Elections can only serve as a method of enforced circulation of bureaucratic elites if there exists more than one organized political party. Yet, so demoralized were the Anti-Federalists upon the adoption of the Constitution, and after their decision to accept a Bill of Rights in return for not insisting on a second constitutional convention, that the Federalists were allowed to assume power as a virtually unchallenged party. The Federalists therefore were allowed the scope to staff the nascent bureaucracy with their own conception of the Best and the Brightest — i.e., men of their own party, in contrast to the despised Anti-Federalists or the later Republicans.

Starry-eyed historians have contended that George Washington staffed the administrative bureaucracy with a genuinely non-political and non-partisan array of the Best and the Brightest. Carl Prince has shown, however, that, guided by his distinguished theoretician and organizer Alexander Hamilton, Washington deliberately developed a highly partisan, Federalist party-oriented federal civil service. In the first place, all Anti-Federalists were from the beginning deliberately excluded from office. Secondly, Prince concludes that "the civil service … formed a haven for [Federalist] party cadre (party managers at state and local levels), thus virtually professionalizing secondary leadership by individually linking status and pecuniary rewards to the success of the national party." The over two thousand federal office holders named by Washington and Adams in the 1790s constituted the activist middle-class base for the elite leadership of the Federalist party; "partly because of its connection with the first federal service, the new party in most states matured rapidly into a highly professional, tightly knit cluster at the state and local levels, closely aligned with and led by the national leadership at Philadelphia."[23]

Alexander Hamilton was perfectly suited to the role of building up an effective political machine in the civil service. His Treasury department contained three-quarters of the federal employees; and he was able to use that large base to penetrate other departments and to command the loyalty of the US attorneys and judges then employed in Jefferson's State Department.[24] Even before the end of the Revolutionary War, Hamilton was thinking along similar lines. In arguing for the new idea of having the central government appoint the customs and revenue collectors within each state, instead of allowing the respective states to continue exercising such functions, Hamilton wrote that the reason for such a change would be "to create in the interior of each State, a mass of influence in favor of the Federal Government." In that way, a number of people in each state would be created who would be loyal supporters of the federal government and its increased power. As Hamilton assumed his powerful post at the start of the new Constitutional government, he received congenial advice from prominent Massachusetts merchant Stephen Higginson, one of the leaders of the ultra-High Federalist Essex Junto. Federal officeholders, warned Higginson, must be limited to dedicated Federalists. Toleration of non-Federalists in appointments would "increase the Evil" of opposition to Federalist views: such softness "encourages others to act the same part," and the "number of opposers is by this means generally increased."[25]

The partisan appointment policy under President John Adams was much the same, but much more blatant, and devoid of the insincere protestations of non-partisanship by the first president. As the premier historian of federal administration put it, under Adams "direct reference to party attitude … became more common and less concealed."[26] Adams was far more concerned than Washington to direct personally the appointing process throughout his administration. During the second Washington administration, Washington and Hamilton had made sure to exclude members of the new Republican Party from office; and Adams not only continued this policy, but stepped up attempts to root out and summarily remove any Republicans from office. Thus, Adams, in justifying his removal of several Portsmouth, New Hampshire customs collectors from office, wrote the Customs Collector at Boston that the "daily language" of these federal officers was "so evincive of aversion, if not hostility, to the national Constitution and government, that I could not avoid making some changes." Adams concluded that "if the officers of government will not support it, who will?"[27] On another occasion, bitter at criticisms by William Duane's radical Jeffersonian Philadelphia Aurora, Adams had his Secretary of State pass the word of his displeasure to the US Attorney for Pennsylvania William Rawle, for not cracking down on the Aurora for seditious libel. "If Mr. Rawle does not think this paper libelous," thundered the President, "he is not fit for his office; and if he does not prosecute it, he will not do his duty."[28]

The federal civil service during the Federalist administrations consisted of four parts: two, the customs and internal revenue service, were in the Treasury Department, and constituted three-fourths of the total bureaucracy; the post office, inherited from the Confederation days, came under a postmaster-general, who reported directly to the President; and legal and judicial officers, including the Supreme Court, district judges, district attorney, marshals, and court clerks, came under the nominal jurisdiction of the State Department. Apart from the legal and judicial officers, which remained level in number at about 63, all the other wings of the bureaucracy grew rapidly during the Federalist era. Customs officials doubled from 478 in 1792 to 944 at the end of the Federalist period; internal revenue officials, called into existence by the new federal excise tax of 1791, expanded two-and-a-half fold from 219 in 1795 to 533; and the Post Office, which doubled its number of postmasters from 100 at the end of the Confederation period to 200 in 1791, more than quadrupled again to 824 in 1801. The entire bureaucracy increased two-and-a-half fold from the middle of the two Washington Administrations until the end of the Federalist reign.

John Adams as President not only maintained or accelerated the rate of growth of the bureaucracy, and politicized it even more blatantly; he also found ways to expand the politicized civil service into new areas. Thus, in the provisional army that Adams raised at the height of the undeclared war with France in 1798, Adams politicized the leadership by banning the appointment of Republicans from the upper ranks of the army. Also, Congress's enactment of a direct property tax in 1798, allowed Adams to appoint many good Federalists to the new openings at the lower reaches of the tax service. The Republicans charged that the Adams men had concluded that a direct tax "will make Roome for more officers; by this time all the yelpers was Nearly put into office with good Salaries."[29]

The federal judiciary, unfortunately, enjoyed from the beginning the life tenure warned against by Thomas Barber, courtesy of the US Constitution. The Federalists had made sure, in Article III, Sect. 1, of the Constitution, that all the federal judges shall hold life tenure on good behavior. The federal judiciary, which then consisted of six Supreme Court justices and twenty-eight district court judges, was thoroughly politicized during the 1790's, the district courts even more than the Supreme Court.[30] Of the twenty-eight, fully three-quarters were partisans of ratification of the Constitution, and even the three doubters eventually supported ratification. Moreover, the bulk of the district judges were fierce Federalist partisans, campaigning for Federalist candidates, denouncing Republicans, and often going so far as making sure of partisan Federalist juries in important cases, such as trials of Republican editors for violation of the Alien and Sedition law. Thus, in one sedition case, Federalist District Court Judge John Lowell of Massachusetts took elaborate steps to make sure of obtaining "one panel of full blooded filtrated federalists, and from them the political verdict."[31] Pennsylvania District Judge Richard Peters took upon himself a personal crusade, during the period of the Alien and Sedition laws from 1798-1800, to root out "Seditious scoundrels." There are "some Rascals," Peters wrote ultra-Federalist Secretary of State Timothy Pickering, "whom he wanted to handle if he could do it legally." One critic noted that it has "become a regular practice of the federal judges to make political discourses to the grand jurors throughout the United States."[32] Overall, Professor Prince justly concludes that "both the first United States district and circuit courts were among the most thoroughly politicized federal judicial institutions in American history…. George Washington's 'independence' and 'integrity' and the obvious threat to constitutional liberties inherent in the situation notwithstanding."[33]

VI. The Failed Jeffersonian Revolution

The Republicans replaced the Federalists in what has justly been called "The Revolution of 1800." Unfortunately, Thomas Jefferson was not really the best man to lead that Revolution. A brilliant libertarian-republican theoretician before achieving power and after leaving it, Jefferson is a classic case of corruption of principle from being in power. The first Jefferson Administration, however, was certainly one of the finest libertarian moments in the history of the United States. Expenses were lowered, the army and navy were sharply reduced, the bureaucracy was cut, the public debt retired, and the federal excise tax, and the Alien and Sedition Acts, were repealed. In the second term, however, the course was reversed, as Jefferson began expanding government, and gearing up for economic war and eventually military conflict with England.

But even in his libertarian-oriented first term, the militant Republicans — the Jeffersonians — were bitterly disappointed. Jefferson was faced with a critical problem: what to do with the bureaucracy, with the politicized civil service that the Federalists had built up. If Jefferson had followed circulation-of-elites, rotation in office principles, he would have booted out the Federalists and installed good Republicans. But as early as his First Inaugural, Jefferson began to temporize, began to yearn for unity, the healing of wounds, and the rest of the homilies that politicians prattle when they get ready to scuttle the principles which had brought them to their current status. In his First Inaugural, Jefferson assured his listeners that "We are all Republicans; we are all Federalists." Jefferson decided on a middle-of-the road course: to wait until vacancies occur, through death or retirement, and to fill them only with Republicans until they constitute about half of the civil service; and only to remove egregiously anti-Republican officials. Jefferson was particularly angered at the "midnight appointments," that Adams had made at the very last minute before Jefferson took office. During his first two years in office, Jefferson removed the forty major midnight appointments, along with seventy other anti-Republicans in the presidential class of officials, amounting to about one-fourth of the major federal officeholders. But that was it: Jefferson removed virtually no one after 1803, and his successors removed very few bureaucrats as well. Madison dismissed only twenty-seven major officials in his eight years in the White House; and Monroe only twenty-seven in his two terms. And even though John Quincy Adams was strongly critical of President Monroe as being "universally indulgent, and scrupulously regardful of individual feelings," and therefore firing virtually no one, Adams himself removed the fewest of all: only twelve in his four years in office.

It's not that the Presidents lacked the legal power to remove office-holders. Indeed, they had the power to remove anyone at will. This power was established, albeit by narrow vote, in the first Congress, the fundamental administrative "Decision of 1789." The most extreme position in opposition was taken by Rep. William L. Smith of South Carolina (who would later change his mind.) Smith, absurdly, but foreshadowing modern labor union and civil service arguments, maintained that the office was "the property" of each bureaucrat, who could therefore only be removed by impeachment and trial for malpractice and improper behavior.[34]

And so, from Jefferson through Adams, the civil service, while theoretically removable at will, by custom and the desire of the successive presidents, had become entrenched and rigidified bureaucracy. Characteristically, it took John Quincy Adams, still a federalist at heart though technically a Republican, to put this custom into stringent ideological terms. Any removal from office except "for cause," i.e., for malfeasance in office, might be politically expedient but it violated Adams's conception of the "public good." Even though it was not ensconced in the law, lifetime tenure on good behavior for the federal bureaucracy had become enshrined in custom for forty years, from 1789 to 1829.[35]

The most important defection of President Jefferson from militant Republican principle was his failure to challenge the entrenched Federalist judiciary. Not only did the judiciary enjoy life tenure under the Constitution; but, at the last minute, and shortly before they were forced to leave office, the lame duck Federalist Congress passed the Judiciary Act of 1801, which created six new circuit courts with sixteen quickly appointed Federalist judges; and expanded the jurisdiction of the circuit courts. Moreover, in one of his midnight appointments, President Adams appointed John Marshall of Virginia as Chief Justice of the Supreme Court, a Federalist Chief Justice who would plague libertarian Republicans with his decisions for over three decades.

The radical libertarian, or Old Republican, position was led by Virginians such as John Taylor of Caroline and John Randolph of Roanoke, by Benjamin Austin, leader of Boston's artisans, and by William Duane, editor of the Philadelphia Aurora. Many of the Virginia Old Republicans were friends and kinsmen of Jefferson, but they soon realized that their leader was really not one of them, really not prepared to carry forth the "Jeffersonian" Revolution. Steeped in Anti-Federalist hostility to strong central government and self-perpetuating bureaucracy, the Old Republican sought fundamental revolution. Virginia Old Republican William Branch Giles put their judicial program to President Jefferson with clarity and force:

What concerns us most is the situation of the Judiciary as now organized … the Revolution is incomplete, as long as that strong fortress is in possession of the enemy; and it is surely a most singular circumstance that the public sentiment should have forced itself into the Legislative and Executive Department, and that the Judiciary should not only not acknowledge its influence, but should pride itself in resisting its will, under the misapplied idea of "independence"…. No remedy is competent to redress the evil system, but an absolute repeal of the whole Judiciary and terminating the present offices and creating a new system, defining the common law doctrine and restraining to the proper Constitutional extent the jurisdiction of the Courts.[36]

In the fall of 1801, the veteran Old Republican, Edmund Pendleton, in his tract, The Danger Not Over, proposed constitutional amendments that were soon endorsed by the Virginia legislature. The anti-oligarchic and pro-rotation of office nature of these proposed amendments should be clear: the President was to be ineligible for more than one term; the term of Senators was to be reduced; and severe limits were placed on the public debt. As for the federal judiciary, appointments to the courts were to be made by the Congress with no role for the President, and the judges were to be removed at will by a joint vote of House and Senate.

The centrist Republicans, however, men like James Madison, Virginia's Wilson Cary Nicholas, Samuel H. Smith of Maryland, Robert R. Livingston of New York, and Alexander J. Dallas and Albert Gallatin of Pennsylvania, took a very different tack. All of them except Gallatin had favored the adoption of the Constitution, and all of them favored strong central government shorn of Federalist excesses; in short, they were content with the existing system provided that one of their own such as Jefferson was installed in Power. Since they believed that with Jefferson in office, the Revolution was now over, and there was no need for further radical or constitutional change, they favored the Jeffersonian policy of conciliating the Federalist party. At least when he was in power, Jefferson took his stand with the centrists of his party. Hence, his failure to bring about fundamental structural or administrative reform.

Indeed, with victory secured, the centrists now believed that their Old Republican colleagues, not the Federalists, were the main danger. To James Sullivan, Republican Governor of Massachusetts, the Old Republicans were "in opposition to all regular well established governments." They are possessed of a confidence stemming from "a frenzy," and "Having no idea of a solid rational government, they cannot be trusted with power…" Virginia Senator Wilson Cary Nicholas also denounced these Old Republicans whose libertarian "bias … is strongly against those who rule."[37] To Sullivan, the solution to this problem was "to destroy the lines of party distinctions" — a result that the centrists were finally to achieve in the one-party system during the Monroe and Adams administrations. But the lines of this conflict were blurred by the fact, as Professor Ellis points out, that Jefferson himself, even though a moderate in policy, was generally radically libertarian and Old Republican in rhetoric. Furthermore, unlike the centrists, he wanted to reconcile the Old Republicans rather than purge them from the party.[38]

On the judiciary, Jefferson, early in his administration, removed the aggressively Federalist prosecuting attorneys and the marshals who selected the juries and executed the courts' sentences. On the judges themselves, while Jefferson did not try to touch their life tenure, he did manage to repeal the Judiciary Act of 1801 the following year, and thereby to roll back the last minute tide of expansion of Federalist judges.

Jefferson's defection from the principles of rotation in office was the most important event in the entrenching of the combined old Federalist and new Republican bureaucracy. From Jefferson on, the Republican party remained in power, and from Monroe through Adams the United States lived under a one-party state, the Federalists having withered away. With no party competition, there was virtually no pressure for throwing the rascals out.

But in 1820 came what Professor Leonard White, a typical academic enthusiast for a life tenure civil service, called "the cloud on the horizon," the harbinger of the dread "spoils system" wrought by the Jacksonian movement. Secretary of Treasury in the Monroe Administration, William H. Crawford of Georgia, pushed through Congress the Tenure of Office Act, which Monroe came to regret signing, and which was bitterly denounced by all the champions of the entrenched bureaucracy, including Thomas Jefferson. Madison and following him Monroe actually denounced the law as "unconstitutional."

The Tenure of Office Act of May 1820 decreed that all presidential class officials, connected with the collection or disbursement of money, would henceforth serve, not indefinitely, but for fixed terms of four years, after which they would have to be reapproved by the US Senate after being renominated by the President. The covered officials included district attorneys, customs collectors, public land officials and registers, army and navy agents, and paymasters. Not affected were postmasters, or any of the accounting and clerical employees. The Tenure of Office Act meant (a) that at least higher bureaucrats would be confronted with fixed terms, and (b) that the power to remove them would no longer be exclusively in the hands of the President, but that the US Senate could share in the removal process.

The Act came as a shock to the previously contented oligarchy. Jefferson wrote to Madison in horror, charging that the law "saps the constitutional and salutary functions of the President, and introduces a principle of intrigue and corruption … This places, every four years, all appointments under their [the Senate's] power … It will keep in constant excitement all the hungry cormorants for office, render them, as well as those in place, sycophants to their Senators, engage these in eternal intrigue to turn out one and put in another…" There is, of course, another way to look at this law than this frenetic diatribe: that such a system would introduce a bracing wind of competition and of public accountability into the stolid and complacent ranks of the ruling bureaucracy.[39]

It may not be an accident that Secretary Crawford was the author of this bill. A Georgian who was close to the Old Republicans, Crawford, in 1824, was the Presidential candidate of that group as well as of Martin Van Buren, the brilliant political tactician who had been inspired by a weekend with Jefferson at Monticello in May 1824 to spend his life forming a new political party — later to be the Democratic Party — dedicated to taking back America for the old cause, for the libertarian Old Republican ideals of 1776 and 1798.[40] By the election of 1824, Crawford had fallen ill and had little chance for the presidency, but the Old Republican ideals, including that of bringing accountability and rotation of office to the bureaucracy, would go on to be championed by the Jacksonian movement and the Democratic Party forged by Van Buren and others devoted to the Old Republican ideal.

Under President John Quincy Adams, however, the Tenure of Office Act became a dead letter. Adams detested the law: "A more pernicious expedient could scarcely have been devised," and on principle renominated everyone upon his accession to office, and during his term. The Senate was persuaded to go along. So insistent was Adams on life tenure that, when his losing campaign for re-reelection was underway in 1828, he actually renominated James R. Pringle for collector of customs at Charleston, even though Pringle was frankly "devoted to the opposition." In his diary, Adams writes that "My system has been, and continues to be, to nominate for reappointment all officers for a term of years whose commissions expire, unless official or moral misconduct is charged and substantiated against them. This does not suit the Falstaff friends who 'follow for the reward'…."[41]

Murray N. Rothbard (1926-1995) was dean of the Austrian School. This essay (in pdf here) appeared in the Journal of Libertarian Studies, 11:2 (Summer 1995), pp. 3-75. It was originally published on the Internet by the Ludwig von Mises Institute.

[24] Ibid., pp. 6-10.

[25] Ibid., pp. 7-8.

[26] Leonard D. White, The Federalists: A Study in Administrative History,1789-1801 (New York: Macmillan, 1948), p. 273.

[27] Prince, The Federalists, pp. 11, 45-56.

[28] Ibid., p. 11.

[29] Ibid., p. 12. Also see Manning Dauer, The Adams Federalists (Baltimore:Johns Hopkins University Press, 1953), pp. 215-19.

[30] There were no separate appeals judges then, the circuit courts consisting of a blend of district judges and Supreme Court justices.

[31] Prince, The Federalists, p. 251.

[32] Ibid., pp. 242, 250.

[33] Ibid., pp. 252, 267.

[34] David H. Rosenbloom, Federal Service and the Constitution: The Development of the Public Employment Relationship (Ithaca: Cornell University Press, 1971), pp. 26-33; White, The Federalists, pp. 20-25.

[35] Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801-1829 (New York: Macmillan, 1951), pp. 1-15, 347-55, 369-71, and especially pp. 379-81; Rosenbloom, Federal Service, pp. 38-44.

[36] Giles to Jefferson, June 1, 1801. Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971), pp. 20-21.

[37] Ibid., pp. 23-24.

[38]Ibid., pp. 29-30.

[39] White, The Jeffersonians, p. 388.

[40] On the importance of Van Buren's conversion experience at Monticello, see Robert V. Remini, Martin Van Buren and the Making of the Democratic Party (New York: Columbia University Press, 1959), pp. 59-63. On a similar conversion of Thomas Hart Benton of Missouri upon a visit to Monticello on Christmas Eve of the same year, see William N. Chambers, Old Bullion Benton: Senator from the New West: Thomas Hart Benton, 1782-1858 (Boston: Little, Brown, 1956).

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