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Officeholding and Powerwielding: An Analysis of the Relationship Between Structure and Style in American Administrative History

Published online by Cambridge University Press:  05 August 2024

William E. Nelson
William E. Nelson*
Affiliation:
Yale University
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To what extent has the exercise of administrative power been directed during the course of American history toward highly political ends, such as repaying political debts or furthering the particularistic interests of rich or powerful individuals and groups? Even a cursory review of the facts reveals that the administrative process has not always been highly politicized. When the United States became independent some two centuries ago, magistrates generally sought to use their power to further non-political religious and ethical ends in which nearly all their fellow subjects believed. More than a hundred years later, at the close of the nineteenth century, the ideology of administrative decision-making was similarly an apolitical one, in which administrators sought to resolve disputes and decide upon policies by reasoning deductively from abstract, general principles which nearly all of the nation accepted. The administrative process in the late nineteenth century differed from that of the mid-eighteenth not in the degree of politicization, but in the substantive standards from which administrators reasoned: In the mid-eighteenth century, as I have already suggested, the standards were ultimately religious and ethical, whereas by the end of the nineteenth century they had become basically scientistic and utilitarian.

Type
Research Article
Information
Law & Society Review , Volume 10 , Issue 2: Essays in Honor of J. Willard Hurst: Part II , January 1976 , pp. 187 - 233
Copyright
Copyright © 1976 The Law and Society Association.

Footnotes

*

The author is indebted to Bruce Ackerman, Stephen Botein, Owen Fiss, George Haskins, Morton Horwitz, Arthur Leff, Leon Lipson, Ellen Ryerson and Robert Stevens for their comments and criticisms. Gerald Greenberger rendered invaluable research and editorial assistance. This article was in large part written while the author was a member of the Society of Fellows of Harvard University.

References

1. See J. B. Bury, The Idea of Progress (1938); Paul Hazard, The European Mind, 1680-1715 (1963).

2. David Truman, The Governmental Process 443 (2d ed. 1971).

4. See text at notes 89-104, infra.

5. See text at notes 92-93, 102-104, infra.

6. See Interstate Commerce Act, 24 17. S. Stats. 379 (1887); Sherman Antitrust Act, 26 U. S. Stats. 209 (1890).

7. See, e.g., Charles River Bridge v. Warren Bridge, 7 Pick. 344 (1829), aff'd, 11 Pet. 420 (1837); Thurston v. Hancock, 12 Mass. 220 (1815).

8. See text at notes 105-112, infra.

9. Holders of certain offices received the title of esquire or gentleman merely by virtue of their occupying the office. See Bromfield v. Lovejoy, Quincey 237 (Mass. 1767). But cf. Robert E. Brown, Middle-Class Democracy and the Revolution in Massachusetts, 1691-1780, at 18-19 (1955), suggesting that titles of rank were not always indicative of precise economic distinctions in colonial Massachusetts since “labourers” might earn more than “gentlemen.”

10. See William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, at 17-18 (1975). Cf. n. 29. See Petition of Selectmen of Boxford, Essex Ct. Gen. Sess. (March, 1771).

11. See, e.g., An Act Relating to Constables § 6, in Stats, of Conn. 75 (rev. ed. 1824); An Act to Regulate the Fine Set on Persons Chosen to the Office of Constable, N. H. Laws of 1770-71, ch. 9, in 3 Laws of N.H. 547 (1915); Arthur E. Peterson, New York As An Eighteenth-Century Municipality, Prior to 1731, at 151-60 (1917); James F. Richardson, The New York Police: Colonial Times to 1901, at 7, 17 (1970).

12. See, e.g., J. Glen, “Description,” in Colonial South Carolina: Two Contemporary Descriptions 40, 42 (Milling, ed. 1951), suggesting that the office of justice of the peace and a commission in the militia might also be disdained. See also Leonard D. White, The Federalists: A Study in Administrative History 317-20 (1961) [hereinafter White, Federalists].

13. See Patricia U. Bonomi, A Factious People: Politics and Society in Colonial New York 158 (1971); John A. Schutz, William Shirley: King's Governor of Massachusetts 225-71 (1961). As Thomas Hutchinson, the governor of Massachusetts wrote, “There are very few places in this government except as are elective, worth anything.” Letter to Hillsborough, 1771, quoted in Bernard Bailyn, The Ordeal of Thomas Hutchinson 180 (1974).

14. See, e.g., Bailyn, supra note 13, at 53, 110, 145-49.

15. Cf. Michael Zuckerman, Peaceable Kingdoms: New England Towns in the Eighteenth Century 27, 47 (1970).

16. See Nelson, supra, note 10, at 17-18. At least in Massachusetts, the only officials who were immune from common law suits for malfeasance in office were legislators and judges. See John Adams, Legal Papers, II, 23 (Wroth & Zobel, eds. 1965).

17. See Dixon R. Fox, The Decline of the Aristocracy in the Politics of New York 1-30 (1919); Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689-1776, at 31-47 (1963); Stanley N. Katz, Newcastle's New York: Anglo-American Politics, 1732-1753, at 45-48 (1968).

18. In certain cases upper class Americans modeled themselves quite consciously on the English gentry. See Bernard Bailyn, New England Merchants in the Seventeenth-Century 192-94 (1955); Bonomi, supra, note 13, at 69-70; Greene, supra, note 17, at 23-24; M. Eugene Sirmans, Colonial South Carolina: A Political History, 1663-1763, at 10-12 (1966). The colonists were quite aware, however, that their society lacked the formal aristocracy necessary to complete the British tripartite model of government. See Bernard Bailyn, The Ideological Origins of the American Revolution 272-301 (1967).

19. Social mobility was easier in colonies like Massachusetts which relied heavily upon trade than in those which stressed plantations. See Bailyn, New England Merchants, supra, note 18, at 194-97; Bernard Bailyn, “Politics and Social Structure in Virginia,” in Seventeenth-Century America: Essays in Colonial History 90 (James Morton Smith ed. 1959); Greene, supra, note 17, at 22-31. For the social background of lawyers and judges, see Alan F. Day, “Lawyers in Colonial Maryland, 1660-1715,” 17 Am. J. L. Hist. 145 (1973).

20. See Charles S. Sydnor, Gentlemen Freeholders: Political Practices in Washington's Virginia 64, 80-90 (1952). The J. P.‘s were equally important in other colonies. See Bonomi, supra, note 13, at 35-36; Richard Brown, The South Carolina Regulators 13-14, 22, 24, 26, 49 (1963); Nelson, supra, note 10, at 15. In Massachusetts, for example, the Justices of the Peace had exclusive jurisdiction over civil suits where the amount in controversy was less than 40 shillings and title to land was not involved in addition to criminal jurisdiction over petty offenses. English county government, which served as a model for many of the colonies, placed great reliance upon the J.P.‘s. See J. Plumb, The Origins of Political Stability in England, 1675-1725, at 20-22 (1967); Beatrice Webb and Sidney Webb, English Local Government From the Revolution to the Municipal Corporation Act [Vol. I: The Parish and the County] 319-608 (1906).

21. Charles S. Sydnor, Political Leadership in Eighteenth-Century Virginia 7-8 (1951).

22. See Nelson, supra, note 10, at 33-34.

23. See the sources cited in note 17 supra.

24. This tendency to view governmental actions in terms of individuals rather than institutions can be seen quite clearly in the Declaration of Independence. Although the writers knew that the king was not individually responsible for the many evils committed in his name, the document enumerates them as if he were personally responsible. There was also a tendency in Continental thought to view the monarch as personifying the government he led. See Herbert H. Rowen, “L'etat c'est à moi [sic]: Louis XIV and the State,” 2 Fr. Hist. Stud. 83 (1961).

25. See Sydnor, supra, note 20, at 67, 78-82. For a discussion of the social prerequisites of power in the Massachusetts legislature, see Robert M. Zemsky, Merchants, Farmers, and River Gods: An Essay on Eighteenth-Century American Politics 28-38 (1971). Most judges effectively held office for life since the Crown's dismissal power had often become merely nominal; in those instances when it was exercised during the mid-eighteenth century, its exercise could provoke great controversy. See Greene, supra, note 17, at 26, 31-47, 330-43; Leonard W. Labaree, Royal Government in America: A Study of the British Colonial System Before 1783, at 373-419 (1958); Bonomi, supra, note 13, at 35-39.

26. See, e.g., Schutz, supra, note 13, at 87, 121-22, 135-36. This practice appears to have been a continuing one. See Matthew A. Crenson, The Federal Machine: Beginnings of Bureaucracy in Jacksonian America 83-84, 100-103 (1975).

27. See White, Federalists, supra note 12, at 346.

28. See M. Rombaugh, The Land Office Business: the Settlement and Administration of Amercian Public Lands, 1789-1837, at 180-99, 271-294 (1971); Crenson, supra, note 26, at 84-91.

29. See Nelson, supra, note 10, at 125, where it is noted that Massachusetts courts upheld plaintiffs' claims that they had “Property” in military offices, see Cushing v. Vose, Suff. Ct. Com. PL, Oct. 1785, and in merchant marine offices. See Prescott v. Tucker, Essex Sup. Jud. Ct., April 1821. The Court also spoke of an incumbent's “title to the office” of sheriff. See Fowler v. Beebe, 9 Mass. 231, 234 (1812). As late as 1821, an Alabama court wrote that “the right to exercise an office is as much a species of property as any other thing capable of possession.” Wammack v. Holloway, 2 Ala. 31 (1821).

30. Goss v. Inhabitants of Bolton, Cushing 11, 13 (Mass. 1778). Accord, Hill v. Powers, Cushing 26 (Mass. 1780).

31. See White, Federalists, supra, note 12, at 495.

32. See note 16, supra and accompanying text. Even after independence, many officers remained liable for substantial penalties for neglect or refusal to perform their duties. See White, Federalists, supra, note 12, at 425-26.

33. See Nelson, supra, note 10, at 34-35.

34. See id. at 32-35. Douglas Greenberg, “The Effectiveness of Law Enforcement in Eighteenth Century New York,” 19 Am. J. Legal Hist. 173 (1975). For further examples of the powerlessness of officials before a hostile public, see Edmund S. and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution 59, 65, 168-169 (rev. ed. 1963); Zuckerman, supra, note 15, at 86-88.

35. See Nelson, supra, note 10, at 46-51; Morton J. Horwitz, “The Transformation in the Conception of Property in American Law, 1780-1860,” 40 U. Chi. L. Rev. 248-54, 261-72 (1973).

36. See Bernard Bailyn, The Origins of American Politics 72-80 (1970).

37. See text at notes 17-23, supra. The patronage base of royal governors was also being eroded by the home government, which sought to confer as many valuable colonial offices as possible on men sent out directly from England. See Bailyn, supra, note 36, at 72-75.

38. See Sydnor, supra, note 20, at 70-77; Greene, supra, note 17, at 23-47; Bonomi, supra, note 13, at 29-31. For a generalized description of the “important people,” see White, Federalists, supra, note 10, at 5.

39. See Sydnor, supra note 20, at 37, 62-77.

40. Thomas Bradbury Chandler, The American Querist: or, Some Questions Proposed Relative to the Present Disputes Between Great Britain and Her American Colonics, No. 13, at 6 (Boston, 1774).

41. See Bonomi, supra, note 13, at 179-228; Darrett B. Rutman, Winthrop's Boston: Portrait of a Puritan Town, 1630-1649, at 72-97 (1965). But see generally Brown, supra, note 9.

42. Many leading prerevolutionary thinkers were consciously opposed to massive social change and assumed the existence of a hierarchical society. See Bailyn, supra, note 18, at 301-319.

43. A traveler reported in the mid-eighteenth century: “The public or political character of the Virginians, corresponds with their private one: they are haughty and jealous of their liberties, impatient of restraint, and can scarcely bear the thought of being controuled by any superior power.” Andrew Burnably, Travels Through the Middle Settlements in North-America, in the Years 1759 and 1760, at 20 (1775). Bonomi emphasizes that the politics of New York in particular were dominated by an excessively “factious people.” Bonomi, supra, note 13, at 280. See also Zuckerman, supra, note 15, at 16-45.

44. See Bailyn, supra, note 18, at 18-21; Gordon Wood, The Creation of the American Republic, 1776-1787, at 148-49 (1969).

45. I am in the process of developing the themes in this paragraph in another portion of the larger study of which this essay is a part.

46. Indeed, individuals who appeared overly ambitious for political office or lusting for power courted social disapproval. See Bonomi, supra, note 13, at 103-104; Bailyn, supra, note 36, at 143.

47. See generally Richard R. Beeman, The Old Dominion and the New Nation, 1788-1801, at 28-55 (1972); Paul Goodman, The Democratic-Republicans of Massachusetts: Politics in a Young Republic 1-46 (1964).

48. See generally Bailyn, supra, note 13. See also Bonomi, supra, note 13, at 8-9, 98-100, 151-56, 210-11, 265-66 (discussing the career of Cadwallader Colden); Wallace Brown, The King's Friends: the Composition and Motives of the American Loyalist Claimants (1965).

49. See Bailyn, supra, note 36, at 72-91. See also text at notes 33-37, supra.

50. See Judiciary Act of 1789, at §§ 7, 27, 28, 1 U.S. Stats. 73, 76, 87 (1789).

51. Letter from Noah Webster to Thomas Jefferson, February 20, 1809, in 14 Good Government 48 (1894).

52. See White, Federalists, supra, note 12, at 199-209, 284-290.

53. See id. at 205-7.

54. See id. at 207.

55. See id. at 207-8.

56. See id. at 20-25.

57. See Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801-1829, at 454-55 (1964) [hereinafter cited as White, Jeffersonians]. For details about these individual exceptions, see the letters between Gallatin and Jefferson in Albert Gallatin, Writings, I, 389, 397, 400, 404 (H. Adams ed. 1879).

58. Letter from George Washington to Samuel Vaughan, March 21, 1789, in George Washington, Writings, XXX, 238 (Fitzpatrick ed. 1939).

59. Letter from George Washington to Bushrod Washington, July 27, 1789, in id. at 366.

60. Letter from Thomas Jefferson to James Monroe, December 13, 1801, quoted in Edward Channing, A History of the United States, IV, 248 n.l (1917).

61. Letter from Thomas Jefferson to Albert Gallatin, November 12, 1801, in Gallatin, supra, note 57, at 60.

62. See Sidney H. Aronson, Status and Kinship in the Higher Civil Service: Standards of Selection in the Administrations of John Adams, Thomas Jefferson and Andrew Jackson 60, 111 (1964).

63. See Carl R. Fish, “Removal of Officials by the Presidents of the United States,” 1 Am. Hist. Rev. 65, 69 (1899).

64. See id. at 70.

65. See ibid.

66. See White, Federalists, supra, note 12, at 288-90; Carl R. Fish, The Civil Service and the Patronage 19 (1905).

67. See J. Q. Adams, Memoirs, VI, 546-47 (May 13, 1825) (C. F. Adams ed. 1874).

68. Quoted in T. C. Amory, The Life of James Sullivan, II, 94 (1859).

69. See White, Federalists, supra, note 12, at 285-88. It was even argued that “displacing a worthy and able man” might be justifiable grounds for impeachment. 1 Annals of Cong. 504 (1789). See generally Note, “The Scope of the Power to Impeach,” 84 Yale L. J. 1316, 1334 (1975).

70. Jefferson, Works, VI, 45 (Federal ed. 1904).

71. See Fish, supra, note 66, at 29-31; White, Jeffersonians, supra, note 57, at 347-54.

72. See Fish, supra, note 65, at 73.

73. Letter from Thomas Jefferson to Elias Shipman et al., July 12, 1801, in Jefferson, Works, IX, 272 (Federal ed. 1904).

74. An exception to this is Alexander Hamilton. See Lynton K. Caldwell, The Administrative Theories of Hamilton and Jefferson: Their Contributions to Thought on Public Administration 80-81 (1944).

75. For a detailed discussion of the enactment and enforcement of Alien and Sedition laws, see generally James Morton Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties (1963). For an analysis of the developing perception of the law as an instrument of policy, see generally Morton J. Horwitz, “The Emergence of an Instrumental Conception of American Law, 1780-1820,” 5 Perspectives in Am. Hist. 287-326 (Fleming & Bailyn eds. 1971).

76. See id. at 299.

77. Letter from Thomas Jefferson to Elbridge Gerry, August 28, 1802, in Jefferson, Works, IX, 393 (Federal ed. 1904).

78. Letter from Thomas Jefferson to Dr. Benjamin Rush, March 24, 1801, in id. at 231. See also Letter from Jefferson to Archibold Stuart, April 8, 1801, in id. at 247-48.

79. Letter from Jefferson to William B. Giles, March 23, 1801, in id. at 223.

80. Letter from Thomas McKean to Jefferson, July 1801, quoted in William C. Armor, Lives of the Governors of Pennsylvania 303 (1872). Jefferson, however, wrote to McKean that, “Some states require a different regimen from others.” Jefferson, Works, VIII, 178 (Federal ed. 1904).

81. See Fish, supra, note 66, at 86-95.

82. See generally J. Potter, “The Growth of Population in America, 1700-1860,” in Population in History: Essays in Historical Demography 631 (Glass & Eversley eds. 1965); Yasukichi Yasuba, Birth Rates of the White Population of the United States, 1800-1860: an Economic Study (1962).

83. See generally Paul W. Gates, The Farmer's Age: Agriculture, 1815-1860 (1960); Curtis P. Nettels, The Emergence of a National Economy, 1775-1815 (1962); George Rogers Taylor, The Transportation Revolution: Industry, 1815-1860 (1951).

84. See, e.g., James Fenimore Cooper, The American Democrat [1838] 70-87 (1969 ed.). In Cooper's words, “Social station, in the main … [was] a consequence of property.” Id. at 71.

85. See generally Richard Hofstadter, The Idea of a Party System: the Rise of Legitimate Opposition in the United States 212-52 (1972).

86. See Nelson, supra, note 10, at 36-63.

87. Of course we must not underestimate the difficulty even of these tasks, particularly in the vast wilderness that constituted early nineteenth-century America. That revenue collection was not always simple is demonstrated by such events as the Whiskey Rebellion of 1794 and South Carolina's attempt at tariff nullification in 1833; on both occasions, the government's normal enforcement mechanism required strengthening. See White, Federalists, supra, note 12, at 419-20; Leonard D. White, The Jacksonians: a Study in Administrative History, 1829-1861, at 512-16 (1954) [hereinafter cited as White, Jacksonians]. The potential difficulties in collecting taxes were even more apparent in the prerevolutionary failures of the British imperial government, whose customs duties were never fully collected and some of whose taxes met with outright resistance. See supra, note 34. Nor was the enforcement of judgments of the federal courts always an easy task. It must be remembered that the diversity jurisdiction was created for the purpose of removing from the state courts difficult cases that might result in unpopular judgments that would be more difficult than usual to enforce. See Henry F. Friendly, “The Historical Basis of the Diversity Jurisdiction,” 41 Harv. L. Rev. 483 (1928). Throughout the first seventy years of the federal government's existence, there were, in fact, a series of cases in which state officials sought to interpose their power to prevent the execution of federal judgments, and federal officials were required to take special steps to have the judgments enforced. See Edward S. Corwin, “National Power and State Interposition,” in 3 Ass'n Am. Law Schools 1176 (1937); Charles Warren, “Federal & State Court Interference,” in id. at 1096; Warren, “Legislative and Judicial Attacks on the Supreme Court,” 47 Am. L. Rev. 1 (1913).

88. See generally Walter W. Jennings, The American Embargo, 1807-1809 (1921); Louis M. Sears, Jefferson and the Embargo (1927).

89. That these tasks were not always easy ones, see David M. Ellis, Landlords and Farmers in the Hudson-Mohawk Region, 1790-1850, at 34-35, 154-55, 232 (1946); Oscar Handlin & Mary F. Handlin, Commonwealth: a Study of the Role of Government in the American Economy, Massachusetts 1774-1861, at 32-33, 43-47 (rev. ed. 1969).

90. See Nelson, supra, note 10, at 110-11.

91. See Handlin & Handlin, supra note 89, at 128-29, 215-224.

92. See id. at 222. On the inefficacy of regulation, see Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915, at 453, 559-60 (1964).

93. See Handlin & Handlin, supra, note 89, at 222.

94. See Edward C. Kirkland, Men, Cities and Transportation: a Study in New England History, 1820-1900, II, at 230-67 (1948).

95. See generally Robert S. Hunt, Law and Locomotives: the Impact of the Railroads on Wisconsin Law in the Nineteenth Century 98-131, 140-43 (1958).

96. 7 Pa. Archives (4th Ser.) 392 (Report by Gov. Johnston, 1850).

97. 6 id. at 130 (Statement by Gov. Wolf, 1836).

98. 6 id. at 620 (Statement by Gov. Porter, 1842).

99. Pa. H.R. Jour., 33d Assembly 622 (1822).

100. See Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860, at 265-66 (1948).

101. Id. at 262.

102. See James C. Mohr, The Radical Republicans and Reform in New York During Reconstruction 149-52 (1973).

103. See id. at 25-53.

104. See id. at 86-114.

105. See Paul W. Gates, History of Public Land Law Development 121-218 (1968); Rohrbaugh, supra, note 28, at 89-249.

106. See Gates, supra, note 105, at 219-47, 387-434.

107. See id. at 531-62, 699-714; Hurst, supra, note 92, 62-142.

108. See id. at 341-86.

109. See generally Carter Goodrich, Government Promotion of American Canals and Railroads, 1800-1890, at 51-168 (1960); Hartz, supra, note 100, at 130-49; Harry N. Scheiber, Ohio Canal Era: a Case Study of Government and the Economy, 1820-1861 (1969).

110. See Nelson, supra, note 10, at 146-47; Kirkland, I, supra, note 94, at 32-59.

111. See Hartz, supra, note 100, at 37-180; Kirkland, II, supra, note 94, at 237-40, 248, 250.

112. See Hartz, supra, note 100, at 55, 96-100.

113. See Handlin and Handlin, supra, note 89, at 71-73, 76-77, 87, 103-5.

114. The act of 1818 provided for a scale of five pay rates for clerks, from $800 to $1,400 a year and up to $1,700 for chief clerks. See Compensation of Clerks Act of 1818, § 7, 3 U.S. Stats. 447. The legislation of 1836 raised the pay scale to $1,000, $1,200 and $1,400 for clerks, $1,600 for principal clerks and $2,000 for chief clerks. See Post Office Reorganization Act of 1836, §§ 43-44, 5 U.S. Stats. 89. Lucky officials, however, could get extra allowances and fee officers might earn substantially more, particularly in the major cities. See White, Jacksonians, supra, note 87, at 384-91.

115. Ingraham v. Doggett, 22 Mass. (5 Pick) 451-52 (1827).

116. See Nelson, supra, note 10, at 92-93.

117. See generally Aronson, supra, note 62.

118. Andrew Jackson, “First Annual Message” (December 8, 1829), in James David Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, II, 448-49 (1897).

119. Id. at 449.

120. Letter from Jesse Hoyt to Martin Van Buren, March 21, 1829, quoted in William L. Mackenzie, The Lives and Opinions of Ben'n Franklin Butler … and Jesse Hoyt, . . . 51-52 (1845). Hoyt eventually became collector of the port of New York.

121. Letter from William T. Barry to Susan Taylor, June 11, 1829, in 16 Am. Hist. Rev. 333 (1911).

122. Letter from William T. Barry to Nathaniel Mitchell, October 30, 1834, announcing his removal, in 47 Niles Register 186 (November 22, 1834).

123. See Shaw Livermore, The Twilight of Federalism: the Disintegration of the Federalist Party, 1815-1830, at 242-50 (1962).

124. See Crenson, supra, note 26, at 143-45.

125. William M. Gouge, A Short History of Paper Money and Banking in the United States 30-33 (2d ed. 1835). For an analysis of this theme of a need for restoration, see Marvin Meyers, The Jacksonian Persuasion: Politics and Belief 16-33 (rev. ed. 1968).

126. Letter from Edward Everett to John McLean, August 1, 1828, in 1 Proc. Mass. Hist Soc'y (3d ser.) 361 (1907).

127. Letter from William T. Barry to Andrew Jackson, April 1, 1835, quoted in Dorothy G. Fowler, The Cabinet Politician: the Postmasters General, 1829-1909, at 17 (1943).

128. Letter from William T. Barry to S. L. Gouverneur, July 14, 1829, quoted in Fowler, supra, note 127, at 16.

129. Letter from William T. Barry to Susan Taylor, May 16, 1829, in 16 Am. Hist. Rev. 332 (1911).

130. See H. R. Rep. No. 103, 23d Cong., 2d Sess. 212 (1935). There were 10,693 postmasters in 1834, and they received $896,063 in compensation, while $1,922,431 were paid to contractors.

131. See id. at 28-29. See also S. Rep. No. 422, 23d Cong., 1st Sess. 11-13 (1834).

132. See letter from Amos Kendall to B. F. Butler, June 30, 1835, quoted in Crenson, supra, note 26, at 95.

133. See White, Jeffersonians, supra, note 57, at 329.

134. Amos Kendall, Autobiography 343-44 (Stickney ed. 1872). See also Francis P. Weisenburger, The Life of John McLean: a Politician of the United States Supreme Court 44 (1937).

135. See Crenson, supra, note 26, at 104-115.

136. Speech of James Buchanan before U. S. Senate, February 14, 1839, quoted in George T. Curtis, The Life of James Buchanan, I, 381 (1883).

137. Andrew Jackson, “First Annual Message,” (December 8, 1829), in J.D. Richardson, II, supra, note 118, at 460-61.

138. See Gilbert H. Barnes, The Anti-Slavery Impulse, 1830-1844, at 100-101, 247 nn. 1-2 (1933); Russell B. Nye, Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860, at 54-69 (1949); Clement Eaton, Censorship of the Southern Mails, 48 Am. Hist. Rev. 266 (1942).

139. Post Office Frauds Act, 5 U.S. Stats. 732 (1845).

140. National Intelligencer 3 (April 18, 1839).

141. H. R. Doc. No. 103, 23rd Cong., 2d Sess. 212 (1835).

142. H.R. Exec. Doc. No. 3, 35th Cong., 2d Sess. 247-49 (1858). See also H.R. Exec. Doc. No. 10, 34th Cong., 1st Sess. 10 (1853). Over three-fourths of the federal government's total revenue came from customs receipts in the port of New York.

143. See, e.g., Sec'y of Treasury, Report on Collection of Duties, H.R. Exec. Doc. No. 2, Pt. 2, 49th Cong., 1st Sess. xxv (1885); S. Rep. No. 1990, 49th Cong., 2d Sess. 73 (1887).

144. See, e.g., 91 No. Am. Rev. 449-50 (1860), reporting a public protest by 22 sea captains against the delays and bribery required. See also W. Hartman, “Politics and Patronage: The New York Customs House, 1852-1902” at 204-205 (unpublished Ph. D. dissertation, Columbia University, 1952).

145. See H.R. Rep. No. 740, 24th Cong., 1st Sess. 1 (1836).

146. See Nelson, supra, note 10, at 17-18, 31, 92-93.

147. Tariff of 1842, § 17, 5 U.S. Stats. 564-65, granted review of original appraisals by two discreet and experienced merchants. If the two agreed, their decision was final; otherwise the collector decided.

148. See Sec'y of Treasury, Report on Collection of Duties, H.R. Exec. Doc. No. 2, Pt. 2, 49th Cong., 1st Sess. xxiv-xxv (1885).

149. See notes 192-95 infra and accompanying text. The Customs Administration Act of 1890, 26 U.S. Stats. 131, provided for the creation of a body of precedents against which future evaluations could be compared. The previous system of two merchants, see note 147 supra, in effect under the 1842 law could not provide a similar body of precedent because judgments of different pairs of merchants were too disparate and were inadequately published. For a discussion of an analogous set of problems, see Nelson, supra, note 10, at 165-70.

150. Sec'y of Treasury, Report on the Collection of Duties, H.R. Exec. Doc. No. 2, Pt. 2, 49th Cong., 1st Sess. xxv (1885).

151. A merchant belonging to the party out of power could increase his leverage, however, by hiring a customs broker, who was a member of the party in power. But, of course, this imposed an additional cost which his competitors avoided. See Hartman, supra, note 144, at 205.

152. Quoted in Fowler, supra, note 127, at 14-15.

153. See generally White, Jacksonians, supra, note 87, at 187-205, 219-88; Crenson, supra, note 26, at 84-87; Alexander H. Meneely, The War Department, 1861: A Study in Mobilization and Administration 100-139, 252-79 (1928).

154. Andrew Jackson, “First Annual Message” (December 8, 1829), in Richardson, II, supra, note 118, at 449.

155. Dickson, “The New Political Machine,” 134 No. Am. Rev. 40, 50 (1882).

156. See White, Jacksonians, supra, note 87, at 558-60.

157. Cong. Globe, 40th Cong., 3d Sess. 263 (1869) (remarks of Rep. John A. Logan).

158. See Ari A. Hoogenboom, Outlawing the Spoils: a History of the Civil Service Reform Movement, 1865-1883, at 212-14 (1961); Leonard D. White, The Republican Era: a Study in Administrative History, 1869-1901, at 300-301 (1958) [hereinafter cited as White, Republicans].

159. Civil Service Act, 22 U.S. Stats. 403 (1883).

160. See generally Hoogenboom, supra, note 158, at 239-48; Paul P. Van Riper, History of the United States Civil Service 96-532 (1958); Leonard D. White, Trends in Public Administration 239-58 (1933).

161. Several of the most prominent civil service reformers such as Charles Sumner, G. W. Curtis and Horace Greeley had been active in the abolitionist movement. See David H. Donald, Charles Sumner and the Coming of the Civil War (1960); David H. Donald, Charles Sumner and the Rights of Man (1970); William H. Hale, Horace Greeley (1950); Gordon Milne, George William Curtis and the Genteel Tradition (1956); Glyndon G. Van Deusen, Horace Greeley: Nineteenth-Century Crusader (1953).

162. F. Bowen, “Book Review,” 76 No. Am. Rev. 496 (1853).

163. See H.R. Exec. Doc. No. 13, 25th Cong., 3d Sess. 25 (1838).

164. See H.R. Exec. Doc. No. 212, 27th Cong., 2d Sess. 294-98 (1842).

165. See H.R. Exec. Doc. No. 91, 36th Cong., 1st Sess. 3 (1860).

166. See H.R. Rep. No. 313, 25th Cong., 3d Sess. 142-46 (1839).

167. See White, Jacksonians, supra, note 87, at 421-22.

168. See generally Alexander B. Callow, Jr., The Tweed Ring (1966); Seymour Mandelbaum, Boss Tweed's New York (1965); Allan Nevins, Hamilton Fish: The Inner History of the Grant Administration 638-66, 717-39, 762-837 (1937).

169. Cong. Globe, 39th Cong., 2d Sess. 837 (January 29, 1867).

170. Id. at 837-39.

171. Resolution of May 27, 1868, quoted in White, Republicans, supra, note 158, at 297. Accord, N.Y. Times, July 27, 1868, at 4, col. 4.

172. See S. Rep. No. 576, 47th Cong., 1st Sess. 212 (1882).

173. Letter from Carl Schurz to E. L. Godkin, December 7, 1879, in Schurz, Speeches, Correspondence and Political Papers, III, 490-91 (Bancroft ed. 1913).

174. Letter from John P. Kennedy to his uncle, quoted in H. Tuckerman, Life of John Pendleton Kennedy 187 (1871).

175. See note 161, supra and accompanying text.

176. 31 The Nation 153 (1880). Accord, 31 id. at 134, 170-71, 184. See also 22 id. at 313 (1876). See generally Arthur M. Schlesinger, Sr., Political and Social History of the United States 315 (1925).

177. Speech before the United States Senate, January 27, 1871, in Schurz, supra, note 173, at 123.

178. George W. Curtis, “The Relation between Morals and Politics” (1878), in Curtis, Orations and Addresses, II, 135 (1894).

179. Curtis, “The Last Assault upon Reform,” 31 Harper's Weekly 358 (1887).

180. Curtis, “Party and Patronage” (1892), in Curtis, II, supra, note 178, at 505.

181. Id. at 502.

182. See notes 131-41, supra and accompanying text.

183. See White, Jacksonians, supra, note 87, at 254-58.

184. Post Office Reform Act, 17 U.S. Stats. 283 (1872).

185. Id. at §§ 243-262.

186. Id. at § 265, repealed in part by Post Office Appropriations Act of 1873, § 1, 17 U.S. Stats. 556, 558 (1873).

187. See, e.g., Anon., A History of the Railway Mail Service 7-8, 95-98 (1903).

188. See Post Office Reform Act § 265, 17 U.S. Stats. 283 (1872).

189. See generally George Rogers Taylor and Irene D. Neu, The American Railroad Network, 1861-1890, at 4-48 (1956).

190. See generally Anon., Railway Mail Service, supra, note 187, at 81-104, 107-123.

191. See Executive Order, in Richardson, VIII, supra, note 118, at 845-51 (Grover Cleveland, January 4, 1889).

192. See notes 143-51, supra and accompanying text.

193. Secretary of Treasury, Report on the Collection of Duties, H.R. Exec. Doc. No. 2, Pt. 2, 49th Cong., 1st Sess. xxv (1885).

194. 26 U. S. Stats. 131, 136-39 (1890). Uniformity at the judicial level was obtained through the establishment of the United States Court of Customs Appeals in 1909. See Payne - Aldrich Tariff Act of 1909, § 29, 36 U.S. Stats. 11 (1909). See also, White, Republicans, supra, note 158, at 128-29.

195. See note 149, supra and accompanying text.

196. C. W. Eliot, A Turning Point in Higher Education: the Inaugural Address of Charles William Eliot as President of Harvard College, October 19, 1869, at 9 (1969).

197. See White, Republicans, supra, note 158, at 243-46, 255-56.

198. See id. at 390.

199. See White, Republicans, supra, note 158, at 280; Van Riper, supra, note 160, at 63-66.

200. See text at notes 162-73, supra.

201. See Robert G. McCloskey, American Conservatism in the Age of Enterprise, 1865-1910: a Study of William Graham Sumner, Stephen J. Field and Andrew Carnegie 38-39 (1964); Fritz Stern, The Varieties of History From Voltaire to the Present 19-21 (1956).

202. William F. Willoughby, Principles of Public Administration ix (1927).

203. See Oscar Handlin, The Uprooted 180-202 (2d ed. 1973).

204. See Horace E. Flack, The Adoption of the Fourteenth Amendment 55-126 (1908).

205. See Joseph B. James, The Framing of the Fourteenth Amendment 3-33 (1956).

206. See id. at 184-85.

207. See Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895, at 131-58 (1960).

208. See McCloskey, supra, note 201, at 12; Robert H. Wiebe, The Search for Order, 1871-1920, at 135-59 (1967).

209. Allan Nevins, John D. Rockefeller 38 (1959).

210. Letter from Charles Sumner to Francis Lieber, May 15, 1864, in Sumner, Memoir and Letters, IV, 192 (Pierce ed. 1877).

211. See text at notes 170-71, supra.

212. See, e.g., Fifth Annual Report … of the Milwaukee & St. Paul Railway Co. 24 (1869); Twenty-Second Annual Report … of the Pennsylvania Co. 50 (1893). Of course it was not usually that high. See, e.g., 26th Annual Report of the Richmond & Danville R.R. Co. 129 (1873).

213. The typical way of carrying the mail was to add a mail car to an existing train. See G. Tunell, Railway Mail Service: a Comparative Study of Railway Rates and Service 14-21 (1901).

214 See Gabriel Kolko, Railroads and Regulation, 1877-1916, at 7-20 (1965).

215. See, e.g., Fifteenth Annual Report … of the Pennsylvania Co. 10, 14 17 (1887); Twenty-Ninth Annual Report of the Richmond and Danville R.R. Co. 31 (1876).