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The honourable gentleman from Dutchess (Mr. Livingston) has seen proper to reproach the modern council of revision by several severe imputations; and particularly by charging them with having usurped the power of judging of the expediency as well as constitutionality of bills passed by the legislature. Which construction he has asserted to be contrary to the usage and interpretation which uniformly prevailed in the council of revision; until after the expiration of the administration of his excellency governor Clinton; on whose exalted character he has made a high and just eulogium. [Mr. Livingston here rose and remarked, that it might not be improper for him to explain, that it was his excellency governor Jay, to whom he alluded in his former remarks. During his administration he contended that it was the business of the council of revision to pass all bills where no constitutional objections could be urged against them; taking the ground that the two branches of the legislature were the most eapable of judging of their expediency.] I thank the gentleman for the explanation; but I regret that it only affords me another opportunity of pointing out another egregious mistake in point of fact. But I acquit that gentleman of all wilful misrepresentation; of which I know him to be incapable. That honourable member has now told the committee, that governor Jay inflexibly maintained the construction that the council had no right to judge of the expediency of bills. He has also informed us that the Convention of 1777 gave the powers in question; because that patriot and sage, the venerable George Clinton, was then governor; to whom no powers were thought to be too large; because he was incapable of abusing them. I agree in all the praise bestowed on that venerable man. But the honourable gentleman last up, has fallen into a remarkable mistake. For although governor Clinton was the first governor elected under the constitution; yet it was very certain that he was not governor when the Convention framed the constitution. It was not, it could not, be known at that time, who would fill any of the offices under the constitution; and we must presume that no powers were granted with reference to any individual.

From the schedule which I hold, sir, it appears most unfortunately for the explanation just given by the gentleman from Dutchess, that the very first bill that was passed under the constitution, was returned by the council with their ananimous objection on the sole and distinct ground that it was inexpedient and inconsistent with the public good. The council, as appears by the minutes, was then composed of Gov. Clinton, Chancellor Livingston, Chief Justice Jay, Justice Yates, and Justice Hobart. The bill was specially committed to Chief Justice Jay, and he drafted the objections now on the council minutes. Thus we see that those distinguished men who were leading members of the convention, at the first council that was ever held under the constitution, gave an unanimous construction to the third article of the constitution, which exactly accords with the interpretation so loudly complained of against the present council. The schedule which I have exhibited, shews, that the whole number of bills that have been objected to by the council, from the origin of the government to this time, is 128; of which number 81 were objected to as repugnant to the constitution; 44 on the sole ground that they were inconsistent with the public good.

For example, the first act objected to in 1778, was a bill requiring certain oaths, and involved no question but that of expediency. In the same year another bill was objected to, the sole object of which was to make the county liable for the default of the sheriff. In 1779 the same council objected to a bill to prevent horse-racing, on the sole ground of expediency. In 1785 a bill for preventing inoculation of the small-pox was objected to as contrary to wise policy, which required the practice to be encouraged. In 1788 a bill authorizing the sale of Governor's Island, in the harbour of New-York, was objected to on the sole ground that it was wiser to retain it for purposes of public defence. In 1798, during the administration of Gov. Jay, a bill for substituting paper for parchment in certain public records, was objected to in council; his excellency the governor concurring in the objection.

Thus it demonstrably appears, that the construction and practice in the council of revision from 1778 to 1821 inclusive, has been uniformly the same under

the varied succession of governors, chancellors, and judges; and the attempt to change that usage, and the novelty of construction, are imputable to those only, who, within a very few years, have insinuated the charge of usurpation against the council. It appears from the records in the secretary's office, that the whole number of bills ever passed by the legislature up to this time, is 6590; of which 123 have been objected to by the council of revision; and 17 only of that number have been passed into laws, notwithstanding the objections.

Sir, I claim not for the members of the council an exemption from the frailties of human nature. I know they are men of like passions with others. They have, no doubt, in their arduous duties, committed many errors. But fortunately all their acts are on record, with their reasons for their objections. I invite gentlemen to a careful examination of that record; and then, sir, I invite to a comparison between the acts and proceedings of the council, and the whole conduct and proceedings of any other branch or department of the government. The evils and inconveniences resulting from the council of revision are obvious and apparent, while its benefits are chiefly unseen and unacknowledged. Its operation consists not so much in doing positive good, as in preventing mischiefs. It has undoubtedly, as all confess, hindered many dangerous and pernicious bills from becoming laws: but how many schemes of profligacy; how many base speculations; and how many acts of party violence have been strangled and suppressed, because their authors dared not to present them to the test of such an ordeal, it is impossible to demonstrate; but there can be no doubt in the mind of any reflecting man, that much evil has been thus prevented. The very existence of such a power, in wise, firm, and independent hands, has in a thousand instances prevented the necessity of using it; and this silent and unseen operation has been most salutary and benign.

I owe it to myself, and to the public, to declare, that in my judgment such a power will never be exercised with so much wisdom and steady firmness in any other hands. In my opinion we shall by this change, injure the constitution, as it regards the legislative department: but it will improve the constitution as it relates to the judicial department. By removing the officers of the judiciary from all connexion and collision with the legislature, I hope that jealousies will be removed, and harmony restored and preserved between those departments. And so far as I may be supposed to have any personal interest in the question, I declare my heartfelt satisfaction at the complete separation. We are now called to revise the works of our fathers' hands. To a small number of us on this floor, this is literally true: and all I trust will recognize in the framers of our constitution, the fathers and founders of the state. I feel the solemnity of the occasion, and when I see the axe laid to the root of the tree which our fathers planted, and watered, and defended; a tree which has yielded much good and wholesome fruit; and has so long afforded to us its shade and shelter; I confess, sir, that I witness its destruction with no ordinary emotions.

Let the council of revision descend in silence to the grave. But let no man now write any inscription on its tomb. When the feelings, and interests, and passions of the day shall have subsided, if I do not greatly deceive myself, impartial posterity will inscribe an epitaph on that tomb, expressive of profound veneration.

In regard to the intent of the proposed power in the executive alone, I coneur decidedly in the report of the select committee. Such a power is necessary to check usurpation in the legislature, which must ever be the strongest. The power is necessary as a shield to protect the weaker departments against the controlling influence of the legislature. The maxim of separating the departments, is of vital importance to the existence of civil liberty. But, sir, it is idle to separate them in form, on parchment, if in reality they are not made independent and capable of self defence against each other. No single elective, magistrate can stand against the persevering and systematic assaults of a numerous body of popular and influential men who compose the legislature. They not only have the power over the subsistence of the officers of the judicial and executive departments; but in the plenitude of their power, they may so regulate the duties of those officers, as to render their situation uncomfortable in a variety of modes: and they may in fact thus indirectly legislate the governor, and chancellor, and judges out of office.

The best definition of tyranny is, any form of government in which all the powers, legislative, judicial, and executive, are united in the same hands. And in the same degree as the power, and strength of any one of the departments, bears an undue proportion to those of any other department; in that same degree, will the government partake in reality of the nature and character of despotism. It is in vain, sir, to mock the people with the form of separation in the departments; so long as any one is so disproportionate in strength as to compel the other to act in subserviency to its views. My fear is, sir, not that the governor will wantonly abuse this power; but that he will not exercise it with that firm and intrepid independence which the public interest and safety may require.

MR. P. R. LIVINGSTON said he was unwilling to become a monopolist, or ob trude himself upon the Convention. He merely rose to beg of some gentleman to reply to the honourable gentleman who spoke last. If no one felt disposed to reply, be should feel it his duty to do so himself. [After waiting a few minutes, and no one manifesting a disposition to speak, Mr. L. rose and proceeded.] He had remarked when up before, that if any satisfactory reasons were assigned in favour of the report, he should, with that frankness and candour which on all occasions he was disposed to exercise, withdraw his amendment. He regretted that no other gentleman had seen fit to take the floor, that the Convention might have profited by the remarks of others, and that he might have surrendered any farther pretensions to the support of the amendment he had offered. The honourable gentleman from Oneida (Judge Platt) had remarked, at the commencement of his observations, that the executive, judicial, and legislative departments of government ought to be kept distinct. With regard to the correctness of that maxim, no one could doubt. That point being settled, he was surprised so much time should have been wasted in discussing it. In regard to the next topic, which was excessive legislation, he confessed he could not see the force of the remarks, inasmuch as you cannot constitutionally fix bounds to legislation-it is not in the power of the people to say how much the people shall do. They come to legislate on constitutional grounds, and cannot legislate where the constitution interposes. The gentleman last up had remarked, that he (Mr. L.) had fallen into an egregious error, as to the adoption of the constitution, and the first chief magistrate elected under it. He did suppose, that he should not be accused of the absurdity of stating that a chief magistrate was elected before the constitution was adopted; and his honourable friend (Mr. Platt) well knew that no one was contemplated but George Clinton. The constitution was formed for that distinguished patriot, who was then at the head of our armies in the field of battle. It was with that view that this qualified negative was adopted, requiring two-thirds of the legislature, after bills had been returned with the veto of the executive. It has been suggested, that' great research had been made, and the documents adduced evince the fact. The object of this investigation was to prove, that the third article of the constitution had been discreetly administered. It was the practices which the honourable gentleman had mentioned, of which he had been complaining-the exercise of the revisory power had excited all the feelings and passions, which had led to the abolition of that part of the constitution. He wished the honourable gentleman had thought proper to give the character of the bills, to which the council had raised objections, as well as of those which had passed, notwithstanding their objections. He did not boast of great experience—his age did not entitle him to it-public life gave him no claims to it. He had, however, seen some experience, and a woful experience it had been. He had seen the senate pass a bill by a majority of ten, and the bill passed by an unexampled majority in the lower house; yet he had seen it defeated by this branch of the government. Again, he had seen a bill pass unanimously-not unadvisedly, as might be the case in an assembly of Massachusetts, where 900 members were acting, and where you might rivet them, and they would hardly know it; but by thirty-two grave, venerable, and intelligent senators; not called up in a moment, and passed in a moment; but undergoing all the ordinary forms of legislation; referred to a select committee; and passed by an overwhelming majority in the house of assembly: I have seen that bill also rejected by the council. Are these the only

two bills? Permit me to go to the secretary's cabinet, and I will find many bills which have been rejected. But the reasons, it is said, are entered upon the records of the council. Reasons-reasons, did I say; when Reason searched for reasons in the objections, she could find none. He was unwilling to detract from the reputation of that council. The time will arrive when it will descend to the mansion of rest. Should I (said Mr. L.) survive them, I should not wish to be their biographer. I shall never detract from any merits which they have; nor shall I refrain from uttering any reproaches which they may deserve. They are public agents like myself. Their conduct is placed before the public; and it is for the public to pronounce on their merits or demerits. With regard to the framers of the constitution, he had as great respect for those living as his honourable friend; and those who had departed, he venerated as much as he. I (said Mr. L.) had no father in that Convention: but I had there a friend-a friend whose talents have been conspicuous in every department which he has filled, and whose virtues have preserved for him imperishable fame.

With regard to the exhibition of the fact in relation to the number of laws which have been passed since the adoption of the constitution, it appears that they amount to more than six thousand; one hundred and twenty-four of which have been returned by the council with objections. Of these latter, it appears that seventeen have become laws, notwithstanding the objections. The exhibition of these facts establishes one important position; and it is this, that of six thousand and odd hundred laws, the council of revision have been unable in all that legislation, to put their hands on no more than one hundred and odd laws yet it is said we cannot trust to legislation-we cannot trust the people. And yet, under such circumstances, it is pretended that it is dangerous to trust to the legislature. Mr. L. had never seen any disposition on the part of the legislature to encroach upon private rights. Now experience, as my honourable friend agrees, and as every man of good sense will agree, is the test of truth. You borrow from the experience of every part of the world, and adopt what is wise, let it come from where it may; and it appears that in a majority of the United States, they have not this qualified negative. If they have, it is in the way which he now proposed. And have these men no experience?

Mr. L. again adverted to Virginia; and will the state of New-York, admitting her to be great, powerful, and populous-will she undartake to say that she has more civilions, better jurists, wiser statesmen than that state? If not, then he said we have the experience of our sister states against this qualified negative. Go to the west. There you find wisdom. These states have been settled from the east, where you all agree that there is more intellect in a given number of the people. Ohio and Tennessee, and all these western states, place this qualified veto on the ground that he did. Had these states, after all their experience, found, as the honourable gentleman from Oneida has contemplated, so many evils growing out of their system, would they not have amended their constitutions? Sir, you live in a country where a constitution can be as easily altered, as a mechanic can make a garment for an individual. It is not with the constitution of this state, as with that of some countries, where an amendment must be made at the expense of blood. Here an amendment must be made congenial with public sentiment and public applause. Now, have we not come with public sentiment on this subject, and are not some of you already pledged to effect certain amendments; and to what feature of the constitution has the public mind been more firmly directed, than to the council of revision? You have been told that two-thirds of both branches of the legislature should be required to pass a bill, after receiving this negative. What are you about to do; you are transferring this very power to a solitary individual, the chief magistrate of your state; and I agree with my honourable friend from Oneida, strong as his objections are, to blending the three branches of government, I would rather retain the third article to the constitution, thar to give that negative to a single individual, requiring two-thirds of the legislature to pass it after receiving his veto.-And these are my reasons. Will any gentleman be bold enough to say, that a governor of the state is not a partizan

of it? He must be so; the opposite position no man dare take. How did he become chief magistrate of the state? By the voice of the people, in conformity to whose views he is bound to act. Do you believe that a republican government will ever be without party? God forbid. When you have a party in the state who oppose the dominant party from principle, it is a party to be respected and desired, if we wish to preserve the freedom of our state, and of the United States. It is well recollected, what important collisions have grown out of this point, among some of the first statesmen of our country; and in my opinion, in cases of peace or war, two-thirds of both houses of congress should be required to overrule this negative. He again alluded to the principle upon which he said he had started, which was, that all power originated with the people, and should of right be exercised by them, He said, it appeared to him like a solecism, to say the people would assent to measures which would be injurious to their own good-that it should be in the power of a minority to rule a majority. You see, that in our assembly it would require eighty-four members to carry a bill objected to by this power; and will it not be in the power of a chief magistrate, possessing this negative voice, under such circumstances, to get a minority sufficient to defeat the most wholesome bill? These opinions made an impression upon his mind; he did not know whether they would make the same upon the minds of the Convention; if they did, he hoped the amendment would be adopted. We have felt the evils resulting from the power given by the article which we have agreed to expunge from our constitution. We hear of no evils arising from the plan adopted in a large number of our states, and which I now propose as an amendment to the resolution before us. If, after due time, that amendment shall be found to be injurious, let that power which created and is represented by this Convention pass upon it-it is the people that are to pronounce whether it is right or wrong. If my amendment be found correct in the eyes of the people, they will be bold to say so; if they dislike it, they will say so, and the article stands as it has done; because, let us resolve what we may, it does not alter the constitution.-It is the people who are to determine for themselves.

MR. EDWARDS. It is a question of no ordinary magnitude to which our attention has been called, and I should have been much pleased had gentlemen, of maturer age and experience, expressed their sentiments on the subject. But as there appears to be a reluctance on their part to come forward to the discussion, I beg leave to state the views which I entertain respecting it. The question in part is this-what power hereafter shall control the property and liberty of the people of the state of New-York? This, sir, is the plain state of the case, and it has devolved upon us, as the representatives of the people, to say where this controling power shall be lodged. Although I fully accord with my honourable friend from Dutchess (Mr. Livingston) in the sentiment that all power is derived from the people; yet the results to which we arrive are essentially different. It becomes us, in exercising the high trusts that are committed to our charge, to look circumspectly around us, and to reflect that we are acting upon principles that will be operative, perhaps for centuries to come, both in peace and in war, in the shades of tranquillity, and in the agitations of tumult. On this subject we may, perhaps, derive information from the analogies of private life. If, sir, I am about to depart out of the world, and to leave my estate to my children, who will not arrive at maturity for many years to come, what course would prudence dictate, in relation to the disposal of my property? Would not every consideration of propriety lead me to interpose as many checks and balances as possible to guard it from depredation? Let the same cautious vigilance be resorted to on the present occasion. It is not, however, because I am afraid of the people, that I would provide these checks. It is because I fear that the representatives of the people will not be faithful to their trust. If it is taken for granted, that the representatives of the people are always immaculate-if their hearts are always pure, and their judgments unerring, whence does it happen that we are now assembled? Why have we appointed a committee to establish a bill of rights to stand as landmarks to them and our rulers, and to guard against usurpation and encroachment upon the liberties of the people? Do not these acts prove, that the representatives may

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