members of their respective companies. Field officers of regiments and separate battalions, by the written votes of the commissioned officers of the respective regiments and separate battalions; brigadier-generals and brigadier-inspectors by the field officers of their respective brigades; major-generals, brigadier-generals, and commanding officers of regiments or separate battalions, shall appoint the staff officers to their respective divisions, brigades, regiments, or separate battalions."

From time to time different modes of appointment may be required. But I ask why not entrust the election of field officers to the common militiamen, if the same men, as citizen, may be intrusted with the election of county judges, supreme judges, members of court of appeals, comptrollers, engineers, governors, etc.? Is not a judge of the supreme court, as it is at present organized, a much more important and responsible officer, than a harmless, however martial, major of the militia?

"3. The governor shall nominate, and with the. consent of the senate, appoint all major-generals, and the commissary-general. The adjutant-general and other chiefs of staff departments; and the aides-de-camp of the commander-in-chief shall be appointed by the governor, and their commissions shall expire with the time for which the governor shall have been elected. The commissary-general shall hold his office for two years. He shall give security for the faithfnl execution of the duties of his office, in such manner and amount as shall be prescribed by law.

This proviso is a very sensible one, because it gives to the governor the appointment of all major-generals, and the powerful commissary-general too. Would it not now be equally sensible, and indeed wise, to let him also appoint all real state officers, viz., those of the court of appeals, and supreme courts, provided the latter are needed? The citizen and militiamen are clubbing and become well acquainted with each other. They may therefore presumptively elect their drill-masters and commanders judiciously enough, and better at present than at the revolutionary war, when Washington complained that they did not always elect gentlemen. But if not trustworthy in this instance, why allow them to elect the highest state judges and other officials? Is there not a good deal of inconsistency and lack of principle in such legislation?

"4. The legislature shall, by law, direct the time and manner of electing militia officers, and of certifying their election to the governor."

Superfluous, because matter-of-course.

"5. The commissioned officers of the militia shall be commissioned by the

governor; and no commissioned officer shall be removed from office, unless 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 present officers of the militia shall hold their commissions subject to removal as before provided."

A curious proviso, separating the appointing and removing power there where strict subordination is the first requisite to . make the institution effective. Much more regard is paid to the militia than to the judiciary.

"6. In case the mode of election and appointment of militia officers hereby directed, shall not be found conducive to the improvement of the militia, the legislature may abolish the same and provide by law for their appointment and removal, if two thirds of the members present in each house shall concur therein."

This proves that the whole article is superfluous. But it is significant in regard to principles.

LETTER XIX.

Oaths.Test.-Abuse of Oaths. -Literal Interpretation.- Scandal in Courts.

WE come now to some formalities.

ARTICLE XII.

Oaths.

"Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation :-

"I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of

to the best of my ability.'

according

"And no other oath, declaration, or test, shall be required as a qualification for any office or public trust."

This is in conformity with the federal constitution, and very well that the state officials shall be bound to support this constitution; but I think the improvement elsewhere proposed upon the preamble of this constitution, will, notwithstanding, find favor with the people at large; because it places the intimate connection between the states created by the federal constitution in the

true light. We all love our homes and their constitutional rights and order, but appreciate not less on this account our confederation and its priceless blessings. That improvement binds the whole state, and not some officials only. The last sentence is not

so clear as that in the third section of the third article of the federal constitution. Before the word "test" should be found the word "religious." That "no religious test shall ever be required as a qualification to any office or public trust under the United States," in consequence of which all our state constitutions have abolished this test, should have had a radical reforming influence upon the peculiar custom of the English law, which requires a special oath in almost all transactions before the court. The plaintiff complains upon oath, the defendant answers upon oath, and denies, in most cases, upon no other ground than the hope that the plaintiff may not be able to prove the claim, thus committing perjury. We should have been induced by this precedent of the federal constitution to reform this universally-condemned and most immoral feature of the English law-code at once not so Great Britain, where the religious test is still lawful. Let it be understood that transactions before a court are self-evident. A court sits to elicit the truth in a civil or criminal case, in the name of the state. Whatever the parties called in court affirm or deny, is affirmed or denied before the government represented by the court. The papers delivered by the parties, the records of the court, containing the substance of the transactions, are official public documents and property, and, in virtue of the state authority of the court, perfectly conclusive by themselves. The common custom of asking from a plaintiff an oath about his libel, and one from the defendant about his answer, etc., presupposes that the sitting of the court is not authoritative or official.

As matters are with us, a judge who sits without a religious test, has no right to inquire into the religious tenets of parties or witnesses. A man must be believed in court until the reverse of what he does or says is proved. Should he commit a falsehood, he acts as criminally as if he had acted upon oath; because, by doing so, he violates the truth, the authority of the court, and the state government, which is set up for the purpose of realizing truth and justice. A falsehood committed in court is a kind of treasonable act against the state.

There are more immoral or irrational features in the English jurisprudence, with which it is high time to dispense. One is the prevalent literal interpretation of the law, without a due regard to the rational interpretation, which alone deserves the name of interpretation. The word signifies nothing without regard to its spirit. Suppose the law should dispose that Congress shall meet at the capitol in Washington, on the first Monday of December, and it should happen that the capitol was destroyed by fire before this time, then, according to the literal interpretation in vogue, Congress could not meet at all, there being no capitol; but according to rational interpretation, the meeting of Congress would be considered as the principal object, the house or place of assemblage as secondary, and therefore no obstruction happen, provided a place of meeting was anywhere left for Congress. Another example, founded upon facts. The law ordains that the electors of the President shall meet on a certain day at the state capitals to cast their votes. The electors of the state of Wisconsin, as has been stated, were, in 1856, detained by a violent snowstorm, and did not reach their place of convention on that day; wherefore the vote of that state was considered lost, according to the literal interpretation, while, according to the rational understanding of the law, the casting of the vote, as the principal business, should have proceeded as soon as those electors could surmount the natural obstacles, which was alone necessary to prove or certify at the place of meeting, to make the casting of their votes one or two days after the snow-storm and appointed date perfectly legal; and thus the order and legality of the whole presidential vote would have been saved, while, by the literal interpretation, quite the reverse result might have taken place. Suppose the snow-storm should have visited Pennsylvania, then Mr. Fremont, with the help of a political snow-storm, would have carried the election. Such curiosities may be, and are in fact daily the result of literal interpretation, which, when applied to criminal law, is, in many instances, the shield of evident criminality and the prolific source of savage mobism, roguery, and corruption. This is repugnant to common sense and morality, too.

I mention further that trials of scandalous and obscene cases should not be public, to prevent the courts becoming the advertisers and publishers of scandalous, immoral reports, which, to cir

culate in book-form, is prohibited by special law. You will excuse these remarks here. but they spring up by the association of ideas. Laws should be strictly logical. common-sense, and moral. Sound public opinion, and absence of licentiousness in the press, will be the result. Thus a good state constitution may have a great influence upon the promotion of morals, and even good taste in general; ; more, perhaps, than science and art combined.

LETTER XX.

Amendments. Miscellaneous. — Election Results in Regard to Migration. — Governor Hammond's Speech. - Bound and Free Labor. - Vox Populi Franklin.

WE have arrived at the end of the constitution.

ARTICLE XIII.

Amendments.

"1. Any amendment or amendments to this constitution may be proposed in the senate and assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election of senators, and shall be published, for three months previous to the time of making such choice, and if in the legislature so next chosen, as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of legislature, voting thereon, such amendment or amendments shall become part of the constitution." A similar, but less verbose proviso occurs in the federal constitution.

"2. At the general election to be held in the year eighteen hundred and sixty-six, and in each twentieth year thereafter, and also at such time as the legislature may by law provide, the question, 'Shall there be a convention to revise the constitution and amend the same?' shall be decided by the electors qualified to vote for members of the legislature; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the legislature at its next session, shall provide by law for the election of delegates to such convention."