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sfas suffered to remain on onr statute hook, anthorising the arrest of a person who iras found travelling on the Sahhath, and that without warrant founded on c-ir.'i or affirmation. Tlie law entitling mortgagors and mortgagees en the same property toTote at elections; the law anthorising trials for pettit offences without jury; and the law anthorising sheriffs to hold their offices more than four tear*, had passed the council without ohjections. We had had a council that LiJ heen governed hy cireumstances, and we were ahont to place the veto in hands, where it will he administered in the same manner.
The honourahle gentleman from Otsego was in favour of having the qualified sedative placed with the governor, although he admitted it would rarely if ever he exereised. It was said the governor would not dare oppose the will of the lrri Jature, on which he was dependent for support; and hecanse he would not i. it, he must therefore he invested with a portion of the prerogative of a sovertirn. If this were the case, it was quite immaterial whether one half or twotiiris of the legislature were required for the passage of a law.
The gentleman from Oneida, in his history of the council of revision, had not informed! us how many hills have heen lost for the want of two-thirds. Twott.rdi were not found to pass the Convention Bill last fall, although puhlic sentiment called loudly for the measure; and in such cases, no power under heaven ihould he ahle to resist the will of the legislature.
fie admired the facility with which the honourahle gentleman from Otsego cm lately resort to European governments for precedents. He had traversed the wares of the Atlantic for models to teach us how to frame and administer repuhlican governments. That gentleman has informed us, that from a writer he his seen, it appears that the royal assent to a hill which had passed the two houses of parliament, had not heen refused since ahout the year lti9i. Hence he concludes that this qualified negative will he quite harmless here. Whether tliU fact in tlie parliamentary history of that country he correctly stated or not, he cu-ild not say; it had not come within his particular examination. But admirtine; it to he a fact, will the honourahle gentleman pretend to deny, that the reTil dissent was not very freely exereised in the latter part of the reigns of the "Tuicr familr, and during the reign of tlie Stewarts. In those days, the comnnas of England were stoutly contending for the rights of the people, in oppose :.in to the usurped prerogatives of the crown. W higs could then raise their Im-m with effect. The same principles which hrought the first Charles to the Mwk. and compelled the last of the Stuarts to ahdicate his throne, procured the postage of hills which met the royal dissent. But upon the revolution of 16t!8, w_.tn William of Orange was called to the throne, a whig ministry was formed. There heing no political conflict hetween the parliament and ministry, of course li*re was no exereise of the royal dissent. A whig ministry was continued, wr!i the exception of a few freaks of Queen Anne, till the Hanoverian hranch itSe house of Brunswick was called to the British throne. Soon after, a tory tain,-try was formed, with a tory parliament at its command, which has continued to the present day. When the greatest statesman that ever directed the Bvitish sceptre or guided ti.;, two houses of parliament, was at the head of the tu.uitrT, there was no occasion for the exereise of the royal dissent. Sir Rohert Walpole could prevent the passage of any hill which would not meet the i;nmhalian of his sovereign. Since that time no hill of puhlic importance has !_i--rf-l the two houses of parliament which was not in accordance with the wwt of tlic ministry.
Lsi us, said Mr. Root, apply this to our case. It has heen correctly said, 'i_2l the governor will always he a partisan, and will prohahly have the two
ws sith him. lu that case, should an improper hill he originated, would he v-e advue tome friend that it he withdrawn? if against his party, he would or.po*e it- Should only one house he with him, the other house would sf*-rate as a check, and there would he no need of the qualified negative. The r-'eroor would he more likely than tho council of revision to he actuated hy rirtr views, and to resist the will of his political opponents. But we have heen s i, that some check upon the representatives of the people will he salutary, a order to preserve them from their own worst enemies—themselves. The soaourahle memher from Kew-York, (Mr. Edwards,) while descantmg on this suhject, had not thought proper to cite any instances in his place; hut lie haul tinderstood it had heen whispered out of doors, that if the governor had possessed the veto, the six million hank wonld not have heen estahlished.
But let us, said Mr. Root, examine the case of I81J. Sir, that corruption will creep into the legislature, and tutu other departments of government, this and other instances have fully proved. But would the evil he corrected, if the reto were lodged with the governor alone f In the instance alluded to, the torrent of corruption might have heen checked; hut it should he rememhered, that We shall not always he hlest with such a chief magistrate as wo had in 1812. Could not the governor he approached? ami would it he more difficult to pollute one, than four or live? It was true, as had heen urged, that the governor is amenahle to the people, and might forfeit his otitce hy his miiconduct; hut his corruption would fix a stain upon the character of the state, which would not easily ho washed away. There was no safety in the governor.
He was opposed to the propi sition requiring two-thirds, hecanse it savoured of aristocracy. Whatever the gentleman from Queens (Mr. King) might say, the governments of this country were democracies. He was aware, that there were aristocratic features in our constitution, and he hoped this was the time for expunging them, and rendering our government democratic. It was feared hy the gentleman from Dntehess, that onr constitution would he made too weak, rather than too strong. He had heard the same sentiments expressed in 1797, '8 and 9; hut such doctrines were then called federalism, and those who opposed them were hranded with the appellation of democrats, jacohins, fcc. In 1801, there was a political revolution, and the epithets which were hefore odious hecame honourahle and fashionahle.
Here Mr. Root went into a definition of tho several kinds of government, and asked if ours did not answer to the description of a democracy. No, says the gentleman from Queens, tlic Grecian states were democracies, when tlio people assemhled en ma.it, to transnct their own affaire. Was there any difference he asked, whether the people assemhled in a hody, or hy their representatives? It is a maxim, what one does hy an agent, he does himself. The titles of our acts and official papers were in the name of the people, who are present hy their delegates. If half a dozen merehants should send an agent to NewYork, instead of going themselves, the transaction would in effect he theirs, though performed hy another.
We have heen referred for a precedent to the constitution of the United States, hecanse that had heen adopted hy all the states. The gentleman from Richmond had yesterday pointed out the distinction hetween a state government, and that of the United States; and tho gentleman from Dutehess lias today done the same. The president of the United States had never ahused his power. It was said he had never given the veto hut to two hills; he did not recollect hut one, and that was so strong an instance, that its unconstitutionality was almost unanimously acknowledged. The people will not complain till their rights are invaded; and then they will rise in their majesty.
He wished to express what he helieved to he puhlic sentiment, so far as he. had heen ahle to collect it. The ohjection was not that the chancellor and judges were united with the governor; hut it was the casting vote of the governor against the Convention Bill, that had excited puhlic indignation. The people ask hread, and you give them a stone; they ask a fish, and you give them a serpent.
Col. Young. I am not disposed at this late hour to enter at large upon the discussion of the suhject hefore the committee ; yet I cannot forhear suggesting a few remarks hefore the question is taken.
The conduct of the council of revision has heen referred to in the course of this dehate; and an honourahle memher of that hody has requested posterity to write its epitaph. I am not disposed to allude to that suhject further than to notice, that this appeal to postevity seems to hetray a consciousness that the puhlic sentiment of the present day is altogether against it.
But while on the one hand I cannot extend my courtesy so far as to express my approhation of the doings of thnt council, neither on the other hand can I yield to the very extranrdinary positions, assumed hy the honourahle gentleman from Dutehess, (Mr. Livingston) who has moved, and the honourahle gentlemin from Delaware, (Mr. Hoot) who lias supported the amendment.
fhey have maintained not only th.it the people are pure, hut hy a sort of trananiaTation, make it out that the legislature are tlie people themselves.— fnaa this, nothing, in my view, is more fallacious. The people are not more. R-rrt.-sented in the legislative than in the other hranches of the government. fhe mantle of the people rests as much on the judicial and executive, as on tic legislative departments; and the idea that all the power, virtue, and intellirrnce of the people is concentered and emhodied in the legislative hranch, to the exclusion of the others, is as preposterous as it is erroneous.
Tub train of reasoning involves the argument of the honourahle gentleman from Delaware, (Mr. Boot) in a singular dilemma. He has admitted, and with CPMihairis, that a law constituting a certain hank passed hoth hranches of the br.dature hy hrihery and corruption. What! were the people hrihed? Will lw impute to the constituents all ihe guilt and corruption of their agents? Sir, tkij preposterous identity is not only unfounded in fact, hut it is dangerous in principle. It takes away responsihility from the agent, hy confounding him «i!h nil constituents; and it transfers to the innocent the transgressions of the
Bat, sir, in the very case alluded to, what would have heen the result, had the negating power heen then vested in the governor alone? The law would kjre heen defeated. Acting on his responsihility, he would have heen enahled, wuhont the expense of a prorogation, to have protected the people from that aw, which, in the language of those gentlemen, the people had enacted.
And here, 6ir, permit me to advert to a very singular cireumstance in respect ta ibe power of prorogation. It is an unquestionahle prerogative of the governor. It lias continued so nearly forty-five years; ever since our constitutive has heen formed. And during all that time, who has thought it a dangerion in the hands of the executive? Where has heen the complaint of its ,? Where the solicitation for its repeal? Have any propositions heen to this Convention to take it away? Has a lisp escaped from either of my arahle friends of the alarming extent of this power ?—a power which closes the doors of legislation against the representatives of the people.
Sr. there is not so great, so unlimited, and unchecked a power any where confided hy yourconstitution. And yet this power is acquiesced in without a murmur, «hen at the same time, the mere anthority to arrest and suspend in its passage i pernicious law, has called forth all the anxious sensihility of those who claim to he the exclusive friends of the people. Indeed, sir, they strain at a gnat tad swallow a camel. And where is the danger of reposing in the executive lis qualified veto contemplated hy the report of the select committee? We have heen informed hy the honourahle gentleman from Richmond (Mr. i,) that our ancestors would not so rcliose it when our present constiformed. Sir, with every reject for that honourahle gentleman, I refrain from expressing an opinion that other motives actuated that w^y. Instead of apprehending that they clothed the executive with too much puwer. it is my impression that they helieved they had given him too little; and is order that he might he inlueed to exert what was considered a wlulesome check, they nerved and fortified his arm with the support of the judiciary.
Bat. sir, admitting that the fact was otherwise, what follows? That thpy had hefore them the acts of colonial governors, who had usurped legislative jwwers. and without adverting to the variance of election arid responsihiiity, tVeir eyes were directed to the avoidance of an evil under which they suffered. Bvt, sir, experience has proved to us, that as the canse of the evil was different r» citect has not reached us. Those governors were elected hv the king of iyreat Britain; they were responsihle only to him. But our executive is cleotori hy the people, and to the people alone he is responsihle.
But what has heen the result of experience on this suhject? Not many ,-*r» after our constitution was formed, a portion of the same men who assisted a frammg it, assisted also in forming the constitution of the United States. And s*sat did they do? That invaluahle instrument gives the answer. The same pro**ucm, which, from the ahuse of it hy the colonial •jovernors. llwv l ad hen in
iuced to reject, they there admitted; not as a dangerous prerogative, hut at a wholesome and salutary check.
This system of checks and halances runs through all parts of our constitution and laws. A justice of the peace, in ourcourts, has not conclusive jurisdiction even to a small amount. His judgment is suhject to appeal and revisal through a successive grade of superior jurisdictions. A military hue is not imposed without the intervention of similar checks; nor even a highway laid out without heing liahle to the inspection and concurrence of a revisionary trihunal.
Such is the structure of our government, and such are the wise provisions of our system. Our institutions presume that man is frail, and fear that he mar he corrupt; they, therefore, provided these various checks and halances.
Make your system, then, consistent in all its parts. Give this power to the governor. He is amenahle to the people, and acts on his responsihility. And who does not know how much greater and more efficient is responsihility, when concentrated in an individual, than when divided among many? In the exercise of this power hy the governor, the puhlic eye is fastened upon him. He cannot retreat into the shade of his associates; hut if he violates his duty, must hear, singly, and alone, the ray* of puhlic indignation.
It has heen said hy the honourahle gentleman from Richmond (Mr. Tompkins,) that a man has not more sagacity, more intelligence, nor more virtue for heing a governor, than he has without the office. Granted. But. sir, he has more responsihility, and must call into exereise more vigilance in the performance of his official duties. It has heen admitted hy the honourahle gentleman from Delaware, and he has made it the suhject of argument, that a particular hill to which he specially alluded, passed hoth hranches of the legislature without his knowledge. That honourahle gentleman was then a memher of the legislature; and his attention to husiness, his vigilance and industry are well understood and appreciated. If, then, such a hill could pass through all the forms of legislation without his ohservation, it shows most conclusively the necessity of providing a power in the executive, and making it his special duty to guard against such inadvertence; heing always responsihle to the people, and looking to them for support.
The usual hour of adjournment having arrived, Mr. Young offered to waive any further remarks, if the question should now he taken.
There were numerous calls for the question; hut Mr. Sk \»pe ohserving that he was not in the hahit of voting on such important questions, without assigning his views.
The committee rose and reported progress, and had leave to sit again.
SATURDAY, SEPTEMBER 8, 1821.
Praver hy the ftev. Mr. Davis. At eleven o'clock the President took the chair, and the minutes of yesterday were read and approved.
Mr. Sh \rpe, from the committee to whom was referred that part of the constitution which relates to the rights and privileges of the citizens and memhers of this state, together with the act entitled an act concerning the rights of the citizens of this state, made the following report:—
That they have had the same under consideration, and although the committee helieve that t':e prmciples of civil liherty are well understood, ami will he scrupulously regarded i yet they are of opinion, that it would he an additional safeguard to the people to specify distinctly, and adopt some of the most important of those principles; and they therefore recommend the adoption of the following, as amendments ui the constitution.
Firu—Thai the privilege of the writ of haheas corpus shall not he suspended, unless when in cases uf rehellion or invasion, the puhlic safety may require it.
Second—No person shall he held to answer for a capital or otherwise infamous crime. , xcept in cases of impeachment, and in cases uf the militia when in uctiul
service, and in cases of petit larceny, assault and battery, and breaches of the peace, under (lie regulation of the legislature, unless on presentment or indictment of » graad jury; nor shall any person be subject for the same offence to be twice put in jeopard'y of life or limb; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of lite, liberty, or property, without due process of law; nor shall private pr perty be taken for public use v.itlioiH just compensation.
Third— In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the county wherein the crime shall have been committed, and to be informed of the nature antl cause of the accusation -, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favour. But in cases of crimes committed within any county in which a general insurrection may prevail, or a general insubordination to the laws exist, or which may be in possession of a foreign enemy, the inquiry ami trial may be in such county, as the legislature may by law direct.
fourth—Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of thai right; and no law shall ever be passed to curtail or restrain the liberty of speech or of the pi ess; and in all prosecutions or indictments for libels, the truth may be given in evidence, if it be made to appear that the matter charged as libellous, was published with good motives, and for justifiable ends; and the jury shall have the right ,o determine the law and the fjct.
Fifth—The people shall be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; and no warrant Mi..11 issue hut upon probable cause, supported by oath or affirmation, and panicularly describing the place to be searched, and the persons and things to be seized.
Sixth—The trial by jury, as heretofore enjoyed, shall remain inviolate.
Seventh—Excessive bail shall not be required, nor excessive fires be imposed; and all prisoners shall, before trial or conviction, be bailable by sufficient sureties, except t'ur crimes, the punishment of which mny be death, or imprisonment for life, or for a term of years, where the proof is evident or the presumption great.
Eighth—The citizens shall have a right, in a public manner, to assemble for their common good, and :o apply to those invested with the powers of government, for the redress of grievances, or other proper pu:poses, by petition, address, or remonstrance.
.Yint/t—The military shall on all occasions, and at all times, be in strict subordination to the civil power.
The report was read, and on motion of Mr. Sharpe, committed to a commitftsc of the whole, and ordered to be printed.
THE COUNCIL OF REVISION.
On motion of Gen. Tali.madge, the Convention again resolved itself into a committee of the whole, on the unfinished business of yesterday (the report of the committee, on abolishing the council of revisiou, and the amendment offered by Mr. Livingston)—Mr. Sheldon in the chair.
Col.. Young resumed his remarks. I shall occupy, he said, but few moments in malting the additional remarks which I intend to submit on the question before the committee.
It has been more than insinuated by the honourable gentlemen from Dutches* and Delaware (Messrs. Livingston and Hoot) that it would be aristocratic, to invest the governor with the power of suspending the operation of bills, cvea subject to the limitation proposed in the report.
I do not deem it necessary to say much to repel such an imputation. After the sanction which the constitution of the United States has received in every state, vesting similar powers iu the executive, after the various amendment* which have been made of that instrument, after the scrutiny it has undergone by the most strenuous advocates for the people; and after an experience of more than thirty years, in which not a single objection has been made to that part of it, from any quarter of the union, it docs seem that such an imputation may be put at rest. But, sir, a proposition has been made by the honourable gentleman from Richmond (Mr. Tompkins) to associate other person? with the executive, and to create a nor- council of revision, composed of different persons.