But it has occurred to others as well as to myself, that a somewhat fuller explanation than has been yet given of the reasons which actuate us in consenting to the reported amendment to the constitution, has been rendered necessary by the course of the debate: Such an explanation, we conceive, is due to ourselves due to our constituents, and due to the vast majority of the people of this state, whose peaceful triumph over their adversaries, over those who by an extraordinary stretch of power, (to give the act its mildest term) sought to defeat their wishes so frequently and fully expressed, we are in effect now celebrating, and by our acts are bound to consummate.

Notwithstanding all that has occurred-all that has been said in the progress of this debate, I yet entertain the hope that the amendment as reported by the select committee will survive, not merely the attacks of its adversaries, but the more dangerous support of some of its professed friends, and will finally receive the sanction of the Convention. I intend no disrespect to the gentlemen to whom I allude by these expressions, but I refer to that inconsistency which many have strongly felt between the arguments they have urged, the opinions which they have expressed, and the conclusions which they have adopted. Did I entertain the sentiments in relation to the council of revision, which some gentlemen have taken such pains to avow, I should feel myself constrained to exert my best abilities and all the influence I could command, to prevent the passage of the amendment; not indeed with the view of adopting the alteration proposed by the gentleman from Dutchess, (Mr. Livingston) but for the purpose of securing and re-establishing on its former foundations an institution, which, if all that has been said in its praise be true, we have rashly, if not wickedly, consented to destroy. It is with great surprize, I must own, sir, that I have listened to these praises, and I cannot help thinking, that at this time, and on this floor, they ought not to have been uttered. They were calculated to provoke a discussion that in common prudence ought to have been avoided. The causes that have led us to dissolve the council of revision, ! had supposed, were understood and felt by all; and I had hoped that we should be permitted to exercise in silence, that sentence of condemnation which the voice of the people had so clearly pronounced. But a different course has been adopted. Those who, as it seems to me, were most interested to maintain this silence, have been the first to violate it, and have, in effect, challenged a discussion which a great majority of this committee would willingly have consented to waive. A formal elaborate elogium has been pronounced on the character and acts of the council of revision. Its salutary influence in restraining legislative usurpation, and the purity of the motives by which its members have been actuated, have been loudly asserted. The imputation that political feelings have been permitted to pollute the sanctuary of its deliberations, has been repelled in a tone of lofty indignation, and an appeal has been confidently made to the gratitude and veneration of posterity, from the ignorance, and prejudice, and passion, that now prevail. And yet, sir, this very council of revision, by an unanimous vote, we have consented to abolish! There is something in all this that I must confess I find it difficult to comprehend, and the reasons that have been assigned to reconcile the PRAISES and THE VOTE, have served only to increase my surprize. I am sure, sir, that the reasons to which I refer, are not those that have influenced the majority of this committee, and could we assent to the justice of the praises that we have heard, I trust that we should feel it our duty to rescind the resolution that we have passed, and reject the amendment proposed by the select committee, as not merely an useless, but a pernicious innovation. We could never consent, I imagine, to sacrifice a wise and beneficial institution to the authority of an abstract speculative maxim. Still less could we consent to abolish it to relieve its present members from the suspicion and calumny to which it is insinuated that the firm and independent discharge of their duties had exposed them. In this, and in all cases, the honour and the burthen must be taken together. A necessary office is not to be abolished because its temporary possessors shrink from the responsibility which it imposes. The authority of every political maxim must depend exclusively upon its truth, and if no public evils are found to flow from the

supposed union of the judicial and legislative powers in the council of revision, the maxim that prohibits such union must be false.

It is indeed true, sir, that in a well regulated government, the judicial executive, and legislative departments ought to be kept separate and distinct; but the meaning of the rule obviously is, that the whole powers of neither department ought to be vested in another; that those who make your laws should not be permitted to interpret or execute them. Not that these departments, though separate, should not be allowed to execute, to a certain extent, a control over the acts of each other. Experience has demonstrated that the exercise of such a control is, in fact, necessary to preserve that very independence which the maxim recommends and inculcates. We should, indeed, involve ourselves in a singular inconsistency, were we to abolish the council of revision on this ground, since the very substitute that we propose to adopt contemplates a similar union of the executive and legislative departments, which the maxim, as interpreted by the honourable chairman of the committee, (Mr. Tallmadge,) equally forbids. It seems manifest that other reasons than these must be found to justify us in demolishing the council of revision; and that, to shield ourselves, both from the reproaches of our own consciences, and the just resentment of our constituents, we are bound to show that it is a mischievous and dangerous institution, and that the objections to which it is liable, cannot be urged with truth against the substitate that is proposed. It is on these points, sir, that I propose to submit some few observations to the committee, and I shall endeavour to conduct the discussion with as little reference as its nature will permit, to the acts and conduct of the present members of the council.

It has been intimated, sir, in the course of the debate, that it is only within a few years that the detects of the council of revision, as a political institution, have been suspected or discovered. The observation, sir, is not correct. The authors of that immortal work which is the peculiar boast of our country, and which contains the most lucid investigation of the principles of representative government, that the world has yet seen, it is evident, were fully aware of the existence and nature of those defects. In a paper of "The Federalist," which is attributed to General Hamilton, two objections to the council of revision are distinctly and forcibly stated. The first, that its members, acting as judges in the interpretation of laws, are liable to be biassed by the opinions previously expressed in the exercise of their revisory power; and the second, that from their too frequent association with the executive, they may be led to embark too far in his political views, and that a dangerous combination may thus be cemented between the executive and judiciary departments."*

How far these anticipations of evil have been realised, I omit to inquire, though perhaps some may be disposed to cite them as proofs of that deep and almost prophetic wisdom, which distinguishes the writings of their illustrious author. Upon the validity of these objections we might safely rest our votes in favour of the resolution that we have passed, but the importance of the subject, if it do not require, will certainly excuse, a further examination.

What then is the council of revision? Let us break through the illusion which its name is well calculated to preserve, and we must see that it is in effect an executive council, of which the members hold their seats for life, and possess an efficient control over the acts and proceedings of your legislature. Such an institution in a republic is unexampled and anomalous, and exists in direct violation of the elementary principles of a republican government. A republican government is founded in a deep knowledge, and consequently a deep distrust of human nature. Hence its cardinal maxim is, that no power ought to be granted against the abuse of which some sufficient remedy is not provided. Yet by the constitution as it now stands, we have vested in a permanent and irresponsible body, a discretionary power of the most extensive nature. A power conferring an influence and authority vastly greater than cursory reflection would lead us to anticipate; and against the excess, the abuse of that power, no remedy, whatever, and no adequate check is provided. Under every form of government, discretionary powers must be entrusted, and as their exercise cannot be guarded by fixed and certain rules-as it is diffi * Vide "The Federalist.” No. 73.

cult and almost impossible to discriminate between errors of intention and mistakes of judgment, experience has shown that there exists no remedy against their abuse, but to subject those in whom they are vested to the effectual control of public opinion, by making their continuance in power dependent on the public will. But the members of the council of revision, when once appointed, may be said to hold their offices in contempt of the public will, and by managing to secure a certain legislative and party support, may with safety set at defiance the wishes of a great majority of the people. That such a tribunal should ever have been created-that it should have existed in this state for so long a term of years, is indeed matter of great surprise. Yet I am inclined to think that the very circumstance that ought most to have excited our alarm, has tended most to blind us to its real nature and operation. I mean the union of its prerogatives (for such they may be termed) with the powers of your judiciary. Were a proposition now made to vest in a body of men chosen for life a negative on the acts of your legislature, it would be rejected at once with indignation and disdain. We should all be ready to exclaim, "this is monarchy, naked and undisguised;"-and yet this very power we have vested in a body of men holding by the same independent tenure other offices of the utmost weight and importance, and the whole authority and influence of which can easily be converted to strengthen and uphold them in the exercise of their legislative veto.

I know I shall be told, sir, that the constitution contains a sufficient check against the abuse of this power, in the provision that enables two-thirds of the legislature to pass laws notwithstanding the objections of the council. That this is a check, I do not deny, but its sufficiency, as such, I strongly doubt. I conceive, sir, that the sufficiency of every check depends exclusively upon the ability of those whom it seeks to restrain, to disregard or elude it. Without referring to the past conduct of the council of revision, we may assume it as a general truth, that those who are entrusted with a limited power, will get rid of the limitation if they can, and make that which is qualified in its terms, absolute in its operation. Applying this observation to the council of revision, we in effect only say, that its members will always be desirous that the interposition of their veto should be effectual in defeating the passage of the law to which it refers. I admit, sir, that they will not--they cannot openly disregard the check which the constitution imposes, by declaring the invalidity of laws that shall have received the sanction of the requisite majority. But what cannot be openly disregarded may be secretly eluded, and we must always recollect that it is by the operation of a secret influence, not by the open invasion of their rights, that the liberties of the people in a republican government are most liable to be endangered. This check, sir, will be eluded, and the constitutional barrier effectually undermined, if the members of the council of revision can manage to acquire such a share of political power, and to exert such an influence over the legislature, as will enable them in the exercise of the negative, to secure to themselves the support of the requisite minority. The attainment therefore of the power that shall thus free them from the shackles of the constitution, and give an unlimited control over the proceedings of the government, we may safely predict, will become the great pursuit of the members of your council of revision. The ambition of that power is a passion to which the temptation of their situation necessarily exposes them-which men of the most decided character and the most vigorous intellect, are the least likely to resist, and which the offices that they hold furnish the peculiar and alInost certain means of gratifying.

It is commonly said by theoretical writers, that of all the departments of government the judiciary is the weakest; and if a comparison be made merely of the positive power that is delegated to each, the observation is certainly not unfounded. Yet, sir, it is equally certain, that there is no office that confers on the possessor such a sway and authority over the minds of the community as that of a judge of your superior tribunals; or of which the influence can be converted to the acquisition of political power with greater effect, and less haZard of detection. Judges who discharge their important functions with ability and apparent impartiality, naturally attract to their own persons and charac

ters a portion of that respect and veneration with which the people of this country habitually regard the laws themselves. In this high and imposing character they usually exhibit themselves in all the counties of your state. They become personally known in each, to almost all the respectable men, and they exercise a control over the most numerous and intelligent profession that has always furnished and must continue to furnish your most active politicians-a control, the extent of which, it is not easy to define, and the influence of which over the minds of those subjected to it, it is still more difficult to calculate. If men, thus situated, and possessing, by virtue of their offices, a negative on the acts of your legislature, form a design of acquiring and cementing a political influence that shall extend over, and be felt in every department of your government, there is every probability that the design would succeed, not merely from the extent of the means that could be brought to bear on its execution, but from the difficulty with which the mass of the community will be induced to believe in its existence or its danger. The people will naturally think that those who administer the laws with ability, can best determine what new laws the various exigencies of the commonwealth require, and that their extensive knowledge of the state renders them the most capable of determining on the merits and qualification of rival candidates for office. Thus, for a long time the interference of your judges, both in the proceedings of your legislature, and your council of appointments, both in procuring the passage of laws and in the distribution of public patronage, will be viewed without jealousy or alarm, until at length, the barriers that separate the departments of your government will be swept away, the whole authority, legislative, executive, and judicial, will come to be vested in a single body, and you will be cursed with a constitution, republican in its form, but aristocratic in its operations and effects.

Yet, sir, this is not all. It is upon the character and minds of the judges themselves, and the consequent administration of justice, that this pursuit of political power, this misdirected and unhallowed ambition, may be expected to produce their worst effects. The very attainment of their object must compel them to oppose the interests of one or the other of the parties into which your state may be divided; and it would be strange indeed, if their own breasts should escape the contagion of those passions and prejudices which it is their interest and their business to excite, to extend, and to perpetuate. What arts they may be led to practise, into what compliances they may be tempted, into what dangerous partialities they may be betrayed, I tremble to think. I feel a secret dread, when I reflect upon the mischiefs which an artful and plausible political judge may produce, and with what perfect security, with what little risk or dread of punishment he may proceed! As the most settled malice sometimes dresses its purposes in smiles, so the most determined partiality— that which moves to its object with the greatest skill and certainty, may assume the aspect and tone of unprejudiced and dispassionate candour; and even seem to compassionate the victim that writhes under its injustice. God forbid the time should ever arrive when suitors shall be anxious to inquire into the political sentiments of the judge by whom their causes are to be heard, and when upon the knowledge of those sentiments the event of a trial shall be constantly predicted! I am not called to speak of what has been, or of what is ;-but continue your council of revision-let its members, or a portion of its members, be the active leaders of your political parties, and the time is not distant -the period will soon arrive-when this community will be afflicted with all the evils that can result from a fluctuating, and passionate, and partial administration of justice. Your laws, sir, will become uncertain as the gust that blows around us, shifting as the clouds that cast a transient shade over those windows as they pass. Their power may, indeed will, continue to be felt and dreaded, but dreaded alike by the good and the bad-but dreaded, as the sudden fury of the winds and the tempest; we know not from what quarter it will arise, nor upon whose head its terrors will descend.

I am not concerned to show, sir, the perfection of my argument does not require me to prove, that the evils, or any portion of the evils, that I have depicted, have yet displayed themselves. As a political institution merely, would I consider the merits of the council of revision. If its natural, its probable ten

dency be such as I have described, we are clearly justified in abolishing it. It may be, sir, that the lessons of experience, to a certain extent, accord with, and confirm the results of speculation; but this is a question, not properly before us, and from the discussion of which there are numerous reasons that should lead us to abstain.

It is plain, Mr. Chairman, that the amendment which the committee have reported, is clearly free from the objections that I have endeavoured to urge against the council of revision. It is obvious that there is no comparison nor analogy whatever, between the qualified negative of an elective magistrate, resigning his power periodically into the hands of the people from whom it was derived, and the absolute or qualified veto, either of hereditary or elective monarchs. We may therefore with perfect consistency, abolish the council of revision, and adopt the substitute, which the committee have reported. The council may be a very unsafe depositary of the power of the negative, and yet it may be proper, and even necessary to retain the power itself. The propriety of establishing such a check upon the proceedings of your legislature, is distinctly admitted by the honourable gentleman from Dutchess. It is admitted in the very substitute that he has proposed. The question, therefore, properly before us, is not whether such a power ought to be intrusted, but to what extent it is to be confined, and in what manner it ought to be qualified. To this question, many of the precedents which the gentleman has cited, most of the arguments which he has urged, are quite inapplicable; since, if their authority or force are allowed, it would follow that a negative in any shape ought not to be retained; but as an odious relic of monarchy, should be struck out entirely from our plan of government. This opinion I cannot deem it necessary to combat. It has not been advanced in terms by the gentleman himself, nor can those who entertain it, consistently vote even for the substitute that he has offered. I shall take it for granted that we all agree in the opinion, that a revisory power, involving a negative on the acts of the legislature, ought to be vested in the executive, and that the sole object of our deliberations is to ascertain the extent and nature of the power thus to be created. Shall it be merely the naked right of returning bills to the legislature for reconsideration? or the power of defeating them, unless two-thirds of the legislature concur in passing them, notwithstanding the objections of the executive. To enable us to resolve these questions, it is necessary to advert to the objects, in contemplation of which, the negative is given. That the power ought to be effectual, that it ought to be so constituted as to secure the probable attainment of the ends proposed, will be admitted by all. It would be worse than mockery to vest a negative in the executive, the exercise of which, if exercised at all, would be fruitless and nugatory, and would tend to expose his character and office to public contempt, or public odium.

It is for these purposes principally that a negative ought to be vested in the executive. 1st. To prevent the passage of hasty and unadvised laws. 2d. To preserve the independence of the several departments of government, by protecting the executive and judiciary against legislative encroachment. And 3d. To protect the rights and interests of the majority of the people against the usurpation of a minority, by whom, as had been shewn at an early stage of the debate by an honourable gentleman from New-York (Mr. Edwards,) a majority in the legislature might frequently be elected.

Mr. D. then entered on a detailed argument to prove that in the two last cases, the interposition of such a negative as was proposed by the gentleman from Dutchess, would tend only to provoke ridicule, and ensure defeat, though even such a negative he admitted, might frequently have the effect of preventing the passage of hasty and unadvised laws. Where the defects of laws were accidental and unintentional, it might fairly be presumed that they would be corrected as soon as they were discovered and pointed out to the legislature; but that a legislative majority should abandon a formed plan, a preconcerted design of encroachment and usurpation, out of deference to the authority of an executive, in hostility to whom it had been probably conceived, it was absurd and irrational to expect.

That the danger of legislative usurpation was by no means imaginary, Mr. D. next proceeded to show.