in which it would be improper for a member elected in April to take his seat in January. It is a settled maxim, that a legislative body should meet as soon after the time of its being elected, as possible.

MR. CARVER moved to strike out the words " at such time in the month of October or November," and insert, "the last Tuesday in October."

MR. FAIRLIE thought this question had just been decided. The last Tuesday in October would be an inconvenient time, should the yellow fever prevail in the city of New-York. He inquired what would be the effect of this change, in regard to the choice of electors of president and vice-president?

GEN. ROOT said the Convention ought not to descend to legislative detail. For some time past the legislatures have been afraid to trust to the Convention; and now the Convention are afraid to trust to the legislature. As to the election of electors of president, he thought we ought not to interfere. He hoped the time was not far distant, when the people would have the right of choosing these electors, which has so long been usurped from them, restored.

The motion to strike out was lost, and the first part of the report of the committee carried unanimously.

GEN. ROOT then moved that the committee rise and report their agreement to the first proposition; for the purpose, when again in Convention, of moving to discharge the committee of the whole from the further consideration of the last part of the report, which relates to the term of service of the governor, lieutenant governor, and senators, with a view of referring the same to the committee of the whole, when on the report of the executive committee.

The motion was carried.

When the question on agreeing to the report of the committee of the whole, was put,

CHIEF JUSTICE SPENCER rose, and remarked, in substance, that he did not understand that the whole of the first paragraph of the report of the select committee, was adopted by the committee of the whole. He thought that the committee of the whole had agreed to no more than related to the time of holding the election; otherwise he should have proposed an amendment in regard to the present mode of canvassing the votes for governor and lieutenant goverror. He thought the votes should be returned under seal to the secretary of state, who should deliver them over to the president of the senate, and they should be canvassed and declared in joint meeting of both houses of the legislature. The present method of canvassing he thought highly improper. Such an instance has never occurred in this state-but suppose there should be a tie in the votes of rival candidates. How should it be determined who should be the governor? There were many other evils incident to the present system; and there was difficulty in making decisions, in consequence of misnomers, mis-spelling, &c. For these and other reasons, the report of the committee of the whole ought either to be amended, or again sent back to the committee of the whole.

MR. J. SUTHERLAND said there was great force in the remarks of the gentleman last up; but he thought there was no connexion between the subject brought forward by him, and the report of the committee. His proposition should be attended to elsewhere.

MR. VAN VECHTEN moved to amend by striking out the word "persons," and inserting the words "members of the senate and assembly." The object was to have the term of service of the members of the legislature commence on the first of January, and to leave the term of service of the governor and lieutenant-governor to be fixed hereafter.

GEN. TALLMADGE moved that the Convention disagree to the report of the committee of the whole, for the purpose of referring the whole matter to the executive committee.

Some desultory conversation ensued, when Gen. Tallmadge withdrew his motion, and the motion of Mr. Van Vechten was lost.

MR. SWIFT moved to amend by striking out the "first day of January," and insert "first Monday of January." The official terms of the governor, &c. might commence on Sunday.

The President thought the amendment unnecessary. The official term of the governor had several times commenced on Sunday. This makes no difference.

GEN. ROOT said a few words in opposition; and the motion was withdrawn. The report of the committee of the whole was then agreed to by the Convention.

On motion of GEN. ROOT, the committee of the whole were then discharged from the consideration of that part of the report of the select committee (relating to the annual election of governor and lieutenant-governor) and the same was referred to the executive committee: And the remaining part, (relating to the term of service of members of the senate) was ordered to lie on the table.

MR. SHELDON then called for the consideration of the amendments of the rules and orders of the Convention, reported by the committee on that subject on Friday.

The amendments were, to expunge the 15th rule, and insert the following:

15. All questions, whether in committee or in Convention, shall be put in the order they are moved, except that in filling up blanks, the largest sum and longest time shall be first put.

And to add as rule 22d, the following:

22d. When a question is under debate, no motion shall be received. unless to amend it, to commit it, to postpone it to a day certain, for the previous question, or to adjourn.

These amendinents were adopted.

THE EXECUTIVE DEPARTMENT.

On motion of CHIEF JUSTICE SPENCER, the Convention then resolved itself into a committee of the whole, on the report of the committee who were directed to enquire whether any, and if any, what alterations are necessary to be made, in that part of the constitution of this state, which relates to the executive department-Mr. Radcliff in the chair.

The report of the committee, (for which vide proceedings of Friday, page 86,) having been read

CHIEF JUSTICE SPENCER moved an amendment as follows:

The returns of every election for governor and lieutenant-governor, or lieutenant-governor only, shall be sealed up and transmitted to the secretary of state, by the clerks of the several counties, directed to the lieutenant-governor, or president of the senate. The secretary shall, on the first day of the succeeding session of the legislature, deliver the said returns to the lieutenant-governor, or president of the senate, who shall open and publish the same, in presence of the senate and as. sembly, in joint meeting. The person having the highest number of votes for governor, shall be governor; and the person having the highest number of votes for heutenant-governor, shall be lieutenant-governor; but if two or more shall be equal, and highest in votes, for governor, one of them shall be chosen by joint ballot of both houses; and if two or more shall be equal, and highest in votes for Leutenant-governor, one of them shall, in like manner, be chosen lieutenant-governor. Contested elections for governor or lieutenant-governor, shall be determined by both houses of the legislature, in such manner as shall be determined by law.

The Chief Justice observed, that the great power of deciding whether the governor was duly qualified to accept of the office, on account of his age, residence, and citizenship, should be referred to the immediate representatives of the people. Mr. S. said he did not wish to revive any feelings which were now slumbering in oblivion; but if it were necessary to enforce the principles contained in his amendment, he could refer to a period when a provision of this nature would have been important. The transaction to which he alluded was near shaking the state to its centre. There ought to be a right of enquiring into the qualifications of a governor elect. It had been said by a gentleman from Schobarie, (Mr. Sutherland) that the oath would be a sufficient guarantee. But others were interested in that question: and it ought not to be con

clusive upon the people. He would fix the time of the session of the legisla ture in the manner that congress has fixed it; and the governor should enter upon the duties of his office at some convenient time after the meeting of the legislature.

MR. SHELDON asked if the amendment proposed was not incongruous with the report of the committee?

The CHIEF JUSTICE Conceived not.

The question was taken on the amendment, and it was adopted-with an understanding, however, that the amendment should be printed, and reconsidered afterwards, if gentlemen should wish to take that course.

MR. TOMPKINS moved an amendment in the second section, which related to pardons, so as to prevent the executive from extending pardons in cases of impeachment.

CHIEF JUSTICE SPENCER said that impeachment does not imply the conviction of a crime in the legal sense. After a public officer has been impeached,

he is liable to indictment if the offence is criminal.

MR. TOMPKINS assented to the correctness of the remark made by the gentleman from Albany. He thought, however, that in making a constitution, it was expedient, to make the instrument clear and explicit, and leave nothing to implication.

MR. KING thought that constitutions should be explicit; and moved an amendment in the phraseology, that he thought would meet the views of all parties. The suggestion was assented to.

MR. VAN VECHTEN read a clause from the constitution, and explained it. He assented to the remark of Mr. Spencer, that a person after impeachment was indictable and punishable, after removal from office.

MR. KING said that crimes of this kind were cognizable in two ways-first by impeachment, which goes to a removal from office, and future disqualification. Secondly, by indictment and conviction in courts of law. The governor ought not to have the power of pardoning in such cases. The president of the United States has not that power, and it is the only exception in the constitution, which denies to the president the right of pardoning.

Messrs. SPENCER and VAN VECHTEN both disclaimed having advocated the doctrine of giving the executive the power to pardon in such cases.

MR. N. WILLIAMS was in favour of the amendment, and strongly urged the necessity of adopting it, from the circumstance that distinguished gentlemen disagree as to the true construction of the constitution. We did not come here to settle nice technicalities, but to amend the constitution so that all may understand it.

The amendment proposed by Mr. Tompkins, was adopted.

MR. RUSSELL moved to amend this part of the report by inserting after the word" reprieve," the words "or commute the punishment." The object was to give the legislature the power to commute punishment-this power had formerly been questioned, particularly in the case of Stephen Arnold, twelve or fifteen years ago. Adopted.

MR. TOMPKINS moved another amendment, authorising the governor to require the judiciary to report all the convictions with the minutes of, and that they be laid before the legislature.

CHIEF JUSTICE SPENCER said that the judges commonly submitted the minutes of testimony to the governor when pardons were solicited.

MR. VAN BUREN thought such reports would be voluminous, without much benefit.

MR. TOMPKINS explained and pointed out the inconveniences of the present practice, and observed, that under a new and different organization of the judiciary, the remote residence might render it more exceptionable.

MR. VAN BUREN thought it was proper to strike out of the report that part which requires the governor to report to the legislature all the cases in which pardons have been granted, and the grounds upon which he proceeded; and therefore proposed to divide the question on the amendment offered by Mr. T. so as to have it first taken on striking out.

MR. SHARPE was in favour of striking out-The executive was often imposed upon by the misrepresentations of persons who make it a business to procure pardons. It is sometimes a matter of policy to grant pardons, when the reasons ought not to be divulged. In many cases by granting a pardon to one villain, you lead to the detection of many others.

MR. EDWARDS was opposed io striking out. He said, in substance, that by the indiscreet use of the pardoning power, the administration of justice had become so relaxed, that if not checked, we should soon have to erect state prisons in perhaps every county of the state. The exercise of the power of pardoning is pleasant-it is humane-it is agreeable to the best feelings of the human heart. But sad experience has taught, that the interests of the community require that the civil arm should be brought to bear with power upon ma lefactors. It was the remark of an eminent judge, now gone down to the grave, that mercy to the criminal, was cruelty to the state. If you exercise this pardoning power to the extent that has been done, what will be the consequence? The rest of society will be exposed to the depredation of villains.-The laws should be exercised with a strong and resolute hand. Our penal code is mild; and the measure of punishment is meted out to all, in the proportions they deserve. If a reasonable doubt exists, the felon is acquitted. But should he be convicted, there is still a discretion reposed in the court for his benefit. Why has the pardoning power been so fully and frequently exercised? Why are our prison doors so often thrown open, and villains let loose to prowl upon society? Is it because our executive has been too much influenced by feelings of humanity? The governor must nerve himself against their solicitations, and act with a consciousness that he must account to the people for the manner in which he uses this pardoning power. Even in Great Britain, a pardon never passes the great seal, without containing a recital of the causes for which it is extended. But in this state, they are granted without a single reason for it. And after the inhabitants of a county have exercised their vigilance in detecting the felon ; after the jurors have convicted, and the judges sentenced him, the interposing hand of the executive rescues him from punishment. Unless we abolish this system, we may as well open the prison doors at once. They enter novices in iniquity, and remain just long enough to become professors of all its arts. This is the practical operation of the system; and unless we nerve ourselves against it, sooner or later the rights of the people of this state will be held by a most precarious tenure. This sickly sympathy is wearing away the foundations of our laws.-Placed here as one of the guardians of the rights and privileges of the people, I wish to have such a provision inserted in the constitution, as shall prove an effectual check upon vice.

MR. BUEL concurred in the sentiments advanced by his friend from NewYork. He had seen the practical and pernicious effects of the lavish exercise of the pardoning power. He would not be understood to cast any imputation upon those on whom the exercise of it had devolved. It was doubtless intended to be exercised discreetly. But the executive was often imposed upon; and if compelled to record the reasons which induced him to grant pardons, he would be more watchful. The only objection of moment, which he could perceive, are the reasons of state that might occasionally require the exercise of this power. This, he thought, might easily be obviated, by the governor's making, in such cases, confidential communications to the legislature, which should not be entered upon the journals.

CHANCELLOR KENT expressed his respect for the opinion of the gentleman who had last spoken; but he was in favour of striking out, as most conformable to sound policy. Pardons were often granted on the ground of humanity, and from the hope of reformation. Sometimes upon condition of leaving the state, and less often on account of dissatisfaction with the mode of conviction. He thought it inexpedient to require the executive to give his reasons. Importaut considerations might prevent the propriety of such a course. He recollected a case during the revolutionary war, in which a man was convicted of treason, or some other criminal offence, and pardoned on condition of his acting as a spy. To require a reason to be given in such a case would be impolitic; and it would be absurd to assign those general reasons to which he had before advert

.ed.

An inflexible execution of the law he thought was impossible-particularly so when a felon is sentenced to imprisonment for life. Public indignation will be overcome by the stronger sympathies of our nature. The pardoning power will be assailed by the inspectors of the prison-by the friends and family of the convict; of the judiciary department, to which that power was formerly, in a degree, confided. In Europe, execution follows immediately upon conviction, and the criminal is removed forever from sight, before public indignation has subsided. But in this country a different practice has prevailed, and sympathy revives before the sentence of the law is carried into effect. Mr. K. thought it better to repose in the executive the exercise of this sound discretion. It was a sufficient check upon the government to report the names of the criminals-their crimes-the time when, and the place where, they were con

victed.

MR. SHARPE was of the same opinion. He said that a standing committee was appointed every year by the legislature on the subject of the penitentiary system; and a complete return of their condition was annually made to the legislature and referred to that committee. If, then, any special abuse was supposed to exist, that was a clue by which it could be unravelled. It was an important subject; and had deeply engaged the attention of the legislature. It had been said, and perhaps truly, that it cost the state more to keep a culprit in prison, than to educate a youth at college. But it was a state of things that was not perhaps susceptible of remedy. The state prisons were crowded, and sometimes from the apprehension of sickness, but more frequently from the former cause, it had been found necessary to grant pardons to the least guilty.

MR. S. expressed his satisfaction that by a late act, they were employed on the canal. He hoped they might there do some good; and even should they escape, their escape would be less pernicious than their pardon; and every one that thus runs away, confers a blessing on his country. Mr. Sharpe thought the requirement to assign reasons for pardoning was unnecessary and impolitic, and he should therefore vote against it.

CHIEF JUSTICE SPENCER said that state prisons were instituted from a repugnance to sanguinary punishments. In the increase of population, crimes had naturally increased until our state prisons had become thronged. There was room for no more. Something, therefore,must be done; and the judges had found it necessary to recommend to the governor, from time to time, that the least criminal should be pardoned. If the plan of solitary confinement were adopted, the evil would in a great degree be diminished.

MR. FAIRI IE suggested the expediency of modifying that part of the report, so that the legislature might require information from the executive, in relation to pardons, whenever they might deem it expe lient.

MR. YATES Suggested a different modification; which

MR. TOMPKINS said was out of order.

MR. NELSON was not opposed to having the power of granting pardons lodged with the governor, provided the legislature might require information as to the reasons for granting such pardons, in cases where it should be thought expedient and proper. He mentioned instances of frauds that had been practised in procuring pardons. He thought the executive should state the reasons for granting pardons, give the names of those who solicited pardons for convicts, and what were their representations.

MR. P. R. LIVINGSTON, on so important a question, was unwilling to give a silent vote. Experience has shown the present system to be unfortunate. There can be no question agitated in this Convention, of more interest to the people, at large, than that course of policy which is adopted in relation to that portion of the community who are preving upon the property and lives of the citizens. The great question here to be settled, is, whether you will incorporate into the constitution a check on that power, which we agree is wisely vested in the chief magistrate. The executive of the state is to see that your laws are executed, and the power of pardoning ought to be exercised somewhere, and I know of no place where it can be more safely vested than in the executive. It has been stated by the honourable gentleman from Albany, (Mr. Kent,) that feelings of humanity, and hopes of reformation, had influenced him to exercise