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should never, never, have been permitted, and he hoped provision would be made, which would for ever prevent their recurrence.

Again, said Mr. Tallmadge, Pennsylvania has been cited as authority in support of the proposed amendment. This precedent was peculiarly unfortunate, as that state, after giving the principle in debate, a fair trial, was compelled to change the system. The legislature of Pennsylvania at first consisted of one department, and its power soon became so exorbitant, as to create alarm, and to lead to an amendment of the constitution, and an adoption of the precise principle under consideration. In their first constitution, they had provided for a board of censors, who were to report and determine whether any infractions of the constitution had taken place, and at their first meeting they reported that numerous and flagrant violations had been made by the legislature; but let it be remarked, that not a single encroachment had been made by the judiciary or executive. "But go to the west," says my honourable colleague (Mr. Livingston,)" there you will find wisdom." Yes, sir, go to the west, to those states which have provided no checks upon the omnipotence of the legislature, and it is there that you will find your stop-laws, laws violating private rights, contracts, and in many instances, the constitution of the United States.

Virginia, too had been introduced as a model; and her statesmen and patriots called up in splendid array. But after all, what had been the experience of that state? On this subject he begged leave to refer to the opinion of one of her greatest statesmen, he meant Mr. Jefferson. In his Notes on Virginia, that distinguished gentleman spoke freely of the defects of the constitution of that state. According to him, the government was administered by concurrent resolutions, and the governor was a mere creature of the legislature. If Virginia should ever call a convention to amend her constitution, this feature would undoubtedly be expunged; and yet we were called on to adopt these very defects.

The honourable gentleman from Albany, (Mr. Kent) had spoken feelingly upon the subject of our being about to destroy one of the pillars of our constitution. Such an impression might have gone abroad; but in justice to the committee who had reported the amendment under consideration, he must be permitted to say, that they were unanimous in their determination not to touch one principle of the third section; but only to separate the judiciary from the legislative power. The committee have not wished to innovate upon one principle of the government, but strictly to improve its errors. So far from breaking down the judiciary, they would add to its strength—so far from demolishing our political fabric, they would add to the beauty of the structure.

He (Mr. Tallmadge) concurred in the sentiments yesterday expressed by the gentleman from Albany, (Mr. Spencer,) in believing, that the great departments of governments should be kept distinct, and as independent of each other as possible. The supervising power should be lodged with some depository, who should not be the mere creature of the legislature, but would perform the duty with firmness and decision. For his part, he entertained fears, that our government would be rendered too weak, rather than too strong. [Here Mr. Tallmadge observed, that although he would wish to add a few other remarks, he perceived the hour of adjournment had arrived, and he should not, at that time, trespass farther upon the patience of the Convention.]

The committee then rose, and reported progress; and asked for, and obtained leave to sit again. Adjourned.

THURSDAY, SEPTEMBER 6, 1821.

Prayer by the REV. DR. CHESTER. The President took the chair at 11 o'clock, when the minutes of yesterday were read and approved. MR. SHELDON said, a circumstance had occurred which was not provided for

by the rules of the Convention, and which created some embarrassment in the proceedings. He stated some of the difficulties to which he alluded, and moved an amendment to the 11th rule.

CHIEF JUSTICE SPENCER thought the subject should be referred to the standing committee on the rules and orders of the Convention, which had, as yet, only reported in part. There were some other rules and amendments necessary. The other day a division was taken in committee of the whole. This, in his opinion, was decidedly wrong. Members voted upon propositions, upon condition that certain other provisions should be made to the constitution. It is therefore wrong, that divisions should be taken in committee of the whole; or until all the propositions shall have been discussed, and shall be taken up for final consideration in the Convention.

MR. SHELDON Suggested another amendment, but both were withdrawn; and On motion of COL. YOUNG, a resolution was adopted, instructing the committee, appointed to draft rules and orders, to report what rules, if any, were necessary for the government of the proceedings of the Convention.

THE COUNCIL OF REVISION.

On motion of MR. P. R. LIVINGSTON, the Convention again resolved itself into a committee of the whole on the unfinished business of yesterday.-Mr, Sheldon in the chair.

GEN. TALLMADGE, in continuation of his remarks of yesterday, observed, that when he concluded, they were considering the precedents of Pennsylvania and Virginia, and the defects in the government of the latter pointed out in the Notes of Mr. Jefferson. Virginia has been referred to as the pattern of republicanisın: Sir, the constitution of that state requires a large freehold for a voter in any case. No person can vote for the least officer in the government, unless be be a freeholder; and the government of the state is in fact an aristocracy. Efforts, too, often have been made, and are still making, to have a Convention to revise and alter the constitution of that state; but this is unavailing; the legislature, elected by landholders, refuse their sanction; the measure cannot, therefore, be brought about, and the aristocracy continues. An allusion had been made by his colleague yesterday, to the precedents of those states, which have not provided for a qualified negative under any circumstances. Rhode Island, among other states, has been instanced. Sir, look at the history of that government. She has no constitution except a charter, and occasional laws. Look at the paper money and tender-laws once enacted there, and the frauds upon the public-and other acts which one time rendered that government a libel upon the character of that state. Mr. T. well remembered them, and it would also be remembered that they had well nigh overthrown the government—such as it was.

I am to be told, said he, that my argument is founded on the corruption of the legislature; but remember that when I spoke of the legislature, I spoke of of the members as being the representatives of the people. It is not the people themselves, but their agents, which are corrupt-and unfortunately, we have too many facts before us to justify a denial, that majorities in public bodies cannot always be trusted with safety. I will not say our own state affords any instances, either of corrupt, or of hasty, or unadvised legislation. To test the safety and prudence of reposing entire confidence in legislative bodies, turn your eyes to the state of Georgia. It will there be found, that one legislature elected by the people, enacted a law which the next succeeding legislature pronounced to be corrupt, and directed it to be burned by the common hangman. It was not for him to pronounce which was correct. But it abundantly proves the danger to the public welfare in trusting all power to legislatures, without a proper supervising authority. And let it not be said there is such immaculate purity in the representatives of the people. He wished the argument were a true one, but experience forbids us to believe it. We do not ask for a veto as in a regal government; but as our constitution has wisely provided, that our legislature shall consist of two branches, one in which bills generally originate, the other less numerous to reconsider them, and a

er.

third, the supervising power, less liable to encroach upon the rights of property, and the liberties of the people. It is necessary there should be a system of checks and balances, to prevent the legislature from monopolizing all powWhere this is not the case, and where the sole power of enacting laws is lodged with one body, or one individual, there must be tyranny. His honour. able colleague (Mr. Livingston) had yesterday invoked the majesty of democracy.—Sir, said Mr. T. I recognize no such majesty. The majesty of democracy reigns not in this republican country; but we have a sovereign people, with whom, of right, all political power resides, and from whom alone it emenates. We have a government of laws, founded on equal rights, and based on the principle of representation. It was the distinguishing character incorporated into our governments, and the great feature wherein ours differed from the ancient republics. The rock upon which they were ruined, was marked on the chart before us-it was our business to avoid it-and the principle of representation must be adhered to as of vital importance. Secure to the people in your constitution, reasonable and proper rights-keep them from meddling with government in their collective capacity-let them enjoy freedem in their agricultural, commercial, and manufacturing pursuits, with the constant accountability of all officers to them, and then you will have a government whose ingredients will be stable and permanent. Without these precautions, we may see that majesty which has been so feelingly invokedThe majesty of democracy.' It once reigned in Paris. It was the majesty of democracy in the consummation of its mad career, which inscribed upon accountable man, Death is eternal sleep. It should be the prayer of his life that no such majesty should ever reign over this now happy land.

His maxim was caution and moderation in approaching the constitution: avoid innovations in its principles. Let the work of our fathers be preserved, after undergoing wholesome amendments. Preserve the principle of proper checks and balances, as provided by them, and you may remedy the defects which experience has pointed out. Suppose for a moment, that the executive possessing this veto, should think proper to suspend the passage of a law and two-thirds of the legislature should be unwilling to pass it. The experience of the community shews, that no essential injury could result from such a suspension. If in the sequel it should prove that it was a wise and salutary law, which was thus suspended, and that the veto was injudiciously exercised, the evil would be only temporary, and the final passage of the law could not be defeated. If it be a bad law, and it be once passed, it can never be recalled-if it be a good one, there will be nothing to prevent its passage, when the representatives shall have been changed by a new election. Sir, suppose the most unimportant case-suppose a turnpike act be passed, and rights and property be vested under it. It was unfortunately passed, but cannot be repealed. But if the executive, by the exercise of his veto had suspended it, where would have been the injury of a temporary delay? And permit me to add, the history of the world will show, that the folly of republics has been an excess of legislation.

He must again urge the necessity of keeping the constitution properly balanced, and avoiding all innovations in its principles.

Sir, what is the amendment offered? It is to change the principle of requir ing the sanction of two-thirds to any bill which may be returned with objections, to a bare majority of the whole number elected. The amendment proposed by the committee, he had thought was so plausible, and so just, that it would have been adopted by the Convention without opposition.

Some gentlemen have entered into nice mathematical calculations, to shew that a majority of the whole number elected may possibly be a greater check than two-thirds of the members that may be present, and have gone so far as to look over the journals of the legislature, to ascertain the number of members usually absent.

If what they have told us be true, on ordinary occasions, the veto might be of little use; but let us preserve it nevertheless. In the time of faction, or popular commotion, every member would be found in his seat, and it may then be the means of saving the country.

I hold it not to be an immaterial amendment, for it goes to violate that max im laid down by all political writers, to separate the departments of govern ment, and guard the one from encroachments by the other-and the conse. quent introduction of tyranny by the consolidation of all power into one branch. Let us not with sacrilegious hands, prostrate those venerable princi ples for which our fathers fought and bled, nor demolish those columns in our political fabric, which they have reared.

In conclusion Mr. T. said, there were other views of this subject which it would be proper and right to offer; but he was aware that he had already trespassed upon the time of the committee, and he would forbear to say any thing more at present.

MR. VAN BUREN. I had flattered myself, Mr. Chairman, that the Conven tion would have adopted the revisory power proposed by the select committee, with the same unanimity with which they determined, on Tuesday, to expunge the third article of the constitution, and to separate the judiciary from the legislature. But in that expectation I have been disappointed. Notwithstanding the unanimous recommendation of the select committee, and the able manner in which it has been supported, a powerful opposition to it appears to exist. A proposition has been made by the gentleman from Dutchess (Mr. Livingston) which, from the respectability of the source from whence it emanates, the precedents on which it is founded, and the talents and character enlisted in its support, is entitled to the highest consideration. I shall, therefore, proceed to the discussion, with all the brevity which the importance of the subject will admit, and all the simplicity of which I am capable.

In the course of that discussion, the first question for our consideration, is, whether it is wise and proper that a restriction of any kind should be placed upon the legislative power? On that subject it would seem that little doubt could remain. That a check of some kind is necessary, is a principle that has received the sanction, and been confirmed by the experience, of ages. A large majority of the states in the union, in which, if the science of government be not better understood, its first principles are certainly more faithfully regarded than in any other country, have provided restrictions of this sort. In the constitutions of the freest governments in Europe, the same principle is adopted. It is conceded in both the propositions before the committee.

The one imposes the restriction by requiring two-thirds of the legislature to pass a bill which may have been returned; and the other, by requiring not only a majority of the members present, but a majority of all the members elected. It would scem, therefore, that on the general principle that a restriction is proper, we are all agreed; and the question arises, is the amendment proposed by the gentleman from Dutchess inore desirable, and better adapted to perform the office intended, than the proposition introduced by the committee? To arrive at a just conclusion on this subject, it will be necessary carefully to consider the design of such a check, and the advantages which are expected to result from it. Its object is, first, to guard against hasty and improvident legislation but more especially, to protect the executive and judicial departments from legislative encroachments. With regard to the first of these objects-the prevention of hasty and improvident legislation-the system of every free go. vernment proceeds on the assumption that checks, for that purpose, are wise, salutary, and proper. Hence the division of all legislative bodies into distinct branches, each with an absolute negative upon the other. The talents, wisdom, and patriotism of the representatives could be thrown into one branch, and the public money saved by this procedure; still experience demonstrates that such a plan tends alike to the destruction of public liberty and private rights. They adopted it in Pennsylvania, and it is said to have received the approbation of the illustrious Franklin; but they found that one branch only, led to pernicious effects. The system endured but for a season; and the necessity of different branches of their government, to act as mutual checks upon each other, was perceived, and the conviction was followed by an alteration of their constitution. The first step, then, towards checking the wild career of legislation, is the organization of two branches of the legislature. Composed of different materials, they mutually watch over the proceedings of each other. And

having the benefit of separate discussions, their measures receive a more thorough examination, which uniformly leads to more favourable results. But between these branches, as they are kindred bodies, it might sometimes happen that the same feelings and passions would prevail-feelings and passions which might lead to dangerous results. This rendered it necessary to establish a third branch, to revise the proceedings of the two. But as this revisory power has generally been placed in a small body, or a single hand, it is not vested with an absolute, but merely with a qualified, negative. And our experience has proved that this third provision against hasty and unadvised acts of the legislature, has been salutary and profitable. The people of this state have been in the habit of looking at the proceedings of the legislature thus constituted, and they have been accustomed to this revisory power. Their objections have never been that this revisory power existed, or that it was distinct from the legislature; but they do complain that it is placed in improper hands; in the hands of persons not directly responsible to the people, and whose duty forbids all connection with the legislature. I am one of those who fully believe in the force and efficacy of that objection.

The council of revision was disposed of by the vote of Tuesday, and I could have wished that all further discussion on the subject of its merits or demerits had been dispensed with; but a different course has been pursued. From the explanations of the chairman of the select committee, the public would infer that we voted for the abolition of the council of revision from feelings of delicacy and tenderness to the judiciary and to shield them from unjust calumny. Sir, my vote was not given from any such motive. I will not vote for the abolition of any article of the constitution out of kindness to any individual. I should be ashamed to have my vote go forth to my constituents upon any such grounds. The council of revision has not answered the purposes for which our fathers intended it. This is the ground and motive upon which my vote was given. 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. I am warranted by facts in making this objection. such had not been the case, I should not have voted for expunging the third article of the constitution.

If

I highly esteem the honourable gentleman from Oneida, (Judge Platt,) who yesterday thought it his duty to raise a discussion upon the merits of the council. I regret that he has done so. [Judge Platt rose and stated, that that part of the subject was distinctly introduced by the gentleman from Dutchess, (Mr. Livingston) and that he felt it his duty to reply. It was that gentleman who had given this direction to the debate.] MR. VAN BUREN. I was not aware of that fact, but it in no sense changes the character of what I feel it my duty to say. No man on this floor is more averse to a discussion on that subject than I am; but since the example has been set, I shall proceed. I respect the members of the council of revision, and for their sakes, this debate should never have been introduced. It will become our duty to revise that part of our constitution relating to the judiciary, and it is of vital importance to its members, to preserve them free from prejudice.

Sir, have I not assumed the true ground which occasioned the unanimous vote of Tuesday, for separating the judiciary from the legislative department? It needs but a slight view to shew that the operations of the council have been such as I have stated. On this subject I will only call the attention of the committee to two instances. The first, is that to which the gentleman from Dutchess yesterday adverted. I ask the convention for a moment to recur to that lamentable occasion, when the high power of prorogation was exercised by the executive, to check the torrent of corruption, which had set in upon the legislature, and which proved the wisdom and necessity of some constitutional check. This proving ineffectual, every eye was turned to the council of revision, to arrest the progress of the measure about to be adopted. What was their course? The bill which had occasioned that strong exercise of power, was

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