Production Note
Cornell University Library produced this volume
to replace the irreparably deteriorated
original. It was scanned using Xerox software
and equipment at 600 dots per inch resolution
and compressed prior to storage using CCITT
Group 4 compression. The digital data were used
to create Cornell’s replacement volume on paper
that meets the ANSI Standard Z39.48-1984. The
production of this volume was supported in part
by the New York State Program for the
Conservation and Preservation of Library
Research Materials and the Xerox Corporation.
Digital file copyright by Cornell University
Library 1994.Commemoration of the One Hundredth Anniversary of the Adoption
of the Constitution of the State of New York.
[April 20, 1777.]
ADDRESS
BY
CHARLES O’CONOR
DELIVERED BEFORE THE
NEW YORK HISTORICAL SOCIETY
AT
THE ACADEMY OF MUSIC
MAY 8til, 1877
NEW YORK:.
ANSON D. F. RANDOLPH & COMPANY,
9OO BROADWAY, COR. 20th STREET.
1877COPYRIGHT, 1877, BY
Anson D. F. Randolph & Co.PROCEEDINGS
The New York Historical Society held a special meeting
at the Academy of Music, on the evening of May 8, 1877,
to commemorate the One Hundredth Anniversary of the
adoption of the Constitution of the State of New York.
The President, Frederic de Peyster, LL.D., in the chair.
The meeting was called to order by the President, who
said:
“ The New York Historical Society have invited their
friends to unite with them in celebrating, this evening, the
One Hundredth Anniversary of the adoption of the Consti-
tution of the State of New York.
The Constitution of the State, as is well known, was
adopted at Kingston-upon-Hudson, on the 20th of April,
1777) but the present commemoration has been delayed as
a later day in the season was more desirable.
The Society has been fortunate in obtaining from Mr.
O’Conor his consent to deliver an address on this occasion.
The subject he has selected is The CONSTITUTIONS.
I have now the pleasure of presenting to you our dis-
tinguished member and friend, Mr. Charles O’Conor.”
The address was then delivered. Upon its conclusion
George H. Moore, LL.D., moved on behalf of the Society
the following resolution
Resolved, That the thanks of this Society be and hereby are
presented to Mr. Charles O’Conor for the masterly, eloquent,
and instructive address with which he has favored us this even-
ing, and that he be requested to furnish a copy for publication.
The resolution was seconded by Judge John K. Porter,
who expressed in happy terms the general feeling of admi-Proceedings.
ration for the memorable address of Mr. O’Conor, which
he prophesied would, like the speaker and the occasion,
prove historic.
The resolution was unanimously adopted, and the meet
ing adjourned.
Extract from the minutes.
ANDREW WARNER,
Recording Secretary.
New York Historical Society,
May gtti, 1877.ADDRESS
Ladies and Gentlemen:
We are assembled to commemorate the hundredth
anniversary of our State’s political birth as a free and
independent sovereignty, and also to signalize with
appropriate forms her entrance upon the second
century of such her organized existence. As a
part of the exercises deemed suitable to the occa-
sion, the Historical Society has directed a review
in your presence of such circumstances connected
with the frame and effects of our written Constitutions
as may seem most interesting. In performing this
duty, it is not needful to recapitulate the transactions
of that conflict with the mightiest power of our times
in which the national life of this Republic originated.
Charming as the recital might be made even now
and in its thousandth repetition, there are pertinent
subjects of a practical bearing upon our interests
which may furnish more acceptable themes.
The first Constitution whose establishment we are
celebrating was formed amidst the clash of arms and
3Address.
at a trying period of our natal strife. The whole
southern district of the State, including this its capital
city, was possessed by the enemy, and two invasions
of our territory from other points were impending.
They were ultimately defeated, but that issue could
not have been confidently predicted. The town which
harbored the framers of the Constitution at its adop-
tion was then being approached by hostile forces. It
soon fell into their hands and was reduced to ashes ;
yet such were the intelligence, calm, temper, and
patriotic firmness of the illustrious men who prepared
the instrument that, taking into view the existing
measure of attainment in political science, it may defy
just criticism. Opinion is divided on the question
whether in the progress of that enlightenment to
which it afforded a basis it has been, as a whole, im-
proved upon. Treating as comparatively of slight
moment its minute arrangements for administrative
purposes, such as the adjustment of inferior offices
and tribunals, we will chiefly consider thbse parts of
the instrument which may justly be called our organic
law — that is to say, the great leading character-
istic features which were designed to distinguish it
from preceding plans of government. It may be in-
structive to compare it with the alterations which
have since been made. The aim will1 be to exhibit
clearly those fundamental principles which it is the
proper office of a written Constitution to preserve.
For all the purposes of benign and useful governmentTo Vote a Public Duty, not a Personal Right.
as contemplated in our American system, these prin-
ciples are few, simple, and easily understood. If in
their native purity we can bring them distinctly before
the public mind and keep them in view, their con-
tinued acceptance will be insured.
When the thirteen colonies rose in arms against
their transatlantic ruler, their sentiments were accord-
ant in essentials. Each was inhabited by a monoga-
mous race. So completely inwrought with their mor-
ality was the pure marital relation, as exhibited by our
first parents, that no permanent guarantee for its pres-
ervation was ever thought necessary. Hence per-
haps the unwise tolerance of Mormon polygamy in re-
cent times and an injudicious facility of divorce in
some of the States. In parts of the country the Indian
and the African were overlooked as distinct races;
but, with these silent and merely implied exceptions,
an absolute equality of all men was unequivocally
and universally asserted. These two ideas con-
stituted the basis of our politics and of our civiliza-
tion ; they are the sources of all the good hitherto
developed in our social state. From them we must
permit no departure.
In thus claiming that the Fathers were perfectly
unanimous on the principle of equality, it is not for-
gotten that age, sex, residence, and property, or the
sustainment of public burdens were generally, if not
invariably, demanded as pre-requisites to exercising
what is somewhat inaptly termed the franchise of
sAddress.
voting. The criticism is not sound which would de-
nounce any of these requisitions as encroachments
upon personal rights. It is an error quite incon-
sistent with the theory of government, as inaugurated
on our separation from the parent State, to regard
the act of voting for public officers as a private right
or personal privilege. It is simply the performance
of a duty in which the public only has an interest.
The vote is no more a private right than the pay-
ment of a just tax or the act of submitting to enroll-
ment as a soldier and marching to confront an assail-
ing foe. These are public duties, not private rights.
Every generous and patriotic heart will, indeed,
enjoy their performance and exult in enduring all
the hardships imposed by it; but the notion of a
resulting personal and individual benefit no more
applies to the employment of time and labor in the
political duty of casting a vote than to the act of
pouring out life’s current on the field in defense of
our country. It follows that requiring specified
qualifications in the voter is merely the enactment
of exemptions from the performance of a public serv-
ice. Rightly understood, these exemptions would
be regarded as relief acts in favor of those who, in
the judgment of the State, were unable to sustain
the burden, and, therefore, could not be justly
charged with it. It is from our failure to realize this
manifest truth that we tolerate the pernicious trade
of politics in its lowest forms, and do not hold in
6Religious Liberty.
deep dislike the profession of the party-organizer or
the pursuits of the habitual office-seeker.
Let us, in some detail, take a view of our first Con-
stitution.
It ordained that the people were the only source
of political power, and consecrated in perpetuity all
those common rights of exemption in property and
person from arbitrary power which the colonists had
claimed for British subjects, including the privilege
of trial by jury. The first might fairly be pro-
nounced a new political institute; the rest were
merely guarantees of rights, which, though imper-
illed by abuses, were deemed ancient and already
sacred. One other new doctrine was promulgated.
It was declared that “ the free exercise and enjoy-
ment of religious profession and worship without dis-
crimination should forever thereafter be allowed
within this State to all mankind.” Religious liberty
was thus secured by language of the amplest
liberality and comprehensiveness. This can not be
said of any other State Constitution adopted during
the Revolutionary conflict, unless it be that of Vir-
ginia. Perhaps she may claim equality with New
York in regard for religious liberty. For their early
devotion to its establishment our John Jay and Vir-
ginia’s George Mason became entitled to statues in
the national pantheon. Except in a single instance,
ingenuity never subsequently discovered in this State
a means of deducing any civil consequence from
7Address.
theological opinion. A small class of unbelievers
were excluded from bearing testimony in courts of
justice until the anomaly was obviated by the Consti-
tution of 1846.
Undoubtedly the best and freest Constitution for
its own creators that any people had ever enjoyed
before 1776 was that of England. The era of act-
ive, practical progress in disseminating among men
a knowledge of their political rights may be said to
have commenced about the eighteenth century.
Writers of great power then devoted their lives to
this object, and as it is far easier to adopt a good ex-
isting model and commend it to acceptance than to
produce and win approval for an entirely new and
original conception, the English system became the
■ beau ideal of those political reformers. Their views
in the main were adopted by the most enlightened
of the American colonists. Many were induced by
the vigor of their own reflections to reject all mon-
archical and aristocratical elements, while the violence
which attended the separation, the absence of great
wealth among our gentry, and certain concurring cir-
cumstances, forced others to relinquish personal pre-
dilections and to acquiesce in that judgment. Thus,
by unanimous consent, republican equality became the
basis of the coming empire. Still there remained
deeply seated in the American heart an almost bound-
less admiration of all English institutions that were
8The English Constitution the Model.
either compatible with perfect equality and religious
freedom or that it seemed possible to mold into har-
mony with them. Consequently, in the mere work-
ing arrangements for the transaction of public
affairs, the English model was followed. In our
State the imitation was extremely close. A some-
what permanent executive chief was installed, and the
notion of parliamentary government was acted upon
and developed in two separate chambers. Local
county courts and a probate judiciary were instituted,
as well as a superintending common-law tribunal
called the Supreme Court, side by side with a chan-
cery to mitigate the rigor of its forms and supply its
deficiencies. All these were patterned after the En-
glish judicial system ; nor was its crowning feature
overlooked. The only State organism that bore any
shadow of resemblance to the English House of Peers
was the Senate; and there, in the closest imitation
of our parent State, the Constitution enthroned the
supreme judicial power with final appellate jurisdic-
tion in law and equity. Grace and majesty shone
forth in the copy as in the original. This first New
York judiciary administered public justice and pro-
tected private rights, during the whole period of its
existence, in a manner which satisfied our people, and
won applause from all disinterested observers. Of
its judges and the pleaders before it, many have left
names that will not die while learning and virtue are
9Address.
reverenced. Kent was the glory of its bench ; Ham-
ilton of its bar. To name others without giving too
lengthened a list might seem invidious.
It was in respect only to provisions merely model,
and not involving any principle, that the first Consti-
tution was subjected to any considerable alteration
prior to the year 1846. It, however, may be inter-
esting to note some of the changes which occurred
in the interim. In 1801 the representation in Senate
and Assembly was modified. The crimes of ma-
licious homicide and treason were originally excepted
from the power of pardon conferred upon the Gov-
ernor ; but in 1822 the former offense was brought
within this prerogative. The first Constitution cre-
ated a council for making appointments to office, and
another for the revision of legislative acts with a
qualified veto. In 1822 both of these councils were
abolished. The veto power was then conferred up-
on the Governo'r alone, and the power of appoint-
ment was mainly vested in that officer and the Sen-
ate. Various other alterations of like inferior grade
were made in that year. The Supreme Court Judges
were reduced in number, and local assistant judges
were created subordinate to that court and to the
Court of Chancery. Several new provisions were
then introduced as to the appointment and election
of inferior officers. And hence we pass to an im-
portant epoch.
A new Constitution, adopted during the previous
10The Qualifications of Voters.
autumn, went into effect in 1847. With alterations
scarcely more than formal it is still in force. It
wrought very material changes in the structure of
our State Government, and by consequence in its
methods. It abolished the pre-existing court of last
resort as well as the Supreme Court of common-law
jurisdiction and the Court of Chancery, substituting
for the first a Court of Appeals with eight judges,
since reduced to seven. The powers and jurisdiction
of .the other two high tribunals were vested in eight
essentially local courts. Each Senator and Assem-
blyman was directed to be chosen in a separate, or,
as it was called, a single district, the term of the
former being reduced to two years, or one-half of the
duration previously established.
At first only the Governor, the Legislature, and a
few local administrative officers were elected by the
people. That principle had been gradually and in a
slight measure extended to other members of the
latter class; but now the whole judiciary and nearly
all officers of whatever grade were made elective.
The period of these striking changes would seem a
fit place to notice the various alterations which have
been made in the qualifications of voters. Under the
first Constitution the Governor and Senate were
elected by those possessed of freeholds of ^100 in
value over and above incumbrances. None could
vote for members of Assembly except the freemen of
cities or residents possessing a freehold in the countyAddress.
of £zo in value or renting a tenement of the annual
value of 40 shillings, and who had been rated and
paid a tax. The new Constitution of 1822 lowered
the standard and required only that the elector
should have borne some public burden ; but the
slightest sufficed. In 1826 even this pre-requisite
was abolished. Having reached maturity, was
thenceforth and now is the only qualification, except
residence, demanded of those exercising the sover-
eign power. A residence of some permanency had
always been required; but now, in 1846, when numer-
ous new duties making grave demands upon intel-
ligence were imposed upon the citizen, there being
no other restraint that could be loosened by the
spirit of change, the six months’ residence prescribed
by existing law was reduced to four. Perhaps there
was some compensation for this in the new requisites
of a thirty days’ residence within the election district,
and that the robe of acquired citizenship should be
ten days old. The beneficial performance of the
electoral duty might have been better secured. Re-
quiring a continual registered residence within the
district for one full year next preceding the vote,
would exclude all tramps and other unsettled persons.
This would lessen the mercenary bands employed by
faction. The secret ballot is an evil practice; it
should have been long since abolished. All voting
should be viva voce; and besides announcing his
choice, the voter should be required to write and sub-The Single District Representation.
scribe his ticket with his own hand in the presence of
the election judges, and to deposit it with them as au-
thentic evidence of his act. Under such regulations
public officers might be selected by the intelligent
and with intelligence; the falsehood and fraud which
now so often characterize the reported results of pop-
ular elections would be rendered difficult if not abso-
lutely impossible.
Returning to the new Constitution of 1846, it is
proper to observe that the character of the State
government was materially affected by what was
called the single district system. Theretofore, no
communities formed by social aggregation had ever
been prevented from acting together in the selection
of representatives. The ancient civil division into
counties had been fully maintained. Each of these
had always acted as a unit in choosing Assembly-
men, and, without division, they had voted for Sena-
tors either alone or in conjunction with other coun-
ties. Now the cities and villages were split into
geographical fragments prescribed by a rigorous ne-
cessity which the Constitution itself created. The vary-
ing census and the ratio of representation controlled
in fixing the boundary lines of the single districts.
This change was destructive of neighborly consulta-
tion and comparison of views among the electors. To-
gether with the election of nearly all officers, superior
or subordinate, by direct popular vote, it constituted
the essentially novel element of the plan delineated in
13Address.
1846. Though condemned by a vast non-partisan
majority in this city and in some of the neighboring
counties, that plan was adopted and still reigns su-
preme.
As we have seen, the first organic law remained in
force without essential alterations for seventy years,
that now in force has, in like manner, subsisted for
thirty years, and the two periods complete the politi-
cal century which to-night we look back upon as a
thing of the past. The contrast between these pe-
riods is impressive. During the first, our progress
was in every moral, political, and social aspect satis-
factory. It witnessed two great foreign wars. Our
State, as a border land, sustained the brunt of both
with much individual suffering, but with honor at all
times and eventual safety. Its costly public works
were the canals, which, supplementing our State’s
natural advantages as a highway of commerce, uni-
ted the vast inland seas of our continent with the ex-
terior ocean. The outlay for those works fell short
of the estimates, and scarcely surpassed one year’s
recent expenditure on the mere internal finish and re-
pair of a single county court-house. Let this suffice for
a contrast between these two periods in relative fru-
gality of administration. In none of its branches will
the action of the Government during the first compare
unfavorably with the second. Under Jay’s organic law,
as some have justly termed it, early legislation gave a
death-blow to aristocratic establishments, and com-
14Contrast Between the two Periods of the Century.
pleted the work of republican equality by abolishing
the unnatural law of primogeniture and its hand-
maiden, entail. In despite of some state-craft, rational
principles enabled the original court of last resort to
repudiate the corrupting doctrine that corporate
forms in trade and banking were in principle public
franchises incapable of being enjoyed except through
special privileges doled out to favorites. At the close
of the seventy years which may be denominated our
first constitutional period, no serious debt burdened
our people, and the little that existed was the price
of solid, visible public improvements, necessary to
our growth and highly remunerative. Our condition
at the close of the second or thirty-year period is not
equally flattering to pride or hope. What are its
most impressive features? Public debt and conse-
quent taxation to meet the interest confront us in
every direction. Federal debt, State debt, city debt,
county, town, and village debt abound; and the ten-
dency to create additional debt for Government en-
terprises set on foot by the traders in politics is visi-
ble all around us. One circumstance connected with
this great evil has failed to attract due attention. So
much of our public debt is held abroad, that doubt-
less we pay to Europe for interest on it in every year
at least $100,000,000. Is it singular that under such
a drain upon us, trade languishes ? The habits of our
officials generated during their hey-day, while this
debt was being created, and the extravagance conse-
15Address.
quently induced among' themselves, their followers,
and supporters are overwhelming with burdens all
the pursuits of life:.
The future historian, contrasting the two periods
adverted to, may ask why were so many changes
made in the fundamental law ? Reason dictates that
it should be fixed, certain, and essentially unalter-
able. No other cause can be assigned than party
conflicts for the control and disposition of official
patronage. And in connection with this view of
cause and effect it should not seem strange that the
Constitution of 1846, which gave life, vigor, and
permanency to the trade of polities, with all its at-
tendant malpractice, was exceedingly acceptable to
the managers of both the then existing political
parties. These parties have controlled its machinery
and alternately ruled over us during the thirty years
since its adoption without any clearly discernible
difference in their methods. And at this day, not
only in the State of New York, but throughout the
whole country, they may fairly be pronounced
identical in their avowed principles and policy.
Each strives to outvie its antagonist in professions
of attachment to precisely the same ideas and prin-
ciples. They do not differ even in name, for their
titular designations are perfect synonyms. Now, as
we are commencing our second century, it may be
the part of wisdom to pause in our course, and take
an observation not only of the two periods that have
16■ Parlies.
been to some extent compared, but also to glance a.t
the possibilities of our future. If our progress has
been in any respect politically or morally downward,
it may not be amiss to view carefully the circum-
stances of the present, and inquire whether any
methods which are in operation among us tend to
evil, and are susceptible of repression or improve-
ment. It will not be needful to compare the alternate
rulers of our country—that is to say, the political
parties. Judging either by its own professions, we
will be forced to think well of it, because it will be
found in the most commendable attitude mortals can
occupy. Each sits on the stool of repentance, ad-
mitting its errors in the past and promising amend-
ment. Its cry is reform. Let us assume, then, as a
common concession by all politicians, that reform is
needful, and that its triumph can alone secure our
country’s return to prosperity. Starting with this
assumption, let us inquire what are the features of
our civil institutions which render reform needfuj.
We have seen that the Fathers adopted for their
guide as to principles, European sages the most en-
lightened in political philosophy, and chose for their
model in merely structural respects the best system
of government on a large scale the world had ever
known ; yet mischiefs of grave import have certainly
been developed in the working of their plans. It
becomes us to ascertain the source of those mischiefs,
and, if possible, to obviate the causes. Research will
17Address.
lead to the conclusion that the theories espoused
were correct, but that they were not practically ap-
plied to our new system. Instead of adopting im-
plicitly English forms, we should extract from them
so much of their spirit as is appropriate to our situa-
tion. Raphael and Michael Angelo perused the re-
mains of primeval art only for the guidance of their
own inspiration into practical channels. They were
not mere copyists. So the framers of American in-
stitutions should drink charily at the fountains of
European experience. They should accept no seem-
ing analogies without first adapting them by heedful
variations to our more beneficent and lofty career.
Let us first give attention to the theories espoused
by the Fathers. Political philosophy early pro-
pounded a canon, the soundness of which no Ameri-
can will now deny. It is that the concentration of
all governmental power in the hands of one man or
of any body of men is despotism. In his inaugural
address before the Historical Society, Mr. Gallatin
aptly observed that the legislative body which pre-
scribes the general rule should not be permitted
either to apply it or to make exceptions from it for
special cases. He adds: “ It is hardly possible that
laws founded in justice should be oppressive, unequal,
or special. Every deviation from that principle, in
whatever shape or under whatever pretense, succes-
sively leads to others, so that it might ultimately
happen that no scruple would be felt in passing in-
18Executive, Legislative, and Judicial Departments.
iquitous laws, that public and private confidence
might be destroyed, respect for law be converted
into contempt, and the basis of our institutions be
shaken in its foundation by the general demoraliza-
tion of the whole community.”
In prescribing the method by which effect should
be given to this principle, authorities with one accord
advise us that in every well-adjusted government
there must be three co-ordinate and independent de-
partments—the executive, legislative, and judicial.
This none dispute ; but, strange to say, no such divi-
sion of power has ever been practically established
anywhere. Three organisms bearing these names
have indeed been created in all our American Consti-
tutions, State and Federal; but in none has there
been in essentials any such actual distribution of
power as the principle demands. Universally the
Legislature or law-making body has in practice ab-
sorbed all authority. The duty of the so-called
Chief Executive is to perform its will; the judiciary
can exercise no authority save in like conformity to
its temporary and fluctuating behests, wise or unwise.
Thus it is apparent that, while the doctrine stated is
universally acknowledged to be sound, it has always
been ignored in practice. Ignored is precisely the
proper term to be applied; for those who, in framing
constitutions, or acting under them, have plainly and
constantly violated the rule, seem never to have had
any design to subvert it, or to have possessed even a
19Address.
consciousness of the fact that they were so trespass-
ing. Under a real distribution of power, the rules
by which private rights are protected and public in-
terests maintained, would be general in their effect,
and not made for isolated cases or things, or to ad-
vance or repress the interests of particular persons.
No other rules than such as are thus general in their
bearing are properly denominated laws. Political
science and the common lexicon alike declare that
an authority which is rightly termed legislative can
make no other enactments than such as are thus
general. Conferring a personal or corporate privi-
lege, directing a particular act, a specified work, the
payment of a sum of money, or the liquidation of a
particular man’s demand upon the public treasury, is
an executive function, and in no respect a law. A
functionary or body which, in a right use of lan-
guage, is intrusted with legislative power only, can do
none of these things. This definition of legislative
or law-making power suffices also to explain the na-
ture of the executive and judicial functions. The
former is properly created to perform, in compliance
with the standing rules established by the Legislature,
all governmental acts which the public good may re-
quire. Law is always general in its behests ; the ap-
plication alone is special. The executive department
should make the application in all cases. That de-
partment always acts at its peril. It is subject to re-
sponsibility in the judicial forum for the legality of all
20Distinction of Functions.
its doings. In their not misconceived admiration of
English methods the Fathers omitted to enforce this
distinction. They permitted all our legislative bodies
to pass special acts, and thus to usurp executive func-
tions. Favoritism and injustice by the Government
were necessary consequences. Barter and sale of
the legislators’ votes might have been predicted as
inevitable accompaniments; and that practice has
prevailed until at last, in recent times, the waters of
corruption rolled over us as a deluge. Peculation rode
riotously through the departments ; it could be held
to responsibility in none.
'The very nature of legislation proves the necessity
of prohibiting special acts of an executive nature un-
der the form and guise of laws. It is manifest that
all official power should be exercised under effective
responsibility. Every actor in any specific govern-
mental transaction should be liable to answer for hi?
conduct before some authority in the State. When
the Executive performs an official act its validity may
be tested before the judiciary. If the members of
that department fail in their duty, the power of im-
peachment affords a remedy. But when our legisla-
tors rifle the public treasury, the very exercise of leg-
islative power by which the crime is effected enshrines
their moral guilt in the panoply of lawfulness.
At its first presentment this might seem a novel
conception, for Britain, our great exemplar in civil in-
stitutions, is governed in all the details of administra-Address.
tion by a Parliament. The much-talked-of distribution
of powers in that country is merely nominal. Under
the misnomer, of legislation, its Parliament exercises
all the authority and functions of government. The
pretended division there, precisely as with ourselves,
is formal only. It is altogether fanciful and unreal;
Parliament is supreme in all things. Yet the Fathers
can not justly be reproached for adopting this model.
In the great task undertaken by them the whole basis
of their structure was essentially new and unpre-
cedented. Everything fundamentally vicious in pre-
existing institutions was repudiated. It is only in the
arrangement of subordinate details that any error can
be detected, and even here the wisdom of their course
is not questionable. To make everything new in con-
ception or conformable to untried theories was not
likely to give general satisfaction; they therefore
adopted the best known example and set on foot a
parliamentary government. Our century of experi-
ence has been to us a school of instruction. Through
much of good and no slight measure of evil we have
been led to the discernment of many things not fully
known or appreciated in the Revolutionary era.
Therefore, not merely excusing the Fathers, but justi-
fying and applauding them, let us try whether we can
now see their well-chosen model in a clearer light
than was afforded to them.
In the climax of her greatness, Athens subjected to
the empire of that small aristocratic class who, politi-
22The English System.
cally speaking, constituted her people, a great multi-
tude at home and many foreign colonies and depend-
ent people; in like manner : Rome ruled over the
nations. Britain is, and long has been, in a condition
precisely like unto that of those ancient States. None
will deny her claims to respect as the originator of
countless practical benefits to mankind, as in theory
the founder of civil liberty and as a fostering parent
of useful art, of science, and of literature; but still
little attention is needed to a discernment of the fact
that her government belongs to the ancient school.
Her exquisitely adjusted machinery of primogeniture
and entail, coupled with her hereditary peerage, has
enabled that comparatively small number constituting
her upper and middle classes to rule over 20,000,000
of her own laboring population and more than
200,000,000 of colonial subjects. In a word, nearly
if not quite one-fifth of the human race is subject to
her parliamentary government. The vast debt con-
tracted in establishing her dominion of the seas and
her foreign colonial power is manifestly a great source
of enjoyment to her favored classes. It is almost
entirely held by them, and its creation has enabled
her to control the trade and commerce of vast ex-
ternal possessions; consequently, while it enriches
individuals it is not felt as a public burden. The
British empire, in a political sense, consists exclusively
of these favored classes; they enjoy the wealth of
nations through the agency of their Parliament. That
23Address.
body is an engine in their own hands constantly em-
ployed, like the active partners of a great mercantile
firm, in promoting the common interest. Among its
creations is the enormous military, naval, and civil
service which gives to these very ruling classes em-
ployments innumerable by land and sea throughout a
captive world. The incompatibility of such extensive
governmental service with our political institutions
may deserve the notice of those who have devoted
themselves to the establishment in this country of a
civil service reform. Schools for breeding office-
holders is an English idea and had its origin in the
peculiarity just mentioned. With deference it may
be suggested that we have already office-seekers
enough. Perhaps a deliberate attempt to increase
the number should not be pushed to extremes. The
stir of preparation for defense against anticipated ar-
raignment at the bar of public opinion on account of its
foreign domination is discernible in the movements
of English society. Literature in all its forms, from
the stately two-volume octavo down to the transient
suggestions of the daily press, is employed, not merely
in justification, but in praise of the colonial policy. Its
benevolence is highly commended on the asserted
ground that no income is derived from the colonies
whilst the parent State defrays the chief expense of
their government. Their happy condition in having
their country and its internal and external interests
defended without cost to themselves by- British fleets
24Contrast Between England and the United States.
and armies, is favorably contrasted with that of such
orphaned countries as the United States. We are
cast destitute upon our own resources, and are com-
pelled to expend millions on similar instruments for
self-protection. No parent takes care of us. These
circumstances are not here adduced as proving that
our Declaration of Independence was a fib and a
folly, but only for the incidental purpose of showing
how different in principle and practice is the parlia-
mentary government of Great Britain from any office
of the State as contemplated by the founders of our
Republic.
It was not designed that we should ever have any
subjects or tributaries. The Fathers surveyed a vast
territory with every desirable variety of climate and
productiveness. As far as political institutions could
accomplish the object, they destined it to be the
abode of a people maintaining peaceful relations to-
ward all foreign States, and enjoying perfect equality
among themselves. Deeply averse to the injustice
and violence which constituted the staple of all pre-
vious history, they determined to exempt their coun-
try from similar experiences. They declared this in
many forms, but in none more aptly expressive than
that employed by New York’s first Constitution. It
announced that we were “ required by the benevo-
lent principles of rational liberty to expel civil ty-
ranny, and to guard against that spiritual oppression
and intolerance wherewith the bigotry and ambition
25Address.
of weak and wicked priests and princes had scourged
mankind.” Statesmanship was known to the Fathers
mainly as exhibited in the annals of time. It there
appears as an art whereby, in all climes and ages,
the few have contrived to oppress the many; and it
certainly was not intended to vest in the govern-
ments to be instituted among us any power that in its
normal operations could be wrested to such purposes.
It was expressly designed that the newly-created
governments should never be rulers over any outside
barbarians. Consequently, if extortion or oppression
was to be allowed, the Fathers could have seen that
it must be practiced within our own country, and by
some portion of its citizens upon their own free and
equal brethren. But the apparent benignity of Brit-
ish parliamentary rule prevented a perception of the
fact, obvious as it was to abstract thought, that the
law-making department, if intrusted with authority to
operate directly on specified persons and transactions
by special act, would—as a necessary and inevitable
consequence of human weakness—become corrupt
and oppressive. The frugality and simplicity of pre-
vailing habits, and the absence of great individual
wealth or inordinate individual ambition, diverted
attention from the manifest difference in this respect
between the British system and the American con-
ception of government. The necessity of expressly
defining and limiting the power of legislation was
not perceived; and thus it has happened that that
26Special Legislation.
task is devolved upon us at this day when we are
entering upon the era of contemplated reform. It
should not be impracticable when graceful confes-
sions of past misconduct are constantly falling from
the lips of both political parties and the promise of
amendment is the battle-cry of each. It is, therefore,
our duty carefully to investigate past errors, and to
demand and enforce such constitutional changes as
may prevent their recurrence. A proper preliminary
step is to adjust the principles which should guide us.
Our greatest error in the past was this investiture
of the legislative body with discretionary power to
govern by special act. As an instrument in the
hands of organized faction it operates for personal
ends; it wrings from the multitude the fruits of their
industry and the just acquisitions of lawful indi-
vidual effort by themselves or their sires. What has
been said concerning the impropriety of permitting
legislative bodies to exercise executive powers, or, in
other words, to pass special acts, is by no means a
novel conception. Quite the contrary; a struggle on
the part of the people to enforce it against the poli-
ticians who dominate over them has been long pro-
gressing. At an early period the business of banking
was virtually converted into a franchise. It was con-
fined to the favorites of the Legislature. In 1822, a
constitutional provision was enacted to restrain in
like manner the formation of corporate bodies for the
transaction of any business whatever. After a vio-
27Address.
lent and protracted struggle the popular will tri-
umphed over both of these devices. The general
Banking Law originating in 1838 was the result.
This curb upon special legislation was imposed by-
public sentiment at a period so near the framing of a
new Constitution in 1846, that its recognition in that
instrument was literally compelled. In express terms
it forbade the Legislature to grant any special charter
for banking purposes, and thus that business was
thrown open to free competition. The enactment of
special charters for private or trading corporations of
all kinds was subjected to a similar prohibition. Here,
however, great weakness and vacillation marked
the conduct of those who framed that Constitution.
Special corporate acts were tolerated in cases where
the Legislature might consider that the object could
not be attained by general laws. This hesitation
in applying a benign reformatory principle left legis-
lation subject to many of the pre-existing abuses;
One striking instance will readily occur, that is to
say, the celebrated and justly censured Classification
Act of 1869. The principle of forbidding special acts
was again approved by the people in 1874. A con-
stitutional prohibition applicable to a large number
of enumerated cases was adopted in that year. It
was also enjoined upon the Legislature to enact gen-
eral laws providing for these and all other cases in
which such a reform might be found practicable.
The sovereign will thus expressed in the amend-
28Legislative Power.
ment of 1874 attests the general desire to confine the
Legislature to its proper province, to wit: making
laws. But the language employed in that provision
is imperfect, and the sphere of its operation is un-
duly limited. Though forced by startling and intol-
erable abuses to apply the great principle now advo-
cated, the framers of the amendment may not have
intended to do so in an effectual manner. Indeed, it
is possible that they did not comprehend the princi-
ple itself. But the electoral body—the sovereign
people—saw and approved it. Small and imperfect
as was the installment of needful reform placed within
their reach in each of these constitutional amend-
ments, they acted wisely in adopting it. Their great
need, however, can not be supplied by a set of speci-
fied restraints in named cases. Still less is the re-
lief effectual, when, as in the last-mentioned instance,
it is confusedly expressed. The legislative power
should be distinctly defined in the fundamental law
so as to admit only the enactment of general rules
for our officers and people. Only occasional and
short legislative sessions would then be required.
This single step would go far toward abolishing the
pernicious trade of politics—that fruitful parent of all
the evils that afflict our country.
The masses are honestly devoted to the common
weal; but in no just sense can they be regarded as
component elements of either political party. The
will of the commanding general it is that guides the
29Address.
military force. He hurls it against the enemy; in
fact, he is himself the force; the soldiers are mere
machines. So it is also in the public conflicts of civil
life. A few leaders in each political camp constitute
the party; no others influence its movements or are
in any just sense members of it. They are merely
its instruments. And when it is considered that, as
before stated, the names borne by the two parties at
this day import nothing distinctive, and that the prin-
ciples professed by the leaders of each are absolutely
identical, how can reason regard the so-called parties
as other than factions engaged in a selfish rivalry for
official power and patronage ? How, then, are our
property and our liberties to be protected ? Most cer-
tainly not by these office-seeking factionists; nor by
their respective bands of hirelings who perform the
mechanical drudgery of manipulating ward or county
meetings and nominating conventions. It can be ef-
fected only through the intelligent action of those in
the electoral body who do not pursue politics as a
business, or seek either maintenance or profit or titu-
lar advancement through the special action of Gov-
ernment in their favor. But how, it may be asked,
are these to be rescued from the grasp of the politi-
cians, who now hold them as thralls ? In answering
this inquiry, we are naturally led to consider what
ought to be our plan of government or our political
system in the future.
Great social evils are felt, and it is vainly imagined
30Methods of Amending Constitutions.
that relief from them can be had through changes in
party rule and through the supervening action of
Government. This is a mistake. Governments may
create evil; they can not suppress it. Society, by
the individual action of its private members in the
ordinary pursuits of life, supplies the commonwealth
with the vital current which creates and sustains na-
tional prosperity. To be let alone by politicians and
intermeddling officials is all that society needs. To
secure that immunity through the constitutional law
of the future is the task devolved upon us. To ef-
fect this, we need no new-written Constitutions of ex-
panded proportions, and filled with minute and de-
tailed provisions concerning the terms, compensation,
and powers of officials. These are matters of detail,
which, in general, maybe left to occasional adjust-
ment.
A written Constitution, the distinctive feature in
American methods, i§ not distinguishable in principle
from any other law. If there ever was a distinction,
it is being rapidly obliterated by continual changes
and extensive amplification. That first Constitution
under which we lived for so many years was framed
and put in operation by a convention of delegates
selected and assembled with less formality than
usually attends the choice of an annual Legislature.
The early Constitutions of our sister States were in
general adopted in the same manner. It seems not
to have been thought at the beginning that a vote ofAddress.
the people was necessary to give validity to an or-
ganic plan of government. Other Constitutions in
this and the sister States have provided a means for
their own amendment or for the substitution of new
Constitutions in their stead. But it is thoroughly
established that the methods, thus prescribed are not
imperatively controlling. A learned writer has sug-
gested that unless those methods be followed, a pre-
paratory convention should be resorted to ; but such
a preliminary step is not requisite. It would seem
to be the unwritten paramount law, established by
necessity, reason, and public sentiment, that a State
Constitution newly framed, either wholly or in part,
may be adopted without any other' forms by a ma-
jority of the people at an election held in conformity
with a prior law authorizing and regulating the vote.
Our highest judicial tribunal is understood to have
decided in the case of Dorr’s Rhode Island Insurrec-
tion, that without some such act of formal consent
by the existing government, a new organic law can
not be adopted or put in force. If this be a correct
view of our system, a new State Constitution can
always be adopted within a very short time after a
clear majority of the people have so determined—say
six or eight weeks.
At any time since the magnetic telegraph came
into use, both Houses of Congress, acting by a two-
thirds vote, might change the Federal Constitution in
a single day, provided three-fourths of the States’
32State Constitution of the Future.
Legislatures should concur. It may thus be seen,
that little if anything toward insuring perpetuity or
controlling the will of a popular majority was effected
by the device of written Constitutions. The endur-
ance, vigor, and virtue of those fundamental prin-
ciples, which, in fact, are our Constitution, depend
wholly upon the intelligence and patriotism of our
people. And these are amply sufficient for all pur-
poses unless we allow scheming managers to control,
for selfish objects, the machinery of elections. Pop-
ular election is the organ by which the supreme power
speaks. All will be well if it can be defended from
unlawful force and exempted from the operations of
fraud. It is, in the very nature of things, impossible
that a majority of the people should ever become so
degraded as willingly to destroy their own dearest
interests.
Our State Constitution of the future should declare
the principles of civil and religious liberty as hereto-
fore ; no new or more specific statement of them is
needed. But it should perfectly separate the great
departments of government by strictly defining and
limiting the powers of the legislative body. This
may be difficult, but it is not impossible. It should
forbid any public body or functionary to create, by
taking up loans of money, any new public debt at
any time or under any circumstances. It should re-
organize the legislative department by abolishing
the pernicious system of single districts and restoring
33Address.
to the communities socially established, such as cities
and villages, the right of representation. The futile
duplicity of chambers should be dispensed with as a
needless complexity. Once the pernicious privilege
of passing private or special acts was taken away,
all laws would become similar to what constitutional
amendments now are, and it is well known that the
convention, which is the favorite agent for framing
these, has, in every instance of its use, been com-
posed of a single chamber.
Withholding executive power from the Legislature
should not be allowed to produce a mischievous ex-
cess of authority in the Chief Magistrate. On the
contrary, there should be a corresponding reform in
that quarter. That office should not be elective. It
should be filled by lot every month from the rep-
resentative body. This would impress upon our peo-
ple the necessity of electing none as legislators but
such as were competent to the higher office. The
brevity of the term would prevent serious mischiefs
from incompetency where it happened to supervene,
and no man would devote a life of effort to keeping
on foot interminable election broils for the purpose
of securing himself , a long term of semi-regal power
over his countrymen. Reforms approximately simi-
lar should be instituted in the general government
by altering the Federal Constitution.
These changes are few and simple. They would
abolish faction and the trade of politics.
34Dispensing with Permanent Executive.
No mischief could result from them. God-like am-
bition, and even that emulation which incites to ac-
cumulating wealth, would find ample employment in
the pursuits of private life. There is no benefit to
society in the frivolous and factitious privileges that
result to individuals from official dignity or official
titles, and from the mischievous power of exercising
governmental authority over others for self-aggran-
dizement.
Very controlling arguments might be offered to
prove that in thus substantially extinguishing the
great office of President, no sound public policy
would be violated, nor any blight thrown upon the
seemingly praiseworthy ambition of the demigods
who from time to time arise among us, and, captiva-
ted by the far-off prize, spend their lives in prodig-
ious displays of ability for the purpose of establish-
ing their claim to it. It is esteemed the most admi-
rable feature in the British system of government,
that the chief magistracy is beyond the reach of any
subject. Indeed, the fact that it eliminates this high
honor from the attainabilities of human effort or
human desire, is the only practical service the crown
can be said to perform in the working of the British
Constitution as now established. That it costs a
large sum of money is its only other effect on En-
glish affairs. It is common knowledge that the sov-
ereign interferes not at all in the public administra-
tion. That formal functionary no longer exercises
35Address.
or would be permitted to exercise the veto power.
But for a certain supposed necessity of deluding the
imagination by parade, a piece of brass known as the
official seal of state could as well perform all the duties
of the British chief magistracy. The favorite of Par-
liament for the time being now controls the crown as
perfectly as in the case supposed he could control
the regal stamp. Plaudits in approval of this English
arrangement resound through all political literature.
Their justice will be assented to by every sagacious ob-
server of our demoralizing conflicts for the Presiden-
tial succession. The evils produced are an unavoid-
able consequence of placing such a prize in the arena
of competition. Strifes for similar possessions cast a
crimson shade over the pages of history.. Their de-
structive consequences are well illustrated by the
bard of Avon. Macbeth is portrayed as originally
valiant, loyal, and honorable. So pure and upright
was his nature, that the fiendish arts of supernatural
agents and the influence of womans love were re-
quired to combine in his temptation; nor did a mo-
ment’s peace attend his sensitive conscience after
yielding to it. But the proffered prize was too great
for human virtue. Once shown the path to such an
eminence as the chieftainship of his country, no crime
was so appalling as to deter from the effort to attain it.
Treachery toward his friend, treason against his sov-
ereign, and red-handed murder of guests were perpe-
trated in the pursuit, because they were necessary.
36Daniel Webster.
If we may judge the future by much of the past,
no man inspired by a laudable ambition should re-
gret the removal of this glittering bauble from his
sight. Save in the rarely recurring cases in which
military renown has captivated the public mind, those
to whom natural gifts and laborious effort attracted
just admiration have not been permitted to attain this
exalted office. Witness the fortune of our great pop-
ular idols, Clay and Webster. The manipulators of
the convention or of the ballot-box invariably set
them aside and awarded the seat to persons compara-
tively little distinguished.
Mr. Webster’s discourse before this Society on the
dignity of historical compositions must be in the
memory of many now present. It was his last great
effort among us, and was addressed to the elite of
our city almost at the very close of his illustrious
life. He had already passed three-score and ten.
Yet how magnificent, how like an immortal was that
presence ! None who witnessed the display can ever
forget it:
“ With grave
Aspect he rose, and in his rising seem’d
A pillar of state ; deep on his front engraven
Deliberation sat, and public care
And princely counsel in his face . . A
Majestic. . . . Sage he stood
With Atlantean shoulders fit to bear
The weight of mightiest monarchies; his look
Drew audience and attention still as night
Or summer’s noontide air.’’
37Address.
Though an efficient bulwark of peace and union,
the foremost champion of his party, and admired
throughout the civilized world,: Webster never could
obtain even a nomination to the chair of state. His
betrayers found their precedent in an ancient legend.
It was in the beginning of time that the feathered
tribe assembled to choose a' ruler ; and lie was to re-
ceive the diadem who could attain the greatest
height. The majestic eagle when his wing had tired
beheld far beneath him, exhausted and descending to
earth, the host of his vanquished rivals. He was
about to pour forth his triumphant clarion, but lo ! the
little wren, who, until that moment, had sat quietly
and unfelt upon his bosom, now sprang aloft, and
with a tiny cry announced himself the victor. Thus
was elected the king of all birds. By some crafty
device of this sort the politicians will ever set' aside
the magnates. Those who, from their shining talents
and their public services, might justly claim a prefer-
ence, and who, if the people controlled, would receive
it, will be apt to fail in future contests. If this regal
eminence, the quadrennial presidency with its vast
power and patronage, must remain elective, the
paltry little wrens of faction, not the lordly eagles of
the land, will almost invariably win and wear the
purple.
Let our country be governed by general laws
varied only as occasion may require, and then only
by general enactments. As a happy result the thirty-
38Future of the Country.
nine mass-meetings who now spend each winter in
contriving the methods of favoritism involved in pa-
ternal government-may be employed more beneficially
for themselves and their country in the pursuits of
industry.' In Such a career the sons of fame can find
fairer and more desirable returns for the efforts of
their labor and their skill than can possibly be
reaped in the theaters of petty electioneering in-
trigue.
Relieved from the embarrassing influence of gov-
ernmental interference, American genius can win its
way to a high place in the ranks of competitive
effort. It has contended successfully for the palm in
high art and for equality in literature and learned re-
search. In such marvelous achievements as utiliz-
ing steam-power and magnetism it took the lead;
nor will -history pass unnoticed the fact that its dis-
coveries in the less attractive forms of manufactures,
machinery, and mechanic art, have conferred lasting
benefits upon mankind. The introduction of india-
rubber in its limitless variety of uses, the cotton-gin,
the reaper, the mower, and the sewing-machine, are
testimonies of its power. Long ago the American
lock-maker took precedence of the ablest in the Old
World. We have at last excelled the Swiss, imme-
morial horologers, and our textile fabrics are rivalling
those of the mother country in her own markets.
It is said, and doubtless with truth, that great cities
have hitherto been destroyers of the human race. A
39Address.
single American contrivance promises to correct
this mischief. The cheap and rapid transportation
of passengers on the elevated rail, when its capacity
shall have been fully developed, will give healthful
and pleasant homes in rural territory to the toiling
millions of our commercial and manufacturing centers.
It will snatch their wives and children from tenement-
house horrors, and by promoting domesticity, greatly
diminish the habits of intemperance and vice so liable
to be forced upon the humbler classes, or nurtured in
them by the present concomitants of their city life.
Not in the moral pest-houses of politics, but in
fields like these, is true renown to be acquired. Per-
manent endowments for the promotion of literature
have insured lasting honor to the names of Astor,
Lenox, and Girard. They will live forever in grate-
ful memory along with the enduring charities of
Roosevelt and Muhlenberg.
40