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additional judges of the supreme court then contemplated. The appointment of these judges was zealously urged for the purpose of acquiring a majority in that body friendly to the party in power, and for the special purpose of preventing the passage of a particular law incorporating a bank in New-York. He feared, at the time, that a measure of this kind would prove fatal to the best interests of the state, by increasing the number of judges for temporary and party purposes; and, therefore, determined to risk the consequences, as regarded himself, and to prevent the adoption of that measure; and it was partly to arrest this scheme, that he took upon himself all the responsibility, and subjected himself to all the odium that might follow a step calculated to excite so much feeling and resentment, as a prorogation of the legislature.

He was not, he said, opposed to a negative on legislation, but could not consent to place it in the hands of the governor alone. If other men could be associated with him, with a stable tenure of office, respectable for talents and information; and who were not liable to the same objection as were the present constituent members of the council of revision, he should be decidedly in favour of such a negative. The opinion of Mr. Jefferson, which had been read from his Notes on Virginia, so far from sustaining the gentlemen in the inference they have drawn from it in favour of clothing a single individual with the power, was in corroboration of vesting this power in a tribunal, in which the governor should preside with learned, permanent, and independent characters associated with him. It was not proper to confide it to the governor alone, because he might not always be a professional man, or acquainted with the interpretation and construction of statutes, treaties, or constitutions, and therefore not the most competent to judge whether bills did or did not infringe the constitution, or cardinal principles of government.

It is said that legislative bodies are liable to act hastily and unadvisedly. Why more precipitate than the governor? Senators are elected for four years, and the governor for three only, and a committee have already reported in favour of even a less term. Has a governor, as such, more wisdom than he would have as a senator? It appears by the statement made by the honourable member from Oneida, that the governor, fortified by the wisdom of the whole judiciary, has made more hasty and unadvised objections in proportion to the number of bills objected to, than have the legislature passed unadvised bills in proportion to the number they have passed. A man's sense and intelligence did not depend upon the title or dignity of office, and he could not be supposed more likely to act hastily and unadvisedly in one office than another.

The conduct of men depends upon their heads and hearts, not their stations; if the former be correct, the people have nothing to apprehend from them in any station; but if these be bad, the people have every thing to fear from them in every office. He could not see the argument drawn from the precedent in the United States' constitution, in the same light with the gentleman from Queens. That was a constitution which had grown out of a compromise of conflicting interests, and therefore it ought not to be considered that its provisions were all such as commanded the assent and approbation of all. Would several provisions of that instrument have been incorporated, had New-York alone been represented in that Convention? Certainly not. Besides, the constitutions of the states then represented, had been formed at the moment of emerging from colonization to an arbitrary government, and which had therefore generally incorporated this feature in their state constitutions; and it was natural, that with no other examples or experience before them, they should make the constitution of the union comport in this respect with their own state constitutions.

MR. VAN VECHTEN. The injurious deduction against the council of revision, which has been drawn by some gentlemen from the unanimity of the Convention in favour of the resolution for its abolition, seems to render it necessary, for those who do not assent to that deduction, to state the reasons for their vote-I shall therefore briefly give my explanation on the subject.

I did not vote for the resolution from motives of courtesy to the judiciary, because the duties of the council are of an unpleasant nature, and the judicial members desirous to be released from them. It does not accord with my viewe

of propriety, to exonerate public functionaries from important duties on the ground of personal accommodation.

Nor did I vote for the resolution because I disapproved of the judiciary being charged with the duties assigned to the council. On the contrary, I consider it a wholesome provision, calculated to give to the qualified negative, on the lawmaking power, a sure and salutary operation. This opinion is justified by our experience since the establishment of the constitution, as the gentleman from Oneida (Mr. Platt,) has clearly shown. Nay, the legislature, by an almost uniform acquiescence in the objections of the council, has recognized the wisdom of its proceedings.—For, of one hundred and twenty-eight cases in which bills have been objected to, there are only seventeen in which the objections did not prevail.

My only reason for agreeing to abolish the council, is because the firm and faithful performance of its duties, on some occasions, has produced great party excitements, and much clamour against the judiciary. Such clamour, stimulated and extended by the exertions of a powerful party, may, in a degree, impair the confidence of the public in the rectitude and impartiality of the judiciary. Party spirit is not likely very soon to subside in this state-There appears, therefore, to be no other course for preserving entire confidence in the judiciary, than to remove from it the duties of the council. This impression has turned my vote in favour of the resolution for its abolition. But when that resolution was unanimously adopted, I did believe, that the organization and proceedings of the council had no connection with the substitute reported by the select committee for the third article of the constitution, or with the modification of that substitute moved by the gentleman from Dutchess (Mr. Livingston.)

It seems, however, that other gentlemen think differently; for the wisdom of its organization, and the merits of its proceedings have occupied much of the time of the committee during the present discussion. It will, therefore, not be deemed improper in me, to notice some of the remarks which have been made on these subjects.

The gentleman from Otsego (Mr. Van Buren,) considers the organization of the council objectionable, because the judiciary is independent of the people. The force of this objection, I must confess, does not strike my mind. It appears to me that the independence of the judiciary gives to the restraining power, on hasty, intemperate, and irregular legislation, its greatest energy: and the wisdom, sound discretion, intelligence, and weight of character appertaining to the judiciary, combine public security with energy in the council.

The gentleman from Richmond (Mr. Tompkins,) seems to admit, that heretofore, when the state was in a great degree exempt from the violent agitations produced by the ardent collision of political parties, the operations of the council were salutary-but he alleges that during many years last past, its proceedings have sometimes been directed to subserve party purposes; and he has added the grave charge of usurpation against the council.

The first allegation I appehend is levelled, not so much at the wisdom of the organization of the council, as at the individuals who composed it-for the gentleman should remember, that it is not the fault of the constitution, if public functionaries misuse their power. It is to be feared that the baneful influence of party spirit has not unfrequently been felt in every department of the government, and according to the gentleman from Dutchess (Mr. Livingston,) this is no evil, for he seems to hail its existence as the genius of republicanism. Is it, then, surprising, that when party jealousy was wide awake, and the exercise of the objecting power by the council, created obstructions to party views and measures, the purity of the motives of its members, (who are men of like passions with ourselves,) should be suspected by the supporters of such views and measures-for jealousy naturally begets suspicion, and suspicion inclines the mind to the belief of what we suspect. But is such a belief evi dence? Does it prove that any member of the council has ever been influenced by party motives when performing his duty in that department? The objections of the council, and the reasons assigned to support them in every case, are on record; and to the record we should look for the evidence by which its members are to be judged.

The charge of usurpation made by the gentleman from Richmond, (Mr. Tompkins,) rests upon an assertion, that the objecting power of the council is limited by the constitution, to bills inconsistent with the spirit of that instrument. If he be incorrect in his opinion on that point, his charge of usurpation is manifestly unfounded. What is the language of the constitution on this subject. "Whereas laws, inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed: Be it ordained, That the governor for the time being, the chancellor, and the judges of the supreme court, &c." Does not this language extend the objecting power of the council to bills which may be deemed inconsistent with the public good, as well as to bills inconsistent with the spirit of the constitution?

Again. What has been the practical construction of the constitution from the time it went into operation down to the present day? The gentleman from Oneida, (Mr. Platt,) has shewn, that the council has uniformly applied its objecting powers to both description of bills. Was this an usurpation? Is not usurpation, by any of our public functionaries, an offence of a high and alarming nature? Where were our patriots and sages of the revolution, when this daring usurpation commenced? Were they absent, or asleep at their posts? Nay, where have the champions of the constitution, the faithful watchmen of the majesty of the people, becn, during its continuance ever since? Were they, too, absent, or asleep at their posts, that the flagitious usurpers have not been brought to condign punishment? The simple truth is, that this complaint of usurpation, if well founded, would cast an indelible reproach upon our wisest and best men, as well as on our most clamourous patriots, for remissness-for tame and servile acquiescence in a system of profligate usurpation. Is any gentleman, who hears me, willing to take such a reproach upon himself?

I will now pass on, to offer a few remarks upon the proposition reported by the select committee, and the amendment of the gentleman from Dutchess, which are the proper subjects of discussion. The merits, of both the proposition and amendment, have been so fully developed, that I shall content myself with stating concisely, my reasons for preferring the former.

It seems to be agreed, on all sides, that it is wise to place a qualified negative on the legislative power, somewhere.-The select committee propose to give it to the executive solely, in the same manner that it now resides in the council of revision. The amendment offered, proposes to give a majority of the members, elected to each branch of the legislature, the power of passing a bill, any objections made thereto notwithstanding.

I do not agree to the amendment; because, 1st. The objecting power will be materially weakened by vesting it in the executive alone, and the amendment will enfeeble it still more. For it is not probable, that when a majority of both legislative branches have passed a favourite bill, they will permit it to be defeated by the single negative of the executive. 2d. In case any considerable number of members should be absent when a bill is returned with objections, it may not be practicable, at all times, to obtain a constitutional decision upon the objections, without some delay and inconvenience.

Having declared myself in favour of the proposition reported by the select committee, it behoves me to reply to some of the objections which have been urged against it.

The gentleman from Richmond says, that the judiciary possess competent power to set aside unconstitutional laws, and that he is willing to repose himself en that power for safety. But he seems to have forgotten that the judicial power operates correctively, and cannot be called into exercise until a law is in operation-until wrongs have been committed under it, and the sufferer presents his case in due form to a judicial tribunal for decision, and that in the mean time, great mischiefs may result from the operation of unconstitutional laws.

Again. The judicial power cannot reach the evils of hasty, unadvised, and pernicious laws, which do not conflict with the letter or obvious spirit of the constitution. The proposition of the select committee creates a preventive power against the passage of such laws, which includes unconstitutional laws also. Is this not desirable? Is it not wise to provide a reasonable guard

against the passage of unwholesome laws of every description? Is it a sound objection to such a guard, that the judiciary has competent power to arrest eventually the operation of an unconstitutional law? I apprehend not.

The gentleman from Richmond supposes that the wisdom and virtue of the two houses of the legislature, elected as the members are, by different classes of electors, affords adequate security for deliberate, and wholesome, and wise legislation. If his supposition be correct, the additional security of a qualified negative, vested in the executive, cannot operate injuriously-For the wisdom and virtue of the legislature will not be impaired by requiring it to re-examine any bills which it has passed, with the aid of the additional lights which the objections of the executive may furnish.

Again. Can any gentleman determine how long the present distinction, as to the qualifications of electors, will be preserved? Should that distinction be done away, the argument derived from it will fall to the ground.

It is further objected, that the qualified negative of the executive may defeat the passage of salutary laws. I conceive, sir, that the power of doing good includes the power to do evil. The validity of the objection depends therefore on the probability of danger that the power will be abused-Is there good ground to apprehend that the executive will abuse the objecting power? The opposers of this proposition tell us, that full confidence may be reposed in the wisdom and virtue of the legislature, because the members depend on the will of the people for their seats. And is not the executive chosen by, and therefore equally responsible to, the people? Does the theory, or practical operation of our government, justify a belief, that the people have less regard to wisdom and virtue in the choice of their chief magistrate, than in the selection of their senators and members of assembly? Surely not. Then let me ask whether it is a reasonable presumption, that the collective wisdom and virtue of the legislature will be diminished, by adding to it the wisdom and virtue of the executive in the mode proposed, and for the purpose contemplated by the select committee? It seems to me that the reasoning of gentlemen against the proposition, is palpably fallacious and incongruous. The only solid objection, in my opinion, to placing the objecting power in the executive, is, that it will not be exercised so often, nor with so much firmness and effect, as the public good may require.

Again. If the sense of the people on this subject is to be regarded, we have their sense in favour of a qualified negative explicitly declared in the Convention of 1777, and virtually reiterated in the Convention of 1801, by adhering to the third article of the constitution, by which the council of revision was instituted. Nay, we have the testimony of the United States, in favour of the proposition of the select committee, corroborated by the separate and concurring testimony of many individual states, and by the approbation of the most enlightened and distinguished statesmen throughout the union.

But I will not trespass longer upon the indulgence of the committee. I give a decided preference to the proposition of the select committee, and therefore shall vote against the amendment offered by the gentleman from Dutchess.,

GEN. TALLMADGE rose to explain. He said, when the gentleman from Otsego (Mr. Van Buren) had the floor, he did not correct an error into which he had fallen, because he expected to reply. The gentleman from Richmond (Mr. Tompkins) having fallen into the same crror, it became his duty now to explain.

Mr. T. said it was imputed to him, that he had declared that the select committee had made their report to separate the judiciary from the council of revision, upon grounds of kindness to the judges, and a belief of the uniform correctness of the conduct of those men. He said he had made no such declaration. It would be remembered, that the gentleman from Delaware (Mr. Root) had declared on the floor, that the report to separate the judges had been made by the committee, upon the ground of the malconduct of the judges, and the just odium which had attached to their characters. He could not, as chairman, admit. by his silence, such motives to be attributed to the committee, or to himcit. In reply to the charge of corruption in the judges, he did declare, that no such consideration influenced the committee--that they had been in£uenced by the great and known principles of government, to provide a separation of

the judiciary and legislative powers. He had expressly disclaimed any expres sion in regard to the individuals. He had declared that it was intended to write no" inscription" either upon the living or the dead-and then, and as pointing out the benefits resulting from the separation, he had said it would serve to disconnect the judges from politics-shelter them from imputations, and be a kindness to them. In the performance of his duties in this Convention, he should not allow his opinions of men, or the virtues or vices of any incumbent of office, to influence his course. He felt that he was called to legislate on great principles, for the good of ourselves and for posterity, and not with regard to individual cases. He thought he had before been sufficiently explicit.

MR. RADCLIFF had hoped that the report of the committee would have been adopted with the same unanimity with which the resolution for abolishing the third article of the constitution had been passed on Tuesday. But there was now, he perceived, little hope of it. From the turn the discussion had taken, he thought further examination necessary-particularly with regard to the precedents which had been cited from other states. He moved, therefore, that the committee rise and report.

The motion prevailed, and the Convention adjourned.

FRIDAY, SEPTEMBER 7, 1821.

The session was opened by prayer by the Rev. Mr. MAYER. The President took the chair at 11 o'clock, when the minutes of yesterday were read and approved.

MR. SHELDON, from the Committee who were directed to enquire whether any, and if any, what alterations are necessary to be made in that part of the constitution of this state which relates to the executive department, reported:

That the following amendments ought to be made and substituted, instead of the 17th, 18th, and 19th articles of said constitution.

And this Convention doth further, in the name and by the authority of the people of this state, ordain, determine, and declare, that the supreme executive power and authority of this state, shall be vested in a governor, and that statedly once in every two years, and as often as the seat of government shall become vacant, a freeholder, who shall have been fourteen years previous to his election, a citizen of the United States, and who shall have resided in this state five years next and immediately preceding his election, unless he shall have been absent on public business of the United States, or of this state, and who shall have attained the age of thirty-five years, shall be by ballot elected governor by the electors qualified to vote for the most numerous branch of the legislature; which election shall always be held at the times and places of choosing representatives in assembly for each respective county; and the person having the greatest number of votes within the state, shall be governor thereof, who shall be eligible to said office not exceeding eight years out of ten.

That the governor shall continue in office two years; and shall by virtue of his office be general and commander in chief of all the militia, and admiral of the navy of this state; that he shall have power to convene the senate and assembly, on extraordinary occasions; to prorogue them from time to time, provided such prorogation shall not exceed sixty days in the space of any one year; and at his discretion to grant reprieves and pardons to persons convicted of crimes, other than treason or murder, or crimes punishable with death; in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve. And it shall be the duty of the governor to report annually to the legislature the names of the persons pardoned; the crimes, the time when convicted, before what court, and the reasons for granting such pardon.

That it shall be the duty of the governor to inform the legislature at every session, of the condition of the state, so far as may respect his department; to recommend such matters to their consideration as shall appear to him to concern its good

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