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such clause in our constitution; and the governor is left entirely dependent on the legislature for his salary.

He should therefore vote for this proposition under the express reservation, that the amendment shall be accompanied with a provision hereafter, that the governor of this state shall be placed in a situation, whereby he shall be rendered so far independent of the legislature, as not to depend on their will for his daily bread; since such a state of dependence might render him subservient to their wishes.

He was sensible that there were many forcible reasons, why the judicial should not interfere with the legislative department. It was a point which had often been urged by enlightened writers on constitutions of civil government. Without going into a consideration of these reasons, he was willing to vote for the resolution with an understanding, that such a provision as he had mentioned, should be inserted in the constitution.

GEN. ROOT called for the ayes and noes on the question of adopting the re

solution.

MR. VAN BUREN. There will be many questions which will probably passnearly unanimously. It will therefore be proper to have the ayes and noes taken, that the names of the members may be recorded. He therefore would second the call.

MR. FAIRLIE thought the amendment proposed by the committee ought first to be considered. Should that be adopted, it would then be proper to take up the resolution for abolishing the third article of the constitution. If this committee shall not agree to the amendment proposed, or any other, then we shall have abolished the third article of the constitution without having a substitute. The question on the resolution was then taken by ayes and noes, and it was adopted, (with Mr. Jay's amendment) unanimously; 121 members being pre

sent.

The amendment proposed by the committee was then again read.
MR. WHEELER moved that the committee rise and report.

MR. VAN BUREN. If any proposition by way of amendment or substitute is to be offered, it had better be done in committee of the whole. He was not aware that any was to be offered. He hoped, however, that the committee would not

rise.

COL. YOUNG moved to amend the report of the committee, by striking out of the two last lines the words, "after the expiration of the said ten days." They were tautological. Carried.

MR. JAY, after a few remarks, in which he stated that there was a provision of the kind in the constitution of the United States, moved to add the following by way of amendment, to the substitute for the third article proposed by the committee:

"And every order, resolution or vote, to which the concurrence of the senate and assembly may be necessary, (except on a question of adjournment) shall be presented to the governor, and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of assembly, according to the rules and limitations prescribed in the case of a bill."

MR. JAY wished it to lie on the table for consideration.

GEN. TALLMADGE suggested a verbal alteration, which was assented to by Mr. Jay.

COL. YOUNG hoped that the proposed amendment would not be adopted, bccause it would embarrass the proceedings of the legislature. He stated several inconveniencies which would in his opinion result from having every joint resolution of the two branches of the legislature submitted to the executive.

CHIEF JUSTICE SPENCER did not believe the amendment necessary. A joint resolution is here never considered as a law. Mr. S. pointed out the difference between the cases, and the inapplicability of the provision in the constitution of the United States. It might be well to have a provision in the constitution, declaring that no money should be drawn from the treasury on the authority of

a resolution. He imagined that the gentleman, when he considered the difference between the United States' government, and the government of this state, would be willing to withdraw his motion.

MR. SHARPE really hoped that the principle contained in the resolution offered by the gentleman from Westchester (Mr. Jay) would not be established. It will greatly embarrass the proceedings of the legislature. Such a provision might be well in the constitution of the United States, but would have a bad effect here.

MR. TOMPKINS opposed the amendment as being wholly unnecessary. He considered that the remarks of the gentleman from Albany (Mr. Spencer) were perfectly correct. These joint resolutions are never considered as having the efficacy of laws; and he had never known any money drawn from the treasury on a joint resolution. But the legislature had on some occasions, voted an appropriation on some emergency, with a pledge that it would afterwards be provided for in some proper bill.

CHIEF JUSTICE SPENCER thought there had been some instances in which money had been appropriated and drawn from the treasury by a joint resolution only.

MR. VAN BUREN spoke a few words, and adverted to the difference between the general government, and that of this state, in their respective modes of legislation. He had before opposed the motion to rise and report; but as this matter required consideration, he would now second that motion.

MR. P. R. LIVINGSTON rose to offer an amendment to the report presented. by the chairman of the committee, for abolishing the third section of the constitution. We have by an unexampled degree of unanimity, determined that we would expunge that article of the constitution. It will be the object of this Convention, then, to adopt a substitute for that article, and to make it as wise and as wholesome as it is possible for the intellect of this body to do. It will be agreed on all hands, that there must be a check somewhere; and the chairman of the committee has reported, that it was the sense of that committee, that it should be reposed in the executive of the state. It will be observed by that report, that every bill which shall have passed both branches of the legislature, shall be sent to the executive. And should he put his veto upon it, and send it back, it is lost, unless two thirds of that branch where it originated, shall pass it, his objections to the contrary notwithstanding. The amendment which he should have the honour of submitting, will go to diminish that power. His object was not to interfere with the proposition to give the veto to the executive; but to provide that in the event of the bill coming back with his objections, it shall become a law if a majority of the house upon reconsideration, shall so determine. He would not at this time assign the reasons, but present it for the consideration of the Convention; and it would, he said, undoubtedly receive that attention, which so important an amendment deserves.

Mr. L. then submitted his proposition, as follows: Eleventh line, strike out the words "two thirds of the members present shall agree to pass the bill," and insert in licu thereof the following: "a majority of all the members elected to that house." Also, in the 15th line, strike out the words "two thirds of the members present," and insert in lieu thereof the following: "a majority of all the members elected to that house."

MR. TOMPKINS questioned whether the proposition of Mr. Livingston was in order. An amendment has been offered, and an amendment to that amendment, which must be determined before any new proposition can be admitted. MR. SHARPE said he understood the gentleman from Westchester (Mr. Jay) to say that he wished his motion to lie on the table. Of course the gentleman from Dutchess (Mr. Livingston) was in order.

MR. TOMPKINS repeated his impressions upon the question of order.

MR. SHARPE said he understood that the reason the committee did not rise and report, was, that various propositions might be offered, in order that gentlemen of the committee might have them to reflect upon. If that be the sense of the Convention, he would be glad to receive as many as might be offered.

No vote was taken on the question of order; the amendment of Mr. Livingston, (which had not before been read) was received, and the committee of the. whole rose, and reported progress.

Some desultory debate arose upon a resolution of Mr. Wendover, that when in committee of the whole, the chairman of the committee should occupy the seat of the President. Mr. W. thought the seat of the chairman too low. He could not be heard in the part of the house where Mr. W. sat. His motion was lost.

MR. VAN BUREN, after a few remarks, introduced the following resolution:

Resolved, That so much of the constitution as relates to the tenure of the office of chancellor, the chief justice, justices of the supreme court, and chief or first judge of the courts of common pleas, be referred to the committee on the judi ciary department; and that the committee on the appointing power be discharged from the consideration of the same.

Some considerable discussion, not of a very connected nature, took place upon this resolution, in which Messrs. Van Buren, Young, Munro, Tompkins, Spencer, and J. Sutherland, participated.

COL. YOUNG strenuously opposed the resolution. Among many other re marks, he said, he did not care how many propositions, upon various subjects, should be made. He remarked that it was not to be expected that the propositions of members, or the committees, would perfectly harmonize. We must not in this body look for the wisdom of Solomon. The work could not be like that of the temple. Where the sound of the hammer was not heard. The materials of the fabric must be adjusted, and the sound of the hammer must be heard.

MR. TOMPKINS said it appeared to him that the proposition of the gentleman from Otsego, (Mr. Van Buren,) was a very correct one. If this course be taken, we shall have every proposition before us in a distinct shape. Committees will understand to what bounds they are limited-there will consequently be no confusion-and the business of the convention will be transacted with greater expedition.

Some explanations were made between Messrs. Munro and Van Buren; and the resolution was adopted, and

The Convention adjourned.

WEDNESDAY, SEPTEMBER 5, 1821. Prayer by the Rev. Mr. LACEY. The President took the chair at 11 o'clock, and the minutes of yesterday were read and approved.

THE COUNCIL OF REVISION.

On motion of Mr. Sharpe, the Convention resolved itself into a committee of the whole, on the unfinished business of yesterday.

MR. HUNTINGTON wishing to be excused, Mr. Sheldon was called to the chair.

MR. JAY made a few remarks upon the resolution which he had submitted yesterday, and answered the objections which had been made, viz: that joint resolutions had never been considered as having the efficacy of laws; and that it would be inconvenient for the legislature to be compelled to obtain the sanc tion of the executive to all joint resolutions. He had no doubt that it was the theory of our government, that resolutions should never have the efficacy of law: but on examination he found that the practice had been different: The journals of the legislature abound with resolutions which have had the effect of laws. There were at least twenty cases last winter of this kind. He found resolutions directing the comptroller to suspend the sale of lands for taxes→→ directing the adjutant general to distribute a publication relative to the discipline of the militia through the state, at the public expense, &c. &c. And in 1814, he found that a joint resolution directed the treasurer to pay over to certain gentlemen appointed Commissioners for that purpose, $50,000 for the

relief of the Niagara sufferers. Several other cases were mentioned. In res gard to the question of the inconvenience, Mr. Jay cited the practice in other states-in Massachusetts, where the principle for which he contended was established in the year 1780, and had prevailed ever since; of New-Hamps shire, Maine, Louisiana, Indiana, and other states, as well as in the federal constitution.

He remarked, however, that he had consulted gentlemen of more experience than himself on the subject, and whose opinions he was disposed to respect. They were of opinion that it would be more correct to introduce the subject as a distinct provision of the Constitution. Without abandoning his object, therefore, he begged leave to withdraw the amendment, with the view of presenting the same hereafter in a different shape. Leave was granted, and the amendment withdrawn.

The amendment offered by Mr. P. R. Livingston was next in order.

MR. LIVINGSTON Tose with an embarrassment and diffidence unusual to him. When he reflected, that the amendment submitted to the consideration of this Convention, had received the unanimous approbation of the select committee, be should approach it with awe, were it not that its consummation would rest with that power which created this Convention. It would be necessary to draw the attention of this body to that period of time, when our constitution was formed. We all know it was adopted in an hour of extreme peril, amidst the noise of musketry and the thunder of cannon; and is it to be wondered at, that their deliberations, under such circumstances, were in some measure erroneous? And is it not a matter of wonder under such circumstances, that you have a constitution, containing so much merit and so much wisdom, as the one under which we now live? At that time it was necessary to give that negative power, which is found in the third article of the constitution. At that time the southern district of your state, which contained its greatest weight of population, was possessed by the enemy. Your northern frontier was literally laid waste by the savage. You then gave a power to the Convention, which you `never would give under the present circumstances. What they did at that period was binding on the people-what you do now the people are to pass up

on.

There was in this state more disaffection, than in any other part of the union. Every thing depended on your executive: and you then had a patriot to direct the destinies of the commonwealth. You imposed the most implicit confidence in bis integrity, his courage, and his patriotism. The framers of the constitution were afraid that the legislature might be destitute of patriotism, and encroach upon the liberties of the people. This state of things no longer exists. Then you had nothing to apprehend from the man, who was the governor of the state. He was fighting with a rope round his neck. Had the revolution terminated differently from what it did, he would have been made one of the first examples. Therefore this power was at that time wisely rested. It is to be wondered that they did not require a greater majority in the Legislature to balance this check.

It is a fact not to be disguised, that a towering majority of this Convention represent the interests, feelings, and views of the friends of democratic government. In a republican government it will not be denied that all the power of the legislature is vested in, and emanates from, the people. If that maxim be not controverted, he was in favour of expunging every article in the constitution, which contravenes that great principle. He should propose a substitute in conformity with that principle. If the third article of the constitution, which relates to the council of revision, had been administered with integrity and wisdom, the amendment now proposed would never have been suggested. It would have excited the admiration of every jurist, and that feature would have been the pride of the constitution itself. If the construction of that great patriot and statesinan, now living, and who once presided over the destinies of the state, had been followed, this amendment would never have been brought into contemplation. He gave the wise construction to it. When a law had passed both branches of the legislature, and was presented to the council, the only inquiry was, is it in violation of constitutional rights. If he found no defect in the constitutionality of the law, he did not extend his inquiries to its expedien

cy, or its tendency to promote the public good; but he left that to the judgment, good sense, and patriotism, which have ever characterized the representatives of the people. He declared that the two branches of the legislature ought to be the judges of what conduced to the public good. But the moment they began to assume the power of judging as to the expediency of laws, the people became alarmed.

The wisdom of the remark cannot be questioned, that from experience we derive every thing, and from the want of it, we are exposed to every thingThen let me for a moment turn the attention of the Convention to our sister states. You will find that seven states, viz. Maine, New-Hampshire, Massachusetts, Pennsylvania, Georgia, Louisiana, and Mississippi, have vested the veto in the hands of the governor, and in the event of a bill being returned, they require it to be passed by a majority of two thirds of each branch of the legislature. In the states of Rhode-Island, New-Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Ohio, no veto is provided by their constitutions. In Connecticut, Kentucky, Tennessee, Indiana, Missouri, and Alabama, the principle for which he was contending had been adopted, and the veto was placed in the hands of the governor; but if he objected, a majority of all the members elected, could pass the bill notwithstanding. In Illinois, the veto was lodged with the governor and council; but a majority of the legislature could nevertheless pass any bill that might be sent back with objections. In Vermont, the veto is placed in the hands of the governor and council; and if objected to, a bill must lie over for consideration one year. And in New-York, if the governor and council of revision object to a bill, we require a majority of two thirds of both houses to pass it. What is the result from this exposition? Why, several of the states have no negative at all. Eight or nine only require a majority to confirm, in case of a negative.

How does it stand connected with the experience of this state? Might he be permitted to invite the attention of the convention to a sister state. He did it with a view to show, that more able statesmen, greater civilians, and more profound jurists, are not to be found in any state in the union-he alluded to the state of Virginia. Yet in that state, they thought it necessary to adopt, and had adopted the great principle for which he contended. It was the great platform, which he should never leave, that all power emanates from the people. He was placed here in an awkward dilemma, as a committee had made a report, without assigning any reasons which led them to such a result. In his argument he must anticipate, and he presumed one of the reasons was, that it was wise to lodge the revisory power somewhere, as it had been urged that acts-of violence would be committed by the legislature. This was presuming what never ought to be presumed, that the legislature would deliberately pass a law against the public interest, and in open violation of public or private rights. It had been asked where was the security against an infraction of the rights and liberties of the people? He answered, the shield between the rights of citizens and the encroachments of legislative power, was an independent and upright judiciary. Where you have on the bench talents, wisdom, and integrity, there could be no act of the legislature in violation of the constitution, without the intervention of this department. Could the life of an individual be put in jeop ardy without a jury of his country? The judiciary, therefore, furnished ample security, whenever there was a violation of the great charter of their rights, which was paramount to all law. If the judicial department but do their duty, all laws in violation of the constitution are but as blank paper.

Is there no danger to be apprehended from the chief magistrate, if you retain that article of the constitution, which permits him to hold his office for three years? And if the appointing power should so be disposed of, that he should have the right of nominations to the senate, you give him a vast patronage, which carries with it an overwhelming influence. He asked the convention whether it would not be in the power of the chief magistrate, where the state of things might make it necessary to subserve his purposes, to prevent the passage of any law. The senate, he said, consisted of thirty-two members, and it will require twenty-two members in that branch, to pass a bill which may have received his negative.-When you come into the other branch, it will require more than eighty members.

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