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duced to reject, they there admitted; not as a dangerous prerogative, but as a wholesome and salutary check.

This system of checks and balances runs through all parts of our constitution and laws. A justice of the peace, in our courts, has not conclusive jurisdiction even to a small amount. His judgment is subject to appeal and revisal through a successive grade of superior jurisdictions. A military fine is not imposed without the intervention of similar checks; nor even a highway laid out without being liable to the inspection and concurrence of a revisionary tribunal.

Such is the structure of our government, and such are the wise provisions of our system. Our institutions presume that man is frail, and fear that he may be corrupt; they, therefore, provided these various checks and balances.

Make your system, then, consistent in all its parts. Give this power to the governor. He is amenable to the people, and acts on his responsibility. And who does not know how much greater and more efficient is responsibility, when concentrated in an individual, than when divided among many? In the exercise of this power by the governor, the public eye is fastened upon him. He cannot retreat into the shade of his associates; but if he violates his duty, must bear, singly, and alone, the rays of public indignation.

It has been said by the honourable gentleman from Richmond (Mr. Tompkins,) that a man has not more sagacity, more intelligence, nor more virtue for being a governor, than he has without the office. Granted. But, sir, he has more responsibility, and must call into exercise more vigilance in the performance of his official duties, It has been admitted by the honourable gentleman from Delaware, and he has made it the subject of argument, that a particular bill to which he specially alluded, passed both branches of the legislature without his knowledge. That honourable gentleman was then a member of the legislature; and his attention to business, his vigilance and industry are well understood and appreciated. If, then, such a bill could pass through all the forms of legislation without his observation, it shows most conclusively the necessity of providing a power in the executive, and making it his special duty to guard against such inadvertence; being always responsible to the people, and looking to them for support.

The usual hour of adjournment having arrived, Mr. Young offered to waive any further remarks, if the question should now be taken.

There were numerous calls for the question; but Mr. SHARPE observing that he was not in the habit of voting on such important questions, without assign ing his views,

The committee rose and reported progress, and had leave to sit again.
The Convention then adjourned.

SATURDAY, SEPTEMBER 8, 1821.

Prayer by the Rev. Mr. DAVIS. At eleven o'clock the President took the chair, and the minutes of yesterday were read and approved.

Mr. SHARPE, from the committee to whom was referred that part of the constitution which relates to the rights and privileges of the citizens and members of this state, together with the act entitled an act concerning the rights of the citizens of this state, made the following report:

That they have had the same under consideration, and although the committee believe that the principles of civil liberty are well understood, and will be scrupulously regarded; yet they are of opinion, that it would be an additional safeguard to the people to specify distinctly, and adopt some of the most important of those principles; and they therefore recommend the adoption of the following, as amendments to the constitution.

First-That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. Second-No person shall be held to answer for a capital or otherwise infamous crime, except in cases of impeachment, and in cases of the militia when in actual

service, and in cases of petit larceny, assault and battery, and breaches of the peace, under the regulation of the legislature, unless on presentment or indictment of a grand jury; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private pr perty be taken for public use without just compensation.

Third-In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the county wherein the crime shall have been committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favour. But in cases of crimes committed within any county in which a general insurrection may prevail, or a general insubordination to the laws exist, or which may be in possession of a foreign enemy, the inquiry and trial may be in such county, as the legislature may by law direct.

Fourth-Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and in all prosecutions or indictments for libels, the truth may be given in evidence, if it be made to appear that the matter charged as libellous, was published with good motives, and for justifiable ends; and the jury shall have the right to determine the

law and the fact.

Fifth-The people shall be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.

Sixth-The trial by jury, as heretofore enjoyed, shall remain inviolate. Seventh-Excessive bail shall not be required, nor excessive fines be imposed; and all prisoners shall, before trial or conviction, be bailable by sufficient sureties, except for crimes, the punishment of which may be death, or imprisonment for life, or for a term of years, where the proof is evident or the presumption great. Eighth-The citizens shall have a right, in a public manner, to assemble for their common good, and to apply to those invested with the powers of government, for the redress of grievances, or other proper purposes, by petition, address, or re

monstrance.

Ninth-The military shall on all occasions, and at all times, be in strict subordination to the civil power.

The report was read, and on motion of Mr. SHARPE, committed to a commitfee of the whole, and ordered to be printed.

THE COUNCIL OF REVISION.

On motion of GEN. TALLMADGE, the Convention again resolved itself into a committee of the whole, on the unfinished business of yesterday (the report of the committee on abolishing the council of revision, and the amendment offered by Mr. Livingston)-Mr. Sheldon in the chair.

COL. YOUNG resumed his remarks. I shall occupy, he said, but few moments in making the additional remarks which I intend to submit on the question before the committee.

It has been more than insinuated by the honourable gentlemen from Dutchess and Delaware (Messrs. Livingston and Root) that it would be aristocratic, to invest the governor with the power of suspending the operation of bills, even subject to the limitation proposed in the report.

I do not deem it necessary to say much to repel such an imputation. After the sanction which the constitution of the United States has received in every state, vesting similar powers in the executive, after the various amendments which have been made of that instrument, after the scrutiny it has undergone by the most strenuous advocates for the people; and after an experience of more than thirty years, in which not a single objection has been made to that part of it, from any quarter of the union, it does seem that such an imputation may be put at rest. But, sir, a proposition has been made by the honourable gentleman from Richmond (Mr. Tompkins) to associate other persons with the executive, and to create a new council of revision, composed of different persons.

The object of this association is stated to be, to bring into the exercise of that duty a greater quantity of talent, experience, and learning, than can be supposed to exist in a single individual. But, sir, the governor will at all times have it in his power to avail himself of all, and more than all, the talents and learning which that amendment contemplates associating with him. He has constant communication with the judges, the attorney general, and other emi nent legal and political characters, in whom wisdom and virtue may be supposed to reside. It is the course of legislation to print such bills as are important, and these are carried to him every morning. Hence he is apprized, from day to day, of the business before the legislature; can see its bearing, and is prepared to act upon it. It is therefore not necessary to impair his responsibility by creating a new body, from which he can derive no greater benefit than he can obtain without it.

We return, then, to the question, is it safe to trust the legislature with an uncontrollable power to enact laws, without an efficient check on the part of the executive?

The members of the legislature are elected by counties, and feel themselves responsible peculiarly to the counties that elect them. The governor is elected by the people of the state, and to the state is he responsible. If, then, local combinations are formed by bringing together for improper purposes, a powerful force, it will be in his power to prevent its effect. He is responsi ble to the whole of the state, and if he abuses the trust, the whole power of the state can be brought to bear upon him. In cases of combination in the legis lat ve branch, the responsibility is divided among one hundred and twenty-six, and the shelter is effectual. But with him it is undivided, and he cannot es cape it. In the exercise of this power, he must stand or fall by the weight of public sentiment. It was that alone which sustained the executive in the strong measure of prorogation to which I have alluded.

Much stress is laid upon the idea, not only that the representatives are the people, but that a bare majority is the people. The latter idea is often as erroneous as the former. Without alluding to the unfair practices by which the people are often misled, let us examine for a moment what those majorities are, and in what manner they are frequently created. Has it not happened in political parties, that the majority in the legislature has depended upon the single city of New-York; and a bare majority of two or three hundred, and those perhaps the venal votes of negroes, has carried the election in that city, and thus given direction to the sovereignty of the whole state of New-York! And what may not such a majority do, when in the uncontrolled exercise of its power? How often have we seen states gerrymandered (to use an eastern phrase) to perpetuate the power of a party, and that, too, by a body that did not represent a majority of the people. And is such a majority the people?

But, sir, this is not all. Suppose that in one branch of the legislature one party has a majority of one, and in the other branch the other party has a majority of fifty. May not the majority of one thus control the greater majority of fifty? Sir, it is altogether preposterous to regard a fortuitous majority, as constituting, of course, the majority of the people.

But we are told that we should not mingle the different branches of the government together. I admit it. The argument is a good one-but it is misapplied. The qualified veto recommended in the report, only gives to the governor the power of stopping a bill in its progress, until two-thirds of the legislature should decide on its passage. Its progress, then, becomes peremptory; and it might as well be said that you mingle the judiciary with the legislature, because you authorize the former to decide on the constitutionality of the laws, which the latter have enacted.

MR. DUER. This protracted debate, I am sensible, Mr. Chairman, has nearly exhausted the patience of the committee, and every topic of argument connected with the subject. I am free to admit, has been already enforced with a power of eloquence, and illustrated with an extent of research, that I can never hope to attain. It is not therefore with the expectation of shedding light or novelty on the discussion, or of fixing the mind of any member, who may yet be hesitating, that I ask the attention and indulgence of the committee.

But has occurred to others as well as to myself, that a somewhat fuller explanation than has been yet given of the reasons which actuate us in consenting to the reported amendment to the constitution, has been rendered necessary by the course of the debate: Such an explanation, we conceive, is due to ourselves due to our constituents, and due to the vast majority of the people of this state, whose peaceful triumph over their adversaries, over those who by an extraordinary stretch of power, (to give the act its mildest term) sought to defeat their wishes so frequently and fully expressed, we are in effect now celebrating, and by our acts are bound to consummate.

Notwithstanding all that has occurred-all that has been said in the progress of this debate, I yet entertain the hope that the amendment as reported by the select committee will survive, not merely the attacks of its adversaries, but the more dangerous support of some of its professed friends, and will finally receive the sanction of the Convention. I intend no disrespect to the gentlemen to whom I allude by these expressions, but I refer to that inconsistency which many have strongly felt between the arguments they have urged, the opinions which they have expressed, and the conclusions which they have adopted. Did I entertain the sentiments in relation to the council of revision, which some gentlemen have taken such pains to avow, I should feel myself constrained to exert my best abilities and all the influence I could command, to prevent the passage of the amendment; not indeed with the view of adopting the alteration proposed by the gentleman from Dutchess, (Mr. Livingston) but for the purpose of securing and re-establishing on its former foundations an institution, which, if all that has been said in its praise be true, we have rashly, if not wickedly, consented to destroy. It is with great surprize, I must own, sir, that I have listened to these praises, and I cannot help thinking, that at this time, and on this floor, they ought not to have been uttered. They were calculated to provoke a discussion that in common prudence ought to have been avoided. The causes that have led us to dissolve the council of revision, I had supposed, were understood and felt by all; and I had hoped that we should be permitted to exercise in silence, that sentence of condemnation which the voice of the people had so clearly pronounced. But a different course has been adopted. Those who, as it seems to me, were most interested to maintain this silence, have been the first to violate it, and have, in effect, challenged a discussion which a great majority of this committee would willingly have consented to waive. A formal elaborate elogium has been pronounced on the character and acts of the council of revision. Its salutary influence in restraining legislative usurpation, and the purity of the motives by which its members have been actuated, have been loudly asserted. The imputation that political feelings have been permitted to pollute the sanctuary of its deliberations, has been repelled in a tone of lofty indignation, and an appeal has been confidently made to the gratitude and veneration of posterity, from the ignorance, and prejudice, and passion, that now prevail. And yet, sir, this very council of revi→ sion, by an unanimous vote, we have consented to abolish! There is something in all this that I must confess I find it difficult to comprehend, and the reasons that have been assigned to reconcile the PRAISES and THE VOTE, have served only to increase my surprize. I am sure, sir, that the reasons to which I refer, are not those that have influenced the majority of this committee, and could we assent to the justice of the praises that we have heard, I trust that we should feel it our duty to rescind the resolution that we have passed, and reject the amendment proposed by the select committee, as not merely an uscless, but a pernicious innovation. We could never consent, I imagine, to sacrifice a wise and beneficial institution to the authority of an abstract speculative maxim. Still less could we consent to abolish it to relieve its present members from the suspicion and calumny to which it is insinuated that the firm and independent discharge of their duties had exposed them. In this, and in all cases, the honour and the burthen must be taken together. A necessary office is not to be abolished because its temporary possessors shrink from the responsibility which it imposes. The authority of every political maxim must depend exclusively upon its truth, and if no public evils are found to flow from the

supposed union of the judicial and legislative powers in the council of revision, the maxim that prohibits such union must be false.

It is indeed true, sir, that in a well regulated government, the judicial executive, and legislative departments ought to be kept separate and distinct; but the meaning of the rule obviously is, that the whole powers of neither department ought to be vested in another; that those who make your laws should not be permitted to interpret or execute them. Not that these departments, though separate, should not be allowed to execute, to a certain extent, a control over the acts of each other. Experience has demonstrated that the exercise of such a control is, in fact, necessary to preserve that very independence which the maxim recommends and inculcates. We should, indeed, involve ourselves in a singular inconsistency, were we to abolish the council of revision on this ground, since the very substitute that we propose to adopt contemplates a similar union of the executive and legislative departments, which the maxim, as interpreted by the honourable chairman of the committee, (Mr. Tallmadge,) equally forbids. It seems manifest that other reasons than these must be found to justify us in demolishing the council of revision; and that, to shield ourselves, both from the reproaches of our own consciences, and the just resentment of our constituents, we are bound to show that it is a mischievous and dangerous institution, and that the objections to which it is liable, cannot be urged with truth against the substitute that is proposed. It is on these points, sir, that I propose to submit some few observations to the committee, and I shall endeavour to conduct the discussion with as little reference as its nature will permit, to the acts and conduct of the present members of the council.

It has been intimated, sir, in the course of the debate, that it is only within a few years that the defects of the council of revision, as a political institution, have been suspected or discovered. The observation, sir, is not correct. The authors of that immortal work which is the peculiar boast of our country, and which contains the most lucid investigation of the principles of representative government, that the world has yet seen, it is evident, were fully aware of the existence and nature of those defects. In a paper of "The Federalist," which is attributed to General Hamilton, two objections to the council of revision are distinctly and forcibly stated. The first, that its members, acting as judges in the interpretation of laws, are liable to be biassed by the opinions previously expressed in the exercise of their revisory power; and the second, "that from their too frequent association with the executive, they may be led to embark too far in his political views, and that a dangerous combination may thus be cemented between the executive and judiciary departments."*

How far these anticipations of evil have been realised, I omit to inquire, though perhaps some may be disposed to cite them as proofs of that deep and almost prophetic wisdom, which distinguishes the writings of their illustrious author. Upon the validity of these objections we might safely rest our votes in favour of the resolution that we have passed, but the importance of the subject, if it do not require, will certainly excuse, a further examination.

What then is the council of revision? Let us break through the illusion which its name is well calculated to preserve, and we must see that it is in effect an executive council, of which the members hold their seats for life, and possess an efficient control over the acts and proceedings of your legislature. Such an institution in a republic is unexampled and anomalous, and exists in direct violation of the elementary principles of a republican government. A republican government is founded in a deep knowledge, and consequently a deep distrust of human nature. Hence its cardinal maxim is, that no power ought to be granted against the abuse of which some sufficient remedy is not provided. Yet by the constitution as it now stands, we have vested in a permanent and irresponsible body, a discretionary power of the most extensive nature. A power conferring an influence and authority vastly greater than cursory reflection would lead us to anticipate; and against the excess, the abuse of that power, no remedy, whatever, and no adequate check is provided. Under every form of government, discretionary powers must be entrusted, and as their exercise cannot be guarded by fixed and certain rules-as it is diffi* Vide "The Federalist." No. 73.

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