Experience had proved that where legislative power was unchecked, either by the open or silent operation of a veto, it was certain to overleap all constitu tional barriers,-to absorb in itself, and to claim and exercise the whole authority of government. The same feelings that had so strongly displayed themselves in the Convention, in the course of the debate, would frequently predominate in a legislature, and control its proceedings.

The belief that they only were the true representatives of the wishes-the proper guardians of the interests of the people; and that every accession of power to themselves was an increase of public liberty-an extreme jealousy and distrust of the executive and other departments of the government-and a constant desire to strip them of their privileges, narrow the exercise of their power, and reduce them to a state of feeble dependence.

The gentleman from Delaware (Mr. Root) Mr. Duer proceeded to observe, has truly said that our government is a democracy. The will of the people is its origin, and to carry that will into effect, is the aim of all its institutions. But in all our speculations we were bound to recollect that it is not a pure, but a representative democracy--that the authority of government is not exercised collectively, but by various classes of delegated agents. The intent of the constitution that we are framing, and of every constitution, is to distribute to these agents the power thus derived from the people :-to mark the limits of their authority, and provide the means of restraining them in its exercise, within their appropriate sphere. The practical excellence of such a government consists in the fidelity of the representatives in their faithful execution of the trust that the people have confided, and the object of the checks and balances, of which the gentleman from Delaware has expressed such a singular dread, is to insure this fidelity in the agents of the people, by preventing them from exceeding their powers, and compelling them to act within those bounds and limits, which the will of the people, expressed in the constitution, prescribes and defines. They are necessary not to strengthen the public functionaries against the force or the change of public opinion, but to guard the people themselves against the misconduct of their agents, by effecting and maintaining that separation between the various departments, of government which is essential to its perfect administration.

But it is said, sir, that the power proposed to be vested in the executive may be abused; that it may be exerted to prevent the passage of salutary and even necessary laws. That it may be so abused I do not deny, nor is it difficult to imagine cases of possible abuse far stronger than any that have yet been stated. But when we are to determine on the expediency of making a grant of power, the question evidently is not whether it may, but whether in all probability it will, be abused, and whether the evils that may flow from its possible abuse, are not far more than counterbalanced by the benefits certain to result from its salutary exercise.

But what then, it may be asked, is our security against the abuse of this power by the executive? The same security, sir, that you have against the misconduct of all elective officers-his accountability to the people. The certainty that by abusing his trust, he will lose their confidence and favour. We may surely assume that he will act with common prudence-with ordinary discretion. He will not, therefore, enter into a contest with the legislature-a contest in which they would possess every advantage, except in those cases in which the strong conviction in the rectitude of his conduct will lead him to a confident reliance on the support of public opinion.

But, sir, an argument has been attempted to be drawn, by the honourable gentleman from Dutchess, from the conduct of some of the governors of the eastern states during the late war. But did those governors take the attitude they assumed unsupported by public sentiment? No, sir, they would not have dared to risk the responsibility of such a violation of duty, had they not been sustained by the immediate representatives of the people.

Much apprehension has been expressed in relation to the alarming power, which this transfer would enable the executive to assume. Really, sir, these fancied dangers are preposterous-they are inconsistent with each other. What are the powers already confided to your executive? Has he not the enormous

power of prorogation?-a power from the exercise of which he is subject to no legal responsibility, and which enables him by a single act to dissolve and overbear the collected energies of the people.

Has he not the control of all the physical strength of the state, as captain general and commander in chief of the militia?-a power, the abuse of which would enable him to withdraw from your frontiers, in time of war, the force that might be necessary for their protection.

Is it not strange, sir, that this power of the negative should be contested with so much vehemence, when other powers far more extensive, far more liable to abuse, are conferred upon the executive without difficulty? What power indeed can we grant that is not equally liable to abuse? If the argument be pursued to its legitimate consequences, it must end in stripping the executive of all the privileges and rights that have been hitherto annexed to his office. The substance of authority will be taken from him, and the name, the title, only, will remain. And indeed, sir, if this argument is to be admitted here, where shall we stop? If a remote, naked possibility of the abuse of power, is to be urged against its grant, to what extent shall the objection be carried? If allowed to prevail here, let us be consistent with ourselves, and let it prevail throughout. Let us then shorten our labours-demolish at one blow the constitution that we are called to amend-resolve society into its elements-throw off the restraints of order and civilization--rush again into the woods-become savages-trusting for our protection and security, not to laws that may be violated, and power that may be abused, but to the untamed cruelty of our hearts, and the native vigour of our arms.

MR. RUSSELL briefly assigned the reasons which would induce him to vote against the amendment offered by the gentleman from Dutchess (Mr. Livingston.)

MR. SHARPE rose, not to enter into the debate, which had been so eloquently and ably conducted; but he would ask the indulgence of the Convention while he explained the reasons which would govern his vote on this question. He had a few days ago voted for abolishing the council of revision. For the last six years out of seven, he had had the honour of a seat in this legislative hall; and by you, sir, and other gentlemen who have been members of this house, and have seen the quantity of business before it, it would be acknowledged that he had had some experience in legislation.

He voted for the abolition of the council of revision, because he had long seen the evils of the judiciary being associated with that department of the government. He had long thought it ought to be an independent branch. But, sir, said Mr. Sharpe, during my short experience in legislation, I have seen much good done by the council of revision. I have seen bills hastily and unadvisedly passed-I have seen these bills objected to by this council of revision, and returned to this house, and when the objections were read, I have seen members stand astonished, that they had voted for a bill that was in the very face of that constitution which they had just sworn to support. I have seen that council object, and object again, to a bill, and after all, I have seen that bill pass by twothirds of both houses; and it now remains a foul blot upon the journals of our legislature. I have seen that council of revision come down from their council chamber, and advise members to make alterations, rather than to send them back with those objections; and such alterations have been made. But, sir, I have seen the evils of that body too-1 have been here in high party times-I have been here in peace and in war; and as the gentleman from Delaware remarked, it was in that dark day when the clouds of an awful war were lowering over our country; and at that period, when, if at any time, the constitution ought to have been made to bend, I have seen bills returned by that council of revision with frivolous objections. I have seen bills repeatedly returned to this house, which were by the council of revision considered inexpedient.

Sir, where is there an evil in the state that has worked more mischief than the multitude of banks. Have they objected to those bills? No, sir. Every gentleman within the sound of my voice will remember the speech of the governor, in which he shewed the impropriety of making more new banks-that they were great evils, and that they had done more injury to agriculture in this state than

any other cause; and in which he cautioned the legislature against passing any laws for increasing these institutions. What was the result that year? Two country banks, and one in the city of New-York were obtained. And how? The country banks were passed, and sent to the council of revision-The Franklin Bank bill was rejected by the house, and sent back to the senate-The legislature had passed a resolution to adjourn―The country bank bills were not returned from the council-A rumor was set afloat the night before the legislature was to adjourn, that if the Franklin Bank bill did not pass, no bank bills would pass during that session. What was the consequence? All the forces were then rallied, and the friends of the country banks found that they had but one alternative, and that was to pass the Franklin Bank. Next morning a motion was made for a reconsideration of the vote rejecting that bill; but as the bill had been sent back to the senate, this motion was not in order. A resolution, however, was passed, directing the clerk to request the senate to return it to this house-It was returned, reconsidered, and out of all rule and order, passed. The country bank bills were then returned from the council-and the Franklin Bank bill before midnight became a law of the state. But, sir, there is another objection. The council have a right to retain bills ten days; and every one knows, that as the session of the legislature progresses, so business increases. Petitions are received till the last day of the session. It is a right that every man has, to petition the legislature, and they are bound to hear him. Thus business passes at the close of the session; and I have seen laws not passed unadvisedly, hung up for a year, and the people of the state deprived of the benefit of that law for that period; yet the law was returned at the commencement of the next session, without objections. There is now hung up in that council, a bill affecting the rights and property of individuals; and I doubt not that after suffering it to remain there for a whole year, it will be returned to the next legislature without objections.

But, sir, I have still a stronger objection. I have seen the executive of this state recommend to the legislature a measure as being all important to the welfare of the state; and I have seen the legislature accordingly pass the bill with promptitude. Sir, I have seen that council of revision and the governor reject that bill, which had, as it were, been recommended but the day before. -That bill did not pass.

It was this that excited the indignation of the people of this state; and the voice of seventy thousand freemen has told me, that that feature in the constitution ought to be destroy cd. I am aware, sir, that a veto ought to be placed somewhere. Legislative business at the commencement of a session is generally well done. I have rarely seen a bill rejected by the council of revision, that had been passed early in the session; but not so at the close. I could quote many instances. In 1820, the inhabitants of Canandaigua petitioned to have that village incorporated; the bill was presented to this house, and I think it cannot be said that it was unadvisedly passed, for one of its members presided over this house, a man distinguished for his talents and industry. Sir, that bill passed under the eye of the representative of that county. It went to the senate and passed there. It was sent to the council of revision, and thus became a law. One of the members took that bill home to his constituents. And, strange to tell, a clause in the bill provided that the trustees of the village should be impounded instead of their hogs!

But, sir, it is said, that to give this veto to the governor, is dangerous, unlees a bare majority of the legislature may pass a bill which has been rejected. Sir, it is well known to every gentleman that this state has been in the habit of changing her representatives too frequently. Men come here with the best of feelings and motives; but ere they are here many days, they are not only asailed by older members of this house, but have a throng of members from the lobby harassing them, and they are many times committed upon a bill before they hear the arguments. When they have heard the arguments, they will say they have promised to vote so and so on that bill, and that one vote will not make much difference. Sir, if members will commit themselves before they have heard the arguments, it is not strange to suppose, that they will vote for any bill u, on which they may have been thus committed, notwithstanding any

objections. We have been told that it will be difficult to obtain the passage of any bill that may not exactly suit the views of the governor; but my fears are, that he will not object to enough bills, because the more he objects to of this description, the better it will be for the interests of the state.

When seventy thousand people told us to break away this part of the constitution, they did not tell us to erect nothing in its stead. I am well satisfied with the vote I have given for separating the judiciary from this part of the government; but I am for substituting in its stead a controling power, with which the people will be satisfied, and which will be an efficient check upon imprudent legisla

tion.

CHIEF JUSTICE SPENCER. I observed to the committee yesterday, Mr. Chairman, that the subjects of discussion on the proposed amendment, were exhausted; if the remark was then true, how much more so is it true now. not rise to discuss the question generally.

I do

When, sir, I found myself elected a member of this Convention, I held a solemn communion with my own heart and understanding. I considered that a Convention of the sages of the state, the immediate representatives of the people, was soon to take place, to deliberate on and settle the fundamental principies of social order; to amend, to improve, and to ameliorate a constitution, which had been founded by a band of patriots-a constitution which had triumphantly carried us through a sanguinary revolution, and conducted us to liberty and independence-a constitution which had for nearly half a century, secured to us the blessings of good government, and wholesome and salutary laws. I determined in such a Convention, met to deliberate on principles of government which were to secure to the present age, and to future generations, to our children and our children's children, the inestimable rights of life, liberty, and property, to repress in myself every feeling calculated to disturb the grave and harmonious consideration of the subjects to come under discussion. I asked myself how I ought to act if any intemperate individuals, regardless of what was due to such an assembly, and to such an occasion, should endeavour to excite party feelings-to stir up prejudices, and for the purpose of carrying a favourite point, to produce excitements against individuals? My answer was, that it was my solemn duty to forbear recrimination; to confide in the good sense of this august body; to resist all attempts to induce a division from angry, revengeful, and party animosities. I believed that even those who, to gratify the feelings of the moment, should so far forget their duty, as to endeavour to excite prejudices here, would themselves eventually deplore the employment of such means; and that this Convention would rise superior to the passions and follies of the day, in contemplating the objects of the meeting, and the sacredness of the trust reposed in them. Our constitution has endured for forty-four years-how few are now living of those who gave us this noble monument of wisdom! Yes, sir, I unite with the honourable gentleman from Dutchess, (Mr. Livingston) in expressing my profound astonishment, that at so carly a period the principles of civil liberty, and of republican governments, were so well understood. What a solemn consideration is it, that few, very few of us, can expect to survive for so long a period as has elapsed since the formation of the constitution we are now endeavouring to amend. This should be deeply impressed on our minds, and it will solemnize our feelings. On my part, I came here determined to forbear, resolved to suppress every motion unfriendly to cool, calm, and patient investigation. I have no prejudices to indulge. I feel myself the immediate representative of the people, called upon to maintain and establish their dearest rights.

This Convention have been told from one quarter, that the proceedings of the council of revision during the late war, laid the foundation of their own destruction; from another quarter, that their conduct in relation to certain bills at an anterior period, had sealed their ruin; and from another quarter, that on the rejection of the bill recommending a Convention, during the extra session in November last, the sentence of condemnation went forth against the council. I do not feel myself called upon to defend my conduct or opinions elsewhere before this Convention; but it is due to that body, it is due to myself, to explain the grounds why that bill was sent back with objections; and I think it will be

seen that the sentence was unjust, if indeed such a sentence has ever passed. It has been said that this bill did not pass hastily or unadvisedly. How is the fact? The legislature were convened on an extraordinary occasion, to appoint electors of president and vice-president; and it has been unusual to take up at that session, any bills but those of pressing necessity. Contrary as I believe to all expectation, the bill in question was passed through both houses; and in the senate, as I understand, it was received on one day, and passed the next. This bill recommended an election of delegates to be holden in the midst of winter, at a time unusual and inconvenient; but above all, it contained no provision for submitting the question to the people, whether they willed a Convention or not. The council believed that the legislature, acting under the constitution, chosen to legislate in pursuance of the constitution, had no authority to direct a Convention for the general purposes of amending and probing that sacred charter of our rights, materially and fundamentally, without a previous reference to the people, of the question whether it was their wish that it should be thus amended and probed. I deny the right of the legislature to direct a Convention. In doing so, they had no higher authority than any other respectable body of men, self-moved, and acting without any delegation of power whatever. Was the rejection of the bill, on these grounds, a high-handed and tyrannical act on the part of the council? Or was it a plain, fundamental, and republican principle, in maintenance of the rights of the people? We all acknowledge, that all power and all government of right belongs to, and emanates from, the people. How, then, was it consistent with that acknowledgment for the legislature to coerce a Convention, without first knowing whether the people willed it? We have been told that there was no doubt on that subject; the public will had been expressed through their representatives, and in town and county meetings. But is this so? Can there be any sure expression of the public mind, in a comnunity so extensive as ours, but through the medium of the ballot boxes? Look at the danger of the precedent-a party gets into power; they find a constitutional provision in their way, an impediment to the exercise of their power; they resort to a Convention to amend the constitution, without a previous and legitimate expression of the public sense; the community is agitated; it is split into factions, and your government is shaken and impaired.

It has been said that the act was recommendatory, and not compulsory on the people. This will appear, on the slightest reflection, to be a mistake. If ninety-nine out of a hundred of the people were opposed to the measure, the ninety-nine had no means of expressing their dissent. The votes of ten electors in a county in favour of any candidates, would have constituted a valid clection. The council insisted that, as a preliminary to holding a Convention, the sense of the electors should be taken, and an act was passed in accordance with these principles. And here let me ask, what evils have resulted from the delay which has taken place? The Convention, instead of meeting in June, met in August; but it now meets upon an undisputed right; the people have legitimately expressed their opinion in favour of a Convention. This delay of two months in the meeting of the Convention, is the only grievance to be complained of; but in my opinion, a great and salutary principle has been preserved.

It is true that a Convention was held in 1801, without a previous appeal to the people. That Convention was expressly limited to two subjects, and they were such as admitted of no delay. Conflicting opinions existed as to the construction of an article in the constitution; to settle that, and to reduce the representation, which was encreasing in a rapid and enormous ratio, were the only objects of consideration.-Under the rejected bill, the whole constitution was liable to be re-moddled; that precedent, therefore, was not one which could control, or which ought to have been followed.

If the sentence of condemnation has gone forth against the council, because they objected to the bill for the reasons I have thus briefly stated, all I can say is, that the condemnation has been undeserved; and since it was thought proper to correct a very gross mistake, the council have been represented as opposed to a Convention called in any way, and at any time. This was a gratuitous declaration, unwarranted in point of fact: the great objection was as to the manner of calling it.