Montpellier October 15 1834.
I have received my dear Sir, your letter of the 15th. ultimo. I did not anticipate a complaint that mine was not full enough; being an effort which in my present condition, I had rarely made. It was not my object to offer either a plenary or a public review of the agitated topics; but to satisfy a friend that I ought not in my 84th. year, and with a constitution crippled by disease, to put myself forward, on the implied ground, that my opinions were to have an effect, which I ought not to presume, and which I was well persuaded they would not have. If I did not extend my remarks, to every obnoxious doctrine or measure of the Executive, I was under no apprehension of an inference from my silence that I approved them; and there was the less occasion to guard against the inference, as I had, with respect to omitted cases, freely expressed my views of them in our private conversations.
Notwithstanding your cogent observations on the comparative dangers from the popularity and example of General Jackson, and from the doctrines and example of South Carolina, I must adhere to the opinion that the former are daily losing and the latter gaining ground; for the proof of which I renew my appeal to the facts of daily occurrence. And if the declension of his popular influence be such during his official life and with the peculiar hold he has on popular feelings, there is little reason to suppose that any succeeding President will attempt a like career. That a series of them should do so, with the support of the people, is a possibility opposed to a moral certainty.
May I not appeal also to facts which will satisfy yourself, of the error which supposes, that a respect for my opinion, even naked opinion would controul the adverse opinions of others. On the subject of the Bank, on that of the Tariff, and on that of Nullification, three great Constitutional questions of the day, my opinions, with the grounds of them, are well known, being in print, with my name to them. Yet the Bank was perhaps never more warmly opposed than at present: The Tariff seems to have lost none of its unpopularity: Whilst nullification has been for sometime, and is at present notoriously advancing, with some of my best personal, and heretofore political friends, among its advocates.
It must not be thought that I am displeased or disappointed at this result. On the contrary I honour the independent judgment that decides for itself; and I know well that a spirit of party is not less unyielding.
You observe that the absorbing question of Executive misrule has diverted attention from nullification. This may be true, and is a reason for not mitigating the danger from it; for it is equally observable that whilst nullification is, on one hand taking advantage of the diverted attention, it is on the other hand propagating itself under the name of State rights, by diminishing the importance of questions between the Executive and other departments of the Federal Government, compared with questions between the Federal and State Governments; and by inculcating the necessity of nullification as the only safeguard to the latter against the former. In a late speech of the reputed author of the heresy, which has been lauded as worthy of letters of gold, this view of the subject is presented in the form most likely to make converts of the State rights opponents of the Tariff and other unpopular measures of the Federal policy.
Your reasoning, ingenious as it is, has not disproved the fairness of the distinction between a claim to the custody of the public money, and a claim to the absolute use or appropriation of it. In inferring abuses of power from particular instances, it is always proper to keep within the range of a certain degree of probability. The distinction in this case is so palpable and so important that the inference from a claim to the custody, however unsound, to a claim of appropriation, is not only disavowed by the partizans of the former who are probably not numerous but the distinction is triumphantly urged against their adversaries who disregard it, as a proof of their disingenuous and fallacious purposes.
You are at a loss for the innovating doctrines of the Senate to which I alluded. Permit me to specify the following:
The claim on Constitutional ground to a share in the removal as well as the appointment of officers, in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation would not only vary essentially the existing balance of power, but expose the Executive occasionally, to a total inaction, and at all times to delays fatal to the due execution of the laws.
Another innovation brought forward in the Senate, claims for the Legislature, a discretionary regulation of the tenure of offices. This also would vary the relation of the Departments to each other, and leave a wide field for Legislative abuses. The power of removal, like that of appointment, ought to be fixed by the Constitution; and both, like the right of suffrage and apportionment of Representatives not be dependent on the Legislative will. In Republican governments, the organization of the Executive Department will always be found the most difficult and delicate, particularly in regard to the appointment, and most of all to the removal of officers. It may well deserve consideration how far the present modification of these powers can be constitutionally improved. But apart from the distracting and dilatory operation of a veto in the Senate, on the removal from Office, it is pretty certain that the large States would not invest with that additional prerogative, a Body constructed like the Senate, and endowed as it already is, with a share in all the departments of power, Legislative Executive and Judiciary. It is well known that the large States in both the Federal and State Conventions, regarded the aggregate powers of the Senate as the most objectionable feature in the Constitution.
Another novelty of great practical importance is the alledged limitation of the qualified veto of the President, to Constitutional objections. That it extends to cases of expediency also and was so understood and so vindicated [see the Federalist] cannot be doubted. My veto to the Bank was expressly to the inexpediency of its plan, and the validity of the veto was never questioned. As a shield to the Executive Department against Legislative encroachments, and a general barrier to the Constitution against them, it was doubtless expected to be a valuable provision. But a primary object of the prerogative most assuredly was, that of a check to the instability in legislation, which had been found the besetting infirmity of popular governments, and been sufficiently exemplified among ourselves in the Legislatures of the States. And I leave yourself to decide how far, in a reversal of the case, an application of the veto to a defence of the Bank against a Legislative hostility to it, would have been welcomed by those who now denounce it as a usurpation. It should be kept in mind, each of the Departments has been alternately in and out of favor; and that changes in the organization of them hastily made, particularly in accordance with the vicissitudes of party ascendancy would produce a constitutional instability worse than a legislative one.
Another innovation of great practical importance, espoused by the Senate, relates to the power of the Executive to make diplomatic and Consular appointments, in the recess of the Senate. Hitherto it has been the practice to make such appointments to places calling for them, whether the places had or had not before received them. Under no administration, was the distinction more disregarded than under that of Mr. Jefferson; particularly in Consular appointments, which rest on the same text of the Constitution as that of public ministers. It is now assumed that the appointments can only be made to occurring vacancies, that is, places which had been previously filled. The error lies in confounding these foreign missions under the law of Nations, with municipal offices under the local law. If they were offices in the Constitutional sense, a legislative creation of them, being expressly required, they could not be created by the President and Senate. If indeed it could be admitted that as offices, they would ipso facto be created by the appointment from the President and Senate, the office would expire with the appointment; and the next appointment would create a new office not fill a vacant one. By regarding those missions not as offices, but as stations, or agencies, always existing under the law of Nations, for Governments, agreeing, the one to send, the other to receive the proper functionaries, the case, tho’ not perhaps altogether free from difficulty, is better provided for than by any other construction. The doctrine of the Senate would be as injurious in practice as it is unfounded in authority. It might and probably would be, of infinitely greater importance to send a public minister, where one had never been sent, than where there had been a previous mission. If regarded as offices, it follows moreover, that the President would be bound as in the case of other offices, to keep them always filled, whether the occasion required it or not; the opposite extreme of not being permitted, to provide for the occasion, however urgent.
The new doctrine involves a difficulty also in providing for treaties even treaties of peace, on favorable emergencies; the functionaries not being officers in a Constitutional sense, nor perhaps Ministers to any foreign Government. An attempt was I believe made by a distinguished individual, to derive a power in the President to provide for the case of terminating a ware, from his Military power, to establish a truce. This would have opened a wider door for construction than has yet been contended for.
I might add the claim for the Senate of a right to be consulted by the President and to give their advice, previous to his foreign negociations; a course of proceeding which I believe was condemned by the result of a direct, or analogous experiment; and which it was presumed would not again be revived. That the secrecy generally essential in such negociations, would be safe in a numerous Body, however individually worthy of the usual confidence, would be little short of a miracle.
If you call for proofs of the reality of these claims by or in behalf of the Senate, I may refer to their equal notoriety, with facts on which you rely, and to a greater authenticity than those which you state on hearsay only.
I have thrown together these remarks, as suggested by the one-sided view you have taken of subjects, which ought to be viewed on both sides, whatever be the decision on them. It is not improbable that a free and full conversation would bring us much nearer together on the most important points, than might be inferred from our correspondence on paper. When, or whether at all, such a conversation can take place, will depend on the movements on your part and contingencies on mine.
In the meantime I beg you to regard the present desultory communication in the same confidential light with the former; and to be assured of my constant affection and my best wishes for the happy life of which you have so flattering a prospect.
RC (NjP: Edward Coles Papers); draft (DLC); extract written by Edward Coles, with a draft of a speech by Martin Van Buren (DLC: Martin Van Buren Papers).