Correspondence between the Secretary of the Treasury and the Civil Service Commission in re Trial Lawyers.

To the Civil Service Commission:

Gentlemen:

I wish you would hold an examination for special agents at the earliest possible moment. As I explained to your Mr. —— the other day, the Department needs some special agents with legal training. Not all special agents need legal training, but there are many times when cases have to be prepared for presentation to the Board of General Appraisers, or to the Court, where legal experience is almost essential. I will give you an illustration: Not long ago I needed to send a man to Europe to investigate alleged undervaluations in crockery and chinaware. I had the matter investigated by three special agents and special employees with no satisfactory results. They did not know what was essential, and did not seem to know evidence when they saw it. I then appointed an experienced lawyer as special employee and sent him over. The evidence he collected ought to secure a fifty percent advance on these goods.

I want to urge that in this instance you prepare the questions so as to exclude everyone who is not an experienced lawyer. I also desire to see the questions before the examination is held. I want to cooperate with the Commission, and I urge the Commission to cooperate with me in getting material absolutely necessary to good administration.

To the Civil Service Commission:

Gentlemen:

How are you progressing preparatory to the examination for special agents? I am very anxious that this shall be done at the earliest possible moment. I have a well-defined policy that I would like to put in operation before I retire.

Sir:

Referring to the examination for special treasury agents which you desire this Commission to hold and with respect to which you make oral inquiry today, the Commission has the honor to state that the questions on government, law, and customs matters prepared by your Department have been given careful consideration. It is the opinion of the Commission that the questions are of such a character that they might be answered by a person without testing his qualifications for the position of Special Treasury Agents, and that, on the other hand, failure to answer the questions would not indicate lack of qualification for such position.

The Commission is sincerely desirous of co-operating with your Department in securing competent persons for the service, but it does not believe that an examination along the lines indicated in the material submitted by your Department would have the desired effect.

The Commission very seriously doubts whether the position of Special Agent can be filled as satisfactorily by open competitive examinations as by transfer or promotion of trained and experienced employees in the service who are familiar with the workings of your Department and especially with customs matters.

To the Civil Service Commission:

I am in receipt of your letter of the 2nd relative to an examination for Special Agents to the Treasury Department.

I know you will pardon me if I insist that I know better the necessary qualifications of Special Agents than any person who knows nothing about it whatever. If there were experienced employees in the service who could be transferred I certainly should do so rather than to await an examination. You will remember a personal interview I had with you about this some months ago, and several requests, some of them personal and some of them in writing followed by the preparation of the questions in this Department, still followed by oral inquiry to which you courteously refer. I will explain again that I need some lawyers in the Special Agent Force. The government loses millions every year (and I speak within bounds) for want of suitable preparation of cases for presentation to the Board of General Appraisers. I want men who know evidence when they see it and who know how to present a case. I do not want a physician or a preacher, but I do want and must have lawyers. I care very little whether they know anything about Customs matters or not—they can learn that but they may know everything about Customs matters and cannot become lawyers. I have clerks in the Department who have graduated in law but that does not make a lawyer of a man. I know what the Department needs, and I want that need supplied. Please advise whether you will hold the required examinations or whether I will have to fill the vacancies with incompetent clerks, or by executive order. If you will join in a request that suitable men be put into this important work by executive order I will let the Civil Service Commission make the nominations from a list which I will furnish, or I will ask them to furnish the list and I will make the nominations. I am not trying to escape the Civil Service, for I heartily believe in it when so applied as to bring material that can be used to bring results. I appreciate your expressed desire to co-operate and I only ask that you make it good by co-operating.

The Secretary of the Treasury:

The Commission has the honor to acknowledge the receipt of your letter of the 5th inst. in which are indicated your wishes with respect to the proposed examination for Special Agents.

In reply your attention is invited to the general questions on government, law and customs matters which have been submitted to the Commission by your Department. Of the fifty-three questions so submitted, fifteen are of a general character and could be readily answered by any law student. Only three relate to evidence in any form. These are of such an elementary character that they may be found in any text book on the subject and are not sufficient to bring out a satisfactory knowledge of evidence. There are thirty-seven questions bearing directly upon customs matters although your letters indicate that a knowledge of the subject is not to be required of applicants. After careful consideration of the matter and in view of your recent letter it is believed that the questions submitted by your Department are not suitable for an examination of Special Agents.

After discussing the responsibility which the Commission must bear the letter proceeds:

In this connection your attention is invited to an examination for law clerk, Class 4, held for your Department in April, 1903. This examination was prepared along the lines indicated by you and your statement that only graduates of reputable law colleges who had had at least three years practical experience subsequent to graduation would be acceptable to the Department, was incorporated in the announcement. The examination consisted principally of practical questions in law and the preparation of opinions upon stated cases. Of the 367 persons who competed only 20 attained eligibility. The results of this examination were very unsatisfactory to the Commission and to a large number of the competitors who felt that injustice had been done them. It is understood that several persons who were regarded by the officials of the Treasury Department as qualified for the position failed in the examination. A large number of appeals from the ratings were received, some of them being from men who were graduates of the best law schools in the country and who had many years experience in the practice of law in the general field.

Then follows reference to examinations for Tobacco and Tea Examiners quoted in Chapter XXIII; and the letter closes as follows:

The Commission is strongly of opinion that in the entire force of the Treasury Department, comprising as it does many thousand employees, persons can be found who possess suitable qualifications for Special Agents.

To the Civil Service Commission:

For three months I have been trying to get some lawyers on the eligible list that I may improve the Special Agent Service, and I am this near success: I have had the solicitor for this Department prepare a list of questions to be submitted with others which the Commission may be pleased to prepare. I have not examined the questions. They were prepared by Judge O’Connell, who has been a practicing lawyer of extensive experience for twenty years, and has several times served on the committee to examine applicants for admission to the Supreme Court of his state. These questions your Commission refused to use and declined to prepare others. You tell me that I must fill the vacancies from clerks in the Department. This I will never do. The vacancies will remain while I remain unless I can fill them in a way that in my judgment will improve the service. Possibly some clerk in your Department can prepare a better list of questions than Judge O’Connell has submitted. If so I have no objection. In fact I have no objection to any course you may be pleased to pursue and I have no further suggestions to make. I only ask that some time within a year or so the Civil Service Commission get a few lawyers within reach for the special service where lawyers are necessary. The government loses millions every year for the want of men in the Special Agent force, competent to prepare cases for submission to the Board of General Appraisers. If the Commission shall elect to assist me in the premises I shall appreciate it very much, and if it declines to act in the future, as it has declined in the past I shall submit, unless I can devise some other way to improve the service.

We are clear that vacancies in the position as Special Agent cannot be satisfactorily filled by open competitive examinations....

... If it be your desire as indicated in your letter that we should hold an examination for law clerk we will do so; and if you wish to make use of that register in filling vacancies in the position as Special Agent, it is of course your privilege to do so.

Thereupon the Secretary of the Treasury made request:

“Replying to your letter of December 20th handed to me by your Mr. —— and in harmony with our verbal understanding I request that the Civil Service Commission hold an examination, giving it such name as it may deem appropriate but so arranged as to exclude all but graduates from law colleges, and who in addition have had not less than three years experience in active practice including trial of cases in Nisi Prius Courts. I desire to make use of these clerks as Special Agents. They should be eligible for appointment direct or by immediate transfer without waiting six months. I need them now, and will be pleased if the Commission will expedite the examination in every possible way.”

On December 29, 1905, the Commission submitted draft of an announcement of an examination for law clerks in the Treasury Department and added: “It is requested that the announcement be returned to this office at your earliest convenience with such suggestions as you may desire to make in regard thereto.”

Suggestions were made January 4, 1906.

“I suggest that you eliminate from the first paragraph the following:

‘In making certifications to positions in the Customs Branch of the Treasury Department, consideration will be given to experience showing familiarity with Customs Law and practice in Customs Cases.’

There is not a lawyer in the United States who has had experience in Customs Cases whom I would appoint Special Agent, except those who are earning five times what the position will pay. There are some in the cities, and especially in New York, quite a number of disreputable fellows who have had some experience in practice in Customs Cases, but there is not a New York lawyer of experience in Customs Cases whom I would appoint Special Agent except as I say those who would not accept. I care nothing for familiarity or practice in Customs Cases. What I want is a man competent to practice in Customs Cases, and with integrity enough to justify his appointment.”

As already stated, without fault of the Commission no lawyer who had ever tried a case in any court was ever made eligible and the Secretary of the Treasury could secure one only from the eligible list. There was an eligible list of law clerks but no list of lawyers.

This text has been preserved as in the original, including archaic and inconsistent spelling, punctuation and grammar, except as noted below.

Obvious printer’s errors have been silently corrected.

Footnotes have been renumbered and then moved to directly below the paragraphs to which they belong.

“Tallyrand” was changed to “Talleyrand”

“cocklebur” was changed to “cockleburr”