Martin Van Buren. Edward Morse Shepard
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.
CHAPTER IV
UNITED STATES SENATOR.—REËSTABLISHMENT OF PARTIES.—PARTY LEADERSHIP
In December, 1821, Van Buren