petuated upon record. This latitude of examination is the more liable to abuse, when it is applied to that class of personal actions which are founded in tort, and in which the angry passions are apt to be engaged.

3d. Another objection to the bill is, that the party applying to examine a witness, is not required to show the reason or necessity for such a premature examination. He may require any witness, in any case to be examined immediately on the first pendency of the suit, without stating that he is old and infirm, or sick, or not likely to live, or about to leave the state. He is only to declare that the testimony of such a witness is material and necessary, in the defence or prosecution of his suit, and he then will be entitled to examine any witness he pleases, and call out all the testimony in any case, long before the trial, without showing any existing necessity for such a disclosure. It is a very dangerous anticipation of the regular trial of a cause, in the presence of the court and the jury, and may be productive of fraud and perjury, by affording an opportunity to tamper with witnesses, and by creating inducements fraudulently to counteract, and unduly to supply the deficiency of proof.

This mode of taking testimony by depositions, prior to any pleadings in the cause, tends greatly to impair the integrity of testimony, and to undermine the safety and value of trial by jury. It can never be justified, except upon the principle of extreme necessity and no such necessity is required to be shown in this case; and this the Council apprehend to be a most serious objection to the bill.

It is in direct hostility to the common law policy of ore tenus examination in the presence of the court and jury, and if a witness, thus prematurely and privately examined, should afterwards attend the trial, his previous deposition would operate as a restraint upon sifting inquiries at the bar, and greatly check the investigation of truth. If a free and open inquiry should not be desirable to the witness, or

either party, nothing could be more easily managed than for the witness to be out of the state, at the trial, and thereby give admission to his affidavit.

The necessity of such a material innovation upon the old and settled principles of our law, does not appear by the bill, and has not occurred within the knowledge or experience of the Council; and innovations upon the old and established principles of law, ought never to be made for the sake of theoretical improvement, but ought always to be preceded by inconveniences or evils, actually experienced. As the law now stands, testimony can be very conveniently perpetuated, provided the necessity for it be first made to appear, and it must then be taken under those checks and safeguards which justice dictates. Testimony may be perpetuated by a bill in chancery, but in such case, the bill must state that the party is in danger of losing the testimony, by delay, or that his right rests entirely upon the evidence of the witness sought to be examined. The bill must likewise particularly describe the nature of the right or demand to which the testimony is to be applied, so that the opposite party may know to what subject to point his inquiries. The courts of law will also allow testimony to be taken de bene esse, in any cause pending before them, but no order would be obtained for such a premature examination, unless it was first shown to the satisfaction of the judge or commissioner, that there was a necessity for it, by reason that the witness was old and infirm, or in danger of life, or about to depart the state, and the judge would no doubt exercise a sound discretion in respect to the previous disclosure of the nature of the action or defence, and the fitness and pertinency of the proof. Under the present bill, a party may apply to a master in chancery, who has no judicial authority, and without showing any necessity, and without disclosing his case, may have any witness examined on any subject, and may require anything he says, to be taken down. The bill

seems, therefore, to be destitute of all reasonable and customary checks against surprise and imposition, and may prove extremely injurious to the pure and correct administration of justice."

The bill was not passed over the veto.

April 3. The Legislature adjourned without day.

1822. JANUARY. LEGISLATURE, FORTY-FIFTH SESSION.

DE WITT CLINTON, Governor.

The Legislature met the 1st day of January, but a quorum did not appear until the next day, at which time the Governor delivered the following

OPENING SPEECH.

GENTLEMEN OF THE SENATE AND OF THE ASSEMBLY.-Since the adjournment of the legislature, an event has occurred of the highest importance to the people of this state: The delegates elected "for the purpose of considering the constitution of this state, and making such alterations in the same as they may deem proper, and to provide the manner of making future amendments thereto," have concluded their deliberations, and presented the result for the ratification or rejection of the people, in the shape of a new constitution, varying essentially in many of its provisions from the present frame of government. As this subject is now under the consideration of the supreme and sovereign power of the community, the source of all legitimate government, it would be obviously improper for the derivative and subordinate authorities to interfere in their official characters with its deliberations and decisions. Whatever advice we offer, whatever determination we form, and whatever course we pursue, must be indicated in our individual capacities, as component members of a great com

munity acting in its sovereign character: and whenever the momentous decision is made, and whatever it may be, it will be our incumbent duty to obey implicitly the determinations of the people, and to carry into full effect their expressed volitions. Were it not for considerations so imperative I should on this, as I trust I have on all proper occasions, have communicated with frankness and candor iny views in relation to the bearing of this important question on the public welfare. It is a spectacle truly felicitating, to observe the calm and dignified moderation with which our constituents have approached this important subject, for so far as my observation has extended, the discussions have been free from the usual asperities and agitations of the times. It is indeed not a question involving the views of personal ambition, the interests of party ascendency, or the feelings of local contention. It looks to the past for enlightened instruction, to the present for wise and patriotic decision, and to the future for general and permanent benefit. To perceive a vast and growing population sitting in judgment on its own form of government, acting with intelligence, independence and firmness, discarding minor and evanescent considerations, and consulting the greatest happiness of the greatest number, is a sublime sight, administering to the best hopes and answering the highest expectations of the friends of republican government. And let us humbly supplicate the Supreme Dispenser of all good to shed his propitious influence on this occasion, and to produce a result auspicious to the stability of civil liberty, the ascendency of good government, and the prosperity of our beloved country. In all the vicissitudes of an eventful existence, in the first migrations and settlements of our forefathers, in the trials of colonial dependence, in the struggles of a glorious revolution, in the establishment of free and energetic governments, and in rapid and wide-spreading advances to prosperity, it has pleased Almighty God to consider us with

an eye of paternal indulgence, to watch over us with his providence, and to protect us against those overwhelming evils which have been so fatal to the best interests of the human race; and may we not humbly hope that the same gracious dispensations will attend our future progress, and that we may be permitted to exhibit an irrefragable proof and an illustrious example of the capacity of man for self government, and of his triumphant advances in all that can add dignity to his character and derive blessings from his exertions.

The labors of agriculture have for the last season been crowned with abundance, and the institutions which have been founded for the encouragement of this important pursuit, continue to produce the most beneficial effects. A great amelioration within a few years is observable within all the departments of rural economy. The rapid improvement of live stock, the judicious application of manures, the increased production of the various kinds of grain, and other vegetables, the introduction of new objects of cultivation, the invention and adoption of excellent implements of husbandry, and a growing attention to the promotion of horticulture, have unquestionably originated in a great degree from institutions which concentrate the fruits of experience, which apply the discoveries of science and the inventions of art, and which excite into activity all the generous principles of emulation, and all the latent powers of improvement.1

1 The agriculture law of 1819 was amended by chap. 236, passed April 16, by authorizing boards of supervisors to raise by taxation an amount equal to the amount apportioned to the county under the original act, and to expend the amount so raised by tax, and the amount received from the state as the board might deem best for the promotion of agriculture and of family domestic manufactures.

A clause in the general appropriation act, chap. 260, passed April 17, authorized the payment of a specified amount to the counties of Oneida, Onondaga and Oswego.

VOL. II.-69.