against the passage of unwholesome laws of end with the government of other objection to such a guard, that the judiciary hasssary business with the officers eventually the operation of an unconstitutional law he laws are faithfully exe

The gentleman from Richmond supposes that the wisdom measures as may be rehouses of the legislature, elected as the members are, by vices a compensaelectors, affords adequate security for deliberate, and wholesonerm for which gislation. If his supposition be correct, the additional security of negative, vested in the executive, cannot operate injuriously-For the and virtue of the legislature will not be impaired by requiring it to re-exa any bills which it has passed, with the aid of the additional lights which objections of the executive may furnish.

Again. Can any gentleman determine how long the present distinction, as to the qualifications of electors, will be preserved? Should that distinction be done away, the argument derived from it will fall to the ground.

It is further objected, that the qualified negative of the executive may defeat the passage of salutary laws. I conceive, sir, that the power of doing good includes the power to do evil. The validity of the objection depends therefore on the probability of danger that the power will be abused-Is there good ground to apprehend that the executive will abuse the objecting power? The opposers of this proposition tell us, that full confidence may be reposed in the wisdom and virtue of the legislature, because the members depend on the will of the people for their seats. And is not the executive chosen by, and therefore equally responsible to, the people? Does the theory, or practical operation of our government, justify a belief, that the people bave less regard to wisdom and virtue in the choice of their chief magistrate, than in the selection of their senators and members of assembly? Surely not. Then let me ask whether it is a reasonable presumption, that the collective wisdom and virtue of the legislature will be diminished, by adding to it the wisdom and virtue of the executive in the mode proposed, and for the purpose contemplated by the select committee? It seems to me that the reasoning of gentlemen against the proposition, is palpably fallacious and incongruous. The only solid objection, in my opinion, to placing the objecting power in the executive, is, that it will not be exercised so often, nor with so much firmness and effect, as the public good may require.

Again. If the sense of the people on this subject is to be regarded, we have their sense in favour of a qualified negative explicitly declared in the Convention of 1777, and virtually reiterated in the Convention of 1801, by adhering to the third article of the constitution, by which the council of revision was instituted. Nay, we have the testimony of the United States, in favour of the proposition of the select committee, corroborated by the separate and concurring testimony of many individual states, and by the approbation of the most enlightened and distinguished statesmen throughout the union.

But I will not trespass longer upon the indulgence of the committee. I give a decided preference to the proposition of the select committee, and therefore shall vote against the amendment offered by the gentleman from Dutchess.

GEN. TALLMADGE rose to explain. He said, when the gentleman from Otsego (Mr. Van Buren) had the floor, he did not correct an error into which he had fallen, because he expected to reply. The gentleman from Richmond (Mr. Tompkins) having fallen into the same error, it became his duty now to explain.

Mr. T. said it was imputed to him, that he had declared that the select committee had made their report to separate the judiciary from the council of revision, upon grounds of kindness to the judges, and a belief of the uniform correctness of the conduct of those men. He said he had made no such declaration. It would be remembered, that the gentleman from Delaware (Mr. Root) had declared on the floor, that the report to separate the judges had been made by the committee, upon the ground of the malconduct of the judges, and the just odium which had attached to their characters. He could not, as chairman, admit, by his silence, such motives to be attributed to the committee, or to himself. In reply to the charge of corruption in the judges, he did declare, that no such consideration influenced the committee-that they had been influenced by the great and known principles of government, to provide a separation of

ssly disclaimed any expres that it was intended to write d-and then, and as pointing had said it would serve to disom imputations, and be a kindin this Convention, he should vices of any incumbent of office, alled to legislate on great princiy, and not with regard to individufficiently explicit.

of the committee would have been ch the resolution for abolishing the passed on Tuesday. But there was bm the turn the discussion had taken, y-particularly with regard to the preier states. He moved, therefore, that

vention adjourned.

NEW-YORK.

85

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apprehend not.

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The motion preva..

FRIDAY, SEPTEMBER 7, 1821.

The session was opened by prayer by the Rev. Mr. MAYER. The President took the chair at 11 o'clock, when the minutes of yesterday were read and approved.

MR. SHELDON, from the Committee who were directed to enquire whether any, and if any, what alterations are necessary to be made in that part of the constitution of this state which relates to the executive department, reported:

That the following amendments ought to be made and substituted, instead of the 17th, 18th, and 19th articles of said constitution.

And this Convention doth further, in the name and by the authority of the people of this state, ordain, determine, and declare, that the supreme executive power and authority of this state, shall be vested in a governor, and that statedly once in every two years, and as often as the seat of government shall become vacant, a freeholder, who shall have been fourteen years previous to his election, a citizen of the United States, and who shall have resided in this state five years next and immediately preceding his election, unless he shall have been absent on public business of the United States, or of this state, and who shall have attained the age of thirty-five years, shall be by ballot elected governor by the electors qualified to vote for the most numerous branch of the legislature; which election shall always be held at the times and places of choosing representatives in assembly for each respective county; and the person having the greatest number of votes within the state, shall be governor thereof, who shall be eligible to said office not exceeding eight years out of ten.

That the governor shall continue in office two years; and shall by virtue of his office be general and commander in chief of all the militia, and admiral of the navy of this state; that he shall have power to convene the senate and assembly, on extraordinary occasions; to prorogue them from time to time, provided such prorogation shall not exceed sixty days in the space of any one year; and at his discretion to grant reprieves and pardons to persons convicted of crimes, other than treason or murder, or crimes punishable with death; in which he may sus pend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve. And it shall be the duty of the governor to report annually to the legislature the names of the persons pardoned; the crimes, the time when convicted, before what court, and the reasons for granting such pardon.

That it shall be the duty of the governor to inform the legislature at every session, of the condition of the state, so far as may respect his department; 10 recommend such matters to their consideration as shall appear to him to concern its good

government, welfare, and prosperity; to correspond with the government of other states, and of the United States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are faithfully exe... cuted to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.

That the governor shall at stated periods, receive for his services a compensation, which shall neither be increased nor diminished during the term for which he shall have been elected.

The report having been read,

On motion of Mr. SHELDON, it was committed to a committee of the whole, and ordered to be printed.

MR. FAIRLIE, from the committee on the rules and orders of the Convention, reported one or two amendments; which having been explained by Mr. Spencer, were, on motion of Gen. Root, ordered to lie on the table.

THE COUNCIL OF REVISION.

On motion of Mr. TALLMADGE, the Convention again resolved itself into a committee of the whole, on the unfinished business of yesterday-Mr. Sheldon in the chair.

CHANCELLOR KENT. I do not rise to take any further part in the debate on the question now before the committee. I have already expressed my opinion in favour of the amendment as originally reported, and I do not apprehend it to be requisite, in the due discharge of my trust as a member of this Convention, that I should enter into altercation with members whose views on the great points in discussion should not coincide with my own. I shall endeavour on every question of moment that may be agitated in this house, to deliver my sentiments with brevity, and deference to the judgment of others, but at the same time with frankness and freedom.

My object at present, is, to correct some mistakes into which I apprehend the honourable the President inadvertently fell yesterday, in his observations upon the proceedings of the council of revision, during the period that he presided in the administration of the government. He was pleased to indulge in some observations upon the council in which the official character and conduct of the members of it were implicated. He observed that the council in their votes upon bills that were submitted for their revisal, partook of the political feelings and character of the political parties that at the time divided the twe houses of the legislature, and that the same line of distinction that had marked the parties in the legislature in the passage of bills, uniformly marked the decisions of the council. He was pleased to say that he himself had equally felt, and acted, and voted, in the council, under the same political impulse, and had partaken of the same infirmity. To justify his remarks, the President referred to the case of the bill of the 14th of March, 1809, for apportioning the representation in the legislature among the four great districts, which the council returned with objections; and to the bill of the 3d of November, 1812, providing for the appointment of additional judges of the supreme court, and which the council also returned with objections. Those two bills, I understood him to say, had passed the legislature upon party grounds, and had been objected to in the council upon the same ground; and the line of party distinction in the two houses upon these bills had been as distinctly marked by the votes of the council.

I was very well pursuaded at the time, that the honourable the President was in an error, and that the charge was entirely without foundation, but that the truth in respect to those cases might be perfectly ascertained, I have had recourse to the records of the council of revision; and I find that to the first bill I had the honour to submit to the council some objections, and that after a full discussion, the objections prevailed by the following division in the council:

For the objections-Chancellor Lansing, Chief Justice Kent, Mr. Justice Thompson, Mr. Justice Van Ness.

For the bill, notwithstanding the objections-The Governor, Mr. Justice Spencer, Mr. Justice Yates.

It is sufficient merely to state this decision to show that the charge is incorrect. It is a fact of universal notoriety, that my venerable predecessor, the late chancellor, and the honourable Mr. Thompson, who now fills one of the executive departments of the government of the United States, with honour to himself and with utility to his country, belonged to a different political party, than that to which the other two members, who voted with them on that occa sion, belonged.

In the case of the other bill, in 1812, five objections were reported to the council by the then chancellor Lansing, and were agreed to as follows:

For the objections-Chancellor Lansing, Chief Justice Kent, Mr. Justice Thompson, Mr. Justice Yates.

Against the first objection only, the Governor.

There were no other members of the council present.

Thus, sir, we perceive that in the cases selected to prove the predominating influence of party spirit in the council, the spirit of party was subdued by the firmness and independence of the council. I am not called here to vindicate iny official conduct as a member of the council, nor am I responsible to this house for my acts in another place; but I must be permitted to say, after the charge that has been made, that for the twenty-three years in which I have had the honour to be a member of the council of revision, I have always endeavoured to discharge my trust without regard to party influence, and with a single reference to the intrinsic merits of the bills that have been submitted to the council. My judgment may have frequently misled me, but I have never considered myself, in my official character, as the representative of a party. My judicial appointments have been conferred upon me successively by dif ferent parties, and I have always considered myself, and have always endeavoured to discharge my duty in my public character, as the impartial trustee of the community at large. I therefore deny and disclaim, so far as it respects myself, the imputation which has been cast upon the council.

THE PRESIDENT (Mr. Tompkins) rose to explain. In reply to the honourable gentleman from Albany, (Mr. Kent) he must express his surprise at his attempt to divest the first transaction in the council of revision, to which he had alluded, of a political or party character. That gentleman well knew that the state was at that time divided into three parties; and that the federalists and quids, as they were called, acted in concert, in opposition to the republican party; and the division in the council, on the bill alluded to, was decided according to the state of parties. The same thing continued until the late war, and precisely the same division occurred in the council of revision on the question relating to the Union Bank, the Bank of America, and on all other political questions.

Aware that the gentleman from Albany was a party in these transactions, and was well acquainted with the political divisions which distinguished the proceedings of the council on all party questions, he should forbear further comment on his attempt to mislead this Convention as to the political complexion of the council, at the time alluded to.

With respect to the other case to which the honourable gentleman had adverted, he has misunderstood me in point of fact. I did not assert that the division on the bill providing for the manner and time of paying two additional judges of the supreme court, was on political grounds. But I did say, that in my judgment, it was an indelicate and improper assumption of power on the part of the judicial branch (six sevenths) of the council, thus, by their own act, to take to themselves the limitation of their own number. And I did say, and I do now repeat, that there is not one of the judiciary who has the hardihood to defend the objection then made, or who does not blush at its palpable absurdity and inconsistency. Indeed, unless the judiciary can, by at least one reference, refute the allegation I made, that for thirty years political questions in the two hauses have been equally and universally so in the council, and that every individual judge has for that time been reputed and notoriously an ardent parti

zan in politics, they ought to submit to the truth of the allegation, of which they cannot but be conscious, with modesty and silence.

CHIEF JUSTICE SPENCER said he did not rise to enter into the debate, because the argument was exhausted. But he felt himself peculiarly called on to reply to the statement of the gentleman from Richmond (Mr. Tompkins) respecting the proceedings of the council of revision. That gentleman had said, in the debate of yesterday, that the council of revision, for the last thirty years, had decided according to the political parties to which the respective members belonged. His own (Mr. S's.) experience did not extend so far back as that period; and he was not therefore at liberty to speak of that body, before he became a member. He took his seat in 1804-a period previous to the time of the gentleman from Richmond taking his seat, who was his junior on the bench. He had no doubt that the honourable the President believed what he had stated, with regard to the acts of the council; but for himself, he must disavow concurring with him in opinion, and disclaim having been actuated by such motives. He had admitted, on a former occasion, that the members of the council being men, were subject to like frailties and passions as others, and might, in some cases, have been biassed by political feelings. Where was the man who, placed in a community agitated and torn as ours had been by political dissensions, would not be in some degree liable to such biasses? But whatever might have been the feelings and sentiments of other members of that body, for himself he must declare, that he had never given a vote, which he did not conscien tiously believe to be conducive to the public good. The confessions, therefore, of that gentleman, he apprehended, must be confined to himself—He could not allow him to confess for him. The gentleman has made a very broad assertion -he has stated, that on all occasions, the council had been actuated by political motives, whereas there are but few cases in legislation, which would afford an opportunity for the operation of such feelings. He could not believe that in a great majority of cases, the decisions of the council had been in the least degree influenced by political considerations. [Here Mr. Tompkins rose to explain. He had been misapprehended by gentlemen. As a member of the council of revision, he had spoken of himself as well as others, and had admitted that he was as much to blame as they. He had made no allusion to the members of the council in their judicial capacity. For the judiciary of the state, he entertained the highest respect, as well for their integrity, as for their talents and learning. And he should feel perfectly safe, to commit his rights and property, and those of his children, to their keeping.]

Mr. S. remarked, that after such an explanation, he had nothing more to say. He had understood the gentleman to express very different sentiments in debate yesterday; and to say, that not only himself, but his associates in the council, were uniformly governed in their decisions by political motives. He would make one single remark on the motion before the committee. By the vote already taken, the only independent part of the revisory power had been taken away; and it was proposel still further to weaken and attenuate the power left to the governor alone, by authorising the enactment of laws, notwithstanding his objections, by a bare majority of both branches of the legislature: This was nullifying the power, and rendering it entirely useless and unavailing. Can this be wise or discreet? For his part, he thought not.

Mr. KING said, he could not forbear from expressing his regret, that gentlemen continued to advert to topics, which, since the vote to abolish the actual council of revision, could not be applicable to the subject now before the committee. He not only thought it could have no beneficial tendency in the further discussion of the question, but that these deviations were calculated to embarrass, more than to elucidate, the same; and if so, would hinder, rather than aid, the accomplishment of the business of the Convention. He expressed these sentiments with great deference, and with the utmost respect for the gentlemen referred to.

Mr. King observed, that he would add a word respecting the amendment before the committee. The power of revision is, by the constitution, vested in the executive and judiciary. On their objecting to a bill, two-thirds of both houses are required afterwards to pass it. The report of the committee pre