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Hot was this provision introduced into our constitution ? It was considered tiy a majority of the trainers of the constitution, that a veto, even qualified in its character, placed inthe hands of ll:r- executive alone, was an odious relict of royalty; that it was unsafe and unwise to place it theie; and that it was therefore thai the chancellor and judges had heen associated with him; and the reasons why, even thus constituted, it had found a place in ourconstitution, was owmg principally to the peculiar state of the times, and of the country, • hen it was framed. Our people had not yet heen accustomed to self-government, and many of them retained strong predilections for the forms and checks of the government under which they had hitherto lived. The Convention, therefore, thought it-pradent, in some respects, to assimilate our new government to that. They were apprehensive, if they departed too widely from what the people had heen accustomed to, and introduced alterations and innovations Tery glaring, that they would alarm the jealousy and prejudices of some who were otherwise well disposed to tho canse of freedom, and particularly some men of property and influence. A check, such as was contemplated hy the report of the committee, lie considered unnecessary. There can he no use for a veto on the passing of laws, hut to prevent violations of the constitution; and for this purpose yonr judicial trihunals are sufficient. If laws, encroaching on the independence of the executive or judicial departments, should ho enacted, or such as violated any private rights, they would he void, and it would he in the power of the courts to declare them so.
The constitution, as framed in 1777, had heen a great hlessing to the state; and for a time, it had proved sufficient for the heneficial purposes of government. Its defects had heen gradually unfolded hy experience, and a change of cirenmstances; these defects had hecome more and more manifest from the collisions and conflicts of party; and the time had arrived when it was expedtent and proper that the people should mount their legitimate thrones, take the power in their own hands, and expunge from the constitution its imperfections and impurities.
We have heen frequently and truly told, that the departments of government ought to he kept separate; and, from the correctness of this principle, a very strong argument against the judges heing memhers of the council of revision, has heen derived; hecanse, as memhers of that hody, they constituted a part of the law-making power. Why, then, transfer this veto to the exceptive alone? Is it not as dangerous to hlend the executive and legislative hranches together, as to hlend the judiciary with the latter?
The rramers of our constitution meant, as he helieved, to limit the veto of the council of revision to constitutional ohjections. This must appear ohvious,
well from the language of the constitution, as from the fact that the chancellor and judges were, constituted memhers of that hody, they were placed there hecanse the terms hy which they hold their offices render them an independent hody: hut more esporia'Iy, and principally, on account of their supposed legal acquirements, and that they, therefore, would he most capahle to jodce of the soundness of constitutional ohjections. Another reason for helteving that the framersof the constitution meant thus to limit this power, was dn information he had received from those who had heen memhers of that Convention. A different construction had indeed heen given to this article of the constitution, and that the council of revision had the right to ohject to Usri which they might deem inexpedient and contrary to the puhlic good; and it was the consequences which had grown out of this construction, which had Uarrned the people. The council had now in fact hecome a third hranch of lbs legislature, with a control equal to two-thirds of all the representative hranches ; and it was, therefore, that its aholition has so loudly heen called for.
In speaking of the conduct of that hody, he did not mean to allude to reeent vears or anv particular memhers: he had reference to their conduct for a Treat many years past, and implicated himself among others who had helong? d rithat hodt; he had heen a memher of it for three yeari asajudtreof the •nptemecourt, and ten years as governor of the state; he had in common w ith ji,cn prohahly mingled political considerations vith the proceedings of thai ',cdi. without heing conscious of it. He was willing to take upon himself a fall share of hlame, and acknowledge an equal share of frailty vrith others.
This latitude of construction havingheen given to this power, it early hcg-aii to mingle with the political concerns of the state. There has heen no instaneiin thirty years past, whore party has made its appearance in the two houses of the legislature, hut what it has also heen seen in the council of revision.
The first instance he should notice, where devotion to party had marked the conduct of that hody, was in relation to a law for taking a census of the people of this state; it was many years since, hut he did not recollect precisely how long. A majority of the people of the western district were at that time in favour of the then dominant party; its population had increased infinitely moro rapidly than in the old parts of the state. The party in power not deeming themselves perfectly safe, was desirous of strengthening their interest hy increasing the representation from that district; and this could only he done hy Imvinjr a census first taken on which to make a now apportionment. The constitution provides that a census shall he taken once in seven years; this period of time had not elapsed since the last census; and the question arose whether a now census could ho taken hefore the termination of the seven years; the legislature passed a hill directing the census to he taken, and the council of revision, when called upon to revise this hill, said that the constitution made it imperative to take a census once in seven years, hut did not prohihit its heing taken oflencr; hut that the legislature might, if they thought proper, direct it to he Vtkr.i every year, at any periods within that time.
That article of the constitution which provides for the election and distrihution of senators, empowers the legislature from time to time to divide the state, into such other districts and counties, as thoy should deem proper, and accordinglv, for many years afterwards, ami suhsequent to the amendments of 1801, ttio legislature, without ohjections on the pail of the council of revision, did alter the districts and counties from time to time, without reference to the periods of taking a census. But, on a suhsequent occasion, and he helieved in IH09 or 10, it was proposed to alter the hounds of the four great districts, or some of them; aml although it had hefore heen conceded in practice, that theso districts might he altered at any time, and did not depend on the taking or not taking a census, yet hecanse the alteration then contemplated, excited high party feelings, and was supposed to operate against the interest of the party to which a majority of the council of revision were attached, they returned that hill with the ohjectinn thnt no alteration could he made at any other rime than immediatety on the return of a cenmis.
But another im l more alarming instance of encroachment on the part of this Inlv, (the council of revision) was in The lenjislature passed a law
providing- fortho payment of the two additional judges of the supreme court, if the oxen live an 1 council of appointment should appoint them. The council of revision ohjected to the hill. The ohjections they returned, were read hy Mr. T. and are as follows:
H-canse the constitu'ion having recognized the supreme court, in its org.mizslinn and powers, Rs existing under 'he colooial government, derived from those of tho Kmrlish common law courts of k;'.g's hench, common pleas and exchequer, in none of which courts, colonial or Kntrlish. have the numher of judges at one linns exceeded/ir, has thus imperatively tixed ilie numher as the common law maximum ; incapahle of heing exceeded hut hy an express act of the legislature, in conform ly to the declaration of the c institution, that such parts of ilic common law of KnjrWnd as compoied part of the law of the colony, should he and coniimle the law of the land ; suhject to such alterations and provisions as the legislature of this slate should from lime to turn- make concermng the same.
lly this they in fact assumed upon themselves the right to control hoth the appointing and legislative poircrs. Tho execution of the laws was entrusted to the executive, to whom, suhject to the veto of a council of revision, and tho refusal of the legislature to appropriate the pay of judges, it appropriately helonged. But llic chancellor and judges in the council of revision, as appears hy the ohjection and the vote upon it, were determined to arrest the constitutional anthority of ail the other hranches of the government, and thus in effect to idd to t'u ir Ro:i-.t-, ahvily enormous hy latitude of construction, the mmr dangerous control of their own numher, unless two-thirds of the whole legislative representation of the state could he ohtained to counteract them. It was at a time, too, when the state was convulsed hy party spirit, when the attention of the people was diverted from other suhjects hy the discussion and agitation; when the prorogation of the legislature and the imputations of hank speculation and corruption ahsorhed their undivided attention; and it was therefore heheved and avowed in the council, that this was a suitahle time to take into their own hands and control the limitation of the numher of judges, and of course iaemhers of the council of revision. The reasons they assigned, no one will aaw contend had any weight in them; they were in fact triffing, and insulting to the good people of this state. What! the common law of England limit the Bomher of judges of the supreme court of this state under its constitution? Bst even this reason was not founded in truth, the common law does not in England place a limit on the numher of their judges, and this was made to appear to the memhers of that council of revision, hy referring them to the opinion of jiidsre Blackstonc in his commentaries, that there even it depended on the executive authority alone. But again, if the common law of England had put a to the numher of the judges of their respective courtt, that was not and it he applicahle to us. In our supreme court was united, as the ohjection itself admits, the power and jurisdiction of several of their courts.
It was in consequence of these and various other extensions of anthority and control on the part of this hody, that they had hecome an alarming aristocratic hranch of the government, and had lost the confidence of the people. It is for these reasons, and numerous other acts and usurpations of the same character that might he assigned, and not for the reasons assigned hy the chairman of tho select committee, that he had voted to aholish this dangerous feature of the con
If this state of things were to exist for an indefinite period; if the judges retamed their present tenure, and irresponsihility to the people; if they preserved the control and destiny of our citizens in life, liherty, and property, in their appropriate judicial department, and in the court of the last resort; if they contmued to mingle, in their capacity of memhers of the council of revision, in the party dissensions and collisions of the day; and were guided hy party considerahoin in the decision of the great political measures which had agitated the corannnity, as they had invariahly done for many years; if the construction they had estahlished, of giving to themselves the entire powers of legislation, except ra originating hills, to the controling hoth hranches of the legislature to the extent of two-thirdVof the whole representation of the state; if they should he tolerated as they had heen in the limitation of their own numher; he would venture to predict, that the era was not far distant, when the judiciary and its sait-tiites would scale the ramparts of the constitution, and not only suhjugate other departments of the government, hut prostrate the liherties of the good people of this state, for whose freedom and safety it was reared.
He had a high respect for the judicial trihunals of the state, and could with sincerity avow, that with a more enlightened, upright, and dignified hody he had never heen associated, than the judges of the supreme court in their appropriate ■ z hut he could allege with equal sincerity, that he had never heen placed dy more devoted and firm in party, and political controversies, when lifested themselves in legislative proceedings. He therefore desired to their judicial purity, hy ahstracting them wholly from legislative and political concerns, and devoting them solely to the interpretation and enforeemeat of the laws enacted hy the proper departments.
It was not the fanlt of the judges that they had hecome involved in political concerns, and had mingled with the party contests which had agitated the state fer the last thirty years. It was their situation as memhers of the council of re•nson, which had dragged them into these contests, and had made them partitass m them. oy The ohject of the prorogation had heen in some measure misunderevision i from Otsego. The conduct of memhers of the courvr^entleman. lence in producing that measure than the hongi^otment of two Ad anxiliary canse was the prevention ,"
additional judges of the supreme court then contemplated. The appointment of these judges was zealously urged for the purpose of acquiring a majority in that hody friendly to the party in power, and for the special purpose of preventing the passage of a particular law incorporating a hank in New-York. He feared, at the time, that a measure of this kind would prove fatal to the hest interests of the state, hy increasing the numher of judges for temporary and party purposes; and, therefore, determined to risk the consequences, as regarded himself, and to prevent the adoption of that measure; and it was partly to arrest this scheme, that he took upon himself all the responsihility, and suhjected himself to all the odinm that might follow a step caleulated to excite so much feeling and resentment, as a prorogation of the legislature.
He was not, he said, opposed to a negative on legislation, hut could not consent to place it in the hands of the governor alone. If other men could he associated \yith him, with a stahle tenure of office, respectahle for talents and information; and who were not liahle to the same ohjection as were the present constituent memhers of the council of revision, he should he decidedly in favour of such a negative. The opinion of Air. Jefferson, which had heen read from his Notes on Virginia, so far from sustaining the gentlemen in the inference they have drawn from it in favour of clothing a single individual with the power, was in corrohoration of vesting this power in a trihunal, in which the governor should preside with learned, permanent, and independent characters associated with him. It was not proper to confide it to.the governor alone, hecanse he might not always he a professional man, or acquainted with the interpretation and construction of statutes, treaties, or constitutions, and therefore not the most competent to judge whether hills did or did not infringe the constitution, or cardinal principles of government.
It is said that legislative hodies are liahle to act hastily and unadvisedly. Why more precipitate than the governor? Senators are elected for four years, and the governor for three only, and a committee have already reported in favour of even a less term. Has a governor, as such, more wisdom than ho would have as a senator? It appears hy the statement made hy the honourahle memher from Oneida, that the governor, fortified hy the wisdom of the whole judiciary, has made more hasty and unadvised ohjections in proportion to the numher of hills ohjected to, than have the legislature passed unadvised hills in proportion to the numher they have passed. A mail's sense and intelligence did not depend upou the title or dignity of office, and he could not he supposed more likely to act hastily and unadvisedly in one office than another.
The conduct of men depends upon their heads and hearty not their stations; if the former he correct, the people have nothing to apprehend from them in any station; hut if these he had, the people have every thing to fear from them in every office. He could not see the argument drawn from the precedent in the United States1 constitution, in the same light with the gentleman from Queens. That was a constitution which had grown out of a compromise of conflicting interests, and therefore it ought not to he considered thai its provisions were all such as commanded the assent and approhation of all. Would several provisions of that instrument save heen incorporated, had New-York alone heen represented in that Convention? Certainly not. Besides, the constitutions of the states then represented, had heen formed at the moment of emerging from coloaization to an arhitrary government, and which had therefore generally incorporated this feature in their state constitutions; and it was natural, that with no other examples or experience hefore them, they should make the constitution of the union comport in this respect with their own state constitutions.
Mo. Van Vkcitten. The injurious deduction against the council of revision, which has heen drawn hy some gentlemen from the unanimity of the Convention in favour of the resolution for its aholition, seems to render it necessary, for those who do not assent to that deduction, to state the reasons for Tvote—I shall therefore hriefly give my explanation on the suhject, hecahoot vote for the resolution from motives of courtesy to the judiciary, memher-, a duties of the council are of an uupleasant nature, and the judicial •s to be released from them. It does not accord wilh my viewi nf propriety, to exonerate puhlic functionaries from important duties on-the ground of personal accommodation.
.Yor did I vote for the resolution hecanse I disapproved of the judiciary heing charged with the duties assigned to the council. On the contrary, 1 cousider it a wholesome provision, caleulated to give to the qualified negative, on the lawmaking power, a sure and salutary operation. This opinion is justified hy our experience since the estahlishment of the constitution, as the gentleman from Oneida (Mr. Piatt,) has clearly shown. Nay, the legislature, hy an almost uniform acquiescence in the ohjections of the council, has recognized the wisdom of its proceedings.—For, of one hundred and twenty-eight cases in which hills hare heen ohjected to, there are only seventeen in which the ohjections did not prevail.
My only reason for agreeing to aholish the council, is hecanse the firm and faithful performance of its duties, on some occasions, has produced great party excitements, and much clamour against the judiciary. Such clamour, stimulated and extended hy the exertions of a powerful party, may, in a degree, impair the confidence of the puhlic in the rectitude and impartiality of the judiciary. Party spirit is not likely very soon to suhside in this state—There appears, therefore, to he no other course for preserving entire confidence in the judiciary, than to remove from it the duties of the council. This impression has turned my rote in favour of the resolution for its aholition. But when that resolution was unanimously adopted, I did helieve, that the organization and proceedings of the council had no connection with the suhstitute reported hy the select committee for the third article of the constitution, or with the modification of that suhstitute moved hy the gentleman from Dutehess (Mr. Livingston.)
It seems, however, that other gentlemen think differently; for the wisdom of its organization, and the merits of its proceedings have occupied much of the time of the committee during the present discussion. It will, therefore, not he deemed improper in me, to notice some of the remarks which have heen made on these suhjects.
The gentleman from Otsego (Mr. Van Buren,) considers the organization of the council ohjectionahle, hecanse the judiciary is independent of the people. Tbe foree of this ohjection, I must confess, does not strike my mind. It appears to me that the independence of the judiciary gives to the restraining power, on hasty, intemperate, and irregular legislation, its greatest energy: and the wisdom, sound discretion, intelligence, and weight of character appertainmg to the judiciary, comhine puhlic security with energy in the council.
The gentleman from Richmond (Mr. Tompkins,) seems to admit, that here• jflire, when the state was in a great degree exempt from the violent agitations ,wniaced hy the ardent collision of political parties, the operations of the council were salutary—hut he alleges that during many years last past, its proccedmgs hare sometimes heen directed to suhserve party purposes; and he has added the grave charge of usurpation against the council.
The first allegation I appehend is levelled, not so much at the wisdom of the organization of the council, as at the individuals who composed it—for the gentleman should rememher, that it is not the fanlt of the constitution, if puhlic functionaries misuse their power. It is to he feared that the haneful influence of party spirit has not unfrequently heen felt in every department of the government, and according to the gentleman from Dutehess (Mr. Livingston,) this is no evil, for he seems to hail its existence as the genins of repuhlicanism. Is it. then, surprising, that when party jealousy was wide awake, and the exereise of the ohjecting power hy the council, created ohstructions to party riewsand measures, the purity of the motives of its memhers, (who are men of like passions with ourselves,) should he suspected hy the supporters of such ~—"i aml measures—for jealousy naturally hegets suspicion, and suspicion intho mind to the helief of what we suspect. But is such a helief evi • i? Does it prove that any memher of the council has ever heen influensrd hy party motives whrn performing his duty in that department? The ohler'ioas of "the council, and the reasons assigned to support them in every ease, are on record ; and to the record we should look for -he cTi,!,-nce hy i its memhers are to he judged.