Delphi complete works of.., p.439
Delphi Complete Works of Stephen Leacock, page 439
In all governments, even though there may exist one person of supreme executive power, it is necessary to divide up the practical conduct of the administration into a number of departments. The division adopted in four of the leading governments of the world is shown in illustrative form in the table at the end of the present chapter. It will be seen that certain great departments of business — the management of foreign affairs, of the army, of the navy, and of the finances — are common to all. The American Secretary of State corresponds roughly to what is elsewhere called the Secretary or Minister of Foreign Affairs. The names of most of the remaining cabinet officers indicate approximately the functions to be performed. In addition to the usual officers, each country finds it necessary to establish certain special departments to correspond to its peculiar needs. The office of the British Colonial Secretary and that of the Secretary for India are examples of this. In “parliamentary” governments, too, it is found useful to include in the cabinet group several officers who have either no departmental duties or duties of only a nominal character, and are thus free to aid in the general political control. In Great Britain this is effected by means of sinecure offices almost free from actual administrative duties, such as the positions of the First Lord of the Treasury (generally held by the Premier), the Lord Privy Seal, the Chancellor of the Duchy of Lancaster, etc. In Italy, Canada, and other places, the practice is adopted of admitting to the cabinet ministers “without portfolio.”
Below these heads of departments comes the general body of executive officers that form what is called the civil service. The relation of the members of the civil service to the heads of the government, their appointment, dismissal, and tenure of office, is one of the difficult problems of present politics. It will be well, therefore, briefly to indicate the existing status and regulation of the civil service in Great Britain and the United States. The case of Great Britain may best be discussed first.
The British civil service comprises a staff of about 80,000 officials. This includes the officers of the royal household, a large number of officials connected with the foreign, home, and colonial offices, the admiralty, the treasury, etc., officials serving under the local government board, the patent office, the emigration office, the diplomatic and consular corps, collectors of customs and excise, postmasters, etc. The fundamental principle in the conduct of the service thus constituted is permanence in office, and the dissociation of tenure of office from the changes of government caused by the cabinet system. The only officers of a political complexion are the heads of the departments, together with certain chief secretaries and assistants who are known collectively as the ministry, and who number in all about fifty persons. Thus, for example, the Home Secretary (principal secretary of state for home affairs) has as his subordinate a “parliamentary under-secretary,” who, like himself, is a member of the ministry, and resigns office on the defeat of the government. He has also a “permanent under-secretary,” who is not a political officer, and who is at the head of the standing staff of clerks, superintendents, inspectors, and other officials of the department. A similar plan, though the official titles vary, is in use in the Foreign Office, Colonial Office, India Office, War Office, the Admiralty, the Treasury, the Board of Trade, the Local Government Board, and the Post Office. The permanent tenure of office contributes greatly to the efficiency and integrity of the British civil service. Its origin is to be traced to the fact that in earlier times public office in England was a species of real property held by the incumbent for life or in fee. There still exist in the British civil service a few offices which are held, like the judicial positions, for life or good conduct. In the case of the great majority of official positions in the civil service the crown retains the right of dismissal. This right is exercised, however, only in cases of incompetence or dereliction of duty, and never for political reasons or to make room for a necessitous office-seeker. For entry into the service use is made, in most of the British departments, of the principle of open competition.
In the United States the method of appointment and dismissal in the executive branch of the federal government has proved a matter of serious national concern. A very few of its officers hold their posts, as do the federal judiciary, on a life tenure. Some offices, as, for example, the cabinet positions, are held during the pleasure of the President. But in the case of the great majority of positions, the appointment is made for a stated term of years, usually four. In the actual operation of the government, the difficulty centres around the questions of dismissal from office and reappointment at the expiration of the statutory term. It is clearly to be desired that competent officials should be left undisturbed in their positions, whatever be their political opinions. Particularly is this the case with such positions as those in the customs service, the postal service, etc., where the duties to be performed are of a more or less routine nature, and cannot be said to depend for their proper performance on harmony of political opinion between the head of the department and his subordinates. On the other hand, there is always the fear that the too great certainty of continuance in office may lead to official stagnation and a perfunctory discharge of duty. The federal Constitution is not explicit on the subject of dismissal from office. The extent of the right of dismissal is reached by inference from the constitutional provisions in regard to appointment, and from the obvious exigencies of the case. The power of appointment in the case of ambassadors, other public ministers and consuls, and judges of the Supreme Court, lies with the President, subject to ratification by the Senate; but “the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, or in the courts of law, or in the heads of departments.” Following the decision of the courts, the power of dismissal is incident to the power of appointment. Congress, it is true, during its conflict with President Johnson, undertook to limit the executive power of removal by passing the Tenure of Office acts (1867 and 1869), which called for the Senate’s ratification of removal. The repeal of these acts (1887) put the matter on the same constitutional footing as before.
During the first thirty years of the history of the Union the power of dismissal was not used as a means of finding positions for party adherents. Nearly all the federal officials held office during the pleasure of the executive, and dismissal, except for cause, was not contemplated. Madison spoke of it as unconstitutional. The act of 1820, prescribing a four years’ term of office (still subject to removal at will) for collectors of customs and many other federal officers, offered a starting-point for a new system. With the advent of President Jackson (1829) was inaugurated the “spoils system.” Wholesale removals from office were made, and the places thus made vacant became the prizes of the President’s political followers. This disastrous precedent thus established was followed by later administrations, until the “clean sweep” of offices became a recurrent feature of American politics. Not the worst feature of the system has been the frequent incompetence of the persons appointed for political reasons to the vacant offices.
The obvious injustice of the “spoils system” and the inefficiency thereby occasioned in the public service led to a movement in favor of civil service reform, which culminated in the Civil Service Act of 1883. The purpose of this act is to separate as far as possible the civil service from politics, and to introduce the system of appointments by merit based on competitive examinations. The act establishes a body of three commissioners whose duty it is, at the request of the President, to aid him in drawing up rules directed towards the following objects that open competitive examinations shall be held in all branches of the civil service when classified for the purpose, and that appointments to office shall be made from those applicants graded highest; that appointments at Washington shall be apportioned among the states according to population; that no person in the public service shall be under obligation to contribute to any political fund, nor shall any person in the public service use his authority to coerce the political action of any other person. The act does not call for the classification of persons appointed by the President and ratified by the Senate, nor of those employed merely as laborers. There are also a large number of positions which are, for various reasons, excepted from the rules; the fourth-class postmasters, who number nearly 65,000, being of this class. Of the 310,000 posts in the executive civil service, over one half are now subject to competitive examination. It is evident that where new appointments can be made only on a basis of certified fitness, the tendency to deliberately create vacancies will diminish, and competent officials will invariably be retained in office. Not the least merit of the Civil Service Act is that it helps to educate opinion. It is only by the growth of a vigorous public feeling in condemnation of the spoils system that the evil can be eradicated.
READINGS SUGGESTED
Bodley, J. E. C, France (1898), vol. i, bk. ii, chap. ii (The Chief of the State).
Lowell, A. L., Governments and Parties in Continental Europe (1897), vol. i, chap. ii.
Dupriez, Les Ministres dans les Principaux Pays d’Europe, et d’Amérique (1892), vol. i, part v, vol. ii, part vi.
Burgess, J. W., Political Science and Constitutional Law (1898), part ii, bk. iii, division iii, chap. iii, p-263.
FURTHER AUTHORITIES
Burgess, J. W., Political Science and Constitutional Law (1898), vol. ii.
Low, S., Governance of England (1904).
Hart, A. B., Actual Government (1903).
Ransome, C., Rise of Constitutional Government in England (1883).
Montesquieu, Esprit des Lois (1748).
Moran, T. F., The English Government (1903).
Anson, Sir W., The Law and Custom of the Constitution, part i (1896).
Ridges, E. W., Constitutional Law of England (1905).
Stanwood, E., History of the Presidency (1901).
Reports of United States Civil Service Commission.
Ford, H. L., Rise and Growth of American Politics (1900).
COMPARATIVE VIEW OF EXECUTIVE DEPARTMENTS.
The United States.
The United Kingdom.
France (1902).
Italy.
1. Secretary of State.
2. Secretary of the Treasury.
3. Secretary of War.
4. Attorney-General.
5. Postmaster-General.
6. Secretary of the Navy.
7. Secretary of the Interior.
8. Secretary of Agriculture.
9. Secretary of Commerce and Labor.
1. Secretary of State for Foreign Affairs.
2. Chancellor of the Exchequer.
3. Secretary of State for War.
4. Lord High Chancellor.
5. Postmaster-General.
6. First Lord of the Admiralty.
7. Secretary of State for Home Affairs.
8. President of the Board of Agriculture and Fisheries.
9. Secretary of State for the Colonies.
10. Secretary of State for India.
11. President of the Local Government Board.
12. President of the Board of Trade.
SINECURE OFFICES.
Lord President of the Council.
Lord Privy Seal.
First Lord of the Treasury.
1. Minister of Foreign Affairs.
2. Minister of Finance.
3. Minister of War.
4. Minister of Justice.
5. Minister of Commerce.
6. Minister of Marine.
7. Minister of the Interior.
8. Minister of Agriculture.
9. Minister of Colonies.
10. Minister of Public Instruction.
11. Minister of Public Works.
1. Minister of Foreign Affairs.
2. {Minister of the Treasury.
{Minister of Finance.
3. Minister of War.
4. Minister of Justice and Ecclesiastical Affairs.
5. Minister of Posts and Telegraphs.
6. Minister of Marine.
7. Minister of Interior.
8. Minister of Commerce, Industry, and Agriculture.
9. Minister of Public Instruction.
10. Minister of Public Works.
CHAPTER IV. THE JUDICIARY AND THE ELECTORATE
1. THE JUDICIAL Office and its Tenure. — 2. The Relation of the Courts to the Executive and to the Legislature. — 3. Administrative Law and Administrative Courts. — 4. The Electorate: Evolution of So-called Universal Suffrage; the Present Suffrage in Leading Countries. — 5. Criticism of Existing Systems; the Case of Women, of Negroes, etc. — 6. Representation of Minorities.
1. The Judicial Office and its Tenure. The judicial branch of the government, though less numerous than the executive (in its wider sense), occupies a position no less important in the organization of the state. The prime function of the judiciary, performed in all states, is to decide upon the application of the existing law in individual cases. The essential requisite in a judge is consequently an exact knowledge of the law. The work of the judiciary is thus a highly technical function, demanding for its proper accomplishment the trained intellect of a specialist. Whether the law is right or wrong, just or unjust, is a secondary matter: the duty of the judge is to adjudicate upon the law as it is, and not upon the law as it ought to be. It is far better that a bad law should work injustice in an individual instance than that a judge by deliberately refusing to recognize it should impair the principle of law itself.
In actual fact, however, judicial decisions are far more than merely declaratory in their nature; they contain a constructive element and serve to expand the existing law into a more and more detailed interpretation. For no statute can be so minute in its provisions as to contemplate all possible cases, and to admit always of only one construction. Where the letter of the law is silent, the judge is called upon to attach to it the meaning which may be considered “reasonable,” that is to say, which is consistent with the general principles of morality and public policy. In countries such as England and the United States this principle is carried very far; for here the decisions once given are viewed as precedents for future ones. Such precedents are not, of course, absolutely binding, but the presumption, where identity of circumstances can be established, is vastly in their favor. The process of adjudication thus amounts to a supplemental form of legislation, and a large part of existing law is said to be “made” by the judges.
The nature of judicial functions, viewed in this light, clearly demands that the judiciary must be as impartial as is humanly possible. Not only must their own pecuniary interests be unaffected by the legal decisions given by them, but they must be removed entirely from the play of political interests. It is for this reason that in a well-ordered government the judiciary should be adequately paid by a compensation not affected by the number and nature of their decisions, and should enjoy permanent tenure of office and be independent of the good will or ill will of the other branches of the government. This object is adequately effected in the national government of the United States; the Constitution (art. iii, § 1) prescribes that “the judges, both of the supreme and the inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.” The same is true in the case of Great Britain. The English judges until the close of the seventeenth century held their office at the pleasure of the crown, a position obviously inconsistent with impartiality. The Act of Settlement (1701) declares that “judges’ commissions shall be quamdiu se bene gesserint, and their salaries ascertained and established.” Removal can only be made “upon the address of both houses of Parliament.” The position of the judiciary thus established has never been altered. The system has also been adopted in the British colonies. The permanent and independent tenure of the judges thus secured in the United States and in the British Empire, and found also in France, Prussia, and other leading countries is unfortunately not universal. The commonwealths of the United States are a notable exception. In many of these a false conception of the principle of popular sovereignty, and the vicious influence of the doctrine of “rotation in office” has led to the election of the judges by the people for a stated term of years. In some states, it is true, the judges are nominated by the governor or elected by the legislature; in some also they hold office during good behavior. But the majority of judicial positions in the state governments are held by election for a stated term, often as short as two years. Such an institution cannot be too strongly condemned. It exposes the judges to the influence of political and personal motives in their conduct on the bench, impairs the impartiality of their decisions, and inevitably lowers the character of the judicial body.
