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This power had been likened to a grand inquest; bat it differed from it u, many important particulars. A grand jury is selected for the rery purpose— they act under the immediate influence of an oath, and according to (mown and established rules of law. But, in case of impeachment, it is otherwise.
The governor of the state is liable to be impeached. He is now to be an annual officer. It usually takes more than one season to go through with an impeachment. How easy, then, would it be for a majority (made perhaps by tbe vole of a single member) to impeach the executive, and thereby suspend him from his office till his term of office should have expired? And this, too, digit be done in a time of war—at an important crisis of public affairs—and the vital interests of the country be thereby put at hazard. Mr. Jay also contended that there was no necessity for this power. Adequate remedy could be had in the courts of law, for those offences that were not susceptible of sufficient pnnisbment from the frown of public opinion.
Mr. P. R. Livingston was more and more confirmed in the belief, that when imagination entered into the committee of the whole she leads to error. She i* in pursuit of the substance, but finding she cannot overtake it, she lights on» shadow, and ultimately finds not even the shade of a shadow. He ascribed great credit to the honourable gentlemen for brilliant imaginations, but said it was the worst of all possible basis to build on. It was like a foundation of sand, upon which a building might be erected, but could not stand. The gentleman has told us that at the close of a session, an individual might rise up, and, with a little exertion, succeed in effecting an impeachment "of your chief magistrate, which would ruin him forever. If he was anxious to render himself popular, he would continue to he impeached; and let it be known to the people thatit was unjust, notwithstanding he might sustain a temporary embarrassment; if there was virtue, or intelligence in the republic, he should be sent back, and placed upon the immutable rock of popularity. It is said that the jodiciary will be broken down. It ought to be broken down; and had it not been shielded by the constitution, it would have been broken down long ago. Since the adoption of mir present constitution, every governor in this state has been i member of that judiciary except Mr. Clinton. It is a power that looks down aB opposition, and when directed to effect political objects, is, of all others, the most to be dreaded. That power ought to be in the hands of the people. Would they break down the judiciary when it was guided by integrity, and thcduties discharged with ability for the public good? No: the people wonM pride themselves in such a judiciary, and would go to the last extremity in sustaining their character; but when their talents are directed to improper objects, as has been the case for a few years past—when the individuals of that body have been the greatest political calculators in the state—and when electioneering gamblers have risked their fortunes upon the judgments of these men; is it to be wondered that public excitement has been raised so high as to demand for the people the privilege of exercising the power which so justly belongs to them? The people will never be anxious to break down the judiciarr without just cause, and if such cause exists, as heretofore, let it be broken •down.
The reputation of the judiciary should be like the character of a female, beyond suspicion ; for when once suspected its usefulness is gone. Let an individual be tried before a political judge, who may differ in politics with him, however correct his decision, if against him, that individual will feel that the judge was prejudiced ; and that judge who would not be thus affected, must be more or less than man.
Mil Van Vf.chtf.-k was as willing as any man to have the judiciary held responsible. He did not like political judges better than any other man; but thought it ought not to be in the power of an individual, or number of men, to break down for resentment, a judiciary for tbe sake of promoting their own private interests, or to shield themselves from imputations not chargeable to the judiciary. The constitution under which we had lived for many years, required two-thirds of the assembly to impeach. He was not tenacious to retain that, but supposed to require a majority of all the members elected, would not be asking too mucb. In the case of a grand jury, a majority of the number snaf rnoncJ was sufficient to indict; and he knew no good reason why a majority of tho members elected should not possess the power of impeaching. He wa» willing-, and indeed anxious, that this power should be vested somewhere, and that it should be rigorously executed when public good required it. The judiciary were a barrier between the other branches of the government, and it \ran indispensable that their duty be discharged with fidelity and promptness; but be was not disposed to put the rod into the hand of one branch of the government, unless there was some limits set to the exercise of their power.
It must be allowed that your governor, although he has a power of veto, as lie is elected only for one year, will never exercise that power; hence the importance of an able and vigilant judiciary, who may guard the rights of the people against legislative encroachment; but will they dare to act with t ui; rod over their heads?
A trifle will impeach a judge, and when once impeached, his removal is inevitable, if upon no other grounds than that his character has been destroyed by the impeachment. However fair it may appear afterwards, the impeachment is sufficient ground of argument against him. He was opposed to the clause as reported by the committee.
Chanel J.or Kent was opposed to the amendment to the thirty-third article of the constitution (which now required two-third parts of the members present to agree in an impeachment) unless it was so altered as to require a majority of all the members elected to concur in the impeachment. There was no necessity for such an amendment: and the history of this state had never furnished ati instance of the want of such a provision. Why sharpen the edge of thi* penal power, when, by the amendments already made to the constitution, we bad diminished the influence and weight of the judicial, and rendered the gov« ernment much more liable than before, to the impulses of faction? The council of revision had been abolished, and the senate had left the stability of resting «olely on the landed interest. It had become a repetition of the house of assembly, excepting only a greater term of duration. The executive had left tho strength and firmness of a three years' terra, and had been rendered feeble j and the danger was, that the assembly would become predominant, and absorb all essential power and influence within its impetuous vortex. In the constitu* tion of Delaware, there was the same provision requiring two-thirds to impeach as in our constitution; and in three of the new constitutions recently formed to the westward, there was a provision that to impeach required a majority of all the members elected. With, such a check he would be contented, It would be most dangerous to allow a bare majority of the members present to impeach. They were not specially sworn for the purpose, like a grand jury, and would be liable to be suddenly swayed by the arts and declamation of some popular but unprincipled leader. The assembly at present consists of one hundred and twenty-six members, and a bare majority of a majority would be only thirty-two. Surely such a small portion ought not to be trusted with a power so liable to be perverted in factious and tempestuous times.
If the assembly was to be likened to a grand inquest, the analogy is not presrrvcd, for it required a majority of all the members of a grand jury summoned and sworn, to concur in an indictment.
There was no analogy to be drawn from tho case of the power in the English House of Commons. They_ were a stable body, chosen for seven years, and the court to try consisted of the hereditary peers. The judges in England were also independent of the commons in their salaries, and were surrounded with the protection of the crown.
By the subsequent part of the same provision reported by the select committee, the judges were to be liable to be removed without cause shown, by a rote of two-thirds of each house of the legislature. Why this jealousy, and this disposition to excite alarm and prejudice against the judicial power? They were a perfectly safe power, and miserably dependant for their support—all their acts and proceedings were before the public, and they were checked by a jury on trials, and by the senate on error or appeal, [f we impaired their necessary independence, we endangered the rights of property, the security of personal liy, and the landmarks of the constitution.
He was not solicitous ahout this power on his own account. Ho was perfectly indifferent ahout it, as it respected himself, for he had the consolation of the meni conscUt rectl, He withdrew his mind from the present generation, and looked to the future. He helieved the power, as reported, might hecome a dangerous engine of faction and oppression, and that our posterity might have occasion to shed tears of distress over the ahuse of this power. Fie had witnessed with concern the inflammatory remarks made this day upon the character of our judiciary. He recollected the remark of the learned Hooker, that those who, in popular assemhlies, undertook to find fanlt with rulers, were always cure to find listeners and admirers. But he was certain that the judiciary of this state, instead of meriting this constant and injurious animadversion, was entitled to universal respect and confidence.
Mr. P. R. Livmeston was not conscious of having indulged in vehemence; and although he might have made some expressions which were not so agreeahle to gentlemen present, still he helieved he had used no language which would he unjustifiahle hy facts. Will my honourahle friend from Alhany pretend that the judiciary have not heen engaged in polities? What hrought them into this Convention—they well knew that the council of revision had excited puhlic odinm?
Does not the name of this very man appear the second in order upon the committee who made the report now hefore us, which he so strenuously opposes?
Can any man imagine that the great hody of representatives of the people will impeach any one of that department from party views? In the highest par'y times (and party has prohahly run as high as it ever will again) when hoth parties have had an opportunity of assailing them, they have never heen touched; nor will they ever he while they attend to the duties of that department as hecomes the judiciary of this great state. When the puhlic hecomes so corrupt as to he willing to hreakdown the judiciary without a canse, they will he prepared for another state of things; and when they have made up their minds on that suhject, who can restrain thum?
After further dehate on the suhject, in which Messrs. Tallmadge, King, Fairlie, and Buel took part.
Mn. ^u.AHi't moved to reconsider the motion of Mr. Munro, which, after some dehate, was carried; and the ayes and noes heing required on the final adoption of Mr. Monro's amendment, the same was decided in the affirmative, as follows:
AYES—Messrs. Bacon, Baker, Barlow, Beckwith, Breese, Briggs, BrinkerholT, Brooks, Buel, Burroughs, Carpenter, Case, Child, I). Clark, R. Clarke. Clyde, Day, Duer, Edwards, Fairlie, Fenton, Ferris, Fish, Frost, Hogeuoom, KUiive, Humphrey, Hunt, Hunter,Huntington, Jay, Jones, Kent. King,Lansing, Lawrence, EefTcrts, A. Livingston, M'Call, Millikin, Moore, Munro, .Nelson, Panlding, Pike, President, Price, Pumpelly, ltadelitT, Reeve, Rhinclander. Richards, Rockwell, Rose, Rosehrugh, Ross, Russell, .Sanders, .Seaman, Secly Sliarpe, Sheldon, I. Smith, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Townley, Townsend, Tripp, Van Fleet, Van Home. J. R. Van Rensselaer, S. Van Rensselaer, Van Vechten, Verhryck, Ward, F,. Wehster, Wendover, Wheaton, Wheeler, Woods, Woodward, Woosler. Yates 87.
iNOI'.S—Messrs. Carver, Collins, Dodge, Duhois, Dyckman, Eastwood, P. R. Livingston, Park, Root, Sage, N. Sunford, R. Sandford, Swift, Taylor, A. Wehster.—15.
The. question was then taken on the first pari of the section as amended, and carried without a division.
Mr. Duer expressed his sentiments in opposition to the residue of the section to the proviso, and moved that the sarm: hu referred to the connnittoo of the whole, when on the judiciary department. Lost.
The usual hour of adjournment having anivod, the committee then rose and reported.
In Concmticn, Mr. Fairlie moved to refer that part of the report of the committee on the legislative department which relates to the designation of the senate districts, to a select committee. Lost. The Convention then adjourned.
TUESDAY, OCTOBER 16, 1821.
The Convention met as usual, and the journals of yesterday were read.
Mr. Dodge wished they might he amended, hy changing the votes of him self and Mr. Price, in the record of the ayes and noes taken yesterday on an amendment offered hy Mr. Sharpfc. The minutes thus amended Were approved.
Mr. Hunter moved, that the expenses of the funeral of his colleague, (Mr. Jansen.) he paid out of the treasury, hy the perm ssion of this Convention. Carried.
THE LEGISLATIVE DEPARTMENT.
On motion of Mr. Rosa, the Convention then resolved itself into a committee of the whole, on *ne unfinished husiness of yesterday (the report on the legislative department.)—Mr. Van Buhen in the chair.
Mr. Dodge moved to re-consider the 5th section (relative to the pay of memhers of the legislature) for the purpose of adding the following clanse:
"And no laws shall he passed increasing the wages of the legislature heyond the sura of (three) dollars per day, unless hy a majority of all the memhers elected to hoth hranches of the legislature, and unless it shall he limited as to the continuance to two years after the passage thereof, and the ayes and noes shall he taken thereon and he entered on the journals."
The question on reconsidering was decided hy ayes and noes in the affirmative, as follows:
AYES—Messrs. Bacon, Barlow, Beckwith, Brinkerhoff, Buel, Burroughs, Carpenter, Carver, Case, Child, Collins, Cramer, Day, Dodge, Duhois, Duer, Dyckman, Eastwood, Ferris, Fish, Hallock, Howe, Humphrey, Hunt, Hunter, Kent, Lansing, A. Livingston, P. R. Livingston Millikin, Moore, Munro, Nelson, Panlding, Radcliff, Reeve, Richards, Rockwell, Ross, Russell, N. Sanford, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, J. R. Van Rensselaer, Verhryck, A. Wehster, Wheeler, Woods, Woodward, Wooster, Yates, Young—63.
NOES—Ivlessrs. Breese, Briggs, R. Clarke, Fairlie, Fenton, Frost, Jay, Jones, King, Lefferts, MsCall, Park, Pike, President, Price, Rhinelander, Rose, Rosehmgh, R. Sandford I. Smith, Swift, Van Fleet, Van Home, S. Van Rensselaer, Ward, E. Wehster, Wendover—ii8.
The question was then on the amendment
Mr. Bu i declared his sentiments in favour of reducing the pay of memhers. It had heretofore heen an ohject to ohtain a seat in the legislature, for the purpose of making money. He wished the compensation to he sufficient to defray their expenses and no more. Gentlemen would then come here from patriotic; motives—despateh their husiness as soon as possihle, and not protract the session for the sake of the emolument.
Mr. Sharpe said that the pay of the memhers of the legislature was lower than that of any of the puhlic officers in the state. Three dollars per day was a meagre compensation, and could he no inducement for a gentleman to leave his family and husiness; and hy reducing it as low as had heen proposed, many men of talents would he excluded. Look at the judges of the supreme court and the canal commissioners, who receive a compensation of ahout twelve dollars a day throughout the year.—Were the other officers to he effectually curtailed in their receipts, he had no douht that the memhers of the legislature 'would he willing to reduce theirs, also.
Mr. Dodge said that the gentleman from New-York (Mr. Sharpe) did not seem to understand the amendment. I t was not his ohject to fix ahsolutely the pay of the legislature, hut to estahlish a maximum heyond which they should not go. Unless that were the case, no limit could he assigned to the exereise of their cupidity, and they might exhanst the treasury of the state. There might he times when two dollars might he an adequate sum, Whilst at others six would not he too great. It was his ohject therefore, to estahlish a suitahle medinm for a given and limited time.
Mr. Briggs thought that there should he a clanse in the constitution, requiring that the legislature should keep open doors when the suhject of compensation was dehated, and that the governor should issue a proclamation at least twenty days hefore hand, that the people might flock in and hear the discussion.
The question on the amendment was then taken hy ayes and noes, and decided in the affirmative, as follows:
AYES—Messrs. Bacon, Baker, Barlow, Buel, Burroughs, Carpenter, Carver, Case, Child, D. Clark, Clyde, Collins, Cramer, Day, Dodge, Duhois, Duer, Dyckman, Eastwood, Edwards, Ferris, Fish, Hallock, Hogehoom. Howe, Humphrey, Hunt, Hunter, Jones, Lansing, A. Livingston, P. R. Livingston, Millikin, Moore, Munro, Pumpelly, Reeve, Richards, Rockwell, Russell, Sanders, N. Sanford, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, Van Home, Verhryck, A. Wehster, Wheeler, Woods, Wvodward, Wooster, Yates, Young—s6-6.
NOES—--Messrs. Breese, Briggs, Brmfcerhoff, Brooks, R. Clarke, Fairlie, Fenton, Frost, Huntington, Jay, Kent, King, Lefferts, M'Call, Nelson, Park, Panlding, Pike, President, Price, Rhinelander, Root, Rose, Rosehrugh, Ross, R. Sandford, Sharpe, I. Smith, Swift, Van Fleet, S. Van Rensselaer, Ward, E. Wehster, Wendover, Wheaton.—34.
Gen. Root replied to the gentleman from Montgomery, (Mr. Dodge) and denied the imputations that had heen made with respect to the squandering of time, tmd skulking from the journals hy the memhers of the legislature. The most Vile and virulent papers in the state, had never made such gross charges against them.
Mr. Dodge explained, and said that he derived his information from the gentleman from Oneida, (Mr. Bacon.)
Gen. Root replied, that such an apology would not screen the puhlisher of a lihel, even if he had not heen the inventor. He despised putting into the con' ttitution the contemptihle sum of a stipulated price per diem.
Mr. Bacon explained at considerahle length, and expressed his heKcf that in many caees memhers had felt reluctant to have their names recorded. He had heen once or twice honoured with a seat in the legislature, and in one instance he knew the fact, that a new memher of that hody repeatedly called for the ayes and noes without success.
The question on the whole section as amended was their taken hy ayes and noes, and decided in the affirmative, as follows:
AYES—Messrs. Bacon, Baker, Barlow, Beckwith, Brinkerhoff-, Birel, Burroughs, Carpenter, Carver, Case, Child, D. Clark, Clyde, Collins, Cramer, Day, Dodge, Duhois, Duer, Dyckman, Eastwood, Edwanh, Ferris, Fish, Hallock, Hogehoom, Howe, Humphrey, Hunt, Hunter, Jones, Lansing, A. Livingston, P. R. Livingston, Millikin, Moore, Munro, Pumpelly, Reeve, Richards, Rockwell, Russell, Sanders, N. Sanford, Seaman, Seely, Sheldon, R. Smithy Starkweather, .Steele, I. Sutherland, Sylvester, Tallmadge, Taylor, Townley, Townsend, Tripp, Van Horne, J. R. Van Rensselaer, A. Wehster, Wheeler, Woods, Woodward, Wooster, Yates, Young.—66.
NOES—Messrs. Breese, Briggs, Brooks, R. Clarke, Fairlie, Fenton, Frosty Huntington, Hurd, Jay, Kent, King, Lefferts, MsCall, Nelson, Park, Panlding, Pike, President, Price, Radeli/f, Rhinelander, Root, Rose, Rosehrugh, Ross, R. Sandford, Sharpe, I. Smith, Swift, Van Fleet, S. Van Rensselaer, Van >cchton, Verhryck, Ward, E. WehsUr, Wendover, Wheaton—39