He was not solicitous about this power on his own account. He was perfectly indifferent about it, as it respected himself, for he had the consolation of the meni conscia recti. He withdrew his mind from the present generation, and looked to the future. He believed the power, as reported, might become a dangerous engine of faction and oppression, and that our posterity might have occasion to shed tears of distress over the abuse of this power. He had witnessed with concern the inflammatory remarks made this day upon the character of our judiciary. He recollected the remark of the learned Hooker, that those who, in popular assemblies, undertook_to find fault with rulers, were always sure to find listeners and admirers. But he was certain that the judiciary of this state, instead of meriting this constant and injurious animadversion, was entitled to universal respect and confidence. MR. P. R. LIVINGSTON was not conscious of having indulged in vehemence ; and although he might have made some expressions which were not so agreeable to gentlemen present, still he believed he had used no language which would be unjustifiable by facts. Will my honourable friend from Albany pretend that the judiciary have not been engaged in politics? What brought them into this Convention-they well knew that the council of revision had excited public odium? Does not the name of this very man appear the second in order upon the committee who made the report now before us, which he so strenuously opposes? Can any man imagine that the great body of representatives of the people will impeach any one of that department from party views? In the highest party times (and party has probably run as high as it ever will again) when both parties have had an opportunity of assailing them, they have never been touched; nor will they ever be while they attend to the duties of that department as becomes the judiciary of this great state. When the public becomes so corrupt as to be willing to break down the judiciary without a cause, they will be prepared for another state of things; and when they have made up their minds on that subject, who can restrain them? After further debate on the subject, in which Messrs. Tallmadge, King, Fairlie, and Buel took part. MR. SHARPE moved to reconsider the motion of Mr. Munro, which, after some debate, was carried; and the ayes and noes being required on the final adoption of Mr. Munro's amendment, the same was decided in the affirmative, as follows: AYES-Messrs. Bacon, Baker, Barlow, Beckwith, Breese, Briggs, Brinkerhoff, Brooks, Buel, Burroughs, Carpenter, Case, Child, D. Clark, R. Clarke, Clyde, Day, Duer, Edwards, Fairlie, Fenton, Ferris, Fish, Frost, Hogeboom, Howe, Humphrey, Hunt, Hunter, Huntington, Jay, Jones, Kent, King, Lansing, Lawrence, Lefferts, A. Livingston, M'Call, Millikin, Moore, Munro, Nelson, Paulding, Pike, President, Price, Pumpelly, Radcliff, Reeve, Rhinelander, Richards, Rockwell, Rose, Rosebrugh, Ross, Russell, Sanders, Seaman, Seely. Sharpe, Sheldon, I. Smith, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Townley, Townsend, Tripp, Van Fleet, Van Horne, J. R. Van Rensselaer, S. Van Rensselaer, Van Vechten, Verbryck, Ward, E. Webster, Wendover, Wheaton, Wheeler, Woods, Woodward, Wooster. Yates.-87. NOES-Messrs. Carver, Collins, Dodge, Dubois, Dyckman, Eastwood, P. R. Livingston, Park, Root, Sage, N. Sanford, R. Sandford, Swift, Taylor, A. Webster.-15. The question was then taken on the first part of the section as amended, and carried without a division. MR. DUER expressed his sentiments in opposition to the residue of the section to the proviso, and moved that the same be referred to the committee of the whole, when on the judiciary department. Lost. The usual hour of adjournment having arrived, the committee then rose and reported. In Convention, Mr. Fairlie moved to refer that part of the report of the com mittee on the legislative department which relates to the designation of the senate districts, to a select committee. Lost. The Convention then adjourned. TUESDAY, OCTOBER 16, 1821. The Convention met as usual, and the journals of yesterday were read. MR. DODGE wished they might be amended, by changing the votes of him self and Mr. Price, in the record of the ayes and noes taken yesterday on an amendment offered by Mr. Sharpe. The minutes thus amended were approved. MR. HUNTER moved, that the expenses of the funeral of his colleague, (Mr. Jansen,) be paid out of the treasury, by the perm ssion of this Convention. Carried. THE LEGISLATIVE DEPARTMENT. On motion of MR. Ross, the Convention then resolved itself into a committee of the whole, on the unfinished business of yesterday (the report on the legislative department.)-MR. VAN BUREN in the chair. MR. DODGE moved to re-consider the 5th section (relative to the pay of members of the legislature) for the purpose of adding the following clause: "And no laws shall be passed increasing the wages of the legislature beyond the sum of (three) dollars per day, unless by a majority of all the members elected to both branches of the legislature, and unless it shall be limited as to the continuance to two years after the passage thereof, and the ayes and noes shall be taken thereon and be entered on the journals." The question on reconsidering was decided by ayes and noes in the affirmative, as follows: AYES-Messrs. Bacon, Barlow, Beckwith, Brinkerhoff, Buel, Burroughs, Carpenter, Carver, Case, Child, Collins, Cramer, Day, Dodge, Dubois, Duer, Dyckman, Eastwood, Ferris, Fish, Hallock, Howe, Humphrey, Hunt, Hunter, Kent, Lansing, A. Livingston, P. R. Livingston Millikin, Moore, Munro, Nelson, Paulding, Radcliff, Reeve, Richards, Rockwell, Ross, Russell, N. Sanford, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, J. R. Van Rensselaer, Verbryck, A. Webster, Wheeler, Woods, Woodward, Wooster, Yates, Young-63. NOES-Messrs. Breese, Briggs, R. Clarke, Fairlie, Fenton, Frost, Jay, Jones, King, Lefferts, M'Call, Park, Pike, President, Price, Rhinelander, Rose, Rosebrugh, R. Sandford I. Smith, Swift, Van Fleet, Van Horne, S. Van Rensselaer, Ward, E. Webster, Wendover-28. The question was then on the amendment. MR. BUEL declared his sentiments in favour of reducing the pay of members. It had heretofore been an object to obtain a seat in the legislature, for the purpose of making money. He wished the compensation to be sufficient to defray their expenses and no more. Gentlemen would then come here from patriotic motives-despatch their business as soon as possible, and not protract the session for the sake of the emolument. MR. SHARPE said that the pay of the members of the legislature was lower than that of any of the public officers in the state. Three dollars per day was a meagre compensation, and could be no inducement for a gentleman to leave his family and business; and by reducing it as low as had been proposed, many men of talents would be excluded. Look at the judges of the supreme court and the canal commissioners, who receive a compensation of about twelve dollars a day throughout the year.-Were the other officers to be effectually cur tailed in their receipts, he had no doubt that the members of the legislature would be willing to reduce theirs, also. MR. DODGE said that the gentleman from New-York (Mr. Sharpe) did not seem to understand the amendment. It was not his object to fix absolutely the pay of the legislature, but to establish a maximum beyond which they should not go. Unless that were the case, no limit could be assigned to the exercise of their cupidity, and they might exhaust the treasury of the state. There might be times when two dollars might be an adequate sum, whilst at others six would not be too great. It was his object therefore, to establish a suitable medium for a given and limited time. MR. BRIGGS thought that there should be a clause in the constitution, requiring that the legislature should keep open doors when the subject of compensation was debated, and that the governor should issue a proclamation at least twenty days before hand, that the people might flock in and hear the discussion. The question on the amendment was then taken by ayes and noes, and deeided in the affirmative, as follows: AYES-Messrs. Bacon, Baker, Barlow, Buel, Burroughs, Carpenter, Carver, Case, Child, D. Clark, Clyde, Collins, Cramer, Day, Dodge, Dubois, Duer, Dyckman, Eastwood, Edwards, Ferris, Fish, Hallock, Hogeboom, Howe, Humphrey, Hunt, Hunter, Jones, Lansing, A. Livingston, P. R. Livingston, Millikin, Moore, Munro, Pumpelly, Reeve, Richards, Rockwell, Russell, Sanders, N. Sanford, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, Van Horne, Verbryck, A. Webster, Wheeler, Woods, Wvodward, Wooster, Yates, Young-66. NOES Messrs. Breese, Briggs, Brinkerhoff, Brooks, R. Clarke, Fairlie, Fenton, Frost, Huntington, Jay, Kent, King, Lefferts, M'Call, Nelson, Park, Paulding, Pike, President, Price, Rhinelander, Root, Rose, Rosebrugh, Ross, R. Sandford, Sharpe, I. Smith, Swift, Van Fleet, S. Van Rensselaer, Ward, E. Webster, Wendover, Wheaton.-34. GEN. ROOT replied to the gentleman from Montgomery, (Mr. Dodge) and denied the imputations that had been made with respect to the squandering of time, and skulking from the journals by the members of the legislature. The most vile and virulent papers in the state, had never made such gross charges against them. MR. DODGE explained, and said that he derived his information from the gentleman from Oneida, (Mr. Bacon.) GEN. ROOT replied, that such an apology would not screen the publisher of a libel, even if he had not been the inventor. He despised putting into the constitution the contemptible sum of a stipulated price per diem. MR. BACON explained at considerable length, and expressed his belief that in many cases members had felt reluctant to have their names recorded. He had been once or twice honoured with a seat in the legislature, and in one instance he knew the fact, that a new member of that body repeatedly called for the ayes and noes without success. The question on the whole section as amended was then taken by ayes and noes, and decided in the affirmative, as follows: AYES-Messrs. Bacon, Baker, Barlow, Beckwith, Brinkerhoff, Buel, Burroughs, Carpenter, Carver, Case, Child, D. Clark, Clyde, Collins, Cramer, Day, Dodge, Dubois, Duer, Dyckman, Eastwood, Edwards, Ferris, Fish, Hallock, Hogeboom, Howe, Humphrey, Hunt, Hunter, Jones, Lansing, A. Livingston, P. R. Livingston, Millikin, Moore, Munro, Pumpelly, Reeve, Richards, Rockwell, Russell, Sanders, N. Sanford, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, Van Horne, J. R. Van Rensselaer, A. Webster, Wheeler, Woods, Woodward, Wooster, Yates, Young.-66. NOES-Messrs. Breese, Briggs, Brooks, R. Clarke, Fairlie, Fenton, Frost, Huntington, Hurd, Jay, Kent, King, Lefferts, M'Call, Nelson, Park, Paulding, Pike, President, Price, Radcliff, Rhinelander, Root, Rose, Rosebrugh, Ross, R. Sandford, Sharpe, I. Smith, Swift, Van Fleet, S. Van Rensselaer, Vam Vechten, Verbryck, Ward, E. Webster, Wendover, Wheaton-39. The latter part of the tenth section was then considered; which provides that all officers may be removed by a joint resolution of both houses of the legislature. MR. KING was as sensible as any man, of the importance of allowing the judiciary to hold for a long term; of permitting the judges to hold even for the ordinary term of human life, in order that they might have nothing to hope or to fear, as long as they persevered in the line of their duty. They are usually selected from the foremost ranks of the bar, at a period in their professional career when they are in the midst of their greatest usefulness and prosperity. They could not return to the bar again and resume their practice. They ought therefore to be set apart, and consecrated, as it were, for this high function; but, at the same time, they ought not to be lifted above responsibility. The constitution of this state was very deficient in this respect, more so than that of any other in the union. It had not been the intention of the select committee to make them impeachable by a majority of a bare quorum of the house of assembly. When we speak of a majority of the members of the assembly, we mean of all the members of that house. But he had cheerfully acquiesced in the amendment, proposed from abundant caution, and the word "elected" had been accordingly inserted. The question was now on the provision for removing the judges by joint resolution, which had been reported with a view of securing their responsibility in cases where they were not liable to impeachment. It was fit that such a power should exist, and he feared if it should be opposed, that other projects fatal to the judiciary, as now organized, would be brought forward. He hoped that the Convention would not countenance such projects coming from any quarter, and that we should still continue to enjoy the inestimable blessings of an enlightened administration of justice in that mode which experience had pointed out as the best. CHANCELLOR KENT was also in favour of the section as reported. There were many causes that might render the removal of a judge expedient, without affording a proper ground for impeachment, where his faculties were impaired by casualty or sickness, infirmity, intemperance, &c. He would be glad to interpose a barrier against the effects of party spirit, but on the whole he believed there could be but little danger that two-thirds of a legislature would deprive a judge of his office without sufficient cause. MR. MUNRO moved to amend the section, by striking out the words "joint resolution," and insert" by the governor at his discretion, upon the address of the houses." The question on the second clause of the section to the proviso was then put and carried. COL. YOUNG offered the following substitute for the proviso: "That twothirds of all the members elected to the assembly, and a majority of all the members elected to the senate, concur therein." MR. VAN VECHTEN hoped the amendment would not prevail. It had been said that the senate were a more stable body, being elected for a longer term, and therefore it would be right that a majority of them should decide upon a question, when in the assembly two-thirds must be required. The senate would always partake, more or less, of the sentiment that pervades the other house, and when a law is passed in both houses, and shall be pronounced by the judiciary unconstitutional or unjust, will it not excite hard feelings in these two branches of the legislature? Your judges, however they may be bound by all the ties which ought to govern them in the faithful discharge of their duty to the people, will feel themselves restrained. They ought not to be liable to a removal, unless the charges preferred against them are so palpable, that twothirds of both houses should concur in the measure. Mr. Van Vechten could see no good reason, why two-thirds of the assembly should be required, and only a majority of the senate: until this could be shown, he should be opposed to the amendment. MR. WHEATON opposed the motion of the gentleman from Saratoga. The report of the select committee, of which his honourable friend from Queens, (Mr. King) was chairman, went quite far enough in subjecting the judges to the supervising authority of the legislature. The ancient constitution of this state, made them removable only by impeachment; and it required two-thirds of the house of assembly to accuse, and two-thirds of the senate to convict. The Convention had yesterday determined that the power of impeachment might be exercised by a bare majority! Now it was proposed to go a step farther, and to ordain that two-thirds of the assembly, and a majority of the senate, might remove the judges from office, without notice to the accused, without assigning cause, and without a hearing. In his opinion, this would destroy the reasonable independence of the judiciary, as a co-ordinate branch of the government, intended for the protection of the lives, and liberty, and property of every citizen; and that, too, sometimes, against the legislature itself. Experience was the best and safest guide on this and other subjects of constitutional policy. By the constitution of the union, the judges could be removed by impeachment only, whilst at the same time, they held during good behaviour for life. In some of the local state governments, they were removable by impeachment only; in others, by joint resolution, or joint address: but in all the state constitutions where they were removable otherwise than by impeachment, the assent of at least two-thirds of both houses were required, and frequently that of the governor. The Convention had just rejected the amendment of his honourable friend from Westchester, (Mr. Munro,) requiring the concurrence of the governor and now we were called upon to lay the judiciary at the feet of the legislature. It was true that the constitution of Massachusetts, as recently proposed to be altered, required a bare majority of the senate and twothirds of the house to remove a judge. But it should be remembered that the assent of the governor and of the council was also required by the existing constitution of that respectable state; and that the senate was there chosen upon the basis of property, the senators being apportioned among the different districts, according to the amount of taxes they contributed. A majority of that branch might, therefore, be considered as equivalent to two-thirds of the other house. COL. YOUNG replied at length, and remarked that the constitution of several of the states in the union authorised the removal of judges on the recommendation of a bare majority of the legislature, and not an instance could be found in which that had been abused by an improper removal. They will always be secure if they do not mingle in the conflicts of party, and confine themselves to the proper duties of their office. MR. EDWARDS said, that if this motion prevailed, the judiciary would be placed upon too dependent a footing. But he was in favour of placing judges, as well as all other men in whose hands power was placed, upon a responsible footing. With that view, he had sanctioned by his vote the report of the select committee; but that he was apprehensive we were now in danger of pushing accountability to a pernicious extremity. It is true, sir, he said, that we have heretofore suffered in consequence of judges being placed upon too independent a footing; but in our solicitude to avoid evils arising from this source, we must be cautious that we do not involve ourselves in the consequences arising from renderingthe judiciary too dependent. The ground which the committee has taken, I am satisfied, is the true medium, and will answer well in practice. On the one hand, it will maintain the judges in the independent and faithful discharge of their duties, and on the other, will prevent them from setting public sentiment at defiance. This state is frequently agitated by violent parties, and it is desirable that the sanctuary of justice should be placed beyond its im pulses. It may be that your judiciary will be brought in conflict with the legis lature. It is, among other things, their duty to stand as sentinels to the constitution, and to guard against legislative encroachment. If they should pronounce an act of the legislature unconstitutional, they might arouse a violent spirit of hostility. For an act of this kind the legislature of Ohio impeached some of its judges. The same thing may occur here. I would have every department of the government duly respected, and would place every one of them upon such a footing as to protect them from the violence of any other department. If you intend that your judges shall be firm and upright magistrates, faithful guardians of the constitution, and of the rights of the people, you must place them upon so stable a footing that they cannot be blown away by every |