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The powers and duties of the council of revision are established by the people, in order to superintend and control the acts of the legislature.-Experience has shewn that without such control, the legislature is too prone to overstep the limits of their own powers, and to encroach upon, and in the course of time, to swallow up the legitimate powers of both the executive and judiciary.

It is not now fit,-it is too late, to enter into the reasons which have produced a general opinion throughout the state that the present council of revision should be superseded; the Convention having unanimously voted to abolish it.

This opinion and vote, have in no sort been influenced by any doubt concerning the importance and necessity of a revisionary power, but from the conviction that the judiciary should no longer be vested with any portion thereof.

The report of the committee proposes that the power heretofore vested in the executive and the judicial departments, should henceforth be transferred to the executive alone. The amendment of the member from Dutchess, while it assents to such transfer, proposes that the exercise of the power by the executive, should have no other effect than to require a majority of all the members elected to the senate and house of assembly, (instead of two-thirds as heretofore, of the members of the respective houses) to pass any bill to which objcctions shall have been made.

In favour of this amendment, it is urged that a number of the states have omitted altogether to establish a revisory power, or have given to the objections of such body, the power of requiring a majority of the whole members instead of twothirds of those present, to repass a bill to which objections shall have been made.

And that the vesting so great a power as the report proposes in the executive alone, may make it too formidable, and seems to imply that a single individual may possess more wisdom than a majority of the legislature.

In respect to the constitutions of other states, it may be answered, that a plurality of the state constitutions provide a partial negative, equivalent, or nearly so, to that proposed by the report; and examples might be mentioned of the irregular proceedings of certain states where no power, or an inefficient one, has existed, to check certain proceedings of the legislature.

The recent constitution of Connecticut, in which the revisionary power is similar to that proposed by the member from Dutchess, is urged as an authority, and recommended to our imitation. But, as has been suggested, it will be recollected that Connecticut is not a large state-that her numbers are not great, nor her territory extensive-that her ancient manners remain without much alteration, and her population being unmixed, is without the collision which a population suddenly collected from different quarters will present.

As respects the power of the executive, the object of placing the same in this department should be rightly understood. To exhibit the greatness or comparative importance of the executive can never be a motive with the people to give large powers to this department. But as very large powers are given to the legislature which may be, as they have been, abused-the people for their own security, and in order that the powers placed by them in the executive and judiciary may not be trampled on, will vest in the executive a power that may be adequate to protect the people, as well as the judiciary and the executive departments, against the irregular acts of the legislature.

It is therefore for the safety of the people, and in order that the three departments of government which they have established, may be protected against the unjust proceedings of the legislature, that this power is proposed to be lodged in the executive.

It is not the man who may chance to be governor, but the people themselves, who, through him, interpose their authority to check the irregularities of the legislature.

Will it be either respectful, or safe, upon such interposition, for the legislature to repass the bill to which objections shall have been made, by a bare majority of all the members? Will not such provisions prove ineffectual, and operate to draw the executive into contempt, instead of proving a check upon the irregularities of the legislature?

This is not a new question, but has been often in review; and the princi

ples, and exactly the same provisions, as are contained in the report before us, are contained in the constitution of the United States:-every part of which was fully and carefully considered, and has been confirmed and adopted by every state in the union. Though difficulties occurred in the first formation of this constitution, and mutual concessions were found necessary, yet the vesting in the person of the president the power to object to bills, and requiring the consent of two-thirds of the members of both houses of congress to their afterwards becoming laws, was not matter of compromise, but was consented to with as little scruple, and as great unanimity, as almost any other article of the constitution.

The authority of the constitution of the United States, to which all the states which may have different state constitutions, have unanimously consented, outweighs that of certain of the states, that, which from peculiar circumstances, may have either omitted or diminished the revising power. Is it then fair to say there has been a diversity in opinions of the states, when in fact all have approved of the provisions of the report?

The example of the United States seems to be more fit for our imitation than that of any single state; especially of one limited in territory, as well as in numbers.

The state of New-York is already a great state; exceeding in its population any other state in the union. Its territory is large and fertile-its commerce extensive, its manufactures respectable, and its wealth and resources not inferior to those of any of her sister states.

If such be our condition, and such the government which we require at this time, will not the future demand an equally vigorous one? Will the simple rules that may be useful and sufficient in one neighbourhood, be adequate for the government of this great state, when it shall have arisen to that elevation, to which it is advancing with its mixed population, and its diversified interests ? These are considerations which call for provisions that shall prove sufficient not only to maintain a due balance between the powers of the great departments, but to protect the people from their united usurpation.

It is well to remember that we are called to act, not only for the present time, but for futurity, and that what is passed, is in no other respect to be regarded, than that our experience should be united with our sober reflections in debating and settling the provisions which are to be proposed in amendment of the constitution.

Instead of danger from the power proposed by the report to be vested in the executive, is there not much reason to fear, that the power will be more rarely used than it ought to be?

MR. BROOKS. I do not rise to enter into a discussion of the subject now before the committee. It has been already ably debated; and my only object is to give some explanation of the vote which I am about to give. The honourable chairman of the committee, (Mr. Tallmadge,) to whom this subject was referred, has stated, that the report of that committee was adopted by them unanimously. That statement is correct; so far as it relates to the general subject matter of the report; the object of which was to furnish a substitute for the third article of the constitution.

As to the abstract question of the extent of the power to be given to the exccutive, the select committee were not unanimous. Before I entered into the deliberations of that committee, I was opposed to giving to the executive the power contemplated in their report, and proposed an amendment. I have not since discovered any good reason for changing my opinion, and shall vote for the amendment proposed by the honourable member from Dutchess.

MR. TOMPKINS, (the President.) He concurred fully, he said, in the propositions laid down by the honourable member from Queens. It was true that the people were equally represented in all the departments of government, the legislative, executive, and judicial: and he concurred also in the propriety and necessity of supporting and maintaining each in the full, safe, and independent exercise of the power and authority delegated to them respectively by the people. But, as to the means by which this was to be done, he had formed different conclusion. The reasons, by which his mind had been influenced, had led him to a different result.

How was this provision introduced into our constitution? It was considered by a majority of the framers of the constitution, that a veto, even qualified in ́ its character, placed in the hands of the executive alone, was an odious relict of royalty; that it was unsafe and unwise to place it there; and that it was therefore that the chancellor and judges had been associated with him; and the reasons why, even thus constituted, it had found a place in our constitution, was owing principally to the peculiar state of the times, and of the country, when it was framed. Our people had not yet been accustomed to self-government, and many of them retained strong predilections for the forms and checks of the government under which they had hitherto lived. The Convention, therefore, thought it prudent, in some respects, to assimilate our new government to that. They were apprehensive, if they departed too widely from what the people had been accustomed to, and introduced alterations and innovations very glaring, that they would alarm the jealousy and prejudices of some who were otherwise well disposed to the cause of freedom, and particularly some men of property and influence. A check, such as was contemplated by the report of the committee, he considered unnecessary. There can be no use for a veto on the passing of laws, but to prevent violations of the constitution; and for this purpose your judicial tribunals are sufficient. If laws, encroaching on the independence of the exccutive or judicial departments, should be enacted, or such as violated any private rights, they would be void, and it would be in the power of the courts to declare them so.

The constitution, as framed in 1777, had been a great blessing to the state; and for a time, it had proved sufficient for the beneficial purposes of government. Its defects had been gradually unfolded by experience, and a change of circumstances; these defects had become more and more manifest from the collisions and conflicts of party; and the time had arrived when it was expedient and proper that the people should mount their legitimate thrones, take the power in their own hands, and expunge from the constitution its imperfections and impurities.

We have been frequently and truly told, that the departments of government ought to be kept separate; and, from the correctness of this principle, a very strong argument against the judges being members of the council of revision, has been derived; because, as members of that body, they constituted a part of the law-making power. Why, then, transfer this veto to the executive alone? Is it not as dangerous to blend the executive and legislative branches together, as to blend the judiciary with the latter?

The framers of our constitution meant, as he believed, to limit the veto of the council of revision to constitutional objections. This must appear obvious, as well from the language of the constitution, as from the fact that the chancellor and judges were constituted members of that body; they were placed there because the terms by which they hold their offices render them an independent body; but more especially, and principally, on account of their supposed legal acquirements, and that they, therefore, would be most capable to judge of the soundness of constitutional objections. Another reason for believing that the framers of the constitution meant thus to limit this power, was the information he had received from those who had been members of that Convention. A different construction had indeed been given to this article of the constitution, and that the council of revision had the right to object to aws which they might deem inexpedient and contrary to the public good; and it was the consequences which had grown out of this construction, which had alarmed the people. The council had now in fact become a third branch of the legislature, with a control equal to two-thirds of all the representative branches; and it was, therefore, that its abolition has so loudly been called for. In speaking of the conduct of that body, he did not mean to allude to recent years or any particular members; he had reference to their conduct for a great many years past, and implicated himself among others who had belonged to that body; he had been a member of it for three years as a judge of the supreme court, and ten years as governor of the state; he had in common with others probably mingled political considerations with the proceedings of that body, without being conscious of it. He was willing to take upon himself a full share of blame, and acknowledge an equal share of frailty with others.

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 conduct 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 taken 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 body, (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 five, 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 legislature 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 powers, 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 Rumber 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 bad 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.

The object of the prorogation had been in some measure misunderstood by the gentleman from Otsego. The conduct of members of the council of revision had more influence in producing that measure than the honourable gentleman supposes. An auxiliary cause was the prevention of the appointment of two

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