Not to the Victors.

BY JUDGE WM. THOMSON.

Gentlemen of the Kansas State Bar Association:

The founders of our nationality, built and planned, with the conception of stability and permanence.

These were to be attained by the action united and continuous -of three separate and distinctive forces. These were intended, each within its sphere, to operate harmoniously, neither hindering, usurping, nor invading the functions of the other. The plan apparently perfect in its conception, has in its execution like many things human revealed some results, unexpected and unforeseen.

It is not my purpose to enter with elaboration and detail into a discursive lecture, upon the constitution of the United States and the three departments of Government, provided for by that instrument, but only, in passing, to call attention to the apparent abandonment, by the executive branch, of the duties imposed upon it, and the assumption of these by the legislative, in violation of the letter and the spirit.

The second section of the second article of that instrument provides: that the President of the United States, "shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but congress may, by law, 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."

A hasty glance, at these provisions, reveals, that neither the Senate nor Congress, may nominate, or appoint any of the officers named therein, or to be created by law. The whole power, given to the Senate, was to advise and yield, or withhold assent, to the appointment of any one named by the President. The Senate, doubtless, in the early days of the Republic, kept

strictly within its own province. As time rolled on, the selfish desires of ambitious members of that body, in order to increase their power and manifold their influence, directed and controlled.

At length, it came to pass that there was an unwritten law, that the consent of the senatorial delegation from any state, was prerequisite to the confirmation, by the Senate, of a presidential nomination for appointment from such state, if such delegation were in accord, politically, with the chief magistrate.

The duty of the Senate, to advise, became, practically, the act of the senatorial representation in any given instance, of a single state, which act was of governing an imperious force. The centralization of this power into the hands of, at most, two senators, and sometimes of only one, soon bore its legitimate fruitage, and glaringly reveals a real departure from the spirit, if not from the letter, of the constitution.

Thus, the senators came to regard it as a rightful patronage, appertaining and belonging to them, the appointment to office of residents of their respective states, whose names were suggested by them, to the executive. If thereafter, such persons were not nominated by the President, there was no confirmation. True, this condition was not brought about without a struggle, for within the memory of my hearers, one who wore the toga from the Empire state, resigned his seat because the President chose to disregard the unwritten law and with persistence and firmness, nominated a person undesirable to that gentleman.

The interpretation of the constitution, put upon it by its execution in the Senate, became "that the Senate shall nominate and appoint:" for the control exercised was so powerful, that except in the rarest instance, such a result in reality followed. The next step of further departure from the organic law, when once the first had been taken, might have been anticipated.

While the members of the lower house were given no constitutional voice, in the appointment, or selection of any officers, except for their own legislative body, they have been permitted, by the Senate to share in the distribution of the patronage; a power the latter had usurped. This was neither an act of generosity nor of grace. The senators were not unmindful, that they were debtors for their places, to the legislatures of their respective states. These legislatures were simply the aggregated results of the political victories of the congressional representative districts. A representative, therefore, was considered by a Senator from his own state, as one of the factors of his own success, and must be reckoned with by a proportional division of power over the smaller and less desirable offices. The mere formality of seeking the sanction of the President was indeed observed, for no other avenue was open for the distribution of the patronage, thus controlled and divided. The heads of departments, upon whom devolved the appointment of employees, were under the fullest dominion of the congressmen, by whose influence themselves had been appointed, and selected subordinates, at the dictation of their benefactors.

Out of such conditions, grew and flourished a system:-a system whose baleful effects upon good government were appalling. Under its regime, none might share in the appointive offices, whose credentials did not show a purchase right, by efficient party service to some chief, who assumed for the time, the power and authority of a dictator. Assistance at the conventions, or at the polls, were considerations which opened the gates of favor. The payment of assessments demanded with the boldness and brazen effrontery of a highwayman, from those already in office, was a condition precedent to a continuance in the public service. Competency, if united to opposite political faith, was rigorously barred out. Offices and places unneeded, were created and multiplied, to reward those, whose riotous clamour must be appeased. Importunate inefficiency, in the race for official recognition, easily left merit at the post. Favored unfitness invariably distanced worth. Nor was ignorance a handicap to success. The public conscience had become perverted; nor were the people shocked, when partisan service, was the only commendation for the successful seeker of a public appointment. In the Belknap impeachment trial, Senator Hoar did not indulge in extravagant flights of fancy when he said: "I have heard in the highest places, the shameless doctrine avowed, by men grown old in office, that the true way by which power should be gained in this republic, is to bribe the people with the offices created for their service; and the true end for which it should be used when gained, is the promotion of selfish ambition, and the gratification of personal revenge."

Removals from office, for no other reason than to make room for a favorite, were flagrant, and excited neither comment nor criticism. A collector, at the port of New York, celebrated his advent to power every third day, by the creation of a vacancy among employees of his own party, in which, was soon installed another, who had assisted in a factional quarrel within his own party lines. The successor of this collector, removed eight hundred and thirty out of his nine hundred and three subordinates, at the rate of three every four days. The next incumbent of this office removed five hundred and ten, out of eight hundred and ninety-two, and his successor kept up the reputation of the position by striking an average of three removals in every five days of his incumbency. So, during a period of five years in succession, collectors, all belonging to the same party, made removals for the purpose of patronage, at a single office, of sixteen hundred and seventy-eight subordinates in fifteen hundred and sixty-five days. This is but an instance. Consider that, in every department of the civil service, this same system, unchecked and uncontrolled, swayed and dominated, the magnitude of the evils resulting, may be judged and appreciated.

In comparison with this magnificent display of power, the exercise of authority by Washington and John Adams seems puerile, in occupying eight years each in the removal by each of nine subordinates. Jefferson arose to the occasion by dispensing with thirty-nine, and Madison contented himself with five. Monroe equaled Washington with nine, and John Quincy Adams

exhausted himself with two. But it was given to Jackson, the patron saint of the spoilsmen, at a single bound, to set the pace a rate of dizzy speed in those days but highly surpassed by his more modern emulators. In the first year alone, he made seven hundred and thirty-four vacancies which were coveted by his enthusiastic followers. His reign was made historic, by the speech of Senator Marcy of New York, who, referring to the politicians of his day and especially of his own state, said: "When they 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 claim 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."

There is no transcendent strangeness, that this avowal, proceeded from a senator from New York, when Hammond declares that, in its early politics "party spirit had raged in this, more than in any other state of the Union." Burr asserted, "the people at the elections were to be managed by the same rules of discipline as the soldiers of an army; that a few leaders were to think for the masses; and that the latter were to implicitly obey their leaders. He had therefore great confidence in the machinery of a party." And so the evils of this system, mercenary and piratical, grew and flourished at the change of every administration. Thousands and thousands, took up their pilgrimage as to a Mecca to press their own claims or of some partisan, sometimes with imperious insolence, and again with piteous supplication, not because of any merit in the applicant, but as his share of the spoils of a prostrate foe, and of right the victor's.

The time of public officers, consumed in interviews with this mob of solicitations, and in the creation of vacancies, when search for them was unrewarded, was enormous. "Congressmen," said Garfield, “have become the dispensers, sometimes the brokers, of patronage. One-third of the working hours of senators and representatives is hardly sufficient, to meet the demands made upon them, in reference to appointments to office." And again: "The present system invades the independence of the executive, and makes, him less responsible, for the character of his appointments; it impairs the efficiency of the legislator, by diverting him from the proper sphere of his duty, and involving him in the intrigues of the aspirants for office." Again he declared, "We press such appointments upon the departments; we crowd the doors; senators and representatives throng the bureaus and offices, until the public business is obstructed; the patience of the officers is worn out; and sometimes for fear of losing their places by our influence they at last give way and appoint men not because they are fit for the position but because we ask it."

Reliable sources inform us, that afterwards, during his presidency, at least one-third of Garfield's time was absorbed by applicants for office; and that during a long period six-sevenths of the calls made upon one of his secretaries, were for office seeking.

In addition to the time thus lost to the nation's service, the strain upon the

official was a constant and exhaustive drain upon his strength, worthy of more profitable direction. Turning the leaves a little further back in our history, we learn, that in the month of April eighteen hundred and sixty-one ---a season fraught with the greatest of perils after the fleet intended for Sumter had put out to sea, President Lincoln again, during the brief respite, set himself to the task of making the new appointments. The scene at Washington, is so vividly portrayed, by Nicholay and Hay, whose opportunities for accurate, and exact observation were unsurpassed, that I am constrained, to reproduce their own pen picture.

"The city was full of strangers; the White House full of applicants from the north. At any hour of the day, one might see at the outer door, and on the stair case, one file going, one file coming. In the ante room, and in the broad corridor adjoining the President's office, there was a restless and persistent crowd ten, twenty, sometimes fifty, varying with the day and hour, each one, in pursuit of one of the many crumbs of official patronage. They walked the floor; they talked in groups; they scowled at every arrival, and blessed every departure; they wrangled with the doorkeepers for right of entrance; they intrigued with them for surreptitious chances; they crowded forward to get even as much as an instant's glance through the half opened door into the executive chamber; they besieged the representatives and senators, who had the privilege of precedence; they glared with envy, and grumbled with jealousy, at the cabinet ministers, who, by right and usage, pushed through the throng, and walked, unquestioned, through the doors. At that day, the arrangement of the rooms compelled the President to pass through the corridor, and the midst of the throng, when he went to his meals in the other end of the executive mansion, and thus once or twice a day, the waiting expectant, would be rewarded by the chance of speaking a word or handing a paper direct to the President himself; a chance which the more bold and persistent were not slow to improve. At first Lincoln bore it all with admirable fortitude acquired in western political campaigns. But two weeks of this experience, on the trip from Springfield to Washington, and six weeks more of such beleaguering in the executive office, began to tell upon his nerves. What with the Sumter discussion, the rebel negotiations, the diplomatic correspondence, he had become worked into a mental strain and irritation that made him feel like a prisoner behind the executive doors, and the audible and unending tramp of the applicants outside, impressed him like an army of jailors."

For further information, delve into the reports of committees of investigation, and of the various governmental departments, so uninviting and repellant to the average seeker of truth and your labors shall not go unrewarded.

A senatorial committee, in eighteen hundred and eighty-two, informs us "that the President is compelled to give daily audience to those who personally seek place, or to the army of those who back them. He is to do what some predecessor of his has left undone; or undo what others before him have