any other cause; and in which he cautioned the legislature against passing any laws for increasing these institutions. What was the result that year? Two country banks, and one in the city of New-York were obtained. And how? The country banks were passed, and sent to the council of revision-The Franklin Bank bill was rejected by the house, and sent back to the senate-The legislature had passed a resolution to adjourn-The country bank bills were not returned from the council-A rumor was set afloat the night before the legislature was to adjourn, that if the Franklin Bank bill did not pass, no bank bills would pass during that session. What was the consequence? All the forces were then rallied, and the friends of the country banks found that they had but one alternative, and that was to pass the Franklin Bank. Next morning a motion was made for a reconsideration of the vote rejecting that bill; but as the bill had been sent back to the senate, this motion was not in order. A resolution, however, was passed, directing the clerk to request the senate to return it to this house-It was returned, reconsidered, and out of all rule and order, passed. The country bank bills were then returned from the council-and the Franklina Bank bill before midnight became a law of the state. But, sir, there is another objection. The council have a right to retain bills ten days; and every one knows, that as the session of the legislature progresses, so business increases. Petitions are received till the last day of the session. It is a right that every man has, to petition the legislature, and they are bound to hear him. Thus business passes at the close of the session; and I have seen laws not passed unadvisedly, hung up for a year, and the people of the state deprived of the benefit of that law for that period; yet the law was returned at the commencement of the next session, without objections. There is now hung up in that council, a bill affecting the rights and property of individuals; and I doubt not that after suffering it to remain there for a whole year, it will be returned to the next legislature without objections.

But, sir, I have still a stronger objection. I have seen the executive of this state recommend to the legislature a measure as being all important to the welfare of the state; and I have seen the legislature accordingly pass the bill with promptitude. Sir, I have seen that council of revision and the governor reject that bill, which had, as it were, been recommended but the day before. -That bill did not pass.

It was this that excited the indignation of the people of this state; and the voice of seventy thousand freemen has told me, that that feature in the constitution ought to be destroyed. I am aware, sir, that a veto ought to be placed somewhere. Legislative business at the commencement of a session is generally well done. I have rarely seen a bill rejected by the council of revision, that had been passed early in the session; but not so at the close. I could quote many instances. In 1820, the inhabitants of Canandaigua petitioned to have that village incorporated; the bill was presented to this house, and I think it cannot be said that it was unadvisedly passed, for one of its members presided over this house, a man distinguished for his talents and industry. Sir, that bill passed under the eye of the representative of that county. It went to the senate and passed there. It was sent to the council of revision, and thus became a law. One of the members took that bill home to his constituents. And, strange to tell, a clause in the bill provided that the trustees of the village should be impounded instead of their hogs!

But, sir, it is said, that to give this veto to the governor, is dangerous, unless a bare majority of the legislature may pass a bill which has been rejected. Sir, it is well known to every gentleman that this state has been in the habit of changing her representatives too frequently. Men come here with the best of feelings and motives; but ere they are here many days, they are not only assailed by older members of this house, but bave a throng of members from the lobby harassing them, and they are many times committed upon a bill before they hear the arguments. When they have heard the arguments, they will say they have promised to vote so and so on that bill, and that one vote will not. make much difference. Sir, if members will commit themselves before they have heard the arguments, it is not strange to suppose, that they will vote for any bill upon which they may have been thus committed, notwithstanding any

objections. We have been told that it will be difficult to obtain the passage of any bill that may not exactly suit the views of the governor; but my fears are, that he will not object to enough bills, because the more he objects to of this description, the better it will be for the interests of the state.

When seventy thousand people told us to break away this part of the constitution, they did not tell us to erect nothing in its stead. I am well satisfied with the vote I have given for separating the judiciary from this part of the government; but I am for substituting in its stead a controling power, with which the people will be satisfied, and which will be an efficient check upon imprudent legislation.

CHIEF JUSTICE SPENCER. I observed to the committee yesterday, Mr. Chairman, that the subjects of discussion on the proposed amendment, were ex hausted; if the remark was then true, how much more so is it true now. I do not rise to discuss the question generally.

When, sir, I found myself elected a member of this Convention, I held a solemn communion with my own heart and understanding. I considered that a Convention of the sages of the state, the immediate representatives of the people, was soon to take place, to deliberate on and settle the fundamental principles of social order; to amend, to improve, and to ameliorate a constitution, which had been founded by a band of patriots-a constitution which had triumphantly carried us through a sanguinary revolution, and conducted us to liberty and independence—a constitution which had for nearly half a century, secured to us the blessings of good government, and wholesome and salutary laws. I determined in such a Convention, met to deliberate on principles of government which were to secure to the present age, and to future generations, to our children and our children's children, the inestimable rights of life, liberty, and pro perty, to repress in myself every feeling calculated to disturb the grave and harmonious consideration of the subjects to come under discussion. I asked myself how I ought to act if any intemperate individuals, regardless of what was due to such an assembly, and to such an occasion, should endeavour to excite party feelings-to stir up prejudices, and for the purpose of carrying a favourite point, to produce excitements against individuals? My answer was, that it was my solemn duty to forbear recrimination; to confide in the good sense of this august body; to resist all attempts to induce a division from angry, revengeful, and party animosities. I believed that even those who, to gratify the feelings of the moment, should so far forget their duty, as to endeavour to excite prejudices here, would themselves eventually deplore the employment of such means; and that this Convention would rise superior to the passions and fullies of the day, in contemplating the objects of the meeting, and the sacredness of the trust reposed in them. Our constitution has endured for forty-four years-how few are now living of those who gave us this noble monument of wisdom! Yes, sir, I unite with the honourable gentleman from Dutchess, (Mr. Livingston) in expressing my profound astonishment, that at so early a period the principles of civil liberty, and of republican governments, were so well understood. What a solemn consideration is it, that few, very few of us, can expect to survive for so long a period as has elapsed since the formation of the constitution we are now endeavouring to amend. This should be deeply impressed on our minds, and it will solemnize our feelings. On my part, I came here determined to forbear, resolved to suppress every motion unfriendly to cool, calm, and patient investigation. I have no prejudices to indulge. I feel myself the immediate representative of the people, called upon to maintain and cstablish their dearest rights.

This Convention have been told from one quarter, that the proceedings of the council of revision during the late war, laid the foundation of their own destruction; from another quarter, that their conduct in relation to certain bills at an anterior period, had sealed their ruin; and from another quarter, that on the rejection of the bill recommending a Convention, during the extra session in November last, the sentence of condemnation went forth against the council. I do not feel myself called upon to defend my conduct or opinions elsewhere be fore this Convention; but it is due to that body, it is due to myself, to explain the grounds why that bill was sent back with objections; and I think it will be

seen that the sentence was unjust, if indeed such a sentence has ever passed. It has been said that this bill did not pass hastily or unadvisedly. How is the fact? The legislature were convened on an extraordinary occasion, to appoint electors of president and vice-president; and it has been unusual to take up at that session, any bills but those of pressing necessity. Contrary as I believe to all expectation, the bill in question was passed through both houses; and in the senate, as I understand, it was received on one day, and passed the next. This bill recommended an election of delegates to be holden in the midst of winter, at a time unusual and inconvenient; but above all, it contained no provision for submitting the question to the people, whether they willed a Convention or not. The council believed that the legislature, acting under the constitution, chosen to legislate in pursuance of the constitution, had no authority to direct a Convention for the general purposes of amending and probing that sacred charter of our rights, materially and fundamentally, without a previous reference to the people, of the question whether it was their wish that it should be thus amended and probed. I deny the right of the legislature to direct a Convention. In doing so, they had no higher authority than any other respectable body of inen, self-moved, and acting without any delegation of power whatever. Was the rejection of the bill, on these grounds, a high-handed and tyrannical act on the part of the council? Or was it a plain, fundamental, and republican principle, in maintenance of the rights of the people? We all acknowledge, that all power and all government of right belongs to, and emanates from, the people. How, then, was it consistent with that acknowledgment for the legislature to coerce a Convention, without first knowing whether the people willed it? We have been told that there was no doubt on that subject; the public will had been expressed through their representatives, and in town and county meetings. But is this so? Can there be any sure expression of the public mind, in a community so extensive as ours, but through the medium of the ballot boxes? Look at the danger of the precedent-a party gets into power; they find a constitutional provision in their way, an impediment to the exercise of their power: they resort to a Convention to amend the constitution, without a previous and legitimate expression of the public sense; the community is agitated; it is split into factions, and your government is shaken and impaired.

It has been said that the act was recommendatory, and not compulsory on the people. This will appear, on the slightest reflection, to be a mistake. If ninety-nine out of a hundred of the people were opposed to the measure, the ninety-nine had no means of expressing their dissent. The votes of ten electors in a county in favour of any candidates, would have constituted a valid election. The council insisted that, as a preliminary to holding a Convention, the sense of the electors should be taken, and an act was passed in accordance with these principles. And here let me ask, what evils have resulted from the delay which has taken place? The Convention, instead of meeting in June, met in August; but it now meets upon an undisputed right; the people have legitimately expressed their opinion in favour of a Convention. This delay of two months in the meeting of the Convention, is the only grievance to be complained of; but in my opinion, a great and salutary principle has been preserved.

It is true that a Convention was held in 1801, without a previous appeal to the people. That Convention was expressly limited to two subjects, and they were such as admitted of no delay. Conflicting opinions existed as to the construction of an article in the constitution; to settle that, and to reduce the representation, which was encreasing in a rapid and enormous ratio, were the only objects of consideration.-Under the rejected bill, the whole constitution was liable to be re-moddled; that precedent, therefore, was not one which could control, or which ought to have been followed.

If the sentence of condemnation has gone forth against the council, because they objected to the bill for the reasons I have thus briefly stated, all I can say is, that the condemnation has been undeserved; and since it was thought proper to correct a very gross mistake, the council have been represented as opposed to a Convention called in any way, and at any time. This was a gratuitous declaration, unwarranted in point of fact; the great objection was as to the manner of calling it.

Mr. S. said he had the honour to state to the committee, on a former occasion, that he considered the exercise of the revisory power by the judiciary, as liable to objection on theoretical grounds. It was in a degree a commitment of the judges on constitutional questions by a premature opinion, formed without hearing the arguments of counsel, and this, he thought, a serious objection; and it was not to be disguised, that it exposed the judiciary to catch the contagion of party feeling and conflict. It had always been a painful and irksome duty to him, and he wished to be disencumbered of it. He had no right, however, to yield it up from personal considerations; nor did he act on that ground, but under the conviction that the judiciary should have no concern directly or indirectly, in the passing of laws. He had long felt, and believed this to be incorrect in principle. One gentleman had insinuated that he wanted not the support of those to disjoin the judges from the council, on the grounds which had been assumed; but their votes would stand as fair, and tell as well, as those of others who voted on different grounds.

It had been said that it was not necessary to give to the revisory power, the right of objecting to bills on the ground of unconstitutionality, because the judges had the power to declare such laws of no effect. It is true they have such power; but the constitution, as it now stands, confers in express terms, the power of objecting to unconstitutional bills; and can it be believed that three learned men and zealous patriots, who assisted in framing that instrument, did not know that judges had the right to set aside a law in contravention of the constitution? Surely not. But they knew, also, that there must be an interval between the law, and its annulment by the judiciary-that mischief might in the mean time arise, and that possibly an unconstitutional law might be acquiesced in, rather than incur the expense of procuring its cancelment. And here Mr. S. said, arises the distinction between governments having constitutions in the American sense of the term, and those which have none; which an act of the legislature cannot transcend.

Great Britain has no constitution, in our sense of the word. The power of parliament is omnipotent; it can do every thing, according to the ideas of a learned writer, but make a man of a woman. They had repealed fundamental institutions by mere act of parliament; they had converted a triennial into a septennial parliament, and they have passed various acts which were considered as forming a part of their constitution. It is our happiness, and the security of our rights, that we have written constitutions, which the legislative power cannot invade or transcend; and if they attempt it, the judiciary interposes to protect the citizen.

Mr. Spencer said, that it ought not to be lost sight of, that we are assembled to amend the constitution, not to make a new one; that it would be our duty to reform it only where inconveniences and evils had been practically felt and justly complained of; or in those cases, where the light of experience and the march of improvement and knowledge, clearly shew, that changes ought to be made, we could not act too cautiously; and we should above all remember, that innovation is not always improvement.

The question was taken on the amendment proposed by Mr. Livingston, and the same was negatived, 95 to 26, as follows:

NOES-Messrs. Bacon, Baker, Barlow, Beckwith, Birdseye, Breese, Briggs, Brinkerhoff, Buel, Carpenter, Child, D. Clark, Clyde, Cramer, Day, Dubois, Duer, Dyckman, Eastwood, Edwards, Fairlie, Fenton, Ferris, Fish, Frost, Hecs, Hogeboom, Hunt, Hunter, Huntington, Hurd, Jansen, Jay, Jones, Kent, King, Knowles, Lansing, Lawrence, Lefferts, M'Call, Moore, Munro, Nelson, Paulding, Pitcher, Platt, Porter, President, Pumpelly, Radcliff, Reeve, Rhinelander, Rockwell, Rogers, Rose, Ross, Russell, Sage, Sanders, N. Sanford, Schenck, Seaman, Seeley, Sharpe, I. Smith, R. Smith, Spencer, Stagg, Starkweather, Steele, I. Southerland, Sylvester, Tallmadge, Ten Eyck, Townley, Tripp, Tuttle, Van Buren, Van Horne, Van Ness, J. R. Van Rensselaer, S. Van Rensselaer, Van Vechten, Verbryck, Ward, E. Webster, Wendover, Wheaton, E. Williams, N. Williams, Woods, Woodward, Yates, Young-95 AYES-Messrs. Brooks, Burroughs, Carver, Case, R. Clarke, Collins, Dodge, How, Humphrey, A. Livingston, P. R. Livingston, Milikia, Park,

Pike, Price, Richards, Root, Rosebrugh, R. Sanford, D. Sutherland, Swift, Taylor, Townsend, Van Fleet, Wheeler, Wooster-26.

MR. TOMPKINS then called for the consideration of the amendment which he had yesterday submitted, but with an essential modification which he wished to make. He spoke some minutes against confiding the revisory power to the governor, and in favour of an efficient body of able counsellors to perform this duty. He was not for overthrowing institutions founded by the wisdom of our ancestors; he was opposed to the council as at present organized; but wished to preserve something like it; and would trust to the people to bear him out in it. He maintained that it was absurd to vest this power in the governor; and at the same time, by shortening his term of office, as it has been proposed, place him in a situation in which he will not venture to exercise it.If they would extend his term of office for five years, and render him ineligible afterwards, he should not think it so objectionable. He wished a substitute for the present council of revision, to be composed of the governor, attorneygeneral, and members, to be able counsellors, with the same term of office with the judges of the supreme court. He would have them permanent.This project might not be popular; but he did not come here to legislate for a day he was legislating for posterity. The Convention of 1801, was assembled to sanction a violent construction of the constitution. Then, the maxim was, to strip the governor of as much power as possible. Now, gentlemen are for giving him more power. In the Convention of 1801, he was opposed to retrenching the power of the executive. To him it was a proud triumph, that at the age of twenty-six, he stood alone against the then dominant party; and he believed that there were members who would now be proud if it could be said that they had taken the same ground.

MR. RADCLIFF spoke in opposition to the proposition of Mr. Tompkins.— (Mr. T. said he would submit the amendment in blank. He wished merely to try the sense of the committee, whether they would have any such body for a revisory council.) Mr. R. continued for some time. It was erecting a new body, unknown to our present constitution. He considered the project inexpedient and impracticable.

MR. VAN BUREN. As this proposition is now for the first time submitted, the committee had better rise and report; that is, if any gentleman wishes to speak. He did not, however, make a motion; and

The question was taken on the amendment offered by Mr. Tompkins, and it was negatived without a division.

MR. TOMPKINS then proposed to amend the report of the committee, so as to confine the veto of the governor to constitutional objections.

COL. YOUNG opposed. It is true that a great part of the public property has been disposed of; but we have yet some left; and it is highly proper that measures should be taken to keep what we have. Suppose a legislature should be found wicked enough, and corrupt enough, to sell the salt springs, to a company of speculators, or to lay their hands upon the school fund, ought not the governor to have power to arrest the progress of such a corrupt logis lature?

MR. TOMPKINS had hoped there would be no debate upon this amend ment, but as it appeared to be leading to a discussion, he would withdraw it. MR. TOMPKINS then proposed a verbal amendment to the report of the committee to make it more explicit, in regard to the person administering the government of this state. In case of the death of the governor, the lieutenant-governor would administer the government; but he would not be the governor. Should the president die, the vice-president would administer the government ; but he would not be styled the president.

Some little conversation took place upon this subject; and the motion was withdrawn by the mover.

MR. DODGE then moved an amendment, the object of which was to require two-thirds of the members of both houses, to pass bills that may have been returned by the governor, only in cases when the objections were of a constitu tional nature. In cases of bills being returned on grounds of inexpediency, or as being detrimental to the public good, the amendment would require only a bare majority to pass them, notwithstanding.