constitution of the state. But if we must go on, I hope the gentleman from Oneida (Mr. N. Williams) will withdraw his motion, that an amendment adopting the language of the present statute on this subject, which is more comprehensive and explicit than the clause under consideration, may be framed and substituted.

MR. SANFORD offered such an amendment, as follows: "The truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous was published with good motives, and for justifiable ends, the party shall be acquitted."

When, on motion of MR. SPENCER, it was agreed to pass over this provision for the present.

The 5th clause, securing persons and effects from unreasonable searches, was then read and carried. The 6th clause, relative to trial by jury, was then read, when

GEN. ROOT said the trial by jury as heretofore, was what he did not wish to become a part of the constitution of this state---It would be better to abolish the trial by jury in civil cases, than retain the words as heretofore. Sir, there is nothing like trial by jury before the supreme court-though there is something like it in the inferior courts; but a trial by jury before the circuits, is mere matter of form, and of most expensive form. There the jury are directed how to find; they have no trouble; take your verdict says the judge; in vain the counsel interferes; the verdict is rendered, subject to the decision of the supreme court. If a juror rebel, there is a motion for a new trial. The cause is carried up; the case gets into Mr. Johnson's book; the big one or the small one; the decision of the supreme court is sent back to the circuit; then this decision is law and evidence, and if the jury do not find accordingly, they find against law and evidence. He wished the substance as well as form of the constitutional provision, and therefore proposed the following amendment: "The trial by jury as at common law shall, in all cases, civil as well as criminal, remain inviolate forever; and no court shall grant a new trial after two verdicts in any cause, in favour of the same party. But a trial by jury before a justice of the peace may be regulated according to the practice under the colony of NewYork, and in this state since the revolution."

He proposed this in order that the trial by jury might be restored according to its practice under the common law; not as it has been usurped upon both here and in England; but as it was exercised when the jury of the country was considered as the palladium of liberty, when twelve honest men could defend the liberties of their fellow countrymen, against oppression from any quarter. MR. DODGE moved to rise and report; lost.

The CHIEF JUSTICE wished, under the indulgence of the house, to say a few words in explanation to the only charge, he observed the gentleman from Delaware to have made; that the trial by jury has been rendered null in consequence of the directions given by the court; now I do say in the face of this Convention, and of that gentleman, that no such direction ever was given except by the consent of the counsel on both sides; whenever any objection was made on either side, such direction has never been given, as far as I remember, know, or believe.

The Chief Justice made some further remarks in explanation; when it was moved to pass over this clause. Carried.

The seventh section, relative to requiring bail, was then read.

MR. VAN BUREN asked whether the last words, "where the proof is direct,' or the presumption great," were meant to apply to all the excepted crimes, including murder.

THE CHIEF JUSTICE said the intention was to make these words applicable to the then cases excepted. The object of the committee was, that no bail should be taken, when it might be the desire of a party to pay in money rather than in person; where, by getting friends to give bail, a person suspected of a heinous offence, should have the opportunity of taking himself off, and escape punishment by the sacrifice of the amount of the bail.

MR. BRIGGS. If I understand the language of this section, persons in the cases excepted, are not to be bailable at all. Is this the language of the

clause? I wish it to read otherwise; and then Mr. Briggs transposed the clause, to effect his proposed object.

THE CHIEF JUSTICE said he had no objection to a transposition of the sentence; but, after Mr. Briggs had made the transposition, finding it did not express his meaning, he withdrew it.

MR. SHARPE and Mr. NELSON made some few remarks. The latter moved that the words "term of years," be stricken out; which was carried. The question was then taken on the whole section, and carried-so as to leave the provision that bail shall be taken in all cases except for crimes punishable with death, or imprisonment for life, when the proof is evident, or the presumption great.

The eighth clause, guaranteeing the right of public meetings, and of petitioning, being read,

MR. DUER moved the following substitute, of which he supported the proprie ty by a few remarks :

"The right of the citizens to assemble in a peaceable manner to petition for redress of grievances, and to discuss the measures and conduct of their rulers, shall not on any pretext be infringed; nor shall any citizen be held to answer criminally or civilly for any opinion expressed by him at said meeting."

COL. YOUNG thought there was one difficulty in this provision, though in the main he liked it better than the other. He would not give to a person in such public meeting, the right of libelling persons in authority, without being responsible, as in other cases.

MR. DUER thought the gentleman from Saratoga (Col. Young) mistook the bearing of this provision. The object of it was not to authorize the promulgation of facts, injurious to individuals, but to protect him in the expression of opinions, which, by the law of libel, as it now stands, are subject to prosecution.

MR. VAN BUREN agreed in opinion with the gentleman from Saratoga, that the latter part of the clause would be productive of evil.

MR. DUER could not consent to withdraw or alter his amendment. He conceived it essential that the citizen should have unbounded latitude in speaking of the measures and conduct of his ruler, being responsible, as elsewhere, for any facts he may allege. Sir, there has not been a resolution passed at any of your political meetings for years past, which may not be made the subject of a libel suit, as the law now stands. This question was once tried by Governor Lewis in a suit against Col. Few-and I am not aware that the supreme court then decided, that the citizen had the right, which it is the object of this provision to guarantee to him, of freely canvassing the motives and conduct of their public servants. I am desirous, said Mr. Duer, to have this principle incorporated in your bill of rights, for it is proper that the right of the people to assem ble and publicly canvass the motives and conduct of their rulers, should be acknowledged, or the law of libel be so modified, as that it should not be openly violated, as it now is, I again repeat, in the resolution of almost every political meeting. I must therefore persist in the clause.

MR. VAN BUREN and MR. WILLIAMS objected to this clause; and
MR. DUER again spoke in its favour.

On motion of MR. RUSSELL, the committee then rose and reported, and asked leave to sit again; and

The Convention adjourned.

TUESDAY, SEPTEMBER 18, 1821.

The Convention met at 10 o'clock. Prayer by the REV. MR. DAVIS; after which the minutes of yesterday were read and approved.

THE BILL OF RIGHTS.

MB. SHARPE moved that the Convention now resolve itself into a committee of the whole on the unfinished business of yesterday, (the Bill of Rights.)

MR. P. R. LIVINGSTON objected to it, and moved that the committee of the whole be discharged from the further consideration of the business of yesterday, with a view that the consideration of the bill of rights be postponed until 1st, January. We saw yesterday the whole day spent in debate, in which the judicial and legal talent of this house was engaged, and yet the result is such, as I persuade myself, no one will think adequate to the time spent on it.---Sir, a bill of rights is the mere repetition of the fundamental rights of this people, which have never been violated, and which, after forty years of practice under our constitution, we need not fear to see violated. Has the trial by jury, the liberty of the press, the writ of habeas corpus, ever been denied, invaded, or suspended? We saw yesterday two luminaries of the law, whom, by our constitutional difficulties we see on the verge of a constitutional grave; we saw them, in this awful situation, differing as to a most important point of law; we heard the gentleman from Oneida (Mr. Platt) assert, that in the provisions introduced into one clause, the sanction of the law was about to be withdrawn from the female sex, and we all saw the sensibility with which this house received the intimation of possible wrong intendsd to this interesting portion of our creation. We heard the gentleman from Otsego (Mr. Van Buren,) assert, that by one of the provisions reported, the motives of a publication, which are now to be judged by a jury, are henceforth to be de eided on by the court, You find my honourable colleague, (Gen. Tallmadge,) would carry you to the meridian of Washington, and arouse and mingle in this debate all those feelings which grew out of the Missouri question. We heard the gentleman from Delaware (Mr. Root,) who for ten years I have been proud to recognize as my friend and political mentor, and from whom I have seldom had occasion to differ, stating, that the trial by jury was a dead letter, owing to the directions now given by the court; and we saw an honourable judge rise in his place, and solemnly invoke his conscience in asserting that no such directions as imputed had ever been given. We saw my friend from Orange (Mr. Duer,) rise and propose a clause which some other members think would prostrate all rights.

If then the talents of the judiciary, cannot agree on a bill of rights; how shall we simple yeomanry be able to pronounce upon the great abstract points in jurisprudence, which are so interesting to the community at large? After all the contradictions and collisions on the subject, the Convention are still in the dark. Is it not discreet on this occason, to stop where we are? I think inaction, here, is wisdom; and silence, is prudence. I am unwilling to put it in the hands of the people of the state, to form an opinion on this subject, lest they may cheat themselves. Could it be shown that any of the rights of the people in this great community, were in jeopardy, from the bad administration of criminal jurisprudence. I should be for putting the question to the people, to get relief as quick as possible. If I am not mistaken, we have been informed by some gentlemen of the committee who made this report, that when they had the subject under consideration, it was thought that such a report was in a great measure unnecessary; as there were no eyils growing out of our former system, which would be probably remidied in this way.

What are your bills of rights? They are declaratory acts of the people, that the legislature shall not encroach upon their rights-and your constitution is very much the same thing. The people resume certain rights, which the legislature dare not infringe. The great branches of our government are so calculated as to guard and check each other; but when that branch, which is the great barrier between legislative encroachment and the rights of the citizens, is disposed to do wrong, it is to be feared there is something serious; that there is a want of virtue, of morals, and of public regard for the happiness of the people. On the contrary, should the legislature pass an act, encroaching on the privileges of citizens, and should it improvidently get into your statute books-I ask, whether it could be enforced, against the interest and happiness of the people? When the body politic becomes corrupt, there is nothing which can withstand them. They hold all power, and they will exercise it right or wrong.

Economy is very disirable to this Convention. Many of the citizens of this state are taken up with this business, and detained from their occupations and

there would be a majority of 40,000 in favour of making the office of the chief magistrate of annual duration. He could not believe this would be the result. But still there was no means of ascertaining popular sentiment. There was one thing which he deemed worthy of the consideration of the Convention, that the sense of this body has already been taken, by which it appeared that there was a majority in favour of two years; and he asked if it would be wise or discreet, since there is among us such a diversity of opinions, and as we are so nearly divided on the subject, to again call it up for consideration. It was desirable that on this, as on all other questions, we should proceed with harmony ;and to preserve this, some deference should be paid to a plurality; and by carrying this point too far, he feared the other amendments might be endangered. It appeared to him they were vibrating to the extremes. The term of service had heretofore been three years; it was now urged to reduce it to the least possible term, which was one year. He had hoped that the concession of those favourable to the two extremes, in establishing the term at two years, would have put this question at rest. It has been said by some gentlemen, that they should be influenced by the report of the committee of the whole, when on the appointing power. We have not yet considered that point, and do not know how it will finally be established. If we concur in the report of the committee on the appointing power, we shall take from the executive his agency in the appointment of about 16,000 officers, and leave him only the privilege of nominating between four and five hundred. If the appointing power is a patronage to the governor, which enables him to fix himself more permanently in office, which I very much doubt, it would naturally be supposed, that his being stripped of this power, would induce those gentlemen to vote for the longest term. What else have we done? We have given to the governor the power of returning bills to the legislature. Is this a power which will in any way add to the popularity of the governor? No-if it be exercised firmly, it will shipwreck him. The fears which have been expressed on that subject are well grounded; if he endeavours to resist the passage of a law, he endangers his existence in office. Again-the power of pardoning, in all cases except treason, has been given to the governor, including the crime of murder, which did not before belong to him. Can this be considered as a patronage to the executive? If it shall be used to gratify the individual, who has been convicted, he would venture to assert, that it would be at the peril of the executive. Mr. S. here spoke of the case of a reprieve, which at a former time had agitated the community; and although the governor had not the power of pardoning, and did not attempt to exercise such power, still his office was endangered. could not conceive, that the Convention had done any thing to add to the patronage of the governor, or which will enable him to fortify and extend his influence. On the contrary, they had imposed upon him duties, which would expose him to the probable loss of public favour. We are now altering a constitution, under which we have lived for forty-four years, without any complaint on this subject, as far as he could learn, and carrying the point to an opposite extreme. He would not enter into the reasons which had been so ably urged on this occasion-they were perfectly convincing to him-and when it was considered that the state now contains more than 1,300,000 inhabitants, and in the course of half a century will probably contain from three to five millions, it must convince every rational man, that an annual election will be productive of mischievous consequences.

He

MR. RADCLIFF remarked, that at present he should be against the motion: but if the patronage of the executive were increased, he should feel at liberty to alter his vote.

MR. NELSON. It was not his intention to enter into this discussion at large. The whole subject has been ably examined. He only intended to examine the facts as to public opinion which hon. gentlemen, in favour of one year, state are so strongly in favour of their position. It has been repeatedly urged that if the question was submitted to the people of this state, whether they would have one year or two, for the governor's term, there would be forty thousand majority in favour of one. He could not believe it. He was from the western part of this state, and had taken some pains to collect public sentiment in that quarter,

MR. SHARPE said the provisions of the bill of rights may be as well considered as separate amendments to the constitution, and added in their proper places, when the draft of the amendments generally shall be under consideration. These provisions have already been discussed; and if the report is now to be postponed, and the subject brought up in another shape, the same discussion will be again gone through, and much time lost.

MR. VAN BUREN wished the gentleman from Dutchess would modify his mo tion, so as to refer the report on the bill of rights to another committee, to ascertain what parts of it may be engrafted in their proceedings.

MR. LIVINGSTON said that the Convention could not suppose him unwilling to comply with any suggestion as to saving time; and he would, therefore, so modify his motion as that the committee of the whole should be discharged from the further consideration of the bill of rights, and that the same be referred to the house when in committee of the whole, on Mr. King's report. The motion was then put in this shape, and carried.

MR. DUER presented a memorial from sundry inhabitants of the county of Orange, praying that all legislatures might be hereafter prevented from fixing their own pay, and that the same should never exceed $2.50 per diem-the memorial was read and referred to the house when in committee of the whole on Mr. King's report.

THE EXECUTIVE DEPARTMENT.

On motion of GEN. ROOT, the Convention then again resolved itself into a committee of the whole, on the report of the committee on the Executive Department-Mr. Radcliff in the chair.

GEN. ROOT moved to strike out five, so as to make the age thirty, instead of thirty-five. I believe a governor of thirty would do very well-as well as one of fifty-the motion was put and carried.

MR. RUSSELL moved that the power of pardon or commutation of punishment in cases of treason (where alone it is granted) be taken away from the legislature carried.

MR. P. R. LIVINGSTON wished to insert the words "by message," so as to make it the duty of the governor to address the legislature by message instead of speech. This latter mode has been productive of great inconvenience and expense. I had the curiosity once to look over the journals, and I ascertained that it had cost $70,000 to the state during ten or fifteen years, in debate about the reply to a governor's speech. This speech is a relict of monarchy, founded in the love of pomp, and splendour, and show. Besides, when the two houses are of a different political character, one approves, the other condemns the speech; and in 18.4, the assembly spent eleven days in discussing the propriety of an answer to the governor's speech, yet we all know that neither a speech nor an answer is legislation. In the general government, until Mr. Jefferson's accession, a speech was delivered by the President and an answer was read; but Mr. Jefferson cut up the practice by the roots by sending a message. Besides, for the sake of the harmony due to the proceedings of the two houses, when of different political characters, it is best to have a message. We have seen, and might see again, a governor on his own carpet, obliged to listen to sentiments which must be odious to him; obliged to submit in quiet to a flagellation, as bitter as political hostility could make it. To be sure, the governor has the last word, and he sends back a reply more bitter, if possible, than the answer; but all this is injudicious and improper, and will be done away by adopting the proposition I have the honour to make.

MR. TOMPKINS thought the motion unnecessary, as we shall now probably expunge from the constitution the provision which rendered it the duty of the governor, in compliance with ancient custom, to deliver a speech in person. When I entered upon this office, I consulted the venerable men who had preceded me in it, as to the propriety of dispensing with this practice, but they all concurred in the opinion, that according to the usage established since, and adopted from the colonial government, it could not be dispensed with; but as we shall, I hope, expunge these provisions from the constitution, I think the mation unnecessary.