|
"The Constitutional History of New York ..." |
|
[Amendments to the First Constitution]
The Convention of 1801.
The Constitutional Convention of 1801 had its origin in differences of opinion concerning the proper construction of § 23 of the Constitution, which provided for a Council of Appointment. The section is as follows: "That all officers other than those who, by this Constitution, are directed to be otherwise appointed, shall be appointed in the manner following, to wit: The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said officers, of which the governor for the time being, or the lieutenant governor, or the president of the senate (when they shall respectively administer the government), shall be president, and have a casting voice, but no other vote; and, with the advice and consent of the said council, shall appoint all the said officers; and that a majority of the said council be a quorum; and further, the said senators shall not be eligible to the said council for two years successively." This council was an important part of the state government until abolished by the Constitution of 1821, which took effect on the 31st of December, 1822. The council, therefore, existed more than forty-five years; and while it has gone into history, probably never to return as a feature of our constitutional machinery, it played such an important part in the early history of the state, especially its political history, that it should receive here more than a passing notice. The first constitution-makers had not gone very far in the direction of choosing officers by popular election. Most of the officers were chosen by appointment; and we shall see, as we note the development of our constitutional system, how slowly the theory of elections by the people made its way. The framers of the first Constitution treated this subject from the point of view of their own experience, and also in accordance with the custom of that time. * * * GOVERNOR JAY'S SPECIAL MESSAGE.
Governor Jay sent a special message to the assembly on the 26th of February, 1801, and the same message to the senate on the 27th, in relation to the Council of Appointment, reciting the differences which had existed between the council and Governor, not only during his own term, but during the term of his predecessor, Governor Clinton. Governor Jay claimed that under the Constitution the governor had the exclusive right of nomination. Some members of the Council of Appointment claimed a concurrent right of nomination. This the Governor denied, and in this message he recommends that it be settled in some way, either by a declaratory act of the legislature, or by judgment of law. * * * CONVENTION RECOMMENDED.
On the 6th of April the legislature passed an act recommending a convention for the purpose of considering the question of the construction of § 23 of the Constitution, and also that part of the Constitution relating to the number of members of the senate and assembly. * * * The first Constitution did not contain any provision for its own amendment, nor for calling future constitutional conventions. The legislature of 1801 could not absolutely direct that a convention be he1d, but passed a law recommending a convention for the purposes therein mentioned. This act, chapter 159, authorized and proposed the election of delegates to a convention to consider two features of the Constitution, -namely, that relating to the number of members of the senate and assembly, and the section relating to the Council of Appointment. It will be observed that the people were not given an opportunity to express their judgment on the question of holding a convention. While the bill was pending an amendment was once agreed to in the assembly giving this right, but later it was abandoned, and under the law the people were only given power to elect delegates. The people, who might have objected to such a convention, had no opportunity to express their objection, except by declining to vote for delegates, and this meant nothing, for the persons who received votes as delegates would be entitled to sit, if regularly chosen, even if the majority of the people had been opposed to a convention. We shall see in the next chapter that a bill passed in 1820 for a convention, without a previous submission of the question to the people, was vetoed by the Council of Revision on objections prepared by Chancellor Kent, then a member of the council. In this opinion he calls attention to the act of 1801, and distinguishes it from the act then under consideration on the ground that it conferred on the delegates power to determine two questions only; one of which, that relating to the Council of Appointment, was one of construction, and not of amendment; but he expressed the doubt whether a convention called to change the legislature was constitutional unless previously authorized by the people. Chancellor Kent, then an associate justice of the supreme court, was a member of the Council of Revision in 1801, but he and Chancellor Livingston were both absent when the convention bill was presented to the council, and it does not appear that there was any objection to it. In addition to the question relating to the construction of § 23, the act conferred on the Convention power to consider that part of the Constitution "respecting the number of senators and members of assembly, and to reduce and limit the number as the Convention may deem proper." The senate was originally composed of twenty-four members, and the assembly of seventy members, and provision was made for an increase in each branch at stated periods, until the maximum should be reached, which was fixed at one hundred senators and three hundred members of assembly. The increase in membership had apparently been more rapid than was at first anticipated. Governor Jay, in his speech to the legislature at the opening of the session, which began November 4, 1800, called attention to this increase, and recommended a convention to consider the question of the number of members of the senate and assembly. This seems to have been the only recommendation on the subject, and it is probable that a convention would not have been called at that time for the sole purpose of considering the number of members of the legislature; but when a convention seemed necessary to settle the controversy over the Council of Appointment, the subject of the legislature was included. At that time the senate had increased to forty-three members, and the assembly to one hundred and twenty-six members. THE CONVENTION.
* * *
The Convention at once addressed itself to the task committed to it, and completed its labors on the 27th of October. The result of its deliberations appears in five paragraphs, four of which relate to the legislature; one, the last, determines the construction of the disputed section relating to the Council of Appointment. The amendments permanently fixed the number of senators at thirty-two. The assembly was given one hundred members, and provision was made for a possible increase to one hundred and fifty, by additions to be made after each census. The principal subject of consideration was the construction to be given to article 23. A motion for a construction of the article giving the senators the exclusive right of nomination was defeated by a vote of 93 to 6. A motion to give the Governor the exclusive right of nomination was defeated, but the journal does not give the vote. The resolution of the Convention as finally adopted declares that under the "true construction" of the article "the right to nominate all officers other than those who, by the Constitution, are directed to be otherwise appointed, is vested concurrently in the person administering the government of this state for the time being, and in each of the members of the Council of Appointment." This resolution was adopted by a vote of 86 to 14. Daniel D. Tompkins voted in the negative; and twenty years afterwards, in the Constitutional Convention of 1821, he referred with apparent self-satisfaction to this vote. The large vote in favor of the resolution is explained by the fact that each of the two great political parties of that day had committed itself in favor of nominations by the members of the council, - the Federalist, in the winter of 1794, and the Republicans, in 1801. It has already been noted that the convention which framed the Constitution had given this provision a different construction, but in the partisan struggle for power at the beginning of the last century the opinions of the authors of the Constitution seem to have been overlooked or ignored. Under the construction given by this Convention the council became a powerful and sometimes a very objectionable political machine, and at the time of its abolition, twenty-one years later, it wielded a patronage including nearly 15,000 officers, with an aggregate salary list of one million dollars. It often dispensed patronage with a high hand, making appointments and removals at will; it reduced the dignity and responsibility of the governor, so that, instead of being the chief executive of the state, he had only a casting vote in this appointing body, and only one fifth of the power of making nominations. The plan of this council, as devised by Mr. Jay, was reasonable; and if it had been administered as intended, it might have continued as a permanent feature in our Constitution. We have adopted, as a substitute for this plan, the confirmation of the governor's appointments by the state senate, where confirmation is required at all, and have given the governor the absolute power of appointment without confirmation, in a large number of cases. Mr. Jay's plan contemplated a joint responsibility for appointments, to be shared by the governor and the legislature, by providing a council composed of four senators, distributed geographically through the state, with power only to confirm or reject nominations by the governor. The whole legislature was charged with a duty and responsibility in the matter by requiring the assembly to choose the council from the senators, thus directly or indirectly bringing both branches of the legislature into cooperation with the governor in making appointments; but the efficiency of the plan was destroyed by the construction given to the article by the Convention of 1801. The evolution of this council, and its final destruction, without a dissenting vote, by the Convention of 1821, shows that even the cohesive power of patronage as a political force must yield to higher principles of constitutional government when it is discovered that the dispensing of such patronage by an unrestrained and irresponsible body is inimical to the best interests of the state. [pages 596-612]
|
|
Page 11
 The Historical Society of the Courts of the State of New York |