March 12. To the Assembly: Transmitting the annual report of the Governors of the New York Hospital.

March 15. To the Assembly:

"GENTLEMEN. By an act, passed 18th March, 1791, a certain tract of land, was vested in trustees for the benefit of Peter Otsequette, an Oneida Indian; and by an act of the 29th of February, 1820, Anthony Otsequette, the representative of a moiety of the said interest, was authorized to dispose of it to the state; those entitled to the other moiety, are now desirous of disposing of the same; and as legislative provision will be necessary, I recommend this subject to your favorable notice.17

Albany, 14th March, 1821.

DE WITT CLINTON."

March 21. In response to an assembly resolution requesting information concerning the negotiations for a settlement of the state's claims against the United States growing out of the late war, the Governor transmitted (1) a communication from Ferris Pell, the State's agent, giving a brief history of the negotiations, and the condition at that time from which it appeared that negotiations were

amounted to 9,370,760 acres, of which New York would receive about one-tenth if the plan should be adopted. This would have given New York 937,076 acres. This estimate is particularly interesting in view of the act of Congress of 1862, distributing public lands among the states for the purpose of estab lishing agricultural colleges, on which distribution New York received 990,000 acres, which became the foundation on which Cornell University was estab lished.

The Assembly committee in the report already cited, pointed out that by congressional legislation beginning as early as 1785, one lot, 640 acres, in each township thereafter erected was to be set apart for public schools. The committee thought this policy was wise, especially as it ensured an ample fund in each township for the maintenance of education in the new states. Summing up the whole matter the committee concluded that it was not advisable for New York to co-operate in urging the adoption of the Maryland plan.

17 The suggested relief to the heirs of Peter Otsequette was granted by chap. 118, passed March 19.

practically concluded, and that a final report might soon be expected; (2) correspondence between Mr. Pell and John C. Calhoun, Secretary of War, relative to the purchase by the United States of the fortifications on Staten Island, at the Narrows, from which it appeared that the board of engineers had reported that such fortifications were indispensable to their plan for the defence of New York harbor. Secretary Calhoun's letter contains a quotation from the Engineer's report, showing the location and plan of construction of Fort Tompkins.

March 21. To the Assembly: Transmitting the annual report of the Adjutant General.

March 24. To the Assembly:

Objections by the Council of Revision to a bill "authorizing the building of a toll bridge across the Esopus Creek in the town of Saugerties in the county of Ulster, and for other purposes."

"1st. Because, the bill suspends, for a limited time, the rights, privileges and franchises heretofore granted by the legislature, and by the act, entitled an act to incorporate the Ulster and Delaware first branch turnpike company,' passed March 9, 1810, and authorizes the commissioners of highways to direct the turnpike road, established by the said act, to be worked as a common highway, and erects a corporation to build a bridge across the Esopus Creek, at the place where the bridge, was built by the president and directors of the said turnpike company, allowing them, at any time within five years, to resume the turnpike, on making payment for all improvements that shall have been made. If the legislature rightfully possess the power of making the grant in question, it ought not to be exercised until the parties to be affected by the bill have an opportunity to contest the facts alleged if they deem it expedient. The preamble states that it is represented to

the Legislature that the said president, directors and company, have become insolvent; that the road and bridge are in a ruinous state, and that the company refuse to make repairs; but for aught it appears, this representation is altogether ex parte, and made without the knowledge of the corporation whose rights are suspended; this, of itself, presents a well founded objection against the passage of the bill.

2d. Because the right to dissolve the corporation, does not appertain to the legislature, unless power for that purpose be reserved in the act of incorporation. The charter grants rights, privileges and franchises to individuals. It is admitted that there is a tacit or implied condition annexed to the grant, which, if broken, may create a forfeiture by reason of negligence, or abuse of the powers granted; for this there is an adequate remedy by an information, in the nature of a writ of quo warranto, in which the question of forfeiture may be tried, and if found against the corporation, its franchises may be resumed by the State. This proceeding is according to the course of the common law and is sanctioned, as well by the principles as the uniform practice of our government. It is believed that the power assumed in the bill has been exercised by the judicial authority exclusively, since the establishment of the constitution. The common law which we adopted points out the remedy; and it cannot be doubted, that a departure from this salutary rule, would be in derogation of private rights, and not within the legitimate powers of the legislature."

The bill was not passed over the veto.

March 26. To the Assembly: Transmitting resolutions adopted by the Legislature of Illinois approving the Pennsylvania proposition to limit the power of Congress as to the incorporation of banks; approving an amendment proposed by Vermont providing for the election by single dis

CU. S. Const. art. 1, § 10, clause 1.

tricts of representatives in Congress and Presidential electors except the two additional electors, who were to be chosen in such manner as the Legislature might direct; and disapproving the Kentucky proposition that a change in the compensation of representatives in Congress should not take effect during the term for which they were chosen.

April 2. To the Senate:

Objections by the Council of Revision to a bill "to amend an act to perpetuate the testimony of witnesses in certain cases, passed April 5, 1813."

"1st. Because by the first section of the bill, the provisions of the act to perpetuate the testimony of witnesses, in certain cases,' are extended to all personal actions, now pending, or which may hereafter be pending, in any court having cognizance thereof, within this state, subject nevertheless, to all the limitations and provisions in that act contained.

In order to understand the operation of this bill, it is necessary to examine the provisions in the act referred to. By one of them it is declared that any person may make an affidavit before a judge of the supreme court, or before a judge of a court of common pleas, being of the degree of counsel, or before a master in chancery, that he is a party in a suit then pending, or expected to be commenced, affecting the title to land, and that the testimony of a witness to be named, is material and necessary to him, in such suit; and the officer shall, thereupon, direct reasonable notice, not less than fourteen days, to be given to the opposite party, of the time and place of examination of such witness; and the judge or master shall proceed at the time appointed, on due proof of the service of the notice, to take the deposition of the witness, and he shall include, in such deposition, any answer or declaration of the witness, which shall be required to be included by either of the parties;

the deposition is then to be filed, and to be used upon trial in the cases therein specified, subject to objections to the competency of the witness, or to the testimony.

This provision in the act of 1813, was confined to the single case of title to land, and there appears to be greater reason for the provision in that case, and much less danger of abuse, than in the application of it to all personal actions. The provision is, at best, very loose and unchecked, and the Council apprehend, that if it be extended to all cases whatsoever, it may produce great injustice to suitors, and lead to the corruption and abuse of testimony.

In the first place, it may take the opposite party entirely by surprise, and without any sufficient information to enable him to cross examine the witness: a cause is pending in court after the return of the writ, and before any declaration is filed; the process does not ordinarily state the cause of action, and the application to examine witnesses may be made before the cause of action is disclosed to the opposite party; the affidavit, to be made before the judge or master, is not required to disclose it, and the opposite party may be hastily summoned from one end of this extensive state to the other, on a notice of fourteen days, to cross examine a witness, before he has been informed of the particular cause of action against him. If he obeys the summons, he goes in ignorance of the nature of the case, and if he omits to attend, he suffers witness to say what he pleases, without any call for explanation.

2d. Nor is there any check provided by the bill, against taking the most improper testimony. The officer, before whom the deposition is to be taken, has no discretion to judge of the fitness of the questions put to the witness. He is even specially required to include in the deposition any answer or declaration of the witness, which either party may require to be inserted. By this means, gross scandalous matter, altogether impertinent, and having no proper relation to the merits of the case, may be inserted and per