that engenders hatred and rancour between parties whether religious or political? It is the tyranny of majorities. What was it that stained the earth with blood and carnage in the wars which were kindled by religious intolerance? It was the tyranny of the dominant party. While the minds of men continue to be as various as their features, uniformity of opinion can never prevail. But while each man is suffered quietly to enjoy his own, a diversity of sentiment does not disturb the public tranquillity. So far as regards religious sentiments, the sad experience of ages of calamity has at length taught us this salutary truth,---and under the shadow of universal toleration the Presbyterian and the Episcopalian, the Roman Catholic and the Quaker, dwell together in brotherly love.

But the age of political toleration I fear has not yet arrived. The majority are entitled to rule the state, and to direct the motions of the government. If they will be contented with this, the minority will usually submit, and the of the community will not be disturbed. solved not merely to govern, but to crush the minority; to pursue them into But if the dominant party are repeace the obscurest recesses and remotest corners of the state; to strip them of every office, however humble; to pass against them, as it were, a decree of attainder; to corrupt their blood, and render them incapable to hold any place of honour or of trust; it is not to be expected they will tamely submit to such oppression -they will combine together-they will endeavour to overturn that tyrannical authority which overwhelms them. Hence an intestine war throughout the country; the father is arrayed against the son-the brother against the brother; and instead of loving his neighbour as himself, each man is filled with hatred, malice, and all uncharitableness. Such, sir, is the state of things which we have witnessed. Is this state of things to be perpetuated? Are we to construct our constitution with an express view to render it durable?" ubi referent te novi fluctus? fortiter occupa portum." O navis,

Sir, it appears to me that it will be beneficial to the state, and that it will be found for the interest of the dominant party themselves, so to constitute the inferior magistracy, that the minority may not feel themselves aliens in their native land that they may not be driven to despair, and goaded into rage; and that it will be peculiarly beneficial so to arrange it, that there may be some offices, however humble, which may be the rewards of quiet worth, and prudence, instead of bestowing all upon men, recommended principally as ardent political champions, or as the noisy and active agents at our elections. Thus we shall best provide for the peace of the state, and best secure an impartial and faithful administration of justice in the lower departments of our judiciary. The plan of the gentleman from Otsego being (as he himself declares) intended to centre all appointments at the seat of government, in order that they may be at the disposal of the dominant party, is for that very reason one which I cannot approve. Power thus accumulated, is like the manure in the farmer's yard-collected in one heap, it putrifies, and corrupts, and taints the ambient air-disperse it, scatter it over his fields, it fertilizes the soil, covers it with healthful verdure, and clothes it with luxuriant harvests. =this power, is a problem which we have all found of difficult solution. So to How to dispose of vest it, that on the one hand it may not be abused to party purposes, and that on the other, the magistrates to be appointed may not be warped into partiality by the natural consequences of popular elections, is much more desirable than easy to accomplish. Yet, I doubt not, a plan may be devised which will steer between this Scylla and Charybdis; perhaps a nomination by the town officers, subject to some control of the county court, might be effectual to this end. But any plan, which will secure an impartial administration of justice in the lower departments of the judiciary, and yet remove it from the influence of party at the seat of government, will receive my hearty approbation.

MR. BACON said, that he should ask the patience of the committee but a very short time. He wished to avoid those paths of argument which had been trod with a much firmer step than he was capable of, by many gentlemen before him, his remarks would be rather of a desultory nature, and he hoped confined principally to some points which had not been much touched upon by those who had preceded him,

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There was one idea, and marked characteristic which distinguished frothe each other the two propositions which were before them; the one reported by the select committee, and the other offered by way of amendment by the gentleman from Otsego-The first proposed to separate wholly from the general appointing power here, the appointment of the local magistracy, consisting of justices of the peace, and to give it directly and definitively to the people in their several towns. The other proposed still to connect it with, and hold it dependant upon the general appointing power, by giving the effective nomination to five men deriving their own power and office from the governor and senate,and leaving its confirmation to the governor alone-It is true, a separate power of recommendation was given to the supervisors, a body not at all connected with the executive, but which, it was absurd to suppose, would be of much avail in practice, when it happened not to concur with that of a body, who must always be men of similar views with the governor, and acting in unison with his feelings and policy. Here, then, after all, disguise it as we may under any such unsubstantial checks, must be the real and effective control over the appointment of the great body of our magistracy.

Suppose, that instead of delegating this incidental power of nomination to the county court, it was proposed to institute directly a council of appointment for each county, who should themselves derive their appointments from the governor and senate, would it be tolerated for a moment? and that is neither more nor less in effect, than the present proposed plan. I would ask particularly, how such a project would be received by the honourable members from New-York, for the appointment of their local officers. The answer to this question, is found in the report of the select committee. So strong is the repugnance of the people of that great city,to have their local affairs under the control, and their municipal officers appointed by the great fountain of power here at Albany, that they have prevailed upon the committee to report for them a separate and independent plan for the election of their officers, and leaving them free from all control here. But this case is not a peculiar one, the grievances of which they complain, are common to every other county and town in the state, nor ought they to expect to be the subjects of any particular favour, which may be refused to, us in the country; our case is a common one, and requires a common remedy.

It is agreed on all hands, that the retention of the general appointing power here, under any form, is an immense one, though gentlemen may disagree as to its effects upon him who exercises it. If, as is supposed on the one side, its effect is to increase greatly the influence of the executive, to promote his political and personal views, and to fortify him in power, it surely cannot be desirable that he should retain it, as it leads to a system of governing corrupt in itself,and whol ly destructive of that personal independence, in the citizens, which is necessa ry to preserve a government really republican and free. But, if, as has been urged with great force on the other hand by the gentleman from Otsego, the certain effect of the exercise of the power is in most cases the political destruction of him who wields it, and he has adduced from the history of the state many and strong instances of the correctness of his position, certainly it is not on that account the less prejudicial to the public welfare, and to the peace and prosperity of the state. Can that in any sense be a desirable feature in our constitution, which introduces necessarily into our public councils, a pertual state of change and vibration, and which leads inevitably to the destruction of the executive power, without regard to the real character of his measures. What more decisive consideration can be urged against the continuance of a power in his hands, which, whether omnipotent, either to save or to destroy him, is equally dangerous. Surely the gentleman from Otsego, could not have been aware of the tendency of his argument on this point, else he would hardly have urged it upon our consideration.

In what manner this power will be generally used by those who exercise it, and that it will be to reward and strengthen their own political and personal friends, there can be no doubt, from all our experience of the past. Indeed, we need not ask this question, as we are already told in this grave debate, by gentlemen who are its advocates, not only that it will, but that it ought so to be used. We are told, that in all governments, both foreign, and in our own country

it is necessary that the magistracy of the state, be a body of men who are loyal (rather a high sounding word for a republican mouth) to the powers that be, and this not merely in the sense that they should be submissive to the laws of their country, but to the policy and the political views of their superior.

It is said, too, in periods of foreign war and domestic dissension, it is indispensable that the supremacy of the executive over all the subordinate magistrates of the state should be absolute and effectual; and reference is made, as it often has been, on other occasions here, when general arguments fail, to the events of the late war, and to the political divisions of that day, to illustrate the argument. There has seemed to be a disposition, on the part of some gentlemen, to resort, on all occasions, to the last war, and to the feelings which grew out of it, to promote the views which they entertained here; to make it a sort of political hobby-horse; and, like uncle Toby, they will insist, whatever be the subject that is started, to be forever fighting over their old battles in Flanders: for what good purpose these allusions are drawn in, on almost every subject, it is difficult to say. But who could ever have imagined, that an army of justices of the peace was an essential ingredient in the defence of a nation, either against foreign invasion or domestic insurrection; or that their services in the late war contributed mainly to that end. It had always been supposed, that our militia were more to be relied upon in all emergencies of that sort: and it may properly be pressed upon the gentleman from Otsego, if, as he maintains, the complete supremacy and control of the executive over the subordinate magistracy of the state is essential for the public safety in times of war and commotion, how much more essential is such control over the whole body of the officers of the militia? and how can the gentleman justify the relinguishing to the people, as he boasts that we have done, but a day or two since, the election of the entire corps of those officers? surely, if the gentleman's argument is a sound one on this point, this has been, on our part, a most improvident act. It cannot be, that this great controling power over the most humble judicial officer in every remote ramification of the state is at all neces sary for any object of this sort; and in every other point of view it is, in its nature and practical operation, of a nature the most dangerous and corrupting; fatal to the peace of the community and the permanence of our best interests. How has it hitherto, and how always will it be brought to operate? By the exclusion from every place of public confidence and emolument, the executive attempts to crush every germ of opposition to himself and his policy: this creates a corresponding spirit of reaction, and a convulsive struggle in the minority, to rise from this state of universal proscription and degradation, and united with such portion of the majority as cannot be gratified with their share of executive favours, (for there are never enough to satisfy all,) they shake off the pressure, burl him from his place, and supplant him by another, who goes on to act over the same scene, and soon to come to the same untimely end. Such has been our history too often; and such it will be, while we perpetuate the same destroying and corrupting principle in our constitution.

The disposition and attempt to govern too much, and too minutely, is, I verily conceive the great mistake into which our politicians of all parties, have too much fallen for a long time past, the consequence of which has almost invariably been that they have soon lost the power of governing at all. The great secret which can alone preserve our free institutions of government seems to me to be, that in a state extensive in territory, great in numbers, and rapidly increasing as is this, no free system can long continue, the great feature of which is to control the minute operations, and to regulate the local interests and concerns of the people in every remote extremity of the body politic. Such a system may well suit perhaps the circumstances of a small community like the little republic of Sanmarino, or of most of the small states of our American confederacy, where every hamlet is almost under the immediate eye of the central power; but can by no means apply to a state like this, already sufficiently large and populous for a small and independent empire. Let us not lose sight of the strong analogy which exists between our state government in relation to its subordinate divisions of counties, towns, and districts, and that of our confederated government, in relation to the various

members of which it is composed. It was once the serious apprehension of many of our wise, and honest statesmen, that a republic so extensive as the United States, could not long exist under a free form of government; the great secret of its security, consists in the numerous partitions of power which it makes, and its distribution to the various members which compose it, of the right to regulate all their local concerns, and their sectional interests agreeable to their own views. An attempt to bring these under the control and influence of one general head, would very soon bring the whole system to an end. And in a state of the great extent and growing numbers of this, such an attempt will, it is to be feared be equally ruinous. We cannot expect to do it under a mild and liberal system of government formed on the most free and republican principles; and those who do attempt it,must either be armed with one, which is sufficiently strong and energetic in its legitimate constitutional powers, to effect its object, or they must make it so by perverting the powers which it gives, and drawing to their aid those of influence and corruption. Let those gentlemen, who are ardently and sincerely attached to the principles of a simple, free, and democratic government, look well to these considerations, and not endanger the whole, by endeavouring to extend its controling power, to objects and concerns, which it is not competent to act upon, to any good purpose, but which may endanger in the end its very existence, and even our unity as a state, and a republic-for it is not extravagant to apprehend, that the inconveniences and dissensions, to which a perseverance in this system will lead, may at no distant time end, at least in a sectional division of the state.

MR. J. SUTHERLAND. The great unanimity, which prevailed in this house, (said Mr. S.) in favour of distributing the appointing power, relieved the subject of much of its embarrassment. He had discovered with regret, however, a disposition to vibrate from one extreme to the other. But it was human nature. It was an habitual error with men, convened for the purpose of modifying or reforming existing modes of government, to adopt such changes as should present the widest contrast to things as they had been. This disposition had been evinced here in the annual election of the executive; in the extension of the right of suffrage; and it was apparent in the progress of this question. It had been manifested, too, in a quarter, whence he could not have been prepared to expect it. Gentlemen, who had been heretofore proud of their moderation, were now going too far. They were throwing more into the hands of the people than was either expedient or proper. The election of justices of the peace was not called for by propriety or expediency. He was not apprehensive of any abuse of this privilege by the people; it was not from any dangerous propensity on their part, that he felt bound to oppose the immediate election of these, and all judicial officers; but of the control and influence under which the incumbents would go into office. The most powerful considerations for a departure from the impartial discharge of their official functions, would grow out of an immediate dependance upon popular favour; and he would erect the strongest barriers against the introduction of views and feelings, which would pervert all the great ends of justice. The plan under consideration, he regarded as the most unexceptionable. It created no new bodies of men; it chimed in with our institutions. The supervisors and judges could not feel any degree of dependance on the chief magistrate; nor could they be subject to his control. They were removed beyond his volition and influence; and their selec. tions would be judicious and independent. Evils of this description were not to be either deprecated nor dreaded. The only plausible objection to the amendment, was the possible interference of party feelings in the election of supervisors. But even this was not formidable; it already existed in a degree more or less extensive, and had been generally inoperative so far as the selection of wise and discreet supervisors was concerned. He believed that the future selections would be less infected with party interference; that still greater care and discretion would be exercised; and that by the plan under consideration, a board, or electoral college, would be created, which would be practically and positively beneficial.

CHIEF JUSTICE SPENCER said he felt that he had already trespassed upon the patience of the committee, and he did not rise to enter minutely into the sub

ject before them; he was aware that difficulties would present themselves in the adoption of any plan which might be devised. They had been made to vote down the proposition recommended by the select committee, but he was of opinion they should finally have to come back to it. He rose more particularly to notice a remark of a gentleman from Schoharie, (Mr. Sutherland,) as to the disposition to vibrate from one extreme to another this now appears to be charged upon those who have been the most opposed to these vibrations. Mr. S. said he had voted for having the justices of the peace elected by the people. It was because he considered it the wisest plan, and he believed the people could not have anticipated that such a proposition would be opposed in this Convention. He had hoped, when they determined to break up the appointment of this great corps of magistrates at the seat of government, that they should have severed the great ligament of party.

To dispose of the justices of the peace, appears to be the great difficulty before the Convention. We are told that their election by the people will affect their integrity and independence. He had hoped that this would have been guarded against, by continuing them longer in office; although they might at first have their feelings a little warmed, they would when they found themselves safely secured in their office, without the liability of removal except for malconduct, rise superior to those trifling considerations which actuate little minds. I had supposed the gentleman on my right, (Mr. Van Ness,) had sufficiently answered the objections raised by those who consider an election by the people so dangerous. But it would appear not. Much, also, has been said on the eriminal power, which justices are allowed to exercise. Suppose a justice commits a man to jail, is he to lie there-or can he be relieved by bail or the habeas corpus? The judges of your courts would have a right to controvert the facts set forth in the mittimus-if they have any criminal jurisdiction it is very trifling. With regard to their civil jurisdiction, every man is allowed to guard against their partiality by demanding a jury. If he pleases he has a right to appeal to the higher courts, where all the merits of his cause are again laid open. Although a certiorari cannot meet all cases, yet every decision may come before these courts, and where improper testimony has been received, or proper testimony rejected, the judgment may be reversed.

The plan proposed by the gentleman from Ŏtsego, struck me at first, as a good one; but the more it is examined, the less favourable it appears. If the object of making the office elective cannot be effected, I will vote for that plan which comes the nearest to it; as it is of vast importance to remove from the seat of government this contaminating power.

I am aware that the courts of common pleas have become more respectable, since the number of judges was diminished from twelve or fifteen in each county, to four or five-they may still continue to improve. Now, if these judges are to be the persons to select the candidates for office, is there not danger that it will have a tendency to swerve them from their duty? They may be candidates for office themselves-if so, will it not have an effect to induce them to fortify themselves against their opponents illegally? I should fear it would; and would much prefer, therefore, to lop them off and leave the power to the supervisors alone. It appears to me that it does give to the governor considerable patronage, although it may result to his detriment in the end. In this respect I perfectly concur in opinion with the remarks of the gentleman from Otsego. But I would not give him this power at all, and for the best of all reasons, that he can know nothing about the individuals he is to appoint.

There are now in this state upwards of six hundred towns, and in a few years there will be one thousand; the governor cannot, therefore, know any thing about these individuals-he must determine, as was suggested by my honourable colleague, on putting the names into a hat or box, and drawing them out, and the person who receives an office from him, will feel it a duty to come forward and vote for him, if he is again to run for the office of chief magistrate. I am anxious to put this power far away from the executive; and shall vote against any such method, unless, as a last alternative, I am driven to it. I did not rise to discuss the question, but to shew that there was not that disposition to vibrate to extremes, which the gentleman from Schoharie might have sup