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WLat, asked Mr. L. has led to the destruction of the third article of the constitution? It was (lie violence of tlie executive and council of revision, in endeavouring to restrain the passage of some important bills. A bill passed by a majority of eight in the senate, and thirty in the house, was defeated by a contemptible minority with the executive at their head. It was these acts that agitated the feelings of the public. Is it not absurd to suppose that about forty members in this house, and eleven in the senate, with the chief magistrate, should possess more wisdom than more than one hundred men'
Another reason, sir, in the way of anticipation, is this—I know it will be urped—it will be said that if you require only a bare majority of members elected, you may as well not have a qualifying negative. Not so. I am to presume, and ever shall presume, that that body of men, who are to represent the interests of the state, and who will represent the talents, wealth, integrity, and good sense of the country, will not come here and persevere in tho passage of a law which will be fatal to the public interest. Inasmuch as they arc the creature? of the community, should they be guilty of such a procedure they would never darken the door of a legislative forum again. That is your securit)". Legislators may be guilty of an error once; but if shewn to them, they will have more Uiaj-miiimity than to persist in it.
Many cases may be supposed, and they are not the creatures of the imagination, on which this power vested in an individual, would be highly dangerous. Such a state of tilings has existed in the union ; nay, it ha* existed in our owa state. It is but yesterday siucc the thunders of the cannon have ceased—since we were engaged in an awful war which was to determine whether our independence could be sustained by the patriotism and valour of the country. A proposition was made for raising a volunteer corps, necessary for our defence, and to save the state from destruction. You saw one branch of the government willing to raise the corps, but they would not let them pull a trigger out of the margin of the state. Suppose a like emergency should occur again, and bolh branches of the legislature should pass the necessary act for our defence, but a minority of one branch, of numbers enough, wilh a chief magistrate whose views were in arcordanco with that minority—how could you get along in that hourof peril? Your state must be ruined, and the national union shalccn to it! foundation. Our independence would bo placed upon a barrel of gunpowder, liable at any moment to be blown up.
Mr. L. in conclusion, said he would not trust a man, place him where you will. In politics, a-, in dealings, he would consider every man a rogue. Ho was forgniug on the safe side. Keep the power with the people. They will not abnsc it. With these views, sir, said he, I shall at present content myself, imkingthis frank and candid confession, that if any views of this subject, ot" nine, shall bo pointed out tome as erroneous there will be no citizen in this Convention who would more readily retrnct them, and go with the majority.
Judce Pr. \tt. Having the honour, Mr. chairman, of being one of the select committee whit rnnde tho report now under discussion, it becomes my duty to aid m explaining the reasons which induced that report.
The first point which presented itself for the consideration of the committee, <ra". whether it was wise and expedient to retain any check over the legislativu department hv way of a qualified negative upon the acts of the senate and assembly. The committee deemed it unsafe to dispense entirely with the supervising power at present reposed in the council of revision. We deemed it esseniial to the public safety to rest somewhere in firm and independent hands, a HmiMnrtnnpiai the legislative will.
In a free representative government there is a strong and natural tendency (o rrrrnirt legislation. That department must he composed of a very numerous body of men. In (general we may hope, that they will possess sound and upright intentions; but a majority of them will probably possess little experience in framing laws: and thn nature of man, and our own experience shew, that, men. suddenly elevated to power, have a natural proneness to use their power immoderately. Our state, in common with others, has from time to tine bad many bold and rude reformers; who sec evils and disorders all around them, in whatever docs notjiccord with their owu narrow views of public policy; andwho often apply remedies with fo unskilful a hand, and u it', so little wisdom and circumspection, that in curing one evil, they create many others. Such an inexperienced lawgiver has his eye intently fixed on some particular mischief which he supposes to exist, and then, with a strong hand he extirpates that evil; but in doing so he often throws down the fences erected for the security of private rights. Almost every man who comes to the legislature seems to suppose that he is bound to do something; and this propensity is so strong, that it is often excited into a passion and a rage. All change in the puhlic laws of tho state is in itself an evil. It renders the rule of action for a time unknown or uncertaiu. The stability of laws inspires confidence; and the success of all our prospective plans in the various business of life must essentially depend on that stability. Fickle caprice is the law of a tyrant's will; and in proportion as our laws are unstable, they partake of that characteristic feature of tyranny.
Besides, sir, it is not to he disguised, that we are at all times exposed to the arts and designs of ambitious demagogues, to selfish intriguers, who speculate on the public bounty, through means of party favouritism; and to that esprit de rnrps, which under strong party excitement, often infests with contagious influence, all who are within its immediate atmosphere. The pride of our nature is often humbled, when we sec men, who in their private life and character are deserving of all our confidence and esteem: yet, when associated in large assemblies, and inflamed with party zeal, are induced to commit intemperate acts <if outrage and violence under the false pleas of public necessity, or of retaliation and self-defence—act.<. of which any one of them,In a moment of calmrefleotion, would blush to think himself capable.
These, sir, are some of the infirmities and vices inherent in our form of government; and so long as man continues imperfect and depraved, these evils miibterer attend the many blessings which we enjoy under our happy repubJic. Uut while this truth admonishes that perfection is unattainable in any hu.inan device; it solemnly warns us on this occasion, to retain or provide every sn i table check and guard against those evils; sofaras human sagacity and wisifom can discern and prevent them.
On this subject, sir, it is important to realize the distinction between the ottaal power of legislation, and a mere negative veto. The power of making or altering the law ought unquestionably to be confided to the two houses of the legislature exclusively. That power expands itself to all objects not forbiden by the constitution, or the fundamental and universal principles of justice.— ^uch vast powers are obviously liable to great abuse: and if abused, the injurious effects are permanent; and in a great measure incurable. If the legislature pass a law which is unconstitutional, the judicial tribunals, if the case be regularly presented to them, will declare it null and void. But in many cases, a long time elapses between the passing of the act, and the judicial interpretation of it; and what, let me ask, is the condition of the people during that interval? Who, in such a case, can safely regulate his conduct? In many Chs«-s a person is compelled to act in reference to such a statute, while he is necessarily involved in doubt as toils validity.
But where the legislature abuse their discretion, on questions of expediency merely, the mischief is often still worse. In all cases ofprirale acts, which (tomprizc three fourths of our statute book, the evil of an improvident act is incurable, because it usually vests private rights in individuals or corporations which no power under the government can afterwards repeal or annul. No matter how unequal, unwise, or inconvenient, such laws must be carried into effect. Fieri rum debet; faction valet.
But in regard to the evils which might by possibility flow from the improper rvercisc of the qualified veto on the legislature, they are very limited in their effects, and of far less dangerous character. The council of revision, or the executive holding this check, can originate no bill, nor make nor alter any law. The effect of the objections where they prevail, can only produce the result of suspending the legislative will of the two houses. And the worst consequence which can ordinarily happen, is, that the people must remain under the law as it stood; until the vpico of the people, through their uew reptosentatives, shall p.ixiuvo a change.
Having come to the conclusion that such a check is indispensahle to the puhlic safety; the next question in order, is, whether it shall he retained in tho council of revision, or transferred to the governor alone? I yesterday voted for the aholition of the council of revision, hut with an implied supposition, thai a similar power vested in the executive, should he suhstituted, according to the report of the select committee.
In deciding this important question, I think it proper on this occasion (especially after the remarks made hy the honourahle memher from Dutehess, Mr. Livingston) to give a concise history of the operations of the council of revision, from the origin of the government, down to the present period. I have devoted most of my time since I had the honour to he appointed on the select committee, to an examination of the minutes of that council. I have made an ahstract in the form of a schedule, shewing the numher of hills ohjected to hy the council in each year, and the distinct grounds of ohjection in each case. 1 think this document cannot fail to he useful m our deliherations; hecanse tho past operations and experience under the exereise of this supervising power, will aid and guide our judgment, as to its prohahle cfliects and operation hereafter.
I now ask the attention of the committee to the ahstract which I have alluded to; which is as follows:
Whole numher of hills passed ... G590
"the honourable gentleman from Dutchess (Mr. Livingston) lias seen proper to reproach the modern council of revision by several severe imputations; and particularly by charging them with having usurped the power of judging of the expediency as well as constitutionality of bills passed by the legislature. Which construction he Iras asserted to be contrary to the usage and interpretation which uniformly prevailed in the council of revision; until after the expiration of the administration of bis excellency governor Clinton; on whose exalted character he has made a high and just eulogium. [Mr. Laringston here rose and remarked, that it might not be improper for him to explain, that it was his excellency governor Jay, to whom he alluded in his former remarks. During his administration be contended that it was the business of the council of revision to pass all bills where no constitutional objections could be urged against them; taking the ground that the two branches of the legislature were the most capable of judging of their expediency.] I thank the gentleman for the explanation; but I regret that it only affords me another opportunity of pointing out another egregious mistake in point of fact. Bat I acquit that R-eaileinan of all wilful misrepresentation; of which I know him to be incapable. That honourable member has now told the committee, that governor Jay inflexibly maintained the construction that the council had no right to judge of the expediency of hills. He has also informed us that the Convention of 1777 gave the powers in question; because that patriot and sage, the venerable George Clinton, was then governor; to whom no powers were thought to be (oo large; because he was incapable of abusing them. I agree in all the praise bestowed on that venerable man. But the honourable gentleman last ap, has fallen into a remarkable mistake. For although governor Clinton wa» the first governor elected under the constitution; yet it was very certain that he was not governor when the Convention framed the constitution. It was not, it could not, be known at that time, who would fill any of the offices tinder the constitution; and we must presume that no powers were granted with reference to any individual.
From the schedule which I hold, sir, it appears most unfortunately for the explanation just given by the gentleman from Dutchess, that the very first bill that was passed under the constitution, was returned by the council with their unanimous objection on the sole and distinct ground that it was inexpedient and inconsistent with the public good. The council, as appears by the minutes, was then composed of Gov. Clinton, Chancellor Livingston, Chief Justice Jay, Justice Yates, and Justice Hobart. The bill was specially committed to Chief Justice Jay, and he drafted the objections now on the council minutes. Thus We sec that those distinguished men who were leading members of the convention, at the first council that was ever held under the constitution, gave an tin,minions construction to the third article of the constitution, which exactly accords with the interpretation so loudly complained of against the present council. The schedule which I have exhibited, shews, that the whole number of bills that have been objected to by the council, from the origin of the government to this time, is 128; of which number 81 were objected to as repugnant to the constitution; 44 on the sole ground that they were inconsistent with, the public good.
For example, the first act objected to in 1778, was a bill requiring certain oaths, and involved no question but that of expediency. In the same year another bill was objected to, the sole object of which was to make the county liable for the default of the sheriff. In 1779 the same council objected to a bill lo prevent horse-racing, on the sole ground of expediency. In 1785 a bill for preventing inoculation of the small-pox was objected to as contrary to wise policy, which required the practice to be encouraged. In 1788 a bill authorizing the sale of Governor's Island, in the harbour of New-York, was objected to on the sole ground that it was wiser to retain it for purposes of public defence. In 1798, during the administration of Gov. Jay, a bill for substituting paper for parchment in certain public records, was objected to in council; his excellency the governor concurring in the objection.
Thus itdcmonstrably appear?, that the construction and practice in the council of revision from 1773 to 1821 inclusive, Los beeo uniformly the same under the varied succession of governors, chancellors, and judges; and the attcmpUa change that usage, and the novelty of construction, are imputable to those only, Who, within a very few years, have insinuated the charge of usurpation against the council. It appears from the records in the secretary's office, that the whole number of bills ever pnsscd by the legislature up to this time, is 6590; of which l-ZS have been objected to by the council of revision; and 17 only of that number have been passed into laws, notwithstanding the objections.
Sir, I claim not for the members of the council an exemption from the frailties of human nature. I know they are men of like passions with others. They have, no doubt, in their arduous duties, committed many errors. But fortunately :i II their acts arc on record, with their reasons for their objections. I invite gentlemen to a careful examination of that record; and then, sir, I invite to a comparison between the acts and proceedings of the council, and the whole conduct and proceedings of any other branch or department of the government.
The evils and inconveniences resulting from the council of revision are obvious.and apparent, while its benefits arc chiefly unseen and unacknowledged. Its operation consists not so much in doing positive good, as in preventing mischiefs. It has undoubtedly, as all confess, hindered many dangerous and per' nicious bills from becoming laws: but how many schemes of profligacy; how many base speculations; and how many acts of party violence bare been stran* gled and suppressed, because their authors dared not to present them to the test of such an ordeal, it is impossible to demonstrate; but there can be no doubt in the mtnd of any reflecting man, that much evil has been thus prevented. The very existence of such a power, in wise, firm, and independent hands, has in a thousand instances prevented the necessity of using it; and this silent and uoseen operation has been most salutary and benign.
I owe it to myself, and to the public, to declare* that in my judgment such a power will never be exercised with so much wisdom and steady firmness in any other hands. In my opinion we shall by this change, injure the constitution, a"s it regards the legislative department: but it will improve the constitution as it relates to the judicial department. By removing the officers of the judiciary from all connexion and collision with the legislature, I hope that jealousies will be removed, and harmony restored and preserved between those departments. And so far as 1 may be supposed to have any personal interest in the question, I declare my heartfelt satisfaction at the complete separation. We are now called to revise the works of our fathers' hands. To a small number of us on this floort this is literally true: and all I trust will recognize in the framore of our constitution, the fathers and founders of the state. I feel the solemnity of the occattion, and when I see the axe laid to the root of the tree which our"fathers plant* ed, and watered, and defended; a tree which has yielded much good and whole* some fruit; and has so long afforded to us its shade and shelter; I confess, sir* that I witness its destruction with no ordinary emotions.
Let the council of revision descend in silence to the grave. But let ho man now write any inscription on its tomb. When the feelings, and interests, and passions of the day shall have subsided, if I do not greatly deceive myself, imjm-tial posterity will inscribe an epitaph on that tomb, expressive of "profound veneration.
In regard to the intent of the proposed power in the executive alone, I concur dccidodlv in the report of the select commiltee. Such a power is necessary to check usurpation in the legislature, which must ever be the strongest. The |K)wer is necessary as a shield to protect the Weaker departments against the controlling influence of the legislature. The maxim of separating the departments, is of vital importance to the existence of civil liberty. But, sir, it in idle to separate them in form, on parchment, if in reality they are not made independent and capable of self defence against each other. No single elective magistrate can stand against the persevering and systematic assaults of a numerous body of popular ami influential men who compose the legislature. They not only have the power over (lie subsistence of the officers of the judicial and executive departments; but in the plenitude of their power, they may so regulate the duties of those officers, as to render f heir situation uncomfortable in a variety of modes: and they may in fuel thus indirectly legislate the governor. • nd chancellor, and fudges out of office.