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The Chtef Ji;stjce staled, the chief ohject of the committee in reporting these provisions was, to remove the douht which had heen heretofore expressed, of the constitulionality of this mode of proceeding. There are inconveniences which the gentleman last up has stated in these provisions; hut ive do not find upon the whole, that the practice they are meant to sanction, has heen ahused, and there would he great inconveniences and expense attendant on any other course. As to the hreaches of the peace, of the nature spoken of hy the gentleman from Delaware, the greater offence merges the lesser one; and after all, it is left to the legislature, to decide what are considered exceptions within the meaning of the clanse. Mr. Spencer dilated ujion the delay and expenses attendant on any other course.
Mr. Hadcliff stated, that no provision, with respect to petit lareeny, was intended to he introduced into our constitution. It existed hefore the actual constitution was formed under the old colonial government. As to the cases of assanlt and hattery, it may, perhaps he advantageously added, "provided thev he unaccompanied hy any other offence in intent." A sending of a challengo is not a hreach of the peace. The legislature is left to determine what these offences are, and this seems the hest course. I hope the motion to strike out will not prevail.
Mr. Sharpf. More time was spent hy the committee on the proposition now wished to he expunged, than on any other. It was douhted whether this summary mode of punishment was constitutional, hut the increase of slight offences was so great as to render it highly expedient. In the city of .\ew-York, such asuimnaiy mode is indispensahle. Sir, look at the numerous offences which crowd our courts; jurors'and witnesses are now kept monthly from their husiness, in order to convict a man for stealing a pair of shoes, and taken with the shoes in his hands. Sir, if this system continue, petty offences will go unpunished; reputahle citizens will not lose their time to prosecute them. The provisions inserted were merely to provide against this evil.
Cha.nckllor Kent wished to know what was meant hy the third article; was the guarantee of a trial hy jury there referred to, to extend to the exceptions of the second clanse?
Mr. Doikik wished, in seconding the motion of the gentleman from Rensselaer, to call the attention of the committee to that part of the constitution of the United States which requires, that no person shall he convicted of any infamous crime, except on the presentment of a grand jury. Besides, it is now proposed to disfranchise those who may have heen convicted of infamous crimes. The ahuses of our present law are shocking. And those who have seen its operation will panse hefore they sanction the clanse now proposed. The justices too often have interest or prejudices against the accused. Bcsides, criminals are often convicted more than twice of petit lareeny. If these convictions had heen hefore the Supreme Court, the second offence would he punished hy sentence to the state prison: now they are only slightly punished, however frequently they may have heen tried. The proceedings, moreover, of a har-room court of justice, want solemnity. The promiscuous crowd of criminals, jurors, and witnesses, and the want of dignity of all the proceedings, render them of little avail, and make no lasting impressions.
The Chtef Jitstick explained, that ho considered the language of the third section as controlled hy the exceptions of the second.
Col. Yov.ng hoped the motion to strike out would not prevail. He thought the provision of the constitution of the United States, requiring the interposition of n grand jury, would apply only to offences against the United States; and that it should not he construed to interfere with the details of the state government. Why, sir, what would result from striking out this clanse? every vag:ihond who roams through the state, perhaps a deserter from Canada, and commits a trilm'ng offence, must he taken up; the county must support him, sometimes three months, hefore a grand jury meets, at the cost of fifty or sixty dollars to the county, when the article stolen may not he worth half a dollar. This is punishing the innocent for the guilty: and making the county pay fur the crimes of a vagahond. If he can give hail, he is now entitled to liheration or preyatinent hy a grand jury; hut if he cannot, or will not give hail, must the state he 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 he onerous they •rill alter it.
Mr . Burroughs stated, that the provision sought to he stricken out was not oaly founded in economy hut merey; otherwise, a man unahle to give hail would he ohliged to remain in prison six or nine months, when, if convicted of the offence with which he may he charged, his sentence at the utmost might not he in.prisonment for more than one month. This will, I hope, weigh with (he committee.
Mr. Bcel stated that the alternative might he given to the criminal, of he«V , peedily tried or of remaining in prison till a grand jury were assemhled.— EcwaiKny I like, and I wish to see it ohserved in all our government. But economy ia the administration of justice is not always productive of henefit.—It would go more to suppress crime, that the criminal should he solemnly indicted, tried, and if guilty, convicted, hy a court of dignity and solemn demeanour,
than that he should he speedily punished in the summary mode proposed Eco
Botny Would thus he ohtained hy the diminution of criminals, rather than hy the summary and cheap mode of punishing.
Tae Cha.nexllor wished to retain the clanse, otherwise the delay in the city of New-York especially, would he so great that small offences would pass smpunished.—The remedy would he worse than the evil. The grand jury cannot acre attend to small cases—There is not a state in the Union which roqtiires the presentment of a grand jury for petit lareeny. In the city of NewYork, this provision would he intolerahle, and the chairman of the committee, has not painted in half its extent, the magnitude of the evil to them, if tha clanse proposed should he stricken out.
Mr. BirdserE concurred in the necessity of the provisions proposed to he stricken out; hut thought the phraseology not appropriate: under the term, hreaches of the peace, vagrants and heggars would not he included: hesides, under the statute now existing, the criminal is left to select the trihunal hy which he is to he punished.
Mr. Y'.t. n Bchen hoped the provisions would not he stricken out: the only solid ohjection would he their unconstitutionality, hut he thought this ohjection unfounded. Mr. Van Buren then read the article from the constitution of the Umted ijtates which was supposed to hear on the question which is found in the article regulating the judiciary of the United States; and which, he contended, was soli ly applicahle 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. Radcmff wished to know why the expression of life or limh was retained.—Mr. Spencer said, the clanse was taken from the amendments to the constitution of the United States; though it was not expected that the legislature would ever pass laws dismemhering 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 ttiat ought otherwise to have heen inflicted.
Mr. Radeliff concurred in the explanation given hy the gentleman from Alhany, hut still thought the expression unseemly, and therefore wished a different mode of expression, and moved the following suhstitute :—After the word m/hject, insert, in cases of felony, after a fair trial, to he put in jeopardy a second time for the same offence; and strike out, from the word tuhject, to the word AWi, inclusive.
Col. You.ic wished the words life and limh left out.
Cmr r Justice Spkncer hoped the amendment of the gentleman from NewYork would not prevail; it was too general. In a late canse, a trial was had ia New-York for manslanghter: the tvial lasted several days, and almost a quarter of an hour hefore the time at which the court must adjourn, the jury csme into court, and stated the impossihility of their agreeing, and they were djwharged. Upon argument hefore the supreme court it was decided, with reference to the particular cireumstances of the case, that a new trial ihouU he had; hut it would he very dangerous to invest thc court generally with tlrn power of deciding, as the amendment moved hy the gentleman from New-York would have the effect of doing, upon the fairness or fullness of the trial.
Mr. Phesident hoped the amendment would not prevail. The provision has not heen construed to' extend solely to felony. There are other cases, such as maiming a neighhour's cattle for which no one should he suhject to he twice tried.
Mr. Radcliff wished the word fair stricken out of his amendment; and then hoped it would prevail. In the case alluded to hy the gentleman from Alhany, the trial was full and fair; the parties were heard; the court charged; the jury retired, hut could not agree. It was to suit a case I wished this provision to apply—a man having heen thus once put in jeopardy, and having ran the ganntlet once, should not, upon any principle of law or equity, he again suhject to jeopardy.
Col. Young douhted 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 hecome a question. But in striking out the words, "life and limh," you make the law clear. We are doing every thing to ohliterate the traces of our vassalage to Great Britain; we are ahout to aholish the oath of ahjuration, and the clanses which carry us hack to our dependence on Great Britain ; and the remnant expression of " life and limh" should go with it.
Chtef Justice Si-encer. The gentleman last up is right: the expression of trial is suhject to the douht he has stated, as to whether it could he a plea against a second trial, that a former one had heen held, unless the record of acquittal could he prodaced; as to the vassalage to he inferred from the British term, " life and limh," we have equally horrowed from thence, and naturalized among us the term, " haheas corpus," and others.
Chancellor Kent wished the words "full trial" stricken out—the law is settled, as to the punishment of feheiy. The trial is not concluded, until the juror's verdict, and if hy the fit of a juror, or a fire in the huilding, the jury he dispersed, or hy a moh, or other violence—the maxim of the har is, that the criminal has not heen put in jeopardy.
Cor. Young. I understand the f ettled law of the land is, that after one trial, no one can he suhjected to a second one in the same offence—why, then, insert the words o life and limh;" a century hence it may he inferred that we actually retained at this day, the harharous practice of dismemherment of criminals.
Mr. Radoliff made some further remarks, stating that inasmuch as he had misapprehended some facls in relation to the particular eases cited hy the genlleman from Alhany, hr would urge nothing more on that head. But he still concluded, that when the case was committed to a jury the criminal had heen put in jeopardy—and if the jury cannot agree, he shall not afterwards he put on trial.
The question was then taken on Mr. RadehfPs motion and lost.
The Phesident renewed the motion to strike out " life or limh," so as to make the proviso read, that for no offence whatever shall a second trial take place.
The Chancellcii said he hoped this amendment would nut prevail—otherwise a criminal aequilted, through frand or management, of a misdemeanor, could not he suhject to he tried over again.
The Phesident asked if it was meant that a criminal acquitted of a misdemeanor had ever again heen put on trial.
The Chtef Justice said not—hut that where witnesses had heen hrihed to keep away, a new trial had heen granted.
t.'oi. Yocng renewed the expression of his hopes, that the words "life or limh," would he stricken out. The question was then taken on striking out t lie words, and carried. The question on the whole clanse w as then ahout to he taken, when
Mr. Fairlte moved that the word " tried" he suhstituted for " put in jeopardy"—lost.
Mr. Birnskve moved to strike out the words "of petit lareeny, assanlt and hatterv, and hreach of the peace." and insert " under Uir israde nf grand lnr
The Chtef Jestice thought the amendment would leave too large a scope to the legislature, and he thought it had hetter not prevail.
Gkn. Tali Madge ohserved, that the phraseology proposed would emhrace perjury—which it could not he 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 clanse was then taken and carried. The third clanse was then read, when
Guy. Root wished to he informed whether the persons excepted in the second clanse, were to have their speedy and puhlic trial hy 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 he had, nolens volens, against the criminal, while here you give him a trial hy jury.
The Chtef Justice repeated the explanation he had made to the same ohjection from the gentleman from Alhany (Mr. Kent)—that this section must he construed, to except the cases excepted in the second section—if it should he douhtful, however, it might he rendered clear hy amendment.
Mr. I. Sutheki-akd moved to insert, to this end, the words " on indictment wr presentment of a grand jury" after the words prosecution—which was carried. The question on the whole clanse was then taken and carried.
Gen. Tallmadge, hefore the fourth clanse was read, wished to add the following clanse—That slavery and involuntary servitude shall not exist, nor he allowed in this state, except for the punishment of crimes, whereof the party shall have heen duly convicted, and except in cases of children horn 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 dehate. The first ohject 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 suhject to involuntary servitude, shall he left as they are—hut to all others, he wished to extend immediate emancipation. With regard to the words " involuntary servitude," they are necessary, for in Ohio, where tlavery is aholished, from the omission of the words in question, hundreds and hundreds, nay, thousands of slaves from neighhouring slave states, are carried over and hound to a perpetual apprenticeship.
Tns Phesident, wished the provision to he so amended, as to make tlio emancipation take place in t8-27, the term now contemplated hy our laws, and! proposed the following—'s There shall he neither slavery nor involuntary servitude in this state, otherwise than kt the punishment of crimes, of which the party shall have heen duty convicted, after the 4th day of July, in the year one thousand eight hundred and twenty seven."
Mr. Van Bi Hen wished the proposition to lie on the tahle till to-morrow, ai rt emhraced important provisions and considerations.
Mr. Crimer wished to extend the henefits of emancipation, so as to prohihit the sale of slaves out of the state, and proposed the following suhstitute— - that the law of this state, passed April 9, 1813, providing for the aholition of slavery, shall not ho altered or repealed hy any suhsequent legislature." The suhstitutes were aU ordered to lie on the tahle.
The 4th clanse, respecting the liherty of speech and the press, heing read,
Gt5. Root said it was douhtless intended tgsecure the citizen as well against the arhitrary acts of the legislature, as against those of the judiciary—hut nothing appeared in Ihis hill of rights to guarantee this liherty.—Every citizen is held responsihle for the ahuse of the liherty of the press—responsihle to whom 5 to the government? if so, the legislature may make laws punishing what is written against the government, either according to their passion or caprice— Tticy may say to the citizen, you may write freely, hut 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 he givon in evidence," (Lord Mansfield to the contrary notwithstanding) i f the puhlication shall he decided to have heen made ttith good motives nndfor justifiahle ends—But who is to decide this—The court? and then you ate no hetter uff than under Lord Mantficld's law, which prevents the truth being1 given in evidence. Let us put a case—On the eve of a governor's election, a supposed libel is published: the truth is offered in evidence; but Us 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; bat 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 die existing law, but to guard and confine the liberty of the press. This provision js'Uiken from the constitution of other-states, of Connecticut and others. [France and Portugal, said Mr. Boot, 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 bad said; and tbe 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, tbe 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.
JMR. N. Williams. I understand the object of the gentleman from Delaware to be to abolish indictments for libels. The gentleman, if he reflect*, will perceive that this will be a great evil. The libels against tbe female department of society, many of which our courts have decided over and over •'•:.mi. not to be actionable, can only be reached in this way; and until tlio gentleman gets a l.m- 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 1 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 hive the right to decide.
Coi.. Youm; 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 1 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.
Mn. Vah Buxf.n thought the gentleman from Delaware, well founded ia 1'i* objection—certainly it lias been well explained by the gentleman from Saratoga last up. The operation of the proposed clause, would be to vest the decision, a» to the motion, in the court.—Before I sit down, I would express my il""0'' whether by adopting any bill of rights at all. we are materially benefiting 'he