state be at the expense of keeping him. The gentleman from Montgomery (Mr. Dodge,) says, frequent convictions are now made for the same offence. Sir, the legislature can remedy this, and if the present law be onerous they will alter it.

MR. BURROUGHS stated, that the provision sought to be stricken out was not only founded in economy but mercy; otherwise, a man unable to give bail would be obliged to remain in prison six or nine months, when, if convicted of the offence with which he may be charged, his sentence at the utmost might not be imprisonment for more than one month. This will, I hope, weigh with the committee.

MR. BUEL stated that the alternative might be given to the criminal, of being speedily tried or of remaining in prison till a grand jury were assembled.Economy I like, and I wish to see it observed in all our government. But economy in the administration of justice is not always productive of benefit.—It would go more to suppress crime, that the criminal should be solemnly indicted, tried, and if guilty, convicted, by a court of dignity and solemn demeanour, than that he should be speedily punished in the summary mode proposed.---Economy would thus be obtained by the diminution of criminals, rather than by the summary and cheap mode of punishing.

THE CHANCELLOR wished to retain the clause, otherwise the delay in the city of New-York especially, would be so great that small offences would pass unpunished.---The remedy would be worse than the evil. The grand jury cannot here attend to small cases--There is not a state in the Union which requires the presentment of a grand jury for petit larceny. In the city of NewYork, this provision would be intolerable, and the chairman of the committee, has not painted in half its extent, the magnitude of the evil to them, if the clause proposed should be stricken out.

MR. BIRDSEYE Concurred in the necessity of the provisions proposed to be stricken out; but thought the phraseology not appropriate: under the term, breaches of the peace, vagrants and beggars would not be included: besides, under the statute now existing, the criminal is left to select the tribunal by which he is to be punished.

MR. VAN BUREN hoped the provisions would not be stricken out: the only solid objection would be their unconstitutionality, but he thought this objection unfounded. Mr. Van Buren then read the article from the constitution of the United States which was supposed to bear on the question which is found in the article regulating the judiciary of the United States; and which, he contended, was solely applicable to the judiciary of the United States, and to offences committed against them.

The question, on Mr. Buel's motion to strike out, was then taken, and lost. MR. RADCLIFF wished to know why the expression of life or limb was retained. Mr. Spencer said, the clause was taken from the amendments to the constitution of the United States; though it was not expected that the legisla ture would ever pass laws dismembering a criminal. The expression was rather now retained to designate the offence for which this mode of punishment was formerly enjoined, than as an expression of any punishment that ought otherwise to have been inflicted.

Mr. Radcliff concurred in the explanation given by the gentleman from Albany, but still thought the expression unseemly, and therefore wished a different mode of expression, and moved the following substitute:--After the word subject, insert, in cases of felony, after a fair trial, to be put in jeopardy a second time for the same offence; and strike out, from the word subject, to the word limb, inclusive.

COL. YOUNG wished the words life and limb left out.

CHIEF JUSTICE SPENCER hoped the amendment of the gentleman from NewYork would not prevail; it was too general. In a late cause, a trial was had in New-York for manslaughter: the trial lasted several days, and almost a quarter of an hour before the time at which the court must adjourn, the jury came into court, and stated the impossibility of their agreeing, and they were discharged. Upon argument before the supreme court it was decided, with reference to the particular circumstances of the case, that a new trial should

be had; but it would be very dangerous to invest the court generally with the power of deciding, as the amendment moved by the gentleman from New-York would have the effect of doing, upon the fairness or fullness of the trial.

MR. PRESIDENT hoped the amendment would not prevail. The provision has not been construed to extend solely to felony. There are other cases, such as maiming a neighbour's cattle for which no one should be subject to be twice tried.

MR. RADCLIFF wished the word fair stricken out of his amendment; and then hoped it would prevail. In the case alluded to by the gentleman from Albany, the trial was full and fair; the parties were heard; the court charged; the jury retired, but could not agree. It was to suit a case I wished this provision to apply-a man having been thus once put in jeopardy, and having ran the gauntlet once, should not, upon any principle of law or equity, be again subject to jeopardy.

COL. YOUNG doubted whether every lawyer would consider it a trial, until the jury's verdict were given in; and if the amendment of the gentleman last up were to prevail, this might become a question. But in striking out the words, life and limb," you make the law clear. We are doing every thing to obliterate the traces of our vassalage to Great Britain; we are about to abolish the oath of abjuration, and the clauses which carry us back to our dependence on Great Britain; and the remnant expression of "life and limb" should go with it. CHIEF JUSTICE SPENCER. The gentleman last up is right: the expression of trial is subject to the doubt he has stated, as to whether it could be a plea against a second trial, that a former one had been held, unless the record of acquittal could be produced; as to the vassalage to be inferred from the British term, "life and limb," we have equally borrowed from thence, and naturalized among us the term, "habeas corpus," and others.

Chancellor KENT wished the words “full trial” stricken out—the law is settled, as to the punishment of felony. The trial is not concluded, until the juror's verdict, and if by the fit of a juror, or a fire in the building, the jury be dispersed, or by a mob, or other violence-the maxim of the bar is, that the criminal has not been put in jeopardy.

COL. YOUNG. I understand the settled law of the land is, that after one trial, no one can be subjected to a second one in the same offence-why, then, insert the words "life and limb;" a century hence it may be inferred that we actually retained at this day, the barbarous practice of dismemberment of criminals.

MR. RADCLIFF made some further remarks, stating that inasmuch as he had misapprehended some facts in relation to the particular cases cited by the gentleman from Albany, he would urge nothing more on that head. But he still concluded, that when the case was committed to a jury the criminal had been put in jeopardy--and if the jury cannot agree, he shall not afterwards be put on trial.

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

THE PRESIDENT renewed the motion to strike out “life or limb," so as to make the proviso read, that for no offence whatever shall a second trial take place.

THE CHANCELLOR said he hoped this amendment would not prevail-otherwise a criminal acqnitted, through fraud or management, of a misdemeanor, could not be subject to be tried over again.

THE PRESIDENT asked if it was meant that a criminal acquitted of a misdemeanor had ever again been put on trial.

THE CHIEF JUSTICE said not-but that where witnesses had been bribed to keep away, a new trial had been granted.

COL. YOUNG renewed the expression of his hopes, that the words "life or limb," would be stricken out. The question was then taken on striking out the words, and carried. The question on the whole clause was then about to be taken, when

MR. FAIRLIE moved that the word " tried" be substituted for "put in jeopardy"-lost.

MR. BIRDSEYE moved to strike out the words "of petit larceny, assault and battery, and breach of the peace," and insert "under the grade of grand lar ceny."

THE CHIEF JUSTICE thought the amendment would leave too large a scope to the legislature, and he thought it had better not prevail.

GEN. TALLMADGE observed, that the phraseology proposed would embrace perjury-which it could not be the intention of the committee to sanction. The question was then taken on Mr. Birdseye's motion and lost-and the question on the whole clause was then taken and carried. The third clause was then read, when

GEN. ROOT wished to be informed whether the persons excepted in the second clause, were to have their speedy and public trial by a jury there spoken of. There are now cases in which a presentment is not necessary, and in those cases a trial according to your existing statutes may be had, nolens volens, against the criminal, while here you give him a trial by jury.

THE CHIEF JUSTICE repeated the explanation he had made to the same objection from the gentleman from Albany (Mr. Kent)-that this section must be construed, to except the cases excepted in the second section-if it should be doubtful, however, it might be rendered clear by amendment.

MR. I. SUTHERLAND moved to insert, to this end, the words "on indictment or presentment of a grand jury” after the words prosecution-which was carried. The question on the whole clause was then taken and carried.

GEN. TALLMADGE, before the fourth clause was read, wished to add the following clause-That slavery and involuntary servitude shall not exist, nor be allowed in this state, except for the punishment of crimes, whereof the party shall have been duly convicted, and except in cases of children born of slaves after the 4th of July, 1799, and of minors, indentured apprentices, and servants. He wished merely to explain his views in offering this amendment, without entering, however, into any debate. The first object was to produce that universal emancipation, which it was due to our country to effect. As to the exception, they who are under the act of '99 are in a state of infancy and subject to involuntary servitude, shall be left as they are-but to all others, he wished to extend immediate emancipation. With regard to the words "involuntary servitude," they are necessary, for in Ohio, where slavery is abolished, from the omission of the words in question, hundreds and hundreds, nay, thousands of slaves from neighbouring slave states, are carried over and bound to a perpetual apprenticeship.

THE PRESIDENT, wished the provision to be so amended, as to make the emancipation take place in 1827, the term now contemplated by our laws, and proposed the following-" There shall be neither slavery nor involuntary servitude in this state, otherwise than in the punishment of crimes, of which the party shall have been duly convicted, after the 4th day of July, in the year one thousand eight hundred and twenty seven."

MR. VAN BUREN wished the proposition to lie on the table till to-morrow, as it embraced important provisions and considerations.

MR. CRAMER wished to extend the benefits of emancipation, so as to prohibit the sale of slaves out of the state, and proposed the following substitute"that the law of this state, passed April 9, 1813, providing for the abolition of slavery, shall not be altered or repealed by any subsequent legislature." The substitutes were all ordered to lie on the table.

The 4th clause, respecting the liberty of speech and the press, being read, GEN. ROOT said it was doubtless intended to secure the citizen as well against the arbitrary acts of the legislature, as against those of the judiciary-but nothing appeared in this bill of rights to guarantee this liberty.-Every citizen is held responsible for the abuse of the liberty of the press-responsible to whom? to the government? if so, the legislature may make laws punishing what is written against the government, either according to their passion or capriceThey may say to the citizen, you may write freely, but in our turn we will punish freely, if your writings do not suit us.-The court will have the right to determine what is, or is not, proper-The proposition goes on to say "that the truth shall be given in evidence," (Lord Mansfield to the contrary notwithstanding) if the publication shall be decided to have been made with good motives and for justifiable ends-But who is to decide this-The court? and then you are no better off than under Lord Mansfield's law, which prevents the truth

being given in evidence. Let us put a case-On the eve of a governor's elertion, a supposed libel is published: the truth is offered in evidence; but it is said the motive of the publication was not good: it was for the sake of introducing jacobinism, and so the truth may be excluded. Suppose the libel to be on the judiciary-The truth is again offered in evidence; but the publication is said to be made in order to bring the judiciary into contempt; in order to shake the confidence of the people in this important branch of the government. I should like this provision to be amended so as to make the libeller amenable to the individual injured, but not to enable this individual to prosecute at the public expense. Do away with indictments for libels.

The CHIEF JUSTICE said it was not the purpose of the provision to alter the existing law, but to guard and confine the liberty of the press. This provision is taken from the constitution of other states, of Connecticut and others. [France and Portugal, said Mr. Root, in an undertone.] Its object is to guard the public morals, as well as individuals-to prevent blasphemous publications. To individuals too, it is due that they should be protected from wanton, false, and malignant accusations. These provisions are from Mr. Fox's bill, as the gentleman had said; and the enactment of the law I consider a great point gained for the liberty of the press. The great difficulty of this subject is to render the freedom of the press compatible with the safety and comfort of individuals. The truth from malignant and personal considerations, ought not to be told, when the public have no interest in the question. It ought not to be tolerated, that for the sake of gratifying private resentment, a person should publish the family secrets, the personal defects or infirmities of another, in which the public can have no concern, although the publication be true; all which may be done, if the motive of publishing is not to be considered.

MR. N. WILLIAMS. I understand the object of the gentleman from Delaware to be to abolish indictments for libels. The gentleman, if he reflects, will perceive that this will be a great evil. The libels against the female department of society, many of which our courts have decided over and over again, not to be actionable, can only be reached in this way; and until the gentleman gets a law passed rendering these base libels on the better part of creation, actionable. I hope the provision will remain as proposed. But the gentleman wishes that the jury shall decide as to the motives of a publication, and objects to the determination of this matter by the court, and here I agree with him. And as this part of the section is worded, it may be the interpretation, that the court and not the jury are to decide this: And I should wish it rendered clearer; but according to the present mode of trial, the jury do in fact decide on the motives, because they hear the evidence; and by it they govern their decisions; they decide whether it be a matter of law or fact; but it is easy and desirable to make this charge explicit, and therefore I propose that the words" to the jury" be inserted, so that it will read," the truth may be given in evidence, if it appear to the jury," so that the jury alone shall have the right to decide.

COL. YOUNG thought the amendment of the gentleman from Oneida would not reach the object-the objection to it is this-as the law would then be constituted, the judge would decide, as to the motive of the publisher, before it came to a jury-thus, a suit is brought, the party puts in his plea in justification, setting forth the truth, and the circumstances, which are calculated to make out his case-the prosecutor demurs to this plea-and it is then for the court to say, before the matter can be submitted at all to the jury, whether the plea be sufficient, or the motives of the publication good. Thus, sir, in fact taking the matter quite out of the hands of the jury. To this, sir, I should not consent; and I hope therefore the clause may be so amended as to increase rather than diminish, as in its present state it would, the certainty with which the whole motive could be brought before the jury.

MR. VAN BUREN thought the gentleman from Delaware, well founded in his objection-certainly it has been well explained by the gentleman from Saratoga last up. The operation of the proposed clause, would be to vest the decision, as to the motion, in the court.-Before I sit down, I would express my doubt, whether by adopting any bill of rights at all, we are materially benefiting the

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 vaderstand the language of this section, persons in the cases excepted, are not to be bailable at all. Is this the language of the