Gambar halaman
PDF
ePub

clause? I wish it to read otherwise; and then Mr. Briggs transposed the clause, to effect his proposed object.

THE CHIEF JUSTICE said he had no objection to a transposition of the sentence; but, after Mr. Briggs had made the transposition, finding it did not express his meaning, he withdrew it.

MR. SHARPE and Mr. NELSON made some few remarks. The latter moved that the words "term of years," be stricken out; which was carried. The question was then taken on the whole section, and carried-so as to leave the provision that bail shall be taken in all cases except for crimes punishable with death, or imprisonment for life, when the proof is evident, or the presumption great.

The eighth clause, guaranteeing the right of public meetings, and of petitioning, being read,

MR. DUER moved the following substitute, of which he supported the propriety by a few remarks:

"The right of the citizens to assemble in a peaceable manner to petition for redress of grievances, and to discuss the measures and conduct of their rulers, shall not on any pretext be infringed; nor shall any citizen be held to answer criminally or civilly for any opinion expressed by him at said meeting."

COL. YOUNG thought there was one difficulty in this provision, though in the main he liked it better than the other. He would not give to a person in such public meeting, the right of libelling persons in authority, without being responsible, as in other cases.

MR. DUER thought the gentleman from Saratoga (Col. Young) mistook the bearing of this provision. The object of it was not to authorize the promulgation of facts, injurious to individuals, but to protect him in the expression of opinions, which, by the law of libel, as it now stands, are subject to prosecution.

MR. VAN BUREN agreed in opinion with the gentleman from Saratoga, that the latter part of the clause would be productive of evil.

MR. DUER could not consent to withdraw or alter his amendment. He conceived it essential that the citizen should have unbounded latitude in speaking of the measures and conduct of his ruler, being responsible, as elsewhere, for any facts he may allege. Sir, there has not been a resolution passed at any of your political meetings for years past, which may not be made the subject of a libel suit, as the law now stands. This question was once tried by Governor Lewis in a suit against Col. Few-and I am not aware that the supreme court then decided, that the citizen had the right, which it is the object of this provision to guarantee to him, of freely canvassing the motives and conduct of their public servants. I am desirous, said Mr. Duer, to have this principle incorporated in your bill of rights, for it is proper that the right of the people to assemble and publicly canvass the motives and conduct of their rulers, should be acknowledged, or the law of libel be so modified, as that it should not be openly violated, as it now is, I again repeat, in the resolution of almost every political meeting. I must therefore persist in the clause.

MR. VAN BUREN and MR. WILLIAMS objected to this clause; and

MR. DUER again spoke in its favour.

On motion of MR. RUSSELL, the committee then rose and reported, and asked leave to sit again; and

The Convention adjourned.

TUESDAY, SEPTEMBER 18, 182.

The Convention met at 10 o'clock. Prayer by the REV. MR. DAVIS; after which the minutes of yesterday were read and approved.

THE BILL OF RIGHTS.

MR. SHARPE moved that the Convention now resolve itself into a committee of the whole on the unfinished business of yesterday, (the Bill of Rights.)

MR. P. R. LIVINGSTON objected to it, and moved that the committee of the whole be discharged from the further consideration of the business of yesterday, with a view that the consideration of the bill of rights be postponed until 1st January. We saw yesterday the whole day spent in debate, in which the judicial and legal talent of this house was engaged, and yet the result is such, as I persuade myself, no one will think adequate to the time spent on it.---Sir, a bill of rights is the mere repetition of the fundamental rights of this people, which have never been violated, and which, after forty years of practice under our constitution, we need not fear to see violated. Has the trial by jury, the liberty of the press, the writ of habeas corpus, ever been denied, invaded, or suspended? We saw yesterday two luminaries of the law, whom, by our constitutional difficulties we see on the verge of a constitutional grave; we saw them, in this awful situation, differing as to a most important point of law; we heard the gentleman from Oneida (Mr. Platt) assert, that in the provisions introduced into one clause, the sanction of the law was about to be withdrawn from the female sex, and we all saw the sensibility with which this house received the intimation of possible wrong intendsd to this interesting portion of our creation. We heard the gentleman from Otsego (Mr. Van Buren,) assert, that by one of the provisions reported, the motives of a publication, which are now to be judged by a jury, are henceforth to be decided on by the court. You find my honourable colleague, (Gen. Tallmadge,) would carry you to the meridian of Washington, and arouse and mingle in this debate all those feelings which grew out of the Missouri question. We heard the gentleman from Delaware (Mr. Root,) who for ten years I have been proud to recognize as my friend and political mentor, and from whom I have seldom had occasion to differ, stating, that the trial by jury was a dead letter, owing to the directions now given by the court; and we saw an honourable judge rise in his place, and solemnly invoke his conscience in asserting that no such directions as imputed had ever been given. We saw my friend from Orange (Mr. Duer,) rise and propose a clause which some other members think would prostrate all rights.

If then the talents of the judiciary, cannot agree on a bill of rights; how shall we simple yeomanry be able to pronounce upon the great abstract points in jurisprudence, which are so interesting to the community at large? After all the contradictions and collisions on the subject, the Convention are still in the dark. Is it not discreet on this occason, to stop where we are? I think inaction, here, is wisdom; and silence, is prudence. I am unwilling to put it in the hands of the people of the state, to form an opinion on this subject, lest they may cheat themselves. Could it be shown that any of the rights of the people in this great community, were in jeopardy, from the bad administration of criminal jurisprudence. I should be for putting the question to the people, to get relief as quick as possible. If I am not mistaken, we have been informed by some gentlemen of the committee who made this report, that when they had the subject under consideration, it was thought that such a report was in a great measure unnecessary; as there were no evils growing out of our former system, which would be probably remidied in this way.

What are your bills of rights? They are declaratory acts of the people, that the legislature shall not encroach upon their rights-and your constitution is very much the same thing. The people resume certain rights, which the legislature dare not infringe. The great branches of our government are so calculated as to guard and check each other; but when that branch, which is the great barrier between legislative encroachment and the rights of the citizens, is disposed to do wrong, it is to be feared there is something serious; that there is a want of virtue, of morals, and of public regard for the happiness of the people. On the contrary, should the legislature pass an act, encroaching on the privileges of citizens, and should it improvidently get into your statute books-I ask, whether it could be enforced, against the interest and happiness of the people? When the body politic becomes corrupt, there is nothing which can withstand them. They hold all power, and they will exercise it right or wrong.

Economy is very disirable to this Convention. Many of the citizens of this state are taken up with this business, and detained from their occupations and

their families the public expense is worthy of consideration. Sir, the great body of the public will not complain, remain as long as you will, only satisfy them that the objects which you contemplate are worthy of public consideration.

Mr. L. concluded, by expressing an opinion, that if they continued as they had commenced, to discuss all the little minutia which would naturally present, they would in all probability spend a week, and do nothing more than he now proposed, which was to postpone.

CHIEF JUSTICE SPENCER. I yesterday stated my impression that a bill of rights was superfluous, owing to the general understanding, in this community, of their rights; though, on further reflection, I thought it would be advantageous to have some of the fundamental provisions briefly stated. I have, since the discussion of yesterday, come to the conclusion of the gentleman from Dutchess. Before going further, I wish to make some explanation as to a point touched on yesterday by a gentleman from Otsego (Mr. Van Buren.) It was supposed that in the 4th clause, it was intended to transfer to the court the privilege, which now belongs to the jury, of deciding on the motiv of persons making libellous publications. Sir, there was no intention of taking the committee by surprize, but to appeal to them whether, under certain circumstances, it might not be safe to entrust the court with the discretion of deciding on motives.

He then adverted to a gross case of libel upon a female, of which he stated the circumstances, and appealed to the committee whether, in such a state of affairs, it was tolerable, that the court should sit and hear the most gross and shocking evidence, however irrelevant, submitted to the jury, before it could be determined whether or not it should be received. Mr. S. further stated, that in questions of great legal delicacy, innovations were proposed, which could not be duly considered; and he, therefore, concurred in the motion of the gentleman from Dutchess.

GEN. TALLMADGE. When, in a former debate on the council of revision, I expressed my belief that in a state like ours, where all right is acknowledged to reside in the people, a bill of rights, setting forth the privileges of the people would be useless, nay, might be injurious; because in purporting to set forth the rights of the people, if any were omitted. they might be considered to be yielded. But a bill like this reported, is not a bill enumerating the rights of the people, but restricting the power of the legislature. It is to restrain factious majorities and violent proceedings of the legislature-it is to determine that under no circumstances, the writ of habeas corpus shall be withheld from the citizen. But my colleague fears the revival of the Missouri question. Sir, there is no apprehension of the revival of this question. There is not, unless I greatly mistake the character of this body, or of the individuals composing it, any one who would oppose the great principle on which that question was raised. But, sir, if it be revived, are we to shrink from the controversy? No, sir. I think it fair to say, that, while my life lasts, the oppressed people who gave rise to that discussion, shall receive my support, in every place, and every situation where I may, with propriety, and without violation of legislative usages, introduce it. I, therefore, hope the motion will not prevail.

MR. VAN BUREN stated that he had yesterday expressed his expectations that the result now moved for would be produced. A bill of rights, sir, is a privilege, according to the original signification of it, a concession extorted from the king, in favour of popular liberty; but how does that apply here? Mr. Van Buren then went into a history of the origin of bills of right in England, and terminated by expressing the wish, that as a bill of rights, this might not prevail; but that any provision in it, which might be deemed salutary, should be engrafted as separate amendments into the constitution.

MR. BRIGGS. The great difficulty in the opinion of some gentlemen, indeed of most gentlemen, seems to be that we cannot agree upon these subjects. But it seems to me, sir, when we act upon legislative report, then, sir, we can settle these difficulties. It does not seem to me material, whether we settle them now or then. I don't pretend to be able to judge much about the necessity of a bill of rights.

MR. SHARPE said the provisions of the bill of rights may be as well considered as separate amendments to the constitution, and added in their proper places, when the draft of the amendments generally shall be under consideration. These provisions have already been discussed; and if the report is now to be postponed, and the subject brought up in another shape, the same discussion will be again gone through, and much time lost.

MR. VAN BUREN wished the gentleman from Dutchess would modify his motion, so as to refer the report on the bill of rights to another committee, to ascertain what parts of it may be engrafted in their proceedings.

MR. LIVINGSTON said that the Convention could not suppose him unwilling to comply with any suggestion as to saving time; and he would, therefore, so modify his motion as that the committee of the whole should be discharged from the further consideration of the bill of rights, and that the same be referred to the house when in committee of the whole, on Mr. King's report. The motion was then put in this shape, and carried.

MR. DUER presented a memorial from sundry inhabitants of the county of Orange, praying that all legislatures might be hereafter prevented from fixing their own pay, and that the same should never exceed $2 50 per diem-the memorial was read and referred to the house when in committee of the whole on Mr. King's report.

THE EXECUTIVE DEPARTMENT.

On motion of GEN. ROOT, the Convention then again resolved itself into a committee of the whole, on the report of the committee on the Executive Department-Mr. Radcliff in the chair.

GEN. ROOT moved to strike out five, so as to make the age thirty, instead of thirty-five. I believe a governor of thirty would do very well-as well as one of fifty-the motion was put and carried.

MR. RUSSELL moved that the power of pardon or commutation of punishment in cases of treason (where alone it is granted) be taken away from the legislature carried.

MR. P. R. LIVINGSTON wished to insert the words "by message," so as to make it the duty of the governor to address the legislature by message instead of speech. This latter mode has been productive of great inconvenience and expense. I had the curiosity once to look over the journals, and I ascertained that it had cost $70,000 to the state during ten or fifteen years, in debate about the reply to a governor's speech. This speech is a relict of monarchy, founded in the love of pomp, and splendour, and show. Besides, when the two houses are of a different political character, one approves, the other condemns the speech; and in 18.4, the assembly spent eleven days in discussing the propriety of an answer to the governor's speech, yet we all know that neither a speech nor an answer is legislation. In the general government, until Mr. Jefferson's accession, a speech was delivered by the President and an answer was read; but Mr. Jefferson cut up the practice by the roots by sending a message. Besides, for the sake of the harmony due to the proceedings of the two houses, when of different political characters, it is best to have a message. We have seen, and might see again, a governor on his own carpet, obliged to listen to sentiments which must be odious to him; obliged to submit in quiet to a flagellation, as bitter as political hostility could make it. To be sure, the governor has the last word, and he sends back a reply more bitter, if possible, than the answer; but all this is injudicious and improper, and will be done away by adopting the proposition I have the honour to make.

MR. TOMPKINS thought the motion unnecessary, as we shall now probably expunge from the constitution the provision which rendered it the duty of the governor, in compliance with ancient custom, to deliver a speech in person. When I entered upon this office, I consulted the venerable men who had preceded me in it, as to the propriety of dispensing with this practice, but they all concurred in the opinion, that according to the usage established since, and adopted from the colonial government, it could not be dispensed with; but as we shall, I hope, expunge these provisions from the constitution, I think the motion unnecessary.

MR. P. R. LIVINGSTON thought there was nothing in the argument of the gentleman. We do not find that it is incumbent upon us to adopt the forms of the colonial government. The gentleman would surely not require, because a governor under the colonial system might have worn a red night cap, that our governors also should wear a similar one, any more than that they should wear a black velvet suit.

MR. TOMPKINS replied and maintained the opinion he had formerly expressed, and went into the consideration of the usages on which this custom was founded, and of the motives which led to its adoption among us.

MR. BRIGGS. When we do, sir, descend to such particulars, we should be sure, sir, that the object we have in view will be answered by them, sir. I am yet to learn, sir, that a message, in high party times, may not be answered as well as a speech.

The question was then taken on Mr. Livingston's motion, and carried.

MR. JAY. A day or two ago, the words, "admiral of the navy," were struck out, for what reason I cannot conjecture; seeing that this state may, under certain circumstances, have a navy; and that, from our situation, it may become expedient to have such a navy. Perhaps the objection is to the term admiral; and I therefore move, that the report be so amended as to read, "commander in chief of the militia and navy."

CHIEF JUSTICE SPENCER said, he made the motion, because he thought the title of admiral, as an appendage to the governor, ridiculous; and because he thought it quite improbable we should ever have a navy. As however, the gentleman from Westchester has, by his amendment, done away the ridicule of the title, I have no objection to the motion.

MR. KING wished the gentleman would amend his motion, so as to insert the word, "army," in order that, if the state should possess, as it is by no means improbable, a force of the nature of an army, the governor may be the commander thereof. It is, too, not at all improbable; nay, the reasonable presumption is, that this state will one day possess a considerable navy. In time of war, although the defence of the coast depends upon the general government, it may be necessary, on some sudden emergency, for the state of New-York to raise a force which will repel the enemy, and defend our shores. Under such circumstances, it appears singular to expunge from the constitution a provision which would secure a head and chief for such an occasion.

MR. TOMPKINS assented to the amendment of the gentleman from Queens, and thought without it the title of commander in chief of the militia might be as ridiculous as that of admiral; inasmuch as that would not give him command over an army, which it was nevertheless certain this state might have.

MR. JAY then amended his motion so as to read "commander in chief of the land and naval forces," which, after some further remarks from the Chief Justice, was put and carried.

MR. KING moved to strike out "by virtue of his office," which was carried. MR. CHILDS. Though unaccustomed to business of this kind, I would submit the propriety of striking out the words, "who shall have been fourteen years a citizen of the United States," and insert natural born citizen of the United States. I can conceive no advantage in permitting a foreigner to be the governor of this state; I can conceive that great inconveniences may arise from it.

The motion was put, and carried almost unanimously.

CHIEF JUSTICE SPENCER wished to strike out the words which restricted the governor to a service of eight out of ten years. This provision he thought a restriction upon the people, who were debarred from choosing the man they might prefer. We have seen the governors heretofore continued for much longer terms, and the gentleman who from 1807 to 1816 conducted the government of this state with great advantage to it, and whose services I have always been proud to acknowledge, might, if a similar provision to this had existed, have been debarred from re-election at a time when his services might have been most essential. There can be no reason why the people should be restricted from choosing whom they please, and as often as they please.

MR. BRIGGS. I do hope, sir, this provision won't be struck out. It is, sir,

« SebelumnyaLanjutkan »