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 ccctravention 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 They had repealed fundamental-institutions by mere act of parliament; they had converted a triennial into a septennial parliament, and they have passed various acts which were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, Hees, 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, Dedge, How, Humphrey, A. Livingston, P. R. Livingston, Millikin, 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 legislature?

MR. TOMPKINS had hoped there would be no debate upon this amendment, 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 constitutional 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.

MR. WHEELER. Mr. Chairman-With emotions of painful diffidence, proceeding from a profound veneration for the talents and patriotism with which I am surrounded; I rise to solicit from this honourable committee, permission, briefly to explain the reasons which will govern my vote on the question before you.

Sir, I have listened with attention, to the arguments of gentlemen who advocate the report of your select committee; and although, these arguments have been enforced by the fascinating powers of eloquence, yet, when disrobed of this magic dress, the subject presents itself to us, in the form of this simple proposition. Which will best protect the public interest, a negative power in the executive, over two-thirds of your legislature, or a control which shall not extend beyond the majority elect of both houses?

This government is founded upon the principles of a representative democracy-the sovereign power is solemnly recognized to be in the people, and to emanate from them: In delegating their trust, the people have disposed of this power to public agents, in such portions, and for such uses, as they, in their wisdom, have deemed best calculated to promote the public happiness.

The framers of the constitution of 1777, borrowed freely from that government, whose chains they had recently broken, and in organizing the legislature, they placed in the hands of the judiciary, a strong check upon the deliberations of that body. This check originated with the British policy of goverument, and was yielded to the throne for the purpose of defending the sceptre from what, in court phraseology, is termed an encroaching spirit in the people; or in other words, to shield the monarch from the inroads which liberty has occasionally attempted upon the rights and prerogatives of the crown. Sir, I have followed the gentlemen over the extended field, which they have explored in the present debate, and lament that it should have been thought necessary to enforce their arguments, by impeaching the purity of your public functionaries. Imputations dark and vague have been, with a lavish hand, showered upon the legislative and judicial departments of your government. Even the sages and patriots of your revolution, have not escaped this contumely. The illustrious dead, who pillowed their heads for seven long winters upon the mountain snow; and bared their breasts during seven sanguinary campaigns, in the glorious struggle for American independence and freedom, have been upon this floor accused of profligacy and waste, and of having corruptly dissipated the funds of your state.

It is, sir, to me a subject of regret, that at a moment when a little ray of sunshine has broken through the clouds, which have long darkened your political horizon, to beam its genial warmth upon your citizens; it should have been thought discreet to scatter the seeds of distrust and suspicion, by representing your legislature as corrupt and profligate.

This Convention, sir, represents a moral and a thinking community-we come here, not as accusors, not to destroy, but to protect-not to attenuate, but to strengthen-not to innovate, but to reform. Therefore, it is neither salutary nor proper, to weaken the public confidence in a government, under whose auspices, by the blessings of Providence, your state, from the feebleness of infancy, has grown to the strength and stature of manhood. We have heard much of legislative encroachment; but not a word of executive combination. Can gentlemen refer us to a single incident, where the representatives of a free people have conspired against the liberties of their constituents? History records no such event; but her pages are filled with a long and black catalogue of executive usurpations.

We are now persuaded to distrust the honesty and discretion of the legislative power, and to improve upon the modern science of checks and balances-We are urged to place the public welfare in the safe keeping of the executive, who is to be made the constitutional organ of the public will, and the supreme judge of the public good.

Sir, the amendment of the honourable gentleman from Montgomery, comes to the committee in the spirit of conciliation; for by conceding two-thirds to all objections arising out of the constitution, it meets gentlemen who are in favour

of a strong veto more than half way, and if adopted, it would give to the execative an efficient control, which might at all times be fearlessly exercised under the same guarantee, of popular support and protection.

After all, sir, you may resort to your checks and your balances, and may rely upon the equipoise which you establish, to perpetuate your system; yet be assured, that the columns which support the temple of your freedom, derive their beauty and strength from the virtue and intelligence of the people. Corrupt that virtue, and obscure that intelligence, your checks are lost; and the fair fabric reared by the wisdom and sustained by the honesty of your sturdy ancestors, will crumble into ruins.

Should that evil day come upon you, to use the language of the honourable gentleman from Orange, you may then flee to the wilderness and resume the savage state, for the only alternative left you will be the melancholy privilege of kissing the thirsty sword of military despotism, or of seeking the mountain wilds as your city of refuge. I again repeat, sir, on that day which your citizens shall yield the reins to vice, and shall permit folly to usurp the seat of intelligence, liberty will be heard to shriek in the agonies of despair, and will be seen to drop a tear of bitter lamentation over the ashes of your republic.

MR. BACON said, that the only question now before the committee was, whether instead of adopting the proposition reported by the select committee, which makes two-thirds of each branch of the legislature necessary in all cases to the passage of a bill which has been returned with objections by the governor, (whether those objections relate to its constitutionality or its expediency) we should accept of the project moved by the gentleman from Montgomery, (Mr. Dodge,) which requires a concurrence of two-thirds, only when the objections are of a constitutional nature, but a bare majority when those objections relate only to its expediency.

As he had not been ambitious of taking a part in the interesting debate which had occurred on the general question which had been before them, because his aid had not been needed, merely for the sake of discoursing on matters and things in general, he should not now have risen had he not feared that there was something a little catching to some gentlemen on a first view of what the gentleman from Washington (Mr. Wheeler) had called a conciliatory proposition, and one which he seemed to think ought to unite all sides of the Convention in its adoption. He hoped we should not be so indiscreet as to sanction it, because it came under that guise. So far from conciliating his good will in its favour, he should of the two prefer to reverse the proposition, and require a majority of two-thirds where the objections related solely to the expediency of a bill, and a bare majority only when they were on constitutional grounds, and for this obvious reason;-constitutional difficulties it was always within the competence of the judiciary power to correct; and should a law clearly unconstitutional, at any time make its way through all branches of the legislature, there was still a redeeming power left by an appeal to the judiciary, through whose decision the law might be annulled, the great principles of the constitution preserved, and the sacredness of private rights effectually maintained. The worst that could happen, even were there no revisionary power to check the passage of an unconstitutional law, would be but temporary; and every error would ultimately be corrected, so soon as time and opportunity to test the objectionable principle was given by judicial interposition. Not so, however, when the question was one of expediency. There, the judiciary power could afford no relief, because with the exercise of discretionary powers in the other branches of the government, they could in no shape interpose in their judicial capacity. The act once passed, however prejudicial to private interests or public good, must have its full operation; and in many cases even its repeal could be of no avail to repair the mischiefs it might have occasioned, because from its nature it might be irrevocable. To say that hasty, ill-advised, and destructive nets were not to be presupposed of the representatives of the people, clothed with their power, identified with their interests, and thus, as some gentlemen maintain, being in truth the people themselves, was arguing against all experience and the most notorious facts. Who can shut his eyes against the occurrences which have taken place in various legislative assemblies in this country, which, even

while in their progress, were the subjects of wonder and indignation to every reflecting man who was not himself a party to them. He would not advert to any thing which had taken place in our own state in confirmation of this position. He thought it an invidious and indelicate task to allude to transactions, in which, perhaps, many who heard him, may have had a share,-of the merits of which, different opinions might still be entertained, and a discussion of which could have no good effect here. He preferred drawing his illustrations from other states, and from cases of the most notorious and unquestionable character. If we want examples of legislation, the most hasty, ill-advised, and destructive that can be well imagined, to the great interests of the community, let us look only to what has occurred within our own recollections in the great and enlightened state of Pennsylvania.

To relieve the pecuniary embarrassments of the people, and to put money in the pockets of every man who wanted it, the wise men of the legislature of that state took it into their heads, but a few years since, that the institution of a new brood of local banks in all parts of the state was necessary. A bill was suddenly pushed through both branches at one sweep, incorporating the round number of forty independent banks. A project which bore on the face of it the character of madness to every man, whose wisdom had not grown up within the walls of the legislative halls. It passed by overwhelming majorities both branches; and though resisted in every stage by the governor, and returned by him with objections that did the highest honour to his sagacity and independence, was again passed notwithstanding, by the same overwhelming majority in both branches-and an act thus consummated, which has entailed increased distress upon that great community, and under the operation of which, they have ever since been bleeding at every pore; and yet Pennsylvania is a great and enlightened state-its representative bodies emanate from the people, and as gentlemen will have it, are the people themselves; and to predicate of their acts, either folly, rashness, or corruption, is the highest presumption-is an insult to the majesty of the people! And yet here is a case of acknowledged, and most notorious folly and rashness, if no worse; for corruption need not always be presumed, which even the constitutional veto of the executive was insufficient to check, although a majority of two thirds was necessary to its enact ment.

Not to multiply numerous other cases of the same character, he would only call the attention of the committee to the famous Yazoo case in the state of Georgia, alluded to by another gentleman in a former stage of this debate, (Mr. Tallmadge.) An instance of an act granting away for a song, the great public domains of the state, under circumstances of the most gross corruption, passed by like overwhelming majorities in both branches, at first returned with objections by the executive; but with some small modifications again returned to him -pressed upon him by a current which he had not either the power or the firmness to resist and which, left to the people, no other remedy but its forcible repeal by a subsequent legislature, and its destruction by the hands of the common hanginan. Do cases of this sort afford any countenance to the idea, that either improvident or corrupt legislation is not ever to be supposed, or that a revisionary power in distinct hands is of too strong and dangerous a nature to be entrusted with any other branch of the government? Experience has proved that even on the ground on which it is proposed to be placed by the report of the committee, it is not always strong enough to effect its proper object. Let us not then weaken and narrow it still more.-But was there not danger of the results growing out of unrestrained and unchecked legislation on another ground, which, in the situation and circumstance of this extensive state, was more particularly to be guarded against? He meant that which grew out of local interests and combinations-an interest which was usually more deeply felt and more difficult to be resisted by the representative, than perhaps any other, and to which all communities, and more especially this one, were peculiarly exposed. It was true, as had been remarked, that the state had already parted with some of their great interests, which ought to have been cherished and sustained for the common benefit of the whole. But had they not in the mean time come inthe possession of others, probably much greater' We have a most valuable