The tenth section was also read in the following words:

X. That no officer, duly commissioned to command in the militia, shall be removed from his office, but by the senate, on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court martial pursuant to law.

The ninth section (requiring that all commissioned officers of the militia shall be commissioned by the governor) passed without amendment, and the tenth section was read, when Gen. Tallmadge moved to strike out the word, "senate," and insert the word, "council." When the fifth section was under consideration, Mr. T. had made a similar motion, but at the suggestion of Mr. King, consented to postpone the subject for the present. On reflection, he could not consent to postpone it longer, and therefore moved to strike out. In support of his motion, he explained his views at considerable length. His object was to relieve the senate from the exercise of any portion of the appointing power, and from the embarrassments which it would necessarily create. He was in favour of a council of appointment, composed of the first eight senators elected under the new constitution, and so for the other three classes of senators in rotation. To this council he would refer the appointment of all officers proposed to be appointed by the governor and senate, and also all officers for whose appointment no provision had been made. Before the question was taken, the Con vention, on motion of Mr. Radcliff, adjourned.

THURSDAY, NOVEMBER 1, 1821. The Convention assembled, and the minutes of yesterday were read and ap proved.

THE APPOINTING POWER.

The question before the Convention was stated to be on the motion of Mr. Tallmadge, to strike out the word, "senate," in the tenth section of the report on the appointing power, relating to the military appointments.

COL. YOUNG called for the reading of a proposition, which was yesterday submitted for consideration by Mr. Tallmadge, containing his plan of a new coun cil of appointment, which was read by the secretary, as follows:

That the eight senators, composing the fourth class, shall constitute and be an executive council.

That the governor shall nominate, by message in writing, and by and with the consent of the said council, shall appoint all officers, of this state, whose appoint. inents are not herein otherwise provided for; and which shall be established by

law.

But the legislature may by law, from time to time, provide for the election by the people, or other mode of appointment of all city and county officers. Provided such law or alteration sha:1 not take effect until two years after the same shall be enacted."

COL. YOUNG Occupied the floor about half an hour in support of this proposition. It appeared to him to propose a plan for making appointments to office, as perfect as human wisdom could devise. He passed in review all that the Convention had done on the subject of the appointing power, and pointed out the defects of every plan, which had hitherto been submitted. It was questionable whether we had fixed upon the best mode for the appointment of justices, and whether they might not more judiciously be appointed by the council now proposed.

MR. KING wished this subject might be postponed for the present. If the amendment of the gentleman from Dutchess should prevail, the proposition for a new council of appointment could not be here inserted.

After some remarks from Messrs. Spencer, Young, Tallmadge, and Vau

Vechten, on motion of Mr. King, the tenth section of that part of the report relating to military appointments was postponed, with a view of taking up the second section of that part of the report, which relates to the appointment of civil officers. The effect of this motion was to try the sense of the house on Mr. Tallmadge's proposition for a new council of appointment. The section having been read,

MR. RADCLIEF rose in opposition to this plan of a new council. He regretted that a proposition of so much importance had been deferred to near the close of our session, and until the appointing power had been settled by the Con

vention.

We had spent day after day on this subject, and after so much discussion, and such mature deliberation,a new project is now brought forward, entirely different from any thing that has been offered, which will annul all our proceedings on this subject, and compel us to travel back over the whole ground, which we have once passed. If on the eve of adjournment, the Convention were to be thus delayed by new projects, there would be no end to their labours. He then examined the provisions of this proposition, and replied to the arguments, which had been advanced in its favour. The plan might appear well on paper; so did the old council of appointment, and he contended that it was essentially the same as that, previously to the amendment of 1801. It was wholly visionary to suppose that this plan would dissolve the connection between the legislature and the appointing power. Of whom was this executive counsel to be composed? Of the governor and eight senators. Was this relieving the senate from the exercise of the appointing power? Would the burden be lightened by being taken from the shoulders of thirty-two senators, and cast upon the shoulders of eight? Disguise it as gentlemen would by new names, this was the old council of appointment revived and for the abolition of which we had given an unanimous vote. The scenes of intrigue, and corruption, and faction which had so long disgraced the state, and of which the council of appointment had been the great source, were to be renewed and perpetuated. He had hoped, and he still hoped, we should for ever put an end to a state of things which had disgraced us in the eyes of the Union. The fears of gentlemen that the exercise of the appointing power would break down the senate, were wholly ideal. It was not so with regard to the senate of the United States, which had not been broken down, nor experienced any inconvenience from the exercise of the appointing power. If this plan was adopted, and a new council established, it would next be proposed that the appointment of sheriffs, clerks, coroners, justices, in one word, all the officers of the state, should be referred to it, and the counties be stripped of the privilege of selecting their own offi

ceis.

MR. KING. This subject has been maturely considered and well understood.. It was at a time, too, when the Convention were fresh in their labours; was it expedient, then, at this late period, at the heel of the session, to disturb this settlement, by raising a question which, should it prevail, may unsettle every subject on which they had passed?

The motion of the mover may be correct, but the policy of the motion must be strongly doubted. There appeared, however, so much good will towards the proposition, that he asked to be indulged in a few remarks concerning it.

On all hands it is admitted, that, in the power of appointment, vested in the governor and senate, the former possesses the whole power of selection and nomination; and the latter merely that of giving or refusing their consent to such nomination.

The governor alone can nominate to the senate, without whose consent he cannot appoint. It is wisely determined that no council or associate is united with the governor in making his nominations, and neither the senate nor any body, has authority to advise him in the discharge of this trust, but he alone is responsible for the execution thereof.

On account of the public welfare, which requires that such men only as are qualified should be appointed to office, it is made the duty of the senate to inquire, not whether the person nominated is better qualified than any other for the office, for the business of selection is confined to the governor alone, but whether, in talents, integrity and seputation, he is qualified for the office to

winch he is nominated by the governor. If the senate think he is so qualified, they will consent to his appointment; if they think otherwise, they will refuse their consent. In the first case, the appointment will be made; in the second, the governor must make another nomination, which will, in like manner, pass under the consideration of the senate. Thus, in practice, the governor and senate will be so far separated, that, on every occasion, each will act independently of the other. This power of the senate serves as a check against the abuse of the right of nomination; and if it be faithfully exercised, the power is a sufficient restraint.

Not content with this imitation of the model of the constitution of the United States, it is now proposed to take the youngest class of the senate, consisting of eight persons, or the fourth of this body, who were last elected, and without separating them from the senate, to make them what is called an executive council, to whom, instead of the senate, the governor shall make his nominations.

What satisfactory reason can be given for taking a fourth, instead of the whole, of the senate, for this service? It is intimated that this section of the senate, being lately elected, will be well informed of the opinions of the people; but in inquiring respecting the qualifications of a person nominated to office, how are the opinions of the people to assist those who are to make this inquiry? It is likewise urged, that, according to acknowledged maxims, the legislative and executive departments should not be mingled together. If the employment of the whole senate, as a check upon the executive, be a mingling of departments, will not one-fourth of that body be also a mingling of departments? The maxim was, however, misapplied, in this instance; wholly to unite two departments in one, would violate the maxim, which demands their separation; but to combine them partially, especially by using one as a check on another, was frequent in almost every free government, and useful in their construction.

This objection would apply, and forcibly too, to another provision of the proposed amendments, whereby the senate are constituted a court, which in the last resort is to correct the errors of the judiciary.

But the power of appointment does not necessarily belong to any one department, and though it is often given to the executive, it is also, especially by the constitutions of other states, almost wholly vested in the legislature.

An adequate power to check the executive being required, what body is more fit for the discharge of this duty than the senate? Who will possess more integrity, more experience, or greater weight of character? Admit that the assembly possess these properties in an equal degree, they are too numerous a body for the investigation and impartial decision of the questions which will arise on the nominations to office. Large bodies of men cannot be safely trusted in the settlement of facts. The senate, consisting of thirty-two members, and whose number is not to be increased, is large enough for all the purposes for which numbers are necessary, and not too large for their proper degree of knowledge respecting the subjects to come before them in the share of the power of appointment. If their numbers be much reduced, the senate would want weight and authority to check and control the executive power; besides, a small body is more liable to executive influence, and more exposed to intrigue aud corrup tion, than a larger one. These were the general sentiments of the Convention when the subject was formerly before them.

Would it not be hazarding too much, to weaken this check by diminishing its numbers? The whole senate were not too many to constitute a sufficient check on the executive power, and when the whole were not too many, will onefourth thereof prove sufficient?

The experience of the senate of the United States was of great authority; the deposit of the like power over appointments in the President and senate, has proved not only efficacious, but eminently salutary. Experience in all things, and in none more than government, is a safer guide than theory, however plausible it may appear.

Should the powers given to the governor and senate in appointments to office be exercised in the separate and independent manner that has been practised between the President and senate of the United States, we may confidently hope

that intrigue and n anagement, in whatever manner practised in the council of appointment, will hereafter be without influence in appointments made by the governor and senate.

GEN. TALLMADGE thought the gentlemen who had spoken on this subject, did not perfectly understand the nature of the proposition which he had offered. It did not go, as had been stated, to undo that which had been already established; he had been an advocate for the principle of dispersing the appointing power into the several counties of the state; and he appealed to the candour of the Convention if that had not been the case. He had unfortunately found himself in a minority, when endeavouring to support that principle, at an early period of this session and gladly would he now go back to support a plan which should have for its object the giving of this power to the people; but as that could not be rationally anticipated, he was willing, as one, to make a provision by which the legislature might hereafter alter the mode which had been adopted, if experience should show that it was not calculated to promote the welfare and prosperity of the people, whose happiness we are endeavouring to advance and perpetuate. By the plan which he recommended, no alteration could take effect till two years after its passage, during which time there would be two elections, and one for governor. This would be a sufficient check against the heat of party, by placing it beyond the period for which the majority of the legislature are elected, and affording ample time for an investigation of the plan recommended. It was his hearty wish, and he believed it to be the wish of many others in the Convention, that the election of county and town officers might bo given to the people; and as the plans heretofore agrced to in the committee of the whole, had not been tried, he was unwilling to fix it beyond the power of the legislature to amend, if it should be found not conducive to the good interest of the community.

It could not be denied, that the plan which he proposed was marked with prudence in every step. It provides for a compromise of the various opinions which have been expressed by the Convention on this subject; but this was not the most important consideration in favour of it; nay, it was one of the most insignificant arguments in its favour. This plan shakes no principle which has been established, although it is considered so bold an attempt at this late period, to offer a proposition which is new to the Convention. It is a mistake that the principle is a new one. It has been before presented, in substance, to the consideration of this Convention; but at no time has there been an opportunity, till the present, to obtain a decision on it.

We have been told all along, that the intention was to disperse this power; that there was no danger on this head; and we have been thus brought to acquiesce in the belief that all would be right; but how have we descended into details in dispersing this power? Look at the appointments for the city of New-York, which are left unprovided for; and the immense number of appointments which are thrown upon the serate. Where are the health officers of New-York, inen whom, as the President had stated in a former debate, can make fortunes of 70 or 80,000 dollars, in the course of a few years? On looking over the list of officers in this state, it will be found that one thousand are to be appointed by the senate; and this is not the worst, two thousand more are to be left to the discretion of the legislature, and many of them are far from being unimportant in their character. Where are all these to be disposed of: Shall they be put upon the other branch of the legislature? This surely cannot be the intention.

The honourable gentleman from Queens bas claimed to be a witness in favour of the propriety of vesting this power in the hands of the senate; and as a proof of the correctness of that principle, he has referred us to the experience of the senate of the United States, where, he stated, party considerations had no operation. Mr. T. was willing to bow with all deference to the experience of that honourable gentleman, as far as it extended; but when he travelled out of the sphere of his personal acquaintance with a particular subject, he must beg leave to dissent from his conclusions, when they were palpably erroneous. He would call the attention of that honourable gentleman to the circumstances attending the appointment of General Armstrong, and see whether it supported the evidence of this willing witness, that party considerations did not operate

in the senate of the United States, which had only a negative upon the nomination of the president. Was not General Armstrong appointed a minister to France by the president in the recess of the senate; and after he had sailed, upon his nomination to the senate, did not that body make an effort to reject his nomination on party grounds, to disaffirm his appointment, procure his immediate recall, and disgrace the president and the administration, which would not confirm and support the nomination? Was not this project acted over in the senate of the United States, defeated by the casting vote of the venerable George Clinton, who now sleeps in peace?-and the administration of the Union, and indeed the honour of the nation, saved from disgrace in such a party triumph and party measure? And does the recollection of this witness fail him in all these circumstances? Other instances of party efforts in that senate could be detailed, but it cannot be necessary. That the senate of the United States is not free from party influence, cannot be denied; and will the honourable gentleman, whose fortune it has been to walk in the exalted spheres of life, and to act in that senate, so much elevated above the character of the senate of this state, reason from thence that the proceeding in the latter will not be more or less governed by the influence of the lobby? This witness is entitled to every degree of credit, when integrity and purity of intention are the criterion; but these, without experience of those scenes acted over in yonder lobby, may lead to inferences not warranted by fact, and inapplicable to the nature of the case before us.

Mr. T. said, he did not consider it necessary to defeat the argument, that thirty-two men were better adapted to the exercise of this power, than eight; his object was to show the importance of preserving, as much as possible, the purity of that body, in whose hands are placed our property, liberty, and lives. Let us not have our faith and our hope shaken, by a cession of so great a share of this contaminating power to our senate, and to our superior and last court, the court of errors. His fears were not, that the appointing power would be improperly exercised by the senate, but that the more important duties of legislators and judges would be lost sight of in the contentions for office. He disclaimed all solicitude where, when, or by whom, officers were appointed; his solicitude rose to higher objects. It was to guard the purity of the senate, and by the wisdom of its legislation, and the impartial and unsuspected administration of justice, to secure the prosperity and happiness of the state.

He would not be understood as proposing this plan for a council, as the best which human wisdom could devise, but as the best which he could hope to obtain, after knowing the sentiments of the Convention upon the question of electing officers in the several counties; and gladly would he have raised his voice in support of that plan which would give to the people the privilege of electing their own council in the eight districts, independently of either branch of the legislature. But knowing that that could not succeed, he had embraced this plan as the next best which he could rationally hope to obtain ; and he should be sufficiently gratified, if, in the result, he could effect the primary object-of preserving from the danger of corruption, so important a branch of our govern ment as the senate and court of errors, even without proving that eight are better than thirty-two, as an appointing power.

The great and leading object was to avoid the horrid consequences, so frightfully depicted by the honourable gentleman from New-York, (Mr. Radcliff,) of commingling with the legislation of your state, the contemptible and disgraceful squabbles for office. The honourable gentleman from New-York had portrayed those hidden scenes with great success and remarkable accuracy; he would certainly be entitled to full credit upon these matters, when it should be recollected, that he had spoken from so much learning and so much actual experience in those transactions. He has told us, that we might as well, indeed, take the old council of appointment.

We have heard of the ghost of that old council, and we are now told, that this is not its ghost, but the original in more terrific form. But, said Mr. T., the ghost of that council will never haunt me: my fortune has never depended. directly or indirectly, upon the good or ill will of that council. I have had no intercourse with it. Its good or evil genius haunts me not; and, therefore, I