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THE APPOINTING POWER.
On motion of Mr. Van Buhen, the house then resolved itself into a committee of the whole, on the report of the committee on so much of the constitution as relates to the power of appointments to office, and the tenure thereof. Mr. Lawrence in the chair.
Mr. Tompkms approved heartily of that part of the report which related to the militia, and with a few modifications hojied it would he adopted. He helieved the militia would flourish more under this system, than it ever had done hefore.
Mr. Fairlte thought it would he hetter to settle the question whether we would aholish the council of appointment, hefore the report was acted on.
Chtef Justice Spencer also thought that question should first he settled.
Mr. Tompkms wished the first section, (aholishing the council of appointment,) might he passed over. The question involved in it might hetter he postponed until it should he settled in what manner the appointing power shall he disposed of, or distrihuted. Even if the council should he retained, we have the right to modify the power, and at all events to determine in what manner militia officers shall he appointed. Mr. T. moved to pass hy the first section for the present.
Gen. J. R. Van Rensselaer thought it was idle to go on and provide a suhstitute, hefore it was known whether the Convention was opposed to the old council.
Mr. Shklron preferred that the suhstitute should he first provided, that memhers would see what the new system would he. The memhers will then have an opportunity to choose hetween the new and the old.
Mr. Bacon could not see why a different course should he adopted in regard to the mode of proceeding upon this report, from what had heen pursued in other cases. A vote was first taken to aholish the Council of Revision, and a suhstitute was provided afterwards.
Tnt CmEf Justice spoke a few words in favourof settling the question on the first section first. He could not see the foree of the ohjections offered hy the gentleman from Richmond, (Mr. Tompkins) or those of the gentleman from Montgomery, (Mr. Sheldon.)
Mr. Eastwood called for the ayes and noes on the question whether the first section of the report should he passed over, and it was decided in the negative, 77 to 20, as follows.
NOES—Messrs. Bacon, Baker, Beckwith, Bowman, Briggs, Brooks, Bucl, Carver, Child, R. Clarke, Eastwood, Edwards, Ferris, Crust, Hallock, Hees, Howe, Hunt, Hunter, Huntington, Hurd, Jay, Jones, Kent, King, Knowles, Lefferts, A.Livingston, M'Call, Millikin, Moore, Munro, Park, Panlding, Piteher, Piatt, Pumpelly, Radeliff, Reeve, Rhinclander, Richards, Rogers, Root, Rose, Ross, Russell, Sage, N. Sanford, R. Sanford, Seaman, Seeley, Sharpe, I. Smith, R. Smith, Spencer, Stagg, Starkweather, Steele, Swift, Sylvester, Tallmadge, Ten Eyck, Townley, Tuttle, Van Home, Van Buren, Van Ness, J. R.Van Rensselaer, S. Van Rensselaer,Van.Vechten, E. Wehster, Wendover, Wheaton, E. Williams, N. Williams, Woodward, Wooster—77.
AYES—Messrs. Barlow, Birdseye, Breese, Brinkerhoff, Burroughs, Case, Collins, Cramer, Day,Dodge, Duhois, Dyckman, Fairlie, Fenton, Lawrence, P. R. Livingston, Pike, President, Price, Rockwell, Sheldon, Taylor, Van Fleet, Ward, Woods, Yates—20.
The question on the first section, for aholishing the council of appointment, Mas then taken hy ayes and noes, and carried in the affirmative, Unanimously, iOi memhers heing present.
Mr. Tompkms suggested sundry amendments, and finally moved a suhstitute for the 1st, 2d, 3d, and 4th sections of the report of the select committee; hut he consented to waive his propositions for the present, in order that the chairman of the committee who made the report, might explain the views of the committee, and the principles upon which they had founded their report.
Mr. Van Buhen, (chairman of the committee upon this suhject) gave a general view of the reasons which had influenced the select committee in adopting the report now under consideration. The suhject was one surrounded with numerous difficulties; some of which were intrinsic and not to he avoided hy any course that could he devised. They had framed a system, which, after much reflection, appeared to them to he liahle to the least and fewest ohjections.
The first question which presented itself for the consideration of the committee, was the propriety of aholishing the Council of Appointment. On this suhject there was no difficulty; the same unanimity prevailed among the memhers of the select committee in this respect, as in the vote which had just passed m committee of the whole, for the aholition of this power; and in this, they had only acted in accordance with puhlic opinion, hy which this feature of the old constitution had heen condemned. He would not, he said, detain the committee hy giving any reasons for this part of the report; after the unanimous rote just given, this would he a wanton waste of time.
The next and more important enquiry, was, with respect to what should ho suhstituted in its stead; and here, as was to he expected, a diversity of sentiejent prevailed, and many difficulties presented themselves. For the purpose, however, of lessening, as far as was practicahle, the ohjections that would necessarily exist to any general appointing power, wherever placed, or however constituted, they had felt the propriety of reducing the patronage attached to it; and they had, with that view, separated from it the great mass of the officers of the state. Many of them, they had sent to he appointed, or elected, in the several counties or towns, and others they had left to the disposition of the legislature, to provide for their appointment or election, as experience might prove to he most advisahle.
Of the C-207 military officers, they had recommended that all except 73, consisting of major generals, hrigadier generals, and the adjutant general, should he elected hy the privates and officers of the militia.
Of the civil officers, now appointed hy the Council of Appointment,
they recommend that 3613 should he appointed or elected as the legislature should direct—these were anctioneers, masters in chancery, puhlic notaries, inspectors of turupike roads, commissioners to acknowledge deeds, examiners in chancerv, inspectors forcommereial purposes, and some other officers. They also recommended that the clerks of counties, and district attorneys, should he appointed hy the courts of common pleas, in the several counties. And that the mayors and clerks, of all the cities except New-York, should he appointed hy the common council of the respective cities.
Thus far, no great diversity of sentiment had existed among the memhers of the committee, and there had heen a general concurrence of opinion, on all the parts of the report already noticed.
This, together with the justices of the peace, which a majority of the committee had recommended to he elected, left only 453 officers for whose appointment, or election, it was necessary to provide.
In addition to the curtailment of the appointing power, to he retained at the teat of government; the committee, under a full conviction that much of the complaint against the existing Council of Appointment, had arisen from the cireumstance of the concentration of power in one hody, had thought it wise even here to distrihute them; hy giving the appointment of tho heads of the different departments of this state to the legislature; they heing officers entrusted with the puhlic property, whose duties more immediately connected them with that hody.
Still, some officers were left; small in numher, it was true, hut of considerahle interest and importance. They were unanimously of opinion, that it would he improper for some of these officers to he elected hy the people, and :t majority of them supposed that none of them ought to he so elected.
It hecame necessary, therefore, to provide for their appointment; and to estahlish what may he called a general appointing power; though limited in the exereise of its functions, to the hestowment of a small nnmher of offices.
Four plans presented themselves to the consideration of the committee.
1st. To create a new Council of Appointment, to he elected hy the people.
9od. To vest the power of \ppointment in the Executive solely.
.lid. To give it to the Legislature. Or,
4th. To the Governor, by and with the advice and consent of the Senate; These respective modes had been, he said, discussed and attentively considered by them. The project of electing1 a council, was thought liable to most of the objections which had been urged against the old council. There would bt a want of responsibility, as now. And it was apprehended that their election would create a great excitement. The incumbents in office, and those desirous of obtaining offices, together with their respective friends, would, of course, feel a deep interest in the election of this council; and this would, of course, pervade every part of the state. Or, if such a council were to be chosen bf the legislature, not from among the members of either house, though by being separated entirely from the business of legislation, would remove a part of tlie objections existing witli respect to the present council. It was believed it would, notwithstanding, be attended with serious objections. It wbttW necessarily produce some objection in the legislature, if they met at a different time or in i different place: yet the objection of irrespbnsibility, would remain fn /nil force. The Convention had already increased the powers of the executive, and tbe bommittee were unwilling to add to it the patronage of the sole power of a^ pointment to office. Besides their own conviction that this was not advisable, they were perfectly confident that public opinion was opposed to such a regulation.
Nor were they satisfied that it would be proper to vest this power in the tiro branches of the legislature. They had already recommended that the appointment of some officers should be made by them, for reasons he had already eiplained; and these were all they thought ought to be appointed in this way.— In some of our sister states, this mode of appointment obtained, and had been found to operate beneficially; they were, however, differently circumstanced from us, having a less numerous population, and a smaller extent of territory. They had considered a connexion between the legislative and appointing power, as at best objectionable; the improper influence that suc.h connexion was apt to have on legislation, was fully appreciated by them; and had induced them to recommend a mode, which, though not free from this objection, ye< lessened the difficulty, by limiting the connexion to one branch only.
And this brought them to the fourth, and last plan mentioned, to wit: vesting the power in the governor and senate. This, he believed, they had unanimously considered as unaccompanied with the fewest objections; he might possibly be mistaken, but he was confident they were unanimously in favour of this project in the first instance;
The committee, he said, were fully aware of the objection to this mode, arising from the unfavourable effect which the possession of the power of appointment was calculated to produce upon the senate as a branch of the legislature; but more particularly from its being a court of the last resort. Bat tneribo knew that no plan could be adopted which would be free from objections of some kind—they knew that it was the fate of all human institutions to be imperfect, and they were therefore more content with the system they had recommended, than they otherwise would have been. They found, too, that tbfj could not exempt the general appointing power from this objection, unless lief gave it wholly to the governor, or to him in connexion with a council to be elected by the people; the former mode they had no reason to believe would be acceptable to any portion of the Convention; and the latter, they supposed, wmild not, In all probability, be relished by their constituents much belter than the retaining of the old council.
They bad not, be said, been able to derive any material benefit from an examination of the practice of other states. They had examined all their constilotions, and found that they varied greatly from each other. In Pennsylvania and Delaware, the power of appointment to office is vested in the (fovemor singly. In Maine, Massachusetts, Maryland, North-Carolina and Virginia.the governor, and a council similar to ours. In Connecticut, RhoJe-Island, Vermont New-Jersey, South-Carolina, Georgia, Ohio, Tennessee, Mississippi, and •Vlabama, in tlie legislature. New-Hampshire was the only state in whicii Oiey'had a council chosen by the people. In Kentucky, Louisiana, Indiww. »• finois, and Missouri, the power is vested in the governor and senate as is propot•. ed by the report.
The fact that the constitutions which had been recently formed, and might therefore be in some degree regarded as the most recent expression of the sense of a portion of the American people, were in unison with the plan they had reported, and calculated in a measure to recommend it. And so, likewise, was it, that a similar provision was contained in the constitution of the United States. But here, candour required the acknowledgment that there was an important difference between ourstate senate, and that of the Union—as the first was also a court of dernier resort; and the latter possessed no judicial power whatever.
Those consideratioas., together with the impracticability of devising any system, which in their opinion would be better, had induced them to recommend the constituting of the governor and senate the general appointing power. And they had given the exclusive right of nomination to the governor; this they thought very necessary, and the only way in which that would fix a responsibility for the appointments to be made; and because they were all convinced that the alteration which had been made to the constitution in 1801, had proved injurious, and such they firmly believed, was now the opinion of tha people of this state.
lie was not very sanguine that they had adopted the best, and wisest system that could be devised. It was very possible they might be mistaken in their views.
They had given to the Convention the result of their deliberations, to be disposed of as they should think proper. It would be arrogance in them to presume that their judgment on this subject was infallible, or that their report was free from great imperfection—lie would say for himself, and from the good sense and good feeling which had characterised the conduct of the committee, he knew he could say for them also, that if any plan should be proposed by others, which would better subserve the public interest, it would receive their cheerful and sincere support.
Having, then, came to the determination to place the general appointing power in the governor, by and with the advice and consent of ihe senate; the next question to be settled was, what appointments should be conferred upon it.
The committee, he said, had all agreed, that the highest military officers should receive their appointments from this source, though some were of the opinion that these might safely be entrusted with Hie executive alone, as commander in chief. They had all united in the opinion, that all judicial officers, except surrogates and justices of the peace, ought also to be appointed in this way; two members of the committee were in favour of having the surrogates elected by the people.
With respect to that section of the repert, which provides for the election of justices of the peace by the people, a great contrariety of sentiment had existed among them. Neither that section, nor the next, which provided for the appointment of certain officers in the city of New-York, had received his assent.
He had, at every stage of the discussions before the committee, been decidedly opposed to the election of justices; and it had been to him a source of sincere regret, that in that respect, he had been overruled by the committee. Only four of the committee had agreed to the section making justices elective, and one of that number had consented to it, rather for the sake of agreeing upon something to report, than from a conviction of the propriety of the mode recommended. He would, he said, here observe, that the two sections just mentioned were the only parts of the report, of any moment, from which he had dissented. A minority of the committee, however, thought they had not gone far enough in curtailing the patronage of the general appointing power, and were for including sheriffs and surrogates; in this he had differed from them. His reasons, therefore, it would be more proper for him to give when these respective subjects should come under discussion in that committee. He would now content himself with stating, that the majority of the select committee, fcad not, on the question respecting sheriffs and surrogates, nor on that relating
to justices of the peace, any strong personal predilections. They feel themselves entirely open to conviction on these, and on all other points, which might he raised respecting their report; and if, on a fair and deliherate examination, it should he thought that it would he hetter to have the sheriffs and surrogates elected hy the people, they would cheerfully acquiesce in that decision.
Having now, in a very hrief manner, detailed the conduct and views of the select committee, with respect to the appointment and election of officers, he would next suhmit a few remarks on the suhject of the tenure and duration of the several offices. The select committee, he said, had supposed that it would he well to give the militia themselves, the power of electing their officers—thin course was pursued in several of the states, and it was understood, had proved heneficial. But the nature of the power to he exereised hy these officers, and the necessity of enforeing discipline, and preserving a due suhordination in the privates, would require that they should, when once elected, he placed heyond their further control. They thought moreover, that there was something peculiarly improper in suhjecting the commissions of militia officers, in any degree, to the fluctuations of party; and they had, therefore, recommended, that they should not he removed except hy a court martial, or hy the senate, on the recommendation of the governor, and even then, that the governor should state the reasons for requesting the removals.
The committee were also of the opinion, that it was injurious to a due and regular administration of justice, that judicial officers, who did not hold during good hehaviour, should he at all times suhject to removal at pleasure and without canse; and as had hitherto heen the practice, to he changed with every fluctuation of party; this instahility in the administration of justice, was caleulated to do permanent and serious injury to the hest interests of the state. They helieve they have laid the axe to the root of this evil, hy rendering it necessary, that no removals should take place hut for canses puhlicly assigned, and this they helieve, would he an effectual check, to prevent their heing made on mere party grounds. It would not, in their opinion, answer to go farther than this; for if they required a regular trial on all complaints, the whole lime of the senate would he consumed with these investigations.
With respect to the officers, to he appointed hy the legislature, and the clerks of courts, they had thought, that they might with safety, he left to he removahle at the pleasure of those from whom they received their appointments.
I have now. aiMed Mr. Van Buren, given a succinct account of the reasonings, am! inducements, which governed the select committee, in making the report, they have presented to the Convention; the suhject had occupied much of their serious attention, and deliheration, and all had hut served to convince them, of the many and great difficulties, with which it was incumhered; and had also prepared them to look for, and expect, a great difference of opinion, among the memhers of the Convention, with respect to the several parts of their report. But as they were not hy any means, wedded to the system they had presented, and entertaining a hope, that the wisdom of the Convention, would he ahle to devise something, in part, at least, less ohjectionahle, they had endeavoured to keep their own minds, entirely open for the adoption of any alteration, or modification, which might he offered, and which should appear to them, to he helter caleulated to advance the puhlic interest.
Gen. Root said the first section was ohjectionahle for two reasons. 1st, it provides, that the non-commissioned officers shall he appointed hy the captain. There are ten of these officers to each company; and the selections are to he made from thote who elect the officer that is to'make the appointments. This would open a door for intrigue ; and the old distich would he realized,
"Tickle me, Billy, do, do, do, Aril m my turn I'll tickle you." It would, in his opinion, he much hetter, that the non-commissioned officers should he elected hy the companies.
The 2il ohjection was, that hoys are permitted to vote. It was an estahlished rule in ail other cases, that minors should he excluded from the privilege uf voting, and he saw no reason why an exception to the rule should he made