Aside from James Tallmadge, who thought the Legislature should have nothing to do with the patronage of government, this report called out little opposition, so far as it provided for the election of state officers by the Legislature, military officers by the militia, and the appointment of higher military and judicial officers by the governor. Van Buren had made it plain, by his exhaustive argument, that constitution-makers, seeking the latest expression of the people's will, could devise no better plan, and that experience in the newest States having the same system, had developed no serious objection. There was a readiness, also, to accept the recommendation allowing the Legislature to designate the manner of selecting the three thousand six hundred and forty-three notaries public, commissioners of deeds, and other minor officers. But a buzz of disapproval ran through the convention when the article providing for the election of justices of the peace was reached. It was evident from the outset, that a concerted movement was on foot among Republican leaders to establish, at the seat of government, a central appointing power of large authority, and the appointment of justices of the peace was peculiarly essential to its strength. A justice was of more importance then than now. He was usually the strongest character in his vicinage, and whether he followed the plow, or wore upon the bench the homely working clothes in which he tended cattle, he was none the less familiar with the politics of every suitor in his court. In the absence of higher courts, neighbours were compelled to go before him, and in settling their troubles, it was usually understood that he held the scales of justice without being blindfolded.
Van Buren did not conceal his hostility to the election of these justices. If he had developed radical tendencies in the suffrage debate, he now exhibited equally strong conservative proclivities in limiting the power of the voter. His vigorous protests in the committee-room against the election of surrogates, sheriffs and county clerks had defeated that proposition, and in referring to the section of the report making justices of the peace elective, he said it had been a source of sincere regret that the committee overruled him. But a majority of the committee, he continued, in his smooth and adroit manner, had no strong personal predilections on the question of the election of sheriffs and surrogates, and if, on a fair and deliberate examination, it should be thought better to have these officials elected by the people, they would cheerfully acquiesce in that decision. This was the quintessence of diplomacy. He knew that Erastus Root and Samuel Young insisted upon having these officers elected, and, to secure their opposition to the election of justices of the peace, he indicated a willingness to be convinced as to the expediency of electing sheriffs and surrogates.
To bring the question of electing or appointing justices of the peace squarely before the convention, Van Buren, at a later day, introduced a resolution providing that the board of supervisors in every county should, at such time as the Legislature directed, recommend to the governor a list of persons equal in number to the justices of the peace in such county; that the respective courts of common pleas of the several counties should also recommend a like number, and from the lists so recommended the governor should appoint. In the event of vacancies, like recommendations were to be made. The governor was also authorised to remove a justice upon the application in writing of the body recommending his appointment. This scheme was not very magnificent. It put the responsibility of selection neither upon supervisors, courts, nor governor, although each one must act independently of the other, but it gave the governor a double chance of appointing men of his own political faith. This was Van Buren's purpose. He believed in a central appointing power, which the Albany Regency might control, and, that such power should not be impotent, these minor and many magistrates, thickly distributed throughout the State, with a jurisdiction broad enough to influence their neighbourhoods, became of the greatest importance. To secure their appointment, therefore, Van Buren was ready to sacrifice the appointment of sheriffs, with their vast army of deputies.
Van Buren's scheme was ably resisted. Rufus King, who was counted a Bucktail but until now had taken little part in debate, spoke against it with all the sincere emotion of one whose mind and heart alike were filled with the cause for which he pleaded. He thought justices should be elected. Each locality knew the men in whom it could trust to settle its disputes, and farmers as well as townspeople should be allowed to select the arbitrator of all their petty quarrels and disagreements. It was the very essence of home rule. In vigorous English Ambrose Spencer, William W. Van Ness, and Jacob R. Van Rensselaer supported the Senator, while Ogden Edwards of New York City, an able representative of Tammany, burning with a sense of injustice, violently assailed the proposed plan. "The unanimous vote of this convention," he said, "had shown that the Council of Appointment was an evil. A unanimous sentence of condemnation has been passed upon it, and I had not expected so soon to find a proposition for its revival."
Probably no stranger scene was ever witnessed in a parliamentary body than Erastus Root and Samuel Young, two radical legislators, advocates of universal suffrage, and just now especially conspicuous because of their successful support of the election of sheriffs and county clerks, arguing with zeal and ability for the appointment of justices of the peace. It seemed like a travesty, since there was not an argument in favour of electing sheriffs that did not apply with added force to the election of justices. The convention stood aghast at such effrontery. It is impossible to read, without regret, of the voluntary stultification of these orators, pleading piteously for the appointment of justices of the peace while declaiming with passionate righteousness against the appointment of sheriffs. With acidulated satire, Van Ness, enrapturing his hearers by his brilliancy, held them up to public ridicule if not to public detestation. But Van Buren's bungling proposition, though once rejected by a vote of fifty-nine to fifty-six, was in the end substantially adopted, and it remained a part of the amended constitution until the people, very soon satisfied of its iniquity, ripped it out of the organic law with the same unanimity that their representatives now abolished the Councils of Appointment and of Revision. Could Van Buren have had his way, the Council of Appointment would have been changed only in name.
The work of the convention concluded, a motion for the passage of the Constitution as a whole developed only eight votes in the negative, though twenty-four members, including the eight delegates from Albany and Columbia Counties, four from Montgomery, Jonas Platt of Oneida, and Peter A. Jay of Westchester, because it extended and cheapened suffrage, refused to sign it. Other objections were urged. Ezekiel Bacon of Utica, explaining his affirmative vote, thought it worse than the existing Constitution of 1777; yet he approved it because the provision for amendment afforded the people a means of correcting defects with reasonable facility, without resorting to the difficult and dangerous experiment of a formal convention.
The Constitution, however, in spite of the opposition, was overwhelmingly ratified. The vote for it was 74,732; against it 41,043. And it proved better than even its sponsors prophesied. It abolished the Councils of Appointment and of Revision; it abolished the power of the governor to prorogue the Legislature; it abolished the property qualification of the white voter; it extended the elective franchise; it made a large number of officers elective; it modified the management of the canals and created a canal board; it continued the Court of Errors and Impeachments; it reorganised the judicial department, making all judges, surrogates, and recorders appointive by the governor, with the advice and consent of the Senate; it made state officers, formerly appointed by the Council, elective by joint ballot of the Senate and Assembly; and it gave the power of veto exclusively to the governor, requiring a two-thirds vote of the Legislature to overcome it. No doubt it had radical defects, but with the help of a few amendments it lived for a quarter of a century.