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who often apply remedies with so unskilful a hand, and with so little wisdom and circumspection, that in curing one evil, they create many others. Such an inexperienced lawgiver has his eye intently fixed on some particular mischief which he supposes to exist, and then, with a strong hand he extirpates that evil; but in doing so he often throws down the fences erected for the security of private rights. Almost every man who comes to the legislature seems to suppose that he is bound to do something; and this propensity is so strong, that it is of ten excited into a passion and a rage. All change in the public laws of the state is in itself an evil. It renders the rule of action for a time unknown or uncertain. The stability of laws inspires confidence; and the success of all our prospective plans in the various business of life must essentially depend on that stability. Fickle caprice is the law of a tyrant's will; and in proportion as our laws are unstable, they partake of that characteristic feature of tyranny.

Besides, sir, it is not to be disguised, that we are at all times exposed to the arts and designs of ambitious demagogues, to selfish intriguers, who speculate on the public bounty, through means of party favouritism; and to that esprit de corps, which under strong party excitement, often infests with contagious influence, all who are within its immediate atmosphere. The pride of our nature is often humbled, when we see men, who in their private life and character are deserving of all our confidence and esteem: yet, when associated in large assemblies, and inflamed with party zeal, are induced to commit intemperate acts of outrage and violence under the false pleas of public necessity, or of retaliation and self-defence-acts, of which any one of them, in a moment of calm reflection, would blush to think himself capable.

These, sir, are some of the infirmities and vices inherent in our form of government; and so long as man continues imperfect and depraved, these evils must ever attend the many blessings which we enjoy under our happy republic. But while this truth admonishes that perfection is unattainable in any human device; it solemnly warns us on this occasion, to retain or provide every suitable check and guard against those cvils; so far as human sagacity and wisdom can discern and prevent them.

On this subject, sir, it is important to realize the distinction between the attual power of legislation, and a mere negative veto. The power of making or altering the law ought unquestionably to be confided to the two houses of the legislature exclusively. That power expands itself to all objects not forbiden by the constitution, or the fundamental and universal principles of justice.Such vast powers are obviously liable to great abuse: and if abused, the injurious effects are permanent; and in a great measure incurable. If the legislature pass a law which is unconstitutional, the judicial tribunals, if the case be regularly presented to them, will declare it null and void. But in many cases, a long time elapses between the passing of the act, and the judicial interpretation of it; and what, let me ask, is the condition of the people during that interval? Who, in such a case, can safely regulate his conduct? In many cases a person is compelled to act in reference to such a statute, while he is necessarily involved in doubt as to its validity.

But where the legislature abuse their discretion, on questions of expediency merely, the mischief is often still worse. In all cases of private acts, which comprize three fourths of our statute book, the evil of an improvident act is incurable, because it usually vests private rights in individuals or corporations which no power under the government can afterwards repeal or annul. No matter how unequal, unwise, or inconvenient, such laws must be carried into effect. Fieri non debet; factum valet.

But in regard to the evils which might by possibility flow from the improper exercise of the qualified veto on the legislature, they are very limited in their effects, and of far less dangerous character. The council of revision, or the executive holding this check, can originate no bill, nor make nor alter any law. The effect of the objections where they prevail, can only produce the result of suspending the legislative will of the two houses. And the worst consequence which can ordinarily happen, is, that the people must remain under the law as it stood; until the voice of the people, through their new representatives, shall produce a change.

Having come to the conclusion that such a check is indispensable to the public safety; the next question in order, is, whether it shall be retained in the council of revision, or transferred to the governor alone? I yesterday voted for the abolition of the council of revision, but with an implied supposition, that a similar power vested in the executive, should be substituted, according to the report of the select committee.

In deciding this important question, I think it proper on this occasion (especially after the remarks made by the honourable member from Dutchess, Mr. Livingston) to give a concise history of the operations of the council of revision, from the origin of the government, down to the present period. I have devoted most of my time since I had the honour to be appointed on the select committee, to an examination of the minutes of that council. I have made an abstract in the form of a schedule, shewing the number of bills objected to by the council in each year, and the distinct grounds of objection in each case. I think this document cannot fail to be useful in our deliberations; because the past operations and experience under the exercise of this supervising power, will aid and guide our judgment, as to its probable effects and operation hereI now ask the attention of the committee to the abstract which I have alluded to; which is as follows:


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The honourable gentleman from Dutchess (Mr. Livingston) has seen proper to reproach the modern council of revision by several severe inputations; and particularly by charging them with having usurped the power of judging of the expediency as well as constitutionality of bills passed by the legislature. Which construction he has asserted to be contrary to the usage and interpretation which uniformly prevailed in the council of revision; until after the expiration of the administration of his excellency governor Clinton; on whose exalted character he has made a high and just eulogium. [Mr. Livingston here rose and remarked, that it might not be improper for him to explain, that it was his excellency governor Jay, to whom he alluded in his former remarks. During his administration he contended that it was the business of the council of revision to pass all bills where no constitutional objections could be urged against them; taking the ground that the two branches of the legislature were the most capable of judging of their expediency.] I thank the gentleman for the explanation; but I regret that it only affords me another opportunity of pointing out another egregious mistake in point of fact. But I acquit that gentleman of all wilful misrepresentation; of which I know him to be incapable. That honourable member has now told the committee, that governor Jay inflexibly maintained the construction that the council had no right to judge of the expediency of bills. He has also informed us that the Convention of 1777 gave the powers in question; because that patriot and sage, the venerable George Clinton, was then governor; to whom no powers were thought to be too large; because he was incapable of abusing them. I agree in all the praise bestowed on that venerable man. But the honourable gentleman last up, has fallen into a remarkable mistake. For although governor Clinton was the first governer elected under the constitution; yet it was very certain that he was not governor when the Convention framed the constitution. It was not, it could not, be known at that time, who would fill any of the offices under the constitution; and we must presume that no powers were granted with reference to any individual.

From the schedule which I hold, sir, it appears most unfortunately for the explanation just given by the gentleman from Dutchess, that the very first bill that was passed under the constitution, was returned by the council with their unanimous objection on the sole and distinct ground that it was inexpedient and inconsistent with the public good. The council, as appears by the minutes, was then composed of Gov. Clinton, Chancellor Livingston, Chief Justice Jay, Justice Yates, and Justice Hobart. The bill was specially committed to Chief Justice Jay, and he drafted the objections now on the council minutes. Thus we see that those distinguished men who were leading members of the convention, at the first council that was ever held under the constitution, gave an unanimous construction to the third article of the constitution, which exactly accords with the interpretation so loudly complained of against the present council. The schedule which I have exhibited, shews, that the whole number of bills that have been objected to by the council, from the origin of the government to this time, is 128; of which number 81 were objected to as repugnant to the constitution; 44 on the sole ground that they were inconsistent with the public good.

For example, the first act objected to in 1778, was a bill requiring certain paths, and involved no question but that of expediency. In the same year another bill was objected to, the sole object of which was to make the county liable for the default of the sheriff. In 1779 the same council objected to a bill to prevent horse-racing, on the sole ground of expediency. In 1785 a bill for preventing inoculation of the small-pox was objected to as contrary to wise policy, which required the practice to be encouraged. In 1788 a bill authorizing the sale of Governor's Island, in the harbour of New-York, was objected to on the sole ground that it was wiser to retain it for purposes of public defence. In 1798, during the administration of Gov. Jay, a bill for substituting paper for parchment in certain public records, was objected to in council; his excellency the governor concurring in the objection,

Thus it demonstrably appears, that the construction and practice in the council of revision from 1778 to 1821 inclusive, has been uniformly the same under

the varied succession of governors, chancellors, and judges; and the attemptdo change that usage, and the novelty of construction, are imputable to those only, who, within a very few years, have insinuated the charge of usurpation against the council. It appears from the records in the secretary's office, that the whole number of bills ever passed by the legislature up to this time, is 6590; of which 123 have been objected to by the council of revision; and 17 only of that number have been passed into laws, notwithstanding the objections.

Sir, I claim not for the members of the council an exemption from the frailties of human nature. I know they are men of like passions with others. They have, no doubt, in their arduous duties, committed many errors. But fortunately all their acts are on record, with their reasons for their objections. I invite gentlemen to a careful examination of that record; and then, sir, I invite to a comparison between the acts and proceedings of the council, and the whole conduct and proceedings of any other branch or department of the government. The evils and inconveniences resulting from the council of revision are obvious and apparent, while its benefits are chiefly unseen and unacknowledged. Its operation consists not so much in doing positive good, as in preventing mischiefs. It has undoubtedly, as all confess, hindered many dangerous and pernicious bills from becoming laws: but how many schemes of profligacy; how many base speculations; and how many acts of party violence have been stran gled and suppressed, because their authors dared not to present them to the test of such an ordeal, it is impossible to demonstrate; but there can be no doubt in the mind of any reflecting man, that much evil has been thus prevented. The very existence of such a power, in wise, firm, and independent hands, has in a thousand instances prevented the necessity of using it; and this silent and unseen operation has been most salutary and benign.

I owe it to myself, and to the public, to declare, that in my judgment such a power will never be exercised with so much wisdom and steady firmness in any other hands. In my opinion we shall by this change, injure the constitution, as it regards the legislative department: but it will improve the constitution as it relates to the judicial department. By removing the officers of the judiciary from all connexion and collision with the legislature, I hope that jealousies will be removed, and harmony restored and preserved between those departments. And so far as I may be supposed to have any personal interest in the question, I declare my heartfelt satisfaction at the complete separation. We are now called to revise the works of our fathers' hands. To a small number of us on this floor, this is literally true: and all I trust will recognize in the framers of our constitution, the fathers and founders of the state. I feel the solemnity of the occa sion, and when I see the axe laid to the root of the tree which our fathers plant ed, and watered, and defended; a tree which has yielded much good and wholesome fruit; and has so long afforded to us its shade and shelter; I confess, sir, that I witness its destruction with no ordinary emotions.

Let the council of revision descend in silence to the grave. But let no man now write any inscription on its tomb. When the feelings, and interests, and passions of the day shall have subsided, if I do not greatly deceive myself, impartial posterity will inscribe an epitaph on that tomb, expressive of profound


In regard to the intent of the proposed power in the executive alone, I concur decidedly in the report of the select committee. Such a power is necessa ry to check usurpation in the legislature, which must ever be the strongest. The power is necessary as a shield to protect the weaker departments against the controlling influence of the legislature. The maxim of separating the departments, is of vital importance to the existence of civil liberty. But, sir, it is idle to separate them in form, on parchment, if in reality they are not made independent and capable of self defence against each other. No single elective magistrate can stand against the persevering and systematic assaults of a numerous body of popular and influential men who compose the legislature. They not only have the power over the subsistence of the officers of the judicial and executive departments; but in the plenitude of their power, they may so regulate the duties of those officers, as to render their situation uncomfortable in a variety of modes: and they may in fact thus indirectly legislate the governor, and chancellor, and judges out of office.

The best definition of tyranny is, any form of government in which all the powers, legislative, judicial, and executive, are united in the same hands. And in the same degree as the power, and strength of any one of the departments, bears an undue proportion to those of any other department; in that same degree, will the government partake in reality of the nature and character of despotism. It is in vain, sir, to mock the people with the form of separation in the departments; so long as any one is so disproportionate in strength as to compel the other to act in subserviency to its views. My fear is, sir, not that the governor will wantonly abuse this power; but that he will not exercise it with that firm and intrepid independence which the public interest and safety may require.

MR. P. R. LIVINGSTON said he was unwilling to become a monopolist, or obtrude himself upon the Convention. He merely rose to beg of some gentleman to reply to the honourable gentleman who spoke last. If no one felt disposed to reply, he should feel it his duty to do so himself. [After waiting a few minutes, and no one manifesting a disposition to speak, Mr. L. rose and proceeded.] He had remarked when up before, that if any satisfactory reasons were assigned in favour of the report, he should, with that frankness and candour which on all occasions he was disposed to exercise, withdraw his amendment. He regretted that no other gentleman had seen fit to take the floor, that the Convention might have profited by the remarks of others, and that he might have surrendered any farther pretensions to the support of the amendment he had offered. The honourable gentleman from Oneida (Judge Platt) had remarked, at the commencement of his observations, that the executive, judicial, and legislative departments of government ought to be kept distinct. With regard to the correctness of that maxim, no one could doubt. That point being settled, he was surprised so much time should have been wasted in discussing it. In regard to the next topic, which was excessive legislation, he confessed he could not see the force of the remarks, inasmuch as you cannot constitutionally fix bounds to legislation-it is not in the power of the people to say how much the people shall do. They come to legislate on constitutional grounds, and cannot legislate where the constitution interposes. The gentleman last up had remarked, that he (Mr. L.) had fallen into an egregious error, as to the adoption of the constitution, and the first chief magistrate elected under it. He did suppose, that he should not be accused of the absurdity of stating that a chief magistrate was elected before the constitution was adopted; and his honourable friend (Mr. Platt) well knew that no one was contemplated but George Clinton. The constitution was formed for that distinguished patriot, who was then at the head of our armies in the field of battle. It was with that view that this qualified negative was adopted, requiring two-thirds of the legislature, after bills had been returned with the veto of the executive. It has been suggested, that great research had been made, and the documents adduced evince the fact. The object of this investigation was to prove, that the third article of the constitution had been discreetly administered. It was the practices which the honourable gentleman had mentioned, of which he had been complaining—the exercise of the revisory power had excited all the feelings and passions, which had led to the abolition of that part of the constitution. He wished the honourable gentleman had thought proper to give the character of the bills, to which the council had raised objections, as well as of those which had passed, notwithstanding their objections. He did not boast of great experience-his age did not entitle him to it-public life gave him no claims to it. He had, however, seen some experience, and a woful experience it had been. He had seen the senate pass a bill by a majority of ten, and the bill passed by an unexampled majority in the lower house; yet he had seen it defeated by this branch of the gove.nment. Again, he had seen a bill pass unanimously-not unadvisedly, as might be the case in an assembly of Massachusetts, where 900 members were acting, and where you might rivet them, and they would hardly know it; but by thirty-two grave, venerable, and intelligent senators; not called up in a moment, and passed in a moment; but undergoing all the ordinary forms of legislation; referred to a select committee; and passed by an overwhelming majority in the house of assembly; I have seen that bill also rejected by the council. Are these the only

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