ARTICLE NINTH.

SEC. 1. This constitution shall be in force from the last day of December, in the year one thousand eight hundred and twenty-two. But all those parts of the same, which relate to the right of suffrage; the division of the state into senate districts; the number of members of the assembly to be elected, in pursuance of this constitution; the apportionment of members of assembly; the elections hereby directed to commence on the first Monday in November, in the year 1822; and the continuance of the members of the present legislature in office until the first day of January, in the year 1823, shall be in force and take effect from the last day of February next. The members of the present legislature shall, on the first Monday of March next, take and subscribe an oath or affirmation to support this constitution, so far as the same shall then be in force. Sheriffs, clerks of counties, and coroners, shall be elected at the election hereby directed to commence on the first Monday of November, in the year 1822; but they shall not enter on the duties of their offices before the first day of January next following.

SEC. 2. The existing laws, relative to the manner of notifying, holding, and conducting elections, making returns, and canvassing votes, shall be in force, and observed, in respect to the elections hereby directed to commence on the first Monday of November, in the year 1822, so far as the same are applicable. And the present legislature shall pass such other and further laws as may be requisite for the execution of the provisions of this constitution, in respect to elections.

The report was read, and ordered to be printed.

On motion of Mr. SHARPE, ordered, that John De Witt be recognized as an attendant on this Convention.

COL. YOUNG called for the consideration of the address to the people of the state of New-York, reported by the committee of which Mr. Root is chairman. Before this motion was acted on, Mr. WHEATON moved that the committee, of which Mr. Fairlie is chairman, be directed to superintend the engrossing of the constitution, which was carried.

On motion of MR. FAIRLIE, it was ordered that the members of this Convention sign the constitution, as agreed to in this Convention, at any time previous to the third Tuesday in January next, and that the same be attested by the secretaries.

MR. MUNRO moved to reconsider the fourth section of the fifth article, with a view to provide that a majority of the supreme court shall constitute a quorum. The motion to reconsider prevailed.

Sundry amendments were proposed, and some discussion took place between Messrs. Munro, Root, Young, N. Williams, Buel, Radcliff, Wheaton, Fairlie, and Briggs, when, on motion of Mr. WHEATON, the words " any of whom may hold a court," were added to the end of the section.

MR. WHEELER offered the following resolution:

Resolved, That the printers to the state be directed to designate the amended parts of the constitution from the original parts of it, either by printing the one part in italics, or noting the distinction in such manner, that the people may dis tinguish the amendments from the original.'

MR. BUEL remarked, that it would be impossible to carry the resolution into effect, as the gentleman from Washington would see by looking for a moment at the amended constitution.

MR. WHEATON also remarked, that so many alterations of phraseology had been made by the select committee, both in the old constitution and the amendments, that it would be utterly impossible to distinguish the parts of the old which had been retained. The only mode of giving the desired information would be to publish the old and new constitutions in parallel columns. The resolution was withdrawn.

MR. FAIRLIE made some inquiries as to the caption or title of the constitution, when it was agreed, that in the engrossed copy the caption should be THE CONSTITUTION OF THE STATE OF NEW-YORK;" and in the 5000 copies which shall go forth to the people, the caption shall be "The Constitution of the state of New-York, as amended."

The convention then went into committee of the whole, on the report of the committee of which MR. N. SANFORD is chairman, being the 9th article-Mr. Lawrence in the chair.

GEN. ROOT moved to strike out the last clause of the first section, and insert the following:

'The commissions of all persons holding civil offices on the last day of December, 1822, shall expire on that day.'

Some discussion took place between Messrs. RooT, Buel, Wheaton, and Tompkins, when the motion on striking out and inserting was put and carried. MR. WHEATON moved to insert after the word 'twenty three' (1823) in the 14th line the following words:

The prohibition against authorising lotteries, the prohibition against appropriating the public monies or property, or creating, continuing, altering or renew. ing any body politic or corporate without the assent of two third of the members elected to each branch of the legislature.'

MR. W. remarked that he feared the limitations upon the legislative power, contained in the 9th and 11th articles of the amended constitution, would not prove effectual, unless they were applied to the present legislature. But as the returns and canvass of the votes for or against the constitution would not be made before the latter part of February, it would be impossible to apply those restrictions to the existing legislature until that time.

He observed in the newspapers a great number of applications for new banks, and other monied incorporations, and apprehended that, if some check was not applied, a scene dishonourable to the character and fatal to the interests of the state would be exhibited at the ensuing session of the legislature. Past experience furnished an instructive lesson on this subject, by which we ought to profit.

COL. YOUNG wished that the amendment might be modified by leaving out the prohibition concerning lotteries.

MR. SHARPE opposed the modification, when the question on the amendment as modified was taken and carried.

MR. SHARPE then moved to include the prohibitions with regard to lotteries, which was also carried.

After a few other verbal alterations, the first section passed as amended. Section second was read and agreed to as reported, which completed the amended constitution.

The next question in order was the address reported by MR. ROOT, which was adopted with a few verbal amendments, as follows:

To the People of the State of New-York.

The delegates of the people, in convention, having this day terminated their deliberations, present to you the constitution of the state in an amended form, as the result of the arduous and responsible duties which your confidence bas imposed upon them. They have adopted this course from a sense of the great difficul ty, if not impracticability, of submitting to the people, for their ratification, in separate articles, the various amendments which have been adopted by majorities of the convention. This difficulty is very much increased by the reflection that the adoption of some articles, and the rejection of others, might greatly impair the symmetry of the whole. The convenience of having the amendments incorporated with those parts of the constitution which are to remain unaltered, will readily be perceived. We, therefore, submit to the people the choice between the old and the amended constitutions.

That differences of opinion should exist among individuals, on the various to pics which have passed in review before us, will not excite surprise. Various local interests, and diversity of political sentiments, among a free people, will of necessity lead to different opinions, Probably, the amended constitution, now submitted, is not, in all its provisions, in exact accordance with the desires of any individual member of the convention; but in the spirit of mutual concession and compromise, we have come to a result, which we hope the people, actuated by the same spirit, will approve and ratify. We, therefore, submit it to your investigation

reflection, and final decision, with the most respectful deference; and do most devoutly implore the Supreme Ruler of the universe, that he will perpetuate the blessings of rational liberty, and endue us plenteously with that wisdom from above, which is profitable to direct us in all things.

The committee then rose and reported, without asking leave to sit again. In Convention-The report of the committee of the whole was agreed to, and the report was ordered to lie on the table.

MR. EDWARDS moved to reconsider the 4th section of the 5th article, with the view of amending the section, by making the number of justices of the supreme court four instead of three. In support of his motion, he spoke at considerable length, and contended that one additional justice would give dignity to the bench, with very little expense to the state.

The motion was seconded by Mr. Wheeler, who thought the court would be greatly improved by the addition of another justice.

COL. YOUNG would agree to the proposition, if modified so as to leave it discretionary with the legislature to add another judge, should it be found that the public good required it; and he offered a proviso to that effect:

MR. EDWARDS would assent to the modification, if it would better meet the views of gentlemen.

The motion to reconsider prevailed, and Mr. Edward's proposition was modified, so as to read as follows:

"And if hereafter in the opinion of the legislature, the public good shall require the appointment of an additional justice, and if provision be made by them for the payment of his salary, then one other justice may be appointed for the supreme court."

GEN. ROOT opposed the proposition in toto. If one legislature should think that the public good required an additional judge, and should one be appointed, he would hold under a tenure which could not be touched by subsequent legislatures; and thus the state would be saddled with a superfluous justice, with no way of getting rid of him.

COL. YOUNG remarked, that the legislature would hold the keys of the treasu ry, and if the additional justice should be appointed, and afterwards found unnecessary, he could be starved out of office.

GEN. ROOT regretted that the gentleman from Saratoga (Col. Young) should at this late hour of the session enlist in support of such a proposition, however it might be modified. It was merely making provision for some candidate for a judgeship. If the legislature should find that another justice was required, the constitution provided for an amendment in a regular way.

MR. WHEATON read from the address, reported by the gentleman from Delaware, (Mr. Root) a clause, which inculcated mutual concession and compromise, and hoped these sentiments would be exemplified in the present instance. In order to test the disposition of the friends of the judiciary scheme which had been adopted by a majority of the house, he called for the ayes and noes.

The proposition was further discussed by Messrs. Buel and Radcliff, when the question on Mr. Edwards' amendment was taken by ayes and noes, and decided in the negative, 50 to 41, as follows:

NOES-Messrs. Baker, Barlow, Briggs, Brooks, Burroughs, Carpenter, Case, Child, Collins, Cramer, Dubois, Eastwood, Fenton, Ferris, Frost, Hallock, Hogeboom, Howe, Hunt, Hunting, Knowles, A. Livingston, P. R. Livingston, M'Call, Moore, Pike, Reeve, Richards, Rockwell, Root, Russell, Sage, Sanders, R. Sandford, Seely, Sharpe, Sheldon, Starkweather, Steele, Swift, Taylor, Townsend, Tuttle, Van Fleet, Verbryck, E. Webster, Woods, Wooster, Young-50.

AYES-Messrs. Bacon, Beckwith, Birdseye, Bowman, Buel, Carver. Duer, Dyckman, Edwards, Fairlie, Hunter, Huntington, Jay, Jones King, Lansing, Lawrence, Munro, Nelson, Paulding, Pitcher, Radcliff, Rhinelander, Rose, Ross, N. Sanford, Seaman, I. Smith, R. Smith, Stagg, I. Sutherland, Ten Eyck,

Van Buren, Van Horne, Ward, Wendover, Wheeler, N. Williams, Woodward, Yates-41.

MR. EDWARDS then moved the proviso as offered by Col. Young.

On this proposition another long debate ensued, in which Messrs. King, Cramer and Root participated.

MR. FAIRLIE offered the following modification to Col. Young's proposition, which was withdrawn:

• But an additional justice of the supreme court may be appointed when the legislature shall by law so direct, two thirds of the members elected to the senate and assembly agreeing thereto."

MR. EDWARDS again took the floor, and spoke for some time in reply to the gentleman from Delaware, and in favour of increasing the number of judges. The gentleman from Delaware appeared from some cause to have a strong antipathy to courts of justice. Courts were instituted for the protection of the innocent, and for scourging the guilty. He quoted the couplet from M'Fingal,

"No man e'er felt the halter draw,

With good opinion of the law."

and hoped the gentleman's repeated declamation against courts did not proceed from such feelings.

MR. BRIGGS. The gentleman from New-York last up (Mr. Edwards) has very frankly informed the house, that the members of the legal profession, can have no personal interest in the decision of the question before us. He tells us that the organization of your courts which would be most beneficial to the people, would be the worst possible organization for the lawyers, and vice ver

sa.

That the organization most beneficial to the lawyers, would be the worst possible arrangement for the people. Philosophers have demonstrated, and all experience proves, man to be a selfish being. And the fact is before our eyes, that the proposition upon your table was introduced by a gentleman of the bar, and is supported with an uncommon zeal by the whole body of lawyers in the Convention. The inference from these premises is irresistible, that the project upon your table is the very worst that can be devised, as regards the interests of the people. I hope that those members of the Convention whose interests are not so diametrically opposed to those of the people, will pause before they consent to adopt a proposition which is mathematically demonstrated from the very principles laid down by its advocates, to be the most deleterious imagina

ble.

MR. EDWARDS hoped the gentleman from Schoharie did not consult his own breast in drawing such an inference.

MR. WHEELER regretted to see such a want of magnanimity and good feeling at the close of the session, when we were about to part, perhaps to meet no

more.

The proposition was farther opposed by MR. HOGEBOOM, and supported by Mr. Burroughs.

GEN. ROOT again occupied the floor for some time in opposition to the proposition, and in urging the objections which had been already suggested. There was no court in the United States with four judges, and gentlemen were obliged to cross the Atlantic for precedents. He replied to the gentleman from NewYork, (Mr. Edwards.) and thanked him for the polite quotation from M'Fingal. MR. FAIRLIE made a few remarks, when the question on the proviso was taken by ayes and noes, and decided in the negative, as follows:

NOES.-Messrs. Barlow, Briggs, Brooks, Carpenter, Case, Child, D. Clarke, Collins, Dubois, Eastwood, Fenton, Ferris, Frost, Hallock, Hogeboom, Howe, Hunt, Hunting, Hurd, Knowles, A. Livingston, P. R. Livingston, M’Call, Millikin, Moore, Park, Pike, Pitcher, Porter, Reeve, Richards, Rockwell, Root, Rosebrugh, Russell, Sage, Sanders, R. Sanford, Schenck, Seely, Sharpe, Sheldon, Starkweather, Steele, Swift, Taylor, Townley, Townsend, Tuttle, Van Fleet, Verbryck, E. Webster, Woods, Wooster.-54.

AYES.-Messrs. Bacon, Baker, Beckwith, Birdseye, Bowman, Brinkerhoff, Buel, Burroughs, Carver, Clyde, Cramer, Duer, Dyckman, Edwards, Fairlie, Hunter, Huntington, Jay, Jones, King, Lansing, Lawrence, Munro, Nelson,

Paulding, Pumpelly, Radcliff, Rhinelander, Rogers, Rose, Ross, N. Sanford, Seaman, I. Smith, R. Smith, Stagg, I. Sutherland, Sylvester, Ten Eyck, Van Buren, Ward, Wendover, Wheaton, Wheeler, N. Williams, Woodward, Yates, Young.-48.

Much colloquial discussion took place as to the hour of adjournment, when, on motion, it was decided to adjourn to 9 o'clock to-morrow morning.

Adjourned.

SATURDAY, NOVEMBER 10, 1821. The convention assembled pursuant to adjournment, and the journals of yesterday were read and approved.

Mr. FAIRLIE, from the committee directed to superintend the engrossing of the amended constitution, made report that the said committee had performed the duties assigned them, and had carefully and diligently compared the said engrossed copy with the original, and found the same to be correct. He thereupon presented the same, which was read by the secretary. After the constitution was read as engrossed,

MR. FAIRLIE stated that there was no notice taken of the court of probates, which was to be found in the old constitution. It was an important court, which had long subsisted in the state, and he submitted to the Convention, whether some provision ought not to be made on the subject, or whether it was to be considered as virtually abolished, or subject to the control of the legislature, by the silence of the amended constitution in respect to it?

GEN. ROOT and COL. YOUNG could see no necessity of a rider to the engrossed constitution for this purpose. The court of probates would subsist, but would of course be liable to regulation, or even to be abolished by the legislature.

MR. RADCLIFF suggested that the work of the Convention would be left quite imperfect unless some express declaration was made on the subject. He offered an amendment providing expressly for its abolition. Either such an amendment must be incorporated into the new constitution, or a clause should be added to repeal and abrogate the old, which he wished to avoid, as it might be attended with some inconveniencies.

MR. BUEL denied that either the one or the other was necessary. The select committee had carefully examined the journals, and could not find that any vote had passed either in committee of the whole, or the house, to abolish this court. They had not enumerated it among the courts recognized in the new constitution, because it was desirable to leave the legislature a discretion to transfer its powers to some other tribunal. The court of chancery had been mentioned as most fit to exercise the appellate jurisdiction of the present court of probates, and perhaps the surrogates in the cities of New-York and Albany might be conveniently vested with its power of granting foreign administration.

MR. WHEATON hoped that no clause would be added to the amended constitution, repealing that of 1777. Such a clause would require more consideration than could be given to it at this late period of the session. It might be safely left to the operation of that rule of universal jurisprudence, by which subsequent laws repeal those previously enacted, so far as they come within the purview of the former. It was a rule applicable to treaties as forming a part of the law of nations, to constitutions of government and to municipal statutes. But if the constitution of 1777 was to be expressly abrogated, the repealing article must be guarded by a saving clause of vested rights and of penalties incurred, which would require considerable care in the drafting, and after all such, a repeal might be attended with consequences which could not be foreseen, and which might even defeat the intentions of the Convention. It was, therefore, better to leave it to construction how far any of its provisions might be still considered as in force, so far as to require legislative provisions. If it should be thought fit to re-organize the court of probates, it could be done; because,