ceived the appellation of "the infected district." The anti-masons of the west had attempted to create a state and national party, as we have seen in another part of these sketches, and when that was perceived, many, and I may say, nearly all the masons belonging to the Adams party, alarmed at what they believed to be the proscriptive spirit of anti-masonry, preferred the ascendancy of the Albany Regency to the domination of anti-masons, and either secretly or openly exerted their influence and cast their votes in favor of the Jackson party. This circumstance swelled the Jackson majority; and probably some politicians of that party were deceived by this appearance of strength, some part of which was in fact adventitious, and ready and disposed at any favorable moment to wage a fierce war against them.

The senators chosen at this election were:

From the First District, Alpheus Sherman, and

Jonathan S. Conkling,

Second do., Nathaniel P. Tallmadge,

do., Isaac Geer,

Fifth do., Alvin Bronson,

Sixth

do., Levi Beardsley,

Seventh do., Thomas Armstrong,
Eighth do., Albert H. Tracy.

All these gentlemen were decided Jackson men, except Mr. Tracy.

CHAPTER XXXVI.

FROM JANUARY 1, 1830, TO JANUARY 1, 1831.

A LARGE portion of the acting governor's annual .message consisted in a presentation of his views on the penitentiary system and the criminal laws of the state of NewYork. His remarks on that subject are very judicious, and are creditable to him as a statesman and philanthropist.

He thinks the punishment of death ought not to be inflicted for any species of burglary, and that that dreadful penalty ought to be reserved for the crimes of murder and treason only. May not some other punishment be substituted, even in these cases, less distressing and less agonizing to the feelings of civilized man? When this message was delivered, no suitable provisions were made by law for the care and support of insane persons. The governor makes the following impressive and eloquent appeal in behalf of that unfortunate class of human beings:

"By the census of 1825, it was ascertained that there were at that time eight hundred and nineteen insane persons in the state. Of these, two hundred and sixty-three were of sufficient ability to pay for their own support; two hundred and eight were in jail or supported by charity; leaving three hundred and forty-eight insane paupers at large, a terror to others, and suffering, in addition to mental derangement, all the privations attending penury and want. The condition of those under poor-house regulations, or confined in jails, is, if possible, worse. No person of sensibility can look upon these sufferers, in their small cells, surrounded by a bad atmosphere, sometimes chained to the walls, and witness their dejected or wild

despairing looks, or frantic madness, without a feeling of horror. No restoration can be hoped for under such circumstances; indeed the instances are not rare, of persons slightly deranged becoming incurable maniacs by these injudicious means."

Happily provisions are now being made by the state in conformity with the feelings and wishes which this appeal was calculated to call into action.

The governor presents a succinct and pretty clear view of the finances of the state. He alludes to the fact that the general fund is in a gradual process of diminution, and that as its income was insufficient to defray the ordinary expenses of the government, unless some other provisions were made for the support of government, it would continue to decrease until it was wholly consumed. To obviate such a result, he recommends a state tax. The governor is silent on the subject of any further improvements by canals and roads; but the general tenor of the message leaves a strong impression on the mind of the reader, that he was against constructing any more canals until the canal debt should be paid; and this impression I have no doubt he intended to produce.

As the subject of a distribution of the avails of the sales of the lands belonging to the United States has for some time past been a matter which has excited much public discussion, and as political parties have chosen tc' make it one of the points of controversy, it may gratify the young reader to know what was the opinion entertained at this time by Mr. Throop and his friends, (for of all men he was the last man who would venture to put forth any doctrines contrary to the received faith of his party,) on the question, relating to the distribution of the surplus revenue. "Our funds," says the governor, meaning the funds of the state of New-York, "however, applicable to the extension of our public works, may be

augmented, at no distant day, from a new source. The duties upon the importation of merchandise are secured by the constitution of the United States to the general government, and have been its great source of revenue for all purposes. In a very few years the national debt will be paid off, and as but a small portion of the revenue will be consumed in conducting the affairs of the Union, within the constitutional limits, and as there are prudential reasons for continuing the duties to a certain extent, there can be no valid objection to the distribution of the surplus revenue among the states, to be disposed of at their discretion. If constitutional obstacles exist against the measure, they may be removed by constitutional means."

The governor here asserts that "there are prudential reasons for continuing the duties to a greater extent" than will be necessary to defray the expenses of the general government, and he says, "There can be no valid objection to the distribution of the surplus revenue" [thus raised] "among the states, to be disposed of at their discretion." He adds, however, " If there are constitutional objections, those objections may be removed," &c.

In the year 1817, a bill passed the two houses of congress for the distribution, among the several states, according to the ratio of the representation of each state in the popular branch of the national legislature, of the dividends to the United States which might accrue on seven millions of stock owned by the government in the bank of the United States, to be expended under the direction of the general government by the consent of the respective states in constructing roads and canals.

The whole representation from this state, both in the senate and house of representatives, excepting only Gen. Root, and all the members from Pennsylvania, voted for this bill, which finally failed of becoming a law by the veto of Mr. Madison. But notwithstanding this deliberate

and all but unanimous opinion of the New-York and Pennsylvania members of congress as expressed by their votes, that the national government have a right to raise money by a direct or indirect tax, and pay back a portion of that tax to the people; certainly, even at that day, the correctness of that opinion ought to have been questioned, for at this time, I believe, it is universally conceded to be unconstitutional.* But the public lands were property not

It is remarkable that that able, cautious and profound constitutional lawyer, James Madison, in his veto message, although the third section of the bill in question expressly provides for the distribution of the bank dividends among the states, according to their representation in congress, does not even hint that he founds his objections to the bill upon the want of power in congress to distribute the public revenue. He rejects the bill, because, in his judgment, congress had not the power to make roads and canals in the several states. For the purpose of affording the reader a clear idea of this bill and Mr. Madison's objections, I have copied from the Journals of the house of representatives of 1817, the following entries:

"To the House of Representatives of the United States:

"Having considered the bill this day presented to me, entitled 'An act to set apart and pledge certain funds for internal improvements,' and which sets apart and pledges funds for constructing roads and canals, and improving the naviga. tion of water-courses in' order to facilitate, promote and give security to internal commerce among the several states, and to render more easy and less expensive the means and provisions for the common defence;' I am constrained, by the insuperable difficulty I feel in reconciling the bill with the constitution of the United States, to return it with that objection, to the house of representatives, in which it originated.

"The legislative powers vested in congress are specified and enumerated in the eighth section of the first article of the constitution; and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers; or that it falls, by any just interpretation, within the power to make laws necessary and proper for carrying into execution those or other powers vested by the constitution in the government of the United States.

"The power to regulate commerce among the several states,' cannot include a power to construct roads and canals, and to improve the navigation of watercourses, in order to facilitate, promote and secure such a commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to congress.

"To refer the power in question to the clause' to provide for the common defence and general welfare,' would be contrary to the established and consistent rules of interpretation; as rendering the special and careful enumeration of powers, which follow the clause, nugatory and improper. Such a view of the constitution would have the effect of giving to congress a general power of legislation, instead of the defined and limited one hitherto understood to belong to them; the terms 'common defence and general welfare' embracing every object and act within the purview of a legislative trust. It would have the effect of