forward a sound public opinion until it finds fit expression in statutes and executive action. Under these institutions the federal and state legislators, and all who govern in municipalities and towns, are selected by the vote of the majority, which, in itself, but too generally expresses the mere will of the dominant party. In the selection of mayors, governors and presidents, that party majority is still more potential. These two classes of officers, the one wielding all legislative authority, and the other all executive authority, in their united action exert all the power which our institutions give, or a free people can safely confer, for the representation and enforcement of their will. All of these officers may be, and in our practice they generally are, within their respective spheres, the trusted favorites of the dominant party, bound in the double allegiance of gratitude and dependence. Through these two classes of officers the adherents of the dominant party practically make, enforce and repeal laws and ordinances at pleasure, instruct and require obedience from all who hold subordinate positions under them, enforce all principles and guide all policy in obedience to which the vast affairs of the nation, from the light houses and the signal stations to foreign embassies, and the great departments, are conducted. Is not this enough? Have we ever suffered because parties have needed opportunities or influence greater than these? Is not here a sphere broad and grand enough, a power and opportunity dazzling enough, to inspire the patriotism and reward the zeal of any party and of the noblest man who ever led any party in a great nation? Unless, therefore, it is claimed that a party, which can not gain or retain power by adhering to the spirit of the constitution and to common honesty and justice, may strengthen itself by using public authority to debauch and coerce the people-unless it can be shown that the term and tenure of inferior officers should, in the merely selfish interests of parties, be made brief and precarious, so that patronage and the appointing power may be conveniently prostituted as merchandise in the shambles of partisan politics-we may confidently declare that term and tenure alike of inferior officers should be determined quite irrespective of mere party considerations.

-But let us not imagine, because these inferior officers are not representative and are not given large discretionary power, that their term, tenure or relations are not very important. The facts are quite otherwise. The creation of a term of four years for about 3,500 of these offices (to the history of which we shall refer), and the subjection of nearly all of them to a tenure of favoritism and partisanship, within the last forty-five years, contrary to the spirit of the constitution and to the practice of the early statesmen, while working a disastrous revolution in the measure of filling the executive departments, have also exerted a demoralizing influence upon parties and upon all official and political life. It was the short terms and the precarious tenure thus created which made it possible for great parties to levy the expenses of their campaigns, under the name of assessments, upon the humbler officials in the executive service, and to compel them to do the most servile work. It was these political assessments which President Grant prohibited by executive order; which President Hayes declared to be either a gross injustice to the officers or an indirect robbery of the public treasury which President Garfield declared to be shameful, and the source of an electioneering fund which in many cases never gets beyond the pockets of the shyster and the mere camp followers of the party.

It has been these precarious tenures and the habit of removing worthy officials to make places for clamorous favorites and henchmen, which developed the disgraceful acts of patronage mongering and office brokerage, by reason of which office seeking has been made a sort of business, and vast numbers of supernumeraries have been foisted upon the public service. It caused President Garfield to declare one-third of the working hours of senators and representatives to be hardly sufficient to meet the demands in reference to the appointments to office, and that with a judicious system of civil service, the business of the departments could be better done at almost one-half the cost.

In the debates preceding the passage of the civil service reform bill (of Jan. 16, 1883,) for the suppression of such abuses, Senator Dawes, of one party, declared that the existing system of office getting destroys the congressman’s independence and makes him [899] a slave, and Senator Pendleton, of the other party, said, It has debauched public morality and made Guiteau possible. It drives senators and representatives into neglect of their chief duty of legislation, and often makes the support of an administration conditional upon obtaining office for friends.

-At the time of the formation of the federal constitution no human forecast could have taken the measure of such evils in our day. The few officials and the simple administration of the first decades hardly gave a hint of the varied complication and the vast official force we now have. There was $2,000,000 of revenue the first year, under the constitution, against more than $360,000,000 last year. Even as late as the administration of John Quincy Adams, the revenue was not one-fourth as much altogether as the surpluses now annually applied to the reduction of the national debt. The number of officers at the two periods is in about the same ratio. It is hence no matter for surprise that no adequate provisions are found in the constitution concerning the tenure of inferior officers in the executive service. The occasion for surprise is in the fact that with clearer lights, the later generations have created terms and a tenure which have greatly aggravated the consequences of the defects of the original constitution.

-It is by no means an easy matter to decide with precision what would be the most useful tenure in the several parts of the executive service. Many considerations must be estimated, and a broad field of facts must be kept in view. We have only to consider the great variety of officials to see, that, to most of all the general rules we may lay down there must be some exceptions. The officers in the state department, for example, range from the secretary and the ambassadors to the consular clerks and the copyists. The department of the treasury has at Washington about 3,000 subordinates; to which must be added more than two hundred collectors of internal and customs revenue, the surveyors, the naval officers, the officers of the mints-and all their subordinates-the light house, the life saving, the hospital and the revenue marine services, and many more isolated officials. In the department of the interior there are the pension and patent office service, the land office, the Indian service, the bureaus of education and agriculture, and various other officers. The war and navy departments have civil subordinates of many grades, widely separated. More than 48,000 postmasters, with all their subordinates and various others, with peculiar duties, of which the railroad and steamboat mail service and the complicated mail contract system are examples, are under the postmaster general. The department of justice, with its district attorneys, marshals and election supervisors and their subordinates, the officers of the District of Columbia and of the territories, are also to be added, before we get a general view of the vast number and variety of the officials under the executive.

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-The authority to appoint the higher officers, subject to confirmation by the senate, is given by the constitution to the president, with the power, as we have seen, in congress to vest the appointment of inferior officers in heads of departments. Beyond declaring that all civil officers shall be rem
oved on impeachment and conviction of treason, bribery and other high crimes and misdemeanors, the constitution leaves the stupendous power of removal to mere implication. It has, however, been authoritatively decided, and the constant practice has been (save as qualified of late by the tenure of office acts), that the power of removal belongs to the president as an incident to the power of appointment. The constitution provides no term, and, otherwise than by implication, no tenure for any one of these inferior officers. And prior to a law of 1820, to which further reference will be made, no term or tenure was provided by law for any of them, with the single and peculiar exception of marshals. The tenure of usage had been that of combined efficiency and good behavior. (See REMOVALS FROM OFFICE, CONFIRMATION BY THE SENATE.) It was left for the politicians of later days to discover and to teach, that, to select public servants for their merits, and to retain them because they continued meritorious, are un-American.

That teaching has been the cause of a pernicious practice in its spirit.

-Let us glance at the causes and progress of this great change as bearing upon terms and tenure of office. Aaron Burr early laid the foundations of the spoils system; and, with the aid of Van Buren, his most apt and distinguished disciple, that system had been made potential in New York, several years previous to 1820. It required short terms, and partisan tests for office. It demanded a tenure at the pleasure of the official superior, and required that superior to be a partisan leader. It made political opinions a ground of appointments and removals, and enforced servile obedience to chieftains on the part of all officials. Before 1820, Gov. Clinton, of New York, complained, in a message, of an organized and disciplined corps of federal officials interfering in state elections.

Tammany Hall was then becoming a political power. New York politics had already become so notoriously unscrupulous as to attract almost as much attention as during the present decade. Jackson, contriving how to reach the presidential chair, and affecting the character of a non-partisan, said to a New Yorker, I am no politician, but if I were a politician, I would be a New York politician.

Van Buren soon made him one.

-The spoils system spirit, thus early reduced to practice in New York, was being slowly developed in other parts of the Union. The creed of the spoilsmen had not been avowed, but the men who were first to proclaim it were leading politicians before 1820. In that year, William H. Crawford, secretary of the treasury, was a presidential candidate, and Van Buren, who was to come into the senate in 1821-even then an aspirant for the presidency-was Crawford’s supporter. They were unsurpassed for their skillful use of patronage. Both were able to [900] see that if the terms of the inferior officers were reduced to four years, there would be more patronage to dispose of, and an easier introduction of the New York system.

-On April 20, 1820, about thirty days before the adjournment of congress, a bill, drawn by Mr. Crawford, was reported in the senate, which created a term of four years for district attorneys, collectors, naval officers, navy agents, surveyors of customs, paymasters, and for several other less important officers. Mr. Adams says the object of the law was to gain support for Crawford for the presidency. The officers thus subjected to the new term are said to have become ardent Crawfordites.

This was the first fixed term for any such office. The bill further declared that the holdings of all such officers whose commissions were dated Sept. 30, 1814, should expire on the day and month of their date next after Sept. 30, 1820. The expiration of other holdings was fixed for a year later. The bill was thus retroactive, and it made the terms expire on the eve of the presidential election. There was to be a presidential election in 1824, when Crawford and Jackson were to be leading candidates. How largely and promptly this change would add to the patronage of the treasury, where Mr. Crawford presided, need not be pointed out.

-But these were hardly the most ominous provisions of the bill; for, taking the side of the partisan spoilsmen, against the approved doctrines of Madison, and the practice of every president, it declared that those officers shall be removable at pleasure.

Here was rotation legalized for the sake of rotation. Here was the first demand of surrender ever made upon the general government in the spirit of the New York spoils system. Here was practically a revolution in the term and tenure of office; an emphatic degradation of the standard according to which the fate of every one of these officers was to be determined. Without debate, in silence, suddenly, almost stealthily, this disastrous bill was carried through both houses. Mr. Adams, then secretary of state, says President Monroe signed the bill without perceiving its true character. The avowed reason, or rather the apology, for the new policy, was that it would remove unworthy officials; the speciousness of which appears in the facts that the tenures of all in office, worthy and unworthy alike, were, without inquiry, severed absolutely; and nothing but official pleasure was to protect the most meritorious in the future. There was no showing of delinquencies; no charge that the president could not or would not remove unworthy officials, not a word of discussion, not a record of votes, on this revolutionary bill!

-But there were statesmen who foresaw the disastrous consequences. On Nov. 20, 1820, Mr. Jefferson, in a letter to Madison, said of the law that it saps the constitutional and salutary functions of the president, and introduces a principle of intrigue and corruption which will soon leaven the mass, not only of senators, but of citizens. * * It will keep in constant excitement all the hungry cormorants for office; render them, as well as those in place, sycophants to their senators, * * and make of them, what all executive directories become, mere sinks of corruption and faction. It must have been one of the midnight signatures of the president, when he had no time to consider or even to read the law.

Madison replied in the same spirit. When Mr. Calhoun, then secretary of war, heard of the sudden passage of the bill, he declared it one of the most dangerous ever passed, and that it would work a revolution.

The dangerous consequences of the new policy began very soon to appear. Five years after the passage of the act of 1820, an able committee of the senate, with Mr. Macon at the head-who never aided a relative or henchman to an office-made an earnest report in favor of its repeal. But the spoils system had secretly made progress. Vain, indeed, was it to attempt to repeal a law which had already become a bulwark of the new system, in the spirit of which Jackson, the military hero of the day, and Van Buren, the partisan chieftain of New York and the greatest party manipulator of his time, were working together for the presidency.

-So rapidly did the spirit of revolution advance, that Jackson’s first message declared rotation a leading principle in the republican creed.

Ignoring the true rule that every man’s claim upon office is in proportion to his fitness to fill it, the same message proclaimed the communistic doctrine that every man has an equal right to office; which, by his removals and appointments, was interpreted to mean, in practice, that no man but a partisan servile to himself had any such right which a president was bound to respect. Three years later, in 1832, Senator Marcy, in the senate of the United States, expounded the spirit of the new four years term spoils system in these memorable words:

When they [New York politicians] are contending for victory, they avow the intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they c
laim, as a matter of right, the advantages of success. They see nothing wrong in the rule that to the victor belong the spoils of the enemy.

The new system was, therefore, simply this: no term for more than four years; the tenure, removals at pleasure; office and salaries the spoils of party warfare; rotation in order to give offices to a