taken the judiciary from the council of revision, and abolishing the council of appointment, because it was contrary to the principles upon which our government ought to be established, to allow the legislature to mingle with the other departments of the government, we have finally hit upon a plan which puts the same power, that we dare not trust in both branches of the legislature, into the hands of the senate; and then we have provided further, that about three thousand appointments shall be left as a subject of future legislation. Is it expected that the appointment of these officers is to be given to the assembly as their portion of the patronage, and as an offset against the power bestowed upon the senate? With such plans, operating on numerous assemblies, who can expect purity in legislation? There appears to be no possible place to deposit this power but in the senate; and in order to preserve as much purity as is consistent, in that body, the plan of having eight is proposed. Notwithstanding all the exertion that has been made, and the anxiety that has been expressed, to disperse this contaminating power; we are putting it at last into a branch of the legislature which ought to be preserved from the pollution of local and party considerations. It is to guard against these difficulties and dangers, that I at this time press upon this Convention the consideration of a subject, with which is connected the dearest interests of the community, a virtuous legislature. The Senate is to constitute the court of errors, and shall we, in addition to their legislative and judicial functions, add that of an appointing power; and by so doing, take that source of corruption, which we could not endure in both branches of the legislature, and place it in the Senate? In addition to the power of appointing, they are also to be the removing power of many officers not appointed by them. This is a radical mistake. (Here Mr. T. was interrupted by Judge Radcliff, who was desirous to know what the question was.) Mr. T. was extremely happy that the gentleman had made the inquiry, as he would undoubtedly be the better prepared to judge upon its merits, and he hoped the gentleman would be willing to fall into the measure under consideration, and lend his aid in endeavouring to establish it. We have next turned the senate into a court martial, to inquire into the character of militia officers, and it is really to be feared, that by intrusting them with so large a share of appointing power, we shall completely defeat the great object for which we have been so anxiously striving; and which it is supposed we have in a measure accomplished. The plan which I propose to recommend is the following: That the eight senators, composing the 4th class, shall constitute and be an executive council. That the governor shall nominate by message in writing, and with the consent of the said council, shall appoint all officers in this state; whose appointments are not herein otherwise provided for, and which shall be established by law. But the legislature may, from time to time, provide by law, for the election by the people, or other mode of appointment, for all city or county officers. Provided such law or alteration, shall not take effect until two years after the same shall be enacted. This number of eight is, perhaps, better adapted to the examination of claims to office, and charges against officers than the whole senate; and it certainly cannot interfere so much with the purity of legislation, as the plan of having the whole number of thirty-two engaged in this appointing power. It is notorious that vacancies may happen in the offices of our government, in which case it will be extremely inconvenient to wait for the convening of our legislature, before they can be filled; and to convene the senate for that express purpose, would be attended with a very serious expense. We have been told by one of the highest judicial characters in the State, (the chancellor) that his term of service must expire within a year and a half; and this will occasion a vacancy in midsummer. Shall there be a suspension of the business of the court of chancery during the recess? for he cannot be permitted to hold over till the sitting of the legislature, or will the state go to the expense of calling the senate, to fill that vacancy? It is to guard against some of the evils of which we have been admonished by experience, and to prevent corruption in the legislature that this subject is at so late a period of our labours, submitted to the serious consideration of this convention. Let it not be understood, said Mr. T. that by this plan I would in the least degree interfere with the laudable endeavours which have been directed to the dispersing of this power among the people, as much as can be consistent with true policy. There are many in this house who are not well satisfied with the idea of leaving so great a share of this power to the discretion of the Legislature, and what, in all probability, will ultimately fall back upon the senate. Here Mr. T. begged the indulgence of the house whilst he should read a few words from President Adams' defence of the constitution of government, as follows: "Hitherto we had heard nothing out of successive sovereign assemblies of the people's representatives; now indeed we learn that this assembly is to appoint judges, generals, and admirals; and a standing committee perhaps for the treasury, the admiralty, the customs, excise and foreign affairs. Whether these judges, and committees, and commanders, are to be members of the sovereign assembly, or whether their appointments are to vacate their seats, is not ascertained; but in either case it is obvious they will be the friends and confidents of the prevailing party in the house: they will be persons on whose friendship the major party in the assembly can rely to promote their views, by advancing their friends among their constituents, in order to procure a new election, or, in other words, a standing power; a thing which our author dreads so much in the representative assembly; and thus the whole executive and judicial power, and all the public treasure, is at once applied to corrupt the legislature and its electors. And what is it "to be accountable to the people's assemblies?" It is to be afraid to offend the strongest party in the house, by bestowing an office or deciding a cause, civil or criminal, against their inclinations.Corruption is let in in such a torrent, as the virtue of no people that ever lived, or will live, is able to resist, even for a few years; the gangrene spreads immediately through the whole body." With these considerations, he submitted to the wisdom of the convention the proposition which he had read, and which, he flattered himself, if adopted, would be a means of preserving, in a measure, the purity of the legislature, by keeping from the senate a vast number of appointments, which must otherwise devolve upon that body. Mr. Burrough's remarks on Mr. King's motion in Convention, on the right of Suffrage. MR. BURROUGHS. Mr. President-I am surprised, that at this late period of the session, an attempt should be made to introduce a distinction between citizens of the same community, in the exercise of the right of suffrage; it seems to me to be an insult on the good sense of this Convention. We have at least three times voted this principle down by large majorities. At an early period of this session, an attempt was made, to require the citizen who approached the altar of liberty, (the ballot boxes,) to bring with him a little turf, as an offering, before he could be allowed to pay his devotion there. This, sir, was voted down by a large majority; next a little cash was required as a qualification; this also failed. Why then are we again called on to vote on a proposi tion of this kind? Do gentlemen believe that this Convention have so materially changed their minds on this subject, as to afford them a prospect of success? This may be possible, but I think hardly probable; and why this extreme anxiety to make this odious distinction, between citizens of a country, whose interests must be the same? Surely the mere payment of a six cent tax, cannot so far improve the judgment or heart of a man, as to render him a better voter than he was before, or than his honest neighbour that has not happened to pay this six cent tax; besides, this proposition is encumbered with qualifications difficult to define. How, I would ask, are a board of inspectors to determine the equity right of a person to land, on a contract to purchase? Are they to be vested with chancery powers for this purpose? If so, would they be competent to the proper exercise of such powers? Sir, the proposition is unreasonable, and impracticable, and cannot be carried into effect, and I therefore hope it will not prevail. [At the extra session of the legislature, in November, 1820, a bill passed both Houses, by the provisions of which a Convention was to be called, without referring the question to the people in the first instance-delegates were to be chosen in February, 1821-and the convention to assemble in June following. This bill was sent to the council of revision, who returned it with the following objections, drawn up by Chancellor Kent, and concurred in by his Excellency Governor Clin ton and Chief Justice Spencer, and dissented from by Justices Yates and Woodworth, Justices Van Ness and Platt, being absent.] IN ASSEMBLY--Nov. 20th, 1820. Objections of the council to the bill calling a Convention. In Council of Revision, November 20, 1820. Resolved, That it appears improper to the council, that the bill, entitled "an act recommending a Convention of the people of this state," should become a law of this state. 1. Because the bill recommends to the citizens of this state, to choose by ballot, on the second Tuesday of February next, delegates to meet in Convention, for the purpose of making such alterations in the constitution of this state, as they may deem proper, without having first taken the sense of the people whether such a Convention, for such a general and unlimited revisal and alteration of the constitution, be, in their judgment, necessary and expedient. There can be no doubt of the great and fundamental truth, that all free governments are founded on the authority of the people, and that they have, at all times, an indefeasible right to alter or reform the same, as to their wisdom shall seem meet. The constitution is the will of the people, expressed in their original character, and intended for the permanent protection and happiness of them and their posterity; and it is perfectly consonant to the republican theory, and to the declared sense and practice of this country, that it cannot be altered or changed, in any degree, without the expression of the same original will. It is worthy therefore, of great consideration, and may well be doubted, whether it belongs to the ordinary legislature, chosen only to make laws, in pursuance of the provision.s of the existing constitution, to call a Convention in the first instance, to revise, alter, and perhaps remodel, the whole fabric of the government, and before they have received a legitimate and full expression of the will of the people, that such changes should be inade. The difficulty of acceding to such a measure of reform, without the previous approbation of the constituents of the government, presses with peculiar force, and with painful anxiety, upon the council of revision, which was instituted for the express purpose of guarding the constitution, against the passage of laws "inconsistent with its spirit." The constitution of this state has been in operation upwards of forty years, and we have but one precedent on this subject, and that is the case of the Convention of 1801. But it is to be observed, that the Convention in that year was called for two specific objects only, and with no other power or authority whatsoever. One of these objects, was merely to determine the true construction of one of its articles, and was not intended to alter or amend it; and the other was to reduce, and limit the number of the senators and members of assembly—The last was the single alteration proposed, and perhaps even with respect to that point, it would have been more advisable, that the previous sense of the people should have been taken. But there is no analogy between this single and cautious case, and the measure recommended by the present bill, which is not confined to any specific object of alteration or revisal, but submits the whole constitutional charter, with all its powers and provisions, however venerable they may have become by time and valuable by experience, to unlimited revisal. The council have no evidence before them, nor does any legitimate and authentic evidence exist, that the people of this state think it either wise or expedient, that the entire constitution should be revised and probed, and perhaps disturbed to its foundation. The council, therefore, think it the most wise and safe course, and most accord. ant with the performance of the great trust committed to the representative powers under the constitution, that the question of a general revision of it, should be submitted to the people in the first instance, to determine whether a Convention ought to be convened. The declared sense of the American people throughout the United States on this very point, cannot but be received with great respect and reverence, and it appears to be the almost universal will expressed in their constitutional charters, that Conventions to alter the constitution, shall not be called at the instance of the legislature without the previous sanction of the people by whom those constitutions were ordained. The constitution of Massachusetts, was established in 1780, and contains the earliest provision on this subject. It provided, that in the year 1795, the sense of the people should be taken on the necessity or expediency of revising the constitution, and that if two thirds of the votes of the people were in favour of such revision and amendment, the legislature should provide for calling a convention. The convention now sitting in that state, was called in consequence of a previous submission of such a question to the people. The constitution of South Carolina was ordained in 1790, and in that it is declared, that no convention should be call. ed, unless by the concurrence of two thirds of both branches of the legislature. And the constitution of Georgia, established in 1798, contains the same provision; thus shewing, that though the people be not previously consulted on the question, yet a more than ordinary caution and check upon such a measure was indispens able. The constitution of Delaware, of 1792, declares very emphatically, that no convention shall be called but by the authority of the people, and that their sense shall be taken by a vote for, or against a convention, and that if a majority of all the citizens shall have voted for a convention, the legislature shall make provision for cailing one. The same constitutional provision that no convention shall be called to alter, or amend the constitution, until the sense of the people by vote shall have been previously taken, whether, in their opinion, there was a necessity or expediency for a revision of the constitution, has been successfully adopted, by the constitution of New-Hampshire, in 1792; by the constitution of Tennessee, in 1796; by the constitution of Kentucky, in 1799; by the constitution of Louisiana, in 1812 by the constitution of Indiana, in 1816; by the constitution of Mississippi, in 1817; and by the constitution of Illinois, in 1818. It would, as the council apprehended, be impossible to produce higher and more respectable authority in favour of such a provision, and of its value and safety. 2. Because the bill contemplates an amended constitution to be submitted to the people to be adopted or rejected, in toto, without prescribing any mode by which a discrimination may be made between such provisions as shall be deemed salutary, and such as shall be disapproved by the judgment of the people. If the people are competent to pass upon the entire amendments, of which there can be no doubt, they are equally competent to adopt such of them as they approve, and to reject such as they disapprove; and this undoubted right of the people, is the more important if the convention is to be called in the first instance, without a previous consultation of the pure and original source of all legitimate authority. And it is worthy of consideration, and gives additional force to the expediency, and fitness of a previous reference to the people, that time will be thereby given for more mature deliberation upon questions arising upon the constitution, which are always momentous in their nature, and calculated to affect, not the present generation alone, but their distant posterity, and when the legislature may probably have it in their power to avail themselves of a more just and accurate apportion. ment of the representation in the convention, among the several counties in this sate. Ordered, That the secretary deliver the bill, together with a copy of the objęc tions aforesaid, to the honourable the assembly. J. V. N. YATES, Secretary. |