tinctly proposed, if we make the justices elective. I trust if it will be right then, it is equally right now. We all agree that the people ought to be consulted in their counties, who shall be their town and county magistrates. The gentleman from Otsego admits this in his own plan. On this subject, I must acknowledge my mind has been vibrating, whether to give the election directly to the people, or to have it as has been proposed by the gentleman from Queens. Let us first examine the report of the committee, which proposes that these officers shall be elected by the people themselves. What are the objections to this plan? But it is necessary that it should be again read, so that it may be distinctly understood. [Here he read that part of the report.] Many officers of towns are required to be freeholders, and perhaps it would be well to provide that justices should be freeholders also; but that may be done hereafter, if it should be thought expedient.

Now what are the objections to this plan? In the first place, it is said, that this privilege of election ought not to be extended or granted to the people, because they are incompetent to exercise it with discretion and safety. Every one knows that heretofore the justices have been appointed by a few individuals in the different counties, who are called the leaders of their respective parties, and who have generally consulted a few subordinate leaders in the towns. Now instead of persevering in this destructive course, by which a few factious men calling themselves the people, have exercised a most important power, I am for restoring to the people their rights. Instead of allowing a few men of either party to dictate these appointments, let the privilege be exercised by the people directly, who, if they are fit to elect any public officer, are most fit to elect their justices. But it is said this will produce great confusion, and irritation at the town meetings, and that improper measures will be taken to corrupt and influence the elections.

Let us look at this for a moment. I was disposed, for one, that one branch of the legislature, (the senate,) should be elected by landholders. The Convention, however, decided that I was wrong. It was then determined that the people might be safely trusted; that every male citizen of twenty-one years of age, who had served in the militia, or worked on the highways, should be entitled to vote for every elective officer of the government. Some gentlemen then argued that this privilege might be safely extended to all such persons, and that it would not be abused. The Convention have given their sanction to these arguments; and what do these same gentlemen now tell us? Why, that the people are incompetent to meet together in their respective towns, and elect their justices of the peace! They may, say these gentlemen, be trusted to elect the governor, senators, and members of assembly-above all, that senate, the members of which sit in the court of errors-the court of the last resort, from which there is no appeal-the court that decides upon the life, liberty, and property of every citizen of this great community-and yet, strange as it may seem, we are now told, that they cannot even be trusted to elect the petty magistrates of their own towns!! I wish to speak with humility and deference, but I am obliged to declare, that I have never witnessed more glaring inconsistency.

The same gentlemen have been pleased to say, that the constables and pettifoggers of the county, will combine their influence, and control the people in the election of their magistrates. It is no more likely that they will combine and control the election of magistrates, than they will in electing supervisors, and other town officers, and the members of assembly and senate, and the governor. If these two classes of men are so vile and corrupt as they are represented to be, we ought to exclude them from the privilege of voting. But I cannot believe that these ever do, or ever will, control the people in their elections. There have been many instances when the substantial freeholders have neglected to attend the town elections, and left them to be managed by pettifoggers; but let them have the privilege of making their own justices of the peace; place their interest along side of their duty-let their own benefit, public interest, and public duty, go hand in hand; and they will turn out unanimously. Bring the power of making these officers home to their firesides-the officers who are to protect their property against the unlawful encroachment of thieves and robbers, and every man who has any thing to save,will find it his in

terest to attend the elections to elect the best of men-first, to protect his individual rights and property-next to administer equal justice in the town. The people have the deepest interest to elect the best men to this office. They authorise the disbursements for the support of the poor, which is already the severest burden imposed upon the property of the state, and is growing more so every year. These considerations would induce the people to be cautious who they selected for this office; and if the men who pay the taxes of the town, will go to the polls, there is nothing to be feared from the influence of constables and pettifoggers.

The tumult and commotion which will be the consequence of conferring upon the people the privilege of electing their justices, has been urged as a decisive objection against it. I am persuaded that gentleman are mistaken on this point. But does not the same objection apply with undiminished force to the proposition of the gentleman from Otsego? If the judges of the common pleas are to have a voice in the nomination of justices, there will be a battle in every county, to see who these judges shall be, and this battle must be fought over again at the seat of government, by those who take the lead in the counties interested. Another battle must be fought at home to see who shall be your supervisors; and after all, the great battle is to be fonght at the seat of government, to get possession of the ear of the governor, who is after all to decide the whole matter. But let the people meet the justices themselves at home, and there will be but one struggle, and that will be conducted, as past experience has shewn, with as much order and decency as can reasonably be expected. The character of our people, hitherto has been such, and to their honour be it said, that few disorders have occurred at our elections, and these have been promoted by the worst portion of them-a spirit will grow out of sending the the election of the local officers of the government to the people that will assuage the bitter spirit of party which has hitherto been created, and exasperated by men whose importance depends upon perpetuating it—that will rise superior to mere party views-Compromises will grow out of it and it will eventuate in the selection of justices distinguished for their intelligence and virtue. They will banish all party feelings, if I am at all a judge of the human heart; and in the course of two or three years, good feelings will grow out of this method, and the best men will be elected to their offices, who will be a blessing to their towns. I have already stated, that the governor will have to act without the necessary knowledge of the individuals whom he is to appoint, and this is an important reason, why I am anxious to give it to the people-they will have more knowledge than he can have. When the people know them, and the governor cannot know them, is it not best to give this power to them? I humbly think it is.

An objection has been made which I think ought to be answered. It has been said, that the independence of these justices will be affected, by being elected in this way. It must be considered that when the people come to elect, they will have every motive which can influence the mind of man to select the most competent persons in the towns; and this circumstance will be a strong inducement to the most respectable men to accept the office of justice. It has been cheapened and degraded heretofore, to such a degree that many men worthy of the office, have refused to accept it.

It has been contended that partiality will exist, in the administration of justice, should they be elected by the people. Suppose a justice of the peace issues a summons in favour of a man who voted for him, and against a man who voted against him, we are told that in this case, there would be a leaning towards the man who had supported his election. There may be such instances; but I believe they will be rare. The defendant, however, if he apprehends injustice from the magistrate, has a right to a trial by jury. But it is answered, the justice will have a right to issue a venire to such constable as he pleases to select, and will issue it to the constable that supported his election, who will be of different politics from the defendant. This argument goes to show that we ought to have neither justices nor constables; and that the provision of a trial by jury will only be adding to the corruption of the court, by the calling together of twelve corrupt men. The argument is founded on the supposition of the total corruption of the whole body of the people, and if that be the case,

it

is a matter of no moment who appoints or who are public officers. But the justice will feel that every bystander has his eye on him, and he will be cautious, knowing the scrutiny with which he is watched. If he does not act cautiously, he must be without a heart and without a head. The great security, however, against the partiality of the justice, is derived from the right which every dissatisfied party has, to bring every cause under twenty-five dollars before the supreme court by certiorari; and I venture to say, that if it was not for this corrective, the proceedings of our justices of the peace would be abominable. A word on the subject of throwing this power into the bands of the people. We have had the experience of forty-four years of electing town officers by the people in their town meetings. The people have been in a habit of electing their overseers of the poor, overseers of highways, supervisors and commissioners of highways, &c.--and these officers are very nearly as important as justices of the peace. We hear of no confusion, no tumults, at these elections, and, generally speaking, these offices have been filled with very respectable and competent men. It is a fact universally acknowledged, that the office of justice, in consequence of the manner in which appointments to it have heretofore been made, has become so much degraded, that few respectable men will any longer accept of it. In but too many instances, instead of repressing, they have excited, and encouraged, and promoted it. It is to this cause that nineteen-twentieths of the law suits, which have distressed the community, is owing. Freeholders are dragged from their harvest, and other important business, day after day, to serve as jurors in the trial of causes of not six cents value; and whole neighbourhoods are disturbed and agitated by a few restless and litigious men, who have no business to employ them, and no property to take care of. Do I not speak the truth on this subject? By the plan which I advocate, you will place it in the power of respectable and practical men, to prevent, in a measure, the continuance of these evils, by a judicious selection of magistrates. Every farmer who has been dragged from his business again and again, will be cautious how he votes for a man that will make it a business to stir up strife and litigation. They will elect peace-makers. If I am not mistaken-if human nature has not changed, and if it is not debased below what I think it is if there be any intelligence in the people, and they do not elect good magistrates, I will never predict again, nor venture to predict any thing. The very great confidence I feel in the results, is one of the strongest reasons for sending this power back to the people. I have thus pursued this subject as far as I understand it. I will now recapitulate in a few words.

In the first place, we shall try this plan, accomplish an important object, that of taking this power from the general appointing power.

Secondly, we shall be complying with the general sentiment of the enlightened and virtuous portion of the people on this subject.

In the third place, we shall convince them that we do not intend to give them the shadow and retain the substance--that we do not give them the chaff and retain the wheat.

And lastly, shall give the appointment of the justices of the peace, to those most interested in selecting the most upright, moral, and intelligent men, that can be found, to fill the station.

And, let me add, that if you do not give the people, the power, which of all others, they most desire, and are most competent to exercise with the greatest discretion. I do think, they will have strong reasons to complain that we have not done our duty.

From all these considerations, I shall vote for giving this power directly to the people. I have stated my reasons boldly; yet with deference to every gentleman in this Convention. If this is not adopted, I shall vote for the plan that comes the nearest to it; but I hope, we shall agree, and instead of forming any intermediate power, or sending it back to Albany, give it to its lawful owners, the people. It will be less complicated, and less expensive. If this power is improperly exercised by the people, they bring the evil on themselves, and wilk soon be willing to correct it.

This proposition commends itself another way--it is true, that the first election may be attended with some little confusion, but when once the offices are

filled, there will only be vacancies occasionally, to be filled, and an election of justices only, once in three or four years.

I shall vote against the proposition of the gentleman from Otsego, because I think the report of the committee preferable to his, or to any other proposition that has come to my knowledge.

MR. VAN BUREN said he would briefly reply to some of the observations which had fallen from the honourable gentleman from Columbia, (Judge Van Ness,) and would also add a few words, in answer to the suggestion of his venerable friend from Queens, (Mr. King.)

The honourable gentleman from Columbía had examined and discussed the matter with a degree of zeal and ability proportionate to the very deep interest he naturally took in it: In one respect, he said, he fully accorded with him→→→→ that in the formation of a constitution of government, they ought to divest themselves of the influence of party. All agree in deprecating party spirit, and many have admonished us, that we cannot be too scrupulously cautious on this subject: He was well satisfied, that, if we all practised upon our own precepts—if we did, in fact, smother all feelings of party, it could not be possible that we should have so much difficulty in providing for the appointment of justices of the peace.

He could not suppress his apprehension that the immediate effect on the political interests of the state, of which his amendment was supposed susceptible, had called forth much of the opposition it had to contend with. He did not pretend to be more exempt from the influence of party feelings than others; but he would not fail on all occasions, to act openly and above board, and assign the true motives of his vote and conduct.

The gentleman from Columbia had said, that as yet, we had done nothing for the people that we had not given them any greater share of influence in the selection of their local officers, than they had before enjoyed. That gentleman's solicitude for the privileges of the people is commendable: But, said Mr. V. B. is the assertion true, sir? If it was, it would be a matter worthy of serious consideration. But, he continued, it is not correct. In the first place, they had given to the people, the right of choosing more than eight thousand militia officers: Was this nothing? But we were told that the public care nothing about this right! In this respect, too, the gentleman was greatly in error. There was no subject on which men felt a more lively interest. Let a militia officer be improperly superseded or supplanted, and they would find that it was a matter of no small interest or concern with the people. What has induced our respective chief magistrates to travel out of the ordinary course, and indulge in the granting of brevet commissions, if there was no solicitude in regard to military appointments? There was, he said, great anxiety on this subject. There are, said Mr. Van Buren, about 6600 civil officers in this state. Of this number, by the report of the select committee it was proposed to leave three thousand six hundred, for which, in consequence of their liability to frequent changes, no constitutional provision was made by the committee, to be appointed in such manner as the legislature shall designate. Was this nothing? If the people desire to have these officers elected, they will send to the legislature, such men as will obey their wishes in this respect; if they are not made elective, it will be because the people do not wish it; and they can, in this way, bring home to themselves the choice of these three thousand six hundred officers. With respect to the residue of the number, it was proposed to leave it with the supervisors of the counties, to nominate as many candidates for each town as there were magistrates to be appointed in them respectively: And that the judges of the courts of common pleas should in like manner nominate for each town; if they agreed, the officers on whom they so agreed, should be thus appointed, and so far only as they disagreed, the lists should be sent to the governor, from these lists it should be left to the executive to select. The list presented by the supervisors, would very generally be in accordance with the sentiments of the people, as it must be supposed that they would consult their wishes and views on the subject. And is this, asked Mr. V. B. giving chaff to the people?

We have, sir, continued he, challenged gentlemen to shew, why it would not

be as fit, and proper to elect the higher judicial officers, as magistrates for the towns; no answer had been given to this enquiry, because none could be given. It must be perfectly obvious, that every consideration that would be urged in favour of electing justices of the peace, would apply in favour of having the judges of the higher tribunals also elective; and that even fewer objections exist to having those courts selected in this way; this had not been mentioned as a threat, that a proposition of that nature would be made; but as an argument to shew the impropriety of having any judicial officers elected, in order to test the sincerity of some gentlemen's solicitude for the people. In this we are consistent throughout: the inconsistency was on the part of those who were for having the higher judicial officers appointed, and the justices of the peace elected.

We do not, sir, said Mr. V. B. deny the competency of the people to make a proper choice; this argument has been unfairly and untruly stated. Those who oppose the election of justices, do not do so because they have any distrust of the people. The objection to having them elected, did not flow from that coneideration; but was with respect to the officer elected. It was because the magistrate would of necessity be acquainted with all, who opposed and who supported him. This would more or less bias his mind in favour of those, to whom he owed his election. It would be giving the rich and powerful a great advantage over the poor; and even, if it did not, it would excite jealousy and suspicion of unfairness on his part; which in its operation, would be nearly as prejudicial to the public peace, as if real injustice was done. These were the reasons, which had led him, and others, to doubt the propriety of having magistrates elected. The gentleman from Columbia, however, has told us, that there can be no danger from a want of independence, or from the partiality of magistrates he says their conduct will be watched, and they will not dare to act improperly. Watched by whom? By those whom they intend to favour, and who will be able, and willing to screen them from harm, and support them against the efforts of injured and oppressed poverty, to procure redress!! But the defendant may call a jury if he has not confidence in the justice: a mighty boon, truly! Am I to tell the gentleman from Columbia, how little advantage a jury is to a party, if the court is against them? How, sir, is he to get his facts, on which he relies, before the jury? Is not the court the crucible through which they have to pass, before they get there? And does not daily experience prove, that in civil causes, the court can in almost every case, regulate the verdict of the jury, by the exclusive power they possess, to decide all questions of law? Again, we are told that where injustice is done by the magistrate, the party injured, may obtain redress by means of a certiorari! This was a reason, he said, he had hardly expected to have heard from that quarter: the gentleman from Columbia, well knew, that the remedy by certiorari, would not reach one in twenty cases where injustice had been suffered.

It is, said Mr. V. B. very desirable to restore peace and quiet to the community: he was willing to do all in his power to promote so worthy an object. But how was this to be done? Will the election of justices by the people, have a greater tendency to remove strife, than the project to have them selected in the manner proposed by the amendment he had submitted? He thought not.

The gentleman from Columbia, says, this nomination by the supervisors would create violence and strife in their elections, when it is known, that they were to present the candidates to be appointed. But if the election of those, who are merely to nominate, will create this violence and strife, he could not perceive why there should be less difficulty, when the officers themselves, were to be directly elected by the people. That they are important offices, the gentleman has himself told us; and he has also told us that their election will call to the polls, all the farmers, and men who have an interest in the due admintration of justice; and yet he would have us believe, that the election of magistrates will produce no strife or angry contests: This, said Mr. V. B. I cannot comprehend! It was generally supposed that the degree of warmth and strife at elections, was in proportion to the interest felt by the electors in the re

sult.

He would add one word in reply to the remarks of the honourable gentleman