MVB, Speech on the revisory power, 6 September 1821
Mr. Van Buren. I had flattered myself, Mr. Chairman, that the Convention would have adopted the revisory power proposed by the select committee, with the same unanimity with which they determined, on Tuesday, to expunge the third article of the constitution, and to separate the judiciary from the legislature. But in that expectation I have been disappointed. Notwithstanding the unanimous recommendation of the select committee, and the able manner in which it has been supported, a powerful opposition to it appears to exist. A proposition has been made by the gentleman from Dutchess (Mr. Livingston) which, from the respectability of the source from whence it emanates, the precedents on which it is founded, and the talents and character enlisted in its support, is entitled to the highest consideration. I shall, therefore, proceed to the discussion, with all the brevity which the importance of the subject will admit, and all the simplicity of which I am capable.
In the course of that discussion, the first question for our consideration, is, whether it is wise and proper that a restriction of any kind should be placed upon the legislative power? On that subject it would seem that little doubt could remain. That a check of some kind is necessary, is a principle that has received the sanction, and been confirmed by the experience, of ages. A large majority of the states in the union, in which, if the science of government be not better understood, its first principles are certainly more faithfully regarded than in any other country, have provided restrictions of this sort. In the constitutions of the freest governments in Europe, the same principle is adopted. It is conceded in both the propositions before the committee.
The one imposes the restriction by requiring the two-thirds of the legislature to pass a bill which may have been returned; and the other, by requiring not only a majority of the members present, but a majority of all the members elected. It would seem, therefore, that on the general principle that a restriction is proper, we are all agreed; and the question arises, is the amendment proposed by the gentleman from Dutchess more desirable, and better adapted to perform the office intended, than the proposition introduced by the committee? To arrive at a just conclusion on this subject, it will be necessary carefully to consider the design of such a check, and the advantages which are expected to result from it. Its object is, first, to guard against hasty and improvident legislation: but more especially, to protect the executive and judicial departments from legislative encroachments. With regard to the first of these objects—the prevention of hasty and improvident legislation—the system of every free government proceeds on the assumption that checks, for that purpose, are wise, salutary, and proper. Hence the division of all legislative bodies into distinct branches, each with an absolute negative upon the other. The talents, wisdom, and patriotism of the representatives could be thrown into one branch, and the public money saved by this procedure; still experience demonstrates that such a plan tends alike to the destruction of public liberty and private rights. They adopted it in Pennsylvania, and it is said to have received the approbation of the illustrious Franklin; but they found that one branch only, led to pernicious effects. The system endured but for a season; and the necessity of different branches of their government, to act as mutual checks upon each other, was perceived, and the conviction was followed by an alteration of their constitution. The first step, then, towards checking the wild career of legislation, is the organization of two branches of the legislature. Composed of different materials, they mutually watch over the proceedings of each other. And having the benefit of separate discussions, their measures receive a more thorough examination, which uniformly leads to more favourable results. But between these branches, as they are kindred bodies, it might sometimes happen that the same feelings and passions would prevail—feelings and passions which might lead to dangerous results. This rendered it necessary to establish a third branch, to revise the proceedings of the two. But as this revisory power has generally been placed in a small body, or a single hand, it is not vested with an absolute, but merely with a qualified, negative. And our experience has proved that this third provision against hasty and unadvised acts of the legislature, has been salutary and profitable. The people of this state have been in the habit of looking at the proceedings of the legislature thus constituted, and they have been accustomed to this revisory power. Their objections have never been that this revisory power existed, or that it was distinct from the legislature; but they do complain that it is placed in improper hands; in the hands of persons not directly responsible to the people, and whose duty forbids all connection with the legislature. I am one of those who fully believe in the force and efficacy of that objection.
The council of revision was disposed of by the vote of Tuesday, and I could have wished that all further discussion on the subject of its merits or demerits had been dispensed with; but a different course has been pursued. From the explanations of the chairman of the select committee, the public would infer that we voted for the abolition of the council of revision from feelings of delicacy and tenderness to the judiciary and to shield them from unjust calumny. Sir, my vote was not given from any such motive. I will not vote for the abolition of any article of the constitution out of kindness to any individual. I should be ashamed to have my vote go forth to my constituents upon any such grounds. The council of revision has not answered the purposes for which our fathers intended it. This is the ground and motive upon which my vote was given. I object to the council, as being composed of the judiciary, who are not directly responsible to the people. I object to it, because it inevitably connects the judiciary—those who, with pure hearts, and sound heads, should preside in the sanctuaries of justice, with the intrigues and collisions of party strife; because it tends to make our judges politicians, and because such has been its practical effect. I am warranted by facts in making this objection. If such had not been the case, I should not have voted for expunging the third article of the constitution.
I highly esteem the honourable gentleman from Oneida, (Judge Platt,) who yesterday thought it his duty to raise a discussion upon the merits of the council. I regret that he has done so.[Judge Platt rose and stated, that that part of the subject was distinctly introduced by the gentleman from Dutchess, (Mr. Livingston) and that he felt it his duty to reply. It was that gentleman who had given this direction to the debate.] Mr. Van Buren. I was not aware of that fact, but it in no sense changes the character of what I feel it my duty to say. No man on this floor is more averse to a discussion on that subject than I am; but since the example has been set, I shall proceed. I respect the members of the council of revision, and for their sakes, this debate should never have been introduced. It will become our duty to revise that part of our constitution relating to the judiciary, and it is of vital importance to its members, to preserve them free from prejudice.
Sir, have I not assumed the true ground which occasioned the unanimous vote of Tuesday, for separating the judiciary from the legislative department? It needs but a slight view to shew that the operations of the council have been such as I have stated. On this subject I will only call the attention of the committee to two instances. The first, is that to which the gentleman from Dutchess yesterday adverted. I ask the convention for a moment to recur to that lamentable occasion, when the high power of prorogation was exercised by the executive, to check the torrent of corruption, which had set in upon the legislature, and which proved the wisdom and necessity of some constitutional check. This proving ineffectual, every eye was turned to the council of revision, to arrest the progress of the measure about to be adopted. What was their course? The bill which had occasioned that strong exercise of power, was passed by the council, although there were not wanting in that council, men who were alive to the interests and the honour of the state; the language of the majority was, that the bill upon its face, contained no provision contrary to the constitution, and that the legislature were the judges of its expediency.
Pursue the subject farther. The scenes which passed within these walls, during the darkest period of the late war, cannot be forgotten. It is well known that the two branches of the legislature were divided; while in the one house we were exerting ourselves to provide for the defence of the country, the other house were preparing impeachments against the executive for appropriating money without law, for the defence of the state. But the effort was unavailing. An election intervened, and the people, with honourable fidelity to the best interests of their country, returned a legislature ready and willing to apply the public resources for the public defence. They did so. They passed a variety of acts, called for by the exigencies of our country. But from the council of revision were fulminated objections to the passage of those acts—objections which were industriously circulated throughout the state to foment the elements of faction. Beyond all doubt, at that moment, was produced the sentiment which has led to the unanimous vote to abolish the council. The legislature had exerted themselves in the public defence; and the object of these objections was to impress the public mind with a belief that their representatives were treading under foot the laws and constitution of their country. The public voice on that occasion was open and decided; and it has ever since continued to set in a current wide and deep against the council. In making these remarks, I disclaim all personal allusion to the author of those objections. I entertain for him the highest respect. As a judicial officer, he is entitled to great consideration, and I should esteem his loss from the situation which he fills, as a public calamity.
Mr. Van Buren again repeated his regret that this discussion had been called forth, as the constitution of our judiciary is to be reviewed. But he could not consent, in abolishing the council, to shed tears over its ruins, or pass an eulogy on its character. By doing this, and by the course of some gentlemen’s arguments, we are mourning over our own acts, and preparing the public to distrust our sincerity. We ourselves are undermining what we ourselves have done.
To return to the argument—That legislative bodies are subject to passion, and sometimes to improper influence, is not to be denied. Their acts are frequently so detrimental to the public interest, that the united voice of the people, calls for their repeal—a striking proof, if proof were necessary—that legislators are but men, subject to all the infirmities and frailties of our nature. The cases cited by the gentleman from Dutchess (Mr. Tallmadge) are strong and directly in point. They show, that the representatives of the people do sometimes err. They show also the necessity of preserving a controling power—And what is the consequence of placing such a power, upon the footing recommended, by the report of the committee? It may suspend for a time the operations of the legislature. It may prevent the passage of a bad law, but never can defeat the passage of a good one. If a good law be returned with objections, it will come before the people, they will pronounce upon it, and return representatives, who will insist upon its passage. If it be a bad one, the revisory power will be justified; delay, therefore, for the most part, will be the only consequence of the check, and that will be followed, by all the benefits of further discussion, and a fuller understanding of the subject. But the advantages of such a power, are not confined to its exercise. I concur with my honourable friend from Oneida (Judge Platt) as to its silent effect. The advantages arising from its silent and unseen operation, are doubtless greater than those arising from an exercise of the power. A bare majority is not always an indication of honesty, or that a favourite measure is correct. Great weight of character and powerful talents are often embodied in the minority. Many laws pass by a bare majority; but when there is a qualified negative upon the acts of the legislature, the gentlemen of the majority, aware of this power, may be restrained from passing many improper bills. I have no doubt but considerations of this kind have influenced the conduct of legislators for years past. In every point of view, whether from our own experience, or the experience of other states, we discover this liability of legislators to act hastily and inconsiderately. The judgments of most reflecting men unite in the expediency of some check like that proposed by the committee; and when it can be productive of no other effect than to suspend the passage of a bill, and thereby enable the people to express their will upon the subject, it is to me, sir, matter of surprise, that so much hostility should be shewn to the report of the committee.
But, sir, the prevention of party legislation is not the only, nor the most important reason, why we are disposed to give this power to the executive. Our government is divided into separate and distinct departments—the executive, judicial, and legislative. And it is indispensable to the preservation of the system that each of these departments should be preserved in its proper sphere from the encroachments of the others. It is objected, however, to vesting the power in the hands of a single individual, on account of the liability of man to the abuse of power. But an instance of the abuse of power thus confided, has never existed, where it did not defeat the very object for which it was abused.
Distinct branches are not only necessary to the existence of government, but when you have prescribed them, it is necessary that you should make them in a great degree, independent of each other—No government can be so formed as to make them entirely separate; but it has been the study of the wisest and best men, to invent a plan, by which they might be rendered as independent of each other as the nature of government would admit. The legislative department is by far the strongest, and is constantly inclined to encroach upon the weaker branches of government, and upon individual rights. This arises from a variety of causes—In the first place, the powers of that department are more extensive and undefinable than those of any other, which gives its members an exalted idea of their superiority. They are the representatives of the people, from which circumstance, they think they possess, and of right ought to possess, all the powers of the people. This is natural and it is easy to imagine the consequences that may follow.
This is not all—they hold the purse strings of the state; and every member of all the branches of the government is dependent on them for his subsistence. You have been told, and correctly told, that those who feed men, and enjoy the privilege of dispensing the public bounty, will in a greater or less degree influence and control them. Is it unreasonable, or improbable, to suppose, that power, thus constituted, should have a tendency to exert itself, for purposes not congenial with the true interests of the other branches of government? The gentleman from Dutchess (Mr. Tallmadge,) referred to some striking illustrations of the conduct of legislative bodies, in this particular, which show that power thus vested is too frequently abused. The case of Pennsylvania is entitled to our serious consideration. In 1783 they provided a board of censors to examine into the proceedings of their legislature. Those censors, though some of them had taken part in the proceedings of that body for years, pointed out and reported a long list of legislative infractions of the constitution. In 1790 a Convention was called, which formed a new constitution. That body, after full and deliberate discussion, inserted in their constitution that very article which has been reported as worthy of a place in ours. That Convention was composed of the wisest and best men in the state, many of whom assisted in forming the constitution of the United States. It contained Mifflin, M’Kean, Addison, Gallatin, and a long list of other statesmen, distinguished for their talents, wisdom, and experience. The people of Pennsylvania, at the adoption of their first constitution, did not believe in the principle for which I am contending; but experience soon taught them that they were wrong. The check proposed in 1790 was adopted, and the legislature has since been kept in the line of their duty. In my view, the conduct of Pennsylvania affords the strongest testimony in favour of adopting the course recommended by the committee; and I cannot but believe, that if the proposition of the gentleman from Dutchess (Mr. Livingston) should prevail, New-York would experience the same evils, and be compelled to resort to the same measures, to get rid of the experiment.
The gentleman from Dutchess (Mr. L.) has referred us to Virginia, and descanted on the number, wisdom, and integrity of their statesmen. Mr. Van Buren would assent cheerfully to all he had said upon that point. In that number was included the political father of the state, Mr. Jefferson. No man had more experience in the government of that state; no one had more fearlessly pointed out the defects of their constitution. Unfortunately, it imposes no check upon the legislative power; their governor is elected by the legislature, and of course, is but a creature of that body. And, sir, (said Mr. Van Buren) at this moment it is a source of regret to the best statesmen of Virginia, that they have no check. Mr. Jefferson, in his Notes on Virginia, expresses himself thus:—
“All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectively checked and restrained by others. For this reason, that convention which passed the ordinance of government, had its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assume executive and judiciary powers, no opposition is likely to be made; nor if made can be effectual; because in that case, they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances decided rights which should have been left to judiciary controversy; and the direction of the executive, during the whole time of their sesison, is becoming habitual and familiar.”
Here, sir, we have the opinion and the complaints of this great man. The legislature had usurped the power of all the departments. The people had declared that those departments should be independent, but they deceived themselves by trusting to parchment regulations. And the gentleman from Dutchess (Mr. Livingston) wishes us to go on, and in the same manner invest the legislature with all the powers of the people.
But this is not all. That there may be no mistake in the views of this distinguished man, I think it proper to state, that in 1783, it was contemplated to call a Convention to amend their constitution. Mr. Jefferson, with paternal solicitude for the interests of the state, framed a constitution, to be submitted to that body. It may be found in the appendix to the Notes on Virginia. It contains a provision, declaring that the governor, two councillors of state, and a judge of each of the superior courts, should be a council to revise all bills passed by the legislature, and that a bill when returned by the council should not become a law unless two thirds of each house should concur in its passage. Here, then, we have his deliberate opinion, that an efficient check is necessary upon the legislative power. And I have no doubt that should there ever be a Convention in Virginia to revise their constitution, such a provision would be one of the first to be adopted. But it is undeniably true, and so admitted by Mr. Jefferson, that Virginia is emphatically the land of steady habits, and although there are many defects acknowledged to exist in their constitution, still their reluctance to introduce a change, has hitherto prevented the call of a Convention.
The gentleman from Westchester (Mr. Jay) has presented a long list of instances where the legislature have encroached upon the executive, by concurrent resolutions; a striking proof of the truth of my remarks. And, sir, if you provide no check, the legislature can go on to strip the executive of all his power. Then is it not necessary, for the well being of government, to vest a salutary check in some other department? A contrary doctrine, I am satisfied, is dangerous and absurd. In the constitution of the United States, and in several of the other states, you have a provision precisely similar to that for which we are now contending. Although amendments to the federal constitution have been proposed from almost every part of the union, still against that provision we have never heard a murmur. That provision was avowedly copied from the constitution of Massachusetts, where its utility has never been questioned. Maine lived under it for nearly forty years, and on being separated into an independent state, has adopted the same provision. The late Convention in Massachusetts affords one of the strongest evidences that a patriotic people can give, in favour of this provision. This Convention was composed of their wisest and best men, selected without reference to party, and embracing almost the whole body of the talents of that state. They were two months in session, and in the course of all their debates, not a word of complaint was uttered against this part of the constitution.
Sir, such is the superior force and influence of legislative power—such is the reverence and regard with which it is looked up to, that no man in the community will have the temerity, on ordinary occasions, to resist its acts, or check its proceedings. I cannot illustrate this position more strongly than by a reference to the constitution of England. There the executive is a branch of the legislature, and has an absolute negative. Surrounded as he is with prerogative, and placed far beyond the reach of the people, yet since the year 1692, no objection has been made by the king of Great Britain to any bill presented for his approbation. Rather than produce the excitement and irritation which, even there, would result from the rejection of a bill passed by the parliament, he has resorted to means which have degraded the government, and dishonoured the nation, to prevent the passage of bills which he should feel it his duty to reject. In the declaration of independence, in the catalogue of wrongs under which our fathers had been suffering, one of the most prominent was, that the king had exercised his prerogative, and had refused his sanction to salutary laws. Gentlemen may therefore rest satisfied, that very little danger is to be apprehended on this subject. There is, besides, a proposition to reduce the term of service of the governor, from three years to one. Is it possible, then, that when thus made immediately responsible to the people, there can exist any well founded causes of alarm?
I hope, sir, we shall adopt the report of the committee, for these, and many other reasons which I shall not tire the patience of the committee by detailing. It is a common remark, that in alterations in government, people are apt to go from one extreme to the other. And, sir, are not gentlemen now going upon extremes? We have abolished the council of revision, and weakened the revisory power, and by the amendment offered by the gentleman from Dutchess, (Mr. Livingston) we destroy it altogether. True, the governor can return a bill with his objections. But what will it avail? A bare majority can pass the bill notwithstanding, and as his reasons will probably be those which the legislature have already considered, can it be believed, sir, that his recommendation will have any effect? Can it be supposed for a moment, that the members of the legislature would to-day record their names on the journals in one way, and to-morrow record them in a different way? And will not the governor be restrained from exercising that power, when he knows it is vain and idle?
We have heretofore had the revisory power in the hands of the judiciary and executive united; and now, because the people call for its separation, shall we destroy it altogether? Shall we go the other extreme, and have no restriction whatever? I cannot perceive the benefits to result from such a course; I am persuaded of its impropriety. We have decided on abolishing the council of revision, in a manner that will redound to our credit; and I flattered myself from the promptness with which that decision was made, that the passage of the amendment would have followed without opposition. Let us not agitate and excite the fears of the community. They have expected an alteration of the legislative check, but not an abandonment of the principle. A portion of the people of this state, believe the council of revision to have been wisely instituted, and of great practical utility. There are others, who think a change is necessary, and that the judiciary should have no connection with the other branches of government. Adopt the proposition of the gentleman from Dutchess, and what will be the consequence? You alarm those two great bodies of our citizens, and hazard the rejection of your proceedings. If we would inspire the people with confidence in our acts—if we would ensure their approbation—if we would effect those wise and salutary amendments which the public voice and the public interest demand, we should beware of vibrating to extremes, and of introducing an innovation so hazardous and unexpected, as that which we are discussing.