STATE SENATOR.--ATTORNEY-GENERAL.--MEMBER OF THE CONSTITUTIONAL
CONVENTION
The politics of New York State were never more bitter, never more
personal, than when Van Buren entered the field in 1803. The Federalists
were sheltered by the unique and noble prestige of Washington's name;
and were conscious that in wealth, education, refinement, they far
excelled the Republicans. They were contemptuously suspicious of the
unlettered ignorance, the intense and exuberant vanity, of the masses of
American men. It was by that contempt and suspicion that they invited
the defeat which, protected though they were by the property
qualifications required of voters in New York, they met in 1800 at the
hands of a people in whom the instincts of democracy were strong and
unsubmissive. This was in our history the one complete and final defeat
of a great national party while in power. The Federalists themselves
made it final,--by their silly and unworthy anger at a political
reverse; by their profoundly immoral efforts to thwart the popular will
and make Burr president; by their fatal and ingrained disbelief in
common men, who, they thought, foolishly and impiously refused to
accept wisdom and guidance from the possessors of learning and great
estates; and finally by their unpatriotic opposition to Jefferson and
Madison in the assertion of American rights on the seas during the
Napoleonic wars. All these drove the party, in spite of its large
services in the past and its eminent capacity for service in the future,
forever from the confidence of the American people. The Federalists
maintained, it is true, a party organization in New York until after the
second war with England; but their efforts were rather directed to the
division and embarrassment of their adversaries than to victories of
their own strength or upon their own policy. They carried the lower
house of the legislature in 1809, 1812, and 1813. There were among them
men of the first rank, who retained a strong hold on popular respect,
among whom John Jay and Rufus King were deservedly shining figures. But
never after 1799 did the Federalists elect in New York a governor, or
control both legislative houses, or secure any solid power, except by
coalition with one branch or another of the Republicans.
Van Buren's fondness for politics was soon developed. His father was
firmly attached to the Jeffersonians or Republicans,--a rather
discredited minority among the Federalists of Columbia county and the
estates of the Hudson River aristocracy. Inheriting his political
preferences, Van Buren, with a great body of other young Americans,
caught the half-doctrinaire enthusiasm which Jefferson then inspired, an
enthusiasm which in Van Buren was to be so enduring a force, and to
which sixty years later he was still as loyal as he had been in the hot
disputes on the sanded floors of the village store or tavern. During
these boyish years he wrote and spoke for his party; and before he was
eighteen he was formally appointed a delegate to a Republican convention
for Columbia and Rensselaer counties.
Van Buren returned from New York to Columbia county late in 1803, just
twenty-one years old. At once he became active in politics. The
Republican party, though not strong in his county, was dominant in the
State; and the game of politics was played between its different
factions, the Federalists aiding one or the other as they saw their
advantage. The Republicans were Clintonians, Livingstonians, or
Burrites. George Clinton, in whose career lay the great origin of party
politics of New York, was the Republican leader. The son of an Irish
immigrant, he had, without the aid of wealth or influential connections,
made himself the most popular man in the State. He was the first
governor after colonial days were over, and was repeatedly reëlected. It
was his opposition which most seriously endangered New York's adoption
of the Federal Constitution. But in spite of the wide enthusiasm which
the completed Union promptly aroused, this opposition did not prevent
his reëlection in 1789 and 1792. The majorities were small, however, it
being even doubtful whether in the latter year the majority were fairly
given him. In 1795 he declined to be a candidate, and Robert R.
Livingston, the Republican in his place, was defeated. In 1801 Clinton
was again elected. Later he was vice-president in Jefferson's second
term and Madison's first term; and his aspiration to the presidency in
1808 was by no means unreasonable. He was a strong party leader and a
sincerely patriotic man. The Livingston family interest in New York was
very great. The chancellor, Robert R. Livingston, who nowadays is
popularly associated with the ceremony of Washington's inauguration, had
been secretary for foreign affairs under the Articles of Confederation,
and had left the Federalists in 1790. After his sixty years had under
the law disqualified him for judicial office, he became Jefferson's
minister to France and negotiated with Bonaparte the Louisiana treaty.
Brockholst Livingston was a judge of the Supreme Court of New York in
1801. In 1807 Jefferson promoted him to the federal Supreme Court.
Edward Livingston, younger than his brother, the chancellor, by
seventeen years, was long after to be one of the finest characters in
our politics. Early in Washington's administration he had become a
strong pro-French Republican, and had opposed Jay's treaty with Great
Britain; though forty years later, when Jackson brought him from
Louisiana to be secretary of state, he was sometimes reminded of his
still earlier Federalism. Morgan Lewis, judge of the Supreme Court and
afterwards chief justice, and still later governor, was a brother-in-law
of the chancellor. Smith Thompson, also a judge and chief justice, and
later secretary of the navy under Monroe and a judge of the federal
Supreme Court, and Van Buren's competitor for governor in 1828, was a
connection of the family. There were sneers at the Livingston conversion
to Democracy as there always are at political conversions. But whether
or not Chancellor Livingston's Democracy came from jealousy of Hamilton
in 1790, it is at least certain that he and his family connections
rendered political services of the first importance during a half
century. The drafting of Jackson's nullification proclamation in 1833 by
Edward Livingston was one of the noblest and most signal services which
Americans have had the fortune to render to their country.
The best offices were largely held by the Clinton and Livingston
families and their connections, an arrangement very aristocratic indeed,
but which did not then seem inconsistent with efficient and decorous
performance of the public business. Burr naturally gathered around him
those restless, speculative men who are as immoral in their aspirations
as in their conduct, and whose adherence has disgraced and weakened
almost every democratic movement known to history. Burr had been
attorney-general; he had refused a seat in the Supreme Court; he had
been United States senator; and now in the second office of the nation
he presided with distinguished grace over the Federal Senate. His hands
were not yet red with Hamilton's blood when Van Buren met him at New
York in 1803; but Democratic faces were averted from the man who, loaded
with its honors and enjoying its confidence, had intrigued with its
enemies to cheat his exultant party out of their choice for president.
In tribute to the Republicans of New York, George Clinton had already
been selected in his place to be the next vice-president. While Van
Buren was near the close of his law studies at New York, Burr was
preparing to restore his fortunes by a popular election, for which he
had some Republican support, and to which the fatuity of the defeated
party, again rejecting Hamilton's advice, added a considerable
Federalist support. William P. Van Ness, as "Aristides," one of the
classical names under which our ancestors were fond of addressing the
public, had in the Burr interest written a bitter attack on the Clintons
and Livingstons, accusing them, and with reason, of dividing the offices
between themselves.
Van Buren was easily proof against the allurements of Burr, and even the
natural influence of so distinguished a man as Van Ness, with whom he
had been studying a year. Sylvester, his first preceptor, was a
Federalist. So was Van Alen, his half-brother, soon to be his partner,
who in May, 1806, was elected to Congress. But Van Buren was firm and
resolute in party allegiance. In the election for governor in April,
1804, Burr was badly beaten by Morgan Lewis, the Clinton-Livingston
candidate, whom Van Buren warmly supported, and Burr's political career
was closed. The successful majority of the Republicans was soon resolved
into the Clintonians, led by Clinton and Judge Ambrose Spencer, and the
Livingstonians, led by Governor Lewis. The active participation of
judges in the bitter politics of the time illustrates the universal
intensity of political feeling, and goes very far to justify Jefferson's
and Van Buren's distrust of judicial opinions on political questions.
Brockholst Livingston, Smith Thompson, Ambrose Spencer, Daniel D.
Tompkins,--all judges of the State Supreme Court,--did not cease when
they donned the ermine to be party politicians; neither did the
chancellors Robert R. Livingston and Lansing. Even Kent, it is pretty
obvious, was a man of far stronger and more openly partisan feelings
than we should to-day think fitting so great a judicial station as he
held. The quarrels over offices were strenuous and increasing from the
very top to the bottom of the community.
The Federalists in 1807 generally joined the Lewisites, or "Quids."
Governor Lewis, finding that the jealousy of the Livingston interests
would defeat his renomination by the usual caucus of Republican members
of the legislature, became the candidate of a public meeting at New
York, and of a minority caucus, and asked help from the Federalists.
Such an alliance always seemed monstrous only to the Republican faction
that felt strong enough without it. The regular legislative caucus,
controlled by the Clintonians, nominated Daniel D. Tompkins, then a
judge of the Supreme Court, and for years after the Republican
"war-horse." Van Buren adhered to the purer, older, and less patrician
Democracy of the Clintonians. Tompkins was elected, with a Clintonian
legislature; and the result secured Van Buren's first appointment to
public office. A Clintonian council of appointment was chosen. The
council, a complex monument of the distrust of executive power with
which George III. had filled his revolted subjects, was composed of five
members, being the governor and one member from each of the four
senatorial districts, who were chosen by the Assembly from among the six
senators of the district. The four senatorial members of the council
were always, therefore, of the political faith of the Assembly, except
in cases where all the senators from a district belonged to the minority
party in the Assembly. To this council belonged nearly every appointment
in the State, even of local officers. Prior to 1801 the governor
appointed, with the advice and consent of the council. After the
constitutional amendment of that year, either member of the council
could nominate, the appointment being made by the majority. Van Buren
became surrogate of Columbia county on February 20, 1808. There was no
prescribed term of office, the commission really running until the
opposition party secured the council of appointment. Van Buren held the
office about five years and until his removal on March 19, 1813, when
his adversaries had secured control of the council.
At this time the system of removing the lesser as well as the greater
officers of government for political reasons was well established in New
York. It is impossible to realize the nature of Van Buren's political
education without understanding this old system of proscription, whose
influence upon American public life has been so prodigious. The strife
over the Federal Constitution had been fierce. Its friends, after their
victory, sought, neither unjustly nor unnaturally, to punish Governor
Clinton for his opposition. Although Washington wished to stand neutral
between parties, he still believed it politically suicidal to appoint
officers not in sympathy with his administration.[1] Hamilton
undoubtedly determined the New York appointments when the new government
was launched, and they were made from the political enemies of Governor
Clinton,--a course provoking an animosity which not improbably appeared
in the more numerous state appointments controlled by Clinton and the
Republican council. After the excesses of the French Revolution the
Republicans were denounced as Jacobins and radicals, dangerous in
politics and corrupt in morals. The family feuds aided and exaggerated
the divisions in this small community of freehold voters. Appointments
were made in the federal and state services for political reasons and
for family reasons, precisely as they had long been made in England.
Especially along the rich river counties from New York to the upper
Hudson were so distributed the lucrative offices, which were eagerly
sought for their profit as well as for their honor.
The contests were at first for places naturally vacated by death or
resignation; the idea of the property right of an incumbent actually in
office lingered until after the last century was out. It is not clear
when the first removals of subordinate officers took place for political
reasons. Some were made by the Federalists during Governor Jay's
administration; but the first extensive removals seem to have occurred
after the elections of 1801. For this there were two immediate causes.
In that year the exclusive nominating power of the governor was taken
from him. Each of the other four members of the council of appointment
could now nominate as well as confirm. Appointments and removals were
made, therefore, from that year until the new Constitution of 1821, by
one of the worst of appointing bodies, a commission of several men
whose consultations were secret and whose responsibility was divided.
Systematic abuse of the power of appointment became inevitable. There
was, besides, a second reason in the anger against Federalists, which
they had gone far to provoke, and against their long and by no means
gentle domination. This anger induced the Republicans to seek out every
method of punishment. But for this, the abuse might have been long
deferred. Nor is it unlikely that the refusal of Jefferson, inaugurated
in March of that year, to make a "clean sweep" of his enemies, turned
the longing eyes of embittered Republicans in New York more eagerly to
the fat state offices enjoyed by their insolent adversaries of the past
twelve years.
The Clintons and Livingstons had led the Republicans to a victory at the
state election in April, 1801. Later in that year George Clinton, now
again governor, called together the new council with the nominating
power vested in every one of its five members. This council acted under
distinguished auspices, and it deserves to be long remembered. Governor
Clinton presided, and his famous nephew, De Witt Clinton, was below him
in the board. The latter represented the Clintonian Republicans.[2]
Ambrose Spencer, a man of great parts and destined to a notable career,
represented the Livingstons, of whom he was a family connection.
Roseboom, the other Republican, was easily led by his two abler party
associates. The fifth member did not count, for he was a Federalist. Two
of the three really distinguished men of this council, De Witt Clinton
and Ambrose Spencer, it is not unjust to say, first openly and
responsibly established in New York the "spoils system" by removals, for
political reasons, of officers not political. The term of office of the
four senatorial members of this council had commenced while the
illustrious Federalist John Jay was governor; but they rejected his
nominations until he was tired of making them, and refused to call them
together. When Clinton took the governor's seat, he promptly summoned
the board, and in August, 1801, the work began. De Witt Clinton publicly
formulated the doctrine, but it did not yet reach its extreme form. He
said that the principal executive offices in the State ought to be
filled by the friends of the administration, and the more unimportant
offices ought to be proportionately distributed between the two parties.
The council rapidly divided the chief appointments among the Clintons
and Livingstons and their personal supporters. Officers were selected
whom Jay had refused to appoint. Edward Livingston, the chancellor's
brother, was given the mayoralty of New York, a very profitable as well
as important station; Thomas Tillotson, a brother-in-law of Chancellor
Livingston, was made secretary of state, in place of Daniel Hale,
removed; John V. Henry, a distinguished Federalist lawyer, was removed
from the comptrollership; the district attorney, the clerk and the
recorder of New York were removed; William Coleman, the founder of the
"Evening Post," and a strong adherent of Hamilton, was turned out of the
clerkship of the Circuit Court. And so the work went on through minor
offices. New commissions were required by the Constitution to be issued
to the puisne judges of the county courts and to justices of the peace
throughout the State once in three years. Instead of renewing the
commissions and preserving continuity in the administration of justice,
the council struck out the names of Federalists and inserted those of
Republicans. The proceedings of this council of 1801 have profoundly
affected the politics of New York to this day. Few political bodies in
America have exercised as serious and lasting an influence upon the
political habits of the nation. The tradition that Van Buren and the
Albany Regency began political proscription is untrue. The system of
removals was thus established several years before Van Buren held his
first office. Its founders, De Witt Clinton and Ambrose Spencer, were
long his political enemies. Governor Clinton, whose honorable record it
was that during the eighteen years of his governorship he had never
consented to a political removal, entered his protest--not a very hearty
one, it is to be feared--in the journal of the council; but in vain. In
the next year the two chief offenders were promoted,--De Witt Clinton
to be United States senator in the place of General Armstrong, a
brother-in-law of Chancellor Livingston, and Ambrose Spencer to be
attorney-general; and two years later Spencer became a judge of the
Supreme Court.
After the removals there began a disintegration of the party hitherto
successfully led by Burr, the Clintons, and the Livingstons. Colonel
Swartwout, Burr's friend, was called by De Witt Clinton a liar,
scoundrel and villain; although, after receiving two bullets from
Clinton's pistol in a duel, he was assured by the latter, with the
courtesy of our grandfathers, that there was no personal animosity.
Burr's friends had of course to be removed. But in 1805, after the
Clintons and the Livingstons had united in the election of Lewis as
governor over Burr, they too quarreled,--and naturally enough, for the
offices would not go around. So, after the Clintonians on the meeting of
the legislature early in 1806 had captured the council, they turned upon
their recent allies. Maturin Livingston was removed from the New York
recordership, and Tillotson from his place as secretary of state. The
work was now done most thoroughly. Sheriffs, clerks, surrogates, county
judges, justices of the peace, had to go. But at the corporation
election in New York in the same year, the Livingstonians and
Federalists, with a majority of the common council, in their fashion
righted the wrong, and, with a vigor not excelled by their successors a
half century later, removed at once all the subordinate municipal
officers subject to their control who were Clintonians. In 1807 the
Livingstonian Republicans, or, as they were now called from the
governor, the Lewisites, with the Federalists and Burrites, secured
control of the state council; and proceeded promptly to the work of
removals, defending it as a legitimate return for the proscriptive
course of their predecessors. In 1808 the Clintonians returned to the
council, and, through its now familiar labors, to the offices from which
the Lewisites were in their turn driven. In 1810 the Federalists
controlled the Assembly which chose the council; and they enjoyed a
"clean sweep" as keenly as had the contending Republican factions. But
the election of this year, the political record tells us, taught a
lesson which politicians have ever since refused to learn, perhaps
because it has not always been taught. The removal of the Republicans
from office "had the natural tendency to call out all their forces." The
Clintonians in 1811, therefore, were enabled by the people to reverse
the Federalist proscription of 1810. The Federalists, again in power in
1813, again followed the uniform usage then twelve years old. Political
removals had become part of the unwritten law.
At this time Van Buren suffered the loss of his office as surrogate, but
doubtless without any sense of private or public wrong. It was the
customary fate of war. In 1812 he was nominated for state senator from
the middle district, composed of Columbia, Dutchess, Orange, Ulster,
Delaware, Chenango, Greene, and Sullivan counties, as the candidate of
the Clintonian Republicans against Edward P. Livingston, the candidate
of the Lewisites or Livingstonians and Burrites as well as the
Federalists. Livingston was the sitting member, and a Republican of
powerful family and political connections. Van Buren, not yet thirty,
defeated him by a majority of less than two hundred out of twenty
thousand votes. In November, 1812, he took his seat at Albany, and
easily and within a few months reached a conspicuous and powerful place
in state politics.
These details of the establishment of the "spoils system" in New York
politics seem necessary to be told, that Van Buren's own participation
in the wrong may be fairly judged. It is a common historical vice to
judge the conduct of men of earlier times by standards which they did
not know. Van Buren found thoroughly and universally established at
Albany, when he entered its life, the rule that, upon a change in the
executive, there should be a change in the offices, without reference to
their political functions. He had in his own person experienced its
operation both to his advantage and to his disadvantage. Federalists and
Republicans were alike committed to the rule. The most distinguished and
the most useful men in active public life, whatever their earlier
opinion might have been, had acquiesced and joined in the practice. Nor
was the practice changed or extended after Van Buren came into state
politics. It continued as it had thus begun, until he became a national
figure. Success in it required an ability and skill of which he was an
easy master; nor does he seem to have shrunk from it. But he was neither
more nor less reprehensible than the universal public sense about him.
For it must be remembered that the "spoils system" was not then
offensive to the more enlightened citizens of New York. The system was
no excess of democracy or universal suffrage. It had arisen amidst a
suffrage for governor and senators limited to those who held in freehold
land worth at least £100, and for assemblymen limited to those who held
in freehold land worth £20, or paid a yearly rent of forty shillings,
and who were rated and actually paid taxes. It was practiced by men of
aristocratic habits chosen by the well-to-do classes. It grew in the
disputes of great family interests, and in the bitterness of popular
elements met in a new country, still strange or even foreign to one
another, and permitted by their release from the dangers of war and the
fear of British oppression to indulge their mutual dislikes.
The frequent "rotation" in office which was soon to be pronounced a
safeguard of republican institutions, and which Jackson in December,
1829, told Congress was a "leading principle in the Republicans' creed,"
was by no means an unnatural step towards an improvement of the civil
service of the State. Reformers of our day lay great stress upon the
fundamental rule of democratic government, that a public office is
simply a trust for the people; and they justly find the chief argument
against the abuses of patronage in the notorious use of office for the
benefit of small portions of the people, to the detriment of the rest.
In England, however, for centuries (and to some extent the idea survives
there in our own time), there was in an office a quality of property
having about it the same kind of sacred immunity which belongs to real
or personal estate. There were reversions to offices after the deaths of
their occupants, like vested remainders in lands. It was offensive to
the ordinary sense of decency and justice that the right of a public
officer to appropriate so much of the public revenue should be attacked.
It did not offend the public conscience that great perquisites should
belong to officers performing work of the most trifling value or none at
all. The same practices and traditions, weakened by distance from
England and by the simpler life and smaller wealth of the colonists,
came to our forefathers. They existed when the democratic movement,
stayed during the necessities of war and civil reconstruction, returned
at the end of the last century and became all-powerful in 1801. To break
this idea of property and right in office, to make it clear that every
office was a mere means of service of the people at the wish of the
people, there seemed, to very patriotic and generally very wise men, no
simpler way than that the people by their elections should take away and
distribute offices in utter disregard of the interests of those who
held them. The odious result to which this afterwards led, of making
offices the mere property of influential politicians, was but
imperfectly foreseen. Nor did that result, inevitable as it was, follow
for many years. There seems no reason to believe that the incessant and
extensive changes in office which began in 1801, seriously lowered the
standard of actual public service until years after Van Buren was a
powerful and conspicuous politician. Political parties were pretty
generally in the hands of honest men. The prostituted and venal
disposition of "spoils," though a natural sequence, was to come long
after. Rotation was practiced, or its fruits were accepted and enjoyed
with satisfaction, by public men of the State who were really statesmen,
who had high standards of public honor and duty, whose minds were
directed towards great and exalted public ends. If it seemed right to De
Witt Clinton, Edward Livingston, Robert R. Livingston, and Ambrose
Spencer, surely lesser gods of our early political Olympus could not be
expected to refuse its advantages or murmur at its hardships. Nor was
the change distasteful to the people, if we may judge by their political
behavior. No faction or party seems to have been punished by public
sentiment for the practice except in conspicuous cases like those of De
Witt Clinton and Van Buren, where sometimes blows aimed at single men
roused popular and often an undeserved sympathy. The idea that a public
officer should easily and naturally go from the ranks of the people
without special equipment, and as easily return to those ranks, has been
popularly agreeable wherever the story of Cincinnatus has been told.
Early in this century the closeness of offices to ordinary life, and the
absence of an organized bureaucracy controlling or patronizing the
masses of men, seemed proper elements of the great democratic reform.
There had not yet arisen the very modern and utilitarian and the vastly
better conception of a service, the responsible directors of whose
policy should be changed with popular sentiment, but whose subordinates
should be treated by the public as any other employer would treat them,
upon simple and unsentimental rules of business. Another practical
consideration makes more intelligible the failure of our ancestors to
perceive the dangers of the great change they permitted. Offices were
not nearly as technical, their duties not nearly as uniform, as they
have grown to be in the more complex procedures of our enormously richer
and more populous time. Every officer did a multitude of things.
Intelligent and active men in unofficial life shifted with amazing
readiness and success from one calling to another. A general became a
judge, or a judge became a general,--as, indeed, we have seen in later
days. A merchant could learn to survey; a farmer could keep or could
learn to keep fair records.
In the art of making of the lesser offices ammunition with which to
fight great battles over great questions, Van Buren became a master. His
imperturbable temper and patience, his keen reading of the motives and
uses of men, gave him so firm a hold upon politicians that it has been
common to forget the undoubted hold he long had upon the people. In
April, 1816, he was reëlected senator for a second term of four years.
His eight years of service in the senate expired in 1820.
In November, 1812, the first session of the new legislature was held to
choose presidential electors. Not until sixteen years later were
electors chosen directly by the people. Van Buren voted for the
candidates favorable to De Witt Clinton for president as against
Madison. In the successful struggle of the Clintonians for these
electors, he is said in this, his first session, to have shown the
address and activity which at once made him a Republican leader. For his
vote against Madison Van Buren's friends afterwards made many apologies;
his adversaries declared it unpardonable treachery to one of the revered
Democratic fathers. But the young politician was not open to much
condemnation. De Witt Clinton, though he had but just reached the
beginning of middle life, was a very able and even an illustrious man.
He had been unanimously nominated in an orderly way by a caucus of the
Republican members of the legislature of 1811 and 1812 of which Van
Buren was not a member. He had accepted the nomination and had declined
to withdraw from it. There was a strong Republican opposition to the
declaration of war at that time, because preparation for it had not
been adequately made. Most of the Republican members of Congress from
New York had voted against the declaration. The virtues and abilities of
Madison were not those likely to make a successful war, as the event
amply proved. There was natural and deserved discontent with the
treatment by Jefferson's administration, in which Madison had charge of
foreign relations, and by Madison's own administration, of the
difficulties caused by the British Orders in Council, the Berlin and
Milan decrees of Napoleon, and the unprincipled depredations of both the
great belligerents. Van Buren is said by Butler, then an inmate of his
family, to have been an open and decided advocate of the embargo, and of
all the strong measures proposed against Great Britain and of the war
itself. Nor was this very inconsistent with his vote for Clinton. He had
a stronger sense of allegiance to his party in the State than to his
party at Washington; and the Republican party of New York had regularly
declared for Clinton. For once at least Van Buren found himself voting
with the great body of the Federalists, men who had not, like John
Quincy Adams, become reconciled to the strong and obvious, though
sometimes ineffective, patriotism of Jefferson's and Madison's
administrations. But whatever had been the motives which induced Van
Buren to support Clinton, they soon ceased to operate. Within a few
months after this the political relations between the two men were
dissolved; and they were politically hostile, until Clinton's death
fourteen years afterwards called from Van Buren a pathetic tribute.
Although the youngest man but one, it was said, until that time elected
to the state senate, Van Buren was in January, 1814, chosen to prepare
the answer then customarily made to the speech of the governor. In it he
defended the war, which had been bitterly assailed in the address to the
governor made by the Federalist Assembly. Political divisions even when
carried to excess were, he said, inseparable from the blessings of
freedom; but such divisions were unfit in their resistance of a foreign
enemy. The great body of the New York Republicans, with Governor
Tompkins at their head, now gave Madison vigorous support; although
their defection in 1812 had probably made possible the Federalist
success at the election for the Assembly in 1813, which embarrassed the
national administration. Van Buren warmly supported Tompkins for his
reëlection in April, 1813, and prepared for the legislative caucus a
highly declamatory, but clear and forcible, address to Republican
electors in his behalf. The provocations to war were strongly set out.
It was declared that "war and war alone was our only refuge from
national degradation;" the "two great and crying grievances" were "the
destruction of our commerce, and the impressment of our seamen;" for
Americans did not anticipate the surrender at Ghent two years later to
the second wrong. While American sailors' "deeds of heroic valor make
old Ocean smile at the humiliations of her ancient tyrant," the address
urged Americans to mark the man, meaning the trading Federalist, who
believed "in commuting our sailors' rights for the safety of our
merchants' goods." In the sophomoric and solemn rhetoric of which
Americans, and Englishmen too, were then fond, it pointed out that the
favor of citizens was not sought "by the seductive wiles and artful
blandishments of the corrupt minions of aristocracy," who of course were
Federalists, but that citizens were now addressed "in the language which
alone becomes freemen to use,--the language to which alone it becomes
freemen to listen."
In the legislative sessions of 1813 and 1814 Van Buren gave a practical
and skillful support to administration measures. But many of them were
balked by the Federalists, until in the election of April, 1814, the
rising patriotism of the country, undaunted by the unskillful and
unfortunate conduct of the war, pronounced definitely in favor of a
strong war policy. The Republicans recovered control of the Assembly;
and there were already a Republican governor and Senate. An extra
session was summoned in September, 1814, through which exceedingly
vigorous measures were carried against Federalist opposition. Van Buren
now definitely led. Appropriations were made from the state treasury for
the pay of militia in the national service. The State undertook to
enlist twelve thousand men for two years, a corps of sea fencibles
consisting of twenty companies, and two regiments of colored men; slaves
enlisting with the consent of their masters to be freed. Van Buren's
"classification act" Benton afterwards declared to be the "most
energetic war measure ever adopted in this country." By it the whole
military population was divided into 12,000 classes, each class to
furnish one able-bodied man, making the force of 12,000 to be raised. If
no one volunteered from a class, then any member of the class was
authorized to procure a soldier by a bounty, the amount of which should
be paid by the members of the class according to their ability, to be
determined by assessors. If no soldier from the class were thus
procured, then a soldier was to be peremptorily drafted from each class.
Van Buren was proud enough of this act to file the draft of it in his
own handwriting with the clerk of the Senate, indorsed by himself: "The
original Classification Bill, to be preserved as a memento of the
patriotism, intelligence, and firmness of the legislature of 1814-15. M.
V. B. Albany, Feb. 15, 1815."
Cheered, after many disasters, by the victory at Plattsburg and the
creditable battle of Lundy's Lane, the Senate, in Van Buren's words,
congratulated Governor Tompkins upon "the brilliant achievements of our
army and navy during the present campaign, which have pierced the gloom
that for a time obscured our political horizon." The end of the war left
in high favor the Republicans who had supported it. The people were
good-humoredly willing to forget its many inefficiencies, to recall
complacently its few glories, and to find little fault with a treaty
which, if it established no disputed right, at least brought peace
without surrender and without dishonor. Jackson's fine victory at New
Orleans after the treaty was signed, though it came too late to
strengthen John Quincy Adams's dauntless front in the peace conference,
was quickly seized by the people as the summing up of American and
British prowess. The Republicans now had a hero in the West, as well as
a philosopher at Monticello. Van Buren drafted the resolution giving the
thanks of New York "to Major-General Jackson, his gallant officers and
troops, for their wonderful and heroic victory."
In the method then well established the Republicans celebrated their
political success in 1814. Among the removals, Abraham Van Vechten lost
the post of attorney-general, which on February 17, 1815, was conferred
upon Van Buren for his brilliant and successful leadership in the
Senate. He remained, however, a senator of the State. At thirty-two,
therefore, he was, next to the governor, the leader of the Tompkins
Republicans, now so completely dominant; he held two political offices
of dignity and importance; and he was conducting besides an active law
practice.
De Witt Clinton, after his defeat for the presidency, suffered other
disasters. It was in January, 1813, that he and Van Buren broke their
political relations; and the Republicans very largely fell off from him.
The reasons for this do not clearly appear; but were probably Clinton's
continuance of hostility to the national administration, which seemed
unpatriotic to the Republicans, and some of the mysterious matters of
patronage in which Clinton had been long and highly proscriptive. In
1815 the latter was removed from the mayoralty of New York by the
influence of Governor Tompkins in the council. He had been both mayor
and senator for several years prior to 1812. He was mayor and
lieutenant-governor when he was a candidate for the presidency.
In 1816 the Republicans in the Assembly, then closely divided between
them and the Federalists (who seemed to be favored by the
apportionment), sought one of those immoral advantages whose wrong in
times of high party feeling seems invisible to men otherwise honorable.
In the town of Pennington a Federalist, Henry Fellows, had been fairly
elected to the Assembly by a majority of 30; but 49 of his ballots were
returned as reading "Hen. Fellows;" and his Republican competitor, Peter
Allen, got the certificate of appointment. The Republicans, acting, it
seems, in open conference with Van Buren, insisted not only upon
organizing the house, which was perhaps right, but upon what was wrong
and far more important. They elected the council of appointment before
Fellows was seated, as he afterwards was by an almost unanimous vote.
The "Peter Allen legislature" is said to have become a term of reproach.
But, as with electoral abuses in later days, the Federalists were not as
much aided as they ought to have been by this sharp practice of their
rivals; the people perhaps thought that, as they were in the minority
everywhere but in the Assembly, they ought not to have been permitted,
by a capture of the council, to remove the Republicans in office.
At any rate the election in April, 1816, while the "Peter Allen
legislature" was still in office, went heavily in favor of the
Republicans, Van Buren receiving his second election to the Senate. On
March 4, 1816, he was chosen by the legislature a regent of the
University of the State of New York, an office which he held until 1829.
The University was then, as now, almost a myth, being supposed to be the
associated colleges and academies of the State. But the regents have had
a varying charge of educational matters.
In 1817 the agitation, so superbly and with such foresight conducted by
De Witt Clinton, resulted in the passage of the law under which the
construction of the Erie Canal began. Van Buren's enmity to Clinton did
not cause him to oppose the measure, of which Hammond says he was an
"early friend." With a few others he left his party ranks to vote with
Clinton's friends; and this necessary accession from the "Bucktails" is
said by the same fair historian to have been produced by Van Buren's
"efficient and able efforts." In his speech favoring it he declared
that his vote for the law would be "the most important vote he ever gave
in his life;" that "the project, if executed, would raise the State to
the highest possible pitch of fame and grandeur," an expression not
discredited by the splendid and fruitful result of the enterprise.
Clinton, after hearing the speech, forgot for a moment their political
collisions, and personally thanked Van Buren.
In April, 1817, Clinton was elected governor by a practically unanimous
vote. His resolute courage and the prestige of the canal policy
compelled this tribute from the Republicans, in spite of his
sacrilegious presidential aspiration in 1812, and his dismissal from the
mayoralty of New York in 1815. Governor Tompkins, now vice-president,
was Clinton's only peer in New York politics. The popular tide was too
strong for the efforts of Tompkins, Van Buren, and their associates. In
the eagerness to defeat Clinton, it was even suggested that Tompkins
should serve both as governor and vice-president; should be at once
ruler at Albany and vice-ruler at Washington. Van Buren did not,
however, go with the hot-heads of the legislature in opposing a bill for
an election to fill the vacancy left by the resignation, which it was at
last thought necessary for Tompkins to make, of the governorship. No one
dared run against Clinton; and he triumphantly returned to political
power. Under this administration of his, the party feud took definite
form. Clinton's Republican adversaries were dubbed "Bucktails" from the
ornaments worn on ceremonial occasions by the Tammany men who had long
been Clinton's enemies. The Bucktails and their successors were the
"regular" Republicans, or the Democrats as they were later called; and
they kept their regularity until, long afterwards, the younger and
greater Bucktail leader, when venerable and laden with honors, became
the titular head of the Barnburner defection. The merits of the feud
between Bucktails and Clintonians it is now difficult to find. Each
accused the other of coquetting with the Federalists; and the accusation
was nearly always true of one or the other of them. Politics was a
highly developed and extremely interesting game, whose players, though
really able and patriotic men, were apparently careless of the
undignified parts they were playing. Nor are Clintonians and Bucktails
alone in political history. Cabinets of the greatest nations have, in
more modern times, broken on grounds as sheerly personal as those which
divided Clinton and Van Buren in 1818. British and French ministries, as
recent memoirs and even recent events have shown, have fallen to pieces
in feuds of as little essential dignity as belonged to those of New York
seventy years ago.
In 1819 the Bucktails suffered the fate of war; and Van Buren, their
efficient head, was removed from the attorney-general's office. Thurlow
Weed, then a country editor, grotesquely wrote at the time that
"rotation in office is the most striking and brilliant feature of
excellence in our benign form of government; and that by this doctrine,
bottomed, as it is, upon the Magna Charta of our liberties, Van Buren's
removal was not only sanctioned, but was absolutely required." The
latter still remained state senator, and soon waged a short and decisive
campaign to recover political mastery. He now came to the aid of
Governor Tompkins, who during the war with England had borrowed money
for public use upon his personal responsibility, and in the disbursement
of several millions of dollars for war purposes had, through
carelessness in bookkeeping or clerical detail, apparently become a
debtor of the State. The comptroller, in spite of a law passed in 1819
to indemnify Tompkins for his patriotic services, took a hostile
attitude which threatened the latter with pecuniary destruction. In
March, 1820, Van Buren threw himself into the contest with a skill and
generous fervor which saved the ex-governor. Van Buren's speech of two
days for the old chief of the Bucktails, is described by Hammond, a
political historian of New York not unduly friendly to Van Buren, to
have been "ingenious, able, and eloquent."
It was also in 1820 that Van Buren promoted the reëlection of Rufus
King, the distinguished Federalist, to the United States Senate. His
motives in doing this were long bitterly assailed; but as the choice was
intrinsically admirable, Van Buren was probably glad to gratify a
patriotic impulse which was not very inconsistent with party advantage.
In 1819 the Republican caucus, the last at which the Bucktails and
Clintonians both attended, was broken up amid mutual recriminations.
John C. Spencer, the son of Ambrose Spencer, and afterwards a
distinguished Whig, was the Clintonian candidate, and had the greater
number of Republican votes. In the legislature there was no choice,
Rufus King having fewer votes than either of the Republicans. When the
legislature of 1820 met, there appeared a pamphlet skillfully written in
a tone of exalted patriotism. This decided the election for King. Van
Buren was its author, and was said to have been aided by William L.
Marcy. Both had suffered at the hands of Clinton. However much they may
have been so influenced in secret, they gave in public perfectly sound
and weighty reasons for returning this old and distinguished statesman
to the place he had honored for many years. In 1813 King had received
the votes of a few Republicans, without whom he would have been defeated
by a Republican competitor. The Clintonians and their adversaries had
since disputed which of them had then been guilty of party disloyalty.
But it can hardly be doubted that King's high character and great
ability, with the revolutionary glamour about him, made his choice seem
patriotic and popular, and therefore politically prudent.
Van Buren's pamphlet of 1820 was addressed to the Republican members of
the legislature by a "fellow-member" who told them that he knew and was
personally known to most of them, and that he had, "from his infancy,
taken a deep interest in the honor and prosperity of the party." This
anonymous "fellow-member" pronounced the support of King by Republicans
to "be an act honorable to themselves, advantageous to the country, and
just to him." He declared that the only reluctance Republicans had to a
public avowal of their sentiments arose from a "commendable apprehension
that their determination to support him under existing circumstances
might subject them to the suspicion of having become a party to a
political bargain, to one of those sinister commutations of principle
for power, which they think common with their adversaries, and against
which they have remonstrated with becoming spirit." He showed that there
were degrees even among Federalists; that some in the war had been
influenced by "most envenomed malignity against the administration of
their own government;" that a second and "very numerous and respectable
portion" had been those "who, inured to opposition and heated by
collision, were poorly qualified to judge dispassionately of the
measures of government," who thought the war impolitic at the time, but
who were ignorantly but honestly mistaken; but that a third class of
them had risen "superior to the prejudices and passions of those with
whom they once acted." In the last class had been Rufus King; at home
and in the Senate he had supported the administration; he had helped
procure loans to the State for war purposes. The address skillfully
recalled his Revolutionary services, his membership in the convention
which framed the Federal Constitution, his appointment by Washington as
minister to the English court, and his continuance there under
Jefferson. He was declared to be opposed to Clinton. The address
concluded by reciting that there had been in New York "exceptionable and
unprincipled political bargains and coalitions," which with darker
offenses ought to be proved, to vindicate the great body of citizens
"from the charge of participating in the profligacy of the few, and to
give rest to that perturbed spirit which now haunts the scenes of former
moral and political debaucheries;" but added that the nature of a vote
for King precluded such suspicions.
The last statement was just. King's return was free from other suspicion
than that he probably preferred the Van Buren to the Clinton
Republicans. Van Buren, seeing that the Federalist party was at an end,
was glad both to do a public service and to ally with his party, in the
divisions of the future, some part of the element so finely represented
by Rufus King. In private Van Buren urged the support of King even more
emphatically. "We are committed," he wrote, "to his support. It is both
wise and honest, and we must have no fluttering in our course. Mr.
King's views towards us are honorable and correct.... Let us not, then,
have any halting. I will put my head on its propriety." Van Buren's
partisanship always had a mellow character. He practiced the golden rule
of successful politics, to foresee future benefits rather than remember
past injuries. Indeed, it is just to say more. In sending King to the
Senate he doubtless experienced the lofty pleasure which a politician of
public spirit feels in his occasional ability to use his power to reach
a beneficent end, which without the power he could not have reached,--a
stroke which to a petty politician would seem dangerous, but which the
greater man accomplishes without injury to his party standing. A year or
two after King's election, when Van Buren joined him at Washington,
there were established the most agreeable relations between them. The
refinement and natural decorum of the younger man easily fell in with
the polished and courtly manner of the old Federalist. Benton, who had
then just entered the Senate, said it was delightful to behold the
deferential regard which Van Buren paid to his venerable colleague, a
regard always returned by King with marked kindness and respect.
In this year the era of good feeling was at its height. Monroe was
reëlected president by an almost unanimous vote, with Tompkins again as
vice-president. The good feeling, however, was among the people, and not
among the politicians. The Republican party was about to divide by
reason of the very completeness of its supremacy. The Federalist party
was extinguished and its members scattered. The greater number of them
in New York went with the Clintonian Republicans, with whom they
afterwards formed the chief body of the Whig party. A smaller number of
them, among whom were James A. Hamilton and John C. Hamilton, the sons
of the great founder of the Federalist party, William A. Duer, John A.
King (the son of the reëlected senator), and many others of wealth and
high social position, ranged themselves for a time in the Bucktail ranks
under Van Buren's leadership. In the slang of the day, they were the
"high-minded Federalists," because they had declared that Clinton's
supporters practiced a personal subserviency "disgusting to high-minded
and honorable men." With this addition, the Bucktails became the
Democratic party in New York. In April, 1820, the gubernatorial election
was between the Clintonians supporting Clinton, and the Bucktails
supporting Tompkins, the Vice-President. Clinton's recent and really
magnificent public service made him successful at the polls, but his
party was beaten at other points.
Rufus King's reëlection to the Senate was believed to have some relation
to the Missouri question, then agitating the nation. In one of his
letters urging his Republican associates to support King, Van Buren
declared that the Missouri question concealed no plot so far as King was
concerned, but that he, Van Buren, and his friends, would "give it a
true direction." King's strong opposition to the admission of Missouri
as a slave State was, however, perfectly open. If he returned to the
Senate, it was certain he would steadily vote against any extension of
slavery. Van Buren knew all this, and doubtless meant that King was
bargaining away none of his convictions for the senatorship. But what
the "true direction" was which was to be given the Missouri question, is
not clear. About the time of King's reëlection Van Buren joined in
calling a public meeting at Albany to protest against extending slavery
beyond the Mississippi. He was absent at the time of the meeting, and
refused the use of his name upon the committee to send the anti-slavery
resolutions to Washington. Nor is it clear whether his absence and
refusal were significant. He certainly did not condemn the resolutions;
and in January, 1820, he voted in the state Senate for an instruction to
the senators and representatives in Congress "to oppose the admission,
as a State in the Union, of any territory not comprised within the
original boundary of the United States, without making the prohibition
of slavery therein an indispensable condition of admission." This
resolution undoubtedly expressed the clear convictions of the
Republicans in New York, whether on Van Buren's or Clinton's side, as
well as of the remaining Federalists.
Van Buren's direct interest in national politics had already begun. In
1816 he was present in Washington (then a pretty serious journey from
Albany) when the Republican congressional caucus was held to nominate a
president. Governor Tompkins, after a brief canvass, retired; and
Crawford, then secretary of war, became the candidate against Monroe,
and was supported by most of the Republicans from New York. Van Buren's
preference was not certainly known, though it is supposed he preferred
Monroe. In 1820 he was chosen a presidential elector in place of an
absentee from the electoral college, and participated in the all but
unanimous vote for Monroe. He voted with the other New York electors for
Tompkins for the vice-presidency. In April, 1820, he wrote to Henry
Meigs, a Bucktail congressman then at Washington, that the rascality of
some of the deputy postmasters in the State was intolerable, and cried
aloud for relief; that it was impossible to penetrate the interior of
the State with friendly papers; and that two or three prompt removals
were necessary. The postmaster-general was to be asked "to do an act of
justice and render us a partial service" by the removal of the
postmasters at Bath, Little Falls, and Oxford, and to appoint successors
whom Van Buren named. In January, 1821, Governor Clinton sent this
letter to the legislature, with a message and other papers so numerous
as to be carried in a green bag, which gave the name to the message, in
support of a charge that the national administration had interfered in
the state election. But the "green-bag message" did Van Buren little
harm, for Clinton's own proscriptive rigor had been great, and it was
only two years before that Van Buren himself had been removed from the
attorney-generalship. In 1821 the political division of the New York
Republicans was carried to national politics. When a speaker was to be
chosen in place of Clay, Taylor of New York, the Republican candidate,
was opposed by the Bucktail congressmen, because he had supported
Clinton.
In February, 1821, Van Buren gained the then dignified promotion to the
federal Senate. He was elected by the Bucktails against Nathan Sanford,
the sitting senator, who was supported by the Clintonians and
Federalists. Van Buren was now thirty-eight years old, and in the early
prime of his powers. He had run the gauntlet of two popular elections;
he had been easily first among the Republicans of the state Senate; he
had there shown extraordinary political skill and an intelligent and
public spirit; he had ably administered the chief law office of the
State which was not judicial. Though not yet keenly interested in any
federal question,--for his activity and thought had been sufficiently
engaged in affairs of his own State,--he turned to the new field with an
easy confidence, amply justified by his mastery of the problems with
which he had so far grappled. He reached Washington the undoubted leader
of his party in the State. The prestige of Governor Tompkins, although
just reëlected vice-president, had suffered from his recent defeat for
the governorship, and from his pecuniary and other difficulties; and
besides, he obviously had not Van Buren's unrivaled equipment for
political leadership.
Before Van Buren attended his first session in the federal capital he
performed for the public most honorable service in the state
constitutional convention which sat in the autumn of 1821. This body
illustrated the earnest and wholesome temper in which the most powerful
public men of the State, after many exhibitions of partisan, personal,
and even petty animosities, could treat so serious and abiding a matter
as its fundamental law. The Democrats sent Vice-President Tompkins, both
the United States senators, King and Van Buren, the late senator,
Sanford, and Samuel Nelson, then beginning a long and honorable career.
The Clintonians and Federalists sent Chancellor Kent and Ambrose
Spencer, the chief justice. Van Buren was chosen from Otsego, and not
from his own county, probably because the latter was politically
unfavorable to him.
This convention was one of the steps in the democratic march. It was
called to broaden the suffrage, to break up the central source of
patronage at Albany, and to enlarge local self-administration. The
government of New York had so far been a freeholders' government, with
those great virtues, and those greater and more enduring vices, which
were characteristic of a government controlled exclusively by the owners
of land. The painful apprehension aroused by the democratic resolution
to reduce, if not altogether to destroy, the exclusive privileges of
land-owners, was expressed in the convention by Chancellor Kent. He
would not "bow before the idol of universal suffrage;" this extreme
democratic principle, he said, had "been regarded with terror by the
wise men of every age;" wherever tried, it had brought "corruption,
injustice, violence, and tyranny;" if adopted, posterity would "deplore
in sackcloth and ashes the delusion of the day." He wished no laws to
pass without the free consent of the owners of the soil. He did not
foresee English parliaments elected in 1885 and 1886 by a suffrage not
very far from universal, or a royal jubilee celebrated by democratic
masses, or the prudent conservatism in matters of property of the
enfranchised French democracy,--he foresaw none of these when he
declared that England and France could not sustain the weight of
universal suffrage; that "the radicals of England, with the force of
that mighty engine, would at once sweep away the property, the laws, and
the liberty of that island like a deluge." Van Buren distinguished
himself in the debate. Upon this exciting and paramount topic he did not
share the temper which possessed most of his party. His speech was
clear, explicit, philosophical, and really statesmanlike. It so
impressed even his adversaries; and Hammond, one of them, declared that
he ought for it to be ranked "among the most shining orators and able
statesmen of the age."
In reading this, or indeed any of the utterances of Van Buren where the
occasion required distinctness, it is difficult to find the ground of
the charge of "noncommittalism" so incessantly made against him. He
doubtless refrained from taking sides on questions not yet ripe for
decision, however clear, and whatever may have been his speculative
opinions. But this is the duty of every statesman; it has been the
practice of every politician who has promoted reform. Van Buren now
pointed out how completely the events of the forty years past had
discredited the grave speculative fears of Franklin, Hamilton, and
Madison as to the result of some provisions of the Federal Constitution.
With Burke he believed experience to be the only unerring touchstone. He
conclusively showed that property had been as safe in those American
communities which had universal suffrage as in the few which retained a
property qualification; that venality in voting, apprehended from the
change, already existed in the grossest forms at the parliamentary
elections of England. Going to the truth which is at the dynamic source
of democratic institutions, he told the chancellor that when among the
masses of America the principles of order and good government should
yield to principles of anarchy and violence and permit attacks on
private property or an agrarian law, all constitutional provisions would
be idle and unavailing, because they would have lost all their force and
influence. With a true instinct, however, Van Buren wished the steps to
be taken gradually. He was not yet ready, he said, to admit to the
suffrage the shifting population of cities, held to the government by
no other ties than the mere right to vote. He was not ready for a
really universal suffrage. The voter ought, if he did not participate in
the government by paying taxes or performing militia duty, to be a man
who was a householder with some of the elements of stability, with
something at stake in the community. Although they had reached "the
verge of universal suffrage," he could not with his Democratic friends
take the "one step beyond;" he would not cheapen the invaluable right by
conferring it with indiscriminating hand "on every one, black or white,
who would be kind enough to condescend to accept it." Though a Democrat
he was opposed, he said, to a "precipitate and unexpected prostration of
all qualifications;" he looked with dread upon increasing the voters in
New York city from thirteen or fourteen thousand to twenty-five
thousand, believing (curious prediction for a father of the Democratic
party!) that the increase "would render their elections rather a curse
than a blessing," and "would drive from the polls all sober-minded
people."
The universal suffrage then postponed was wisely adopted a few years
later. Democracy marched steadily on; and Van Buren was willing,
probably very willing, to be guided by experience. He opposed in the
convention a proposal supported by most of his party to restrict
suffrage to white citizens, but favored a property qualification for
black men, the $250 freehold ownership until then required of white
voters. He would not, he said, draw from them a revenue and yet deny
them the right of suffrage. Twenty-five years later, in 1846, nearly
three-fourths of the voters of the State refused equal suffrage to the
blacks; and even in 1869, six years after the emancipation proclamation,
a majority still refused to give them the same rights as white men.
The question of appointments to office was the chief topic in the
convention. Van Buren, as chairman of the committee on this subject,
made an interesting and able report. It was unanimously agreed that the
use of patronage by the council of appointment had been a scandal. Only
a few members voted to retain the council, even if it were to be elected
by the people. He recommended that military officers, except the
highest, be elected by the privates and officers of militia. Of the 6663
civil officers whose appointment and removal by the council had for
twenty years kept the State in turmoil, he recommended that 3643, being
notaries, commissioners, masters and examiners in chancery, and other
lesser officers, should be appointed under general laws to be enacted by
the legislature; the clerks of courts and district attorneys should be
appointed by the common pleas courts; mayors and clerks of cities should
be appointed by their common councils, except in New York, where for
years afterwards the mayors were appointed; the heads of the state
departments should be appointed by the legislature; and all other
officers, including surrogates and justices of the peace as well as the
greater judicial officers, should be appointed by the governor upon the
confirmation of the Senate. Van Buren declared himself opposed, here
again separating himself from many of his party associates, to the
popular election of any judicial officers, even the justices of the
peace. Of all this he was long after to be reminded as proof of his
aristocratic contempt for democracy. His recommendations were adopted in
the main; although county clerks and sheriffs, whom he would have kept
appointive, were made elective. Upon this question he was in a small
minority with Chancellor Kent and Rufus King, having most of his party
friends against him. Thus was broken up the enormous political power so
long wielded at Albany, and the patronage distributed through the
counties. The change, it was supposed, would end a great abuse. It did
end the concentration of patronage at the capital; but the partisan
abuses of patronage were simply transferred to the various county seats,
to exercise a different and wider, though probably a less dangerous,
corruption.
The council of revision fell with hardly a friend to speak for it. It
was one of those checks upon popular power of which Federalists had been
fond. It consisted of the governor with the chancellor and the judges of
the Supreme Court, and had a veto power upon bills passed by the
legislature. As the chancellor and judges held office during good
behavior until they had reached the limit of age, the council was almost
a chamber of life peers. The exercise of its power had provoked great
animosity. The chief judicial officers of the State, judges, and
chancellors, to whom men of our day look back with a real veneration,
had been drawn by it into a kind of political warfare, in which few of
our higher magistrates, though popularly elected and for terms, would
dare to engage. An act had been passed by the legislature in 1814 to
promote privateering; but Chancellor Kent as a member of the council
objected to it. Van Buren maintained with him an open and heated
discussion upon the propriety of the objections,--a discussion in which
the judicial character justly enough afforded no protection. Van Buren's
feeling against the judges who were his political adversaries was often
exhibited. He said in the convention: "I object to the council, as being
composed of the judiciary, who are not directly responsible to the
people. I object to it because it inevitably connects the
judiciary--those who, with pure hearts and sound heads, should preside
in the sanctuaries of justice--with the intrigues and collisions of
party strife; because it tends to make our judges politicians, and
because such has been its practical effect." He further said that he
would not join in the rather courtly observation that the council was
abolished because of a personal regard for the peace of its members. He
would have it expressly remembered that the council had served the ends
of faction; though he added that he should regard the loss of Chancellor
Kent from his judicial station as a public calamity. In his general
position Van Buren was clearly right. Again and again have theorists,
supposing judges to be sanctified and illumined by their offices, placed
in their hands political power, which had been abused, or it was feared
would be abused, by men fancied to occupy less exalted stations. Again
and again has the result shown that judges are only men, with human
passions, prejudices, and ignorance; men who, if vested with functions
not judicial, if freed from the checks of precedents and law and public
hearings and appellate review, fall into the same abuses and act on the
same motives, political and personal, which belong to other men. In the
council of revision before 1821 and the electoral commission of 1877
were signally proved the wisdom of restricting judges to the work of
deciding rights between parties judicially brought before them.
Van Buren's far from "non-committal" talk about the judges was not
followed by any support of the proposal to "constitutionize" them out of
office. The animosity of a majority of the members against the judges
then in office was intense; and they were not willing to accept the life
of the council of revision as a sufficient sacrifice. Nor was the
animosity entirely unreasonable. Butler, in one of his early letters to
Jesse Hoyt, described the austerity with which Ambrose Spencer, the
chief justice, when the young lawyer sought to address him, told him to
wait until his seniors had been heard. In the convention there were
doubtless many who had been offended with a certain insolence of place
which to this day characterizes the bearing of many judges of real
ability; and the opportunity of making repayment was eagerly seized. Nor
was it unreasonable that laymen should, from the proceedings of judges
when acting upon political matters which laymen understood as well as
they, make inferences about the fairness of their proceedings on the
bench upon which laymen could not always safely speak. By a vote of 66
to 39, the convention refused to retain the judges then in office,--a
proceeding which, with all the faults justly or even naturally found
with them, was a gross violation of the fundamental rule which ought to
guide civilized lands in changing their laws. For the retention of the
judges was perfectly consistent with the judicial scheme adopted. Van
Buren put all this most admirably before voting with the minority. He
told the convention, and doubtless truly, that from the bench of judges,
whose official fate was then at their mercy, he had been assailed "with
hostility, political, professional, and personal,--hostility which had
been the most keen, active, and unyielding;" but that he would not
indulge individual resentment in the prostration of his private and
political adversary. The judicial officer, who could not be reached by
impeachment or the proceeding for removal by a two-thirds vote, ought
not to be disturbed. They should amend the constitution, he told the
convention, upon general principles, and not descend to pull down
obnoxious officers. He begged it not to ruin its character and credit by
proceeding to such extremities. But the removal of the judges did not
prove unpopular. Only eight members of the convention voted against the
Constitution; only fifteen others did not sign it. And the freeholders
of the State, while deliberately surrendering some of their exclusive
privileges, adopted it by a vote of 75,422 to 41,497.
Van Buren's service in this convention was that of a firm, sensible,
far-seeing man, resolute to make democratic progress, but unwilling,
without further light from experience, to take extreme steps difficult
to retrace. With a strong inclination towards great enlargement of the
suffrage, he pointed out that a mistake in going too far could never be
righted "except by the sword." The wisdom of enduring temporary
difficulties, rather than to make theoretical changes greater than were
necessary to obviate serious and great wrongs, was common to him with
the highest and most influential type of modern law-makers. With some
men of the first rank, the convention had in it very many others crudely
equipped for its work; and it met in an atmosphere of personal and
political asperity unfavorable to deliberations over organic law. Van
Buren was politically its most powerful member. It is clear that his
always conservative temper, aided by his tact and by his temperate and
persuasive eloquence, held back his Democratic associates, headed by the
impetuous and angered General Root, from changes far more radical than
those which were made. Though eminent as a party man, he showed on this
conspicuous field undoubted courage and independence and high sense of
duty. Entering national politics he was fortunate therefore to be known,
not only as a skillful and adroit and even managing politician, as a
vigorous and clear debater, as a successful leader in popular movements,
but also as a man of firm and upright patriotism, with a ripe and
educated sense of the complexity of popular government, and a sober
appreciation of the kind of dangers so subtly mingled with the blessings
of democracy.