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and towns in this state to assess, levy, and collect, on the real and personal property therein, such sums of money as may be necessary (in addition to the amount to which each city and town may be entitled from the interest of the common school fund) for the purpose of establishing and keeping public and common schools in every such city and town, for the instruction of all the children therein.

Resolved, That the above resolutions be referred to the committee of the whole house, when on the reports of the select committees on the legislative department and the bill of rights.

MR. Ross submitted to the Convention the following resolution:

Resolved, That the person of a debtor, where there is not strong presumption of fraud, shall not be detained in prison after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.

Ordered, that the aforesaid resolutions be printed.
Adjourned.

MONDAY, OCTOBER 1, 1821.

The Convention assembled at the usual hour. Prayer by the Rev. Mr. LACEY. The minutes of Saturday were then read and approved.

MR. Ross moved that the practice of recording ayes and noes when in committee of the whole, be henceforth abolished. He observed that questions were taken in committee, upon distinct propositions, which if acted upon in connection with other propositions, might produce a different vote; and the result was often such as to bear the appearance of inconsistency, although no real inconsistency existed. It had a tendency also to premature commitment for the sake of preserving that apparent consistency.

MR. SHARPE. We have now arrived at an important crisis. We are about to proceed on the most important subjects that will perhaps come before this Convention. For my part, sir, I shall want my vote recorded on every question that may be taken.

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GEN. J. R. VAN RENSSELAER Supported the motion to amend. tice of taking the ayes and noes in committee of the whole, does in congress, nor in any of the state legislatures except our own. tice that ought never to have been adopted, and we ought to abandon it as soon as possible.

GEN. ROOT. It seems we are upon rules and orders again. He hoped at all events that they should have the ayes and nocs upon this question, that the people may know who are afraid to have their votes recorded upon the journals. The proposition is infringing a long established usage. But it seems gentlemen are afraid they shall in some cases be obliged to change their votes. He liked to sce gentlemen have the magnanimity to change their votes, when convinced that they had been in error. He concluded by calling the ayes and noes.

MR. Ross was as willing as the gentleman from Delaware, to record his name on proper occasions, but by the present practice, gentlemen are compelled to record their votes prematurely. It could not be known what would be the precise effect of separate propositions, until the whole should be combined.

CHIEF JUSTICE SPENCER, as a division had been called, briefly assigned the reasons which would induce him to vote for the amendment. In the committee of the whole, we are merely preparing business to be solemnly settled in the Convention. Every principle settled in committee of the whole, must finally be passed in Convention. Who, then, will be deprived of the right of recording his vote? We are, besides, encumbering our journals too much, by recording divisions upon every question taken in committee.

A few words in addition passed between two or three other gentlemen, when, On motion of Mr. BACON, the further consideration of the amendment was postponed till to-morrow.

THE APPOINTING POWER.

On motion of Mr. VAN BUREN, the house then resolved itself into a committee of the whole, on the report of the committee on so much of the constitution as relates to the power of appointments to office, and the tenure thereof. Mr. Lawrence in the chair.

MR. TOMPKINS approved heartily of that part of the report which related to the militia, and with a few modifications hoped it would be adopted. He believed the militia would flourish more under this system, than it ever had done before.

MR. FAIRLIE thought it would be better to settle the question whether we would abolish the council of appointment, before the report was acted on.

CHIEF JUSTICE SPENCER also thought that question should first be settled. MR. TOMPKINS wished the first section, (abolishing the council of appointment,) might be passed over. The question involved in it might better be postponed until it should be settled in what manner the appointing power shall be disposed of, or distributed. Even if the council should be retained, we have the right to modify the power, and at all events to determine in what manner militia officers shall be appointed. Mr. T. moved to pass by the first section for the present.

GEN. J. R. VAN RENSSELAER thought it was idle to go on and provide a substitute, before it was known whether the Convention was opposed to the old council.

MR. SHELDON preferred that the substitute should be first provided, that members would see what the new system would be. The members will then have an opportunity to choose between the new and the old.

MR. BACON could not see why a different course should be adopted in regard to the mode of proceeding upon this report, from what had been pursued in other cases. A vote was first taken to abolish the Council of Revision, and a substitute was provided afterwards.

THE CHIEF JUSTICE spoke a few words in favour of settling the question on the first section first. He could not see the force of the objections offered by the gentleman from Richmond, (Mr. Tompkins) or those of the gentleman from Montgomery, (Mr. Sheldon.)

MR. EASTWOOD called for the ayes and noes on the question whether the first section of the report should be passed over, and it was decided in the negative, 77 to 26, as follows.

NOES-Messrs. Bacon, Baker, Beckwith, Bowman, Briggs, Brooks, Buel, Carver, Child, R. Clarke, Eastwood, Edwards, Ferris, Frost, Hallock, Hees, Howe, Hunt, Hunter, Huntington, Hurd, Jay, Jones, Kent, King, Knowles, Lefferts, A. Livingston, M'Call, Millikin, Moore, Munro, Park, Paulding, Pitcher, Platt, Pumpelly, Radcliff, Reeve, Rhinelander, Richards, Rogers, Root, Rose, Ross, Russell, Sage, N. Sanford, R. Sanford, Seaman, Seeley, Sharpe, I. Smith, R. Smith, Spencer, Stagg, Starkweather, Steele, Swift, Sylvester, Tallmadge, Ten Eyck, Townley, Tuttle, Van Horne, Van Buren, Van Ness, J. R. Van Rensselaer, S. Van Rensselaer, Van Vechten, E. Webster, Wendover, Wheaton, E. Williams, N. Williams, Woodward, Wooster-77. AYES-Messrs. Barlow, Birdseye, Breese, Brinkerhoff, Burroughs, Case, Collins, Cramer, Day, Dodge, Dubois, Dyckman, Fairlie, Fenton, Lawrence, P. R. Livingston, Pike, President, Price, Rockwell, Sheldon, Taylor, Van Fleet, Ward, Woods, Yates-26.

The question on the first section, for abolishing the council of appointment, was then taken by ayes and noes, and carried in the affirmative, UNANIMOUSLY, 102 members being present.

MR. TOMPKINS Suggested sundry amendments, and finally moved a substitute for the 1st, 2d, 3d, and 4th sections of the report of the select committee; but he consented to waive his propositions for the present, in order that the chairman of the committee who made the report, might explain the views of the committee, and the principles upon which they had founded their report.

MR. VAN BUREN, (chairman of the committee upon this subject) gave a ge neral view of the reasons which had influenced the select committee in adopting the report now under consideration. The subject was one surrounded with

numerous difficulties; some of which were intrinsic and not to be avoided by any course that could be devised. They had framed a system, which, after much reflection, appeared to them to be liable to the least and fewest objections.

The first question which presented itself for the consideration of the committee, was the propriety of abolishing the Council of Appointment. On this subject there was no difficulty; the same unanimity prevailed among the members of the select committee in this respect, as in the vote which had just passed in committee of the whole, for the abolition of this power; and in this, they had only acted in accordance with public opinion, by which this feature of the old constitution had been condemned. He would not, he said, detain the committee by giving any reasons for this part of the report; after the unanimous vote just given, this would be a wanton waste of time.

The next and more important enquiry, was, with respect to what should be substituted in its stead; and here, as was to be expected, a diversity of sentiment prevailed, and many difficulties presented themselves. For the purpose, however, of lessening, as far as was practicable, the objections that would necessarily exist to any general appointing power, wherever placed, or however constituted, they had felt the propriety of reducing the patronage attached to it; and they had, with that view, separated from it the great mass of the officers of the state. Many of them, they had sent to be appointed, or elected, in the several counties or towns, and others they had left to the disposition of the legislature, to provide for their appointment or election, as experience might prove to be most advisable.

Of the 8287 military officers, they had recommended that all except 78, consisting of major generals, brigadier generals, and the adjutant general, should be elected by the privates and officers of the militia.

Of the 6663 civil officers, now appointed by the Council of Appointment, they recommend that 3643 should be appointed or elected as the legislature should direct-these were auctioneers, masters in chancery, public notaries, inspectors of turnpike roads, commissioners to acknowledge deeds, examiners in chancery, inspectors for commercial purposes, and some other officers. They also recommended that the clerks of counties, and district attorneys, should be appointed by the courts of common pleas, in the several counties. And that the mayors and clerks, of all the cities except New-York, should be appointed by the common council of the respective cities.

Thus far, no great diversity of sentiment had existed among the members of the committee, and there had been a general concurrence of opinion, on all the parts of the report already noticed.

This, together with the justices of the peace, which a majority of the committee had recommended to be elected, left only 453 officers for whose appointment, or election, it was necessary to provide.

In addition to the curtailment of the appointing power, to be retained at the seat of government; the committee, under a full conviction that much of the complaint against the existing Council of Appointment, had arisen from the circumstance of the concentration of power in one body, had thought it wise even here to distribute them; by giving the appointment of the heads of the different departments of this state to the legislature; they being officers entrusted with the public property, whose duties more immediately connected them with that body.

Still, some officers were left; small in number, it was true, but of considerable interest and importance. They were unanimously of opinion, that it would be improper for some of these officers to be elected by the people, and a majority of them supposed that none of them ought to be so elected.

It became necessary, therefore, to provide for their appointment; and to establish what may be called a general appointing power; though limited in the exercise of its functions, to the bestowment of a small number of offices. Four plans presented themselves to the consideration of the committee. 1st. To create a new Council of Appointment, to be elected by the people. 2nd. To vest the power of Appointment in the Executive solely.

3rd. To give it to the Legislature. Or,

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 one 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 propos◄ ed 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 system, 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 officers 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

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