This latitude of construction having been given to this power, it early began to mingle with the political concerns of the state. There has been no instance in thirty years past, where party has made its appearance in the two houses of the legislature, but what it has also been seen in the council of revision.

The first instance he should notice, where devotion to party had marked the coninct of that body, was in relation to a law for taking a census of the people of this state; it was many years since, but he did not recollect precisely how long. A majority of the people of the western district were at that time in favour of the then dominant party; its population had increased infinitely more rapidly than in the old parts of the state. The party in power not deeming themselves perfectly safe, was desirous of strengthening their interest by increasing the representation from that district; and this could only be done by having a census first taken on which to make a new apportionment. The constitution provides that a census shall be taken once in seven years; this period of time had not elapsed since the last census; and the question arose whether a new census could be taken before the termination of the seven years; the legislature passed a bill directing the census to be taken, and the council of revision, when called upon to revise this bill, said that the constitution made it imperative to take a census once in seven years, but did not prohibit its being taiten oftener; but that the legislature might, if they thought proper, direct it to be taken every year, at any periods within that time.

That article of the constitution which provides for the election and distribution of senators, empowers the legislature from time to time to divide the state into such other districts and counties, as they should deem proper, and accordingly, for many years afterwards, and subsequent to the amendments of 1801, the legislature, without objections on the part of the council of revision, did alter the districts and counties from time to time, without reference to the periods of taking a census. But, on a subsequent occasion, and he believed in 1809 or 10, it was proposed to alter the bounds of the four great districts, or some of them; and although it had before been conceded in practice, that these districts might be altered at any time, and did not depend on the taking or not taking a census, yet because the alteration then contemplated, excited high party feelings, and was supposed to operate against the interest of the party to which a majority of the council of revision were attached, they returned that bill with the objection that no alteration could be made at any other time than immediately on the return of a census.

But another and more alarming instance of encroachment on the part of this boly, (the council of revision) was in 1812. The legislature passed a law providing for the payment of the two additional judges of the supreme court, if the excutive and council of appointment should appoint them. The council of revision objected to the bill. The objections they returned, were read by Mr. T. and are as follows:

Because the constitution having recognized the supreme court, in its organization and powers, as existing under the colonial government, derived from those of the English common law courts of king's bench, common pleas and exchequer, in none of which courts, colonial or English, have the number of judges at one time exceeded fire, has thus imperatively fixed the number as the common law maximum; incapable of being exceeded but by an express act of the legislature, in conform ty to the declaration of the constitution, that such parts of the common law of England as composed part of the law of the colony, should be and continue the law of the land; subject to such alterations and provisions as the legis lature of this state should from time to time make concerning the same.

By this they in fact assumed upon themselves the right to control both the appointing and legislative powers. The execution of the laws was entrusted to the executive, to whom, subject to the veto of a council of revision, and the refusal of the legislature to appropriate the pay of judges, it appropriately belonged. But the chancellor and judges in the council of revision, as appears by the objection and the vote upon it, were determined to arrest the constitutional authority of all the other branches of the government, and thus in effect to add to their power, already enormous by latitude of construction, the more

dangerous control of their own number, unless two-thirds of the whole legislative representation of the state could be obtained to counteract them. It was at a time, too, when the state was convulsed by party spirit, when the attention of the people was diverted from other subjects by the discussion and agitation ; when the prorogation of the legislature and the imputations of bank speculation and corruption absorbed their undivided attention; and it was therefore believed and avowed in the council, that this was a suitable time to take into their own hands and control the limitation of the number of judges, and of course members of the council of revision. The reasons they assigned, no one will now contend had any weight in them; they were in fact trifling, and insulting to the good people of this state. What! the common law of England limit the number of judges of the supreme court of this state under its constitution? But even this reason was not founded in truth, the common law does not in England place a limit on the number of their judges, and this was made to appear to the members of that council of revision, by referring them to the opinion of judge Blackstone in his commentaries, that there even it depended on the executive authority alone. But again, if the common law of England had put a limit to the number of the judges of their respective courts, that was not and could not be applicable to us. In our supreme court was united, as the objection itself admits, the power and jurisdiction of several of their courts.

It was in consequence of these and various other extensions of authority and control on the part of this body, that they had become an alarming aristocratic branch of the government, and had lost the confidence of the people. It is for these reasons, and numerous other acts and usurpations of the same character that might be assigned, and not for the reasons assigned by the chairman of the select committee, that he had voted to abolish this dangerous feature of the constitution.

If this state of things were to exist for an indefinite period; if the judges retained their present tenure, and irresponsibility to the people; if they preserved the control and destiny of our citizens in life, liberty, and property, in their appropriate judicial department, and in the court of the last resort; if they continued to mingle, in their capacity of members of the council of revision, in the party dissensions and collisions of the day; and were guided by party considerations in the decision of the great political measures which had agitated the community, as they had invariably done for many years; if the construction they had established, of giving to themselves the entire powers of legislation, except in originating bills, to the controling both branches of the legislature to the extent of two-thirds of the whole representation of the state; if they should be tolerated as they had been in the limitation of their own number; he would venture to predict, that the era was not far distant, when the judiciary and its satellites would scale the ramparts of the constitution, and not only subjugate other departments of the government, but prostrate the liberties of the good people of this state, for whose freedom and safety it was reared.

He had a high respect for the judicial tribunals of the state, and could with sincerity avow, that with a more enlightened, upright, and dignified body he had never been associated, than the judges of the supreme court in their appropriate sphere but he could allege with equal sincerity, that he had never been placed in a body more devoted and firm in party, and political controversies, when they manifested themselves in legislative proceedings. He therefore desired to preserve their judicial purity, by abstracting them wholly from legislative and political concerns, and devoting them solely to the interpretation and enforcement of the laws enacted by the proper departments.

It was not the fault of the judges that they had become involved in political concerns, and had mingled with the party contests which had agitated the state for the last thirty years. It was their situation as members of the council of revision, which had dragged them into these contests, and had made them partizans in them.

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The object of the prorogation had been in some measure misunderevision the gentleman from Otsego. The conduct of members of the councgentleman bad more influence in producing that measure than the honouatment of two supposes. An auxiliary cause was the prevention of the

additional judges of the supreme court then contemplated. The appointment of these judges was zealously urged for the purpose of acquiring a majority in that body friendly to the party in power, and for the special purpose of preventing the passage of a particular law incorporating a bank in New-York. He feared, at the time, that a measure of this kind would prove fatal to the best interests of the state, by increasing the number of judges for temporary and party purposes; and, therefore, determined to risk the consequences, as regarded himself, and to prevent the adoption of that measure; and it was partly to arrest this scheme, that he took upon himself all the responsibility, and subjected himself to all the odium that might follow a step calculated to excite so much feeling and resentment, as a prorogation of the legislature.

He was not, he said, opposed to a negative on legislation, but could not consent to place it in the hands of the governor alone. If other men could be associated with him, with a stable tenure of office, respectable for talents and information; and who were not liable to the same objection as were the present constituent members of the council of revision, he should be decidedly in favour of such a negative. The opinion of Mr. Jefferson, which had been read from his Notes on Virginia, so far from sustaining the gentlemen in the inference they have drawn from it in favour of clothing a single individual with the power, was in corroboration of vesting this power in a tribunal, in which the governor should preside with learned, permanent, and independent characters associated with him. It was not proper to confide it to the governor alone, because he might not always be a professional man, or acquainted with the interpretation and construction of statutes, treaties, or constitutions, and therefore not the most competent to judge whether bills did or did not infringe the constitution, or cardinal prínciples of government.

It is said that legislative bodies are liable to act hastily and unadvisedly. Why more precipitate than the governor ? Senators are elected for four years, and the governor for three only, and a committee have already reported in favour of even a less term. Has a governor, as such, more wisdom than he would have as a senator? It appears by the statement made by the honourable member from Oneida, that the governor, fortified by the wisdom of the whole judiciary, has made more hasty and unadvised objections in proportion to the number of bills objected to, than have the legislature passed unadvised bills in proportion to the number they have passed. A man's sense and intelligence did not depend upon the title or dignity of office, and he could not be supposed more likely to act hastily and unadvisedly in one office than another.

The conduct of men depends upon their heads and hearts not their stations; if the former be correct, the people have nothing to apprehend from them in any station; but if these be bad, the people have every thing to fear from them in every office. He could not see the argument drawn from the precedent in the United States' constitution, in the same light with the gentleman from Queens. That was a constitution which had grown out of a compromise of conflicting interests, and therefore it ought not to be considered that its provisions were all such as commanded the assent and approbation of all. Would several provisions of that instrument have been incorporated, had New-York alone been represented in that Convention? Certainly not. Besides, the constitutions of the states then represented, had been formed at the moment of emerging from colonization to an arbitrary government, and which had therefore generally incorporated this feature in their state constitutions; and it was natural, that with no other examples or experience before them, they should make the constitution of the union comport in this respect with their own state constitu

tions.

MR. VAN VECHTEN. The injurious deduction against the council of revision, which has been drawn by some gentlemen from the unanimity of the Convention in favour of the resolution for its abolition, seems to render it necessary, for those who do not assent to that deduction, to state the reasons for r vote-I shall therefore briefly give my explanation on the subject. becaunot vote for the resolution from motives of courtesy to the judiciary, members a duties of the council are of an unpleasant nature, and the judicial to be released from them. It does not accord with my views

of propriety, to exonerate public functionaries from important duties on-the ground of personal accommodation.

Nor did I vote for the resolution because I disapproved of the judiciary being charged with the duties assigned to the council. On the contrary, I consider it a wholesome provision, calculated to give to the qualified negative, on the lawmaking power, a sure and salutary operation. This opinion is justified by our experience since the establishment of the constitution, as the gentleman from Oneida (Mr. Platt,) has clearly shown. Nay, the legislature, by an almost uniform acquiescence in the objections of the council, has recognized the wisdom of its proceedings.-For, of one hundred and twenty-eight cases in which bills have been objected to, there are only seventeen in which the objections did not prevail.

My only reason for agreeing to abolish the council, is because the firm and faithful performance of its duties, on some occasions, has produced great party excitements, and much clamour against the judiciary. Such clamour, stimulated and extended by the exertions of a powerful party, may, in a degree, impair the confidence of the public in the rectitude and impartiality of the judiciary. Party spirit is not likely very soon to subside in this state-There appears, therefore, to be no other course for preserving entire confidence in the judiciary, than to remove from it the duties of the council. This impression has turned my vote in favour of the resolution for its abolition. But when that resolution was unanimously adopted, I did believe, that the organization and proceedings of the council had no connection with the substitute reported by the select committee for the third article of the constitution, or with the modification of that substitute moved by the gentleman from Dutchess (Mr. Livingston.)

It seems, however, that other gentlemen think differently; for the wisdom of its organization, and the merits of its proceedings have occupied much of the time of the committee during the present discussion. It will, therefore, not be deemed improper in me, to notice some of the remarks which have been made on these subjects.

The gentleman from Otsego (Mr. Van Buren,) considers the organization of the council objectionable, because the judiciary is independent of the people.` The force of this objection, I must confess, does not strike my mind. It appears to me that the independence of the judiciary gives to the restraining power, on hasty, intemperate, and irregular legislation, its greatest energy: and the wisdom, sound discretion, intelligence, and weight of character appertaining to the judiciary, combine public security with energy in the council.

The gentleman from Richmond (Mr. Tompkins,) seems to admit, that heretofore, when the state was in a great degree exempt from the violent agitations produced by the ardent collision of political parties, the operations of the council were salutary-but he alleges that during many years last past, its proceedings have sometimes been directed to subserve party purposes; and he has added the grave charge of usurpation against the council.

The first allegation I appehend is levelled, not so much at the wisdom of the organization of the council, as at the individuals who composed it-for the gentleman should remember, that it is not the fault of the constitution, if public functionaries misuse their power. It is to be feared that the baneful influence of party spirit has not unfrequently been felt in every department of the government, and according to the gentleman from Dutchess (Mr. Livingston,) this is no evil, for he seems to hail its existence as the genius of republicanism. Is it, then, surprising, that when party jealousy was wide awake, and the exercise of the objecting power by the council, created obstructions to party views and measures, the purity of the motives of its members, (who are men of like passions with ourselves,) should be suspected by the supporters of such views and measures-for jealousy naturally begets suspicion, and suspicion inclines the mind to the belief of what we suspect. But is such a belief evi dence? Does it prove that any member of the council has ever been influenced by party motives when performing his duty in that department? The objections of the council, and the reasons assigned to support them in every case, are on record; and to the record we should look for the evidence by which its members are to be judged.

The charge of usurpation made by the gentleman from Richmond, (Mr. Tompkins,) rests upon an assertion, that the objecting power of the council is Hited by the constitution, to bills inconsistent with the spirit of that instrument. If he be incorrect in his opinion on that point, his charge of usurpation is manifestly unfounded. What is the language of the constitution on this subject. "Whereas laws, inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed: Be it ordained, That the governor for the time being, the chancellor, and the judges of the supreme court, &c." Does not this language extend the objecting power of the council to bills which may be deemed inconsistent with the public good, as well as to bills inconsistent with the spirit of the constitution?

Again. What has been the practical construction of the constitution from the, time it went into operation down to the present day? The gentleman from Oneida, (Mr. Platt,) has shewn, that the council has uniformly applied its objecting powers to both description of bills. Was this an usurpation? Is not usurpation, by any of our public functionaries, an offence of a high and alarming nature? Where were our patriots and sages of the revolution, when this daring usurpation commenced? Were they absent, or asleep at their posts? Nay, where have the champions of the constitution, the faithful watchmen of the majesty of the people, been, during its continuance ever since ? Were they, too, absent, or asleep at their posts, that the flagitious usurpers have not been brought to condign punishment? The simple truth is, that this complaint of usurpation, if well founded, would cast an indelible reproach upon our wisest and best men, as well as on our most clamourous patriots, for remissness-for tame and servile acquiescence in a system of profligate usurpation. Is any gentleman, who hears me, willing to take such a reproach upon himself?

I will now pass on, to offer a few remarks upon the proposition reported by the select committee, and the amendment of the gentleman from Dutchess, which are the proper subjects of discussion. The merits, of both the proposition and amendment, have been so fully developed, that I shall content myself with stating concisely, my reasons for preferring the former.

It seems to be agreed, on all sides, that it is wise to place a qualified negative on the legislative power, somewhere.-The select committee propose to give it to the executive solely, in the same manner that it now resides in the council of revision. The amendment offered, proposes to give a majority of the members, elected to each branch of the legislature, the power of passing a bill, any objections made thereto notwithstanding.

I do not agree to the amendment; because, 1st. The objecting power will be materially weakened by vesting it in the executive alone, and the amendment will enfeeble it still more. For it is not probable, that when a majority of both legislative branches have passed a favourite bill, they will permit it to be defeated by the single negative of the executive. 2d. In case any considerable number of members should be absent when a bill is returned with objections, it may not be practicable, at all times, to obtain a constitutional decision upon the objections, without some delay and inconvenience.

Having declared myself in favour of the proposition reported by the select committee, it behoves me to reply to some of the objections which have been urged against it.

The gentleman from Richmond says, that the judiciary possess competent power to set aside unconstitutional laws, and that he is willing to repose himself on that power for safety. But he seems to have forgotten that the judicial power operates correctively, and cannot be called into exercise until a law is in operation-until wrongs have been committed under it, and the sufferer presents his case in due form to a judicial tribunal for decision, and that in the mean time, great mischiefs may result from the operation of unconstitutional laws. Again. The judicial power cannot reach the evils of hasty, unadvised, and pernicious laws, which do not conflict with the letter or obvious spirit of the constitution. The proposition of the select committee creates a preventive power against the passage of such laws, which includes unconstitutional laws also. Is this not desirable? Is it not wise to provide a reasonable guard