USA > New Jersey > The history of New Jersey, from its discovery by Europeans, to the adoption of the federal Constitution > Part 30
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ceasing, wholly, with the change of government, the rule should have ceased, also. The members of council, in their relation to the people, differ in nothing from the members of the Assembly. They are not like the senators of the United States, the representatives of territorial divisions; removed in. a degree from the people by the mode of their creation, and less responsible by the length of the term of office; but are annually elected, by the same electors, at the same time, and in practice, from the same class, as the mem- bers from the lower House. By the letter of the constitution a distinction is made. More property is requisite to qualify them for office. But this dis- tinction makes them safer guardians of the public purse, because it gives them a deeper interest in it.
The Assembly and council have power to make the great seal :- They are required to meet, separately, on the second Tuesday next after the day of election ; and the consent of both Houses is necessary to every law .- Seven form a quorum of the council; and no law can pass, unless there be a majority of all the representatives of each body, personally present, and agreeing thereto.
The council and Assembly, in joint meeting, arc empowered to elect the governor, annually, by a majority of votes, at their first meeting after cach annual election ; to elect, in the same manner, the judges of the supreme and inferior courts, justices of the peace, clerks of courts, the attorney general, the secretary of state, the treasurer, and all general and field officers of militia.
It is now a settled principle of political science, that, the legislative and executive powers of goverment ought not to be in the same hands. That government in which they are blended is a tyranny in proportion to the extent of the amalgamation; because, responsibility for the execution of the laws is, proportionately, destroyed. Where the whole of the legislative and executive powers are vested in the same person or persons, the government is despotic ; and it may be the despotism of the one, or of the many. Every executive act may be a new volition of the legislative power, and the law may, nay, will be, changeable and uncertain; and ofttimes never proclaimed, never known, until its execution. In the classification of powers, that of appointing the expounders and the subordinate executors of the law, is pro- perly assigned to the executive branch of the government, co-ordinate with, and independent of, the Legislature; but the difficulty of producing a prompt and adequate responsibility, of the executive to the people, has, in practice, occasioned various restrictions on the exercise of this power. When the Le- gislature appoints these officers, it assinnes the functions of the executive. But experience would seem to teach us, that the danger of corrupt adminis- tration is equal, where the ministrative or judicial officer depends, for the tenure of his office, upon the chief executive, or upon the legislative Assem- bly. The corruption most common, and most to be dreaded, in popular governments, is subserviente to party spirit. Thus, we daily sce officers de- pendent upon the will of a single headed executive, a council of appointment, or a legislative assembly, changing their opinions, modelling their conduct, or losing their offices, with the mutations of party-following all its phases, or buried in the obscurity of forgetfulness. To preserve the Legislature, whose purity is indispensable to the public weal, from every temptation, to act under any other influence, than that of sound reason and discretion, it should have, neither the power to appoint, nor remove, any other, than such officers, as are necessary to the exercise of its functions. It is, wisely, object- ed, that the power of appointment should not be exercised by a body com- posed of several individuals ; because responsibility for its deeds is diminished. or destroyed, by comminution ; and because consociated assemblies, every
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where, take a latitude in morals, from which unprotected, unsupported indi- viduals, would shrink with dismay. If such power be vested in an indivi- dual, although he be not elevated above the temptation to ahuse it, he is not only legally responsible for its improper exercise, but he stands constantly before the tribunal of public opinion, and may be instantly arraigned for malversation in this, as in every other department of his office; and when the continuance of the appointce in office, is independent of the will of the appointor, it would seem, that, the constitution, in this particular, possesses all practical guarantees for honest administration.
But the constitution of New Jersey vests in the legislative power, to an alarming degree, all the powers of government. Thus, the incumbents of chief executive offices, including the judiciary, are not only dependent upon the Legislature, for their commissions, but for the amount of their salaries, which is subject to enlargement, or diminution, at its pleasure. The place- men, therefore, moved by ambition or avarice, whether governor, judges, secretary, treasurer, clerks, or chief officers of the army, are the creatures of the Assembly, not of the people; receiving from it, life and daily sustenance, and following it, as the sunflower does the sun, whatever be its course. Officers actuated by such motives, are always attainable; and when the Legislature may be corruptly influenced, its power will be despotic in the direct or indirect exercise of all the functions of the government. If the constitution were, indeed, the supreme law of the land, unchangeable by the Legislature, it would present, in the prescribed tenure of office for some of the officers, a check upon legislative influence. Thus, judges of the Supreme Court, hold their offices for seven-judges of the inferior courts, justices of the peace, clerks of courts, the attorney-general, and secretary, for five years. But the Legislature may alter the constitution, in this, as in other particulars, and make the term of office in these cases annual, as in case of' the governor and treasurer; or at will, as in the case of the principal militia officers .*
* The following is given, by Judge Griffiths, as the actual result, in the state, of this commingling of powers. We cannot of our own knowledge, vouch for the truth of the picture, but it has sufficient verisimilitude.
" One of the most threatening effects of the connexion of the legislative and execu- tive in the same body, is its apparent tendency to corrupt the Legislature.
" First. By placing the power of filling the offices of government in the Legisla- ture, and permitting the choice from their own body, a temptation of the most direct kind is offered to their virtne: offices will be erected for no other purpose, but to gratify the expectations or promote the private ends of popular and ambitious leaders in the Assembly.
" Sccond. But the most pernicious effect of this executive power in the Legislature, is seen in the intrigues and party purposes, which it promotes and cherishes in a body, that ought to be free from every local and every interested consideration.
" It is impracticable here to enter into a detail of facts, to prove, that the virtue of the Legislature has been, and will be, constantly assailed and overcome, by commit- ting to it the nomination and appointment of the executive officers. It shows itself in the very formation of the Legislature. No sooner does an election for a legislative assembly and council approach, than the question is not, who are the wisest and most disinterested, and of most integrity; but who will best answer the views of party, of private ambition, or personal resentment. In every county, there will be constantly a succession of people aspiring to appointments, civil or military : some desire to be judges, some justices, some majors, and some colonels; some have interests depend- ing in the courts of law, and some perhaps have resentments against existing officers, and would fain onst them from their seats: all these, and a thousand more passions, are set to work, parties are formed, and nominations to the Legislature will be direct- ed and supported, npon principles altogether beside those, which should form the basis for a right election of legislative characters ; the result must, of course, be un- favourable to the public good. But this is not all ;- not only are elections rendered . vicious, and the morals of the people corrupted in these struggles for personal advan- tages, but unhappily the candidates partake of the contamination They must promise
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By the constitution the governor has the supreme executive power; is captain-general of all the militia and other military force; is chancellor, and ordinary and surrogate-general; and as president of council, is judge of the court of appeals, in the last resort; presides in council, and has a casting vote in their proceedings. The council choose a vice-president, who acts as president, and governor, in the absence of the governor; and any three members of the council, are at all times a privy council, to advise the governor, in all cases where he may find it necessary to consult them.
Whilst the proper powers of the executive are given to the Legislature, the governor is oppressed with various heterogeneous duties, which have been conferred upon him; not because he is the proper organ for their exercise, but because the members of the convention were habituated to behold them lodged with the colonial governors; who engrossed them, that they might increase their emoluments. As chancellor, surrogate, and president of the court of appeals, the governor is a high judicial officer, and as such, gives decisions, which as an executive officer, he may be called upon to enforce. As the president of council, he has a potential voice and influence in legisla- tion, and, thus, exercises, in a limited degree, to be sure, all the powers of government. Thus, in another of its branches, the government assumes the essence of tyranny. This combination of powers, might prove very dangerous, were not the governor so ephemeral in his existence, that he has not space, in his official life, to mature and effectuate a plot; and is wholly dependent upon the Legislature for his compensation, which is, not uncommonly, a principal mean of his subsistence. But, he is not deterred from making his powers subservient to the dominant party of the Legislature,
allegiance to their party-you shall be a judge, and you a justice-you a major, and you a colonel-you a clerk, and you a commissioner, I will solicit your cause in the court of errors, and will vote for your friend to fill a seat in the judiciary. Thus the executive authorities confided to an annual legislature, lay the foundation of corrup- tion at the threshold of its election; instead of being elected with a national view, and for the purpose of forming general laws, for the more equal and salutary govern- ment of the people, the persons go there to represent the interests and gratify the de- sires of a few partisans in their different districts, upon the performance of which will depend their reappointment at the ensning election !
" When the Legislature is formed, and a joint meeting agreed upon, then begins a scene of intrigne, of canvassing and finesse, which baffles all description, and is too notorious to require proof, and too disgusting for exhibition. The members of a county, in which an office is to be disposed of, are beset by friends and partisans of the candidates; their hopes and fears are excited, by all the arts which can be sug- gested to influence their choice: from these, the attack extends itself, till it reaches every member of the Legislature : and so strong and so general docs the contest be- come, by the different representations, having each particular objects to attain, that one grand scene of canvass and barter ensues; a vote for one, is made the condition of voting for another, without regard to qualifications; even laws which are to affect the public interest, are made the price of these interested concessions; and not unfre- quently almost the whole sitting of the Legislature is spent in adjusting the preten- sions, and marshalling the strength of the respective candidates for office. To such a pitch has this grown, that even the members of the Legislature complain of it, as an intolerable evil. These contests again, lay the foundation for new parties and new resentments at the next election. To counteract the opposition which may be stirred up, all the appointments will be made, with a view to strengthen the interest of the sitting members. New commissions, civil and military, judges and justices, general officers, general staff and field officers, will be made with a reference to the state of parties in the county, instead of being dictated by quite a contrary spirit.
" The result of' all this, is seen and felt in every quarter. From hence proceed the jars and divisions which destroy the pleasures of social life in every neighbourhood and village; and from hence arises the instability of laws, the multiplication of magis- trates, the weakness and divisions of the courts of justice, the heats and ill-directed zeal at elections, and that general languor and dereliction of principle in every department, which menaces the total depravation of the body politic."-Eumenes, pp. 130-132.
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and thus to submit himself to a corrupt influence. There is another point of view in which this commingling of powers is prejudicial to the state. it de- mands qualities for their execution, which are so rarely found in the same individual, as to seem incompatible. The qualifications for a commander- in-chief, are not those of the legislator, much less those of the judge.
It is not the fault of the constitution of New Jersey, alone, to vest in the chief executive officer, a portion of the legislative power. It is done by the constitution of the United States, and by many of the states, with an ex- pediency, which daily experience renders less than doubtful. The feature is borrowed from the English government, where its chief use is to preserve the prerogative of the King, against the encroachments of the people.
The inferior executive officers, beside those abovenamed, who are cre- ated by the constitution, are a sheriff, and one or more coroners, elected, annually, from each county; who are eligible three years, successively, but after which, not again for three years ;- and a constable, and commissioners of appeal, in case of taxation, also, annually elected in cach township.
. But in no particular, is the imperfection of this constitution more visible, than in its provisions relative to the judiciary. Neither the courts nor the number of judges which shall respectively constitute them, are determined by it. The power is given to appoint the judges of the Supreme Court, and of the inferior courts of Common Pleas, of the several counties. These courts, and the chancery, were established by an ordinance of the King, re- cognised and confirmed by the acts of Assembly, and are continued under the new constitution, by articles twelve and twenty-two; declaring, that all the laws contained in Allinson's edition, and the common law of England, and so much of the statute law, as had been theretofore practised, shall continue in full force, until altered by the Legislature; such parts only ex- cepted, as were incompatible with the charter. If any difference of opinion may exist, relative to the power of the Legislature over the constitution, there can be none, as to their power over the laws ;- consequently, they may alter or abolish, all or either of the courts, at their pleasure; and there- fore the constitution has made no provision for the permanence of the judi- ciary. The fixed term of office of the judges, supposing the constitution unalterable by the Legislature, becomes no protection to their independence, since the laws .upon which the courts depend, may be repealed, and the commissions of the judges fall with them. Of the manner in which the courts are at present constituted, there are many seemingly well founded complaints, which it is no part of our province to examine or to judge. Buit we may remark, with regard to the Court of Chancery, that we cannot con- ceive, of a worse organization, than that, by which the highest law officer of the state, is not only subject to annual change, but is actually and repeatedly changed from year to year. The judge has no inducement to qualify him- self for the duties of his place, since his labour will not be rewarded; and the business of the court must be ignorantly, slovenly and sluggishly exe- cuted, inasmuch, as more than one chancellor may frequently intervene be. tween the hearings of the same cause.
* For the manner in which the system of the inferior courts works, we refer the reader to the following remarks of Judge Griffiths-observing that the judges of these courts are without limit as to number, have not a professional education, and receive no compensation, save some inconsiderable bench fees.
" Let any man go into a county court in New Jersey, and one hour's observation will satisfy him, that it is neither a place of comunon seuse, nor of common justice. He will see disputes maintained with great heat and prolixity, on questions which none would hear debated, but those who feel difficulty in every thing, from their. total ignorance of every thing, of a legal complexion; he will see the most propos -. terous decisions, after those preposterous pleadings ; he will see cause after cause
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"The judges and other officers, chosen by the Assembly, are commissioned by the governor, and may be reappointed at the end of their several terms, and dismissed when adjudged guilty of misbehaviour, by the council, on im- peachment of the Assembly.
By article ninth, the governor and council, (seven whereof shall be a quorum,) form the Court of Appeals, in the last resort, in all cases at law, as theretofore; and have power to grant pardons to criminals, after condemna- tion. By statute, this court has also been made the Court of Appeals in equity cases.
This feature is also copied from the colonial government, in which, it was analogous, somewhat, to the judicial power of the House of Lords; with this important and extraordinary difference, that in England, the execu- tive, or the King, is not a member of the court; and the court there, is always aided by the great law officers of the state, and guided by their col- lected wisdom and learning. Whilst in New Jersey, the executive forms a part of the court, and the court consisting of members annually chosen, and . perhaps annually changed, whose education and pursuits do not qualify them to determine legal questions, sits to revise-and perhaps, to reverse de- cisions given under the best lights of the land .*
The 18th and 19th articles of the constitution, which are exempted from the power of the Legislature, provide, that no person shall be deprived of the privilege of worshipping Almighty God, in a manner agreeable to the dic- tates of his own conscience, nor under any pretence, compelled to attend any place of worship contrary to his own faith and judgment, nor be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any church, or place of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform.
"That there shall be no establishment of any one religious sect, in prefer- ence to another; and that no protestant inhabitant shall be denied the enjoy- ment of any civil right, merely on account of his religious principles: but, that all persons professing a belief in the faith of any protestant sect, who shall demean themselves peaceably under the government, shall be capable of being elected into any office of profit or trust, or being a member of either
torn by piecemeal from their foundations; the judges perplexed or dismayed with every trifling occurrence, upon which a legal doubt arises; he will see the judges divided in opinion, looking round for help: and finally, he will see the business of the session abandoned where it began. and put off upon frivolous pretexts to a more con- venient season ; and when he has seen this at one court, at one term. he will have a very accurate sample of the dignity and ability, which pervades the judiciary system of his enlightened country. Those who are best acquainted with the subject of this description, will allow that it is not exaggerated; they know that there is little dignity, and less ability in most of the courts, to which their professional pursuits call them; they know, it is sometimes a subject of ridicule, and oftener of serious regret, that the judges, instead of'. knowing the laws better than those who advocate them, are generally ignorant of first principles, and instead of directing business with that manly confidence, which is always the attendant of knowledge, they are led away by their deference to professional eminence. perhaps by the fallacions sophistry of a con- cluding harangue. F'ar be it from me to apply this indiscriminately ; there are ex- ceptions ; and still farther it is from me, to place this general defection in the judi- ciary, to a depravity of personal character ; quite the contrary. It would be difficult to find more private integrity in any equal number of men; but no qualities of the heart, can compensate for the want of knowledge in any science; and in that of the law, however paradoxical it may seem, mere goodness of heart is a dangerous pro- pensity."-Eumenes, pp. 107, 108.
* Members of the bar are frequently elected to council. To them. of course, the foregoing remmik is not applicable. An increase of business in this court, would pro- bably render it as necessary to have the councillors all lawyers, as it is that the governor should be one.
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branch of the Legislature, and shall fully and freely enjoy every privilege and immunity enjoyed by others, their fellow subjects."
This last clause, much less liberal than were the Concessions of the pro- prietaries, stands a monument of British intolerance; for it is modelled on the laws of England, excluding Catholics from office; yet whilst in Great Britain this intolerance has ceased, it is continued here, and the Catholic christian, together with all who do not profess a belief in the faith of a Protestant sect, are excluded from full participation in civil rights. This restriction is far behind the age, and calls loudly for removal; although, to the honour of the state, in no instance, has it been enforced. Yet, it is a foul blot on the polity of the country.
By the 16th article of the constitution, all criminals were admitted to the same privileges of witness and counsel, as the prosecutor; and by the 18th, the estates of persons destroying their own lives, and chattels occasioning, accidentally, the death of any one, are declared not to be subject to forfeiture.
We have thus given all the provisions of the existing constitution, with a running commentary upon its leading features, in which the deficiency of the instrument, as a constitution, has been chiefly considered. Compared with what such an instrument should be, it has many faults of expediency, which have been frequently noticed by eminent citizens of the state; some of which have been, and others may be, amended, by the Legislature. But as a constitution, the instrument is radically defective; first, that it is not obliga- tory upon the Legislature, but may be, as it has been, altered, by the power which makes the ordinary law; second, that it does not separate and define the powers of the several departments of the government; and third, that it has made every department subject to, and dependent upon, the Legislature. Consequently a despotic power lies in that body, which may be abused to party purposes, and to the subversion of political liberty. That this power has been so abused, is not less certain, than that every cause in action must produce its appropriate effect. That such abuses have not been intolerable, may be ascribed first, to the want of opportunity of working extensive evil ; for no great convulsion of the people has yet arisen, in which individuals could advance their interests, by the utter subversion of established principles, and drawing to themselves as members of the Assembly, the actual exercise of all political power; although a continued assumption of such power might, perhaps, be traced in the Legislature, from the establishment of the state government : 2dly, To the restraining power of public opinion, enlightened by that political science, which sends more or less of its rays into every part of our country, and to which the annual election of the members of the Legis. lature makes them amenable. But, that the state is subject to all the evils which may result from an unlimited and indefinite government, is as unques- tionable, as that the man who dwells beneath the impending avalanche, or on the slumbering volcano, is exposed to destruction from the fall of the one, or irruption of the other. That he has not already been overwhelmed, can be no protection against the next convulsion of nature.
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