4th. To the Governor, by and with the advice and consent of the Senate. These respective modes had been, he said, discussed and attentively considered by them. The project of electing a council, was thought liable to most of the objections which had been urged against the old council. There would be a want of responsibility, as now. And it was apprehended that their election would create a great excitement. The incumbents in office, and those desirous of obtaining offices, together with their respective friends, would, of course, feel a deep interest in the election of this council; and this would, of course, pervade every part of the state. Or, if such a council were to be chosen by the legislature, not from among the members of either house, though by being separated entirely from the business of legislation, would remove a part of the objections existing with respect to the present council. It was believed it would, notwithstanding, be attended with serious objections. It would necessarily produce some objection in the legislature, if they met at a different time or in a different place: yet the objection of irresponsibility, would remain in full force. The Convention had already increased the powers of the executive, and the committee were unwilling to add to it the patronage of the sole power of appointment to office. Besides their own conviction that this was not advisable, they were perfectly confident that public opinion was opposed to such a regulation.

Nor were they satisfied that it would be proper to vest this power in the two branches of the legislature. They had already recommended that the appointment of some officers should be made by them, for reasons he had already explained; and these were all they thought ought to be appointed in this way.In some of our sister states, this mode of appointment obtained, and had been found to operate beneficially; they were, however, differently circumstanced from us, having a less numerous population, and a smaller extent of territory. They had considered a connexion between the legislative and appointing power, as at best objectionable; the improper influence that such connexion was apt to have on legislation, was fully appreciated by them; and had induced them to recommend a mode, which, though not free from this objection, yet lessened the difficulty, by limiting the connexion to ore branch only.

And this brought them to the fourth, and last plan mentioned, to wit: vesting the power in the governor and senate. This, he believed, they had unanimously considered as unaccompanied with the fewest objections; he might possibly be mistaken, but he was confident they were unanimously in favour of this project in the first instance.

The committee, he said, were fully aware of the objection to this mode, arising from the unfavourable effect which the possession of the power of appointment was calculated to produce upon the senate as a branch of the legislature; but more particularly from its being a court of the last resort. But they also knew that no plan could be adopted which would be free from objections of some kind-they knew that it was the fate of all human institutions to be imperfect, and they were therefore more content with the system they had recommended, than they otherwise would have been. They found, too, that they could not exempt the general appointing power from this objection, unless they gave it wholly to the governor, or to him in connexion with a council to be elected by the people; the former mode they had no reason to believe would be acceptable to any portion of the Convention; and the latter, they supposed, would not, in all probability, be relished by their constituents much better than the retaining of the old council.

They had not, he said, been able to derive any material benefit from an examination of the practice of other states. They had examined all their constitutions, and found that they varied greatly from each other. In Pennsylvania and Delaware, the power of appointment to office is vested in the governor singly. In Maine, Massachusetts, Maryland, North-Carolina and Virginia, the governor, and a council similar to ours. In Connecticut, Rhode-Island, Vermont, New-Jersey, South-Carolina, Georgia, Ohio, Tennessee, Mississippi, and Alabama, in the legislature. New-Hampshire was the only state in which they had a council chosen by the people. In Kentucky, Louisiana, Indiana, II

linois, and Missouri, the power is vested in the governor and senate as is proposed by the report.

The fact that the constitutions which had been recently formed, and might therefore be in some degree regarded as the most recent expression of the sense of a portion of the American people, were in unison with the plan they had reported, and calculated in a measure to recommend it. And so, likewise, was it, that a similar provision was contained in the constitution of the United States. But here, candour required the acknowledgment that there was an important difference between our state senate, and that of the Union-as the first was also a court of dernier resort; and the latter possessed no judicial power whatever.

Those considerations, together with the impracticability of devising any sys tem, which in their opinion would be better, had induced them to recommend the constituting of the governor and senate the general appointing power. And they had given the exclusive right of nomination to the governor; this they thought very necessary, and the only way in which that would fix a responsibility for the appointments to be made; and because they were all convinced that the alteration which had been made to the constitution in 1801, had proved injurious, and such they firmly believed, was now the opinion of the people of this state.

He was not very sanguine that they had adopted the best, and wisest system that could be devised. It was very possible they might be mistaken in their views.

They had given to the Convention the result of their deliberations, to be disposed of as they should think proper. It would be arrogance in them to presume that their judgment on this subject was infallible, or that their report was free from great imperfection-he would say for himself, and from the good sense and good feeling which had characterised the conduct of the committee, he knew he could say for them also, that if any plan should be proposed by others, which would better subserve the public interest, it would receive their cheerful and sincere support.

Having, then, came to the determination to place the general appointing power in the governor, by and with the advice and consent of the senate; the next question to be settled was, what appointments should be conferred upon it. The committee, he said, had all agreed, that the highest military officera should receive their appointments from this source, though some were of the opinion, that these might safely be entrusted with the executive alone, as commander in chief. They had all united in the opinion, that all judicial officers, except surrogates and justices of the peace, ought also to be appointed in this way; two members of the committee were in favour of having the surrogates elected by the people.

With respect to that section of the report, which provides for the election of justices of the peace by the people, a great contrariety of sentiment had existed among them. Neither that section, nor the next, which provided for the appointment of certain officers in the city of New-York, had received his

assent.

He had, at every stage of the discussions before the committee, been decidedly opposed to the election of justices; and it had been to him a source of Sincere regret, that in that respect, he had been overruled by the committee. Only four of the committee had agreed to the section making justices elective, and one of that number had consented to it, rather for the sake of agreeing upon something to report, than from a conviction of the propriety of the mode recommended. He would, he said, here observe, that the two sections just mentioned were the only parts of the report, of any moment, from which he had dissented. A minority of the committee, however, thought they had not gone far enough in curtailing the patronage of the general appointing power, and were for including sheriffs and surrogates; in this he had differed from them, His reasons, therefore, it would be more proper for him to give when these respective subjects should come under discussion in that committee. He would now content himself with stating, that the majority of the select committee, had not, on the question respecting sheriffs and surrogates, nor on that relating

to justices of the peace, any strong personal predilections. They feel themselves entirely open to conviction on these, and on all other points, which might be raised respecting their report; and if, on a fair and deliberate examination, it should be thought that it would be better to have the sheriffs and surrogates elected by the people, they would cheerfully acquiesce in that decision.

Having now, in a very brief manner, detailed the conduct and views of the select committee, with respect to the appointment and election of officers, he would next submit a few remarks on the subject of the tenure and duration of the several offices. The select committee, he said, had supposed that it would be well to give the militia themselves, the power of electing their officers-this course was pursued in several of the states, and it was understood, had proved beneficial. But the nature of the power to be exercised by these officers, and the necessity of enforcing discipline, and preserving a due subordination in the privates, would require that they should, when once elected, be placed beyond their further control. They thought moreover, that there was something peculiarly improper in subjecting the commissions of militia officers, in any degree, to the fluctuations of party; and they had, therefore, recommended, that they should not be removed except by a court martial, or by the senate, on the recommendation of the governor, and even then, that the governor should state the reasons for requesting the removals.

The committee were also of the opinion, that it was injurious to a due and regular administration of justice, that judicial officers, who did not hold during good behaviour, should be at all times subject to removal at pleasure and without cause; and as had hitherto been the practice, to be changed with every fluctuation of party; this instability in the administration of justice, was calculated to do permanent and serious injury to the best interests of the state. They believe they have laid the axe to the root of this evil, by rendering it necessary, that no removals should take place but for causes publicly assigned, and this they believe, would be an effectual check, to prevent their being made on mere party grounds. It would not, in their opinion, answer to go farther than this; for if they required a regular trial on all complaints, the whole time of the senate would be consumed with these investigations.

With respect to the officers, to be appointed by the legislature, and the clerks of courts, they had thought, that they might with safety, be left to be removable at the pleasure of those from whom they received their appointments.

I have now, added Mr. Van Buren, given a succinct account of the reasonings, and inducements, which governed the select committee, in making the report, they have presented to the Convention; the subject had occupied much of their serious attention, and deliberation, and all had but served to convince them, of the many and great difficulties, with which it was incumbered; and had also prepared them to look for, and expect, a great difference of opinion, among the members of the Convention, with respect to the several parts of their report. But as they were not by any means, wedded to the system they had presented, and entertaining a hope, that the wisdom of the Convention, would be able to devise something, in part, at least, less objectionable, they had endeavoured to keep their own minds, entirely open for the adoption of any alteration, or modification, which might be offered, and which should appear to them, to be better calculated to advance the public interest.

GEN. ROOT said the first section was objectionable for two reasons. 1st, it provides, that the non-commissioned officers shall be appointed by the captain. There are ten of these officers to each company; and the selections are to be made from those who elect the officer that is to make the appointments. This would open a door for intrigue; and the old distich would be realized,

"Tickle me, Billy, do, do, do,
And in my turn I'll tickle you."

It would, in his opinion, be much better, that the non-commissioned officers should be elected by the companies.

The 2d objection was, that boys are permitted to vote. It was an established rule in all other cases, that minors should be excluded from the privilege of voting, and he saw no reason why an exception to the rule should be made

in this instance. We had often been told, in the course of our proceedings, that taxation and representation should go hand in hand. Minors are not taxed, and therefore should not vote. They are under the control of their parents, guardians, or masters; and if fined, the parent, guardian, or master, as the case may be, is responsible for the fine. The minor does not, therefore, act for himself, and if he should be invested with the privilege of voting, he would be subject to the intrigue, influence, and control of others. He hoped this section would be amended by providing that the non-commissioned officers should be elected by the companies, and that none except those who are above the age of twenty-one shall be entitled to vote.

MR. VAN BUREN was not tenacious on this subject, but thought this limitation of age would have a tendency to repress ambition, and to occasion diffi culty and inequality in the mode of evidence by which the age of the minor should be tested. If they are eligible to office, it would seem proper that they should be permitted to vote; and experience had shewn, in the eastern states, that they had often made very valuable officers.

After a debate somewhat colloquial, the section was modified, amended, and carried in the following words :

"Captains, subalterns and non-commissioned officers (shall be appointed) by the written votes of the members of their respective companies."

MR. VAN BUREN moved to insert the words " and separate battalions"-after the word " regiment" in the first line of the second section, and also at the close of the same. Carried.

The second section was then passed, as amended in the following words"Field officers of regiments and separate battalions, by the written votes of the commissioned officers of the respective regiments and separate bat

talions."

The subsequent sections after considerable discussion relative to the settlement of their respective details, were finally passed in the manner following

Sect. III. Brigadier generals by the respective officers of their respective brigades.

Sect. IV. Major generals, brigadier generals, and commanding officers of regiments or separate battalions, to appoint the staff officers of their respective di visions, brigades, and regiments, or separate battalions.

Sect. V. The governor to nominate, and by and with the advice and consent of the senate, to appoint, all major generals.

Sec. VI. The adjutant general to be appointed by the governor.

Sect. VII. That it should be made the duty of the legislature, to direct, by law, the time and manner of electing militia officers, and of certifying the officers elected, to the governor.

Sect. VIII. That in case the electors of captains, subalterns, or field officers of brigades, regiments or separate battalions, shall neglect or refuse to make such election, after being notified according to law, the governor shall appoint suitable persons to fill the vacancies thus occasioned.

Sect. IX. That all commissioned officers of militia be commissioned by the go

vernor.

Sect. X. That the governor shall have power to fill up all vacancies in militia offices, the appointment of which is vested in the governor and senate, happening during the recess of the senate, by granting commissions which shall expire at the end of the next session of the legislature.

Sect. XI. That no officer duly commissioned to command in the militia, shall be removed from his office, but by the senate on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court martial pursuant to law.

Sect. XII. That the commissions of the present officers of the militia be no otherwise affected by these amendments, than to subject those holding them to removal in the manner above provided.

Sect. XIII. That in case the mode of election and appointment of militia officers now directed, shall not, after a full and fair experiment, be found conducive to the improvement of the militia, it shall be lawful for the legislature to abolish the same and to provide by law for their appointment and removal : Provided two thirds of the members present in each house shall concur therein.

CIVIL OFFICERS.

The first section was read as reported by the committee in the following words:

1st. The secretary of state, comptroller, treasurer, surveyor-general, and commissary general, to be appointed as follows, to wit:-The senate and assembly shall each openly nominate one person for the said offices respectively, after which nominations, they shall meet together, and if on comparing their respective nominations they shall be found to agree, the person so designated shall be deemed appointed to the office for which he is nominated-if they disagree, the appointment shall be made by the joint ballot of the senators and members of assembly, so met together as aforesaid.

MR. JAY moved to strike out the words, "commissary general," on the ground that he was a military officer.

GEN. ROOT opposed the motion. He thought that those who have the custody of public property and the disbursement of public monies should be appointed by, and amenable to, the legislature.

The question was then taken on Mr. Jay's motion and lost.

GEN. ROOT moved to insert the words "attorney general”—next after the word Treasurer.

MR. BACON Opposed the motion. The attorney general was always a political character, and he wished to remove the appointing power as far from the legislature as was practicable.

CHANCELLOR KENT wished to confine the several departments to their appropriate duties. The attorney general was an executive officer, and his appointment should emanate from the executive department.

GEN. TALLMADGE also opposed the motion, which was then put and lost. CHIEF JUSTICE SPENCER moved to strike out the words "secretary of state." After some discussion, in which Mr. Spencer supported, and Mr. Van Buren opposed the motion, the question was taken and carried.

GEN. TALLMADGE then moved to strike out the word "comptroller." The duties of that officer were connected with the treasury. The comptroller and treasurer should be checks upon each other, and therefore ought not to be dependant for their offices on the same power.

MR. E. WILLIAMS opposed the motion. The comptroller, he said, was the efficient treasurer. On his warrant the treasurer was bound to disburse the public monies. The comptroller has now the power that the treasurer had, at the formation of the constitution. The office of the latter was rather ministerial than otherwise.

A few additional remarks were made by Messrs. Fairlie, Tallmadge, Spencer and Van Buren, when the question was taken and lost.

MR. FAIRLIE moved to strike out the word "treasurer." Lost.

MR. SPENCER moved to strike out the words "surveyor general." Lost. MR. VAN BUREN moved to insert the words "secretary of state,' next before the words " attorney general." Carried.

GEN. TALLMADGE moved to strike out the words "by and with the advice and consent of the senate."

His object was to try the important question, whether the legislature should be connected with the general or supreme appointing power.

He said he made the motion with no querulous disposition, nor with the view of leading to any personal remark or reference to the existing council of appointment. And should the committee of the whole think with him, that it was expedient to sever the legislature entirely from the appointing power, it would probably be necessary to send back the subject to a select committee, for the purpose of devising a substitute.

The great principle is, that the legislature shall have no other important duties to call away their attention from the performance of their legitimate functions. Mr. T. was aware of the supposed analogy to the constitution of the United States. It would be remembered, however, that the extent of territory over which those offices were to be scattered, was so great, and so disconnected,