gress "to make rules for the government and regulation of the land and naval forces." (See Report of Senate Committee on Military Affairs, April 25, 1822, Niles Register, vol. 22, p. 418; Debate on civil service, in House of Representatives, May, 1870.) Unless controlled by authority, I should not take this power to embrace the subject of appointments, and I only refer to it for the purpose of showing that the claim made for Congress in relation to military and naval appointments has been put on grounds not applicable to civil appointments. It more concerns us to ascertain what is the constitutional rule than to learn whether that rule has always been observed. Nineteen violations of the Constitution do not justify a twentieth. The present question, in its essence, is, whether the appointing power belongs to Congress, or to those named in the Constitution as the depositaries of that power; for, if Congress can ordain that an office shall be filled by the person whom the examiners pronounce the fittest, it can ordain that the office shall be filled by the person whom Congress judges the fittest, and may directly appoint its favorite. The constitutional aspect of the matter is not changed by the suggestion that Congress might prescribe the principles on which the examiners should judge; for it might preserive the principles on which itself should judge, and might vary and apply them at pleasure. The objections would not be removed by interposing the formal action of the constitutional appointing power. An enactment that the President shall appoint to a certain office the person adjudged by the examiners to be the fittest is not different in constitutional principle from an enactment that he shall appoint John Doe to that office. In neither case are his judgment and will called into exercise. The appointment is effected in one case by the judgment and will of the examiners, under authority from Congress, and in the other case by the judgment and will of Congress. In the cases particularly propounded by the commission, if the President, authorized by an act of Congress, should prescribe that the courts and heads of Departments should always appoint the persons named by a civil service board, that board would virtually be the appointing power, and that act of Congress would be the foundation of its authority. That Congress cannot give such authority, I think, is manifest. It has been suggested that the appointments now vested in the courts, and in the heads of Departments, could be transferred by Congress to the President, and that he could appoint according to the result of a competitive test, certified by an examining board. To this mode of selection, if discretionary with the President, there is no constitutional objection, and the same mode, under a similar condition, could be used by the various appointing powers under present laws; it being always understood that the appointing power resorts to this test as a way of finding out the fittest person for the vacant office, and is not bound to abide by it if satisfied that the appointment of another would best serve the public interests. In short, the test of a competitive examination may be resorted to in order to inform the conscience of the appointing power, but cannot be made legally conclusive upon that power against its own judgment and will. The other question proposed by the commissioners is this: May the President, under the act by which this board is organized, regulate the exercise of the appointing power now vested in the heads of Departments, or in the courts of law, so as to restrict appointments to a class of persons whose qualifications or fitness shall have been determined by an examination instituted independent of the appointing power? My opinion is that he may. Though the appointing power alone can designate an individual for an office, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications, and require that the designation shall be made out of a class of persons ascertained by proper tests to have those qualifications; and it is not necessary that the judges in the tests should be chosen by the appointing power. Attorney General Legare has given an opinion upon a question similar in principle. Discussing the subject of appointment of inspectors of customs by the Secretary of the Treasury, he considers that it would "be a fair constitutional exercise of the power of Congress to require that the Secretary should make an appointment out of a certain number of nominees proposed by a collector." (4 Opins., 164.) The act under which the present civil service commission has been organized gives the President authority "to prescribe such rules and reg ulations for the admission of persons into the civil service of the United States as will best promote the efficiency thereof;" and this very ample authority will certainly embrace the right to require that the persons admitted into the service shall have been found qualified by competent examiners. It has been argued that a right in Congress to limit in the least the field of selection implies a right to carry on the contracting process to the designation of a particular individual. But I do not think this a fair conclusion. Congress could require that officers shall be of American citizenship, or of a certain age; that judges should be of the legal profession and of a certain standing in the profession; and still leave room to the appointing power for the exercise of its own judgment and will; and I am not prepared to affirm that, to go further, and require that the selection shall be made from persons found by an examining board to be qualified in such particulars as diligence, scholarship, integ rity, good manners, and attachment to the Government, would impose an unconstitutional limitation on the appointing power. It would still have a reasonable scope for its own judgment and will. But it may be asked At what point must the contracting process stop? I confess my inability to answer. But the difficulty of drawing a line between such limitations as are, and such as are not, allowed by the Constitution, is no proof that both classes do not exist. In constitutional and legal inqui ries right or wrong is often a question of degree. Yet it is impossible to tell precisely where in the scale right ceases and wrong begins. Questions of excessive bail, cruel punishments, excessive damages, and reasonable doubts, are familiar instances. In the matter now in question it is not supposable that Congress or the President would require of candidates for office qualifications unattainable by a sufficient number to afford ample room for choice. Very respectfully, your obedient servant, |