of which they have a very small I For the Literary Magazine. ne SPEECH OF THE GOVERNOR OF NEW YORK. THE two houses of the legislature of New York met on Wednes day the 29th of January, at the city Gentlemen of the Senate and Since last I had the honour of addressing you within these walls, occurrences have arisen, involving the dearest interests of our country. Our exterior relations have assumed an aspect threatening to that tranquillity, the basis of national prosperity, we have so long enjoyed. Principles, unknown to the maritime law of nations, have been adopted and enforced in the prize courts of some of the belligerent powers of Europe, repressive of our commercial enterprize, and destructive of the most important branch of our foreign trade. Violations of territorial rights, and breaches of national faith solemnly pledged, have swelled the catalogue of our wrongs. The issue of these dark forebodings is as yet hidden from us. Should the result be open hostility, it behoves us to place ourselves in that state of preparation which shall preserve our rights and protect our honour. In the event of war, the possession of our sea ports would be a leading object of military achievement. The one which forms the depot of the surplus product of the agriculture and commerce of this state, is, of all others, the most unprotected. On this interesting subject, representations have been made by the corporation and merchants of the city of New York to the general government. I have also written to the president of the United States. But, from the amount of the appropriation proposed to be made for the fortification of harbours, by a recent report of a committee of the house of representatives, nothing very efficient is to be looked for from that quarter. It remains then, gentlemen, a question for your consideration, whether, in this state of things, you will not make an effort towards the protection of the key of your state, and the seat of your wealth. The expence will certainly be great. It may, however, by judicious management, be rendered so gradual as to be little oppressive. Guided by the report before-mentioned, we are led to the conclusion, that the federal administration contemplate a defence of our harbours by gun boats principally. These may form an important item in a general plan; but, in my conception, can only be effectual when acting in concert with land batteries. Should it be thought adviseable to commit this subject, I will lay before the committee such information and plans as I am possessed of. Meanwhile I cannot omit calling to your recollection, gentle men, the act of the 28th of March, 1800, by which the state stands pledged for the expenditure of a sum in fortifications equal to that assumed by the United States in the debt of this state. The amount of that assumption was one million two hundred thousand dollars, of which the state subscribed one million one hundred and eighty-three thousand seven hundred and sixteen dollars and sixty-nine cents, equal in specie, upon the principles of adjustment established by the act of congress of the 16th of February, 1799, to the sum of seven hundred and sixty-eight thousand three hundred and twenty dollars fourteen cents. In part satis faction of this debt, the state has received a credit on the books of the treasury of the United States for one hundred and thirty-six thousand five hundred and thirty-three dollars and eighty-two cents, expended previous to the passing of said last mentioned act, and is entitled to a further credit, for expenditures subsequent thereto, of one hundred and seven thousand seven hundred and nineteen dollars seventy cents, which I have directed the comptroller to adjust with the secretary of the treasury of the United States, leaving a balance still to be expended by the state of five hundred and twentyfour thousand and sixty-six dollars and seventy cents, to entitle her to a discharge from all demands on the part of the United States. Next in importance to the defence of our chief city, is the preservation of the health of its inhabitants. It has pleased the Sovereign Disposer of events, in the dispensation of his providence, to permit pestilence again to visit them through the course of the last autumn. The cause of this dreadful scourge being unascertained, it is difficult to say what measures should be resorted to, to prevent its repetition. On this subject the board of health, whose zeal and exertions do honour to their humanity, and justly entitle them to the meed of public applause, can probably best advise. Should it require legislative aid, it doubtless will be afforded. And it is confidently hoped that the burthen of averting a great national calamity, affecting the interests of a whole community, will not be permitted to rest solely on a meritorious portion of it. During the last recess, I have had an opportunity of reviewing and inspecting a considerable section of the militia, whose military improvement and soldierly deportment far exceeded my most sanguine expectations. Such has been the progress of many regiments, that they are capable of performing several important evolutions with a celerity and precision that would not disgrace regular troops. The greatest defect met with, particularly among the inhabitants of the new settlements, is the want of arms. Many of our hardest and most robust citizens are destitute of the means of procuring them: and where this is not the case, the country does not furnish a a number sufficient for all those whose pecuniary circumstances would enable them to purchase. Nor are the arms they have such as they should be: numbers of them are in bad order, from the want of skilful workmen to keep them in repair; various also in sort and size: a circumstance which, in time of actual service, would be productive of great embarrassment. A difference of calibre alone, from a consequent variety required in the size of cartridges, caused inconveniences during our revolutionary war, too serious ever again to be hazarded, without incurring the imputation of criminal neglect. The only remedy for the evil, which promises to be effectual, is to arm the militia at the expence of the state. Many are the advantages which would result from the measure. All would become contributors towards the general defence. The arms might be of one stamp; nearly of the same quality; and, in case of invasion, we should not be destitute of an indispensable mean of self-preservation. Should you, gentlemen, resolve on this measure, the preferable methods of procuring and preserving them are to be considered. To import them from abroad, in the present convulsed state of Europe, is probably impracticable. And were it otherwise, there are, in my opinion, irresistible inducements to give a preference to home manufacture. We shall insure an exemption from impositions which have been heretofore practised upon us. Possessing the crude materials within ourselves, we shall, under no circumstances, render an essential mean of defence precarious from hostile interruptions of our commerce. We shall give encouragement to our own artizans, and promote the home consumption of staple commodities, of which our rapidly pro. gressing industry promises, ere long, to produce quantities which shall seek a foreign market in vain. In preference to contracts, which are ever the fruitful source of controversy, I should recommend the establishment of a manufactory, under the direction of proper officers of the government, upon such a scale as the resources of the state shall justify. With attention and economy, this mode promises to be least expensive and most effectual. Virginia, I am informed, has such an establishment, where five thousand stand of small arms are annually produced, at an average expence of not more than ten dollars per piece. When a sufficient number are provided, they may be dis tributed among the different regiments, to be deposited in an armoury to be erected in some central position within the limits of each, under the charge of an armourer, provided and supported at the expence of the county. On field-days they might be delivered for use, on the responsibility of the proper officers, to be returned as soon as the parade shall terminate. Another defect in our military equipment is the almost universal want of experienced drummers. The drum is all important in the day of battle. It must frequently be resorted to as the only means of announcing to the troops intended movements, and may thus decide the fate of an army. I submit to you, gentlemen, whether measures ought not to be adopted, which shall insure a competent number of persons skilled in the martial exercise of that instrument. From the returns of the commissary of military stores, it appears that the whole park of brass field-artillery belonging to the state consists of but sixty-three pieces, the heaviest of which are six pounders. We have already, including the two regiments in the city of New York, fifty-three companies of artillerists, and there ought to be at least two pieces to a company. The two regiments in the city of New York, if ever called on to act against shipping, should be provided with pieces of a heavier description. That they may be accustomed to the use of them, the immediate purchase of two light brass twenty-fours, weighing about eighteen hundred each, two medium twelves, and two eight inch howitzers, would be advisable. The probable cost will be about eight thousand dollars. A supply of ammunition, it appears, is also much wanted. For the accomplishment of these various objects, I conceive an appropriation of one hundred thousand dollars per annum may be made with little, if any, inconvenience. On looking into the fiscal department it will be found, that the ordi nary revenue of the state, for some years to come, will fall little short of three hundred thousand dollars per year; that the ordinary expences, on an average of four years past, do not exceed one hundred and sixty thousand, leaving an annual surplus of one hundred and forty thousand dollars. As a considerable portion, however, of this income arises from debts of individuals, in the payment of which there is little punctuality, the actual receipts at the treasury cannot be calculated to exceed a sum which would, leaving a sufficiency for contingencies, warrant an appropriation from the surplus of ordinary revenue, of more than forty thousand dollars per annum. The deficiency of sixty thousand dollars may be derived from the avails of a semi-annual state-lottery, or such other sources as the wisdom of the government shall point out. In the course of examination into this department of government, I observe demands against individuals of very long standing, which ought in some way to be disposed of. The collection of debts due to the state, particularly on the sale of lands, in the ordinary course of judicial proceeding, is dilatory to the one party, and expensive to the other. The propriety of devising a mode less exceptionable, to be applied to all further contracts, merits consideration. liable to many objections. It is a source of patronage and favouritism unfriendly to the republican system. It deters individuals, who engage in this line, from making those permanent establishments, calculated to beget that ability, punctuality, and consequent respectability, which will ever prove the surest pledge of a faithful discharge of the various trusts confided in them. I cannot but believe that the business would be conducted more to the advantage of the community, and the benefit of the treasury, to be laid open to every one who chose to engage in it, and could give the required security, than by continuing it in that precarious state, where the slightest variations in party, or superiority in intrigue, may in a moment, deprive a family of its bread. No In the discharge of a highly important executive trust, I have been constrained to refer, gentlemen, to your consideration two cases of an unpleasant, though serious and interesting nature. They are cases of murder: each attended with circumstances calculated to excite indignation. They will, notwithstanding, receive, I trust, a candid and dispassionate examination. Stephen Arnold was convicted, at a court of oyer and terminer held for the county of Otsego, before the chief justice. one more highly estimates the talents, learning, and judicial decisions of this gentleman than I do. Few lawyers, if any, are more ge nerally correct in their opinion. Yet, in the hurry of the business of a circuit, where little time is affordFreed for reflection, that accuracy cannot be expected, which is the result of more deliberate inquiry. This reflection strengthened a first impression, on reading the report, that the case was new, and involved questions of law meriting further investigation. The result of my examination is, that no case precisely similar to this, in all its circumstances, ever before received a judicial decision; at least, that none is reported. It must rest, then, upon general principles; and although Our statute book is annually swelled to a useless size by the insertion of private acts. Those for the incorporation of turnpike companies occupy many pages. quent revisions of the laws might be avoided, and a considerable saving in the expence of legislation effected by excluding them, and by establishing general principles on which such companies shall in future be incorporated. The propriety of auctioneers holding appointments under the government I have long questioned. There may be substantial reasons for the practice, but I confess I cannot discover them. It certainly is I do not venture to say, for it is not my province to decide a question of law, that these principles have been misapplied, it is sufficient to justify my referring it to a higher tribunal, that there appeared to me sufficient cause for doubt. It certainly would have been the correct course to have referred the question to the bench of judges, but for this there was not sufficient time between my receiving the official report of the trial, and the period assigned for the execution of the sentence, which was but fifty hours, and the place of execution one hundred and thirty miles distant from me. Under these circumstances I took the only course prescribed to me by the constitution. The common law doctrine upon this subject is not questioned. Certainly, where the death of a child or servant is the effect of passive negligence of a parent or master, the offence may be murder. So also where it is the consequence of active severity in chastisement it may be murder or manslaughter, according to the indiscretion of the choice of the instrument used, the extent of punishment, and the circumstances under which it is administered. The report explicitly negatives all presumption of express malice. His right to correct the child cannot be contested; the instruments used were not unlawful. The essential ingredient in the constitution of his offence arises then, by implication of law, from the indiscreet exercise of his rights, the result of a violent temper. Had the death of the child arisen from a course of immoderate correction, accompanied with intervals of calmness from subsiding passion, it would have evinced that general depravity which warrants the inference. But where the passions are excited, and kept in an uninterrupted agitation, such is the benign tenderness of law to human frailty, that a homicide committed in this state of mind, though a felony, is not murder but manslaughter. Which of these offences the convict has been guilty of, is left for you to decidę. When you shall have this sub. ject under consideration, permit me to direct your attention to the sixth enacting clause of an act entitled "an act concerning murder." Its terms are," that upon all indictments for the death of any per. son, if it be found by verdict that the party indicted happened to kill the person for whose death he is indicted, in lawfully chastising or correcting his child or servant, the party so indicted, &c. shall not forfeit or lose any thing for the death of the same person so killed, but shall thereof, and for the same be fully acquitted and discharged." This clause has never, to my knowledge, received a judicial construction. Should it be contended that it is applicable only to cases where the correction is lawful in all its particulars, it is useless, for such cases were not punishable at common law. May it not be intended as a protection against the effects of indiscretion? I presume not to give an opinion. It would be travelling out of the line of my duty. His At the last session I recommended to the consideration of the legisla ture the propriety of an alteration in the criminal code, which should make a distinction between the cases of actual and implied murder. The subject was committed, and the attorney-general, who was charged with it, approved the plan, and determined to report by bill. time being much occupied, I engaged to draw the bill for him; but really could not find leisure to com→ ply with my engagement. I, there fore, considered the subject as still under legislative consideration, and this was an additional motive for referring the case of Arnold to you. I must add also, as a further inducement, the application of a number of inhabitants of the county of Otsego, for a six weeks respite of this unfortunate man. It was too respectable not to claim attention, and could in no way be constitutionally complied with, but by suspending the execution till the meeting of the legislature. Some letters respecting his case will be laid before you, on |