one or

from

over which the court has no control, and which, sents the sovereignty of the people, because it is never can be submitted to its determination. directly accountable, and elected at short periods. That is the doctrine of the court, as laid I did not advance the doctrine that the exercise down in the opinion from which I quoted the of judicial power is not the exercise of a deleother day. "The right to decide," says the gated sovereignty to the courts, nor any thing of chief justice, "is placed in Congress and the kind; or if I did, I was betrayed into the utnot in the courts." While upon this sub-terance of a sentiment I never entertained. To ject I desire to advert for a moment to go back, then, the real and practical question pretwo additional extracts the sented is this: Upon constitutional questions. opinion of Mr. Jefferson upon this subject. shall there be a restriction of the power of the In his letter, addressed to Mr. W. H. Torrance, courts which shall prevent them, by the ordinary on the 11th of June, 1815, Mr. Jefferson says: majorities, from pronouncing judgment as they do "The second question, whether the judges are in ordinary cases? It seems to me it is wise to invested with exclusive authority to decide on make the restriction. It seems to me that, in the constitutionality of a law, has heretofore been view of the stirring events of the times, gentlea subject of consideration with me in the exercise men cannot fail to see that if we wish to preserve of official duty. Certainly there is not a word in the executive and legislative departments of the the Constitution which has given that power to government in the exercise of their proper indethem more than to the executive or legislative pendence, we must place some reasonable and branch." proper checks upon interference with the exercise He then proceeds to say that certain questions, of their powers by the judiciary. The learned questions of property, questions of crime, which gentleman says the courts cannot put the Legisare directly submitted to the jurisdiction of that lature in motion or the executive in motion. That court, are within their jurisdiction, and they must is true, sir; but the question is, in what cases decide for themselves. The constitutional validity shall they arrest their action when they are in of the laws prescribing executive action, and to motion? When, within their respective departbe administered by that branch, the executives ments, which are conceded to be independent and must decide for themselves. So as to the laws sovereign, they are proceeding according to their governing the proceedings of the Legislature, that view of the Constitution to administer the govern body must judge for itself of the constitutionality ment, under what circumstances shall the courts of the law, and equally without appeal or control interfere? Now let me suppose a case constitutfrom its co-ordinate branches. So, again on the ed as the court of appeals now is. A question 6th of September, 1819, prior to the letter from has arisen in the supreme court at the circuit, as Mr. Jarvis from which I quoted the other day, in to the constitutionality of a law. The circuit a letter addressed to Judge Roane, Mr. Jefferson judge decides it unconstitutional. It goes to the uses this language: general term, and two out of four judges of the term, "In denying the right they usurp, of exclu- there being but three present, affirm the decision of sively explaining the Constitution, I go further the circuit judge and hold the law unconstitutional. than you do, if I understand your quotation from It is appealed to the court of appeals. It is arthe Federalist, of an opinion that the judiciary gued three times, and four out of six judges prois the last resort in relation to the other depart-nounce the law constitutional, and vote to reverse ments of the government, but not in relation to the judgment, and yet the two in the minority the rights of the parties to the compact under decide it unconstitutional, and that becomes the which the judiciary is derived.' If this opinion law of the State. Now, I want no such injustice be sound, then indeed is our Constitution a com- as this. I want to have the rule of judgment, plete felo de se. For intending to establish three whether it is by affirmance or reversal, upon departments, co-ordinate and independent, that constitutional questions, a uniform rule. they might check and balance one another, has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.

It

should require as many voices to affirm a judg ment as it does to reverse it; and that is practically all there is of my proposition. I submit, therefore, that the adoption of such a provision as this with reference to this class of questions, will be a wise restriction in the Constitution.

"A Legislature had passed the sedition law Mr. MILLER-This is a very important quesThe federal courts had subjected certain individ- tion that is now before us, and I presume that uals to its penalties of fine and imprisonment. many members of the Convention will wish to On coming into office I released these individuals examine this subject outside of the sessions of by the power of pardon committed to executive the Convention. I therefore move to lay the discretion, which could never be more properly resolution on the table for the day exercised than when citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the Constitution, and therefore null."

Now, Mr. President, the learned gentleman is a little incorrect in attributing to me the declaration, in submitting this proposition the other day, that the Legislature is the only power which wields the sovereign authority of the people. I said it was the power that most directly repre

The question was put on the motion of Mr. Miller, to lay on the table, and it was declared carried.

Mr. ALVORD-I move, sir, that when this Convention take a recess to-day, at two o'clock, that it take a recess until four this afternoon.

Mr. S. TOWNSEND-Is that debatable, sir?
The PRESIDENT-It is not.

The question was put on the motion of Mr.
Alvord, and it was declared carried.

Mr. ANDREWS-I voted, I believe, for this section as it stands in the article upon this subject: and the object of the section was doubtless to restrain the Legislature except by the concurMr. VERPLANCK-It seems to me that it rent vote of two-thirds of the members of the would be better to go on and finish our action on two branches of the Legislature from giving the the reports now before the committees before money or loaning the credit of the State, excepconsidering these questions of reconsideration. tion, however, being made in favor of education There are numbers of them to be considered. I and charities. As the section stands, however, have one or two important ones that I am de- it will be seen that while the State may approprisirous to present to the Convention, but I have ate the money of the State for charities and edudeferred doing so with the hopes of getting cation, if two-thirds of the Legislature shall so through with the articles reported by the com-declare, it leaves a bare majority of the Legislamittees; and I think, instead of suspending the lature to appropriate the credit of the State for rules, we had better go on and get through with the same purposes for which the money cannot these articles, and then the subject of reconsid-be appropriated without a vote of two-thirds; eration will properly come up.

tion is totally opposed to the interests of the peo-1 State to aid them in any particular or for any ple of this State, and totally opposed to the in- purpose. I say, Mr. President, to the gentlemen terests of progress and improvement in this State. It is illiberal and unjust. I had supposed that it would be the object of this Convention, and the object of the ruling powers in this State, to encourage public improvements, to encourage the building of railroads, to encourage the construction of canals, and to do that, if possible, which would build up flourishing villages and cities in the interior portions of this State, do that which would encourage the production of wealth in this State; and yet, sir, the action of this Convention has been such that if the work of their hands shall be adopted by the people, it will be almost impossible to build railroads in the interior of this State. In the first place, we have said in this Convention that towns and villages shall not have the privilege of acting in a body and uniting their resources and their energies for the purpose of building railroads; that they shall not be allowed to issue their bonds and levy taxes upon their own people for the purpose of constructing these works of public improvement; and in the next place, we turn around and say that the people of this State at large shall not lend their aid in the construction of these roads so necessary and important to the interests of the people to be built under the Constitution. As they have framed it now, capitalists cannot afford to build these roads, because if they should invest their money in these roads it would be lost to them. These roads would be sold upon mortgages, and they would never receive any thing in return for the capital which they have invested; and therefore, most assuredly, capitalists will never build these roads. Yet the people on the line of these roads, if they could organize, if they could unite their wealth and their energies, could well afford to build these roads. But you have, as I said before, denied them this privilege. You have said that towns shall not tax themselves or give their bonds for the building of these roads. And now, after the people in the interior of this State have been taxed since the commencement of our existence as a State, to build up your large cities on your great lines of communication and travel, which are of little benefit to them, you propose to turn around and say that this State, for all time to come, shall never lend its aid in the construction of a single rallroad, to any extent whatever, for the benefit of the people who live away from these great lines of communication, of railroads and canals. Sir, the people in the interior of this State have been taxed to build the Erie canal; they have been taxed to assist in the building of those roads which now consolidated compose the Central railroad: they have been taxed to assist in building the Erie railroad, as was just said by the gentleman from Rensselaer [Mr. M. I. Townsend]; they have been taxed to improve the Hudson river, year after year, and year after year, and will be probably for years to come. They will be taxed for the purpose of building a Capitol here in the city of Albany which will cost probably from ten to twenty-five millions of dollars; and yet you propose to be so utterly unjust to the people in the interior that you will not allow the

of this Convention, that it may be an easy matter for you to sit here and vote, and pass such propositions as you have passed here; but it will be another thing to get the people of this State to adopt the work of your hands; and I say, as I said before, that the people of the interior of the State will never vote to allow such injustice to be done them as is proposed to be done in this Convention. I think, Mr. President, that we have done already too much in this Convention. We have attempted to do too much, more than the people sent us here to do, and more than the people have required us to do, or wished us to do; and that is one reason why this Convention has become so unpopular as it has all through the length and breadth of this State. We are engaging in all manner of legislation, which the people who sent us here have never asked us to engage in; and I would ask gentlemen in this Convention how many will be found here, when the work is done, to sign such a Constitution as we propose to make? I think we had better spend our time in reconsidering what we have done; and I think it would be better for the people of this State, and better for this Convention, if a large amount of the work which has been done here were reconsidered; aye, sir, we are proposing in this Convention to bind the sovereign people of this State hand and foot, so that they cannot stir or move for their own benefit or for the benefit of the people, for fear that they will do something wrong. I do not think that the people of this State ask this Convention to bind them. I think they desire liberty to act for their own benefit and for the interests of this State, and they do not thank this Convention to place before them provisions to bind them and prevent their acting as they may please hereafter. Why, sir, we shall have a Constitution here with so much legislation in it that it will need to be amended in various particulars every year, and many times in a year. We are making a Constitution that is to last, we hope, at least twenty years; but it seems to me that we do not take into consideration the changes that are to be made in the next twenty years. Can we make here an iron bedstead for the people of this State to lie down upon, making no provision for their future growth, making no provision for the changes which are to take place in this State for the years that are to come? Are we wise enough here to point out every particular, and to specify the exact course which the people of this Stare are to pursue for the next, twenty years? I think we had better leave them at liberty to do as they may please, in some things at least, and not undertake to guide them in every thing that they may desire to do. We should leave this Constitution flexible, so that they may have the largest liberty to act as they may see fit. Now, it is objected to the power of the State to give aid to railroads, that it is aiding a private corporation and not aiding the people. Why, sir, that is aiding the people more than it is aiding any private corporation. Is the great Central railroad running through this State more a private corporation than it is a public enterprise? Who are

accommodated by the Central railroad? Who ever stir away from home, personally received are most accommodated by it? For whose ben- more than ten times that amount in value of con→ efit was it mostly built? Was it for those who venience, in the saving of money, and in the may happen to own the stock in the Central rail- economy of time. This Convention could not be road and may make a little money by it? Are content with saying that two-thirds of the Legthey benefited the most, or are the millions and islature should be required to pass a law giving millions of people who travel rapidly and con- State aid to railroads after these large cities have veniently upon that railroad, and send their received so much aid; they were not content freight over it, year after year, most accommo- with saying that two-thirds shall be requisite to dated by it? Will any man say here that the pass such a law, but we must place in the ConstituCentral railroad is a mere private corporation-ation a provision that no such law shall be passed mere corporation for the benefit of private indi- at all, that the people, however much they may viduals? It is a corporation for the benefit of desire it, shall have no such right. Now, sir, the the people not only of this State but of the Union Albany and Susquehanna railroad, I believe, strugand of the world; and so it is with all the rail-led for years to obtain the two-thirds vote, so roads that are of any importance. That is the that they might pass it over the veto of the Govobject of building these railroads. No objectionernor, and never were able to do it. Small as is made here to the State building railroads and owning the stock. No provision has been incorporated in this Constitution preventing the State from doing that; but consider how much better it would be for the people of this State to aid a little in the construction of the railroads, and allow the people on the line of the road to build it and bear the greater portion of the expense. The people would receive the same or more benefit from it than they would if it was built by the State alone, without the aid of the people living along its line. By giving a slight aid to these railroads, we accomplish every thing for the State that would be accomplished by the State building the road. We encourage public improve ment; we build up flourishing villages and cities in the State; we create a large amount of taxable property in the State for the benefit of the whole people. Mr. WALES-I would like to ask the gentle-quehanna railroad, with all the efforts that they man if it is oue of the functions of the govern ment to build cities and villages?

the amount was which was proposed to give to that road, and great as the benefits proposed to be conferred upon this State were, large as the amounts were that were to be added to the taxable property of this State, they were never able to obtain the requisite two-thirds vote, and they did not get the money until a Governor was elected who would not veto the bill. Will not this Convention be satisfied with that restriction, with that obstacle thrown in the way of requiring two-thirds to pass such a bill? It seems to me that that ought to be eminently satisfactory to this Convention. I know that it will be said that there will be combinations, one enterprise in one part of the State, and another in another, and another in another, and this system of "logrolling" will put them all through by a twothirds vote; but I again call the attention of the Convention to the fact that the Albany and Sus

could make, with all the combinations that they could make, with all the aid that they could obMr. PRINDLE-I take it, sir, that it is one of tain, could never get that two-thirds vote. I the functions of the government to adopt such a ask, Mr. President, and members of the Convenpolicy as will eventuate in building cities and vil- tion, what great harm have the people ever done lages and railroads; and not to adopt a policy through their Legislature in allowing themselves that will put an iron heel upon every public en- to be taxed for the purpose of building railroads? terprise that is attempted by the people; and I What are the bad examples that the people have think the people of this State would much rather set that require you to interpose your hand here a policy would be adopted by this Convention and to prevent them from doing any thing of the placed in this Constitution that shall aid them in kind? Where are the petitions that the people acquiring wealth and prosperity than one that of this State have sent in here, asking you to lay shall interpose obstacles to their growth and your restricting hand upon the aiding of buildprogress. Now I believe most of this noise about ing railroads, and creating wealth in this State? the State being taxed for the purpose of giving I have seen nothing of the kind. I have heard aid to railroads has originated from the fact that nothing of the kind. They say that it is $500,000 was given at one time to the Albany axation for the purpose of assisting monopolies, and Susquehanna railroad. Three-tenths of a railroad corporations, to put money in their mill upon every dollar of taxable property in this pockets. I tell you, Mr President, that the peoState; this, for two successive years. was raised ple, who are anxious for these railroads, to-day, to make up that amount of $500,000. Every say that, by this section, you are aiding the man who had a thousand dollars of property in monopolists of the State, and preventing the furthis State was taxed something like eighteen ther building of railroads in the interests of those cents for two successive years in aid of that great great monopolies that now own the great thorpublic improvement which benefits every person oughfares in this State, and do not want any in the State of New York. It would hardly competition in business; and the people in the seem as if it were worth while to make so much interior of the State who have had their attention noise about a little taxation of that kind; eigh-called to this subject, believe, and firmly believe, teen cents for a thousand dollars for two succes- that many members of this Convention voted for sive years! I venture to say that ninety-nine the eighth section in the interests of these great one hundredths of those who paid the eighteen monopolies. I do not believe that such is the cents toward building that railroad have, if they case, but I believe that the members of this Con

The PRESIDENT-The point of order is not well taken. The pending question on which the previous question is moved, being the motion to reconsider the vote by which the article and not the section was adopted.

The question was put on the motion of Mr. Miller ordering the previous question, and it was declared carried.

The question then recurred and was put on the motion to reconsider the vote by which the article on the finances of the State was adopted, and it was declared carried.

vention have not considered this matter in its the vote by which the section was adopted, and proper light, that they have not given so much I give noticeattention to the wants, the feelings and the interests of a certain portion of this State, and a large portion of this State, as was demanded by the circumstances of the case. I desire to sign the Constitution that shall be made here. No doubt most of the members of this Convention desire to sign the Constitution. But when you go on with this system of legislating, doing so much, you necessarily place so many provisions in this Constitution that the majority of this Convention, at least, I believe, will find that they cannot approve of this Constitution as a whole. How could I sign a Constitution when not one in a hundred of those whom I represent would be willing to vote for it? I think, Mr. President, that the serious consideration of this Convention should be devoted to this subject; and unless some better reason can be given for retaining such a section as this, I believe this Convention would be wise in striking it out, leaving it alone. Let us remain as we were before, with the same powers and provisions that we had before; and I do not think the people of this State will find any fault because we have not placed this eighth section in the Constitution.

Mr. MILLER-I now move a reconsideration of the vote by which section 8 of that article was adopted.

Mr. MERRITT-I rise to a point of order. My point of order is that the question should be taken upon the adoption of the report of the Committee on Finances of the State, we having reconsidered the vote by which the article was adopted.

The PRESIDENT-That section was passed upon separately, the motion having been made in Convention to strike out the section.

Mr. MERRITT-My point of order is that the Mr. BERGEN-I have been an attending mem-vote on the adoption of the article having been ber of this Convention, and am desirous of having reconsidered, the motion, therefore, should be on our labor ended at some time or other. One the adoption of the article. great complaint of the public is the time spent here in discussion. If we are to rediscuss these questions referred to by the gentleman who last addressed the Convention, we may sit here from now till doomsday before we end our labors.

Mr. PRINDLE-Will the gentleman allow me a question?

The PRESIDENT-Does the gentleman yield to the gentleman from Chenango [Mr. Prindle]? Mr. BERGEN-No, sir, I do not yield. I did not dis urb the gentleman. I desire to have an end to our labors at some time or other, and if questions are to be reintroduced and rediscussed here, I think it is our duty to have the previous question moved, and put an end to the matter in that way; for that purpose I move the previous question.

The question was put on the motion of Mr. Bergen, and it was declared carried.

The question was put on the motion of Mr. Miller to suspend the rule, and, on a division, it was declared carried, by a vote of 51 to 15, a two-thirds vote being required.

Mr. MILLER-I move to reconsider the vote by which the article on the finances of the State was adopted.

Mr. McDONALD-I hardly think this Convention

Mr. MILLER-I supposed that I had the floor. I think that on this question the discussion would more properly come up on the amendment I shall propose to the section, and I, therefore, move the previous question on the motion to reconsider the vote by which the article was adopted.

The PRESIDENT-The point of order is well taken.

Mr. MILLER-I would ask the Chair whether the motion to reconsider the vote by which section 8 was adopted is now in order?

The PRESIDENT-Not at all. The question upon the adoption of the article, and that brings the Convention under the head of amendments generally to the article.

Mr. MILLER-Then I move to strike out section 8, and to insert in place thereof section 9 of the present Constitution, as follows:

The credit of the State shall not, in any manner, be given or loaned to or in aid of any individual, association or corporation."

The PRESIDENT-The Chair would state to the gentleman from Delaware [Mr. Miller] that it does not understand that the vote by which the Convention refused to strike out section 8 has been reconsidered.

Mr. MILLER-Then I move to reconsider that vote; I understood the Chair to say that that was not in order.

The PRESIDENT-That is in order by way of amendment.

The question was announced on reconsidering the vote by which section 8 was adopted. Mr. McDONALD-Mr. President

Mr. MILLER-I move the previous question on that motion

Mr. McDONALD-I rise to a point of orderThe question was put on the motion of Mr. Miller, and it was declared carried.

Mr. McDONALD-I rise to a point of order. I give notice that if it is the design to carry through this measure in this way, I shall raise the question of a quorum.

Mr. McDONALD-I rise to a question of order. My point of order is this, that this question has been considered in Convention, and re- The PRESIDENT-The Chair would inform ceived a vote of 57 to 36 on a motion to reconsider the gentleman from Ontario [Mr. McDonald] that