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and, on the other, to be more cautious in granting similar powers for the future. By permitting the State to be made defendant at the suit of individual citizens, we should, at the same time, deliver the Legislature from some of its most trying temptations. Private claimants against the State would then betake themselves to the courts, instead of the lobbies, for redress.
Fifthly, we object that a man's rights over his own property, are not properly or even decently respected. That his land may be taken from him, and his houses torn down, to gratify an unprincipled lust of gain, without any pretence of public necessity. And that no fair system of compensation is provided to the ejected citizen, either when the property is taken by privileged corporations, or for the public use.
Sixthly, we object that the Constitution permits the creation of corporations with a larger credit, and with less liability for their engagements, than is permitted to individual citizens. Besides, the gross injustice which such privileges work to those who cannot participate in their enjoyment, their tendency has been, and is directly or indirectly, to make the currency of the State fluctuating, to derange the industry of the country, and to establish a large and powerful influence adverse to impartial legislation. Seventhly, we object that it has seriously and unnecessarily diminished the legislative power of the counties and towns; that it has injudiciously deprived the people of their proper influence in the selection of their local officers, and has increased the patronage of the central government, and thus the capacity of its members for political corruption, to the serious obstruction of pure and equal legislation, and the calamitous depravation of public morals. Our government is based upon the doctrine that every town knows its own wants and their remedies better than they are known by any other town. This doctrine assumed, it is absurd to give the selection of merely local town and county officers to the General Government-worse than absurd, it is corrupting to the appointing power, and concedes to an oligarchy a dangerous control over the electoral votes, and thus over the legislation of the State.
Eighthly, we object that it has made no adequate provision for the prompt and
righteous administration of the law, in consequence of which, the citizen is often subjected to unjustifiable delay and expense in establishing his legal rights. The average duration of a litigated suit is not less than five years in our Court of Chancery, and three years in our Courts of Law. The average expenses are from 15 to 20 per cent. upon the whole sums recovered.
Ninthly, we object that it permits an unlimited creation of offices by the government, whereby the patronage of the executive may be dangerously increased, without the consent of the people. In consequence of this, vast numbers are tempted to abandon both their professions and their principles, for the desperate chances of political life, and the people are subjected to useless expense for services not only needless, but frequently prejudicial to the public welfare.
Tenthly, we object that the clergy are, by the Constitution, ineligible to, and incapable of holding" any civil or military office or place within this State," and are thus denied a full, practical enjoyment of the privileges of citizenship. This, we believe, is the only clause in the present Constitution which is unconditionally discreditable to the statesmanship of every man who advocated it. If anything could add to the absurdity of the act it would be the reasons they gave for doing it. "Whereas, the ministers of the gospel are, by their profession, dedicated to the service of God and the cure of souls, and ought not to be diverted from the duties of their functions; therefore, no minister of the gospel, or priest of any denomination whatever, shall, at any time hereafter, under any pretence or description whatever, be eligible to, or capable of holding any civil or military office or place within this State." In the first place, the conclusion is, in itself, a wretched non-sequitur; and, in the next place, when it is as well remembered as it was once understood, that this provision against the political elevation of the clergy was introduced solely to protect our institutions from the principles of that body which were generally conceived to be fatally adverse to the existence of civil and religious liberty, every one will, at once, perceive that we have branded the whole body with a mark of public distrust, which, whether deserved or not, is no more necessary, under our liberal
suffrage system, than it is to compel the people to border their garments with fringe, as the Jews were commanded by Moses, that they may become more mindful of, and obedient to the laws that exist.
these objections is to argue them. They are as familiar as household words to every enlightened democrat, and to remove them, we hope will be the fervent aspiration of every pure one. We forbear going into a discussion of the remedies which we propose to these evils, as it has been and is our purpose now, merely to show a clear necessity for a substantial and comprehensive constitutional reform, and by what agency that reform can be most advantageously effected. The latter question remains to be considered.
The most devoted advocates of constitutional reform insist that a conven
We will admit, if necessary, that, at first, the clergy would make unpracticable and, we believe, unpopular statesmen; but, we have not the remotest idea that it would be possible for their whole united order to turn the Legislature of the State, in any perceptible degree, from its appointed orbit. Whether they would choose to avail themselves of the privilege of holding office, would depend upon two question of delegates, elected by the whole tions; first, whether it were calculated, as the Convention suggested, to divert them from the duties of their sacred functions; and, secondly, whether, if it were, they were conscientious enough to refuse it. If they were not, it is hardly worth while for the State to oppose obstacles to their leaving a profession which they can't but disgrace. If they were, it is idle to impose prohibitions upon them. If, on the other hand, the duties of the two functions were not found to be inconsistent, it is a gross injustice to the clergy to deprive them of their just influence in the making and administering of those laws which they are forced to submit to. It is not that we look for any special accession of wisdom to the councils of the State, or fidelity in the administration of her affairs, by removing these restrictions from the clerical profession; but we are not willing that our Constitution, the sanctuary of our political faith, should any longer give refuge to a principle of legislation so intolerant and so mean.
With most of our readers, to state
people, would be the only body fit to undertake this vast and responsible work. That none but men specially called for the purpose, men uniting the most enlarged faculties of statesmanship with the most impregnable integrity, are sufficient for its "high argument." There is, on the other hand, another class, among which are many devoted friends of the Constitution and of civil liberty, who fear to trust a convention with such powers as are contemplated by the other section of reformers; who fear that an appetite for change may grow among them by what it feeds on, that, instead of confining their attention to necessary reforms, they may engage in a system of speculative or experimental legislation, and gamble with the public confidence for the chances that improvements may result. The class entertaining these apprehensions, prefer that the reforms should be initiated by the Legislature and ratified in the way provided by the Constitution.* In support of this view, among other things, it is alleged that, when the Revisers of the Constitution in 1821, provided a pro
SEC. 1st. "Any amendment or amendments to this Constitution, may be prepared in the Senate or Assembly, and if the same shall be agr ed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments, shall be entered on their journals, with the yeas and nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months previous to the time of making such choice; and, if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two thirds of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner, and at such a time, as the Legislature shall prescribe: and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the Legislature, voting thereon, such amendment or amendments shall become part of the Constitution."-Constitution of the State of New York,. Article 8.
cess for amending that instrument, without a Convention, they intended to supersede that agency for the future. For this inference we entertain no respect whatever. It cannot be pretended that the Convention of 1821 divested the people of the right of amending the Constitution again by another Convention; but it is assumed that, having provided one organism for change, they meant to discourage every other. This is both bad statesmanship and bad logic. We could never see the slightest reason for so broad an inference, though we can discover abundant reason for the clause of the Constitution in question. Under the old Constitution of 1777, no amendment could be made without a Convention; and when a matter of mere machinery in the instrument required attention, a matter about the necessity of which little or no difference of opinion was entertained, perhaps a matter which could have been quietly passed through the Legislature without a discussion and ratified by the people without a caucus,-in these mere technics of legislation, the people were subjected to the expense and delay of a Convention before that alteration could be effected. This was the case in 1801, when it was required to fix the ratio of representation of the State of New York in the Legislature, and to interpret an ambiguous passage in the old Constitution. The expense and embarrassment which those trifling alterations involved, were the substantial, if not the sole reasons for the introduction of the provision in question iato the new Constitution; and the propriety of its introduction we readily concede-but we deny that there is any authority for believing that the Convention of 1821 intended, by indirection or otherwise, to place the Constitution of the State under the control of the legislative power, or to supersede all revision by Conventions for the future.
There remains, then, this single question-Which is the better qualified to digest, without delay, a thorough and comprehensive system of constitutional reform-the Legislature, or a Convention to be specially called for the purpose?
We may as well, at once, avow our preference for the Convention-nay, we are prepared to go farther, and to
say, that while the present standard of legislative qualification obtains, we would prefer that the Constitution should continue as it is, rather than that the Legislature should attempt to amend it. And these are our reasons:
In the first place, the Legislature is not elected to revise the Constitution, but for other and very different purposes. The delegates to that body are expected to direct their attention to the current legislative business of the year. Those who are selected may be fully competent to represent the wishes of the majority upon the questions to which this business gives rise, while their doctrines of constitutional legislation might be altogether objectionable to their constituency. If there be a prospect of difficulty with a neighboring country, as in the McLeod case, or with a sister State, as in the Virginia claim-or if a change in the system of public instruction be contemplated, the delegates who would be employed for these exigencies are by no means necessarily equal to the task of constitutional reform. Eminent capacity for the duties of the former in nowise implies equal capacity for the duties of the latter. The most capable for one emergency might prove wholly unfit for the other. Consequently it happens that where the people would attempt a change in the Constitution without the agency of a Convention, they are obliged, at the election of their representatives, to decide two issues, about which they may entertain the most opposite opinions, by one and the same vote. They are compelled, in one case or the other, to sacrifice their judgment to their necessities, because they are not able to express their opinions separately upon each. The same incongruity of functions which we deplore in the organization of the upper house of the legislature, by which legislative and judicial powers are combined in the same body, is apparent here. We can understand why, in a remote and thinly-populated settlement, the very distinct duties of schoolmaster and dentist should devolve upon the same individual. Wealth and civilisation have not labored together long enough there to effect a division of the professions. But no one pretends that we have not far more accomplished statesmen in the country than the majority of those we employ
in making our laws; no one will pretend that to revise a Constitution does not require the best services of the ablest and best of men; no one will pretend that we cannot afford to pay for those services far better than we can afford to do without them. Why, then, we ask, shall we not avail ourselves of the wisdom of our wise men? Why not give the public sentiment its full and fair expression, without driving the people to choose between their rights, and to compromise with their necessities.
But, in the second place, suppose the legislature to represent the public sentiment fully upon all the fundamental questions of government, we again object that they have not time or opportunity to project and mature a comprehensive plan of reform. Every one, who is at all acquainted with the labors of a faithful legislator, knows that during session he is ever pressed with the current business of the houses. A large portion of his time is taken up in committees. He is inexperienced and uninformed upon some or all the subjects under deliberation, and requires time to prepare himself, to study, to reflect, to consult. The limited duration of his office, and his small compensation for that period, discourage him from devoting the vacations of his terms to that preparation. The consequence has been, almost invariably, that a large majority of all the bills, of every session, have been pissed during its last week, many of which were not half discussed, and not more than half understood. Is it contended that much time is occupied by the two houses in political trifling? But would they trifle less with five or six bills for a reform of the Constitution waiting a third reading? Would it become a whit the less necessary for Mr. A to detain the action of the house while he talks for a given number of days in every session at his constituency upon the few and altogether immaterial topics, concerning which he happens to have some information? Would it become a whit the less necessary for Mr. B to recite all the calamities, real or imagined, which have originated since the creation of the world from the policy pursued by his political opponents? Would it become a whit the less necessary for Mr. C to pursue his dispute, de rebus nihili, with Mr. D, until, in
striving for the last word, he puts off the dignity of a legislator to cover himself with the ignominy of a blackguard? Would that it might! The friend of civil liberty might then be spared the mortification of defending the system of popular governments against the scandals of legislation, which so frequently make its operation disgusting. Would that it might! and it would be given him to see those institutions which he cherishes with such fidelity and hope, commending themselves to the whole world as an example to be admired, not as a warning, and to be despised. But such speculations are idle. The pendency of any constitutional question reconciles no political or personal differences, it satisfies no selfish appetites, it gives to legislators no enlarged views, it takes from them no selfish propensities. They will devote just as much time to their own ends, and just as little to the public good, as they please. As usual, they will work for individuals during the session, and for the public the day before adjournment. The consequence is that they will not touch any constitutional subject at all, or if they do, they will huddle it through at the heel of the session, without deliberation or debate. Many may vote against it for the want of time to consider its merits, and many in favor of it for the same reason. It may thus be rejected and pronounced an unpopular measure, or adopted, and fix a serious and permanent deformity upon the Constitution; a risk, in either case, of the most serious character. Therefore, we insist upon it, that the legislature have not time, though it were their business, to initiate all those constitutional reforms which the progress of political science in this State demands; and, as we shall proceed to show, in the third place, that they are incompetent, both by qualification and position, for such a task, if they had the time.
We have already had occasion to remark that the Legislature are not sent to amend the Constitution, but to attend to the current legislation of the year. We may add, that the individuals usually chosen for that class of duties, are not selected by a high legislative standard. It will hardly be claimed that the higher qualities of statesmanship are insisted upon for our State representatives in any case, while it will
be conceded that obligation for past, or the prospect of future services as a political partisan, have much, very much, if not most to do with establishing a candidate's competency for the duties of legislation. Hence those who are selected are, many of them young, and most of them inexperienced in the higher duties of their vocation. They are called to a kind of business, to which their previous pursuits had, perhaps, never led them to direct their studious attention, and for which they have no preliminary education. On this point of incompetency, however, we cannot dwell, for to say what we feel, would be unpleasant to ourselves, and perhaps to some of our readers, nor is it necessary to elaborate the matter. We put it to every honest and reflecting member of any party, whether, assuming that a convention had been determined upon, he would be content that any legislature elected in this State, for the last twenty years, should be drafted for that convention. If we rightly anticipate his answer, then we ask, if he be willing to impose upon that body the very duties which the Convention in question would be called to discharge.
Again, it unfortunately happens to be the case, that nearly every legislator thinks the interests of his own county of more importance than those of the State-the interests of his own town of more importance than those of his county-and his own interests of more importance than any or all of the others together. Through this prevailing infirmity of the legislative conscience, it has come to pass that the votes of the members have become a common article of barter and exchange. Whoso has a favorite measure to propose, secures for it all the votes of indifferent members, by pledging, in turn, his own vote to their favorite measures, about which he happens,
himself, to be indifferent. In this way the legislation of an entire session is bound up and interlaced to such a degree that the passage of infamous bills is sometimes made the condition upon which measures of the most vital importance can become laws. Those who will call to mind the conduct of a portion of the legislature in 1812, in their attempt to charter the Bank of America, may see to what corrupt issues this system of log-rolling in legislation may be made to tend.*
We mention this then, as another reason for not relying for constitutional reform upon the legislature. There are a variety of political and personal interests operating upon them to modify very much, if not to control their action, which an independent convention would not be exposed to. Very few private or party ends could be answered by combining for or against any particular measure in a convention. While the nature of the high duties which the delegates are called upon to perform, and for which each would feel personally responsible before his contemporaries as well as to posterity, would constitute a very important security against any infidelity in the exercise of their powers.
In the fourth place, from what we have observed of the state legislatures, it is idle to expect, indeed, it may be idle to expect from any legislative body, a deliberate and spontaneous resignation of any of its important powers; without which, we can have no adequate constitutional reform. It will be observed, that the operation of nearly every change we have alluded to, in our briet summary, would be to deprive the legislature of some substantive right, and restore that right to the people. Indeed, the great purpose of the present movement is to circumscribe the sphere of legislation, and to enlarge the sphere of the individual man. We
We quite the following paragraph from Hammond's Political History of the State of New York:
"The Bank advocates in the Legislature had systematically prevented any action on nearly all the important business before them. Holding a majority, they seemed determined that nothing of consequence should be done, until their favorite measure (the charter of the Bank of America) should be adopted. The more pressing the necessity of legislation on any given subject, the more carefully did they watch and strenuously oppose, final action upon it. Of two hundred and for y bills, ultimately passed during that session, the greater part of which were then on their table, they had passed but thirty-nine when they were prorogued" (by Governor To...pkins, for corruption.)—Vol. i., p. 309.