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John M. Binckley to T. A. Jenckes, 24 January 1868

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January 24, 1868. Hon. T. A. Jenckes, House of Representatives. Sir: I had the honor to receive a Copy of the Circular issued by authority of the Joint Select Committee of Congress on Retrenchment, containing questions numbered from 1 to 37 inclusive, and requesting me, at my earliest convenience, to return my answers thereto in writing. I perceive that the questions from No. 14 to the last, were framed for answer by officials having a corps of subordinates, in their character as head or chief of a district office, or bureau. In this office but a small number of persons are employed, and the methods of business conform rather to the plan of a single office, of which the Attorney General is assisted in, rather than relieved from, the management, by his principal subordinate. The Head of this Department has, however, suggested that it would be pertinent to the object of the circular for a response to each question to reach the Committee—and I am accordingly instructed to proceed as if the subordinate force of this Office were responsible primarily to me. The following answers are designated, in their order, by the respective numbers of the corresponding questions:
  • 1. I am in the civil service of the United States, in the capacity of Assistant Attorney General.
  • 2. I entered upon the duties of my office on the 1st June, 1867.
  • 3. I had served as the Law Clerk of the Attorney General's office, up to my present appointment, from the 15th October, 1866.—Also, from the 15th December, 1853, up to the 30th June, 1861, I served in the General Land Office, first as a temporary, and afterward, as a permanent clerk.
  • 4. Before my appointment to my present office, I was a lawyer. To some extent I was a paid contributor to the magazines, and had for some months, ending in the spring of 1866, been the editor of the "National Intelligencer". In my youth, before my first entering the public service, I had not adopted a permanent occupation.
  • 5. I have not been educated at a college. I was educated by my parents, and by solitary study.
  • 6. I was informed in 1855 that I had been examined by a Board—but having, at the time, mistaken the occasion for a casual conversation with some gentlemen, I am unable to recall any particulars of it. With this exception, which was during my incumbency as a clerk in the Land Office, I have never been examined for the purpose of ascertaining whether I was qualified for office.
  • 7. On what evidence of fitness I was originally employed in the Land Office, I have no information. The evidence on which I was afterwards appointed a permanent clerk, was, I presume, accurately stated to me by the late Dr. Frailey, who was then the Chief Clerk of that office. He said that he had taken upon himself, without consulting any other person, to procure my services, because he had found them valuable to the public business. See the next answer.
  • 8. I was appointed to my present office by Mr. Attorney General Stanbery. He gave me to understand that his selection of me was his own exclusive act, founded on his actual experience of my qualifications in the office of Law Clerk, and his private judgment of my personal and professional fitness. This was said when he tendered the appointment, and was, as far as I know, the first occasion on which the subject was ever mentioned by any person. I had not aspired to the station. In further answer to this and the preceeding question, I add that, for my appointment to the post of Law Clerk, then a new office, no application was made, though I was introduced to Mr. Stanbery by Henry Beard, Esq.—on which occasion, in response to a casual interrogatory, I confessed myself a office-seeker. The office, however, which I sought was that of Chief Clerk of the General Land Office, a post in which I supposed myself qualified, by experience, to be useful. Subsequently, I sent to Mr. Stanbery a printed copy of a law brief, as some evidence of my knowledge of public land litigation; and, as far as I know, no other material evidence of qualification was before him, when he bestowed the office of Law Clerk upon me, as I presume, without the mention of my name to him by any individual of political note.
  • 9. The annual income of my office is the legal salary of Thirty five hundred dollars, less the tax. Of course it is more than my previous income as Law Clerk
  • 10. I have pursued a course of study, with a view of fitting myself for the profession of law, which corresponds with the duties of my office. That course was pursued under the direction of Sidney S. Baxter, Esq, formerly an active member of the bar of the Supreme Court, beginning, in this city, in 1856. To this, I added a regular course in the Medical Department of Georgetown College, graduating in 1861.
  • 11. There is no printed book, or manual, setting forth the duties of my office.
  • 12. I make nothing in the nature of periodical reports, relative to my official duties.
  • 13. It is my habit to enter the office between nine and ten in the morning and retire at four, P.M. I have no rule, however, on the subject. On an average, since I have entered the office of the Attorney General, I think I must have been actually employed in the service of the government near ten hours a day, except during a period of absence last summer.
  • 14. In the limited sense explained, all the subordinates of this office are under my control. Their grades and classes are as follows: One Law Clerk, one Chief Clerk, two fourth-class clerks, three third-class clerks, two first-class clerks, and two laborers—being eleven in all, of whom one third-class clerk, and one first-class clerk are temporary.
  • 15. The Law Clerk is employed in preparatory examinations of questions for opinion, and other matters of professional and administrative labor. The Chief Clerk exercises a general supervision over those engaged in clerical duties, besides participating therein himself. One fourth-class clerk is charged with the examination and investigation of applications for pardon; the other one is charged with the duty of engrossing the opinions, and of serving as stenographic secretary of the Attorney General. Of the third-class clerks, one is in charge of the Record books by correspondence, the two others in miscellaneous clerical-duties; of the two first-class clerks, the same may be said of one of them—the other performing various special duties, such as messenger between the court and the office, etc. The laborers perform their appropriate duties, and act as messengers. The law clerk's hours are similar to my own. The regular office hours for the clerks are from 9 a.m. to 3 p.m. The chief clerk is sometimes employed more than 6 hours in a day.
  • 16. But one vacancy has occurred since I entered this service. Numerous applications were made, more or less formally—but all were rejected. Some were supported by political influence.
  • 17. The present Law Clerk is the only incumbent who has been appointed since my entering this Office, except the opinion clerk, first temporarily employed as a stenographic secretary. For the latter, expertness as a short-hand writer was the requisite, and I presume his skill as such was tested by experiment. For the Law Clerk, the standard was personal probity, professional competency and experience in some executive department. The circumstances of his appointment are necessary to answering the remainder of the question: he was invited by the Attorney General, to whom he was a stranger, to present himself, solely at the suggestion of an acquaintance, who was responsible to the Attorney General for his sincerity and judgment, in aiding him to select. The person thus suggested, without his knowledge, was, after a brief colloquy with the Attorney General, appointed, subject to a fair trial of fitness. The Attorney General is probably ignorant of his political opinions.
  • 18. Answered, with 17.
  • 19. The Law Clerk was a clerk in one of the Bureaus of the Treasury Department. The Chief Clerk was a merchant. One fourth-class clerk was a printer, the other a stenographer and lawyer; one third-class clerk, a clerk—one, an author, and another a teacher and stenographer. Of the first-class clerks, one was a soldier, and the other for many years a messenger. The Law Clerk and opinion clerk have both pursued a regular course of study in the law,—and the latter also of the art of stenographic writing.
  • 20. No appointment has been made since I entered this office for political considerations. I have no data for a fuller answer.
  • 21. The preceding answers cover this.
  • 22. Yes, in all cases, if written.
  • 23 One was a soldier for three years in the union armies. One was prominently identified with the Sanitary organizations in the field. One was a printer. One was an author.—The allotted labor of each clerk being in great degree different, no standard of comparison of efficiency in the same class would be satisfactory.
  • 24. Three of the subordinates of this office, or four, including myself, have been appointed within two years past. Between two and four years ago, two; between four and six years ago, two; between six and ten years ago, one; over fifteen years ago, one. These periods denote their entrance, respectively, into this office.
  • 25. One of our subordinates is under twenty-five years of age; between that age and thirty, one; between thirty and forty, four, (or, including myself, five;)—between forty and fifty, two; between fifty and sixty, one. Of the messengers, (colored,) one is of middle age, and the other younger.
  • 26. There have been no removals since I entered this office.
  • 27. There is no system of promotion.
  • 28. No such rule, nor any systematic promotion, would be practicable here, in consequence of the small number.
  • 29. Not in this Office. If the answer is to come from general observation, I regret to say I have known flagrant instances in great number. Until recently, I have had the pleasure of witnessing but few examples of entire freedom of political opinion or party adhesion, among government clerks.
  • 30. Yes, frequently.
  • 31. I have observed at large that official clerks are most efficient before or after middle age.
  • 33. My observation would discourage all prospect of good from any system in which an examination by a Board would be accepted as a test of gratification.
  • 34. See the last question.
  • 35. The same.
  • 36. No females are employed in this office.
  • 37. Under this last number I quote the interrogatory, viz.: "State any matter which in your judgment would tend to make the civil service more efficient and economical." In the body of the circular, also, I am directed to return my answers "with such comments on the condition of the civil service, and the best methods of making it more effectual, as you may see fit to add."
  • 1. My first remark is that the condition of the civil service at large affords room for extensive reform, both in the methods of business, and the standards of personal qualification. But my observation and reflection inspire doubts of the salutary expediency of any particular plan of improvement which I have ever considered. Two things at least would seem to be requisite, viz.: 1; Better material for appointments. 2; Increasing efficiency of incumbents. Indeed, I may add a third, (3,)—to arrest the downward tendency of both. I trust the third, at least, is not impracticable.—But I fear that the causes are somewhat misapprehended. These seem to issue from political manners of our people, and are therefore subject in a very limited degree to legal restraint. In private business, the risk of appointing a clerk is inevitably upon the employer himself. Hence the efficiency of each one in his station. In public business, the appointor is theoretically in the like situation. But it is the actual and not the legal responsibility in the one case that secures the efficiency; and the want of it, in the other, exposes the business to inefficiency. The remedy, then, must be one that will make the risk of the public appointor resemble that of a private employer, in its actual operation on his interests or his honor. This is notoriously impracticable. Gentlemen in public life need not be told that the moral responsibility for the great mass of appointments, is, by long-settled custom in this country, upon those who recommend, rather than on those who appoint; and it is unquestionable that the former, in a spirit of good faith, deem themselves bound to divide with the appointing power the responsibility which the law places in the latter alone. The risk, therefore, is very slight, where the law intends that it shall be very great, because it does not much affect either the interest or the honor of any person,—and it is less still with those whom custom authorizes, and private importunity frequently impels, to demand a share of the discretion—in which, indeed, the appointor is obliged to depend principally on the information of others. Is it not clear, therefore, that the chief difficulty is in the want of adequate responsibility anywhere?—and that this results, not from a defect in existing laws, but from a prevalent custom? It will be remembered that my remarks are confined exclusively to the subject of clerical service.
  • 2. In my view of the causes, it is seen that a Board of competent examiners of applicants for appointment or promotion would afford but an inadequate remedy. In the first-place, it was well said by an experienced government official, that the "value of a clerk depends in the main on qualities which no examination can test." Illustrations of this are very numerous in the Departments. Frequently, the best clerk in a bureau is a person whose imperfect education is still a defect. On the other hand I have known a Doctor of Laws to be satisfactorily employed in removing files from one room to another. In one instance a geometrical area required demonstration, and the official mathematician occupied some days in the work. Meantime the clerk, who had occasion for the result, stimulated by his own impatience, wrought out in about an hour, by some original process of demonstration, the same result,—although I am sure he was candid in confessing that his knowledge of arithmetic went little beyond the multiplication table. If even practical scientific competency could not be well tested by examination, much less could competency which depends less on acquired knowledge, and more on zeal, punctuality, accuracy, and quick apprehension—qualities which may be ascertained through the testimony of acquaintances or former employers, or else actual experiment. But, in the second place, who is to take the actual risk? It cannot remain on the appointing power, for then the Board is useless. If it is on the Board, how is it to be secured? The custom referred to could not be inoperative therein, especially if the persons of the Board had been themselves appointed in the usual way; and if otherwise appointed, how are they to acquire the familiarity with public business, without which they could not be able to exercise their judgment of fitness? They would, in no case, be afraid to recommend a person not grossly and notoriously unfit, if he happened to enjoy the support of powerful influence, (which he might procure by exercising talents very unlike such as would fit him for clerical duty,) because their partiality would be desired, and their recommendation justified, by responsible and distinguished statesmen.
  • 3. I remark, also, that the well-intended plan of classification into grades works not only unequally between clerks, but very injuriously to the public business and the public economy. It proceeds on the assumption that the classification of service may constantly correspond with the classification of salaries. But it frequently happens otherwise. Suppose the work of intermediate dignity to be enough for nine clerks only, while there are twelve of the second class grade. One effect of this must be, that some must be otherwise engaged. If in a lower grade of labor, there is an inequality in that grade between clerks of similar employment. This inequality works unfavorably both ways. The fellow-workers complain that one of their number is paid more for the same work. He, on the other hand, complains that his fellows of the same salary are advancing to a higher grade, while he, by being assigned to humbler duties, is deprived of an equal opportunity. But he may be put upon a quality of labor higher that his clerical rank. The difficulty, however, is not diminished. He complains that his fellow-workers receive more pay for the same service, and naturally demands that this promotion in service should be made in pay. But if this be accorded him, his fellow clerks of his legal grade complain that he has been invidiously advanced. Even that is not the worst of it. All the complaints are just complaints. To obviate these embarrassments, especially when complicated with the inevitable inequality, among clerks, of political or social influence, the organization of business insensibly tends to conform itself to the classification of incumbents. Without simplicity, there can be no regularity—less still, any economy:—and it needs only to be mentioned that a division of labor is but a confusion of business, where it respects the workers rather than the work. Add to this, that the grades are permanent, while the relative prepositions of kinds of labor are changeable, and ought to remain as free as possible, to adapt themselves to occasion.
  • 4. It will not be expected from the foregoing that I should very confidently offer any suggestion beyond the testimony which I have already borne from observation. Perhaps nothing is more economical or efficacious for the detail of public business than a consciousness in a clerk that his office is his vested privilege, as long as he performs well its appropriate duties. Certainly regarding it in this light alone, a life-tenure would be a most unquestionable public good, in the subordinate officials of the Bureaus. But there are serious collateral considerations. The intelligence and social worth of thousands of gentlemen thus secured in office, would be apt to combine them into a permanent and influential body, and thus make the official class unpopular. It would be said that the notion of a right to an office is so contrary to our political genius that the necessity of judicial independence justifies the only tolerable exception—and then of a few individuals only. On the other hand, some incentives not now available are obviously necessary in the breast of clerks capable of usefulness. I think if there was a (1) check upon applications—(2) a more stringent routine in each bureau—and, (3) some time contemplated for the gradual inauguration of the reform, much good might be effected. With such ends, perhaps there may be something suggestive in the following:
  • A.) In each Bureau of the government, an office with a tenure during good behaviour (who might be called a superintendent, director, or other name,) whose duty it should be to supervise the working of the system of business therein, under the command of the chief of the Bureau. The present Chief Clerks occupy a position somewhat similar; but a precarious tenure is naturally opposed to regular, rigid, and complete system. Either the clerks would find their true level under such a supervision, or else the head of the office must bear a visible personal responsibility.
  • B.) All clerks divided into two classes, viz.: permanent and probationary. All permanent clerks to be of one grade, of a salary much higher than the present average. No appointment to be made in any case but from probationary clerks, after a certain period of probation.
  • C.) These to be appointed, as all clerks are now appointed, and to receive a specific and equal compensation, say half as much as clerks. But their employment to cease at the pleasure of the appointor, and in all cases after one year's continuance. To be eligible to a second, probably a third year's probation.
  • D.) With some hesitation, I add that the appointment of a person on probation, with his name, and that of the persons on whose recommendation he was selected, might be published. The latter would work much good, but doubtless some evil. If a Board could be useful in any event, it might determine appointments to the probationary class.
I think it highly probable that more perfect system, and a better personnel in the offices, would make it practicable to conduct the public business better with much fewer clerks. I almost venture to believe, with one half the present number. A very large proportion of the labor is now substantially only to check a carelessness or dullness not provided for in private business establishments. Having performed the duty devolved upon me by the committee sincerely, and as well as I can, I have the honor to be Very Respectfully Your obedient servant, John M. Binckley. Assistant Attorney General
(The questions of which there are answers, are on file, under the character of a letter from rep Jenckes.)
see Report p 13 ante
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