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MVB, Speech on the appointing power, 1 October 1821

Mr. Van Buren, (chairman of the committee upon this subject) gave a general view of the reasons which had influenced the select committee in adopting the report now under consideration. The subject was one surrounded with numerous difficulties; some of which were intrinsic and not to be avoided by any course that could be devised. They had framed a system, which, after much reflection, appeared to them to be liable to the least and fewest objections.

The first question which presented itself for the consideration of the committee, was the propriety of abolishing the Council of Appointment. On this subject there was no difficulty; the same unanimity prevailed among the members of the select committee in this respect, as in the vote which had just passed in committee of the whole, for the abolition of this power; and in this, they had only acted in accordance with public opinion, by which this feature of the old constitution had been condemned. He would not, he said, detain the committee by giving any reasons for this part of the report; after that unanimous vote just given, this would be a wanton waste of time.

The next and more important enquiry, was, with respect to what should be substituted in its stead; and here, as was to be expected, a diversity of sentiment prevailed, and many difficulties presented themselves. For the purpose, however, of lessening, as far as was practicable, the objections that would necessarily exist to any general appointing power, wherever placed, or however constituted, they had felt the propriety of reducing the patronage attached to it; and they had, with that view, separated from it the great mass of the officers of the state. Many of them, they had sent to be appointed, or elected, in the several counties or towns, and others they had left to the disposition of the legislature, to provide for their appointment or election, as experience might prove to be most advisable.

Of the 8287 military officers, they had recommended that all except 78, consisting of major generals, brigadier generals, and the adjutant general, should be elected by the privates and officers of the militia.

Of the 6663 civil officers, now appointed by the Council of Appointment, they recommend that 3643 should be appointed or elected as the legislature should direct—these were auctioneers, masters in chancery, public notaries, inspectors of turnpike roads, commissioners to acknowledge deeds, examiners in chancery, inspectors for commercial purposes, and some other officers. They also recommended that the clerks of counties, and district attorneys, should be appointed by the courts of common pleas, in the several counties. And that the mayors and clerks, of all the cities except New-York, should be appointed by the common council of the respective cities.  Thus far, no great diversity of sentiment had existed among the members of the committee, and there had been general concurrence of opinion, on all the parts of the report already noticed.

This, together with the justices of the peace, which a majority of the committee had recommended to be elected, left only 453 officers for whose appointment, or election, it was necessary to provide.

In addition to the curtailment of the appointing power, to be retained at the seat of government; the committee, under a full conviction that much of the complaint against the existing Council of Appointment, had arisen from the circumstance of the concentration of power in one body, had thought it wise even here to distribute them; by giving the appointment of the heads of the different departments of this state to the legislature; they being officers entrusted with the public property, whose duties more immediately connected them with that body.

Still, some officers were left; small in number, it was true, but of considerable interest and importance. They were unanimously of opinion, that it would be improper for some of these officers to be elected by the people, and a majority of them supposed that none of them ought to be so elected.

It became necessary, therefore, to provide for their appointment; and to establish what may be called a general appointing power; though limited in the exercise of its functions, to the bestowment of a small number of offices.

Four plans presented themselves to the consideration of the committee.

1st. To create a new Council of Appointment, to be elected by the people.

2nd. To vest the power of Appointment in the Executive solely.

3rd. To give it to the Legislature. Or,

4th. To the Governor, by and with the advice and consent of the Senate.

These respective modes had been, he said, discussed and attentively considered by them. The project of electing a council, was thought liable to most of the objections which had been urged against the old council. There would be a want of responsibility, as now. And it was apprehended that their election would create a great excitement. The incumbents in office, and those desirous of obtaining offices, together with their respective friends, would, of course, feel a deep interest in the election of this council; and this would, of course, pervade every part of the state. Or, if such a council were to be chosen by the legislature, not from among the members of either house, though by being separated entirely from the business of legislation, would remove a part of the objections existing with respect to the present council. It was believed it would, notwithstanding, be attended with serious objections. It would necessarily produce some objection in the legislature, if they met at a different time or in a different place: yet the objection of irresponsibility, would remain in full force.

The Convention had already increased the powers of the executive, and the committee were unwilling to add to it the patronage of the sole power of appointment to office. Besides their own conviction that this was not advisable, they were perfectly confident that public opinion was opposed to such a regulation.

Nor were they satisfied that it would be proper to vest this power in the two branches of the legislature. They had already recommended that the appointment of some officers should be made by them, for reasons he had already explained; and these were all they thought ought to be appointed in this way.—In some of our sister states, this mode of appointment obtained, and had been found to operate beneficially; they were, however, differently circumstanced from us, having a less numerous population, and a smaller extent of territory. They had considered a connexion between the legislative and appointing power, as at best objectionable; the improper influence that such connexion was apt to have on legislation, was fully appreciated by them; and had induced them to recommend a mode, which, though not free from this objection, yet lessened the difficulty, by limiting the connexion to one branch only.

And this brought them to the fourth, and last plan mentioned, to wit: vesting the power in the governor and senate. This, he believed, they had unanimously considered as unaccompanied with the fewest objections; he might possibly be mistaken, but he was confident they were unanimously in favour of this project in the first instance.

The committee, he said, were fully aware of the objection to this mode, arising from the unfavourable effect which the possession of the power of appointment was calculated to produce upon the senate as a branch of the legislature; but more particularly from its being a court of the last resort. But they also knew that no plan could be adopted which would be free from objections of some kind—they knew that it was the fate of all human institutions to be imperfect, and they were therefore more content with the system they had recommended, than they otherwise would have been. They found, too, that they could not exempt the general appointing power from this objection, unless they gave it wholly to the governor, or to him in connexion with a council to be elected by the people; the former mode they had no reason to believe would be acceptable to any portion of the Convention; and the latter, they supposed, would not, in all probability, be relished by their constituents much better than the retaining of the old council.

They had not, he said, been able to derive any material benefit from an examination of the practice of other states. They had examined all their constitutions, and found that they varied greatly from each other. In Pennsylvania and Delaware, the power of appointment to office is vested in the governor singly. In Maine, Massachusetts, Maryland, North-Carolina and Virginia, the governor, and a council similar to ours. In Connecticut, Rhode-Island, Vermont, New-Jersey, South-Carolina, Georgia, Ohio, Tennessee, Mississippi, and Alabama, in the legislature. New-Hampshire was the only state in which they had a council chosen by the people. In Kentucky, Louisiana, Indiana, Illinois, and Missouri, the power is vested in the governor and senate as is proposed by the report.

The fact that the constitutions which had been recently formed, and might therefore be in some degree regarded as the most recent expression of the sense of a portion of the American people, were in unison with the plan they had reported, and calculated in a measure to recommend it. And so, likewise, was it, that a similar provision was contained in the constitution of the United States. But here, candour required the acknowledgment that there was an important difference between our state senate, and that of the Union—as the first was also a court of dernier resort; and the latter possessed no judicial power whatever.

Those considerations, together with the impracticability of devising any system, which in their opinion would be better, had induced them to recommend the constituting of the governor and senate the general appointing power. And they had given the exclusive right of nomination to the governor; this they thought very necessary, and the only way in which that would fix a responsibility for the appointments to be made; and because they were all convinced that the alteration which had been made to the constitution in 1801, had proved injurious, and such they firmly believed, was now the opinion of the people of this state.

He was not very sanguine that they had adopted the best, and wisest system that could be devised. It was very possible they might be mistaken in their views.

They had given to the Convention the result of their deliberations, to be disposed of as they should think proper. It would be arrogance in them to presume that their judgment on this subject was infallible, or that their report was free from great imperfection—he would say for himself, and from the good sense and good feeling which had characterised the conduct of the committee, he knew he could say for them also, that if any plan should be proposed by others, which would better subserve the public interest, it would receive their cheerful and sincere support.

Having, then, came to the determination to place the general appointing power in the governor, by and with the advice and consent of the senate; the next question to be settled was, what appointments should be conferred upon it.

The committee, he said, had all agreed, that the highest military officers should receive their appointments from this source, though some were of the opinion that these might safely be entrusted with the executive alone, as commander in chief. They had all united in the opinion, that all judicial officers, except surrogates and justices of the peace, ought also to be appointed in this way; two members of the committee were in favour of having the surrogates elected by the people.

With respect to that section of the report, which provides for the election of justices of the peace by the people, a great contrariety of sentiment had existed among them. Neither that section, nor the next, which provided for the appointment of certain officers in the city of New-York, had received his assent.

He had, at every stage of the discussions before the committee, been decidedly opposed to the election of justices; and it had been to him a source of sincere regret, that in that respect, he had been overruled by the committee. Only four of the committee had agreed to the section making justices elective, and one of that number had consented to it, rather for the sake of agreeing upon something to report, than from a conviction of the propriety of the mode recommended. He would, he said, here observe, that the two sections just mentioned were the only parts of the report, of any moment, from which he had dissented. A minority of the committee, however, thought they had not gone far enough in curtailing the patronage of the general appointing power, and were for including sheriffs and surrogates; in this he had differed from them. His reasons, therefore, it would be more proper for him to give when these respective subjects should come under discussion in that committee. He would now content himself with stating, that the majority of the select committee, had not, on the question respecting sheriffs and surrogates, nor on that relating to justices of the peace, any strong personal predilections. They feel themselves entirely open to conviction on these, and on all other points, which might be raised respecting their report; and if, on a fair and deliberate examination, it should be thought that it would be better to have the sheriffs and surrogates elected by the people, they would cheerfully acquiesce in that decision.

Having now, in a very brief manner, detailed the conduct and views of the select committee, with respect to the appointment and election of officers, he would next submit a few remarks on the subject of the tenure and duration of the several offices. The select committee, he said, had supposed that it would be well to give the militia themselves, the power of electing their officers—this course was pursued in several of the states, and it was understood, had proved beneficial. But the nature of the power to be exercised by these officers, and the necessity of enforcing discipline, and preserving a due subordination in the privates, would require that they should, when once elected, be placed beyond their further control. They thought moreover, that there was something peculiarly improper in subjecting the commissions of militia officers, in any degree, to the fluctuations of party; and they had, therefore, recommended, that they should not be removed except by a court martial, or by the senate, on the recommendation of the governor, and even then, that the governor should state the reasons for requesting the removals.

The committee were also of the opinion, that it was injurious to a due and regular administration of justice, that judicial officers, who did not hold during good behaviour, should be at all times subject to removal at pleasure and without cause; and as had hitherto been the practice, to be changed with every fluctuation of party; this instability in the administration of justice, was calculated to do permanent and serious injury to the best interests of the state. They believe they have laid the axe to the root of this evil, by rendering it necessary, that no removals should take place but for causes publicly assigned, and this they believe, would be an effectual check, to prevent their being made on mere party grounds. It would not, in their opinion, answer to go farther than this; for if they required a regular trial on all complaints, the whole time of the senate would be consumed with these investigations.

With respect to the officers, to be appointed by the legislature, and the clerks of courts, they had thought, that they might with safety, be left to be removable at the pleasure of those from whom they received their appointments.

I have now, added Mr. Van Buren, given a succinct account of the reasonings, and inducements, which governed the select committee, in making the report, they have presented to the Convention; the subject had occupied much of their serious attention, and deliberation, and all had but served to convince them, of the many and great difficulties, with which it was incumbered; and had also prepared them to look for, and expect, a great difference of opinion, among the members of the Convention, with respect to the several parts of their report. But as they were not by any means, wedded to the system they had presented, and entertaining a hope, that the wisdom of the Convention, would be able to devise something, in part, at least, less objectionable, they had endeavoured to keep their to keep their own minds, entirely open for the adoption of any alteration, or modification, which might be offered, and which should appear to them, to be better calculated to advance the public interest.

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Source: Nathaniel Carter and William L. Stone, Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New-York: Containing All the Official Documents . . . (1821)
Collection: N/A
Series: Series 3 (17 February 1815-2 December 1821)