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CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 The 
 Charles and I4ary 
 Collection 
 From An Anuonymous Donor 
 
Cornell University Library 
 JK3481.C52 
 V.2 
 
 Legal and judicial history of New York.. 
 
 3 1924 020 336 677 
 

 V, 2- 
 
"^^ 
 
 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020336677 
 
De Witt Clinton 
 
Copyright 
 
 National Americana Socibtt 
 
 1911 
 
INTRODUCTION 
 
 The history of constitutional development in New York 
 should interest the lawyer, the statesman, the student and the 
 man of affairs. Much has been admirably written to show the 
 extent of the debt which the State owes to its Netherland be- 
 ginnings, and the influence of a long English colonial experi- 
 ence in shaping the main outlines of the first State government 
 and in moulding institutions which still persist and will form 
 enduring features of State polity. After the elaborate, pains- 
 taking and admirable work of Mr. Charles Z. Lincoln upon the 
 constitutional history of New York, and numerous essays and 
 studies concerning the relations of the State government to the 
 colonial governments by Mr. Robert Ludlow Fowler and others, 
 it might be thought that no need exists for a volume seemingly 
 covering part of the same ground. No attempt is made in these 
 pages to rival the contributions of these authors to the constitu- 
 tional history of the State, or to write its political history, — 
 which Mr. De Alva Stanwood Alexander has recently so well 
 done. The aim, far less ambitious, is, by presenting in a single 
 volume a series of pictures of constitutional evolution, to arouse 
 an interest which longer and more technical works, hardly popu- 
 lar in character, have perhaps failed to create. 
 
 The annals of colonial times have been explored by his- 
 torians with more industry and fullness than have later records. 
 The effort of the present writer has been briefly to sketch the 
 colonial epoch as a background for the story since the Revolu- 
 tion, and to describe in short chapters the events which have led 
 to the successive constitutions of the State and the constitutions 
 
 i 
 
INTRODUCTION 
 
 themselves. This involves study of the w^ork of the convention 
 of 1777, which framed the State's first written constitution, and 
 of the convention of 1801, whose chief task was judicial, that 
 is, the interpretation of the meaning- of Article XXIII of the first 
 constitution, concerning the power of appointment to office. The 
 remarkable part played by both the council of appointment and 
 the council of revision has to be understood in order that the 
 demand for the call of the convention of 182 1 may be compre- 
 hended. 
 
 The council of appointment was the strongest, the longest- 
 lived and most powerful political combination ever formed in 
 the State. The paternity of the Albany regency is easily ascrib- 
 able to it. The council of revision without even writing a veto, — ■ 
 by a mere intimation from some of its members that it was 
 averse, could block the passage of any bill through one or both 
 of the houses, and as judges always formed a majority of 
 the council, they were given a power over legislation that often 
 prevented the enactment of measures of which they did not 
 approve. With the exception of New York City the older parts 
 of the State were aristocratic communities, largely dominated 
 by a few landed families; the newer sections were settled by 
 New Englanders, to whose coming into the State it was in great 
 measure due that the convention of 1821 was called. The story 
 therefore requires a consideration of the two councils and of the 
 movement of population from New England into New York ■ of 
 the work of the constitutional convention of 1821 and the new 
 or second constitution which was the outcome of its proceedings. 
 
 Canals have had potent influence in the history of the State 
 The nature of this influence and the connection of the canals 
 with constitutional changes must be perceived if the history is 
 to be understood. Since the State has recently embarked upon a 
 
INTRODUCTION 
 
 policy of canal improvement involving colossal expenditure, the 
 earlier canal history may profitably be studied. In 1842 it was re- 
 solved to curtail the power of the legislature to incur debt. This 
 decision and the reaction against the tendency to involve the gov- 
 ernment in private business led to the convention of 1846. The 
 work of that convention and the constitution reported by it, the 
 third constitution of the State, have been discussed in this book. 
 Whatever may be the common impression, the most important 
 part of the labor of that convention dealt with the subject of pub- 
 lic debts. 
 
 The next succeeding constitutional convention was that of 
 1867, all of whose work except the judiciary article was rejected 
 at the polls. Then followed the constitutional commission of 
 1872, which took up a large part of the unaccepted effort of the 
 convention of 1867, revised it, and presented it to the State legis- 
 latures in such form that much of it was eventually incorporated 
 in the constitution. To the able and thoughtful men in the con- 
 vention of 1867 it must have seemed lamentable that their labors 
 were not appreciated. The valuable ideas which the con- 
 vention formulated first passed through the crucible of public 
 discussion and afterwards were debated in the commission of 
 1872. The good work of the convention was not lost; on the 
 contrary it was improved, and fortunately for the people, some 
 notions much in vogue at the time were never submitted by the 
 legislature for popular vote, and were happily kept out of the 
 organic law. The lesson which that period should teach is that 
 proposed constitutional changes need thorough consideration be- 
 fore their submission to the people. 
 
 In 1890 a constitutional commission was summoned into 
 being to revise the judiciary article. The article framed by it 
 was not approved by the legislature, and was therefore never sub- 
 
 iii 
 
INTRODUCTION 
 
 mitted to the people. A new convention accordingly became neces- 
 sary, particularly as the constitution of 1846 had provided for a 
 possible convention every twenty years. The revision of the judi- 
 ciary article by the commission of 1890 was utilized by the con- 
 vention of 1894 and is the basis of the article reported by that 
 convention. 
 
 The work of the convention assembled in 1894 has also been 
 considered. The two methods of obtaining amendments to the 
 State organic law have been discussed, as have also their origin 
 and the extent of their use. The city problem is so important 
 and so related to constitutional matters that two chapters have 
 been given to city government; and the subject of taxation has 
 been deemed of sufficient moment to be made the theme of one 
 chapter. To round out the story, a chapter of deductions and 
 forecasts seemed, desirable. 
 
 There is a great wealth of material bearing upon the consti- 
 tutional history of the State, material so overwhelming in volume 
 that it is almost beyond mastery. Jabez D. Hammond's "Polit- 
 ical History of New York" is a veritable treasure house upon 
 which historians have repeatedly drawn. But Hammond's his- 
 tory, including his "Life of Silas Wright," brings the study down 
 only to 1846, and no treatise of equal merit, in fact no single work, 
 covers the interval between that time and the present. It would 
 be useless to compile a bibliography of the numerous authorities 
 which have been examined in the writing of this book. Re- 
 course has repeatedly been had to the statutes, the messages of 
 the governors, which, in recent years, have been put into admir- 
 able form by Mr. Lincoln, and the records of the debates of the 
 several conventions, commencing with those of the convention 
 of 1821. The more the volumes of convention debates are 
 examined, the more they will be found to yield, especially the 
 
 iv 
 
INTRODUCTION 
 
 volume dealing with the convention of 1821. The actual speak- 
 ers in the convention were relatively few in number, but the 
 extent to which in the exposition of their ideas they drew upon 
 the experience of the nation and of other states is surprising. 
 
 Perhaps indications of a secret fondness for the work of 
 that convention may occasionally be detected in this book; it is 
 the author's conviction that there never assembled in this State 
 a convention containing talent greater or better fitted to deal with 
 its particular task. By way of contrast the work of the conven- 
 tion of 1846, apart from its treatment of financial questions, is 
 correspondingly disappointing. Too many of its members were 
 inclined to loquacity. It spent a large part of twenty-three days 
 in discussing the question whether to be eligible for the gover- 
 norship a person should have been a resident in the State for a 
 specific length of time. 
 
 That constitutional changes have not always been wisely 
 made would seem clear from the fact that things which have 
 been done, have, again and again, been undone. Continuity of 
 policy seems at times to be lacking, yet no valid reason can be 
 found why such continuity should not have existed. Our his- 
 tory conveys the impression that constitution framers have often 
 been feeling their way to results without clear conviction how 
 these were to be attained. Study of the constitutional history 
 of the State awakens question whether we have not reached a 
 stage where the fundamental law is too readily changed, the dis- 
 advantage of which is that popular whim may find its way into 
 the constitution. Although the constitution should always be 
 quickly responsive to sound popular opinion it should neverthe- 
 less not yield to temporary caprice. 
 
 Chief Justice Spencer was not far amiss when in 1821 he 
 declared that prohibitions upon lotteries did not belong in the 
 
INTRODUCTION 
 
 organic law. Laws aimed at frailties in human nature have no 
 place in constitutions ; prohibitions upon gambling and horse rac- 
 ing, do not belong there, and Mr. Choate was correct in 
 opposing the introduction into the constitution of 1894 of a dec- 
 laration that the right of action to recover damages for injuries 
 resulting in death should never be abrogated. The modern ten- 
 dency is to over-load the constitution with both matter and 
 phrase. 
 
 Two important contrasts are to be observed between the 
 federal constitution and the constitution of this State, and per- 
 haps of many other States. The first is that the federal organic 
 law has become almost unchangeable by the methods of amend- 
 ment for which it makes provision. The mere increase in the 
 number of States makes for stability. All amendments down to 
 and including the twelfth amendment were made before the 
 close of the year 1804. The only other amendments were the re- 
 sult of the Civil War, yet by interpretation and judicial exposition 
 the federal constitution has undergone silent change and, as the 
 years pass, is found to be adequate to new social and national re- 
 quirements. That constitution is a model of brevity and of style. 
 The constitution of this State, on the contrary, besides being al- 
 most too easily capable of amendment, has become extremely 
 prolix. The framework of government should be brief ; it should 
 be the crystallization of large and well accepted principles. The 
 constitution of the State has instead become a most unwieldy 
 document. 
 
 To the study attempted in this work there is a practical side, 
 because within a few years the State will again face the question 
 whether a new convention should assemble. Unfortunately, con- 
 stitutional problems, however fascinating in themselves, make no 
 strong public appeal, and the decision to call a convention, if 
 
 vi 
 
INTRODUCTION 
 
 such a decision should be reached in 1916, would probably result 
 rather from the fact that the question is presented to the people 
 for vote than from any widesp^ad conviction for itii necessity. 
 The statistics, extending over eighty years, of votes upon consti- 
 tutional subjects show how little such matters interest the average 
 voter. The necessity for arousing attention and securing 
 something like a genuine majority expression of opinion when a 
 constitutional question is submitted, has impressed political think- 
 ers and has been the subject of comment by several governors of 
 the State. 
 
 It would be easy to trace alternations of popular feeling re- 
 garding the three separate branches of government in the 
 various successive constitutions of the State. In the re-ac- 
 tion from English tyranny, which led to the Declaration of 
 Independence, every State began its career with a fear, if not 
 a sort of hatred, of executive power. Today, notwithstanding 
 the march of democracy, the reaction is in favor of enlarged 
 executive authority. Government by executive commission is 
 rampant, and a corresponding distrust of legislatures is mani- 
 fested in numerous checks and limitations. Those who are con- 
 vinced that executive government is wise, and who are inchned 
 to give free rein to the executive, should study the history of the 
 counter movements given in the following pages. 
 
 The judiciary has undergone wonderful transformations, yet 
 more consistently than any other branch of the government has 
 maintained its prestige and authority; but it is at present too 
 closely affiliated with the people through the elective system. 
 
 The extent of our indebtedness to the distant past is a 
 subject which has received abundant consideration from his- 
 torians. But it is time that history should be written with an eye 
 to the future, and with more attention to the intermediate devel- 
 
 vii 
 
INTRODUCTION 
 
 opment of the State. If conventions have made their mistakes, 
 these should be pointed out, lest they be repeated. Too much 
 confidence should not be reposed in the opinion of the moment, 
 however strong and convincing it seems to be. Even with the 
 utmost freedom of speech and of the press, majority sentiment 
 has an invincible habit of preventing minority thought from ob- 
 taining full expression or receiving proper consideration. One 
 thing which should stimulate the interest of its citizens in the 
 constitutional history of New York is the reflection that the State 
 has often been a leader and pioneer in constitutional develop- 
 ment. It has blazed the path in which other States have followed. 
 Appreciation of this is pleasurable, but the high record of the 
 State in this respect should be maintained in the future, and this 
 can best be done if its constitutional evolution is widely studied 
 and understood. 
 
 vin 
 
CHAPTER I 
 
 INDEBTEDNESS OF THE STATE TO ROMAN LAW AND TO DUTCH BEGIN- 
 NINGS THE CHARTER GRANTED BY THE STATES GENERAL TO 
 
 THE DUTCH WEST INDIA COMPANY COMMISSIONS ISSUED TO 
 
 THE GOVERNORS OF THE COLONY THE CHARTER OF FREEDOMS 
 
 AND EXEMPTIONS — TRIBULATIONS OF THE COLONISTS UNDER 
 
 DUTCH RULE EXTENT OF THE DUTCH CLAIMS IN NORTH 
 
 AMERICA SURRENDER OF NEW AMSTERDAM TO THE ENGLISH 
 
 THE duke's laws; GOVERNMENT UNDER ANDROS AND DON- 
 
 GAN THE CHARTER OF LIBERTIES AND PRIVILEGES — THE COL- 
 ONY UNDER SLOUGHTER, THE GOVERNOR APPOINTED BY WIL- 
 LIAM III THE CHARTER OF 169I TYPE OF GOVERNMENT 
 
 UNTIL THE OUTBREAK OF THE REVOLUTION THE BRITISH 
 
 PARLIAMENT HAD NO AUTHORITY OVER THE COLONIES THE 
 
 CONSTITUTION OF THE COLONY OF NEW YORK AT THE DATE 
 OF THE REVOLUTION, AN OUTGROWTH OF DUTCH AND ENG- 
 LISH CUSTOMS AND LAWS LIMITED CHARACTER OF SUF- 
 FRAGE. 
 
 Originally a colony of Holland, New York traces no incon- 
 siderable measure of her character and polity to her Dutch origin, 
 and, through Holland, to Roman ideas. The influence of her 
 Dutch beginnings pervades the life of to-day. The indebtedness 
 of all the States to Roman law and Roman civilization is now 
 generally recognized. If the pressure of population upon the 
 means of subsistence had not driven Rome to comprehensive 
 colonization, her jurisprudence might never have been established 
 in Western Europe. As West European nations made settle- 
 
 I 
 
LEGAL AND JUDICIAL 
 
 ments in America, Roman public law, with its doctrine of title by 
 discovery, came to control the destinies of English, French, Span- 
 ish and Dutch colonies. Thus the theory developed by Grotius 
 and other Dutch publicists led to the conflicting claims of Holland 
 and England to the province of New Netherland, and eventually 
 to the surrender of the Dutch colony to the stronger power of 
 England. In many aspects our laws and customs, commonly 
 supposed to be of British descent, may be ascribed to Latin 
 sources, and to "the Roman law which", says Sir Henry Maine, 
 in his work on the "Early History of Institutions," "next to the 
 Christian religion, is the most plentiful source of the rules gov- 
 erning actual conduct throughout Western Europe."^ 
 
 The corollaries from the principle of title by discovery have 
 governed the course of all titles to real estate in New York, and 
 generally throughout the United States. The State alone, as 
 successor to the discovering nationality, could extinguish the 
 Indian claim, or convey ownership of land; no direct bargain of 
 any individual or company with the aboriginal tribes, even if 
 made in the highest faith and for consideration, could give the 
 purchaser a shadow of title as against a subsequent patentee from 
 the commonwealth. This principle was early announced by the 
 Supreme Court of the United States as underlying all titles to 
 
 I. "Acquisition of territory has always been the great spur of na- 
 tional ambition, and the rules which govern this acquisition, together with 
 the rules which moderate the wars in which it too frequently results, are 
 merely transcribed from the part of the Roman law which treats of the 
 modes of acquiring property jure gentium. * * * Those parts of the 
 international system which refer to dominion, its nature, its limitations, 
 the modes of acquiring and securing it, are pure Roman Property Law." 
 Maine's "Ancient Law," pp. 74, 75. 
 
 "The Roman principle of Occupancy, and the rules into which the 
 jurisconsults expanded it, are the source of all modern International 
 Law on the subject of Capture in War and of the acquisition of sover- 
 eign rights in newly discovered countries." Id., p. 180. 
 
HISTORY OF NEW YORK 
 
 land from the Indians, which could be had only under grant from 
 the general government.^ 
 
 Although the Dutch discovery occurred in 1609, there seems 
 to have been no real government in New Netherland until a char- 
 ter was granted by the States General to the Dutch West India 
 Company on June 3, 1621. This charter, in imitation of the 
 charter of the Dutch East India Company, conferred remarkably 
 broad administrative and judicial powers subject, however, to 
 control by the Amsterdam Chamber. In order to curb Portugal 
 and Spain, and to advance her own commercial and colonial 
 interests in the distant east, the Holland government had clothed 
 the East India Company with almost irresponsible authority. In 
 the new western world England also was her competitor, and in the 
 general rivalry, especially that between these two nations, it had 
 seemed wise to invest the West India Company with similar 
 latitude of jurisdiction. The primary purpose of the charter 
 was commercial: the corporation was to found colonies and 
 carry on trade, navigation, and commerce upon the coasts 
 of Africa, North America and the West Indies. For 
 the accomplishment of its purposes it was invested with 
 power to employ soldiers and fleets, build forts, make 
 treaties, appoint and remove governors, officers of justice and 
 other public officers ; to maintain order and police, and to admin- 
 ister justice. The government of a corporation armed with such 
 extraordinary powers was under the ultimate supervision of the 
 States General. There were five separate chambers in the com- 
 pany, and to one, the Chamber of Amsterdam, was committed 
 the management of the affairs of New Netherland. The central 
 power was vested in an assembly of nineteen delegates repre- 
 
 2. Johnson v. M'Intosh, 8 Wheaton, 543. 
 
 3 
 
LEGAL AND JUDICIAL 
 
 senting both the separate chambers and the States General, and 
 commonly known as the Assembly of XIX. All officers were 
 required to take a double oath of allegiance — to the company, 
 and to the States General. The colony of New Netherland was 
 established by the company at New Amsterdam in 1623. 
 
 The broad commissions issued by the States General at the 
 request of the Dutch West India Company to the governors of 
 the colony might seem unpropitious beginnings for popular gov- 
 ernment. The director, as the governor was styled, seemed in 
 practice as absolute and uncontrolled in his jurisdiction as was 
 Warren Hastings in the succeeding century, in India ; the one 
 had for his subjects colonists from Holland, the other ruled 
 numerous tribes of an alien race. The Dutch director extin- 
 guished Indian titles or sanctioned their purchase. His ratifica- 
 tion was essential to the validity of every contract ; he created the 
 courts, appointed nearly all public officials ; enacted laws and 
 ordinances as a Roman emperor issued edicts; incorporated 
 towns, imposed taxes, levied fines, and inflicted penalties. He 
 possessed a power almost as extensive over the currency of the 
 colony as did Philip the Fair over that of France. He determined 
 the value of the wampum, the chief money of the time. No jury 
 aided him in the decision of criminal or civil causes; he deter- 
 mined these himself. While his commission usually required him 
 to recognize the cognate jurisdiction of what was termed the 
 council, he habitually ignored this body as a restraint upon his 
 plenary authority. Yet, in spite of these uncongenial beginnings, 
 a degree of popular government was evolved. The Dutch colon- 
 ists, like the sturdy individualists who founded New England, 
 carried in their spirits the best traditions of their native country, 
 its devotion to liberty, secular and religious; to freedom of 
 speech and to education. Men nurtured in the independent air 
 
 4 
 
HISTORY OF NEW YORK 
 
 of Holland could not be expected long to brook tyrannical govern- 
 ment. Their situation in a new country, surrounded by wild 
 tribes of the forest, amidst novel experiences and sudden dan- 
 gers which compelled the director frequently to consult with the 
 chiefs of the people, was especially conducive to the development 
 of independence. It is not surprising that the history of the 
 colony during the Dutch era shows the steadfast resistance of its 
 people against the tyranny of governors, repeated protests to the 
 home authorities against the pretensions of arbitrary power, and 
 unswerving insistence upon the rights of free men — among these, 
 the right, long previously familiar to Dutchmen as well as to 
 Englishmen, of representative government. 
 
 On June 7, 1629, there was granted the Charter of Freedoms 
 and Exemptions, which introduced the feudal system into part of 
 the colony, and conferred special privileges and powers on ail 
 patroons, masters, or private persons who, as the language ran, 
 would "plant colonies in New Netherlands." The patroons were 
 authorized to erect courts of justice, and courts known as the 
 patroons' courts were accordingly established, exercising unlim- 
 ited civil and criminal jurisdiction within the patroons' territory. 
 In these tribunals the patroon presided in person, or by deputy. 
 He appears to have been clothed with the extraordinary power of 
 life and death, and could decide all civil suits arising within his 
 jurisdiction, subject — where he rendered judgment for a sum ex- 
 ceeding fifty guilders — to an appeal to the Director General and 
 The Council of New Amsterdam. This right of appeal was re- 
 served by the original charter under which the patroons 
 held, but it was practically defeated by the exaction from the 
 tenants, before they came upon the manor, of a con- 
 dition that they would in no case appeal from the judg- 
 ment of the manorial court. The patroon was the over- 
 
 5 
 
LEGAL AND JUDICIAL 
 
 lord of his tenants, to whom he leased land upon 
 rigorous terms, each tenant submitting himself as a faithful sub- 
 ject bound by an oath of fealty and allegiance to a master clothed 
 with almost boundless civil, military and judicial authority within 
 his demesnes. It was under this charter that Kiliaen van Rens- 
 selaer, a merchant prince of Amsterdam and a director in the 
 West India Company, obtained title to extensive tracts of land 
 embraced in what are now the counties of Albany, Rensselaer and 
 Columbia. The story of the influence of the patroon system 
 forms a chapter of profound interest in the history of the State.' 
 
 Broad as was the authority conferred by the company upon 
 the director, it was in theory not altogether unbridled ; a council 
 was to form part of the colonial administration, and the governor 
 was expected to confer with it before acting. He was necessarily 
 left free to determine when he should seek its advice, and the 
 natural result was an indisposition to request any. In this coun- 
 cil, and the council established under English rule, may be found 
 the genesis of the State senate. 
 
 When Minuit was appointed director (1626), there was 
 associated with him a Council of Five, and the director and coun- 
 cil were by his commission to possess all executive, legislative and 
 judicial power subject to certain appellate jurisdiction of the 
 Assembly of XIX, and subsequently of the Amsterdam Chamber. 
 The commission to Van Twiller, his successor in 1633, also pro- 
 vided for a council, as did the commission to Kieft, appointed in 
 lieu of Van Twiller in 1638. But in reorganizing the administra- 
 tion of affairs, Kieft preserved merely the shadow of a council 
 by appointing only one person besides himself a member, giving 
 
 3. The origin, development and consequences of the patroon system 
 are treated by Mr. Charles Z. Lincoln, in his invaluable "Constitutional 
 History of New York", vol. II, pp. 10-27. 
 
 6 
 
HISTORY OF NEW YORK 
 
 his appointee one vote and reserving two votes to himself. "For 
 nine years he misgoverned the colony." He was ever embroiled 
 in trouble with the natives or the colonists, and was constantly 
 inflicting fines, confiscations and banishments; "and though an 
 appeal lay from his judicial decisions to the Chamber at Amster- 
 dam, he effectually cut it off, by subjecting to fine or imprison- 
 ment any one who attempted to resort to it." Yet it was under 
 this director that the first semblance of a representative assembly 
 was formed, for it became necessary for him to consult with 
 heads of families regarding the treatment of the Indians, and the 
 conferences to which he summoned the leading spirits of the 
 colony resulted in their electing a separate council of twelve men. 
 Its manifestations of independence impelled Kieft to put an inter- 
 dict upon the meeting of its members without his authority, but 
 further difficulties with the Indians and troubles with neighboring 
 colonies forced him later again to seek its advice, and this led 
 to the formation of a new representative body of eight men. 
 Kieft's petty tyrannies led to his recall, and the appointment of 
 Stuyvesant, the last of the directors, who was to prove no less 
 intractable than his predecessors. Stuyvesant, upon his arrival as 
 governor, issued a proclamation requesting the people to choose 
 eighteen persons from among the most honorable and respectable 
 of their number, who in turn were to select a council of nine to 
 participate with him in the government. The commission to 
 Stuyvesant shows that he was expected to summon a council to 
 share his extraordinary powers. It is evident, therefore, that the 
 body known as the Nine Men, whom Stuyvesant himself called 
 the "Tribunes of the People," represented a new element in the 
 colonial government, although an element well known in the 
 fatherland. Like Kieft's Council of Twelve, it was a species of 
 representative assembly. If the share of the council in the ad- 
 
 7 
 
LEGAL AND JUDICIAL 
 
 ministration was limited, the share of this nascent assembly was 
 far more so. StU)rvesant ill brooked the aid of the council, and 
 was less willing to concede any power to the assembly. 
 
 The affairs of the colony rendered despotic government im- 
 possible. As conferences of delegates had repeatedly to be called, 
 there was repeated remonstrance against the director's tyrannical 
 exercise of power. A convention held on December lo, 1653, 
 formulated an earnest protest to the director and council and to 
 the States General. It objected to "'arbitrary government," and 
 declared that the consent of the people or their representatives 
 was necessarily required in the enactment of laws and orders 
 affecting their lives and property. The director replied to the 
 remonstrance, and controversies between him and the colonists 
 continued until the termination of Dutch control. Resistance to 
 one man power, insistence upon the right of the people to take 
 part in legislation, and upon the necessity of a representative 
 body to approve of the action of the director and council, was 
 steadfastly maintained up to the date of the Dutch capitulation to 
 the English. 
 
 The contest between the Dutch and the English for control 
 of the colony grew out of their conflicting claims, the English 
 challenging the right of the Dutch on the ground of their own 
 earlier discovery. The Dutch claims included the present states 
 of New Jersey and Delaware, where they were maintained, and 
 Pennsylvania, where they were only asserted. They extended 
 into Connecticut as far east as the Connecticut river, and em- 
 braced Long Island also, although the English had made actual 
 settlements there as early as 1640.* The grant made by Charles 
 
 4. Emigrants from Massachusetts and Connecticut moved to Long 
 Island in such numbers that in 1660 eleven distinct villages had been set- 
 tled, scattered from one end of the island to the other along the coast, 
 or on smaller bits of land like Shelter Island. The English towns on 
 
 8 
 
HISTORY OF NEfF YORK 
 
 II. to his brother James, Duke of York, upon which the duke 
 based his title to New Netherland, included a large part of Maine 
 and all the territory between the Delaware and Connecticut rivers ; 
 but, before Nicolls' arrival at New Amsterdam, the duke had 
 transferred his right to New Jersey to other proprietors. Hence, 
 when the Dutch colony passed under English control, its bound- 
 aries were uncertain and shadowy. The boundary line between 
 New York and Connecticut was not fixed until 1728. The dis- 
 puted boundary between New York and Massachusetts led to a 
 suit between the two States before the Congress of the Confeder- 
 ation, and the controversy was finally settled by the concession 
 on the part of New York of certain rights of preemption to 
 Massachusetts in lands in the western part of this State. The 
 boundary between New York and New Jersey remained undeter- 
 mined until a treaty was made between the two States in 1833, 
 which was ratified by their respective legislatures and congress 
 in 1834. 
 
 Unless the Duke of York meant to renounce his title, it was 
 necessary that he should enforce his claim with arms. An Eng- 
 lish squadron under Nicolls was sent into the bay of New York 
 in 1664. This led to the surrender of the colony by the Dutch, 
 August 27, 1664, O. S., under articles of capitulation entered into 
 by the leading citizens of New Amsterdam with the English com- 
 mander. By these articles' all subjects of Holland then residents 
 in the colony were to remain free denizens in the full enjoyment 
 
 Long Island were at first independent, all questions being determined by 
 majority vote in town meeting. By 1662 all the Long Island towns had 
 united with either New Haven or Connecticut. ("The Expansion of 
 New England" by Lois Kimball Mathews, 1910, p. 34). The Long Island 
 towns east of the Connecticut boundary line sent their delegates to the 
 Connecticut legislature and considered themselves part of that state. 
 
 5. These articles are reprinted in Appendix No. i, in vol. II, of the 
 "Laws of the State of New York," as revised by Van Ness and Wood- 
 worth, in 1813. 
 
 9 
 
 2 
 
LEGAL AND JUDICIAL 
 
 of their private property, and their customs respecting inherit- 
 ances; and Hberty of rehgious worship was also accorded them. 
 New York was retaken by the Dutch on August 9, 1673, but by 
 the treaty of Westminster in the following year it was retroceded 
 to the English. The crown lawyers argued that, by the treaty, title 
 had passed to the king, so, to meet their doubts, Charles II. gave 
 to his brother James a second patent, substantially a repetition of 
 the earlier grant, and the colony passed from the proprietorship 
 of the Dutch corporation to the proprietorship of an English duke. 
 The charters granted by Charles conferred upon his brother 
 plenary powers of government, including the power to make 
 laws, but with the salutary check that these should not be con- 
 trary to the law of England. The "Duke's Laws", which are said 
 to have been compiled by Lord Clarendon, the duke's father-in- 
 law, from laws and ordinances in other EngHsh colonies, but con- 
 taining few provisions relative to popular rights, were promul- 
 gated in the colony March i, 1665, after their adoption by a con- 
 vention of delegates assembled at Hempstead, February 28, 1665, 
 from towns in Long Island and Westchester, which were largely 
 English settlements enjoying the benefit of their own laws and 
 customs. The "Duke's Laws," or "Nicolls' Code," substituted the 
 leading features of the English law of real and personal property 
 for the Dutch law, at least in Long Island and Westchester, for 
 no delegates had been elected to represent the Dutch of New 
 Amsterdam, and it could hardly have been designed to bring these 
 people, who were unfamiliar with English, under a system of 
 government so different from that to which they were accus- 
 tomed. Upon the re-establishment of English authority after the 
 retrocession by the Dutch, the duke issued a commission to Major 
 Edmund Andros recommending him to continue the existing 
 courts of justice, authorizing him to commission officers and mag- 
 ic 
 
HISTORY OF NEfF YORK 
 
 istrates, and requiring the appointment of a council of not more 
 than ten members, inhabitants of the colony, with whom he was 
 to consult on all extraordinary occasions. The governor and 
 council formed a sort. of colonial legislature until an assembly 
 was created in 1683. 
 
 The administration of Andres has been the subject alter- 
 nately of praise and censure. According to some historians he 
 was able and enlightened; by others he has been pronounced 
 arbitrary, cruel and despotic, without sympathy with the popular 
 wish for a representative assembly. His faults were those of his 
 master, whose desire for revenue from the colony far outstripped 
 his interest in its welfare, and to whom assemblies of the people 
 were abhorrent, "nothing being more known than the aptness of 
 such bodies to assume to themselves many privileges which prove 
 destructive to the peace of government"; neither could he "see 
 any use for them". The people complained of the Andros ad- 
 ministration in a petition to the duke,, declaring that inexpressible 
 burdens were put upon them by a tyrannical government ; that 
 unjust revenues were collected and undue taxes imposed upon 
 trade, and that they were esteemed as nothing, and had become a 
 reproach to their neighbors in his majesty's other colonies. Ac- 
 cordingly, Andros was recalled, although in 1686 he was mad« 
 governor of New England. His place in New York was taken 
 by Colonel Thomas Dongan. 
 
 The commission to Dongan (September 30, 1682) instructed 
 him, with the advice of the council, to issue writs in the duke's 
 name for the election of a general assembly of freeholders. 
 Ample legislative power was to be conferred upon the assembly, 
 subject to an absolute veto by the governor and the duke. This 
 concession to the desire of the colony, James made upon Penn's 
 advice, and because of requests from men of every rank in the 
 
 II 
 
LEGAL AND JUDICIAL 
 
 province. The assembly which was accordingly chosen was a 
 notable one. It passed a law subdividing the province and its de- 
 pendencies into shires and counties, and also passed an act settling 
 courts of justice and creating a court of chancery, but its chief 
 title to lasting recollection comes from its promulgation, on Oc- 
 tober 30, 1683, of the famous instrument known as the Charter 
 of Liberties and Privileges.^ The charter'' declared that the su- 
 preme legislative authority, "under his Majesty and Royall High- 
 ness should forever be and reside in a governor, counsell and the 
 people mett in General Assembly'', and it provided for govern- 
 ment by and according to the laws of England, liberty of choice 
 for all freeholders in elections, and toleration in religion. In 
 plainest terms it announced that no taxes of any kind should be 
 levied within the province without the assent of the people's 
 representatives. 
 
 The charter was not exactly the "pioneer among charters or 
 constitutions conferring upon the people the right of representa- 
 tive government", as it was preceded not only by the "Union of 
 Utrecht," in Holland, but also by the Connecticut charter of 1639. 
 This Connecticut charter was the first practical assertion in 
 America of the right of the people to choose their officers and 
 define their powers. It was the work of that great Connecticut 
 
 6. "The great principles enunciated in the Charter of Liberties are," 
 says Lincoln, in his "Constitutional History of New York," "drawn from 
 the immortal Magna Charta, which had for nearly five centuries been the 
 source and strength of English free institutions; yet these Dutchmen, no 
 less zealous for liberty than their English neighbors, were willing to ac- 
 cept, adopt, and assert as their own, the rights of citizens as defined by 
 the Great Charter. * * * This charter, closely resembling our modern 
 constitutions in form and substance, and containing many provisions 
 which have been continued in those instruments, might properly be called 
 the original Constitution of New York." 
 
 7. This instrument is printed in the Appendix to Van Ness and 
 Woodworth's Revision of the Laws of the State. 
 
 12 
 
HISTORY OF NEW YORK 
 
 divine, the Reverend Thomas Hooker, who probably had imbibed 
 Dutch ideas of free government* while living at Delft, where for 
 three years he had held a pastorate. The Charter of Liberties, 
 however, was, perhaps, the earliest charter distinctly to formulate 
 the principle of representation as a condition of taxation. Al- 
 though it seems to have met the duke's approval, yet upon his 
 accession to the throne of England as the successor of Charles II. 
 in 1685, he decided to withhold his royal assent to it. It was 
 accordingly vetoed March 3, 1685. The colony ceased to be a 
 proprietary, and became a royal province when the duke became 
 king. A new commission was issued by James II. to Governor 
 Dongan, May 29, 1686. It rejected the Charter of Liberties, but 
 confirmed all laws of the assembly previously allowed ; it reserved 
 the entire legislative power to the governor and council, subject 
 to the royal veto. All laws, statutes and ordinanceswere to conform 
 as nearly as was practicable to the laws and statutes of England ; 
 no provision was made for any representative assembly. In civil 
 causes where the amount in controversy exceeded one hundred 
 pounds sterling, appeals might be taken to the governor. Further 
 appeal lay to the king in council where the amount involved ex- 
 ceeded three hundred pounds. James as king treated the colony 
 less liberally than he had proposed to do as duke. The probability 
 is that his consent to the call of a general assembly had been 
 reluctantly given, as he was never a friend of popular rule. But 
 parliamentary government, although it never had royal sanction, 
 had already been launched under his previous commission to Don- 
 gan, and a movement, impossible to check, had been started. The 
 
 8. "The Puritan in Holland, England and America," Douglas Camp- 
 bell, I, 416. 
 
 "Connecticut," by Alexander Johnston, pp. 71, 73. 
 
 13 
 
LEGAL AND JUDICIAL 
 
 aspirations of the colonists were soon to be realized under a freer 
 government. 
 
 Upon the accession of William III. to the throne of England 
 as the successor of James, a commission was issued to Henry 
 Sloughter appointing him captain general and governor-in-chief 
 of the province of New York. It authorized him with the advice 
 and consent of the council to summon a general assembly to be 
 chosen and constituted substantially like earlier assemblies. The 
 governor ordered the election of a new assembly which met on 
 April 9, 1691. From that date until the Revolution the assembly 
 was a regular department of the colonial government. Until 1716 
 members of assembly were elected biennially ; thereafter until the 
 Revolution they were elected at greater intervals. The assembly 
 of 169 1 drafted a new charter modelled upon the Charter of Lib- 
 erties and Privileges of October, 1683. In language similar to 
 that employed by its famous predecessor, it declared that the 
 "supreme legislative power and authority" should be and reside 
 in a governor and council appointed by the crown, and in "the 
 people by their representatives, mett and convened in general 
 assembly". "The people", in accordance with the views of the 
 time, were freeholders owning property producing forty shillings 
 per annum. This charter never received William's approval; 
 nevertheless it was in force in the colony for upwards of six 
 years. 
 
 The commission to Governor Sloughter to summon an as- 
 sembly had been, however, a recognition by the crown of the 
 right of the colony to representative government. This assembly, 
 under the erroneous impression, says Judge Daly, that none of 
 the acts of the general assembly of 1683 and 1684 had been af- 
 firmed by James, and that all were therefore void, reorganized 
 the judicial system of the colony with a court of chancery, a 
 
 14 
 
HISTORY OF NEW YORK 
 
 supreme court, a court of common pleas, courts of sessions, and 
 justices' courts.' 
 
 The charters of 1683 and 1691 made a shadowy differentia- 
 tion between executive, legislative and judicial authority. They 
 followed in the main the English theory of colonial government. 
 The council and the assembly constituted a bicameral legislature. 
 The governor and after him the king had an absolute veto on 
 all its acts. Landed proprietors alone were recognized as entitled 
 to share in the business of government. The members of the 
 council received their commissions from the crown, but the 
 governor had a qualified right to fill vacancies. Besides sitting as 
 an upper legislative chamber, the council sat as a privy council 
 to advise and assist in political cases. The governor was em- 
 powered to adjourn, prorogue and dissolve the assembly in his 
 discretion. 
 
 Substantially this type of government was continued until 
 the Revolution, but under an unwritten constitution, no actual 
 charter having been in force after 1697. As has been well said by 
 Mr. Lincoln in his exhaustive treatise upon our constitutional 
 history, the student who would understand the essentials of the 
 institutions which by degrees had been evolving in the colony, will 
 find them formulated in the commission issued in February, 1771, 
 
 g. Immediately upon the passage of the .act, the supreme court was 
 organized and Joseph Dudley appointed chief justice, Thomas Johnson, 
 second judge, and WilHam Smith, Stephen Van Cortland and William 
 Pinthorne, associate justices. Thomas Newton was appointed attorney 
 general, but after brief service he was succeeded by James Graham, re- 
 corder of New York, who had previously filled the office. See Judge 
 Daly's "History of the Court of Common Pleas for the City and County 
 of New York, with an account of the Judicial Organization of the State 
 and of its Tribunals, from the time of its settlement by the Dutch in 
 1823 until the adoption of the State Constitution of 1846." Judge Daly's 
 essay is a most admirable exposition of the political and judicial history 
 of the colony, and evidently a work involving great research and com- 
 posed in most excellent style. It cannot be too highly commended to the 
 student of the earlier institutions of New York. It appears as an intro- 
 duction in volume I, E. D. Smith's Reports. 
 
 15 
 
LEGAL AND JUDICIAL 
 
 three years before the commencement of the Revolution, by 
 George III. to Governor William Tryon, and in the instructions 
 that accompanied and explained the commission. 
 
 In an explanation of the nature of the colonial constitution, 
 transmitted by Governor Tryon to the home government in 1774, 
 its salient features are briefly and admirably described. Its con- 
 stitution, since it became a royal province, "nearly resembled that 
 of Great Britain and the other royal governments in America." 
 The governor was the king's appointee and held office during 
 the royal pleasure; he had a council in imitation of his majesty's 
 council; the province "enjoyed a legislative body" consisting of 
 the council and representatives of the people "chosen as in Eng- 
 land," which the governor might adjourn, prorogue or dissolve; 
 it could make no laws repugnant to the laws and statutes of Great 
 Britain, and over all its enactments the governor possessed an 
 absolute veto. Within three months after its passage, every law 
 was required to be sent to his majesty for his approval. The 
 governor was not to give his consent to any law that was not to 
 remain in force for two years. No clause foreign to the import 
 of the title of an act might be inserted in that act,^" and no act 
 might be suspended, altered, continued, revived or repealed by 
 general words, but the title and date of any such act was required 
 to be particularly mentioned in the enacting part. The province 
 had a court of chancery in which the governor sat as chancellor, 
 and courts of common law, the chief being the supreme courts 
 the judges of which held their commissions at the king's pleasure, 
 and there were county courts of less jurisdiction and justices of 
 the peace to try minor causes. There were also criminal courts 
 "correspondent to those in England". Besides these tribunals,, 
 all administered according to the common law, there was a court 
 
 10 This reappears in substance in the State Constitution in 1874. 
 
 16 
 
HISTORY OF NEW YORK 
 
 of admiralty which proceeded "after the course of the civil law," 
 and a prerogative court, charged with the probate of wills, the 
 administration of estates and the issuing of licenses for marriage. 
 The governor was commander-in-chief, and appointed all mili- 
 tary officers, who held at his pleasure. He had power to suspend 
 the lieutenant governor and members of the council, and to 
 grant pardons, except in cases of treason and murder. The col- 
 ony could erect forts and other means of defense and establish 
 and maintain a militia. Public money was to be paid only on the 
 governor's warrant, approved by the council. The common law 
 of England was considered the fundamental law of the province, 
 and, continued the governor, "it is the received doctrine that all 
 statutes not local in their nature, and which can be fitly applied 
 to the circumstances of the colony, enacted before the province 
 had a legislature, are binding upon the colony; but that statutes 
 passed since do not afifect the colony, unless by being specially 
 named. Such appears to be the intention of the British Legisla- 
 ture". 
 
 This clause is the only reference in this document to jurisdic- 
 tion of the British Parliament over the colonies; and it is inter- 
 esting to note that it is practically coincident with the first denial 
 by the colonies of the power of that body to legislate for them. 
 The theory that the British Parliament had no authority whatso- 
 ever over the colonies was as much a development as the now gen- 
 erally accepted theory of the relation of the States to the nation, 
 which was never triumphant until the Civil War. From the Eng- 
 lish point of view, the American colonies were, as it has well been 
 said, corporations holding their charters at the pleasure of the 
 crown, and subject to dissolution by quo warranto proceedings in 
 his courts, and, above all, subject to legislation by Parliament, 
 which, according to Blackstone, was "boundless in its operations." 
 
 17 
 
LEGAL AND JUDICIAL 
 
 Lord Macaulay mistakenly assumes that down to the Revolution 
 the colonies admitted the authority of Parliament, save as to the 
 power of taxing. When Parliament came to enforce the Naviga- 
 tion Act and other measures inimical to colonial commerce and 
 to rights which they conceived to be theirs as free men, the colon- 
 ists were impelled to examine the foundations of alleged parlia- 
 mentary authority, and forced logically to the conclusion that the 
 English Parliament was a foreign body which had never had jur- 
 isdiction over them. They were subjects of the king, with par- 
 liaments of their own. The British Parliament had no jurisdic- 
 tion beyond the seas, and no power to tax the colonies or even 
 legislate for them. The Continental Congress (1765) had, it is 
 true, memorialized Parliament as well as the king, but the Con- 
 tinental Congress of 1774 omitted all mention of Parliament in 
 its petition. And the culmination of this reasoning is reached in 
 the Declaration of Independence, which arraigned the king for 
 his attempt "to subject us to a jurisdiction foreign to our consti- 
 tutions, and unacknowledged by our laws, giving his assent to 
 these acts of pretended legislation." Language could not more 
 clearly deny the authority of the British Parliament not alone to 
 tax but also to legislate for the North American colonies, and this 
 foreign parHament had suspended "our own legislatures" and de- 
 clared itself invested with power to legislate for us.^^ 
 
 The constitution of the colony of New York, as it existed at 
 the date of independence, (although it was not a written instru- 
 ment), was the outgrowth of Dutch as well as English customs 
 and laws, for from the Dutch had been inherited the idea 
 of free education, the system of recording instruments 
 affectmg real estate, and the doctrine that the people are 
 
 II. Article on "United States" by Alexander Johnston, in "Encyclo- 
 paedia Brittannica." 
 
 18 
 
HISTORY OF NEW YORK 
 
 the ultimate source of authority. The city of New York 
 owes to Stuyvesant the earUest rudiments of a city 
 charter. The men who framed the first State constitutions, 
 and who drafted the Constitution of the United States, were as 
 famihar with the "Union of Utrecht" and the government of Hol- 
 land as they were with the republics of Greece and Rome. The 
 pages of The Federalist are filled with allusions to Dutch history 
 and institutions. Equally profound was their knowledge of 
 Montesquieu, and to him were they indebted for a thorough 
 understanding of the necessity of keeping the three great depart- 
 ments of government separate. They knew intimately the char- 
 acter of the colonial constitutions under which they lived. From 
 these sources they were summoned to construct a new govern- 
 ment, or, rather, to adapt government to the new conditions by 
 which they were confronted. That they should retain all for 
 which they and their ancestors had struggled, and the jurispru- 
 dence they enjoyed, was to have been expected; that they should 
 reject a system which made judges subservient creatures of the 
 appointing power, and should evince distrust of executive author- 
 ity, might equally have been anticipated in view of the king's 
 recent encroachments upon their rights. That, while declaring 
 their profound belief in the inalienable rights of the individual, 
 they should organize governments in which substantially all power 
 was reserved to the land owner, while it may seem extraordinary, 
 was only natural. The colonial government was a government 
 of the land owner, for in none of the first constitutions of the 
 original thirteen states did the people receive any consideration 
 in either branch of the legislature. The idea crystalHzed in John 
 Jay's maxim that those who owned the country ought to govern 
 it, underlay every constitution. The government set up by many 
 a constitution, despite the principle announced in its preamble, 
 
 19 
 
LEGAL AND JUDICIAL 
 
 was in reality that of a class. Not until about the beginning of 
 Jefferson's administration did the States commence to broaden 
 the suffrage. 
 
 20 
 
CHAPTER II 
 
 IMPULSES TOWARD STATE GOVERNMENT COME FROM CONTINENTAL 
 CONGRESS CHAOTIC CONDITIONS AT OUTBREAK OF REVOLU- 
 TION, AND FORMATION OF PROVINCIAL GOVERNMENTS IN THE 
 
 COLONIES THE THIRD PROVINCIAL CONGRESS OF NEW YORK 
 
 THE FOURTH PROVINCIAL CONGRESS, OR FIRST CONSTITUTIONAL 
 
 CONVENTION ^THE WORK OF THE CONVENTION, THE COUNCIL 
 
 OF APPOINTMENT, THE COUNCIL OF REVISION, THE JUDICIARY, 
 SENATE AND ASSEMBLY OTHER FEATURES OF THE CONSTITU- 
 TION ITS SIMPLICITY EARLY GOVERNMENT IN THE INFANT 
 
 STATE NEW YORK ACCEPTS THE ARTICLES OF CONFEDERATION 
 
 THE ACTION OF THE STATE LEGISLATURE, ULTRA VIRES 
 
 RATIFICATION OF THE FEDERAL CONSTITUTION REVISION 
 
 OF THE LAWS NEW YORK CEDES HER LANDS IN THE 
 
 WEST — THE PRACTICE OF LAW UNSUCCESSFUL ATTEMPT BY 
 
 BURR TO ABOLISH SLAVERY — BEGINNINGS OF EDUCATION. 
 
 That union of some sort among the colonies preceded the 
 independent existence of any State, seems the plain teaching of 
 history. "The irrepressible tendency toward union", as Judge 
 Jameson has termed it, is perceptible as far back as 1643. It 
 gathered additional momentum in 1748 and 1754. It received a 
 powerful re-enforcement when the Stamp Act Congress assem- 
 bled in 1765. It became the sentiment of all the colonies when 
 the First Continental Congress met at Philadelphia in 1774 to 
 memorialize the king, for its petition, as has been observed, 
 studiously ignored Parliament as a body having no jurisdiction in 
 America. The sentiment for union gained strength from the 
 
 21 
 
LEGAL AND JUDICIAL 
 
 Second Continental Congress, which convened at Philadelphia, 
 May lo, 1775. Down to this date no colony had undertaken to 
 assert its independence of Great Britain, and probably none would 
 have done so singly. As Charles C. Pinckney well said in the 
 South Carolina legislature in 1788, in speaking of the Declara- 
 tion of Independence : "The separate independence and individ- 
 ual sovereignty of the several states were never thought of by 
 the enlightened band of patriots who framed the Declaration of 
 Independence." It was the Second Continental Congress which 
 launched the people upon a career ultimating in independence. Van 
 Hoist maintains that it was a purely revolutionary body, but it 
 seized no power, and undertook only to guide the separate colonies 
 and to recommend to them the establishment of new governments. 
 
 The first impulse towards State government was therefore 
 not from within any colony ; the suggestion came from the 
 Continental Congress. Nor was the original idea one of perma- 
 nent separation from Great Britain; conviction of the impossi- 
 bility of reconciliation with the mother country was a growth- 
 The strength of the revolutionists lay in concert of action, and it 
 was to the wisdom of all as symbolized in the Continental Con- 
 gress that each turned. 
 
 With the outbreak of the Revolution, the people had re- 
 nounced the authority of Great Britain, and to avoid anarchy 
 some kind of temporary government had to be established. There 
 sprang up simultaneously in all the colonies, provincial congresses 
 or conventions, committees of safety and committees of corres- 
 pondence, the provincial congresses exercising all legislative 
 powers and delegating executive functions to the committees of 
 safety.^ 
 
 The Second Continental Congress, in answer to inquiries 
 
 I. "History of the People of the United States," McMaster, III, 373. 
 
 22 
 
HISTORY OF NEW YORK 
 
 from some of the colonies (New Hampshire, Massachusetts, 
 South Carolina, Virginia) for "advice respecting the taking up 
 and exercising the powers of civil government," passed a resolu- 
 tion recommending that the "respective assemblies and conven- 
 tions of the United Colonies adopt such government as should 
 best conduce to the happiness and safety of the several colonies 
 in particular and America in general.'' This important resolution 
 was passed May lo, 1776. The condition of the colony of New 
 York at this time was peculiarly chaotic ; the British were in con- 
 trol of its chief city, the colonial assembly had been dissolved, 
 and Governor Tryon did not consider it wise to summon another ; 
 Tories and Royalists were in possession of the property of revo- 
 lutionists, and the temporary congresses or committees were flee- 
 ing from one place to another. The infant government was prac- 
 tically concentrated in the territory lying between the Highlands 
 of the Hudson and Lake George, Albany and Oneida Lake, for 
 the remainder of the State was a wilderness peopled by red men.^ 
 Only a fraction of the State was actually independent, and the 
 leaders of the revolutionary movement, instinctively turned to the 
 Continental Congress for support. The first constitution of New 
 York shows upon its face that the initiative for State govern- 
 ment came from the Continental Congress.' 
 
 After receiving news of the resolution passed by the Con- 
 tinental Congress, the Third Provincial Congress of New York, 
 on May 31, 1776, recommended an election of deputies or dele- 
 gates to a new Provincial Congress. The deputies chosen in con- 
 
 2. American Commonwealths, New York, Ellis H. Roberts, 437. 
 
 3. The dates, given by McMaster, of the adoption of constitutions 
 are as follows : 1776, July 2, New Jersey ; July s, Virginia ; July 15, Penn- 
 sylvania; August 14, Maryland; September 10, Delaware; December 18, 
 North Carohna; 1777, February 5, Georgia; April 20, New York; 1778, 
 March 19, South Carolina; 1780, March 2, Massachusetts; 1783, October 
 31, New Hampshire. 
 
 23 
 
LEGAL AND JUDICIAL 
 
 formity with this resolution constituted the Fourth Provincial 
 Congress, which acted as the First Constitutional Convention. It 
 was not simply a convention to frame a constitution; it had 
 broader powers ; it was to "institute and establish" a new govern- 
 ment. It was both a convention and a legislature, and it acted in 
 both capacities, first, framing an organic law and afterwards ap- 
 pointing a Council of Safety, which it invested with all powers 
 necessary for the preservation of the State until the legislature 
 should meet. 
 
 The Fourth Provincial Congress, or First Constitutional Con- 
 vention, the calling of which so clearly shows that the initiative 
 for state government came from the Continental Congress, assem- 
 bled at White Plains, on July 9, 1776. The Declaration of Inde- 
 pendence absolving the colonies from allegiance to the mother 
 country had been promulgated only five days earlier, and the 
 reception of a copy of this notable instrument was almost the 
 first official act of the body that was to frame the first constitu- 
 tion of the State. All fourteen counties were represented by 
 delegates, of whom there were in all one hundred and seven.* 
 The business of the convention was transacted by about one-third 
 of its number, for the condition of the colony, the presence of 
 British troops in New York City, the royalist sympathy there, 
 and the checkered success of the cause of the revolutionists re- 
 quired various members of the convention from time to time to 
 suspend their work as delegates and leave the body. As is usual 
 in assemblages of such a nature, the duty of drafting fell upon a 
 small minority. It is commonly accepted that John Jay, Gouver- 
 neur Morris and Robert R. Livingston produced the draft that 
 was read to the convention by one of its secretaries, and ulti- 
 
 4. Their names are given in Lincoln's "Constitutional History of 
 New York," vol. I, 484-486. 
 
 24 
 
JAMES DUANE. 
 
 (1733-1797)- 
 
 Lawyer, Statesman and Jurist ; Delegate to Continental Con- 
 gress, 1775-84; Member of, Constitutional Convention of New 
 York, 1777; Meniber of Convention which framed United 
 States Constitution^ 1787; State Senator, 1782-85, 1788-89; Mayor 
 of New York, 1784-89; United States District Judge, 1789-94. 
 
James Duane 
 
HISTORY OF NEW YORK 
 
 mately adopted with comparatively few alterations and revisions. 
 All three were young men — Jay, the eldest, being thirty-one 
 years of age — and all were lawyers, and familiar with the institu- 
 tions of the colony. The era was pre-eminently an age of young 
 men, both in America and in Europe. Hamilton was but twenty- 
 three when he wrote to James Duane the celebrated letter out- 
 lining the weakness of the Congress of the Confederation; Fox 
 was not twenty-one when he first sat in the House of Commons; 
 and Pitt at twenty-six was Prime Minister of England. Napoleon 
 early entered upon that career which made him one of the most 
 vital forces in modern Europe, and he retired to St. Helena when 
 only forty-six. Clay and Calhoun, the leading spirits of the 
 second war with England, were in the twenties when the war 
 commenced, Clay having entered upon his congressional life be- 
 fore actually reaching his majority. 
 
 The chief authorship of the constitution of 1777 seems to 
 have belonged to Jay. That his views were not fully accepted, 
 that he believed it f avtlty and incomplete, and that he had proposed 
 to suggest new clauses, are clear from his own statements. Two 
 things seem conclusive : Jay drew the celebrated clause providing 
 for the council of appointment, while Robert R. Livingston was 
 the author of the original provision for a council of revision. 
 
 Of the debates in this convention there are no records. The 
 sources of information regarding it, apart from its journal and 
 occasional references to its work in the biographies of its lead- 
 ing members, are meagre indeed. But great work usually soon 
 rises from a personal to an impersonal plane, and interesting as 
 is the question of authorship, the language and effect of the 
 document far transcend this in importance. The constitution 
 was finally approved on Sunday, April 20, 1777, after having 
 been discussed from day to day. The vote for it was thirty-two 
 
 25 
 
LEGAL AND JUDICIAL 
 
 to one, the only delegate voting in the negative being Peter R. 
 Livingston, of Albany. The journal gives no reason for his 
 dissent. 
 
 It was the constitution of the minority of the convention, 
 though accepted as the work of all, for it was impracticable to 
 obtain the presence of a majority, as some were under arms, and 
 others serving upon important and sometimes secret missions 
 during the sessions of the convention. As its work was never 
 ratified by the people, the government of the new state was 
 launched by thirty-two men, all of whom were freeholders. 
 
 The first constitutional convention was what Judge Jame- 
 son calls a "revolutionary convention," inasmuch as it exercised 
 governmental powers. There was no prior vote of the people 
 authorizing the convention ; there was an election of delegates or 
 "deputies", but the election was not the consequence of a popular 
 vote for a convention. The difference in the method of initiating 
 this convention and the convention of 1821 will be apparent 
 when that convention comes to be studied. A constitutional con- 
 vention should originate in some legislative act giving voters op- 
 portunity to decide whether it shall be called, and, if their decision 
 be favorable, making provision for the election of delegates. 
 
 The first constitution opens with a brief summary of events 
 preceding the convention. It recites that the usurpations of the 
 king and parliament had reduced the people of the colonies to 
 the necessity of introducing governments by congresses and com- 
 mittees as temporary expedients ; that in view of the resolution of 
 the Continental Congress recommending the colonies to organize 
 new governments, the congress of the colony of New York (the 
 Third Provincial Congress) had recommended to electors in the 
 several counties either to authorize their existing deputies or 
 others in their stead to institute and establish such a government 
 
 26 
 
HISTORY OF NEW YORK 
 
 as they should deem best calculated to secure the rights, liberties 
 and happiness of the good people of the colony, and to continue 
 in force until a future peace with Great Britain should render 
 the same unnecessary; that elections had accordingly been held 
 and new deputies been charged with the duty of instituting and 
 establishing the new government; that the delegates of the United 
 States in the Second Continental Congress had on July 4, 1776, 
 published the Declaration of Independence; that the reasons as- 
 signed by the Continental Congress for declaring the United 
 Colonies free and independent States were cogent and conclusive, 
 and were approved by the convention whose members would at 
 the risk of life and fortune join with the inhabitants of other col- 
 onies in supporting it ; and the constitution then proceeded in the 
 name and by the authority of the good people of the state to 
 "ordain, determine and declare that no authority should on any 
 pretence whatever be exercised over the people or members of 
 this State but such as should be derived from and granted by 
 them." This democratic platform is not fully borne out in the 
 constitution itself. It was "the declaration, rather than the real- 
 ization, of complete supremacy."^ 
 
 The assembly was to consist of seventy members elected 
 annually in the several counties of the State, in proportions fixed 
 by the constitution. To be eligible to vote for an assemblyman, 
 it was necessary that the citizen offering his vote should have 
 resided in the county six months immediately preceding election 
 day, and also that he should be either a freeholder possessing a 
 freehold of the value of twenty pounds within the county of his 
 residence, or the lessee of a tenement therein of the yearly value 
 of forty shillings. Any elector qualified to vote for an assembly- 
 
 5. Robert Ludlow Fowler, "Memorial History of the City of New 
 York," vol. II, p. 614. 
 
 27 
 
LEGAL AND JUDICIAL 
 
 man was eligible to the office. Freemen in the cities of Albany 
 and New York having had the right to vote for assemblymen ever 
 since 1691 were not disfranchised. But no one might enjoy the 
 elective franchise until he had taken an oath or affirmation of 
 allegiance to the State. 
 
 The senate was to consist of twenty-four freeholders chosen 
 by freeholders alone ; and only such were entitled to vote as were 
 possessed of freeholds of the value of one hundred pounds over 
 all debts charged thereon. Of the first senators elected, six were 
 to be chosen by lot to hold office one year, and a like number were 
 similarly chosen for two, three, and four years, so that one-fourth 
 of the senate should retire every year and their successors be 
 annually chosen. For the election of senators, the State was 
 divided into four great districts — the southern, the middle, the 
 western and the eastern, and the constitution assigned to each 
 district its proportion of senators. The assembly were to "choose 
 their own speaker, and enjoy the same privileges and proceed in 
 doing business in like manner as the assemblies of the colony of 
 New York formerly did". A majority of either house was to 
 constitute a quorum, and each house was made the judge of the 
 qualifications of its members. The senate was restricted to a 
 maximum of one hundred senators, and the assembly to a maxi- 
 mum of three hundred members. Provision was made for the 
 taking of a census at the close of the war and at successive inter- 
 vals of seven years afterwards, for the purpose of apportioning 
 representation in the senate and the assembly, according to the 
 changing distribution of population throughout the State. 
 
 The supreme executive power and authority of the State 
 was vested in a governor, who was required to be "a wise and 
 discreet freeholder". He was to be chosen every three years 
 (reduced to two years by the constitution of 182 1), or as often as 
 
 28 
 
HISTORY OF NEW YORK 
 
 the seat of government should become vacant, by freeholders 
 qualified to elect senators, and the election was to be held at the 
 same time as the election of assemblymen. By virtue of his office 
 he was general and commander-in-chief of the militia and admiral 
 of the navy; he might convene the legislature on extraordinary 
 occasions, and prorogue it from time to time for not more than 
 sixty days in any year. In these respects his functions bore a 
 close resemblance to those of governors under the crown. Im- 
 pelled by the fear of executive despotism so characteristic of that 
 age, the framers of the constitution took the veto power from the 
 governor, and, upon the suggestion of Robert R. Livingston, 
 adopted an article framed by him, creating a council of revision. 
 The article as modified by the convention, read as follows : 
 
 Article III : And whereas laws inconsistent with the spirit of this 
 constitution or with the public good may be' hastily and unadvisedly 
 passed : Be it Ordained, That the Governor, for the time being, the Chan- 
 cellor and the Judges of the Supreme Court, or any two of them, together 
 with the Governor, shall be, and hereby are, constituted a council to re- 
 vise all bills about to be passed into laws by the Legislature. And for 
 that purpose shall assemble themselves, from time to time, when the Leg- 
 islature shall be convened; for which nevertheless they shall not receive 
 any salary or consideration under any pretence whatever. And that all 
 bills which have passed the Senate and Assembly, shall, before they be- 
 come laws, be presented to the said Council for their revisal and con- 
 sideration: and if upon such revision and consideration, it should appear 
 improper to the said council or a majority of them, that the said bill 
 should become a law of this State, that they return the same, together 
 with their objections thereto in writing, to the Senate or House of As- 
 sembly, in whichsoever the same shall have originated, who shall enter 
 the objections sent down by the council, at large, in their minutes, and 
 proceed to reconsider the said bill. But if after such reconsideration, 
 two-thirds of the said Senate or House of Assembly, shall, notwithstand- 
 ing the said objections, agree to pass the same, it shall, together with the 
 objections, be sent to the other branch of the legislature, where it shall 
 also be reconsidered, and if approved by two-thirds of the members pres- 
 ent, shall be a law. 
 
 And in order to prevent any unnecessary delays, 
 
 29 
 
LEGAL AND JUDICIAL 
 
 Be it further ordained, That if any bill shall not be returned by the 
 council, within ten days after it shall have been presented, the same shall 
 be a law, unless the Legislature shall, by their adjournment, render a 
 return of the said bill within ten days impracticable; in which case, the 
 bill shall be returned on the first day of the meeting of the Legislature 
 after the expiration of the said ten days. 
 
 The exercise of the veto power was apparently not restricted 
 to questions of constitutionality. History shows, as Justice Piatt 
 stated in the convention of 1821, that the first bill passed by the 
 senate and assembly under the constitution of 1777 was rejected 
 by the council of revision on the ground of inexpediency alone. 
 
 The council of appointment consisted of the governor and 
 four senators, one senator from each of the senatorial districts, 
 to be openly nominated and appointed by the assembly every 
 year. Senators were not eligible to the council for two years 
 successively. A majority of the body constituted a quorum. The 
 governor had no vote, but in the event of a tie, had "a casting 
 voice." The intention of Jay, the originator of the council of 
 appointment, doubtless was that the governor alone should nom- 
 inate, but his language is obscure. The controversy in which this 
 obscurity involved the State was finally settled by the constitu- 
 tional convention of i8or. The whole power of appointment 
 was with few exceptions lodged by this article in the governor 
 and four senators, a majority of the five enjoying the real ap- 
 pointing power. An almost equally despotic power of removal 
 was placed in the same hands. It is difficult to-day to realize the 
 extent of power vested in the council. Few offices were elective 
 under the first constitution ; electors of certain qualifications voted 
 for assemblymen; a more restricted number voted for senators 
 and governor; and a few ancient local officers were "eligible by 
 the people". Incumbents of all other offices, civil and military, 
 including a large part of the judiciary, sheriffs, clerks, coroners, 
 
 30 
 
HISTORY OF NEW YORK 
 
 mayors and recorders were seated or deposed by vote of the 
 council of appointment. Almost all of its appointees save the 
 chancellor and the judges of the upper courts held their positions 
 during its pleasure. 
 
 The judiciary system was very different from that which 
 has been familiar for the last sixty years. The constitution re- 
 tained the colonial supreme court and county courts, and insti- 
 tuted "a court for the trial of impeachments and the correction of 
 errors." This court was to consist of the president of the senate, 
 the senators, the chancellor and judges of the supreme court, or a 
 majority of them, — a strange blending of legislative and judicial 
 officers in the highest judicial tribunal.^ In the event of an appeal 
 from the decision of the chancellor, he was required to inform 
 the court "of the reasons of his decree," but had no voice in its 
 final determination. When the decisions of the judges of the 
 supreme court were under review they, in turn, had to "assign 
 the reasons of such their judgment," and were deprived of a vote 
 for affirmance or reversal. The constitution provided that the 
 chancellor, the judges of the supreme court and the first judge 
 of the county court in every county, should hold their offices 
 during good behavior or until the age of sixty years. This early 
 age limit forced Chancellor Kent from the bench at sixty al- 
 though, like Sophocles, he wrote his greatest work at a more ad- 
 vanced age. The chancellor and judges were forbidden to hold 
 any other office except that of delegate to the General Congress, 
 "upon special occasions." 
 
 6. By the constitution of 1846 the tribunal for the trials of impeach- 
 ments was separated from the court for the correction of errors, and 
 ever since that time the impeachment court has consisted of the presi- 
 dent of the senate, the senators, and judges of the highest court, formerly 
 the chancellor and Supreme Court judges, now the judges of the Court of 
 Appeals. Under the United States constitution and the constitutions of 
 most of the States, judges have tio part in impeachments except as pre- 
 siding officers. 
 
 31 
 
LEGAL AND JUDICIAL 
 
 Provision was made for a lieutenant-governor who was to be 
 president of the senate and to succeed to the governor's office in 
 case of the latter's impeachment, death, resignation or absence 
 from the State. A state treasurer was to be appointed by act of 
 the legislature originating in the assembly, no member of either 
 house being eligible to the office. Town clerks, supervisors, as- 
 sessors, constables, collectors and other local officers theretofore 
 "eligible by the people" as the phrase ran, were to continue to be 
 elected by popular vote, but in the manner directed by act of the 
 legislature. The power of impeaching all officers of the State for 
 mal and corrupt conduct was vested in the assembly. Trial by 
 jury was preserved, and a state militia provided for. An unsuc- 
 cessful attempt was made by Morris to secure a clause recom- 
 mending the early abolition of negro slavery by the legislature. 
 
 The constitution declared the common law of England, the 
 statute law of England and Great Britain, and the acts of the 
 legislature of the colony of New York in force- on April 20, 1777, 
 to be the law of the State. Grants of land within the common- 
 wealth by the King of Great Britain after October 14, 1775, 
 were to be void ; and no purchase of lands of Indians made after 
 October 14, 1775, was to be valid unless sanctioned by the legisla- 
 ture. The legislature was given authority to naturalize persons 
 who should abjure and renounce foreign allegiance. The consti- 
 tution assured to every one the free exercise of religion. It con- 
 tained a peculiar clause, which was continued in the constitution 
 of 1822, but abandoned in 1847, providing that as ministers of the 
 gospel and priests were "dedicated to the service of God and the 
 cure of souls, and ought not to be diverted from the great duties 
 of their function," no minister of the gospel nor priest of any 
 denomination should be eligible to any civil or military office in 
 the State. 
 
 32 
 
HISTORY OF NEPV YORK 
 
 The famous Thirty-ninth Article of Magna Charta was em- 
 bodied in the first organic law in the words : "No member of this 
 State shall be disfranchised or deprived of any rights or privi- 
 leges secured to subjects of this state by this constitution, unless 
 by the law of the land or the judgment of his peers". 
 
 The framers of the constitution undoubtedly benefited by 
 their colonial experience. Many of its provisions trace their 
 lineage to the colonial government. The judicial system and 
 county and town government remained as they had existed under 
 the crown. Complete separation of the legislative, executive and 
 judicial departments was not effected, and this failure was one 
 of the things most criticised, as it was one of the defects remedied, 
 in the convention of 1821. In many respects the framers of the 
 constitution had to venture into new fields without precedents to 
 guide them. Much was to be learned from sister States and the 
 Federal government in the course of a few years. Both the 
 council of revision and the council of appointment exercised 
 potent and sinister influence in the subsequent history of the 
 State, and the desire to escape from their tyranny was a leading 
 motive for the convention of 1821. As the senate consisted 
 exclusively of freeholders, as the governor was to be a "wise and 
 discreet freeholder", as the council of appointment necessarily 
 consisted of land owners, as the land owners controlled the ju- 
 diciary and the final court of appeal — the senate — government 
 was wholly in the control of landed proprietors. 
 
 Through the council of revision, the judiciary operated as 
 a further check in the land owners' interest. The struggle for a 
 freer government which culminated in the constitution of 1822 
 found its chief obstacle in the council of revision. Popular rule 
 in the modern sense was in fact unknown in any of the colonies, 
 and was equally unknown in Great Britain. A partial removal 
 
 33 
 
LEGAL AND JUDICIAL 
 
 of restrictions upon the suffrage was not made in the latter coun- 
 try until 1832. 
 
 The convention, by an ordinance adopted May 8, 1777, ap- 
 pointed a Council of Safety, investing it with all powers necessary 
 for the preservation of the State until a meeting of the legisla- 
 ture. Inasmuch as the council of appointment could not be ap- 
 pointed until the legislature had convened, and as there was urgent 
 need for the execution of the laws, "the distribution of justice" 
 and the holding of elections, it appointed Robert R. Livingston 
 chancellor, John Jay chief justice, Robert Yates and 
 John Sloss Hobart puisne justices of the Supreme Court of the 
 State, and Egbert Benson attorney general. It appointed also 
 sheriffs, county clerks and county judges in various counties. 
 Elections were held and the returns canvassed by the Council of 
 Safety, and George Clinton became the first governor of the 
 State. 
 
 "The simple brevity, the "unsuspecting simplicity' of the first 
 constitution, is in striking contrast to the prolixity of some mod- 
 ern constitutions, which evince a misapprehension of the real 
 purpose of a written constitution, namely, to state principles of 
 government in general terms, and not with the fluctuating detail 
 necessarily incident to statutes intended to meet shifting condi- 
 tions of society or administration. Under this constitution, de- 
 spite its limitations, the State had a remarkable development. 
 It witnessed the growth and enlargement of our unsurpassed 
 system of jurisprudence, moulded by the genius of Kent, with the 
 aid of his associates in the judiciary. Under it were established 
 the university and the common schools; and colleges, academies 
 and libraries were nourished and encouraged. The care of the 
 poor and other unfortunates was provided for by a system of 
 administration which in its essential features has continued to 
 
 34 
 
HISTORY OF NEW YORK 
 
 this day. A system of taxation was established, the statute law 
 was frequently revised, counties, cities, towns and villages were 
 created, internal administration adequate for the needs of the 
 time was provided for the different branches of state and local 
 government; and under this constitution was begun the develop- 
 ment of a plan for the construction of the great canals which have 
 since occupied such a large place in public affairs".' 
 
 The first assembly elected a council of appointment, and 
 this council appointed Livingston to the chancellorship and made 
 Jay chief justice, and Yates and Hobart associate justices, thus 
 validating the appointments made by the convention. The legis- 
 lature at a subsequent session, instead of meeting as a legislative 
 body, assembled as a convention, and organized a new Council of 
 Safety to act whenever the convention was not in session, with 
 all the powers and authorities of the former Council of Safety, — 
 the excuse being that owing to the state of the times a quorum of 
 the legislature could not be convened. As Congress at the out- 
 break of the Civil War validated acts of the President of doubt- 
 ful authority, so the' proceedings of this Council of Safety were 
 ratified by the legislature of 1778. The colonial legislature hav- 
 ing been dissolved early in 1775, no legislature existed until 1777, 
 and no laws were passed at the session of that year. In fact, no 
 legislation took place in the colony for several years. The gov- 
 ernment from the outbreak of the Revolution in April, 1775, until 
 February 6, 1778, when the first State statute was passed, was 
 vested in provincial congresses and Councils of Safety. 
 
 One of the first acts of the new State legislature was its ap- 
 proval of the Articles of Confederation. The significance of this 
 has only within recent years come to be understood. On June 11, 
 
 7. Lincoln's "Constitutional History of New York," vol. I, pp. 594, 
 59S- 
 
 35 
 
LEGAL AND JUDICIAL 
 
 1776, Congress, one month after it had recommended the forma- 
 tion by the various colonies of independent State governments, 
 resolved that a committee should be appointed to prepare and 
 digest a form of a confederation to be entered into among the 
 colonies. The committee was appointed on the following day. 
 It made its report, which was debated until November 15, 1777, 
 when the articles were agreed to by Congress, which at the same 
 time directed that they should be proposed to the legislatures of 
 the several States "to be considered, and, if approved of by them, 
 they were advised to authorize their delegates to ratify the same 
 in the Congress of the United States; which being done, the 
 same should become conclusive." 
 
 The legislature of New York accordingly, on February 6, 
 1778, instructed her delegates to sign, and the articles were 
 signed on behalf of the State on August 8, 1778, by James Duane, 
 Francis Lewis, William Duer, and Gouverneur Morris, her rep- 
 resentatives in the Congress. Similar action was taken by the leg- 
 islatures of the other States. The action of the State legislatures 
 was extra-legal, as it was never authorized by the people of the 
 several States. In no State had a legislature been elected for the 
 purpose of acceding to the articles, nor had the question of their 
 acceptance been submitted for popular approval. It was a time 
 of revolutionary government, and none of the State constitutions 
 was ratified by the people. Of the failure of the citizens of the 
 State or of the Union to ratify the Articles of Confederation, it 
 has been said : "It was the part of the people and not of the State 
 legislatures to establish the new government ; and had the people 
 framed these articles, the act, however unwise, would have been 
 perfectly legal. * * * The whole system must, therefore, be 
 considered in our political history, as a period of interregnum 
 covering the time between the downfall of royal authority under 
 
 36 
 
HISTORY OF NEW YORK 
 
 the British constitution in 1773-1780, and the final establishment 
 of the popular will in its place in 1789 under the American Con- 
 stitution." Like the Amphictyonic Council and the European 
 confederacies, with which the statesmen of the Revolutionary era 
 were so familiar, the new confederation was a mere league of 
 States, to which the people had never been asked to agree. The 
 confederation was a rope of sand, but a genuine union entered 
 into by the people of the various States followed in 1787.' 
 
 Most of the thirteen States promptly accepted the Articles 
 of Confederation. A few held out for several years, Maryland 
 being the most obstinate, for her ratification of the articles was 
 not had until March i, 1781. Her reluctance was grounded mainly 
 upon her unwillingness to sacrifice her claims to western territory. 
 On December 15, 1778, she had notified her delegates not to agree 
 to the confederation until these claims had been settled upon an 
 equitable basis. Finding later that her persistence in her objec- 
 tions was imperilling the cause of union, she notified her repre- 
 sentatives to ratify the articles. New York, to her credit, set an 
 example of generosity worthy of emulation by the other States. 
 She was the first to surrender all claim of title to public lands in 
 the west. Had her claims been maintained, her boundaries would 
 have extended to the peninsula of Michigan and the mouth of 
 the Ohio. Actuated by the desire of effectuating an alliance 
 among the States under the articles, she generously ceded a vast 
 domain, notwithstanding the fact that a committee appointed by 
 the Congress of the Confederation had reported in favor of her 
 
 8. "It is, Sir, the people's Constitution, the people's government, 
 made for the people, made by the people, and answerable to the people. 
 * * * We are all agents of the same supreme power, the people. The 
 general government and the state governments derive their authority from 
 the same source." Webster, The Reply to Hayne. See also Webster, 
 "The Constitution not a Compact Between Sovereign States," in Reply to 
 Calhoun. These are the two foremost of Webster's great constitutional 
 expositions. 
 
 37 
 
LEGAL AND JUDICIAL 
 
 title. Virginia in 1784, Massachusetts in 1785, and Connecticut 
 in 1786, followed New York's example; Connecticut, however, 
 retained as the foundation for her school fund a small tract which 
 subsequently became known as the Western Reserve ; and out of 
 these ceded lands was formed the North West Territory.' 
 
 New York also suffered a loss of territory on her northeast- 
 ern border, but it was land to which she really never had pre- 
 tensions that should have been sustained. In 1749 a dispute arose 
 between New Hampshire and New York regarding certain lands 
 between the Connecticut river and Lake Champlain which con- 
 stituted the New Hampshire Grants. The Province of New York 
 never acknowledged New Hampshire's title, and in 1764, after a 
 royal decision in its favor, New York began actions to oust from 
 this territory the settlers who refused to pay anew to her. The 
 grantees stoutly resisted, and Governor Golden was obliged to call 
 out the militia to restore order. The New Hampshire Grants 
 called a convention at Bennington to decide upon a policy for the 
 maintenance of their rights. At the beginning of the Revolution 
 the people of the New Hampshire Grants had no regular form of 
 government, for they had repudiated the arbitrary rule of New 
 York. In July, 1776, a convention met at Dorset to consider the 
 formation of an independent State, and at the same time to assert 
 the sympathy of the people with the cause of the colonies against 
 Great Britain. This convention initiated the movement which led 
 to the severance of the people from New York. The counties of 
 
 9. In addition to the land disputes, the existence of which made a 
 nation impossible, there were other controversies between the States dur- 
 ing the period of confederation, and it was fortunate for the future of 
 the country that the attempt to form a nation was preceded by a loose 
 organization of the States sufficiently close to induce them to discuss and 
 settle their differences. The act of New York in giving up her claim to 
 western lands was an act of national importance in that it led to the ad- 
 justment of controversies which kept the people from erecting a truly 
 national government. 
 
 38 
 
HISTORY OF NEW YORK 
 
 Gloucester and Cumberland, which lay in this district, were repre- 
 sented in the New York Constitutional Convention of 1777, al- 
 though on January isth of that year the New Hampshire Grants 
 had issued a formal declaration of their independence of New 
 York, and had organized a new State called New Connecticut. 
 At a subsequent convention held in June of the same year, the 
 name was changed to Vermont. The new State sought to enter 
 the confederation, but New York had sufficient influence to keep 
 it out. Vermont entered the Union on March 4, 1791.^° 
 
 Vermont had forbidden negro slavery by her organic law. 
 Jay had unsuccessfully sought to insert in the New York consti- 
 tution a prohibition upon negro servitude. Rufus King, in the 
 House of Representatives in 1785, had offered a proposition to 
 exclude slavery from the North West Territory. One of the 
 earliest champions of the causes of abolition was Aaron Burr. 
 According to his biographer, Matthew L. Davis, a bill was intro- 
 duced in the legislature on February 14, 1785, for the gradual 
 abolition of slavery within the State of New York, which pro- 
 vided that all negroes born after its passage should be born free. 
 Burr, it seems, moved to amend, and proposed to insert a pro- 
 vision that slavery should be entirely abolished after a day speci- 
 fied, but his amendment was lost. 
 
 As of special interest to lawyers, it may be observed that as 
 early as March 5, 1778, the legislature had required an oath of 
 allegiance to the new government to be taken by all office holders, 
 including all officers of courts. By the terms of a law enacted 
 October 9, 1779, all attorneys, solicitors and counselors at law 
 
 10. The constitution of Vermont, originally adopted in 1777, but 
 slightly altered in 1785, was far more democratic than that of New York, 
 as it accorded the right of suffrage to every man of twenty-one years of 
 age, of quiet and peaceable behavior, and a resident in the State for one 
 year preceding the election. 
 
 39 
 
LEGAL AND JUDICIAL 
 
 were summoned to produce "certificates of their attachment to 
 the Liberties and Independence of America," under penalty of 
 suspension from practice; and on November 20, 1781, near the 
 close of the war, a law was passed providing for the administra- 
 tion of a test oath, and forbidding all members of the profession 
 who refused to take it from pursuing their vocation. These 
 stringent measures, which must undoubtedly have benefited law- 
 yers able to prove their loyalty to the cause of the revolutionists, 
 remained in force until April 4, 1786, when all disabilities upon 
 Tory practitioners were removed. Yet for a number of years the 
 favored members of the profession were able to enjoy its emolu- 
 ments with little fear of competition. 
 
 While the Articles of Confederation were ratified by the 
 several states without popular consent, far different was the 
 method pursued when the Constitution of the United States 
 went into effect. Conventions were called in the different States 
 to pass upon the question of its ratification. In the State of New 
 York delegates were elected by the people and assembled in the 
 convention at Poughkeepsie on June 17, 1788. To counteract the 
 opposition to ratification of the anti-Federalists under Governor 
 George Clinton's leadership required all Hamilton's genius, 
 skill and energy. The convention was so closely divided that 
 ratification was obtained by the narrow margin of three votes. 
 When the convention reached this decision the new union was 
 an established fact, for ten States had already approved of the 
 constitution and ratification by nine only was needed to carry 
 the new government out of the realm of theory into that of fact. 
 New York therefore had to decide whether to enter the union or 
 remain outside of it. 
 
 The anti-Federalists had at first proposed a conditional rati- 
 fication, their terms being the incorporation in the new constitu- 
 
 40 
 
HISTORY OF NEW YORK 
 
 tion of a series of amendments constituting a Bill of Rights. 
 When it became evident that the new government would be a 
 success even without New York, the delegates decided to vote 
 for ratification and to change their conditional acceptance into 
 expression of a hope that their suggestions would be adopted. 
 Two of the proposals which emanated from New York were 
 never accepted. The first ten amendments embody suggestions 
 from several of the States, and upon the resolution of the first 
 Congress (September 25, 1789), these were submitted to the 
 members of the union and were ratified by a sufficient number 
 of States on or before December 15, 1791. New York, which 
 was the eleventh state in order to enter the union, was the eighth 
 in order to ratify the ten amendments. 
 
 The Colonial Laws of New York which, according to the 
 constitution of 1777, were made an integral part of the common 
 law of the State, acquired new importance and underwent various 
 revisions. The earliest statutes of the State were revised and 
 collected by direction of the legislature, and were published in 
 1789 by the revisers, Samuel Jones and Richard Varick. A new re- 
 vision was undertaken in 1801 by Justice James Kent and Justice 
 Jacob Radcliiif. In 18 13 a revision was made by William P. Van 
 Ness and John Woodworth, known as the Revision of 1813. This 
 revision, which is in two volumes, contains certain important 
 Ordinances of the Governor and Council of the Colony, including 
 the Charter of Liberties and Privileges of October 30, 1683, and 
 also the Articles of Capitulation signed by Nicolls on behalf of 
 the Duke of York upon the surrender of the colony to England. 
 None of these revisions appears to have been complete. 
 
 Shortly after peace with Great Britain, the State of New 
 York created a comprehensive plan for the education of its 
 people. In 1784, Governor Clinton had invited the attention of 
 
 41 
 
LEGAL AND JUDICIAL 
 
 the legislature to this subject, and the legislature, in response, 
 established a board of regents for the University of New York, 
 and changed the name of King's College to Columbia, which by 
 this act was also erected into a university. The members of the 
 board of regents were patrons of learning, and they, in turn, per- 
 sistently advocated the organization of a common school system. 
 In 1789 the State took the first real step toward the establishment 
 of education upon a substantial foundation. The legislation of 
 that year was followed, in 1795, by an act appropriating annually 
 for five years, out of the public revenues of the State, the sum of 
 fifty thousand dollars, to encourage and maintain common schools 
 in the several cities and towns of the State, and requiring super- 
 visors to raise by tax in each town a sum equal to one-half of its 
 proportion of the moneys appropriated by the State. Commission- 
 ers and trustees were directed to be appointed, and were required 
 to make annual reports to the secretary of state. This legislation 
 expiring in 1800, Governor Morgan Lewis again brought up the 
 subject in his message to the legislature of 1805. A law was 
 thereupon enacted by which the proceeds of 500,000 acres of pub- 
 lic land were to be erected into a fund to be accumulated until its 
 annual income should attain the sum of fifty thousand dollars, 
 when the income was to be applied to the support of the schools. 
 This fund was enlarged by various appropriations, until in 1819 
 it had reached the sum of $1,200,000. In June, 1812, the legisla- 
 ture provided for the election in town meetings by the citizens of 
 each town, of three commissioners of education to manage the 
 concerns of the schools within the town, and six persons, who, 
 together with the commissioners, should be inspectors of schools, 
 the functions of the inspectors being to examine teachers, visit 
 the schools and advise the trustees. The school commissioners 
 
 were authorized to divide their towns into school districts, and 
 
 42 
 
HISTORY OF NEW YORK 
 
 the people of the districts were authorized to elect trustees. This 
 ancient system is still in force throughout the rural portions of 
 the State. By the constitution of 1822, the common school fund 
 was rendered inviolable and directed to be devoted in perpetuity 
 to the advancement of common schools. By degrees the pro- 
 ductive capital of the fund was augmented, so that by the year 
 1842 it amounted to $1,968,000. 
 
 Except as modified in 1801, the constitution of 1777 re- 
 mained in force for upwards of forty-four years. The common- 
 wealth grew and prospered in this interval to an unexampled and 
 unexpected extent. The defects in the constitution were the 
 creation of the council of appointment and of the council of re- 
 vision. Its oligarchic form of government was unsuited to a more 
 democratic period. The circumstances which led to the conven- 
 tion of 1821 will form the subject of the next two chapters. 
 
 4.3 
 
CHAPTER III 
 
 THE COUNCIL OF APPOINTMENT HAMILTON'S VIEW OF GREAT 
 
 BODY OF OFFICE-HOLDERS, ITS APPOINTEES STAR-CHAMBER 
 
 POWER FEDERALIST PARTY FIRST TO ABUSE THE POWER — 
 
 CONTROVERSY BETWEEN GOVERNOR CLINTON AND COUNCIL IN 
 1794 — CONTROVERSY BETWEEN GOVERNOR JAY AND COUNCIL 
 IN 1800 CONSTITUTIONAL CONVENTION OF 180I ITS CON- 
 STRUCTION OF ARTICLE XXIII EFFECTS RISE OF DE WITT 
 
 CLINTON TO POWER — ^ABUSES OF THE PATRONAGE SYSTEM — 
 
 HAMMOND AND THE COUNCIL GENERAL DESIRE IN I82O FOR 
 
 ITS ABOLITION. 
 
 The organization of the council of appointment was, ac- 
 cording to Hammond, one of the two anomalies in the constitu- 
 tion of 1777, the other being the institution of the council of 
 revision.^ ^ Until the rise of distinct political parties after the 
 
 1. In an elaborate monograph entitled "DeWitt Clinton and the 
 Origin of the Spoils System in New York," Columbia University Press, 
 1907, Mr. Howard Lee McBain, Ph.D., has undertaken a defense of Clin- 
 ton's policy in the distribution of offices in New York in 1801. Mr. Mc 
 Bain has made a critical and searching examination of the manuscript 
 minutes of the council of appointment up to 1801, and his essay, which 
 is a valuable contribution to the literature bearing upon the council, is 
 based upon a study of these documents. 
 
 2. In an article entitled "The Council of Appointment in New York", 
 7 P. S. p., 80, Professor J. M. Gitterman maintains that the contests of 
 the provincial period turned largely upon the question of the appointing 
 power. Since the royal officials were to be paid from the proceeds of the 
 provincial taxes, the New York assembly accordingly strove to gain the 
 right of nominating .all those officials whom the province had to support, 
 i. e., all except the royal governor. The people came to regard appoint- 
 ment and taxation as correlative functions of government and aimed at 
 the control of both. They desired to secure the appointing power, and 
 as a first step they demanded the right of voting and apportioning the 
 taxes and supplies. After the English revolution of 1688, freeholders of 
 
 44 
 
HISTORY OF NEW YORK 
 
 ratification of the Federal constitution, the council of appoint- 
 ment seems to have exercised its prerogatives without arousing 
 much public censure, although there are intimations from the 
 pen of Hamilton in The Federalist that its action in the earliest 
 days was subject to just criticism. During the deliberations of 
 the Federal convention of 1787, the plan of a council of ap- 
 pointment was urged upon that body, which wisely decided to 
 give exclusive power of appointment to the president, subject to 
 confirmation by the senate. Hamilton, in one of his papers in The 
 Federalist,^ in contrasting the superiority of the method of ap- 
 pointments proposed in the Federal constitution over that of 
 New York, analyzed with keenness the defects of the State sys- 
 tem, which had then been in existence for a decade. After advert- 
 ing to the fact that the blame of a bad nomination would fall upon 
 the president alone, and the censure of rejecting a good one would 
 lie with the senate, and that both the executive, for nominating, 
 and the senate, for approving a bad nomination, would incur in 
 different degrees opprobrium and disgrace, Hamilton declared that 
 the reverse characterized the manner of appointments in New 
 York. The council was a "small body, shut up in a private 
 
 the province obtained a representative assembly. The appointing power 
 was left with the governor, who was responsible only to the crown. But 
 the granting of the taxes from which the salaries and other governmental 
 expenses were to be paid was in the power of the assembly; and this 
 body constantly refused to grant supplies till its grievances were redressed. 
 The governor, treated with more or less indifference by the home au- 
 thorities, had to contend with the hostility of the French and the never- 
 ending alarms aroused by the Indian confederations. By the time that 
 George III. ascended the throne, a conflict of nearly a century had 
 wrested the power of appointment from the executive and had given it to 
 the assembly. Those contests were fresh in the minds of the members of 
 the convention, and had created a strong prejudice against one-man pow- 
 er, as is evidenced by the decision which was reached as regards the 
 treasurer. It was determined that this officer should be elected by the 
 assembly and senate, independently of the governor. The same distrust 
 of the governor underlies all the plans proposed for the bestowal of the 
 State patronage. 
 
 3. No. Ixxvii; see also Ixix and Ixx. 
 
 45 
 
LEGAL AND JUDICIAL 
 
 apartment, impenetrable to the public eye". The governor 
 "claimed the right of nomination upon the strength of some am- 
 biguous expressions in the constitution," but it could not be pub- 
 licly known whether his claim was admitted or opposed, for the 
 proceedings were secret. An unbounded field for cabal and in- 
 trigue lay open, and all idea of responsibility was lost. Every 
 council, however constituted, was a conclave in which sinister 
 influences would have full swing. These evils would not be reme- 
 died by a frequent change in its personnel, for this would involve 
 the mischiefs of a mutable administration in their full extent. 
 Such a council would also be more liable to executive influence 
 than the senate, because smaller in number and less immediately 
 under public inspection. 
 
 As few offices were elective, the vast body of Office-holders 
 were appointees of the council. Of this comparatively great 
 number, almost none, with the exception of the chancellor, the 
 justices of the Supreme Court, and the first judge of each county 
 court, enjoyed immunity from removal during good behavior. 
 The commissions of the county judges ran for only three years, 
 and unless these were renewed, partisanship found its opportuni- 
 ties in the council. With the election of every new assembly, 
 especially after a change of party, every existing council was 
 liable to deposition, and the business of its successor was the dis- 
 tribution of the entire patronage of the State among political 
 friends and retainers. Security of tenure during efficient admin- 
 istration was probably the principle upon which Governor George 
 Clinton and his successor Governor Jay acted, as a rule. The 
 same precept was enunciated by Washington and by Jefferson in 
 respect to Federal appointments and removals. But as party an- 
 tagonisms increased in intensity and violence, the entire list of 
 civil and military appointments in the State became the 
 
 46 
 
HISTORY OF NEW YORK 
 
 instrument for rewarding political loyalty. By degrees the 
 ambition of political leaders and the cupidity of their fol- 
 lowers evolved the notion that no office not immune 
 from change by constitutional fiat could be held by an 
 incumbent beyond the year. The prerogative of appoint- 
 ment thus construed was too vast to be conceded to the gov- 
 ernor without a struggle; hence the origin of the antagonistic 
 claim of four senators to appoint; and hence, also, the construc- 
 tion finally placed upon Article XXIII of the constitution by the 
 convention which assembled in 1801. 
 
 It was the star chamber power of the council of appoint- 
 ment that has rendered the politics of this State unfathomable 
 to citizens of other commonwealths. The system accounts for the 
 rise to important station of men of mediocre abilities, and the 
 singular absence from political office of men of commanding 
 talents. New York has produced many statesmen of more than 
 average faculty, yet few intellects of the highest political order. 
 Even her most conspicuous political figures have had their vision 
 narrowed by thoughts of patronage. Hamilton, who was not 
 native born, is really the only political genius in the whole history 
 of the State. 
 
 By the irony of fate, the Federal party, which installed the 
 truer system of appointments in the national constitution, was 
 the party which first prostituted the State appointive system. It 
 was while Governor Clinton was serving his seventh term that the 
 earliest open breach between the governor and the council oc- 
 curred, and it arose over an appointment to the Supreme Court. 
 The council of 1777. had appointed three judges; later the ap- 
 pointment of a fourth judge was voted ; the place was offered to 
 Aaron Burr, who refused to accept it, and Morgan Lewis was 
 
 47 
 
LEGAL AND JUDICIAL 
 
 appointed in his stead.* In 1793 the question of creating a fifth 
 place upon that bench began to be publicly discussed. The ardent 
 wish of the New York Federalists was to see Egbert Benson, a 
 lawyer of distinction and a scholar of no inconsiderable attain- 
 ments, seated in that tribunal. Clinton and the members of the 
 council not being in accord as to the person to be preferred to 
 the office, an opportunity successfully to urge their candidate 
 came to the Federalists in 1794, when their party secured ascend- 
 ency in the new assembly and returned Federal senators from the 
 southern, eastern and western districts. Josiah Ogden Hoffman, 
 an assemblyman from New York, delivering a "violent philippic 
 against the existing council" for its failure to appoint a fifth 
 judge, moved that the house proceed to choose a council of ap- 
 pointment. He was warmly supported by Ambrose Spencer, then 
 a member of the Federalist party, but the motion was strenuously 
 resisted on the ground that the existing council had not been in 
 office an entire year, and that a new council could not be elected 
 before the close of its term. It seems, according to the minutes 
 of the council of 1793 that, while the appointment of a fifth 
 judge was under consideration, differences of opinion had devel- 
 oped as to whether an additional judge was needed. Hoffman's 
 motion was promptly carried, and General Philip Schuyler, Hitch- 
 cock, Strong and Hopkins were elected members of the incoming 
 council, the first three pronounced Federalists. Schuyler was 
 
 4. "The real work of the council began in 1778. At first, its powers, 
 were exercised in a very conservative spirit. During the continuance of 
 the struggle with England it was, of course, necessary to restrict the of- 
 fices to the friends of independence; but it was not customary to em- 
 ploy the patronage of the state to strengthen any particular group of pa- 
 triots or to increase the political following of any particular leader. The 
 proscription of all opponents was not yet the rule. Nor was it yet per- 
 ceived that the principle of rotation in office might be so applied as greatly 
 to increase the number of rewards available for friends". J. M. Gitter- 
 man, id. 
 
 48 
 
HISTORY OF NEW YORK 
 
 almost violent in his antipathy to Governor Clinton, whose use of 
 the appointing power he had often censured, and owing, perhaps, 
 to the intimate relations between him and Hamilton, they were in 
 accord in the opinion expressed by Hamilton in The Federalist, 
 that scandalous appointments to important offices had been made 
 under Clinton. When the council convened, Benson was nomin- 
 ated for the Supreme Court by one of the Federalist members of 
 the body, and all the Federalists in it voted for him, despite Clin- 
 ton's remonstrance that he as governor alone had the power of 
 nomination. 
 
 In the following October the governor published a protest 
 against the action of the majority of the council in the Albany 
 Gazette, which printed on the same day the reply of the Federal- 
 ist members of that body. After contending that the exclusive 
 power of appointment was vested in him, the governor argued 
 that the council had not the power, which the majority further 
 claimed, of displacing any officer or of determining upon the 
 number necessary for the proper execution of the laws, — that 
 these were matters confided exclusively to the executive. Al- 
 though the constitution seemed in many cases to refer the con- 
 tinuance of an office to the pleasure of the council, "by this was 
 not intended a capricious arbitrary pleasure, but a sound dis- 
 cretion to be exercised for the promotion of the public good." 
 The contrary practice would be pernicious and its consequence 
 would be "to deprive men of their offices because they have too 
 much independence of spirit to support measures they suppose 
 injurious to the community, and might induce others from undue 
 attachment to office to sacrifice their integrity to improper con- 
 siderations." The reply of the Federalist members of the council 
 was, in effect, limited to an attempt to establish that the gover- 
 
 49 
 
LEGAL AND JUDICIAL 
 
 nor's practice had not conformed with the high precepts enunci- 
 ated in his protest. 
 
 Governor Clinton, whose term of office was about to expire, 
 declined to stand for re-election. The Republicans nominated 
 Chief Justice Robert Yates for the governship; the Federalists, 
 John Jay; and at the April election in 1795, the latter was elected 
 by a large majority of the votes of the freeholders of the State. 
 No quarrel arose between Jay and the members of the council 
 of appointment until 1801, for the councils chosen in 1796, 1797 
 and 1798 were largely, if not entirely, composed of Federalists. 
 Despite Jay's re-election in the spring of 1798, the Republican 
 party was increasing in power and influence in the State. It se- 
 cured large accessions in the assembly, especially from the city 
 of New York, which returned, among others, Aaron Burr and 
 John Swartwout. The election of 1799, by one of those curious 
 revolutions not uncommon in politics, resulted unfavorably to the 
 Republicans. Mainly through Burr's efforts the Republican de- 
 feat of 1799 was converted into a Republican triumph in the fol- 
 lowing year, when the party secured a majority of twenty-five in 
 the assembly, and consequently control of the incoming council 
 of appointment. As the legislature then chose the presidential 
 electors and the Federalists had a majority of only six in the 
 senate, the Republicans were able to secure electors of their 
 party. Republican success in New York meant the success of 
 the party throughout the nation. The city of New York, which 
 in the preceding year had given a Federalist majority of nine 
 hundred, elected the entire Republican assembly ticket, and the 
 party was successful in three of the four great senatorial districts 
 of the State. Upon the convening of the legislature in Novem- 
 ber, a resolution was offered in the assembly for the immediate 
 election of a new council of appointment. This resolution was 
 
 SO 
 
HISTORY OF NEW YORK 
 
 vehemently opposed by the Federalists upon the identical ground 
 upon which Hoffman's resolution to elect a new council had been 
 resisted, in 1794 — that the old council had not been in existence 
 for a year. The position of the two parties was at this time re- 
 versed. The governor was a Federalist, the dominant party in 
 the legislature Republican, the existing council was Federalist; 
 whereas in 1794 the governor was Republican, the legislature 
 was controlled by Federalists, and the council was Republican. 
 The only difference lay in the fact that the Republicans after 
 election had publicly announced their intention to fill with party 
 friends offices which had relation to party politics, and to dis- 
 tribute the remaining places among members of the two parties 
 in the proportion which the vote for their candidates justified. 
 
 The chief exponent of this policy, DeWitt Clinton, nephew 
 of the former governor, was coming to be recognized as the 
 dominant factor in the politics of the State. The resolution to 
 elect a new council was adopted by the assembly, and a new coun- 
 cil immediately chosen, the members of which were DeWitt Clin- 
 ton, Ambrose Spencer, Robert Roseboom and John Sanders, all, 
 with Sanders' exception. Republicans. The new council met on 
 February 11, 1801. Clinton and Spencer were at this time in 
 accord in their political beliefs and policies, and the alliance be- 
 tween them continued unbroken until 1812. Roseboom was a 
 plastic instrument in their hands, so that they were readily able to 
 control the council and make appointments and removals at will. 
 Their determination to seize the power of nomination occasioned 
 immediate hostility between them and Governor Jay, similar to 
 that which had taken place between Governor Clinton and the 
 council of appointment in 1794. 
 
 War between the governor and the council at once broke out. 
 Jay nominated Jesse Thompson for sheriff of Dutchess county; 
 
 SI 
 
LEGAL AND JUDICIAL 
 
 a majority of the council refused to concur. He made seven 
 other nominations for the same office, all of which were rejected 
 by the council. Some few of his nominations for other places 
 received approval. At an adjourned meeting, the governor urged 
 Benjamin Jackson for the office of sheriff of Orange county, but 
 without success. Other nominations of his also failed, where- 
 upon DeWitt Clinton, claiming the right of nomination to reside 
 in each member of the council, placed the name of John Blake, 
 jr., before the body as a nominee for the office of sheriff of 
 Orange county. The governor declined to put the question upon 
 this nomination, but nominated John Nicholson for the place 
 instead. A majority of the council refused to vote upon his last 
 nomination, and, a deadlock being imminent, the governor ob- 
 served that he was unwilling to put the question upon Blake's 
 nomination, as he deemed the executive possessed of the exclu- 
 sive power to nominate. In view of the pronounced conflict of 
 opinion, he declared that it would be proper for him to consider 
 what course of conduct he should follow in the matter, and re- 
 quested time for the purpose, and thereupon the council was 
 adjourned. Acting upon his constitutional prerogative, the gov- 
 ernor never reconvened it. Two days after the adjournment of the 
 council, he sent a special message to both houses of the legisla- 
 ture, in which, after setting forth the differences between him and 
 the Republican majority of the council, and after recaUing that 
 in his first speech after his election he had urged the importance 
 of legislation declaratory of the powers of the governor as presi- 
 dent of the council, he again requested the houses to determine 
 upon the true construction of the twenty-third article of the con- 
 stitution. His message asserted his belief that the constitution 
 vested in the governor exclusive right of nomination, although he 
 acknowledged that the claim of a concurrent right in other mem- 
 
 52 
 
HISTORY OF NEW YORK 
 
 bers of the council had been made in 1794. The Republican 
 assembly decided (and perhaps the governor anticipated the de- 
 cision) that the legislature had no constitutional right to interpret 
 any provision of the organic law. The Federalist senate, on the 
 contrary, resolved that the legislature had this power. Failing in 
 his appeal to the legislature. Jay asked the chancellor and justices 
 of the Supreme Court for an opinion, but the chancellor and the 
 judges declined to give it, averring as a reason that to give an 
 opinion to the governor was not within the scope of their judicial 
 duties. 
 
 Jay next sought legislation which would permit a suit for the 
 determination of the question, but the Republican assembly de- 
 feated a bill introduced for that purpose. A new election for the 
 governorship was to take place in April ( 1801), and as a result of 
 the antagonism between the governor and the other members of 
 the council, and of the conflicting views developed in the two 
 houses, the constitutional issue was injected into the campaign, 
 which was conducted with much asperity of temper on both sides. 
 Spencer, perhaps, was the recipient of the bitterest criticism. In 
 1794, as a Federalist member of the assembly, he had supported 
 Hoffman's motion for the election of a new council. In 1797 he 
 was one of the Federalist council of appointment. In the next 
 year, for some inscrutable reason, he left the party and became a 
 Republican, — a change that caused him to be attacked as the 
 "political chameleon." 
 
 The governor's efforts to secure from the legislature and the 
 • judiciary an interpretation of the constitution evoked a challenge 
 of his claim from the Federalist members of the council. In a 
 communication to the assembly, they gave their version of the 
 controversy, presenting lengthy arguments to support the con- 
 current power of nomination. Unless the wheels of government 
 
 S3 
 
LEGAL AND JUDICIAL 
 
 were to be completely blocked, a constitutional convention became 
 inevitable, for no authority but the people, the assumed makers 
 of the constitution, existed to say where the right to nominate 
 was vested. On April 6, 1801, a law was passed recommending 
 the citizens of the State to elect by ballot delegates to meet in 
 convention "for the purpose of considering the parts of the con- 
 stitution of this State respecting the number of senators and 
 members of assembly in this State, and with power to reduce 
 and limit the number of them as the said convention might deem 
 proper ; and also for the purpose of considering and determining 
 the true construction of the twenty-third article of the constitu- 
 tion of this State relative to the right of nomination to office." 
 
 The constitution of 1777 contained no provision for its own 
 amendment. Therefore, before calling upon voters to elect dele- 
 gates to a convention, the legislature in strictness should have 
 given them an opportunity to decide whether they wished to sum- 
 mon it. This was the course insisted upon by the council of 
 revision in 1820 and ultimately adopted by the legislature of that 
 year. But the council of revision seems in iSor to have made 
 no objection to the bill for the election of delegates, although 
 that bill was not preceded by a law enabling the people to say 
 whether a convention ought to be held. Nor did the law for the 
 election of delegates require the ratification by voters of the pro- 
 ceedings of the convention. The subject of reapportionment of 
 members of the senate and assembly had become important in 
 view of changes in the population of the State; hence reappor- 
 tionment and the construction of Article XXIII were the two 
 subjects to be considered by delegates. 
 
 The convention met at Albany on October 13, and elected, as 
 its president, Aaron Burr, then vice-president of the United 
 States. Burr had been chosen a delegate from Orange county, 
 
 54 
 
HISTORY OF NEW YORK 
 
 although not a resident of that county. The sessions of the con- 
 vention lasted sixteen days. Two questions only were submitted 
 to it, and as Burr in a letter to his daughter Theodosia said, its 
 proceedings might have been concluded in about six hours. The 
 reapportionment of legislative members was a task easily accom- 
 plished, and the result of the election of delegates foreshadowed 
 the interpretation that would be put upon Article XXIII of the 
 constitution; in fact, the practice of both the parties had been 
 such as to have made it inconsistent for either to sustain Gover- 
 nor Jay's contention. 
 
 On the question of the right of nomination to office, the con- 
 vention, by a large majority, 86 to 14, voted that by the true con- 
 struction of the twenty-third article "the right to nominate all 
 officers other than those who by the constitution are directed to 
 be otherwise appointed, is vested concurrently in the person ad- 
 ministering the government of this state for the time being, and 
 in each of the members of the council of appointment".^ Ham- 
 mond declares "the unanimity" to have been "somewhat extraor- 
 dinary". The vote was reached after little debate. John V. 
 Henry, a Federalist and a distinguished lawyer, perhaps in dis- 
 gust at his own recent removal from the comptrollership, argued 
 
 S. The contitutional resolution of 1801 is perhaps the only case of 
 the exercise of judicial power by the people of a State in convention as- 
 sembled. Here the people in their function of the highest court ordained 
 and declared the construction of the constitution. This followed by a 
 few years the ratification of the eleventh amendment to the Federal con- 
 stitution, adopted to nullify the decision of the Supreme Court of the 
 United States in Chisholm v. Georgia, which upheld the right of an in- 
 dividual citizen of one State to sue another State. The amendment, 
 however, declares that "the judicial power of the United States shall not 
 be construed to extend to any suit in law or equity commenced or prose- 
 cuted against one of the United States by citizens of another state or by 
 citizens or subjects of any foreign State". This amendment had been 
 proposed by Congress to the legislatures of the several States on Sep- 
 tember 5, 1794, and after its ratification by three-fourth of the States, be- 
 came part of the constitution on January 8, 1798. 
 
 55 
 
LEGAL AND JUDICIAL 
 
 in support of the exclusive right of the governor to nominate. 
 William P. Van Ness, the friend of Burr, and Daniel D. Tomp- 
 kins, recorded themselves in favor of the governor's view. Tomp- 
 kins, who afterwards sat in the convention of 1821, thus referred 
 in that body to his vote in 1801 : "The convention of 1801 was 
 assembled to sanction a violent construction of the constitution." 
 To him, he added, it was a proud triumph, that at the age of 
 twenty-six he had stood alone against the then dominant party. 
 The vicious theory, although not yet embodied in the epigram- 
 matic maxim "to the victors belong the spoils", was too deeply 
 rooted in practice to prevent the successful party from using all 
 agencies of government to reward its supporters and punish 
 enemies and deserters. The power could not be employed with 
 scientific precision unless the right to nominate belonged to every 
 member of the council. This construction of the constitution was 
 soon to be used against one of its foremost advocates with telling 
 effect. Burr, then in the zenith of his fame and influence, by 
 giving his sanction to it, simply sealed the power of DeWitt Clin- 
 ton to humiliate and overthrow him, as he soon afterwards 
 learned. His overthrow was accomplished by Clinton with the 
 aid of Livingston, the ex-chancellor, who had begun his political 
 career as a Federalist, but ceased, after 1797, to associate with the 
 Federal party. The council of appointment which Jay had dis- 
 solved in February, 1801, was summoned together by his suc- 
 cessor, Governor George Clinton, in August of the same year, 
 and this council not only deposed practically all Federalists, but 
 in parcelling out the offices ignored the Burrite faction altogether. 
 "Not a single appointment of the least importance", says Ham- 
 mond, "was conferred on the known friends of Colonel Burr". 
 The treatment meted out to Burr aroused the wrath of his bril- 
 liant lieutenant, William P. Van Ness, who, under the name 
 
 S6 
 
AMBROSE SPENCER. 
 
 (1765-1848). 
 
 Lawyer, Statesman and Jurist ; Member of Assembly from 
 Columbia County, 1793 ; State Senator, 1795- 1802 ; Attorney 
 General, 1802-4; Associate Justice Supreme Court, 1804-19; 
 Chief Justice, 1819-23; Member Constitutional Convention of 
 1821 ; Mayor of Albany, 1824-6; Member of Congress, 1829-31 ; 
 chairman of Whig National Convention at Baltimore, 1844. 
 
AMBROSE SPENCER. 
 1824-1826. 
 From a photograph by Clifford of an old engraving, owned in 1904 by his 
 great-granddaughter, Mrs. Augustus H. Walsh, of Albany. 
 
HISTORY OF NEW YORK 
 
 "Aristides," denounced the Clintons. "With astonishment", he 
 wrote, "it was observed that no man, however virtuous, however 
 unspotted his Hfe or his fame, could be advanced to the most 
 unimportant appointment, unless he would submit to abandon all 
 intercourse with Mr. Burr, vow opposition to his elevation, and 
 like a feudal vassal, pledge his personal services to traduce his 
 character and circulate slander". 
 
 The subsequent history of this despotic appointive body was 
 what might have been expected after the construction put upon 
 Article XXIII by the convention of 1801. It became a pitiless 
 political machine. Morgan Lewis, who owed his elevation to the 
 governorship (1804) to the combination made by the Clintonians 
 and the Livingston family, of which he was a member, against 
 Burr, was soon afterwards marked for proscription. Qinton, 
 who was a member of the council of 1806, induced it to remove 
 Maturin Livingston, the governor's brother-in-law, from the office 
 of recorder of the City of New York, and to appoint Pierre C. 
 Van Wyck in his place. Thomas Tillotson was deposed from the 
 office of secretary of state, and his place given to Elisha Jenkins. 
 These removals and appointments were not effected without pro- 
 tests from the governor and another member of the council, 
 Huntington. According to Hammond, the chief authority for 
 this period, the war upon the governor became open and undis- 
 guised, and it was conducted with extreme virulence. "In all the 
 minor appointments, such as sheriflfs, county clerks, surrogates, 
 county judges, and justices of the peace, those candidates were 
 preferred by the council, who were known to be hostile to the re- 
 election of Gov. Lewis". Lewis, in turn, after his re-election, em- 
 ployed the council to punish the younger Clinton, who had pre- 
 viously resigned his office of senator at Washington to become 
 
 57 
 
LEGAL AND JUDICIAL 
 
 mayor of New York City.* The council of 1807 removed him 
 from the mayoralty, appointed Colonel Marinus Willett mayor, 
 removed Recorder Van Wyck, and reappointed Maturin Living- 
 ston; removed Jenkins from the office of secretary of state, and 
 reappointed Dr. Tillotson. All obnoxious Clintonians lost their 
 positions. In 1804 Lewis had made one appointment for which 
 he is entitled to lasting gratitude — that of James Kent to the chief 
 justiceship of the Supreme Court, which he himself had left for 
 the governorship. Daniel D. Tompkins, then a congressman, was 
 given Kent's vacant seat of associate judge. In less than three 
 years he was destined to succeed Lewis, whose success was tem- 
 porary. The election of Tompkins as governor was a triumph 
 for Clinton, as it restored to the Clintonian Republicans control 
 of the council, which promptly proceeded to the performance of 
 its expected work, removing Tillotson, reinstating Jenkins, restor- 
 ing Qinton to the mayoralty, reappointing Van Wyck recorder, 
 in place of Maturin Livingston, and Sylvanus Miller, Clinton's 
 personal friend, to the surrogateship of New York, from which 
 the Lewis council had removed him to make way for Ogden 
 Edwards. Among the many other appointments made by this 
 Clintonian council, was that of Martin Van Buren to the office of 
 surrogate of his native county, Columbia. Woodworth, notwith- 
 standing his Republicanism, was removed from the attorney gen- 
 eralship because he had supported the cause of Governor Lewis. 
 
 6. Upon the resignation of Edward Livingston from the mayoralty 
 of New York City in the summer of 1803 Morgan Lewis then chief justice 
 of the Supreme Court, was a rival candidate for the office against DeWitt 
 Clinton. The importance at that time of the mayoralty could not be bet- 
 ter illustrated, for it was sought by a United States senator on the one 
 hand and the chief justice of the Supreme Court on the other. Perhaps 
 with the growing complexity and importance of municipal government the 
 office of mayor of the city of New York may again be considered as hon- 
 orable as the place of United States senator and of justice of the Supreme 
 Court. 
 
 58 
 
HISTORY OF NEW YORK 
 
 "This council proceeded to send new general commissions of the 
 peace into many of the counties, and in the course of a few 
 months brought about almost an entire change of persons holding 
 civil offices in the State".' 
 
 DeWitt Qinton had become the arbiter of politics in the 
 State. The victorious Clintonians turned their eyes to the na- 
 tional capital with the ambition of making the vice-president, 
 George Clinton, the nominee of the Democratic party for presi- 
 dent, but in this they were foiled by the Virginia dynasty. The 
 Federalist party again came into control of the assembly in 1809, 
 largely because of public excitement against the embargo. The new 
 council removed Republican officials and substituted Federalists 
 in their place. Its policy was "thorough"; but in the following 
 year, when the Republicans re-elected Tompkins and carried the 
 assembly, the council of that year at once undid the acts of its im- 
 mediate predecessor by removing Federalists from office and re- 
 storing previous Republican incumbents. DeWitt Clinton again be- 
 came mayor of New York city, and remarkable as it may seem in 
 these days, soon afterwards became lieutenant governor as well. 
 The council of 1812' was Clintonian, and the Albany Register 
 soon began to urge the claims of DeWitt Qinton for the presi- 
 dency. He was nominated by a legislative caucus in May, 1812, 
 but in the canvass of the presidential votes had only eighty-nine 
 electoral votes as against Madison's one hundred and twenty- 
 eight. In the year 1813 the council of appointment had a 
 strongly Federalist complexion. Its removals of Republicans and 
 appointments of Federalists were general, in offices of great and 
 also small importance throughout the State. Abraham Van Vech- 
 ten succeeded Thomas Addis Emmet as attorney general, and 
 
 7. Hammond, "History of Political Parties in New York," I, 263. 
 
 8. Vice-President George Clinton died at Washington, April 20, 1812. 
 
 59 
 
LEGAL AND JUDICIAL 
 
 Josiah Ogden Hoffman succeeded Van Wyck as recorder of New 
 York. The council of 1814 also was Federalist. This council is 
 entitled to the credit of placing Kent in the chancellorship, (Lan- 
 sing, the previous incumbent of the office, having reached the age 
 limit), and of making Smith Thompson, chief justice. It ap- 
 pointed General Piatt, the party's recent unsuccessful candidate 
 for governor, justice of the Supreme Court to fill the vacancy 
 created by Smith Thompson's appointment to Kent's former 
 place. In 181 5 the Republican party again came into 
 power in the State ; Van Buren, who had been deposed by the 
 council of 1813 from the surrogateship of Columbia county, was 
 made attorney general, as Van Vechten's successor. The 
 long continued alliance between DeWitt Clinton and Am- 
 brose Spencer was disrupted; Clinton was removed from the 
 mayoralty of New York, and his political fortunes were soon 
 afterwards at their lowest ebb : yet, in a few years, he was raised 
 to the governorship and the appointing power was again turned 
 upon his enemies. But before the close of his administration the 
 people of the State had become wearied of this system. 
 
 The council of 1816 made comparatively few removals, as 
 its friends were in possession of the more valuable offices. The 
 council of 1817, which was friendly to Clinton, who in the spring 
 of that year had been elected governor, removed the Tammany 
 men from office.^ Its most signal act was the deposition of the 
 secretary of state, Robert Tillotson, son of the Dr. Tillotson who 
 had several times been exalted to the office and several times re- 
 moved from it, and the appointment of Eh". Charles D. Cooper in 
 
 9. The members of this council were with the exception of Bowne, 
 the New York City member, close friends of the governor. At a meeting 
 of the council held August 27, it was suggested that the governor was in 
 a position to punish office holders who had been inimical to his interests, 
 but to these importunings it has been said he turned a deaf ear. 
 
 60 
 
HISTORY OF NEW YORK 
 
 the younger Tillotson's place, although no objection existed 
 against him except that he had opposed Clinton's aspirations. 
 
 Hammond, the historian, was himself a member of the coun- 
 cil of 1818. The two 'leading factors in the senate consisted of 
 the governor's supporters, and the Bucktail party, which was 
 opposed to him. Van Buren, the master spirit of the anti-Qin- 
 tonians, while feeling a deep interest in the selection of the 
 council recognized, says Hammond, the danger of having it so 
 constituted as to be avowedly hostile to the governor, for "in that 
 case the public would impute all the errors which might be com- 
 mitted, to the council, and judge of the executive by his 
 speeches." A council favorable to the governor was therefore 
 not to be appointed but it was "desirable to form a council which 
 the governor could not control but for whose acts the public would 
 hold him responsible. In other words, Mr. Van Buren wished to 
 create a council which should be really hostile to the governor. 
 Partly by management and partly by accident, a council of the 
 character last described was actually chosen". 
 
 The members of the council, in accordance with custom, 
 were selected by a caucus of the Republican members of each of 
 the four senatorial districts. A coalition of Republicans in 
 Rensselaer county demanded the removal of William L. Marcy, 
 then recorder of Troy; he was deposed, and Dr. Cooper was re- 
 moved from his office of secretary of state. Hammond himself 
 was opposed to Marcy's removal, and to the proposed removal of 
 Van Buren from the office of attorney general, but for party 
 reasons he afterwards voted for Marcy's depositioru It was in 
 this year that a bill for a constitutional convention was introduced 
 in the assembly by Ogden Edwards of New York, with the idea 
 of procuring the council's abolition. "All men", says Hammond, 
 "had become disgusted with the appointing power * * * and 
 
 61 
 
LEGAL AND JUDICIAL 
 
 so universal was the opinion that a change ought to be made that 
 I was satisfied that the Council of Appointment could not much 
 longer form a part of our governmental machinery". 
 
 By the year 1819 the breach between the Qinton and the 
 Bucktail factions had become impassable, and from that time 
 they were known as distinct political parties, the opposition of the 
 Bucktails to Governor Clinton being ostensibly grounded upon 
 the fact that they were inimical to his system of internal im- 
 provements. The council of 1819 made appointments almost 
 exclusively from the governor's friends, many of whom were 
 Federalists, and the Bucktails were almost universally pro- 
 scribed. In this year Van Buren lost his post of attorney general 
 and Thomas J. Oakley, then the Federalist leader in the assem- 
 bly, was elevated to his place. Peter A. Jay, son of John Jay, 
 was installed as recorder of New York City in Richard Riker's 
 place. 
 
 The council of 1820, elected by a Republican assembly over- 
 whelmingly favorable to the summoning of a constitutional con- 
 vention, was in the hands of the governor's political enemies. 
 Roger Skinner, one of its most active members, was a Federal 
 judge of the northern district of New York, holding simultane- 
 ously three distinct offices — Federal judge, State senator, and 
 member of the great appointing power. So influential was he 
 that the council came to be known as Skinner's Council. Of its 
 remorseless enforcement of the doctrine that "to the victors be- 
 long the spoils" Hammond gives the following account: 
 
 "The Council met on the I2th of January, and on the first day of their 
 meeting they ordered the issuing of eleven writs of supersedeas to as 
 many sheriffs of counties. They removed Archibald Mclntyre from the 
 office of comptroller. The comptroller, since Mr. Mclntyre had been the 
 incumbent of the office, had been considered rather as a working man than 
 as a politician. Neither the Council of 1807, 1810, 1813, nor 1814, although 
 
 62 
 
HISTORY OF NEW YORK 
 
 Mr. Mclntyre was decidedly hostile to them, had manifested the least 
 disposition to remove him. They were aware that it required time and 
 experience to become well acquainted with the financial concerns of this 
 great state, .and with the best and most proper mode of managing them; 
 and they treated Mr. Mclntyre as before stated, rather as a laborer em- 
 ployed by the State than as a political office holder. Besides, all men 
 admitted that he was ^an accurate and able accountant, and an honest man. 
 His removal produced great excitement and its effect upon the community 
 would have been greater had not the Council made a judicious selection 
 of a successor. That successor was John Savage, the son of the venerated 
 Senator Edward Savage, and late chief justice of this State. * * * 
 
 "The Council also, on the same day, removed Thomas J. Oakley from 
 the office of attorney-general. This was anticipated. Samuel A. Talcott," 
 then a young lawyer, who resided in Utica, was appointed in his place. 
 Mr. Talcott had not then acquired much eminence at the bar, but he 
 soon developed talents in his profession of the highest order. This ap- 
 pointment was considered as peculiarly Mr. Van Buren's; and the amia- 
 ble traits in Mr. Talcott's character and his splendid legal talents fully 
 justified Mr. Van Buren in taking a warm interest in his favor. Mr. Tal- 
 cott had been a federalist, but with many others of that party had opposed 
 the election of Mr. Clinton; and Mr. Van Buren, no doubt felt, that good 
 policy required that some distinguished mark of attention and respect 
 should be bestowed on some of the individuals who had been ranked 
 among the federalists. * * * 
 
 "The Council did not confine their operation, even on the first day of 
 their meeting, to the removal of civil officers, but superseded several gen- 
 tlemen holding military commissions. Heretofore, this class of office 
 holders, in consequence of the unproductiveness of their offices, had, dur- 
 ing all the political revolutions, remained undisturbed. * * * Stephen 
 Allen was appointed mayor of New York, in lieu of Cadwallader D. Cold- 
 en, and Peter A. Jay was removed from the office of recorder, to which 
 Richard Riker was appointed. 
 
 "After making these changes in the great officers of the State, the 
 Council proceeded into every county and removed all, or nearly all the 
 sheriffs, clerks, surrogates, judges of the courts of common pleas, and 
 justices of the peace, who were known or suspected to be politically op- 
 posed to them. 
 
 "But there is one act of this Council, which, in my judgment, admits 
 of no reasonable apology. The act to which I refer, was the removal of 
 
 10. For interesting pictures of Talcott, Marcy and Benjamin F. But- 
 ler, see Alexander "A Political History of the State of New York," I, 
 289-292. 
 
 63 
 
LEGAL AND JUDICIAL 
 
 Gideon Hawley from the office of superintendent of common schools. Mr. 
 Hawley had by great skill and labor formed our common school system. 
 All who know him, and he is now, and was then generally known, admit 
 not only his fitness, but his peculiar fitness for that office. On the able and 
 faithful discharge of his duties depended, not the temporary success of 
 this or that party, but in a considerable degree the weal or woe of the ris- 
 ing generation. The Council removed him and appointed in his place 
 Welcome Esleeck, Esq., a mere collecting attorney, who had scarce any of 
 the requisite qualifications of a superintendent of schools. So gross was 
 this- outr^e, that the political friends of the Council in the legislature, 
 would not submit to it. Gen. Root soon after the appointment of Mr. 
 Esleeck for, as was well understood, the mere purpose of getting rid of 
 him, introduced a bill, or attached a clause to some bill on its passage in 
 the assembly, enacting that the secretary of state should, ex-officio, be the 
 superintendent of common schools, which soon passed through both 
 houses with acclamation."" 
 
 The number of offices under the control of the council in 
 1820 bore a substantial ratio to the voting population. It was 
 about one appointment for every two hundred persons in the 
 state." The life of a council was determined by each new as- 
 sembly, and after each member of the council became as potential 
 as the governor himself, it discovered how it might create new 
 offices and increase the number of office holders, as well as depose 
 those whose tenures were under the constitution to be at its 
 pleasure. A position in the council was of transcendent conse- 
 quence after each member could nominate. Log-rolling became 
 inevitable. The struggle between parties was concentrated in 
 maneuvers to control the council. Bitter personal animosities 
 and factional feuds were engendered. Party ties were lightly 
 appreciated, with the temptation to change of allegiance. The 
 inferior judiciary was degraded. The manhood of every holder 
 of a commission from the State government was undermined and 
 
 II. The total vote for governor in 1820 was 93434; the total number 
 of oflices in the gift of the council was 14,950. The population in 1800 was 
 484,06s; in 1820, 1,372,812. (See McBain, "DeWitt Clinton and The Spoils 
 System," 79)- 
 
 64 
 
HISTORY OF NEfF YORK 
 
 his independence weakened. The council was unwisely conceived, 
 it had abused its powers and was perverted to evil purposes. And 
 in consequence its abolition was voted in the convention of 1821 
 without a single dissent. 
 
 6S 
 
CHAPTER IV 
 
 COUNCIL OF REVISION PERCENTAGE OF VETOED BILLS — COUNCIL 
 
 RAN COUNTER TO PUBLIC SENTIMENT IN 1812-1814 — ITS 
 VETOES OF WAR MEASURES ITS VETO OF THE BILL OF NOVEM- 
 BER 20, 1820, FOR A CONSTITUTIONAL CONVENTION — HISTORY 
 OF THE MOVEMENT FOR A CONVENTION — ACT OF APRIL 1 3, 
 182I ELECTION OF DELEGATES, AND ANALYSIS OF VOTE. 
 
 The conviction was often expressed in the convention of 
 1 82 1 that in the council of revision, composed of the governor 
 and judges, there was an improper union of legislative and ju- 
 dicial powers. It was not the percentage of the bills which it 
 vetoed, for this was small^ when compared with the liberal use of 
 the veto power by governors and presidents of more modern days, 
 but their character which made it the subject of public odium. 
 It had seemed to put itself in the path of public opinion, and 
 public sentiment would not endure its opposition. On several 
 occasions when the legislature favored an enlargement of the 
 judicial force (the most urgent occasion being in 1812, during 
 the controversy over the charter of the Bank of America) , and it 
 was apparent that the council of appointment was prepared to 
 respond to the legislative and popular wish, the council of re- 
 
 I. The abstract of vetoed bills presented by Justice Piatt to the 
 convention of 1821 showed that 128 out of 6590 bills passed by the two 
 houses had been vetoed by the council, eighty-three as repugnant to the 
 constitution, forty-five as inconsistent with the public good. The council 
 and the legislature seem oftenest to have come in conflict in the year 
 178s, sixteen bills having been vetoed in the course of the session, ten as 
 unconstitutional, and six as inconsistent with the public good. 
 
 66 
 
HISTORY OF NEfF YORK 
 
 vision interposed its veto of bills providing salaries for the addi- 
 tional judges. While the council of appointment could appoint, 
 it required legislation to fix the salary of new appointees ; hence, 
 appointment without legislation for salaries would have been nu- 
 gatory. In two other instances the council of revision had placed 
 itself squarely in hostility to public sentiment. This had happened 
 during the War of 1812 and in the year 1820. The second war 
 with Great Britain was fought largely upon the sea, and priva- 
 teers did much to bring it to a triumphant close. The enormous 
 losses caused to British commerce by American ships, especially 
 those sailing under letters of marque, led to a remonstrance by 
 the merchants of England to Parliament against the further con- 
 tinuance of the war, and eventually to the peace of 1814. The 
 legislature of New York proposed in that year to encourage 
 privateering by authorizing any five or more persons desirous of 
 forming a company for the purpose of annoying the enemy and 
 their commerce by means of private armed vessels, to organize 
 themselves as a corporation, issue corporate stock, and enjoy 
 ordinary corporate powers. The bill actually became a law on 
 October 21, 18 14, but too late in the war to be fruitful of result. 
 When it came before the council of revision, vigorous objections 
 to it were formulated by Chancellor Kent. Privateering, he de- 
 clared, was merely tolerated; it was not approved either by the 
 maxims of public law or the opinion of enlightened jurists "The 
 practice was liable to great disorder, and as its professed object 
 was the plunder of private property for private gain, its tendency 
 was to impair the public morals, to weaken the sense of right and 
 wrong, and to nourish a spirit of lawless ferocity." He objected to 
 the measure on the further ground that it was an unnecessary in- 
 terference with the power of Congress "to grant letters of marque 
 and reprisal and make rules concerning captures on land and 
 
 67 
 
LEGAL AND JUDICIAL 
 
 water". The whole subject of the bill, he maintained, properly 
 fell under the jurisdiction of that body. 
 
 Kent's repugnance to the bill was in accord with advanced 
 sentiment. In 1856 the leading powers of Christendom, with the 
 exception of Russia and the United States, agreed to the proposi- 
 tion of the Paris convention that privateering should be treated 
 as unlawful and be abolished. But Kent was a Federalist, and the 
 Federal party in New York, or at least some of its leaders, were 
 believed secretly to cherish the unpatriotic sentiments supposed 
 to be entertained by the Federalists of New England. The bill 
 had behind it the earnest support of a pronounced majority in the 
 State legislature, and was zealously urged by Governor Tomp- 
 kins. Samuel Young, under the signature "Juris Consultus," 
 attempted to refute the chancellor's objections in a series of arti- 
 cles published in the Albany Argus. The chancellor, in turn, 
 replied to Young, and Van Buren, with his usual ability, came to 
 Young's support in a series of papers under the title of "Amicus 
 Juris Consultus." The council had also made objections to efforts 
 of the houses to raise a volunteer force for the assistance of the 
 government. To a legislature and people bent upon loyally sus- 
 taining the government at Washington, the objections of the 
 council to measures designed to strengthen that government 
 seemed to savor of disloyalty. It is strong testimony to the high 
 respect in which the chancellor was held as a man and a jurist 
 that these vetoes did not bring him into public disesteem. 
 
 In 1 8 14 the legislature passed a bill to aid in the apprehension 
 of deserters from the army and navy of the United States. The 
 bill authorized any person who thought he had cause to suspect 
 any other person to be a deserter either from the army or navy 
 or the state militia, to apprehend him without warrant and take 
 him before a justice of the peace. This bill was vetoed by the 
 
 68 
 
HISTORY OF NEW YORK 
 
 council on the ground that the power it conferred was arbitrary, 
 an infraction of personal rights, and liable to great abuse. It was 
 in violation of the "due process of law" clause of the constitution 
 of the United States. Erastus Root expressed the more popular 
 view when he declared that the council "should have bent from 
 its strictness, in aid of the country", in "apprehending deserters 
 who were stalking through the state in their laced coats, with 
 impunity". Both Tompkins and Van Buren spoke with feeling 
 when they referred in the convention of 1821 to these proceed- 
 ings of the council during the War of 1812. 
 
 "The scenes which passed within these walls, during the 
 darkest period of the late war, cannot", said Van Buren, "be 
 forgotten. It is well known that the two branches of the legisla- 
 ture were divided ; while in the one house we were exerting our- 
 selves to provide for the defence of the country, the other house 
 were preparing impeachments against the executive for appropri- 
 ating money without law, for the defence of the state. But the 
 effort was unavailing. An election intervened, and the people, 
 with honourable fidelity to the best interests of their country, 
 returned a legislature ready and willing to apply the pubUc 
 resources for the public defence. They did so. They passed a 
 variety of acts, called for by the exigencies of our country. But 
 from the Council of Revision were fulminated objections to the 
 passage of those acts — objections which were industriously cir- 
 culated throughout the State to foment the elements of faction. 
 Beyond all doubt, at that moment, was produced the sentiment 
 which has led to the unanimous vote to abolish the Council. The 
 legislature had exerted themselves in the public defence, and the 
 .object of these objections was to impress the public mind with a 
 belief that their representatives were treading under foot the laws 
 and constitution of their country. The public voice on that occa- 
 
 69 
 
LEGAL AND JUDICIAL 
 
 sion was open and decided ; and it has ever since continued to set 
 in a current wide and deep against the Council". In making these 
 remarks, he disclaimed, he said, all personal allusion to the author 
 of those objections. "I entertain for him the highest respect. As 
 a judicial officer, he is entitled to great consideration, and I 
 should esteem his loss from the situation which he fills as a public 
 calamity". 
 
 Tompkins declared that he had been a member of the council 
 for three years as a judge, and had also served in it during the 
 term of his governorship. He arraigned the council for its veto 
 in 1812 of the bill for the salaries of the proposed additional 
 judges of the Supreme Court; for its attitude during the con- 
 troversy over bank charters ; its approval of the charters despite 
 the numerous imputations of corruption, and charged the judges 
 with unconsciously mingling political considerations with their 
 proceedings as members of the council. He had, he said, a high 
 respect for the judicial tribunals of the State, and "could with 
 sincerity avow that with a more enlightened, upright and dignified 
 body he had never been associated, than the judges of the su- 
 preme court in their appropriate sphere" ; but he could with equal 
 sincerity affirm that he had never been connected with a body 
 "more devoted and firm in party and political controversies when 
 they manifested themselves in legislative proceedings". To pre- 
 serve judicial purity it would be necessary to abstract the judges 
 wholly from legislative and political concerns, and confine them 
 solely to the interpretation and enforcement of the laws enacted 
 by the proper departments. It was not, he added, "the fault of 
 the judges that they had become involved in political concerns and 
 had mingled with the party contests that had agitated the State 
 for the last thirty years. It was their situation as members of the 
 
 70 
 
HISTORY OF NEW YORK 
 
 Council of Revision, which had dragged them into these contests 
 and had made partisans of them". 
 
 The thing which perhaps most inflamed the pubHc mind 
 against the council, contributing more than any other circum- 
 stance to its abolition, was its veto of the bill passed by the legis- 
 lature in January, 1820, for the election of delegates to a constitu- 
 tional convention; but judged in the calm light of the present, 
 the action of the council was eminently wise. As Chief Justice 
 Spencer said in the convention of 1821, the legislature "had no 
 authority to direct a convention for the general purpose of 
 amending" the constitution "without a previous reference to the 
 people of the question whether it was their wish that it should be 
 thus amended". He denied the right of the legislature to direct 
 a convention. "In doing so they had no higher authority than any 
 other respectable body of men, self-moved, and acting without 
 any delegation of power whatever." The council had therefore 
 insisted that, as a preliminary to holding a convention, the sense 
 of the electors should be taken. The act of 1821 was in accord- 
 ance with these principles, although the legislature reluctantly 
 adopted them, as it did not wish to appear to acknowledge their 
 truth. No detriment had accrued to the State from the delay. 
 The only result, as Judge Spencer said, was that the convention, 
 instead of meeting in June, met in August, and "it now meets 
 upon an undisputed right ; the people have legitimately expressed 
 their opinion in favor of a convention. This delay of two months 
 in the meeting of the convention is the only grievance to be com- 
 plained of ; but in my opinion a great and salutary principle has 
 been preserved." 
 
 The subject of holding a convention distracted the politics of 
 the State for several years. The impulse in its favor had long 
 been accumulating momentum, as the need of revising the ap- 
 
 71 
 
LEGAL AND JUDICIAL 
 
 pointing power, of curbing the council of revision, and especially 
 of extending the elective franchise, had grown more evident. 
 Tammany or Bucktail dissatisfaction with the distribution of 
 patronage by Governor Clinton and his councils of appointment 
 lent aid to the movement. The history of the years 1818, 1819 
 and 1820 shows that Clinton was himself in doubt as to the ad- 
 visability of a convention, as he distrusted the effect it would have 
 upon his ability thereafter to control the appointing power, which, 
 he feared, might be dominated by Republicans. In the spring of 
 1820 he recommended the call of a convention with powers of a 
 limited nature. A bill in conformity with his recommendations 
 was introduced in the assembly, but it failed to become law 
 owing to the conflict between the Bucktails and Clintonians in the 
 legislature as to the extent of the power which should be con- 
 ferred upon the convention. In his message of November 7, 
 1820, after his re-election, when it had become apparent that the 
 pro-convention feeling had acquired greater strength, the gover- 
 nor took a position more in sympathy with that of the Republican 
 party, "The constitution", he said, "contains no provision for its 
 amendment In 1801 the legislature submitted two specific points 
 to a convention of delegates chosen by the people, which met and 
 agreed to certain amendments. Attempts have been made at 
 various times to follow up this precedent, which have been un- 
 successful, not only on account of a collision of opinion about the 
 general policy of the measure, but also respecting the objects to 
 be proposed to the convention. These difficulties may be probably 
 surmounted, either by submitting the subject of amendments gen- 
 erally to a convention, and thereby avoiding controversy about 
 the purposes for which it is called, or by submitting the question 
 to the people in the first instance to determine whether one ought 
 to be convened ; and in either case, to provide for the ratification 
 
 72 
 
HISTORY OF NEW YORK 
 
 by the people, in their primary assemblies, of the proceedings of 
 the convention". The previous referendum to the people sug- 
 gested by the governor was only an alternative measure. 
 
 The Bucktails, who had become the predominant element in 
 the RepubUcan party, had, in the fall of 1820, a majority in both 
 houses of the legislature, and were able to pass a convention bill 
 which should accord with party wishes ; and to enact it into law, 
 unless forbidden by the council of revision. The bill was 
 promptly passed in the assembly and in the senate. From the 
 senate it went to the council of revision, where it was consid- 
 ered on November 20. The governor, who seems to have been 
 inimical to a convention with general powers, yet unwilling to 
 appear openly antagonistic, was desirous of not having to vote in 
 the council. Justices Van Ness and Piatt, both Federalists, were 
 equally anxious with the governor to keep their hostility to the 
 bill secret. Yates was supposed to favor it, Kent and Spencer 
 were known to disapprove of it, and the belief among the Qin- 
 tonians seems to have been that Justice Woodworth would be 
 ranked among its opponents. Woodworth, from the position of 
 attorney-general, had been raised to the Supreme Court in 1819, 
 upon Smith Thompson's appointment to the Federal Supreme 
 Court, and the Clintonians too hastily assumed that Woodworth 
 would take the governor's view of the convention bill. Had all 
 members of the council been present when the bill came up for 
 consideration, the governor's vote would not have been needed for 
 its rejection, but Van Ness and Piatt were absent upon circuit. 
 Chancellor Kent read a vigorous disapproval of the measure, in 
 which Chief Justice Spencer concurred. Yates voted in favor of 
 the bill, and to the astonishment of the governor and his friends, 
 Woodworth, who had unwarrantedly been counted as in oppo- 
 sition, sided with Yates, thus producing a tie in the council and 
 
 73 
 
LEGAL AND JUDICIAL 
 
 forcing the governor into the open. Caught in this dilemma, 
 Clinton voted with Kent and Spencer, and the bill was rejected. 
 The responsibility for its defeat was clearly placed upon the 
 chief magistrate. The rejection of the bill crystallized the senti- 
 ment against the council of revision, and aroused an hostility 
 to the judiciary which would be contented with nothing less than 
 the removal of the existing incumbents of the bench from office, 
 consequences the opposite of those intended to be accomplished 
 by the veto. Its object, says Hammond, "was to preserve the su- 
 preme court, and it accelerated its destruction. The chancellor 
 and judges were charged with exercising an almost arbitrary 
 power * * * to defeat the declared will of the people. It 
 did not require any special gift of prophecy to predict what would 
 be the result of a contest in a free country between four men on 
 the one side and the people on the other". 
 
 The chancellor's objections were vigorously stated and were 
 irrefutable. "There can be no doubt that all free governments 
 are founded on the authority of the people, and that they have at 
 all times an indefeasible right to alter and reform the same as to 
 their wisdom shall seem meet. The constitution is the will of the 
 people expressed in their original charter, and intended for the 
 permanent protection and happiness of them and their posterity, 
 and it is perfectly consonant to the republican theory, and to the 
 declared sense and practice of this country, that it cannot be al- 
 tered or changed in any degree without the expression of the 
 same original will. It is worthy, therefore, of great consideration, 
 and may well be doubted whether it belongs to the ordinary leg- 
 islature, chosen only to make laws in pursuance of the provisions 
 of the existing constitution, to call a convention in the first in- 
 stance to revise, alter and perhaps remodel the whole fabric of 
 the government, and before they have received a legitimate and 
 
 74 
 
HISTORY OF NEW YORK 
 
 full expression of the will of the people that such changes should 
 be made." The council, continued the chancellor, "think it the 
 most safe and wise course and most accordant with the great 
 trust committed to the representative powers under the constitu- 
 tion, that the question of a general revision of it should be sub- 
 mitted to the people in the first instance to determine whether a 
 convention ought to be convened." 
 
 The bill of 1820 was, he said, fundamentally erroneous in 
 another particular: It required the electorate to reject or accept 
 the new constitution as a whole, without giving opportunity to 
 discriminate between provisions that might be deemed salutary 
 and provisions that might be considered undesirable or unwise. 
 "If", said Kent, "the people are competent to pass upon the entire 
 amendments, of which there can be no doubt, they are equally 
 competent to adopt such of them as they approve and reject such 
 as they disapprove ; and this undoubted right of the people is the 
 more important if the convention is to be called in the first in- 
 stance without a previous consultation of the pure and original 
 source of all legitimate authority". 
 
 The veto of the council was undeniably sound in principle. 
 It was not the province of a legislative body, of its own initiative, 
 to order a constitutional convention without first ascertaining the 
 will of the people upon the subject. Such action, without any 
 previous referendum, was a plain usurpation of authority. But 
 this had been twice done in the history of the State, and prece- 
 dents from other sources were not wanting. The discussion in 
 1820 was educational ; it led to the provisions as to amendment of 
 the organic law contained in the constitution framed in 1821. 
 To-day State constitutions as a rule require a vote of the people 
 as a condition precedent to the call of a constitutional convention. 
 
 The objections of the council having been communicated to 
 
 75 
 
LEGAL AND JUDICIAL 
 
 the assembly, they were on the day of their reception referred to 
 a select committee of which Michael Ulshoeffer was chairman, 
 for consideration and report. Ulshoeffer, on January 9, 1821, 
 submitted an able and elaborate defense of the bill. He chal- 
 lenged the authority of the council to exercise such ample veto 
 power, declared the bill consistent with the constitution, since that 
 instrument was silent as to the method of its amendment, and 
 contended that the measure was not inconsistent with the public 
 good, as "the public voice has called for this law". But the re- 
 visory power of the council was plenary; the silence of the con- 
 stitution as to the method of its own amendment could not make 
 the legislature the arbiter tc determine when it needed revision, 
 and, as should often be remembered in these later days, "the 
 public voice" may not properly call for any law that contravenes 
 the constitution. 
 
 Although days were spent by the assembly in debate upon 
 the original bill and the objections of the council, it was found 
 impossible to obtain the requisite two-thirds of the members for 
 its passage ; it was therefore lost, and a new bill presented. The 
 debates showed that no bill could be enacted into law that did not 
 conform with the views expressed by the council. To draw a 
 bill of this nature was to the minds of the Republican leaders a 
 concession to the objections of the council which they could not 
 make without virtually acknowledging those objections to be valid. 
 It was the wish and the hope of the Clintonians that the Bucktail 
 chiefs would adhere to their original views, for the Clintonians 
 were anxious to prevent a convention. But the majority leaders 
 finally and wisely decided for concession. A bill was introduced 
 entitled "An Act recommending a convention of the people of the 
 State", which was adopted by the assembly and subsequently by 
 the senate, and to which, on March 13, 1821, the council of re- 
 
 76 
 
HISTORY OF NEW YORK 
 
 vision affixed its sanction. This act, in certain details, was amended 
 by an act passed April 3, 1821. The act recommending a conven- 
 tion provided that at the annual election to be held on the last 
 Tuesday of April in that year, the citizens of the State should 
 determine by ballot whether a convention should be held. Vote 
 upon the question was opened to a wider class than the class 
 entitled to vote for assemblymen under the existing constitution, 
 for had the issue of a convention or no convention been sub- 
 mitted to the narrow electorate of the time it is almost certain 
 that no convention would have been called. All free male citizens 
 of twenty-one years were made eligible who possessed freeholds 
 or were actually rated or paid taxes to the State ; or were actually 
 enrolled in the militia, or in a legal volunteer or uniform corps, 
 and had done actual service therein, either as officers or privates ; 
 or had been exempted from taxation or militia duty ; or who had 
 been assessed to work, and had actually worked on the public 
 roads and highways, or paid a commutation according to law. 
 The inclusion of militiamen and volunteer soldiers not eligible to 
 vote for assemblymen was in obedience to the feeling that men 
 who had been willing to take up arms for the defense of the State 
 and the nation were entitled to a ballot upon this important ques- 
 tion, and, as will be seen, the new constitution opened the suffrage 
 to all classes of citizens mentioned in this enactment. The elec- 
 tion was to be held during three days, and the act provided that if 
 the appropriate canvassers should certify that the vote was favor- 
 able, delegates should be elected on the third Tuesday in June to 
 a convention to be held on the last Tuesday of August, the num- 
 ber of delegates to be equal to the number of members of the 
 assembly. All persons entitled to vote upon the initial question 
 were made eligible to vote for delegates. At the annual election 
 in April the vote for the convention was 109,346, against 34,901, 
 
 77 
 
LEGAL AND JUDICIAL 
 
 a majority of 74,445, or more than double the entire vote of its 
 opponents. The Democratic movement had grown too powerful 
 to be resisted. By constitutional means it had been demonstrated 
 that the overwhelming voice of the people was for a change in 
 the organic law in vital particulars. 
 
 The people had indeed spoken, for beneath all dislike of the 
 regnant councils a force was at work which, had there been no 
 refractory councils to abolish, would sooner or later have com- 
 pelled a broadening of the suffrage. The desire for this was, in 
 fact, the underlying motive for the convention, especially in the 
 middle and western, the more Democratic, parts of the State. The 
 influence of the newer sections of the commonwealth in bringing 
 about the convention and the difference in antecedents and tem- 
 perament between these sections and the older portions of the 
 State have not been sufficiently noted by historians. To the 
 newer counties and to New York City, which as a port of entry 
 for immigrants had been steadily becoming more Democratic, the 
 decision for a convention was due. The Hudson river counties 
 were the home of the conservatives; New York City and newer 
 counties, the stronghold of the progressives. The North West 
 Territory, which had been reserved for freedom under the ordi- 
 nance of 1787 and which comprised the vast area lying between 
 the Ohio river, the Mississippi river, and the Great Lakes, at- 
 tracted emigrants from New England, but many on their way to 
 it decided to make permanent homes in central, western and 
 northern New York. As Rufus King wrote in October, 1821 : 
 "Our population is nearly divided between the old and the new 
 inhabitants. The latter are out of New England, whose laws, 
 customs and usages differ from those of New York." 
 
 The chief emigrations from New England after 1781 were 
 to Pennsylvania, New York and Ohio. It was the pioneers from 
 
 78 
 
HISTORY OF NEfF YORK 
 
 the eastern states who settled Utica, Rome, Syracuse, Ithaca, 
 Owego, Binghamton, Elmira, Geneva, Rochester and Buffalo. 
 Colonists from Massachusetts had availed themselves of the 
 rights granted to that State in western New York. The resem- 
 blance of central and western New York to New England was, 
 says a recent writer,^ "so striking as to excite comment," and 
 Timothy Dwight, who traveled through the State in early days, 
 noted the likeness — ^the Puritan churches, the houses erected in 
 the New England manner, the "sprightliness, thrift and beauty" 
 of the settlements. The New Englanders carried with them their 
 town meeting and their love of home rule. This element of the 
 population could not long have been contented with a government 
 in which it had little voice. The people of New England extrac- 
 tion, who had been nourished from infancy upon the doctrines of 
 civil and religious liberty, urged a broader basis of suffrage than 
 was accorded by the old constitution. So inviting were the nat- 
 ural wealth and resources of the State that a great influx of pop- 
 ulation had taken place as early as 1812, when the legislature 
 organized twelve new counties. In 1820 the population had in- 
 creased to such an extent that at that time the number of coun- 
 ties was fifty. Extensive immigration from the British Isles and 
 western Europe had not yet commenced. The population of the 
 State was homogeneous, being largely native American. 
 
 The sentiment from the newer counties was decidedly in 
 favor of the calling of .a convention, whereas the older and aris- 
 tocratic counties were either apathetic or opposed.' The vote 
 took place by counties. In the southern district the total vote for 
 the convention was 15,906, against it 8,409. In New York county 
 
 2. "The Expansion of New England," pp. 160, 164. 
 
 3. These figures are taken from "Debates and Proceedings in the Con- 
 vention of 1821." 
 
 79 
 
LEGAL AND JUDICIAL 
 
 alone the affirmative vote vastly preponderated over the negative, 
 being 6,513 to 1,810. In Queens, the vote against holding the 
 convention was almost double that for it, being 1,332 against, 
 to 692 for a convention. The vote in the middle district was 
 20,158 for; 12,764 against, Ulster registering a heavy ad- 
 verse vote, — 2,634 against holding a convention; 1,224 i" favor 
 of it. In the eastern district, comprising the newer northern 
 counties, the vote was 25,465 for a convention, to 9,278 against it. 
 In the western district, which was dominated by recent settlers, 
 the vote was 47,817 in favor of holding a convention; 4,450 
 against it. The majority in each county was heavy, and in some 
 counties there was only a trifling negative vote.* From the vote 
 it might have been prevised that although the representatives of 
 the Morrises, the Van Cortlandts, the Livingstons, the Coldens, 
 the Van Rensselaers, and the Schuylers should oppose broaden- 
 ing of the franchise, democratic sentiment would achieve a 
 triumph. 
 
 4. Excepting New York county. 
 
 80 
 
CHAPTER V 
 
 CONVENTION OF 182I PERSONNEL OF THE CONVENTION FALL OF 
 
 THE COUNCIL OF APPOINTMENT AND OF THE COUNCIL OF RE- 
 VISION LOCATION OF THE VETO POWER — ^DEBATES OVER NE- 
 GRO SUFFRAGE — EXTENSION OF WHITE SUFFRAGE INCREASE 
 
 OF governor's POWERS THE NEW SYSTEM OF APPOINTMENTS 
 
 CHANGES IN THE SENATE — BANK CHARTERS POWER OF 
 
 AMENDMENT EMBODIED IN THE CONSTITUTION. 
 
 The convention of 1821 was destined to draft perhaps the 
 best constitution that the State has had, and the people were 
 fortunate in their choice of delegates. Men of less ability might 
 have accomplished the destruction of the two councils 
 and the broadening of the suffrage, but they could not 
 so well have dealt with many other problems pre- 
 sented to the convention. The persons chosen as 
 delegates were mainly of the Democratic party^ and included men 
 prominent in the affairs of the commonwealth, or thereafter to 
 figure importantly in its history. At least one county rose above 
 narrow and provincial considerations in the choice of one of its 
 five representatives. To the wisdom of the people of Otsego 
 county is it due that Martin Van Buren was elected a delegate. 
 He was not a resident of that county, but he was chosen by its 
 people under an impression, says Hammond, that "the public 
 
 I. The old Republican party, the name having been gradually 
 changed between 1810 and 1820. Tammany Hall still clings to the com- 
 pound name, Democratic-Republican, which was used in the time of 
 change. 
 
 81 
 
LEGAL AND JUDICIAL 
 
 good required that he should participate in the proceedings of the 
 convention." Van Buren, who had become a United States sen- 
 ator in February, 1821, was unquestionably one of the most influ- 
 ential members in a convention of men of conspicuous talents. 
 His absence from it would have been a distinct loss to the State. 
 No one can peruse the debates without perceiving that his 
 speeches were among the ablest made in the convention. "The 
 clearness and comprehensiveness displayed in his discussions of 
 the great principles of government, the soundness, justice and 
 moderation of his views upon the important questions which arose 
 in the convention must impress the reader", says his biographer 
 Holland, "with the most favorable opinion of his integrity and 
 talent." Holland goes so far as to assert that in order to present 
 a complete view of Van Buren's services it would be necessary to 
 transcribe portions of almost every page of the convention's re- 
 ports. Hammond, who devotes an elaborate chapter of his his- 
 tory to the subjects discussed in the convention, repeatedly quotes 
 from Van Buren's utterances and commends his wisdom, tact and 
 good temper, in the discussion of the important topics that came 
 before that body. New York City sent Nathan Sanford, late a 
 Federal senator and afterwards destined to be chancellor of the 
 State, Jacob Radcliflf, William Paulding, Henry Wheaton, famous 
 both in the State and the national arena, Ogden Edwards and 
 Peter Sharpe. John Duer, who subsequently acted as one of the 
 statutory revisers and later occupied a seat in the superior court 
 of the city of New York, led the delegation from Orange county ; 
 Samuel Nelson, who in 1831 became a justice of the Supreme 
 Court of the State, in 1836 chief justice of that Supreme Court, 
 and in 1845 a member of the highest judicial tribunal in the na- 
 tion, came from Cortland county. Daniel D. Tompkins, then 
 vice-president of the United States, and who had sat in the con- 
 
 82 
 
NATHAN SANDFORD. 
 (1777-1838). 
 
 Lawyer, Jurist and Statesman; Member of Assembly, 1808; 
 Speaker of Assembly, 1811; United States Attorney, 1803-15; 
 State Senator, 1812-15; United States Senator, 1815-21 ; also 
 1826-31 ; Delegate to Constitutional Convention of 1821 ; Chan- 
 cellor of New York, 1823-26. 
 
HISTORY OF NEW YORK 
 
 vention of 1801, represented Richmond county. The veteran 
 statesman Rufus King came from Queens ; Samuel Young from 
 Saratoga county. Albany sent an illustrious contingent in Chan- 
 cellor Kent, Chief Justice Ambrose Spencer, Abraham Van Vech- 
 ten and Stephen Van Rensselaer. From Columbia county came 
 Judge William W. Van Ness, of the Supreme Court, and Elisha 
 Williams, the famous advocate and antagonist of Van Buren at 
 the bar. From Oneida came Judge Piatt, while Westchester 
 county sent Peter A. Jay, a noted lawyer, son of Governor John 
 Jay. Dutchess county was well represented, among its delegates 
 being Judge James Tallmadge, famous for his speech in Con- 
 gress opposing the admission of Missouri as a slave State, 
 and Peter R. Livingston. From Delaware county came 
 Erastus Root. The members of the convention, according 
 to Hammond, "presented an array of talent, political ex- 
 perience and moral worth, perhaps never surpassed by 
 any assemblage of men elected from a single state." 
 Proceedings were formally begun on August 28, 1821, 
 Tompkins, vice-president of the United States, having been 
 chosen president of the convention by a decisive vote. On motion 
 of Rufus King a committee was appointed to consider and report 
 as to the manner in which business should be transacted, and the 
 committee promptly reported in favor of the selection of a num- 
 ber of committees to which should be severally referred the fol- 
 lowing subjects: The legislative department, the executive de- 
 partment, the judicial department, the council of revision, the 
 power of appointing to office, the right of suffrage, the qualifi- 
 cations of persons to be elected, and the mode of making future 
 amendments to the constitution. 
 
 Several far reaching changes were made by the convention 
 of 1821 ; (i) abolition of the council of appointment and the 
 
 83 
 
LEGAL AND JUDICIAL 
 
 substitution of a new system; (2) abolition of the council of 
 revision and the transfer of the veto power to the governor; (3) 
 extension of the elective franchise; (4) increase of the gover- 
 nor's powers; (5) reorganization of the courts. 
 
 The project of aboHshing the council of appointment met 
 with no opposition. The report of the committee upon the coun- 
 cil showed how enormous was its patronage — 8287 military and 
 6663 civil officers held commissions from it and these were gen- 
 erally revocable at its pleasure. Hammond declares, and justly, 
 that the abolition of the council entitles the convention to the 
 gratitude of its contemporaries and of succeeding generations. 
 With the abolition of the council, the problem was the substitu- 
 tion of some other mode of appointment to office. The task of its 
 invention fell to the committee on appointment to office, of which 
 Van Buren was chairman. In order to curtail the sphere of 
 action of the general appointing power, the committee proposed 
 the election or appointment of officials in the several counties or 
 towns, where their duties were local, and their selection by the 
 legislature, where their functions were general. Of the vast 
 number of military appointments controlled by the council of 
 appointment, all except seventy-eight, consisting of officers of 
 the highest rank, were to be elected by privates and officers of the 
 militia. The committee unanimously believed that the highest 
 military officers and all judicial officers, except surrogates and 
 justices of the peace, should be appointed. Four modes of ap- 
 pointment, said Van Buren, had been considered: to create an 
 elective council of appointment; to bestow the appointing power 
 upon the executive ; to give it to the legislature ; or, lastly, to give 
 it to the governor, with the advice and consent of the senate. 
 
 The arguments for and against these dififerent plans were 
 analyzed. A council elected by the people, which Justice Spencer 
 
 84 
 
HISTORY OF NEW YORK 
 
 happily styled "the ghost ot the old council of appointment", 
 was open to the objection of lack of responsibility so convincingly 
 urged against the old council, and its election would cause tumult- 
 uous excitement in every part of the State. A council chosen by 
 the legislature was subject to many objections. If the veto power 
 of the executive were to be enlarged, to give him also control of 
 appointments to office would be unwise, and it would be equally 
 unwise to lodge this vast responsibility in the legislature. Con- 
 nection between the legislature and the appointing power was 
 undesirable at best, but the least objectionable plan was to repose 
 the power in the governor and the senate. The practice of the 
 different States varied. In Pennsylvania and Delaware the gov- 
 ernor made appointments; in Maine, Massachusetts, Maryland, 
 North Carolina and Virginia the power was given to the gover- 
 nor and a council. In Connecticut, Rhode Island, Vermont, New 
 Jersey, South Carolina, Georgia, Ohio, Tennessee, Mississippi 
 and Alabama, the legislature made appointments. New Hamp- 
 shire had a council chosen by the people, while in Kentucky, 
 Louisiana, Indiana, Illinois and Missouri, the appointing author- 
 ity was vested in the governor and senate. Having decided to 
 confer the appointing power upon the governor and the senate, 
 Van Buren stated that the committee proposed to confer exclu- 
 sive right of nomination upon the governor, as the surest means 
 of fixing responsibility. Conviction was unanimous in the com- 
 mittee that the construction put upon the old constitution by the 
 convention of 1801 had proved baneful, and this conviction was 
 generally entertained throughout the state. Stability of tenure 
 required that officials who did not hold during good behavior 
 should not be removable at pleasure or without cause, as had been 
 the unfortunate practice which had vacated every such office with 
 every change of party, to the serious injury of public interests. 
 
 8S 
 
LEGAL AND JUDICIAL 
 
 To remedy the evil, no removals should be possible except for 
 cause publicly assigned ; but the committee did not favor a regu- 
 lar trial of complaints, lest the entire time of the senate should be 
 consumed in such investigations. 
 
 The report of the committee was adopted by the convention. 
 Its chief merit was the abolition of the odious council of ap- 
 pointment. The substitute was a complex system which had at 
 least the advantage of dispersing power. The secretary of state, 
 comptroller, treasurer, attorney general, surveyor general, and 
 commissary general were to be appointed by the senate and as- 
 sembly, either by separate agreement or on joint ballot. Their 
 appointment was given to the legislature for the reason, as stated 
 by Van Buren, that they were oiBcers entrusted with the public 
 property, whose duties more immediately connected them with 
 that body.^ Mayors of cities were to be chosen by municipal com- 
 mon councils, a method that was however soon afterwards to be 
 changed. Justices of the peace were to be nominated and ap- 
 pointed by a complicated system through the action of county 
 boards of supervisors and judges of county courts. Upon the 
 subject of the appointment or election of justices an acrimonious 
 debate took place in the convention, and Hammond, who ordinarily 
 treats Van Buren with the utmost fairness, claims, perhaps with 
 justice, that Van Buren's insistence upon the appointment rather 
 than the election of these officials, was motived by his desire to 
 perpetuate the new appointing power which was gradually spring- 
 ing up in the State with ramifications into every township and 
 county. In a few years the constitution was changed to make 
 these justices elective. 
 
 The committee upon the council of revision reported with- 
 
 2. The state treasurer under the first constitution was chosen by the 
 legislature upon the initiative of the assembly (page 32). 
 
 86 
 
HISTORY OF NEW YORK 
 
 out a dissenting vote in favor of its abolition, and the report was 
 unanimously sustained. But in the debate upon the veto power 
 it became apparent that the reasons for this determination were 
 various. The convention was composed of radicals, among whom 
 were Root, Livingston and Tompkins; extreme conservatives 
 under the lead of the chancellor, the judges, and Van Vechten; 
 and moderates like Van Buren, Edwards, Duer and Wheaton. 
 Each class had its own reasons for wishing the council abolished. 
 
 With the convention unanimous in its condemnation of the 
 council, the problem seemed merely to be as to the substitute, if 
 the majority should favor the deposit somewhere of a revisory 
 power over legislation. The solution, however, did not prove to 
 be simple. In argument, eulogies were pronounced upon the work 
 of the council, which were followed by unsparing criticism of its 
 most important vetoes. The chancellor and the judges, wincing 
 under the hot censure that fell from the radical wing, defended 
 their motives from unjust imputations. For a time, in the midst 
 of denunciations and laudations of the council, the real issue was 
 obscured; but it came again into clear light and was ultimately 
 discussed with fullness and wisdom. Probably no similar assembly 
 has more exhaustively treated every phase of the veto power, — 
 the necessity of some qualified control over the legislative body, 
 the extent of that control, and the branch of government in which 
 it should be reposed. 
 
 The debate started with a motion by Peter R. Livingston to 
 substitute a majority vote of each house for the two-thirds vote 
 proposed by the committee for the passage of a bill over the gov- 
 ernor's veto. Livingston's motion was ultimately defeated by a 
 vote of 95 against it to 26 in its favor, and the committee's substi- 
 tute for the third article of the old constitution approved by a 
 vote of 100 to 17. The constitution as thus amended remained 
 
 87 
 
LEGAL AND JUDICIAL 
 
 unchanged until 1875, when an amendment went into effect 
 definitely requiring a vote of two-thirds of the members elected 
 to each house to give vitality to any measure vetoed by the gov- 
 ernor. Spencer favored the abolitiqn of the council of revision, 
 but with the qualification that the governor, if given the veto 
 power, should be rendered independent of the legislature in the 
 matter of salary as well as tenure of office. A provision was 
 accordingly placed in the new constitution, that the governor's 
 compensation should be neither increased nor diminished during 
 the term for which he was elected, thus relieving that official from 
 the temptation of subserviency to the wishes of the legislature. 
 
 The qualified negative lodged in the council of revision by 
 Article III of the constitution of 1777, is said to have been 
 adopted at the suggestion of Robert R. Livingston. This is only 
 partially true, for under Livingston's plan vetoed bills would have 
 been returned to the senate in all cases, Livingston's idea doubt- 
 less being to make the senate the citadel of the landed interest 
 and keep that interest impregnable from assault by unfavorable 
 legislation. On Hobart's motion, Livingston's draft was amended 
 by the convention of 1777 by requiring a disapproved bill to be 
 returned to the house in which it originated. 
 
 Those members of the convention of 1821 who asserted that 
 Article III was designed to give the council of revision power to 
 veto only unconstitutional legislation were plainly mistaken, as 
 was conclusively shown by Justice Jonas Piatt upon the floor of 
 the convention of 1821. Chief Justice Jay, himself the author of 
 the first veto, objected to the bill then under review, not on the 
 ground that it was unconstitutional, but that it was "inexpedient 
 and inconsistent with the public good"; and all the remaining 
 members of the council — Governor George Clinton, Chancellor 
 Livingston, and Justices Yates and Hobart — concurred in this 
 
 88 
 
HISTORY OF NEW YORK 
 
 objection. The practice of the council from the outset had evi- 
 dently been to treat the revisory power as adequate for the veto 
 of measures inimical in its judgment to the public welfare. As 
 was repeatedly shown in the convention of 1821, the right of the 
 bench to pronounce laws unconstitutional in suits involving those 
 laws was not conferred by Article III, but existed independently 
 of it. The veto given by that article could not be lim- 
 ited to a veto upon unconstitutional bills because the ju- 
 diciary formed part of the veto power. Had the judi- 
 ciary been dissociated from the veto power, such mental con- 
 fusion would not have arisen. The council of revision in its 
 later years, when its objections to measures ardently desired by 
 the houses aroused indignant opposition, had therefore usurped 
 no function in disapproving bills on other than constitutional 
 grounds. 
 
 Spencer, who had sat in the council since his appointment to 
 the court in February, 1804, spoke of its duties as "arduous and 
 painful", duties "which no judge would be anxious to perform" ; 
 impelled by the conviction that the executive, judicial and legisla- 
 tive powers ought to be kept separate, he voted for abolition. 
 Judge Piatt, whose encomiums of the council led to the opening 
 of the flood-gates of denunciation, while admitting the evils and 
 inconveniences of giving to the council veto power declared that 
 it "would never be exercised with so much wisdom and firmness 
 in any other hands." Van Buren put the real objection in lucid 
 form: "I object to the council, as being composed of the ju- 
 diciary, who are not directly responsible to the people. I object 
 to it, because it inevitably connects the judiciary — ^those who, 
 with pure hearts and sound heads, should preside in the sanctu- 
 aries of justice, with the intrigues and collisions of party strife ; 
 because it tends to make our judges politicians and because such 
 
 89 
 
LEGAL AND JUDICIAL 
 
 has been its practical effect". The council of revision was, in 
 effect, a life chamber having no accountability to the people, yet 
 endowed through the widely ramifying influence of the judiciary 
 with extraordinary ability to make its qualified negative absolute. 
 It was indeed wisely abolished. 
 
 History betrays a constant tendency of representative assem- 
 blies to pass hasty and ill-considered legislation at the public de- 
 mand in time of intense excitement. A second house, less imme- 
 diately responsible to the electorate, constitutes a partial check 
 upon a more popular body. An executive veto upon the legisla- 
 ture was a legacy of the Roman government to modem Europe. 
 In theory, the English crown, in analogy to the Roman tribunes, 
 enjoys an absolute veto upon the Lords and the Commons, al- 
 though the prerogative has been in abeyance since 1692. In both 
 proprietary and royal colonies, the governor possessed an equally 
 absolute negative upon the acts of the colonial legislature, and the 
 crown had a corresponding unlimited right over the governor. 
 Despotic exercise of the royal prerogative was the cause of one 
 of the most formidable indictments against the British sovereign 
 in the Declaration of Independence. The States started with a 
 distrust of the executive veto. Jefferson's repugnance to it seems 
 never to have been overcome, for in the constitution which he 
 prepared for Virginia, he provided that the governor, two coun- 
 cillors of State, and a judge of each of the superior courts should 
 be a council to revise all legislative bills, which, after disapproval 
 by it, should be passed only by a vote of two-thirds of each house. 
 Several States refused to give any veto power at all to the gover- 
 nor; and others were unwilling to concede it, unless reviewable 
 by a majority in the legislature. It was for the "right of the 
 majority" to override the governor's veto that Peter R. Living- 
 ston argued in the convention of 1821. No veto, he said, was 
 
 90 
 
HISTORY OF NEfF YORK 
 
 allowed either in Rhode Island, New Jersey, Delaware, Mary- 
 land, Virginia, North Carolina, South Carolina, or Ohio. In 
 Connecticut, Kentucky, Tennessee, Indiana, Missouri and Ala- 
 bama, a majority of the legislature could overcome the veto. 
 Seven states — Maine, New Hampshire, Massachusetts, Pennsyl- 
 vania, Georgia, Louisiana and Mississippi — required a two-thirds 
 vote for the purpose. Illinois lodged the veto with the governor 
 and a council, but a majority of the legislature could nevertheless 
 pass a bill over the objections. In Vermont the veto was placed 
 in the governor and council, and any bill objected to had to lie 
 over for consideration one year.* 
 
 But majority rule has its limitations, or the minority would 
 
 3. Four of the States — Delaware, North Carolina, Ohio and Rhode 
 Island — ^have never given their governor the veto power. In eight others, 
 a very limited veto power has been given, which may be overridden by a 
 majority of the whole number elected to each house. These are as fol- 
 lows, the year in which the veto was granted being added: Alabama, 
 1819; Arkansas, 1836; Connecticut, 1818; Indiana, 1816; Kentucky, 1799; 
 New Jersey, 1844; Vermont, 1836; West Virginia, 1872. In twenty- four 
 others, a two-thirds vote is required to override the veto; California, 
 1849; Colorado, 1876; Florida, 1865; Georgia, 1789; Illinois, 1870; Iowa, 
 1846; Kansas, 1859; Louisiana, 1812; Maine, 1820; Massachusetts, 1780; 
 Michigan, 183s; Minnesota, 1857; Mississippi, 1817; Missouri, 1875 ; Ne- 
 vada, 1864; New Hampshire, 1792; New York, 1821; Oregon, 1857; 
 Pennsylvania, 1790; South Carolina, 1865; Tennessee, 1870; Texas, 1836 
 (republic), 1845 (state); Virginia, 1870; Wisconsin, 1848. In Maryland 
 (1867) and Nebraska (1875) a three-fifths vote is requisite. But one 
 Sta,te (Kentucky) has changed from a two-thirds vote (1792) to a ma- 
 jority vote (1799). The following States, now requiring a two-thirds 
 vote, as above, required only a majority vote at first: Florida, 1838; 
 Illinois, 1848; Missouri, 1820; Connecticut, Maryland, South Carolina, 
 Tennessee, Virginia and West Virginia were without the veto power until 
 it was granted in the years mentioned above. In Nebraska a two-thirds 
 vote only was needed from 1866 imtil 1875. In Illinois 1818-1848, the veto 
 power was given to the governor and Supreme Court judges, to be re- 
 versed by a majority vote ; and in New York, 1777-1821, to the governor, 
 chancellor and Supreme Court judges, to be reversed by a two-thirds 
 vote. In Vermont, 1786-1836, a suspensory power until the following ses- 
 sion was given to the governor and council. In the States the tendency 
 generally has been to increase the strength of the veto power by making 
 Sie votes of two-thirds of all the members elected requisite to override it, 
 and further, by giving the power to veto single sections of appropriation 
 bills. (Article on "Veto" in Lalor's Cyclopaedia, III, 1067.) 
 
 91 
 
LEGAL AND JUDICIAL 
 
 be at its mercy, and the convention wisely decided for a two- 
 thirds vote. The example of the United States government in 
 this respect has since been generally followed throughout the 
 Union ; in the majority of the States, the votes of two-thirds of 
 the members elected are required to override a veto. One argu- 
 ment which had weight in bringing about the decision of the New 
 York convention to give a veto to the governor was the infre- 
 quency of its use by the president of the United States, and gov- 
 ernors of sister States. Washington used it but twice, Madison 
 but three times, Monroe only once ; whereas neither John Adams 
 nor Thomas Jefferson, nor John Quincy Adams, employed it in a 
 single instance. Thus, imder the first six presidents, it would 
 seem that this prerogative was used only six times. Jackson was 
 the first to make liberal employment of it; he vetoed eleven 
 measures of great pubUc consequence, and seven of the vetoes, 
 being unaccon:q)anied by any message of explanation, received 
 the name of "pocket" vetoes. The qualified veto of the governor 
 has become an int^ral part of the American constitutional sys- 
 tem. No convention held in this State since it was conferred has 
 shown an inclination to take the power away. Indeed, the dis- 
 position has been to extend it by giving the governor the right to 
 veto measures after the close of a l^slative session, and by al- 
 lowing him to veto separate items in appropriation bills. 
 
 The new veto and appointing power rendered the governor 
 so much more of a factor than he had been under the old consti- 
 tution, that the convention deemed it wise to shorten his term of 
 ofl5ce so as to increase his responsibility to the electors of the 
 State. Advocates of a one year term were not wanting, but the 
 more conservative members, at the head of whom was \''an Buren, 
 favored a two year term as giving the governor sufficient time to 
 qualify himself for the administration of his office, while holding 
 
 92 
 
HISTORY OF NEW YORK 
 
 him sufficiently accountable to the people. Under the constitution 
 of 1777 any citizen could be governor if he were a freeholder. 
 The convention of 1821 retained the freehold restriction, but Hm- 
 ited the office to citizens of the United States of the age of at 
 least thirty years, residents within the State at least five years 
 prior to the election. Absence from the State during that period 
 on business of the State or the United States was not to render a 
 candidate ineligible. 
 
 The extension of the right of suffrage was accomplished, 
 first, by enlarging the number of persons eligible to vote for as- 
 semblymen and, secondly, by making the qualifications of electors 
 of senators and governor the same as those of electors of assem- 
 blymen. 
 
 At the outset of the debate about the elective franchise it 
 was proposed to limit the suffrage to white men only. The act 
 recommending the convention had recognized the right of all free 
 male citizens of the State with some restrictions irrespective of 
 color to vote for delegates. When it was proposed to adopt this 
 principle in the convention, Young moved to amend by limiting 
 the franchise to white men. Jay strenuously opposed the restrio 
 tion and a vigorous debate ensued. The decision of the conven- 
 tion was a compromise, but the attempt to disfranchise negroes 
 then enjoying the suffrage failed. The convention resolved that 
 all male whites of the age of twenty-one years, inhabitants of the 
 State for one year preceding an election and for six months resi- 
 dent of a town or county, who, within the year, had served in the 
 militia or paid a tax to the State or county upon real or personal 
 property, should be endowed with the suffrage. But it was 
 provided that no vote should be given to a man of color who had 
 not been a citizen of the State for three years and who for one 
 year next preceding any election, had not been the owner of a 
 
 93 
 
LEGAL AND JUDICIAL 
 
 freehold estate of the value of two hundred and fifty dollars free 
 and clear, upon which he had been rated and paid taxes. Had 
 colored citizens been denied the suffrage altogether, as was urged 
 by some delegates, a privilege exercised under the old constitution 
 by about thirty thousand colored citizens would have been taken 
 away. Happily no such injustice was done. As Jay well said, 
 the convention had been surnmoned to extend the franchise, — 
 not to disfranchise anybody. 
 
 Under the first constitution, the State presented the anomaly 
 of colored men held in slavery and of free colored persons exer- 
 cising the right to vote. Such an anomaly could not long be 
 maintained, and before many years the legislature enacted a law 
 giving freedom to every child born of a slave within the State 
 after July 4, 1799, and to every slave born after that date else- 
 where, but brought within the State by any person intending per- 
 manently to reside within its limits. In 1817* a statute was passed 
 declaring that every negro or mulatto born within the common- 
 wealth before July 4, 1799, should be free after July 4, 1827. 
 
 Nor was extension of the elective franchise in the case of 
 white citizens obtained without a battle. The convention act of 
 1820 awakened landed proprietors to the conviction that they 
 were to lose control of the assembly. They then determined to 
 retain control in the senate and to keep it as the stronghold of the 
 landed interests. Chancellor Kent, Judge Spencer, Abraham Van 
 Vechten and Stephen Van Rensselaer were sent as the chiefs of a 
 powerful contingent to resist any change in eligibility to the upper 
 house. The conflict was precipitated by a motion by Judge Spen- 
 cer to keep the vote for senators from the broader electorate. 
 
 4. Tompkins, a few days before his resignation of the office of gov- 
 ernor to enter upon the vice-presidency, urged in a special message the 
 passage of this legislation. 
 
 94 
 
HISTORY OF NEfF YORK 
 
 The senate, declared Spencer, was intended "as the guardians 
 of our property generally and especially of the landed interest, 
 the yeomanry of the State". Kent was equally outspoken. "I 
 wish to preserve our Senate as the representative of the landed 
 interest. I wish those who have an interest in the soil, to retain 
 the exclusive possession of a branch in the legislature. * * * 
 I wish them always to be enabled to say that their freeholds can- 
 not be taxed without their consent. The men of no property, 
 together with the crowds of dependents connected with great 
 manufacturing and commercial establishments, and the motley 
 and undefinable population of crowded ports, may, perhaps, at 
 some future day, under skillful management, predominate in the 
 assembly; and yet we should be perfectly safe if no laws could 
 pass without the free consent of the owners of the soil. That 
 security we at present enjoy; and it is that security which I wish 
 to retain." 
 
 Lecky, Maine and other disbelievers in democracy have 
 added little to the arguments made by Kent and Spencer upon 
 the floor of the convention, but the judges were in error ; opposi- 
 tion to democracy was opposition to the entire mental and material 
 development of the time. The strength of the vote in favor of 
 the committee's report to enlarge the suffrage for both houses 
 and the governor ( loo to 19) shows how irresistible was the de- 
 mand for extension of the franchise.^ 
 
 5. "I took strong ground against the adoption of that constitution, 
 for, while I approved of many of its provisions, I dreaded the effect of ex- 
 tending and cheapening the suffrage. While it was evident that the con- 
 stitution would be adopted, I continued my opposition to the bitter end. 
 I had great veneration for the opinions of Mr. Jefferson, and believing 
 with him that large cities are 'ulcers on the body politic' I feared then, 
 as I have ever since feared, that universal suffrage would occasion univer- 
 sal political demoralization, and ultimately overthrow our government. 
 With such convictions, I was willing to incur all the responsibility of 
 resisting a popular delusion." "Autobiography of Thurlow Weed," I, 
 pp. 89, 90. 
 
 95 
 
LEGAL AND JUDICIAL 
 
 The senate, as the bulwark of the landed interest, would 
 have had an absolute negative on all legislation inimical to that 
 interest. It would have used its veto power with the freedom of 
 the old council of revision. Collisions between the upper and 
 the lower house would have been inevitable, and the deadlocks 
 might have proven dangerous to the State. Root was on sound 
 ground when, in reply to Kent, he declared that the senate and 
 assembly ought not to be elected by different persons "with 
 genius (sic) and feelings hostile to each other". "The extreme 
 democratic principle", which, according to Kent, "had been re- 
 garded with terror by the wise men of every age" was, however, 
 not fully adopted by the convention. Van Buren, whose argu- 
 ment has received and merits praise, hesitated to go so far as to 
 admit every citizen to the privilege of the ballot, but manhood 
 suffrage was bound to come; and in 1826 the constitution was 
 amended so as to concede it to all excepting colored citizens. 
 
 In various other particulars, the constitution departed from 
 the first form of government. The State was sub-divided into 
 eight senatorial districts, because the old districts were so large 
 that their inhabitants were unable to vote intelligently for sena- 
 tors. It often happened that men widely known received nomina- 
 tions, and in some instances votes sufficient to elect were cast 
 under a misapprehension as to the identity of the candidate. But, 
 as formerly, the governor was required to be a freeholder. This 
 was a concession to the conservative feeling. 
 
 When the first constitution was framed, the English law of 
 criminal libel, which then became the law of the State, was ex- 
 tremely illiberal, making it the province of the jury simply to 
 ascertain whether the so-called libel had been published and to 
 assess damages. The question whether the publication was de- 
 
 96 
 
HISTORY OF NEW YORK 
 
 famatory and libelous was left to the court, nor could the truth 
 be urged by way of defense. Through the efforts of Erskine, 
 Pitt and Fox, the English law was ameliorated in 1792. In the 
 case of the People v. Croswell, in which the defendant was in- 
 dicted for a libel upon Thomas Jefferson, president of the United 
 States, two of the judges (Kent and Thompson) considered that 
 the truth should be received in evidence and the jury should 
 judge both of the facts and the law. The contrary view was 
 maintained by Chief Justice Morgan Lewis and Justice Brock- 
 hoist Livingston. Kent's learned and exhaustive opinion shows 
 that before the days of the Star Chamber the common law rule 
 accorded with the view so ably contended for by Hamilton, of 
 counsel for defendant. There were, said Kent in the convention 
 of 1821, only four judges on the bench at the time; the court 
 being equally divided the matter rested there, and the defendant 
 went unpunished. In April, 1804, the legislature sent to the 
 council of revision a bill framed along the lines of Kent's 
 opinion in the Croswell case. The council objecting to parts of 
 the bill, William W. Van Ness (afterwards justice) introduced 
 a new bill which passed both houses unanimously and became 
 law April 6, 1805. This declared that on the trial of every in- 
 dictment or information^ for a libel the jury should determine 
 the law and the fact under the direction of the court 
 in like manner as in other criminal cases and should 
 not be directed to find the defendant guilty merely on 
 proof of publication, and that in every such prosecution the de- 
 fendant might give the truth in evidence as a defense. The con- 
 
 6. Informations seem to have been prohibited by the constitution of 
 1821, for the language of the fifth amendment to the United States con- 
 stitution was employed in the Bill of Rights adopted by the convention of 
 that year. 
 
 97 
 
LEGAL AND JUDICIAL 
 
 vention of 1821 incorporated the substance of the statute into the 
 organic law of the State.' 
 
 The convention also corrected a defect in the first constitu- 
 tion by specific provision of a method for the amendment of the 
 new organic law. Only one mode of amendment, however, was 
 then adopted. Amendments were first to be approved by a ma- 
 jority of the members elected to each of the two houses, and then 
 agreed to by two-thirds of all the members elected to each house 
 of the succeeding legislature. They were thereupon to be sub- 
 mitted to the electors qualified to vote for members of the legis- 
 lature, and, when ratified by a majority of the electors voting 
 thereon, were to become part of the constitution. But no pro- 
 vision was made in the new constitution for the call at the wish 
 of the people of a convention to revise or amend it. The ab- 
 sence of such a provision led to considerable discussion in 1845 
 and 1846. 
 
 Section 9 of Article VII of the new constitution made the 
 consent of two-thirds of the members elected to each branch of 
 the legislature essential to the passage of every bill appropriating 
 the public moneys or property for local or private purposes, or 
 creating, continuing, altering or renewing any body politic or cor- 
 porate, the only provision respecting corporations to be found in 
 the constitution. 
 
 If the council of appointment used its vast powers to re- 
 ward party friends and take vengeance upon party enemies, a like 
 spirit seemed to pervade the legislature in the disposition of fran- 
 
 7. This was one of the last causes argued in banc by Hamilton. Of 
 his presentation, Kent, in the convention of 1821, declared that a more able 
 and eloquent argument was perhaps never heard in any court. In closing 
 his opinion in the Croswell case he adopted as perfectly correct "the com- 
 prehensive and accurate definition of one of the counsel at the bar (Gen- 
 eral Hamilton) that the liberty of the press consists in the right to pub- 
 lish, with impunity, truth, with good motives, and for justifiable ends, 
 whether it respects government, magistracy or individuals." 
 
 98 
 

 
 
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 JOHN LANSING, JUN. 
 178&-1790. 
 From the etching by Albert Rosenthal in 1888 made from the oil painting 
 owned by Thomas Addis Emmet in i88s. 
 
JOHX LANSING, JR. 
 
 (1754-1829).. ' 
 
 * 
 
 Lawyer, Statesman and Jurist,; Member of; Assembly from 
 Albany County, 1780-84: Representative in Continental Con- 
 gress, 1784-87; Speaker of Assembly, 1786; Mayor of Albany, 
 1786-90; Delegate to Federal Constitutional Convention of 1787, 
 and to the New York Convend^on of 1788 called to ratify United 
 States Constitution; Associate Justice Siipreme; Court of New 
 York, 1788-98; Chief Justice 1798-1801 ; Chancellor, 1801-14; 
 mysteriously disappeared December 12, 1829, and supposed to 
 have been drowned. , 
 
HISTORY OF NEW YORK 
 
 chises. According to more than one historian, the scandals at- 
 tendant upon the grant of bank charters blackened the fame of 
 the State in early days. The legislative prerogative to bestow 
 special privilege seems almost certain to give birth to corruption, 
 and the only remedy may lie in further checks upon legislative 
 authority. Human nature is to-day as greedy of special privilege 
 as ever, and the same watchfulness is essential to protect the 
 public interest. 
 
 Banks entered into politics early in the last century. The 
 Bank of New York was incorporated on March 21, 1791. In its 
 earliest years, while under the control of Federalist stockholders, 
 it is said to have refused banking accommodation to Republicans. 
 Burr and his friends accordingly planned the incorporation of the 
 Manhattan Company to give money facilities to merchants of the 
 Republican party. Boldly to request a Federalist legislature to 
 grant a charter to a bank under Republican control would have 
 been to court a refusal; the promoters decided therefore to con- 
 ceal their real purpose.' The scourge of yellow fever from which 
 New York City had recently suffered, aroused a demand for a 
 better water supply. Burr's friends accordingly petitioned the 
 legislature to grant a charter to a company ready to furnish it. 
 The whole of the proposed capital of two million dollars might 
 not, it was conceded, be required for water purposes, but inas- 
 much as it was better to have ample rather than inadequate funds, 
 authority was asked for the investment of the surplus capital in 
 any way not inconsistent with the laws and constitution of the 
 United States or of the State of New York. The bill passed both 
 houses, but, in the council of revision. Chief Justice Lansing 
 
 8. The legislature, says Hammond, "had to be blindfolded, and in 
 that condition induced to do that which they would not do with their eyes 
 open." 
 
 99 
 
LEGAL AND JUDICIAL 
 
 strongly criticised the comprehensive terms of the clause for the 
 use of the surplus. His adverse vote v^ras, however, overruled, 
 for Governor Jay, Chancellor Livingston, and Judge Benson, all 
 evidently persuaded of the city's urgent need, approved the 
 measure and it became law. 
 
 The Bank of Albany had been incorporated in 1792, and the 
 Bank of Columbia at Hudson in 1793. The Federalist managers 
 of the Bank of Albany are said to have proscribed Republican 
 merchants. Accordingly, a charter was sought in 1803 for an- 
 other bank at the capital, the applicants pleading the necessity for 
 its incorporation because the business of the Bank of Albany was 
 so conducted "as to be oppressive to those business men who be- 
 longed to the Republican party." The applicants offered to pay 
 large sums into the school fund and the literature fund of the 
 State, to lend the State a million dollars for its new canals, and to 
 advance a like sum to farmers for the improvement of real estate, 
 if immunity from any new bank charter were secured for 
 twenty years. Among those interested in the enterprise were 
 Ambrose Spencer, Thomas Tillotson, Elisha Jenkins, and John 
 Taylor, all leading Republicans. Charges that corruption had 
 been employed to obtain the necessary votes in the legislature 
 were freely made at the time. The new bank was incorporated 
 on March 19, 1803. 
 
 The act of April 11, 1804, forbade any person not authorized 
 by law to subscribe to or become a member of any association or 
 proprietor of any bank or fund for the issuing of notes, receiving 
 deposits, making discounts, or transacting any business lawful for 
 incorporated banks to undertake. It also prohibited under penalty 
 the passing of bank bills of less than the nominal value of one 
 dollar. This stringent enactment rendered it impossible for such 
 banking institutions as had not theretofore been incorporated 
 
 100 
 
HISTORY OF NEW YORK 
 
 further to carry on their business. The alternative was either to 
 make application to the legislature for special charters, or pro- 
 ceed to wind up their affairs. This statute would unquestionably 
 be held unconstitutional at the present time as invalid under the 
 fourteenth amendment of the Constitution of the United States. 
 Individuals and associations had embarked their funds in the 
 banking business in the best of faith ; nevertheless, the legislature 
 restrained them under severe penalty from continuing a business 
 perfectly lawful at its outset and forced them to wind it up, how- 
 ever great the loss. 
 
 Among the institutions affected by this law was the Mer- 
 chants Bank, and it was therefore impelled to press for a charter, 
 which it did at the session of 1805. The bank officials argued that 
 larger banking facilities were necessary in the city of New York ; 
 that when the company put its capital into business, such use of 
 its funds was legitimate ; and that the recent stringent law would 
 cause serious loss to the proprietors unless a charter were granted. 
 Unfortunately for the applicants. Republicans were interested in 
 the Manhattan Company, and also in the State Bank of Albany. 
 DeWitt Clinton and his New York City associates on the one 
 hand, and Justice Spencer and other influential Republicans of 
 Albany on the other, earnestly opposed the bank's application, 
 the American Citizen and the Albany Register assigning as rea- 
 sons why a charter should be refused that the applicants were 
 "Federalists and Tories". Resort to corruption seemed almost a 
 necessity to the applicants if the charter were to be secured, and 
 it was openly charged in the American Citizen by Cheatham that 
 senators had received bribes. In the council of revision, Justice 
 Spencer, who was interested in the State Bank of Albany, nat- 
 urally objected to its approval. But the bank obtained its charter 
 despite his opposition. 
 
 loi 
 
LEGAL AND JUDICIAL 
 
 No further bank charters were sought for some years. The 
 refusal of Congress in 1812 to renew the charter of the Bank of 
 the United States led to an endeavor to secure a charter from 
 New York State for a new bank in the metropolis under the name 
 of the Bank of America, with a capital of six million dollars. 
 The capitalists behind this project felt confident of Federalist sup- 
 port, and equally confident of Republican hostility. To overcome 
 opposition they entered upon a course of bribery and corruption 
 of members, which it is to be feared was in some instances suc- 
 cessful. It becoming apparent to Governor Tompkins that the 
 bill would pass both houses and that a majority of the council of 
 revision was favorable to it, he took the bold and unexampled 
 step of proroguing the legislature for sixty days. But so efficiently 
 had the work been done that when that body met again in May, it 
 passed the bill, which was approved by the council, despite the 
 objections of Spencer, who evidently saw in the new corporation 
 a formidable rival for the State Bank of Albany. The capital of 
 the new bank, he contended, was so great as to constitute a 
 menace to smaller institutions. In his vehement and bitter hostil- 
 ity to the charter, he urged Qinton to take an unqualified stand 
 against it. But Clinton, who was then seeking a nomination for 
 the presidency and who looked to the bank's friends for support, 
 was unwilling to do so, and his refusal to accede to Spencer's 
 wishes led to the rupture of their intimate poUtical relations. 
 
 Uncertain of Clinton, but resolved to defeat the bank charter, 
 its enemies sought to. increase the judicial force so as to obtain 
 the necessary votes for a veto by the council of revision. This 
 attempt shows the appalling extent to which politics affected 
 every branch of the government, for the advocates of an enlarged 
 bench must have felt confident that the council of appointment 
 stood ready to pack the court with judges hostile to the charter. 
 
 102 
 
HISTORY OF NEW YORK 
 
 A bill for the addition of two new judges was introduced in and 
 passed by the assembly. Its passage in the senate was averted 
 when it became known that a majority of the council of revision 
 would veto it, Kent and Lansing leading the opposition. Apart 
 from the motive behind it, the measure in itself was sound and 
 the objections of the council unsound. These objections were 
 that because under the English common law and the colonial 
 government of New York the number of judges in the highest 
 tribunal had never exceeded five, the constitution of the State 
 intended that number to be the maximum. Tompkins, in the con- 
 vention of 1 82 1, declared that the judges had resolved to limit 
 the court in order to retain their control of legislation. 
 
 Whether the solution of the franchise problem which the 
 convention formulated was sufficiently far reaching — and that may 
 be doubted' — its abrogation of the two councils and its general 
 treatment of constitutional questions were wise and were ap- 
 plauded by the people. The sins of a system were to be visited 
 upon the judges themselves, as will be seen in the next chapter. 
 
 9. "The intention of the convention was good, but the clause failed 
 to accomplish the object intended. Witness the proceedings in passing the 
 law to incorporate the Chemical Bank and other institutions in 1825. The 
 only effect of the restrictive clause in the constitution has been to in- 
 crease the evil, by rendering necessary a more extended system of corrup- 
 tion in some form than was before indispensable." Hammond, I, p. 337. 
 
 103 
 
CHAPTER VI 
 
 REORGANIZATION OF THE COURTS IN THE CONVENTION OF 182I — 
 RADICAL ELEMENT INSISTS UPON DESTRUCTION OF EXISTING 
 SUPREME COURT REPORT OF THE COMMITTEE ON THE JU- 
 DICIARY root's amendment AND PROPOSED MERGER OF LAW 
 
 AND EQUITY REJECTION OF ROOT PROGRAM THE TOMPKINS 
 
 AMENDMENT, AIMED DIRECTLY AT EXISTING JUDGES GENERAL 
 
 DEBATE; ROOT ATTACKS, VAN BUREN DEFENDS, THE COURTS — 
 
 TOMPKINS' AMENDMENT REJECTED SELECT COMMITTEE 
 
 FRAMES A NEW PLAN, THAT IS NOT SATISFACTORY — CARPEN- 
 TER'S PLAN FOR THE ABOLITION OF THE EXISTING SUPREME 
 COURT AND THE CREATION OF NEW TRIBUNALS, IN REALITY A 
 REVIVAL OF root's ATTACK UPON THE JUDGES — CARPENTER 
 
 PLAN CARRIED THE NEW TRIBUNALS — EARLY AGE LIMIT 
 
 FIXED FOR JUDGES BY FIRST AND SECOND CONSTITUTIONS — 
 KENT — ^BRIEF REVIEW OF COURTS UNDER THE SECOND CONSTI- 
 TUTION THE SUPERIOR COURT OF NEW YORK CITY — THE 
 
 COURT OF COMMON PLEAS, NEW YORK COUNTY, AND ITS HIS- 
 TORY SUMMARY OF CONVENTION'S WORK ITS ADDRESS TO 
 
 THE PEOPLE STATUTORY REVISION OF 183O — TREATY BE- 
 TWEEN NEW YORK AND NEW JERSEY. 
 
 In the reorganization of the judicial department, the Su- 
 preme Court was destined to fall, as the animosities it had aroused 
 were implacable. The odium in which the council of revision 
 had become involved attached to the judges as members of it. To 
 condemn the system did not satisfy the radical element in the 
 convention; it demanded the political immolation of the judges 
 themselves. The committee on the judiciary department, under 
 
 104 
 
HISTORY OF NEW YORK 
 
 the leadership of Peter Jay Munro, a nephew of John Jay, and of 
 Duer and Wheaton, proposed a moderate measure of reform with 
 few alterations of the old system. The committee's plan retained 
 the Court for the Trial of Impeachments and the Correction of 
 Errors, the Supreme Court, and the Court of Chancery. It con- 
 templated the enlargement of the Supreme Court to a maximum 
 of four justices, and the creation of a Superior Court of Common 
 Pleas, to relieve the Supreme Court judges of nisi prius and oyer 
 and terminer duties. Besides these superior tribunals, there were 
 to be county courts and courts of general sessions of peace, and 
 such other inferior courts as the legislature might establish. The 
 Court of Errors was to be rendered even more unwieldly by the 
 addition of the justices of the Superior Court of Common Pleas. 
 In order to aid the chancellor, "whose duties were so arduous 
 that perhaps no other man in the State would have been equal to 
 their performance", it was proposed to create a vice-chancellor- 
 ship in or near the city of New York, and to permit the vice-chan- 
 cellor not only to preside in equity trials, but to sit in the Court 
 of Errors, and the legislature was to be empowered to create a 
 vice-chancellorship for the western part of the State. The acts 
 and decrees of the vice-chancellor were to be reviewable upon 
 appeal to the chancellor himself. The business of the supreme 
 bench had grown beyond the ability of the judges to manage it ; 
 not more than one-third of the cases on the calendar in New 
 York City were usually tried. Two-thirds of the causes were 
 necessarily passed. The demands of former years for an enlarge- 
 ment of the judiciary were well grounded, yet these had always 
 met an apparently invincible opponent in the judges sitting as 
 members of the council of revision. The committee proposed also 
 to vest all probate and estate jurisdiction in the county courts, 
 excepting in New York county, which was to have a separate 
 
LEGAL AND JUDICIAL 
 
 court for the probate of wills and the grant of letters of adminis- 
 tration. The committee's measure did not go far enough to fur- 
 nish the relief which the majority of the convention believed to be 
 necessary. The people in the western part of the State, in partic- 
 ular, desired more common law judges and readier opportunities 
 to invoke equitable relief. Suitors in chancery ought not to be 
 obliged, they argued, to visit the capital in order to obtain chan- 
 cery aid. Law and equity powers should be united in one set of 
 tribunals. 
 
 Root, by way of amendment, proposed to eliminate the Su- 
 preme Court judges and the chancellor from the Court of Er- 
 rors. He advocated a Supreme Court to consist of a chief justice 
 and not more than four nor fewer than two associate justices. 
 He favored the creation of circuit courts ; the number of circuit 
 judges to be determined by the legislature, but their powers to be 
 the same as the powers of Supreme Court judges at chambers, 
 and they should have authority to try issues joined in the Su- 
 preme Court, and to preside in courts of oyer and terminer, and, 
 if required by law, even in the courts of common pleas and gen- 
 eral sessions of the peace. 
 
 Root's radical program would have clothed the Supreme 
 Court justices with jurisdiction in all cases of law and equity 
 (first accomplished in 1847). It contemplated the abrogation of 
 the existing Supreme Court. Upon Young's suggestion, he agreed 
 to the continuance of the Court of Chancery, with its existing 
 organization subject to legislative pleasure. This proposed amend- 
 ment started an animated debate. Young, Radcliff and others 
 urged the union of chancery and common law jurisdiction in one 
 set of tribunals. Even Kent was willing to favor it in a limited 
 degree. But Munro, Williams, Van Vechten, Wheaton, Duer, 
 Jay and Van Buren supported the committee's report and opposed 
 
 106 
 
HISTORY OF NEW YORK 
 
 Root's plan, and Van Buren went so far as to declare that "no 
 judge of a court of law could feel himself at home in a chancery 
 suit". 
 
 Sanford offered an amendment giving the legislature power 
 to modify or abolish courts of law or equity, and to transfer their 
 functions or jurisdiction from one tribunal to another. This 
 would have put the judiciary under legislative control, and have 
 measurably blended two departments of government which should 
 be kept entirely distinct. Root in reply disclaimed any intention 
 to dispossess the Court of Chancery of its power unless the leg- 
 islature should think proper to abolish it. King insisted that the 
 higher courts ought to repose upon a constitutional basis, beyond 
 legislative modification. The Root plan was rejected by a vote of 
 73 to 36. The question was then taken on the first section of the 
 committee's report — as to the constitution of the judiciary de- 
 partment — and the section was rejected by a vote of 79 to 33. 
 The conflict thus far seems to have been mainly between the 
 friends of a separate chancery court and the advocates of a 
 merger of common law and equity powers in one tribunal, either 
 by constitutional fiat or in legislative discretion. On October 25, 
 Tompkins moved an amendment in which the hostility of the more 
 democratic element to the existing judges was plainly revealed. 
 It provided for a Court of the Trial of Impeachments and Cor- 
 rection of Errors, a Court of Chancery, a Supreme Court with a 
 chief justice, and not fewer than two and not more than four 
 associates, courts of common pleas and general sessions, and such 
 other courts as the legislature might establish. This amendment 
 immediately aroused the friends of the existing judiciary. Its 
 object, said Edwards in opposing it, was "so to frame the consti- 
 tution as to drive the present judges from their stations." Root 
 answered, that as the convention had voted to disband the exist- 
 
 107 
 
LEGAL AND JUDICIAL 
 
 ing senate and to reduce the term of the first judges of the county 
 from a Hfe tenure to five years, the amendment would merely ad- 
 minister like treatment to the Supreme Court judges as these 
 other officials had received, and no complaint had been made of 
 the treatment of senators or first judges of county courts. "Let 
 the Supreme Court judges", he said, "be left, like the first judges 
 of the courts of common pleas, senators, justices of the peace, 
 and other officers of the government, to the appointing powers, to 
 say whether they have so behaved in their oificial stations as to 
 entitle them to reappointment". 
 
 Van Buren, in reply, trenchantly exposed the sophistry of 
 Root's argument. Was the convention prepared, he asked the 
 delegates, to insert an article in the constitution for the sole pur- 
 pose of vacating the offices of the chancellor and judges of the 
 Supreme Court ? The advocates of it had in the select committee 
 "thrown off all disguises". The rule they wished to apply to the 
 chancellor and members of the Supreme Court had no analogy 
 to the case of the first judges of the county court. The incum- 
 bents of those offices had not been removed, but the office itself, 
 as an office during good behavior, had been abolished. If the 
 offices of the existing senators were to be vacated before the close 
 of their constitutional term, that was necessitated by the reconsti- 
 tution of the senate, which was to cease to be the seat of repre- 
 sentatives of freeholders only. If he correctly interpreted the 
 purpose of the Tompkins amendment, was it wise, he asked, to 
 take this extreme step ? Might it not endanger the ratification of 
 the constitution ? He exhorted the delegates to rise superior to 
 feeling. Their constituents demanded no such measure. The 
 convention had altered the impeaching power from two-thirds to 
 a bare majority, and had provided for removal of the chancellor 
 and the judges by a vote of two-thirds in one house and a ma- 
 
 io8 
 
HISTORY OF NEW YORK 
 
 jority of the other. The judicial officer, who could not be reached 
 in either of these ways, ought not to be touched. No public rea- 
 sons called for the proposed amendment, and it ought not to be 
 adopted from personal feelings. If personal feelings might in- 
 fluence any one, he, above all others, might be accused for indulg- 
 ing them. Through his whole life he had been "assailed from that 
 quarter by hostility, political, professional and personal, hostility 
 which had been most keen, active and unyielding. * * * Am 
 I on that account to avail myself of my situation as a representa- 
 tive of the people, sent here to make a constitution for them and 
 their posterity, and to indulge my individual resentments in the 
 prostration of my private and political adversary?" It was un- 
 necessary for him to say that he should forever despise himself, 
 if he could be capable of such conduct. He hoped that that senti- 
 ment was not confined to himself alone, that the convention would 
 not ruin its character and credit by proceeding to such extremi- 
 ties. 
 
 The Tompkins amendment was rejected by a vote of 64 to 
 44. Kent and Spencer, from motives of delicacy, abstained from 
 recording their disapproval of it. This vote and the previous re- 
 jection of the committee's plan left the whole subject in chaos. 
 A select committee consisting of Munro, Tompkins, Root, Buel, 
 Nathan Williams, Van Buren and Schenck was then appointed to 
 report a new plan. This committee was almost hopelessly divided, 
 but by a majority of one (the vote of the presiding officer) it 
 reported the following day for the division of the State into cir- 
 cuits and the appointment of circuit judges with many of the 
 powers of the Supreme Court justices. These judges, and also 
 the chancellor and the justices of the Supreme Court, were to 
 hold office during good behavior, or until the age of sixty years, 
 and were to be ineligible to any other office or public trust during 
 
 109 
 
LEGAL AND JUDICIAL 
 
 their respective terms. The legislature was authorized to create 
 equity tribunals subordinate to the Court of Chancery. 
 
 This report was not satisfactory to the convention. Finally, 
 on November first. Carpenter proposed to create a new Supreme 
 Court to consist of a chief justice and two associates. The state 
 was to be divided into not fewer than four and not more than eight 
 districts, for each of which a district judge should be appointed to 
 hold his office by the same tenure as the justices of the Supreme 
 Court, with the powers of such justices at chambers, and with 
 power to try issues joined in the Supreme Court, to preside in 
 oyer and terminer, and to enjoy such equity jurisdiction as the 
 legislature might see fit to confer upon them, subject to appeal to 
 the chancellor. Chief Justice Spencer, who seems to have fore- 
 cast the determination of the convention to destroy the existing 
 Supreme Court, suggested that the legislature authorize the ap- 
 pointment of circuit judges of like tenure with the Supreme 
 Court judges, to hold terms in such counties as it might designate, 
 and to sit in the Court of Impeachment and Court of Errors in 
 like manner as the Supreme Court judges sat. Spencer's plan in- 
 volved only a slight departure from Carpenter's plan for the ap- 
 pointment of district judges. He had, he said, received his ap- 
 pointment from the venerable first governor of the State; he had 
 been in office eighteen years ; his term would expire by constitu- 
 tional limitation in less than five years, and, as his friends knew, 
 he had often contemplated resigning it. The defects of the sys- 
 tem had occupied the attention of the judges, and while he be- 
 lieved that with the addition of one or two to their number, they 
 would be able for years to come to transact all their business, he 
 would favor the plan of appointing circuit judges, provided they 
 were to hold office during good behavior. With an adequate 
 salary and such a tenure, men of the requisite legal requirements 
 
 no 
 
HISTORY OF NEW YORK 
 
 and of integrity and character might be obtained. As for himself, 
 if the public good required his removal, he should say, "amen, to 
 it". Root supported Carpenter's plan, as did Livingston. 
 Wheaton, in order to preserve the existing Supreme Court, fore- 
 seeing the possibility of its abrogation, and resolved upon pro- 
 curing an explicit vote, offered an amendment to the Carpenter 
 resolution to the effect that the limitation of the number of judges 
 should not take effect until their number should have been reduced 
 to three by death, resignation, the constitutional limitation of their 
 term, or removal from their office. 
 
 Duer, who had voted against the Tompkins arnendment, op- 
 posed the Wheaton proviso ; Van Vechten advocated it ; the con- 
 vention rejected it 66 to 39, and thereupon passed Carpenter's 
 amendment, 62 to 53. Thus the party of Root, Livingston and 
 Tompkins, whose constant aim had been to depose the judges 
 then in office, won by the substitution of a form of court that 
 necessitated new appointments. It may be, as was charged, that 
 there were men in the convention who aspired to succeed Spencer 
 and his associates. Subsequently, the word "circuit" was substi- 
 tuted for "district," and, as so amended, the judiciary article was 
 carried. 
 
 Thus the chancellor and judges were forced out of office 
 because of public irritation against a vicious system for which 
 they were not responsible. There were other palpable errors re- 
 garding the judiciary in the constitution of 1777. The judges of 
 the Supreme Court often became political partisans. While the 
 tenure of their office secured them from removal and from the 
 fate of other political partisans, that very immunity, as Ham- 
 mond well says, emboldened them to be guilty of greater violence 
 as partisans. And although they could not be removed from office, 
 yet they were free to accept nominations for better offices. Jay, 
 
 III 
 
LEGAL AND JUDICIAL 
 
 in 1792, while still Federal chief justice, ran for the governorship, 
 although with reluctance. Joseph C. Yates was elected to 
 that office, as the first governor under the second constitution 
 shortly after the loss of his commission as Supreme Court judge. 
 Smith Thompson, before his elevation to the Supreme Court at 
 Washington had been district attorney of the old middle district, 
 associate and afterwards chief justice of the State Supreme 
 Court, and Secretary of the Navy under President Monroe. 
 Tompkins was successively judge, governor and vice-president of 
 the United States. Lewis and Marcy also found the bench the 
 stepping stone to high political office. To-day, it is exceptional 
 for judges to court political preferment, and the gain to the bench 
 is correspondingly great when its members, in the spirit of Kent, 
 consider that ambition can ask no place of loftier dignity or 
 larger usefulness. 
 
 The second constitution created a new Court of Errors, 
 with substantially the same jurisdiction as had been pos- 
 sessed by the court organized in 1777, but the senatorial 
 membership was enlarged to 32. The court, which lost its 
 aristocratic tinge when the freehold restriction for sena- 
 tors was abolished, continued however until January i, 1847. The 
 State was divided into circuits not fewer than four nor more than 
 eight in the number, as the legislature might determine, for each 
 of which a circuit judge was to be appointed in the same manner 
 and to hold his office by the same tenure as the justices of the Su- 
 preme Court. Each circuit judge was to possess the powers of a 
 Supreme Court justice at chambers, and in the trial of issues 
 joined in the Supreme Court and in Courts of Oyer and Terminer. 
 The legislature was authorized to clothe the circuit judges and 
 subordinate courts with equity powers, subject to the appellate 
 jurisdiction of the chancellor. Neither the chancellor, nor the 
 
 112 
 
HISTORY OF NEW YORK 
 
 justices of the Supreme Court, nor any circuit judge could hold 
 any other office or public trust. To interdict the use of judicial 
 place as the pathway to other office, the constitution provided 
 that all votes for any elective office given by the legislature or the 
 people, for the chancellor or a justice of the Supreme Court or 
 circuit judge during his continuance upon the bench should be 
 void. 
 
 The provision of the first constitutions terminating judicial 
 activity at sixty has frequently been criticised. Hamilton, in the 
 Federalist, in 1788, after declaring that of all the faculties of the 
 human mind the judgment is most improved and refined by age, 
 said : "In a republic where fortunes are not affluent and pensions 
 not expedient, the dismission of men from stations in which they 
 have served their country long and usefully, on which they depend 
 for subsistence, and from which it would be too late to resort to 
 any other occupation for a livelihood, ought to have some better 
 apology to humanity than is to be found in the imaginary danger 
 of a superannuated bench.'' That this limitation should have 
 been continued under the second constitution was, according to 
 Mr. William Johnson, Kent's intimate friend and the first State 
 reporter, cause for unfeigned astonishment. "We might", he 
 said, "search in vain the history of mankind from the first insti- 
 tution of civil government to the formation of the Constitution of 
 the State of New York for a similar limitation. It is opposed to 
 the opinions of the greatest law-givers, statesmen and political 
 writers in all those states and countries to which we are accus- 
 tomed to look for the lights of wisdom and the lessons of experi- 
 ence. It is a satire on the intellect of the bar and a standing re- 
 proach to the discernment and integrity of those to whom is en- 
 trusted the power of appointment to office, for it is almost certain 
 that one fit to be a judge at forty, will be equally if not more com- 
 
 113 
 
LEGAL AND JUDICIAL 
 
 petent at sixty years of age."^ It is a well known fact that the 
 celebrated Commentaries were the fruit of Kent's post- judicial 
 years.^ 
 
 1. In an address before the Association of the Bar of the City of 
 New York, "The Revision of the Statutes of the State of New York and 
 the Revisers," January 22, 1889, the late William Allen Butler, son of 
 Benjamin F. Butler, one of the revisers, said: "The first draft of the Ju- 
 diciary Article of the Constitution of 1821 extended the tenure of the 
 judicial officers to seventy years of age, but by some sinister influence 
 the unreasonable limitation of sixty years was substituted by the Conven- 
 tion." 
 
 2. The modern lawyer is bewildered with a multitude of precedents, 
 but the early bar of the State regretted the paucity of decisions. Not a 
 single opinion by Jay or his associates, or by Chancellor Livingston or 
 Lansing, is to be found in the books. There was no authorized law re- 
 porter until 1804. "When I came to the bench," says Kent, "there were no 
 reports or State precedents. The opinions from the bench were delivered 
 ore tenus. We had no law of our own and nobody knew what it was. 
 I first introduced a thorough examination of cases and written opinions. 
 * * * This was the commencement of a new plan and then was laid 
 the first stone in the subsequently erected temple of our jurisprudence. I 
 gradually acquired a preponderating influence with my brethren, and the 
 volumes in Johnson after I became the chief justice in 1804 show it. The 
 first practice was for each judge to give his portion of opinions when we 
 all agreed, but that gradually fell off and for the last two or three years 
 before I left the bench, I gave the most of them. I remember that in the 
 8th Johnson all the opinions for one term are 'per curiam'. The fact is, 
 I wrote them all, and proposed that course to avoid exciting jealousy and 
 many a per curiam opinion was so inserted for that reason." 
 
 The practice which Kent inaugurated as judge, he carried into equity 
 when, in 1814, he was appointed chancellor to succeed John Lansing, jun- 
 ior, the successor of the distinguished Robert R. Livingston. The nine 
 volumes of Johnson's Chancery Reports bear ample testimony to Kent's 
 study and erudition. "In February, 1798", he naively tells us, "I was ap- 
 pointed to the office of judge of the Supreme Court. This was the grand 
 object of my ambition for several years past. It appeared to me to be 
 the true situation for the display of my knowledge, talerits and virtue, the 
 happy means of placing me beyond the crowd and pestilence of the city, 
 of giving me opportunities to travel and to follow literary pursuits, — a 
 taste which is after all the most solid and permanent of lall sublunary en- 
 jo3rments. By the acceptance of this office I renounced all my offices in 
 New York with all their accumulated income and all my prospects of 
 wealth, for a moderate but permanent support, for leisure to study, for 
 more rational enjoyments, for a more dignified reputation. Whether or 
 no I judged well for my happiness must be left to the event to decide, 
 and this depends also in a great degree upon my own taste and disposition. 
 This is certain that the mere men of business and pleasure, who estimate 
 happiness by the income, and by the splendid luxuries of city life, all 
 condemned my choice as mad and absurd. But men of patriotism and re- 
 flection, who thought less of riches and more of character, if they did not 
 approve, were yet more slow to condemn. My present impression is so 
 
 114 
 
HISTORY OF NEW YORK 
 
 For twenty-four years, under the second constitution, the 
 State enjoyed the benefit of a judiciary appointed by the executive 
 with the approval of the senate. Many of the judges under the 
 first constitution were learned jurists,' but it is an undeniable 
 truth that those who came to the higher courts by the governor's 
 appointment after 1822 were uniformly lawyers of conspicuous 
 learning and ability, whose opinions shed a lustre upon our juris- 
 prudence which has not been dimmed by any brilliancy of the 
 bench in later years. 
 
 Of the governor's appointees, Woodworth was the first to 
 retire. He was followed, in 1829, by William L. Marcy, who 
 resigned in 1831 to enter the senate of the United States. During 
 his occupancy of the bench, says Hammond, "he acquitted himself 
 in a manner satisfactory to the bar and the public, and afforded 
 decisive evidence of integrity and impartiality". The great jurist 
 who succeeded Marcy was Samuel Nelson. He had been a judge 
 of the Sixth Circuit, where he had made a splendid record. In 
 1845 he was nominated by President Tyler to the supreme bench 
 at Washington,* where he remained until his resignation in 1872, 
 when he was succeeded by Ward Hunt, who had sat in the New 
 York Commission of Appeals. Esek Cowen succeeded Suther- 
 land, in 183s, and Greene C. Bronson took his seat in the court in 
 the same year, upon Chief Justice Savage's resignation. Samuel 
 
 unfavorable to public liberality and public justice and to the belief of the 
 eventual success and credit of firm and upright government, that I think 
 ft questionable whether I calculated well or ill when I abandoned the of- 
 fice of recorder and master and took that of judge." 
 
 3. "Judge Hobart, who for twenty years bad aided to give the de- 
 cisions of the court such strength and character as they had, was not a 
 lawyer— he had not been educated to the profession of law" (D. D. Barn- 
 ard on Ambrose Spencer, p. 47). 
 
 4. Tyler had first tendered to Silas Wright, then a senator at Wash- 
 ington, the vacant seat of the late Smith Thompson, but as Wright de- 
 clined it, he oflfered it to Chancellor Walworth. But the senate did not 
 confirm Walworth, and Tyler's next choice was Judge Nelson. 
 
 "5 
 
LEGAL AND JUDICIAL 
 
 Beardsley, who obtained Bronson's place as attorney general, was 
 subsequently appointed to the Supreme Court. The office of at- 
 torney general was often the avenue to judicial distinction. Down 
 to 1845, four of the State Supreme Court justices had been hon- 
 ored with seats in the Supreme Court of the United States, — John 
 Jay, Brockholst Livingston, Smith Thompson, and Samuel Nel- 
 son. Since that date the State has given to the highest Federal 
 tribunal Ward Hunt, Rufus W. Peckham and Charles E. Hughes.^ 
 Robert R. Livingston was Jefferson's minister to France in 1801, 
 and Marcy received the portfolio of war in Polk's cabinet. The 
 circuit judges were notable jurists, — Ogden Edwards, Samuel A. 
 Betts, William A. Duer, Reuben H. Walworth, afterwards chan- 
 cellor, Nathan Williams, a brilliant advocate, William Kent, the 
 great chancellor's son and biographer, and Charles H. Ruggles, 
 Hiram Denio and Amasa J. Parker, all three of whom afterwards 
 sat in the Court of Appeals. The recital of such distinguished 
 names and the memory of their famous successors should arouse 
 the bar to a sense of the duty of always maintaining a high stand- 
 ard in the judiciary, for the bar is no less potent to-day than 
 formerly. It has only to make its influence felt. 
 
 The old Superior Court of the City of New York, which had 
 been organized in 1828, was one of the tribunals that derived ad- 
 vantage from the new system of appointment. Governor Pitcher 
 appointed to the chief judgeship Samuel Jones, once chancellor 
 of the State, and as associate judges, Josiah Ogden Hoffman, a 
 former attorney general, an ex-member of Congress, and a 
 renowned advocate, and Thomas J. Oakley, who had been 
 surrogate of Dutchess county, attorney general and an antagon- 
 
 S. Roscoe Conkling, who was appointed by President Grant, never 
 qualified. Associate Justice Samuel Blatchford went from the United 
 States Circuit Court. 
 
 116 
 
HISTORY OF NEW YORK 
 
 ist of Wirt and Webster in the celebrated case of Gibbons v. Og- 
 den. Oakley became chief judge when Jones resigned in 1847 to 
 enter the then newly created Court of Appeals. The Superior 
 Court, the judges in which became elective in 1847, was enlarged 
 in 1849, and John Duer became one of its members. Lewis H. 
 Sandford, William W. Campbell,' Joseph S. Bosworth, Murray 
 Hoffman, Lewis B. Woodruff and Edwards Pierrepont, not to 
 prolong the list, also sat in that court. A bench of this distinction 
 naturally attracted a great volume of important litigations, in 
 which the most eminent members of the city bar participated. 
 
 The new judicial system was in many features a compromise 
 and, as might have been anticipated, it failed to give full satis- 
 faction, and Giovernors DeWitt Clinton, Marcy and Seward ad- 
 vocated reforms in it in their various messages to the legislature. 
 In the message of 1841, Governor Seward set forth that the ad- 
 ministration of justice was retarded and made oppressive by the 
 defective organization of the courts; that the Court of Chancery 
 was incapable of performing its duties ; that causes remained on 
 its calendar two years; that its patronage was too great to be 
 reposed in a single judge ; that the Supreme Court was in arrears 
 in its business ; that fees were excessive and legal forms and pro- 
 ceedings unnecessarily tedious and prolix. The necessity of re- 
 organizing the courts and simpUfying judicial procedure was a 
 leading motive to the call of the convention of 1846. 
 
 The Supreme Court was first established in 1691, but the 
 Court of Common Pleas of the City of New York is far older, 
 and traces its lineage through the mayor's court back to the Dutch 
 period.' In every town and village in Holland there had been 
 
 6. Father of Douglas Campbell, author of "The Puritan in Holland, 
 Jtngland and America." Judge Campbell himself wrote the "Annals of 
 Tryon County." 
 
 7- Judge Charles P. Daly, in an Introduction to i E. D. Smith, has 
 written an interesting monograph, to which I am indebted. 
 
 117 
 
LEGAL AND JUDICIAL 
 
 long prior to the settlement of New Amsterdam a local tribunal 
 combining dual functions, — judicial and municipal. This court 
 consisted of the burgomaster and schepens, usually elected, the 
 former a sort of mayor, and the latter having a resemblance to 
 aldermen, and with these were associated an official known as a 
 schout, who, besides acting as a prosecuting officer, performed 
 some of the duties of a sheriff. Local courts of this description, 
 from which appeals lay to the supreme council of the province, 
 may be traced as far back as 1650, despite the disposition often 
 evinced by the governors to assume their powers. The "wor- 
 shipful court of the schout, burgomaster and schepens," with its 
 remarkable knowledge of Dutch law, which Stuyvesant in one of 
 his proclamations contemptuously styled the "little bench of jus- 
 tice," was in the main permitted to exercise its judicial functions 
 without interference by the governor. It acted also as a court of 
 admiralty and as a court of probate. It had its criminal side, the 
 schout acting as a district attorney. Similar courts existed at 
 Breucklen, Jamaica, Albany, and other places, although in those 
 portions of the province in which the patroons enjoyed manorial 
 privileges the patroons' court exercised practically all judicial 
 power, as they were authorized to establish within their territory 
 courts of justice with unlimited civil and criminal jurisdiction, 
 with the right of appeal to the director general and council of 
 New Amsterdam. 
 
 When New Amsterdam surrendered to the English in 1664, 
 the judicial system of the province consisted of these local courts, 
 the patroon courts, and a supreme or appellate court composed 
 of the governor and council. The terms of capitulation preserved 
 the tenure of the inferior civil officers and magistrates, and the 
 administration of justice in the court of the burgomaster and 
 schepens continued under English rule almost as though there had 
 
 118 
 
HISTORY OF NEW YORK 
 
 been no change of government. The Duke's Laws provided for 
 justices of the peace in the various towns, and courts of sessions 
 composed of all the justices living within any one of the three 
 "ridings" into which the province was divided. These courts had 
 both civil and criminal jurisdiction, and were also courts of pro- 
 bate. From the judgment of a Court of Sessions an appeal lay to 
 the Court of Assize, then the highest tribunal in the province, held 
 by the governor and his council.* 
 
 On June 12, 1665, Nicolls by proclamation abolished the 
 court of burgomaster and schepens, and conferred its powers 
 upon the mayor, alderman and sheriff, which became the cor- 
 porate name of the city.' The magistrates who formed the previ- 
 ous tribunal were reappointed, and the court of burgomaster and 
 schepens became the Mayor's Court, which title it held until 
 1821. This court was distinctly recognized by the charter 
 granted to the City of New York by Governor Dongan, the Don- 
 gan charter providing that the mayor, recorder and aldermen 
 might hold a court of common pleas within the city every Tues- 
 day for the trial of all actions of debt, trespass, or trespass upon 
 the case, detinue, ejectment or other personal action accord- 
 ing to the rules of the common law and the acts of the 
 general assembly of the province. The mayor or recorder, or 
 three or more aldermen, not exceeding five, were also clothed 
 with the powers of justices of the peace, and might hear and de- 
 termine all manner of petty larcenies, riots, routs, oppression and 
 extortions and other trespasses and offences in the city. This 
 charter effected a distinct separation between the legislative and 
 judicial functions of the mayor, recorder and aldermen, the com- 
 
 8. Out of this court grew the colonial legislature, but the legislative 
 powers and the judicial functions were not allowed to conflict. 
 
 9. City Charter and Kent's Notes, p. 108. 
 
 119 
 
LEGAL AND JUDICIAL 
 
 mon council having the legislative power, the Mayor's Court hav- 
 ing jurisdiction of civil actions, and the Court of Sessions, con- 
 sisting of the mayor, recorder and aldermen, having criminal 
 jurisdiction exclusively. The Mayor's Court was afterwards 
 stripped of its probate and prerogative powers. Prior to the 
 Revolution, a judge of probate was appointed for the province, 
 and by the act of 1778 all powers which had been vested in the 
 governor of the colony as judge in probate matters were vested 
 thereafter in the Court of Probates and in 1787 an act was passed 
 authorizing the governor, with the consent of the council of 
 appointment, to commission a surrogate for every county. 
 
 The county courts were recognized by the first constitution, 
 and were reorganized after the ratification of the second. The 
 Mayor's Court was continued, the mayor and the recorder sit- 
 ting in it, and also in the Court of Sessions. Such distinguished 
 mayors as Edward Livingston and DeWitt Clinton, and such 
 eminent recorders as Samuel Jones, James Kent, Marturin Liv- 
 ingston, Josiah Ogden Hoffman and Peter A. Jay presided at 
 the trial of causes in that tribunal. The Mayor's Court had a 
 brilliant history, and was hardly exceeded in importance by the 
 Supreme Court of the State. During the early years of the 
 nineteenth century, renowned judges presided in the Mayor's 
 Court, and the greatest of lawyers practiced there, — among whom 
 the most notable were Alexander Hamilton, Aaron Burr, Robert 
 Troup, Edward and Brockholst Livingston, Egbert Benson, 
 Morgan Lewis, Josiah Ogden Hoffman and John Jay. The cele- 
 brated cause of Rutgers v. Waddington, the first in the history 
 of the country to involve discussion of the principles of consti- 
 tutional law and the law of nations, and perhaps the first in which 
 a State law was adjudged invalid, was tried in that court be- 
 fore Judge James Duane. The importance of the tribunal led 
 
 120 
 
HISTORY OF NEfF YORK 
 
 in 1821 to its reorganization under the name, the Court of Com- 
 mon Pleas for the City and County of New York, with a first 
 judge to hold office during good behavior or until he should at- 
 tain the age of sixty years. When, by the constitution of 1822, 
 power of appointment of judicial officers was lodged in the 
 governor, the tenure of office of the first judge was changed to 
 five years, but the mayor, recorder and aldermen still sat as 
 justices. John T. Irving, a brother of Washington Irving, was 
 appointed first judge by Governor Yates. In 1834, owing to the 
 growth of business, the office of associate judge was created, and 
 Michael Ulshoeffer, the distinguished member of assembly in 
 1820, who crossed swords with Chancellor Kent about the con- 
 vention bill of that year, was appointed to the position of asso- 
 ciate judge with all the powers of the first judge. After the 
 adoption of the constitution of 1847 the judges of the court be- 
 came elective. It has had a long and distinguished history, for 
 besides the mayors and recorders who have presided in it, John 
 T. Irving and Michael Ulshoeffer, the late Daniel P. Ingraham 
 (father of Presiding Justice George L. Ingraham), Charles P. 
 Daly, Lewis B. Woodruff, as well as other and more recent 
 judges, have sat in the court. 
 
 The convention of 1821 was an unqualified victory for popu- 
 lar rights. It enfranchised a large and deserving class of citi- 
 zens; it made the governor a real power, and differentiated the 
 government more clearly into three departments, — executive, 
 legislative and judicial, — all of which were fused under the first 
 charter. It rendered the senate and the governor agents of the 
 people as fully as the assemblymen. It retained the framework 
 of the old judicial fabric, but increased the judicial force. It 
 incorporated into the organic law a fuller bill of rights. By it, 
 as Governor Yates said in his message to the legislature in Janu- 
 
 121 
 
LEGAL AND JUDICIAL 
 
 ary, 1823, the government had been adapted to the feeUngs and 
 views of the community "the only proper standard by which a 
 good government can be formed." But the report of the conven- 
 tion was not unanimous, nine of the delegates voting against it. 
 
 The constitution was submitted as a whole, for reasons which 
 were stated in the address of the delegates to the people, dated 
 November 10, 1821, and said to have been composed by Erastus 
 Root. This course was adopted "from a sense of the great diffi- 
 culty, if not impracticability, of submitting to the people for their 
 ratification, in separate articles, the various amendments which 
 have been adopted by majorities of the convention. This difficulty 
 is very much increased by the reflection that the adoption of 
 some articles, and the rejection of others, might greatly im- 
 pair the symmetry of the whole. The convenience of having the 
 amendments incorporated with those parts of the constitution 
 which are to remain unaltered, will readily be perceived. We, 
 therefore, submit to the people, the choice between the old and 
 the amended constitution". This submission took place on Janu- 
 ary 15-16-17, 1822. By the act of March 13, 1821, approving 
 the convention, every person entitled to vote for delegates was 
 made eligible to vote upon the convention's work. The returns, 
 as filed in the office of the secretary of state in February, 
 showed that there were 75,422 votes for the constitution, and 
 41,497 against it. 
 
 The history of this period would be incomplete without brief 
 reference to the revision of the statutes of the State, necessitated 
 in large measure by the radical changes of polity introduced by 
 the new constitution. The revisers named in the statute author- 
 izing the revision (April 21, 1825) were John Duer, Benjamin 
 F. Butler and Heniy Wheaton, all of whom had been leading 
 members of the convention. With them for a time was asso- 
 
 122 
 
HISTORY OF NEW YORK 
 
 ciated Erastus Root, "but, as an active and veteran party leader 
 and an able advocate of the older type, he was neither adapted 
 nor inclined to the work of a pioneer in legal reform". Wheaton, 
 in April, 1827, became Charge d' Affaires of the United States to 
 Denmark, and to his place Governor Clinton appointed John C. 
 Spencer, son of Chief Justice Ambrose Spencer. In the inter- 
 val that had elapsed since the passage of the statutes, a projet 
 or outline of revision had been prepared by Duer and Butler, 
 and upon its lines the revision was subsequently executed. This 
 monumental undertaking, comparable with the work entrusted by 
 Justinian to Tribonian and his associates and with the codifica- 
 tion of French law by Napoleon when First Consul, antedated 
 all efforts in Great Britain for a scientific and orderly arrange- 
 ment of jurisprudence. DeWitt Clinton, with his comprehen- 
 sive cast of mind, had in 1825 not only urged a revision of the 
 statutes, but had also favored the preparation of a complete code 
 of law, and Edward Livingston had drafted for the state of 
 Louisiana a code largely based upon the Code Napoleon. In 
 England the inertia of the legal profession still tolerated the in- 
 consistencies and intricacies of the common law system, whose 
 criminal jurisprudence was a sort of Draconic code, and it is 
 to the merit of New York that, while Sir Samuel Romilly, Ben- 
 tham, Brougham and Austin were engaged in exposing the defects 
 of the English system, the legislature should have authorized an 
 enterprise fraught with such vast consequences to jurisprudence 
 both in this State and in other States of the Union. 
 
 The fundamental idea of the revisers was clarification and 
 simplification of law, and its emancipation from the many harsh 
 and almost uncivilized rules of the common law. They proposed 
 to reduce the volume of law by the emplo3mient of concise, simple 
 and intelligible language, and the elimination of "uncertainties 
 
 123 
 
LEGAL AND JUDICIAL 
 
 and obscurities arising from the long and involved sentences and 
 from the intricate and obsolete diction" in which the law had been 
 written, and thus facilitate acquisition of a knowledge of the law 
 as a science. It was their hope also that the successful execution 
 of their plan might lead other states to emulate New York's ex- 
 ample. The revision as outlined subdivided the statutes under 
 several heads, — one relating to the territory, the political divi- 
 sions, the civil polity, and the internal administration of the State ; 
 another, to the acquisition, enjoyment and transmission of prop- 
 erty, to domestic relations and private rights ; a third branch con- 
 cerned itself with the judiciary establishments and procedure in 
 civil causes; a fourth embraced the whole subject of crime and 
 punishment, criminal procedure and prison discipline; and the 
 last dealt with public laws of a local and miscellaneous character, 
 among them the laws of the city of New York, acts incorpor- 
 ating cities and villages, and other acts of incorporation. This 
 comprehensive scheme was executed with remarkable celerity and 
 at an expense so small that the labors of the revisers may be said 
 to have been almost gratuitous. 
 
 The complexities of the law of real estate, with its innumer- 
 able subtleties and refinements, the outgrowth of centuries, were 
 supplanted by a simple and comprehensive code containing few 
 radical departures from the prevailing system, and perhaps no 
 portion of the undertaking of the revisers was more splendidly 
 accomplished. Almost unchanged has it withstood the criticism 
 of generations.^" Chancellor Kent, who declined an appointment 
 as reviser, declared in an eloquent tribute to the revisers' work 
 that "much of the labor, the plan and order of the work, the cor- 
 
 10. The lethargy of the professional mind is amusingly described by 
 Mr. William Allen Butler in his monograph "The Revision of the Statutes 
 of the State of New York and the Revisers", 1889, 48, in the story told 
 about Peter A. Jay and the abolition of the rule in "Shelley's Case." 
 
 124 
 
HISTORY OF NEW YORK 
 
 rectness of its style, the learning of the notes, the marginal refer- 
 ences, and the admirable index, should be ascribed to the skill 
 and matchless assiduity of Mr. Butler"." The appearance of the 
 Revised Statutes was, as William Allen Butler has felicitously 
 said, "an event of the first magnitude", coming almost as a sur- 
 prise to "the profession at a time when the earlier agitation of 
 the question of reform in England had demonstrated the need of 
 change and improvement, without introducing any new methods 
 to supersede old abuses". 
 
 The attempt in the Revised Statutes to determine the bound- 
 aries of the State aroused anew the claims of New Jersey to a 
 portion of the territory of New York, and led to a treaty between 
 the two States. 
 
 The controversy between New York and New Jersey dated 
 from the colonial period. The Dongan Charter granted by 
 James II. to the city of New York in 1686, conveyed ownership 
 of and jurisdiction over all the waters of the bay of New York 
 and of the Hudson river west of Manhattan Island, and south of 
 Spuyten Duyvil creek to low water mark on the New Jersey 
 shore. The territorial limits of the city of New York according 
 to the Montgomery Qiarter of 1730, extended across the North 
 river to low water mark on its west side. Statutes passed both 
 by the colonial and the State legislature acknowledged and con- 
 firmed these rights of the city. The colonial legislature passed 
 such an act on October i, 1691 ; acts of the State legislature fol- 
 lowed on October 14, 1732, March 7, 1788, and February 28, 
 1791 ; and the city's jurisdiction over Bedloe's Island and other 
 islands west of the middle line of the bay was further acknowl- 
 
 II. Id., page 52. See also I, Revised Statutes of New York, ist ed. ; 
 Revisers' Reports and Notes, vol. V, New York Statutes at Large, edited 
 by Hon. John W. Edmonds. 
 
 125 
 
LEGAL AND JUDICIAL 
 
 edged by statutes passed in 1800, 1803, 1813, 1825 and 1829. The 
 claim may not have been always unequivocally asserted, but it 
 was never abandoned. New Jersey consistently disputed New 
 York's contention. 
 
 In 1807, commissioners were appointed by the two States to 
 settle the dispute, but they separated without reaching any result. 
 New Jersey, in June, 1829, filed a bill in the Supreme Court of 
 the United States against the State of New York to have the 
 boundary line determined, but the suit was subsequently dismissed 
 (New York State refusing to appear) because of agreement upon 
 the treaty of 1834. Under the laws passed by the respective States 
 authorizing such action, the governor of each State appointed 
 three commissioners to negotiate and agree with a similar number 
 of commissioners appointed by the other State "respecting the 
 territorial limits and jurisdiction" of the two States. The com- 
 missioners on behalf of New York were Benjamin F. Butler, 
 who had recently completed his work of revision of the statutes, 
 Peter Augustus Jay, and Henry Seymour (father of Horatio 
 Seymour) ; on the part of New Jersey, Theodore Frelinghuysen, 
 James Parker and Lucius Q. C. Elmer. The agreement or treaty 
 was signed by the commissioners on September 16, 1833, was 
 confirmed by New York on February 5, 1834 (Laws of 1834, 
 Chapter 8, page 8) ; and by New Jersey on February 26, 1834 
 (Laws of 1834, page 118) ; and was approved by Congress by act 
 of June 28, 1834 (Chapter 126, 4, Statutes at Large, 708). 
 
 This treaty was construed in 1862 in State v. Babcock (i 
 Vroom, N. J. Law, 29), and in 1867 in People of the State of 
 New York v. Central Railroad Company of New Jersey (42 N. 
 Y., 283). It is an interesting fact that Judge Elmer, who wrote 
 the opinion in the New Jersey case, had been one of the commis- 
 sioners for New Jersey, and that he took a more favorable view 
 
 126 
 
HISTORY OF NEW YORK 
 
 of the rights acquired by New York under the treaty than did 
 the majority of the judges of the Court of Appeals. Exclusive 
 jurisdiction not only over the water but over the land to the low 
 water line on the Jersey shore was, in his opinion, "in plain and 
 unmistakable language, granted to, or rather acknowledged to 
 belong to, the State of New York." The treaty has recently been 
 under consideration by the Supreme Court of the United States 
 in Central Railroad Company of New Jersey v. The Mayor and 
 Aldermen of Jersey City (209 U. S., 473), in which the court 
 upheld New Jersey's contention that she had the right to tax 
 lands under water lying between the middle of New York bay 
 and low water line on her own shore. 
 
 Slaves were familiar figures in New York households in the 
 earlier part of the nineteenth century. The last vestige of this 
 "institution" disappeared with the emancipation of July 4, 1827. 
 Within a few years afterwards, the State abolished imprisonment 
 for civil debt (1831)," inaugurated needed reforms in prison 
 discipline, and expanded its common school system. 
 
 Ten separate propositions of amendment to the second consti- 
 tution were at different times submitted by the legislature to the 
 voters of the State, six of which were adopted. The most impor- 
 tant were the amendment of 1826, abolishing all property qualifi- 
 cations for white voters ; the amendment of 1834, giving the elec- 
 tors of the city of New York qualified to vote for other municipal 
 officers, the right to vote for mayor, the appointment of that of- 
 
 12. This was the outcome of the "Stilwell Bill," which had been 
 urged by a petition from New York City and referred to a select com- 
 mittee of which Stilwell was made chairman. Weed declares that the 
 bill elicited "long and animated debate in both houses". It was seriously 
 argued in opposition that if the old law were repealed poor men would 
 no longer be able to obtain credit. "Dickens might have found in any of 
 our county jails materials as touching as those upon which the story of 
 'Little Dorrit' was founded". Thurlow Weed, Autobiography, I, pp. 379, 
 380. 
 
 127 
 
LEGAL AND JUDICIAL 
 
 ficial thus being taken away from the common council of that city ; 
 and the extension in 1838 of a like privilege to voters in all other 
 cities of the State. 
 
 128 
 
CHAPTER VII 
 
 CANALS — TOPOGRAPHY OF NEW YORK STATE AND EARLY EFFORTS 
 FOR A CANAL FROM THE HUDSON TO THE GREAT LAKES CON- 
 STRUCTION OF ERIE CANAL AUTHORIZED — ^LATERAL CANALS 
 
 STATE AID TO RAILROADS — ERIE ENLARGEMENT PROPOSED 
 
 INTERNAL IMPROVEMENTS — PUBLIC DEBTS — STOPPAGE OF WORK 
 UPON THE CANALS — ^ACT OF 1842 AND ITS POLICY — ATTEMPT 
 AT REPEAL — GOVERNOR WRIGHt's VETO AND ITS EFFECT UPON 
 HIS POLITICAL CAREER — PUBLIC DEMAND FOR A CONSTITU- 
 TIONAL CONVENTION AND FOR CONSTITUTIONAL RESTRICTIONS 
 UPON STATE DEBTS AND PROHIBITION OF LOAN OF STATE 
 CREDIT TO PRIVATE ENTERPRISES, AND FOR JUDICIAL REFORM 
 — PASSAGE OF LAW RECOMMENDING A CONSTITUTIONAL CON- 
 VENTION — VOTE FOR A CONVENTION THE APPORTIONMENT OF 
 
 1846. 
 
 The constitution which took effect, as a whole, on January i, 
 1823, remained in existence for twenty-four years. During a 
 large part of the time, the State enjoyed almost unexampled pros- 
 perity. Men of ability and sagacity, most of whom afterwards ac- 
 quired national reputation, filled its gubernatorial chair. Its judi- 
 ciary numbered some of the most exalted names in the annals of 
 its jurisprudence. The advancement of the State was, however, 
 largely due to its canal system, which attracted immigration, 
 augmented the revenues of the State, imparted value to the land 
 in its middle tier of counties, and summoned villages and towns 
 into life. The Appalachian range, which in the States south of 
 New York raises a barrier between the Atlantic ocean and the 
 
 129 
 
LEGAL AND JUDICIAL 
 
 Mississippi valley, falls away almost to a level between Lake 
 Erie and the Hudson river. That nature had made it possible 
 for the Great Lakes and the Hudson river to be united by a 
 canal through New York State, whereby commerce might be 
 floated to and from the great inland water system and the ocean, 
 had impressed the imagination of far-seeing men even in the 
 eighteenth century, but it was reserved for DeWitt Clinton to 
 give practical form to their ideas. Clinton himself, writing un- 
 der the nom de plume of "Tacitus," declared that the idea of a 
 connection would almost naturally occur to the visitor to the 
 western country; the merit lay in the initiation of a procedure 
 to carry it into execution. Here Clinton was concededly pre- 
 eminent. The defeat of his aspirations for the presidency kept 
 him at home and gave him opportunity to devote -his zeal and 
 talents to the cause of the canals. 
 
 The value of a canal as a unifying force, linking the States 
 into closer relationship, was appreciated by Washington. The 
 success of Fulton's "Clermont," in 1807, was also a factor in 
 canal development, as by shortening the sailing time between 
 New York and Albany it aroused desire in the newer regions of 
 the state for quicker transportation to the seaboard.^ The legis- 
 lature in 1808 appointed a joint committee to "take into consid- 
 eration the propriety of exploring and causing an accurate sur- 
 vey to be made of the most eligible and direct route for a canal 
 to open a communication between the tide waters of the Hudson 
 River and Lake Erie", and the committee was expected to obtain 
 aid from Congress. By a concurrent resolution, March 13 and 
 15, 1810, the senate and the assembly appointed a commission to 
 explore a route from the river to Lake Ontario and Lake Erie, 
 
 I. "Artificial Waterways and Tlieir Development," A. B. Hepburn, p. 
 
 ■23- 
 
 130 
 
HISTORY OF NEW YORK 
 
 procure surveys, and report estimates. This commission, of 
 -which Gouverneur Morris was chairman, made a report, largely 
 his draft, estimating the cost at $5,000,000. A new commission 
 appointed under an act passed April 8, 181 1, to provide for the 
 improvement of the internal navigation of the State, vainly 
 sought to enlist the aid and co-operation of Congress. Upon 
 this body served ex-Chancellor Robert R. Livingston, Robert 
 Fulton, Peter B. Porter, Gouverneur Morris and DeWitt Clin- 
 ton. The canal enterprise naturally languished during the War 
 of 1812, but at its conclusion fresh energy was infused into the 
 project, memorials were presented to the legislature of 1816 from 
 many of the leading towns in the western and northern sections 
 of the State, where the sentiment for the canal was always pow- 
 erful, and an eloquent memorial containing a fund of informa- 
 tion, obtained from personal inspection of the route, said to have 
 been almost entirely the work of DeWitt Clinton, was also sub- 
 mitted on behalf of the merchants of New York City to the leg- 
 islature in that year.^ The assembly proposed to equip a com- 
 mission to begin work at once, but the senate, at the instance of 
 Van Buren, limited its functions to preliminary investigation and 
 report. The new commission, with Clinton as its president, re- 
 ported to the legislature at an extra session in November, 1816, 
 and in a later communication advocated the construction of the 
 Champlain Canal as well. The legislature, by act Chapter 262, 
 Laws of 1817, the passage of which Senator Van Buren aided 
 by his talents and influence, continued the former commissioners 
 
 2. It may be confidently asserted", said the memorial, "that this 
 canal, as to the extent of its route, as to the countries which it connects, 
 and as to the consequences which it will produce, is without a parallel 
 in the history of mankmd. It remains for a free State to create a new era 
 m history and to erect a work more stupendous, more magnificent and 
 Iff"'?, 9?'?«"'='al than has been achieved by the human race." Alexander, 
 "A Political History of New York," I, p. 244. 
 
 131 
 
LEGAL AND JUDICIAL 
 
 and authorized the construction of the Erie, Oswego and Cham- 
 plain canals. Notwithstanding the apathy shown by Congress in 
 1811, it was still hoped that the general government might contri- 
 bute to the canal fund, but it is to the credit of the State that 
 this splendid achievement, ere long destined to become of na- 
 tional significance, was executed solely through its own re- 
 sources. Despite Clinton's memorial, despite Elisha William's 
 prediction of the benefits of the canal to the metropolis, and 
 despite Van Buren's advocacy, all the senators from New York 
 City were against the bill, and a large majority of the city's rep- 
 resentatives in the assembly also were hostile. "From the out- 
 set, Tammany, by solemn resolution, had denounced the canal 
 project as impractical and chimerical, declaring it fit only for a 
 ditch to bury Clinton".' Of the eighteen senators who favored 
 the bill, five were anti-Clintonians whose votes were mainly 
 ascribable to Van Buren's influence. The ground for the con- 
 struction of the Erie canal was broken at Rome, July 4, 18 17, 
 in the presence of Clinton, who in the spring had been triumph- 
 antly elected governor, and whose inauguration had occurred three 
 days earlier. 
 
 The building of the canal was not merely a physical and 
 engineering problem ; the canal commissioners were intrusted with 
 the duty of expending upwards of $5,000,000; the influence and 
 patronage of the commissioners' offices were political prizes, and 
 the canal therefore became an element in politics. The canal 
 board was in the course of a few years reorganized in the interest 
 of the Bucktails, who ill brooked Clinton's presence in it. As the 
 work neared its consummation, Qinton, by a bold and unexpected 
 coup of the Albany regency, was deposed from this place (April 
 12, 1824), although no charge of mal-conduct was even 
 
 3. Alexander, "A Political History of New York," I, p. 251. 
 
 132 
 
HISTORY OF NEW YORK 
 
 hinted. The resolution for his removal was introduced in 
 the senate in the closing hours of the last day of the session, was 
 immediately passed, all but three senators voting in the affirma- 
 tive, and was carried in the assembly, 64 to 34. The removal, 
 declares Hammond, "could not have been devised or advised by 
 Van Buren", although it was plainly the work of his political lieu- 
 tenants. But, however originated, it operated like an electrical 
 shock on the whole community. Public sentiment throughout the 
 State stigmatized it as "'a cruel outrage" to one of the greatest 
 benefactors of the commonwealth. Clinton's renomination for 
 governor was widely demanded, and he was re-elected in the fall 
 of 1824 over Samuel Young, by a majority of 16,000.* 
 
 The Erie and Champlain canals, extending a distance of 427 
 miles, had been completed in October, 1823, so far as to allow of 
 their navigation through their whole extent. Almost from the 
 time of their inception, the canals became an influential factor in 
 the politics of the State, and remained such for sixty years. The 
 people are indebted to their artificial waterways not only for un- 
 bounded material prosperity but for salutary lessons in financial 
 and economic principles. In this period the general government 
 became definitely committed to the doctrine of internal improve- 
 ments, which led to the evolution of parties for and against the 
 principle in national affairs. In the State, party distinctions were 
 not sharply drawn upon this subject, for while it was a cardinal 
 theory of the Whigs that it was the duty of the commonwealth, 
 in the interest of the public welfare, to develop canals and pro- 
 mote railway enterprises with State aid, many influential Demo- 
 
 iki^r^^^ '*'°*^ ^°^ Clinton was 103,453; for Young 87,093. 
 With twenty-four years of experience and observation, I have never 
 heard the removal of Mr. Clinton defended or excused in halls of legis- 
 w j'..'t ^ P""^^^ °'^ ^^ ^"^ individual". "Autobiography of Thurlow 
 Weed, 1, p. 113. Hammond gives similar testimony. 
 
 133 
 
LEGAL AND JUDICIAL 
 
 crats were marshalled under the same banner. It was a seductive 
 proposition, and the ablest politicians of the Democratic faith were 
 too shrewd not to appreciate its strength with the people. Al- 
 though the Whigs were in later years the chief suflFerers from the 
 efifect of the debt caused by canal expansion, the responsibility for 
 it belongs to both parties, who were simply obeying popular de- 
 sire. Several distinct phases may be observed in the history of 
 the commonwealth: the period of canal extension and State aid 
 to railroads, with the inevitable consequence of large indebted- 
 ness ; the era of discontent with debt accumulation culminating in 
 the call for the convention of 1846 and the insertion in the organic 
 law of restrictions upon the creation of debt by the State; and 
 the adoption thirty years later of like constitutional prohibitions 
 upon city, county and town indebtedness. 
 
 Scarcely had the Erie canal become an accomplished fact 
 before two conflicting systems of canal policy sprang into full 
 vigor, one proposing an expensive scheme of internal improve- 
 ments involving the construction of lateral canals intersecting the 
 chain of lakes in the center of the State, at the expenditure of 
 many millions to be obtained, if need be, by loan of the credit of 
 the State; the other deprecating the creation of this vast debt and, 
 while not opposed to canal improvement, insisting that the work 
 could safely be undertaken and carried on only out of surplus 
 canal revenues as they should accrue. The advocates of the 
 debt-contracting policy were sanguine believers that the canal 
 tolls would keep constantly augmenting, that the interest on the 
 debt would surely be met out of revenue, and therefore that no 
 necessity would ever arise for direct taxation. They maintained 
 ascendency in the State government long enough to secure legis- 
 lation providing for the Cayuga and Seneca, the Crooked Lake, 
 the Chemung, and the Chenango canals, and others, the expense 
 
 134 
 
HISTORY OF NEW YORK 
 
 of construction of which was onerous, without promise of cor- 
 responding revenue.^ ^ The friends of the debt-paying poHcy 
 counselled moderation in expenditure and opposed the lateral 
 canals. As might have been expected, public sentiment in coun- 
 ties remote from the canals which could not see benefit to them- 
 selves from canal improvements, did not support the canal policy. 
 To overcome their objection, the State was drawn further into 
 the system of internal improvement. At first the project was to 
 build a State highway in the southern counties; this was aban- 
 tioned, and in its place the State lent its aid to the construction of 
 the New York and Erie Railroad Company. 
 
 After ten years of use it was found that the Erie canal 
 needed enlargement and improvement; and, in 1835, at the sug- 
 gestion of Governor Marcy, a law was passed which not only 
 authorized but directed the canal commissioners to enlarge and 
 improve the Erie canal and construct a double set of lift locks 
 therein as soon as the canal board should be of the opinion that 
 the public interest required the improvement. No limitations 
 were placed upon the extent of the enlargement, which was left 
 solely to the discretion of the board. The act clothed the com- 
 
 5. In the period between the second constitution and the convention 
 of 1846, the legislature ordered surveys of forty canal routes. Besides 
 these it chartered thirty-one companies with power to construct canals, 
 and authorized the construction of two others by private or municipal 
 means. It actually authorized the construction of fifteen other canals by 
 the State in addition to the great canals, which were already in full oper- 
 ation. Lincoln, "Constitutional History," II, p. 48. 
 
 6. The canal commissioners made extravagant predictions as to fu- 
 ture tolls, placing the .amount at $1,000,000 for 1836; $2,000,000 by 1846; 
 $4,000,000 by 1856; and $9,000,000 within fifty years. The tolls in 1836 
 exceeded the amount predicted by $440,000, and in 1846 by almost half 
 a million. "With the comparatively limited expenses of the state gov- 
 ernment at that time, and the relatively large income from the canals, the 
 people had begun to think that taxes need never be imposed again, for 
 the waterways were looked upon as a veritable treasure house for supply- 
 ing funds". Whitford, "History of the Canals." See also "Waterways 
 and Canal Construction in New York State," by Hon. Henry W. Hill, 
 p. 152. 
 
 135 
 
LEGAL AND JUDICIAL 
 
 missioners with great and perhaps questionable powers, but it 
 was shorn of much of its danger as well as its utility by the clause 
 which forbade the contracting for any improvements the cost of 
 which could not be defrayed out of the surplus revenues of the 
 canals. The canal commissioners reported to the assembly in 
 March, 1838, that, by an expenditure of about $12,500,000, the 
 canal could be made seventy feet in width and seven feet in 
 depth, and supplied with adequate gates and locks. The legisla- 
 ture thereupon passed and Governor Marcy approved a bill au- 
 thorizing the commissioners to borrow $4,000,000 on the credit 
 of the State for the enlargement of the canal.'' The act further 
 directed the commissioners to prepare and put under contract, 
 with as little delay as possible, such portions of the work as were 
 mentioned in their report to the assembly, and also such other 
 portions as, in the opinion of the canal board, would best secure 
 the completion of the entire enlargement, with double locks on 
 the whole line. The interest on the money borrowed was to be 
 paid out of canal tolls until the legislature should otherwise de- 
 termine. This measure received considerable Democratic sup- 
 port. Thus empowered, the canal commissioners made contracts, 
 pledging the State treasury to an expenditure of about $12,500- 
 000, nearly all of which sum was made payable before May i, 
 1842. Laws were also passed during these years for the con- 
 struction of the Black river and Genesee valley canals, and the 
 public credit was liberally extended to various railroad enter- 
 prises, among them the Erie Railroad, to the amount of $3,000,- 
 000. When the convention of 1846 met, the amount of loans 
 made by the State for railroad purposes exceeded $5,000,000. 
 Opposition to this policy of lending the State credit to railroad 
 associations had been rapidly crystallizing, and it resulted in the 
 
 7. Chapter 269, Laws of 1838. 
 
 136 
 
HISTORY OF NEW YORK 
 
 decision of the convention to forbid for the future all State aid 
 to private enterprises. 
 
 In the year 1839 the canal commissioners were asked to re- 
 vise their estimates and report again to the legislature. It was 
 then discovered that the expenditure necessary to complete the 
 improvements on the scale contemplated in their previous report 
 had risen to $23,000,000, — double the original estimates, — and 
 that, with other public improvements undertaken or assisted by it, 
 the State had involved itself in a possible indebtedness of $30,- 
 000,000.' These facts were adverted to by Governor Seward in 
 his annual messages to the legislature in 1840, 1841 and 1842, but, 
 faithful to the policy of internal improvements, of which he was 
 an ardent and somewhat indiscriminate advocate, the governor 
 argued in favor of continuing the work which had been under- 
 taken, but of keeping the expenditures therefor within an amount 
 the interest upon which could be paid from the surplus revenues 
 of the canals.' 
 
 These events followed shortly upon the commercial panic 
 in 1837. The credit of most of our sister States was then at the 
 lowest ebb, and foreign confidence in all American securities had 
 
 8. "The estimated cost of the enlargement was $23,402,863.02. It was 
 not completed until 1862, and cost $31,834,041.30." Hill, "Waterways and 
 Canal Construction in New York State," p. 151. 
 
 9. As Congress had voted a distribution of the proceeds of sale of 
 public lands among the States, the governor recommended that all future 
 revenues from the national domain should be pledged as a sinking fund 
 to the extinguishment of the principal of the public debts ; and asserted 
 his belief that if seventeen millions of dollars were still to be required 
 for the completion of the canals, the whole debt might in this manner be 
 discharged by 1855. "Viewed in the light of subsequent history, perhaps 
 Governor Seward's faith was justified, and it may be that the better way 
 would have been to have pushed the work to completion at the expense of 
 increasing the debt, but the State's best financiers of the time could see 
 no way out of the difficulty, but to precipitately suspend operations and 
 order a tax to satisfy the creditors of the State". Whitford, "History of 
 the Canals of New York." See also Seward's Messages, and his "Notes 
 on New York," published in Seward's Works, vol. II. 
 
LEGAL AND JUDICIAL 
 
 been seriously impaired by the policy of partial repudiation which 
 had been adopted in some of the States which had embarked 
 upon schemes of internal improvement. The revelations of the 
 canal commissioners had a disastrous effect upon the credit of 
 New York State. Its stocks rapidly depreciated, its treasury 
 was practically empty, money could not be borrowed for public 
 uses for long terms, and it was with great difficulty that tem- 
 porary loans could be procured to meet most pressing emergen- 
 cies. In 1842 the Democrats regained ascendency in the State 
 legislature^** Alarmed at the magnitude of the debt and the 
 prospect of its further increase, the legislature, under the lead- 
 ership of Michael Hoffman, of Herkimer, passed the celebrated 
 finance bill of 1842, to which the governor gave a reluctant ap- 
 proval.^ Hoffman had been a member of Congress and also a 
 canal commissioner. With his experience in this last office, and 
 his signal talents as a lawyer and debater, he was exceptionally 
 qualified to explain the intricate details of finance and to lead 
 the movement to stop expansion. The policy of this act, called 
 the Suspension Act, was summary. It put an end to further 
 expenditures for public improvements by interdicting all work 
 on the canals except such as was strictly necessary to preserve 
 and render useful what had already been completed. To meet 
 the State's pressing necessities, it imposed a direct tax upon real 
 and personal property, and pledged one-half of that to canal 
 
 10. Azariah C. Flagg became comptroller, Samuel Young, secretary 
 of state, and George P. Barker, attorney general. These officers were 
 not elected by the people, but were chosen by the legislature. Flagg, in his 
 first report to the legislature, "boldly laid bare the financial condition of 
 the State; he adverted to the rapid decline of the public credit, and if 
 he did not demonstrate that the ship of State was aground, he proved that 
 she was on the point of foundering". Hammond, "Life of Silas Wright," 
 p. 274. See also picture of financial embarrassment of the state, at p. 268. 
 
 11. Whig votes, especially in the senate, seem to have been essential 
 to the passage of the act. For the motive for Whig support of the meas- 
 ure, see "Life of Silas Wright," by Hammond, pp. 284-5. 
 
 138 
 
HISTORY OF NEW YORK 
 
 purposes. It authorized the issue of bonds, and pledged sur- 
 plus canal tolls to the redemption of the canal debt. The effect, 
 as Governor Wright subsequently declared, was electric; "it was 
 felt not merely throughout the state, but throughout the Union. 
 * * * From this time the credit of the state rose rapidly."' 
 So long as the "pay as you go" policy of the act of 1842 
 was maintained, the completion of the contemplated enlargement 
 of the Erie canal became practically impossible. It was not 
 long, therefore", before the Democrats themselves began to divide 
 upon the question of maintaining the law in all its strictness. 
 The failure of the Democratic National Convention at Baltimore 
 to renominate "Van Buren in 1844, and differences among party 
 leaders upon national issues, split the party into two factions : 
 one branch, the Radicals, or "Barnburners," were for rigidly 
 upholding the system of 1842 and applying all surplus tolls to the 
 extinction of the public debt; the Conservatives, or "Hunk- 
 ers," sided with the Whigs in urging that the surplus should be 
 devoted to the completion of the public enterprises suspended by 
 the act of 1842. But, whatever conflicting opinions were held 
 as to the desirability of finishing the incomplete public works, 
 public sentiment had awakened to the necessity of maintaining 
 the pledge of the canal revenues to the payment of the canal 
 debt, and of limiting the debt-contracting power of the legisla- 
 ture. Resolutions embodying these ideas were introduced into 
 successive legislatures, and barely failed of the vote required to 
 permit their submission to the people.^ It was felt that the 
 credit of the State would not be safe, unless the provisions of the 
 
 12. Arphaxed Loomis of Herkimer, after conference with Hoffman 
 and Flagg, introduced resolutions of this tenor in the assembly of 1841 
 and of 1842. They were known as "the people's resolutions." See inter 
 alia Hammond, "Life of Silas Wright," pp. 286-288. Lincoln, "Constitu- 
 tional History of New York," II, 82, 83. Loomis was subsequently a 
 delegate to the convention of 1846. 
 
 139 
 
LEGAL AND JUDICIAL 
 
 act of 1842 were superseded by constitutional checks upon leg- 
 islative action, and the conviction had forced itself upon the 
 public mind that State aid to railroad enterprises must terminate. 
 Memorials from a large number of counties urged the legis- 
 lature to pass a law for a popular vote upon the holding of a con- 
 vention. 
 
 That voters discriminated between national and State issues, 
 and that many Whigs had cast their ballots against debt enlarge- 
 ment, is shown by the official returns in 1844. Wright polled 
 241,090 votes, against 231,057 for Fillmore. His majority over 
 Fillmore was 10,033, whereas the National ticket had a majority 
 of only about 5,000. As Alvan Stewart, the candidate of the 
 Liberty party for governor, polled almost the same vote as 
 Birney, its candidate for the presidency, Wright's vote was 
 plainly swelled by Whig accessions. As he wrote President 
 Polk, December 20, 1844, the Democratic party had not been 
 united upon questions of State policy for several years. State 
 debts and public expenditures had constituted the grounds of the 
 division. Wright's first message elaborately reviewed the events 
 which had brought the State to the necessity of issuing a direct 
 tax. His intimacy with the subject was profound. As a State 
 senator in 1825, and later as State comptroller, he had zealously 
 supported the debt-paying policy. Uncompromising adherence 
 to that policy had been the keynote of the State Democratic con- 
 vention, which had commended the constitutional amend- 
 ments adopted at the previous session of the legislature. "By 
 them", said the platform, "the pledges and guarantees of the 
 act of 1842 are confirmed, and a salutary restriction upon the 
 power of the legislature to involve the state in excessive debts 
 or liabilities is imposed." 
 
 The assembly of 1845 organized with the youthful Horatio 
 
 140 
 
HISTORY OF NEfF YORK 
 
 Seymour as speaker. Seymour ardently believed in the earning 
 power of the canals, and sanguinely expected that surplus rev- 
 enues could be counted upon to meet the expense of improve- 
 ment. A coalition, tacit or actual, was effected with the Whigs. 
 The canal committee appointed by the speaker was favorable to 
 enlargement, and accordingly, within a few days after the com- 
 mencement of the session, the legislature approved a bill appropri- 
 ating $197,000 from the revenues of the canals to various im- 
 provements in the Crooked Lake, the Genesee valley, the Black 
 river, and the Erie canals. The bill was in reality an effort to 
 undermine the statute of 1842, and it therefore met with a prompt 
 and emphatic veto from Governor Wright. The following por- 
 tions of the governor's veto message are quoted, because they 
 serve to explain the circumstances which led to the convention of 
 1846: 
 
 "Another reason why I consider the present an unfortunate time to 
 make this change of policy, is the evidence before us of a determinate 
 disposition in the public mind to remodel our constitutional system, in 
 reference to expenditures of this description. Ever since the prostration 
 of the credit of the state in 1841, and the consequent suspension of the 
 public works and establishment of the financial system adopted by the leg- 
 islature of 1842, the attention of our people has been drawn to the neces- 
 sity of some further constitutional protection against the danger of en- 
 during debt and perpetual taxation. Extended discussion for two years 
 resulted in action by the last legislature, originating and submitting to the 
 people, previous to the last election, specific amendments to the constitu- 
 tion, taking two most important positions in reference to the further in- 
 crease of our public debt for these objects, namely: 
 
 "i. That no debt should be hereafter contracted for expenditures 
 like these, until the law authorizing the loans should have been submitted 
 to the people and expressly approved by them, by their direct votes at the 
 polls and 
 
 "2. That no law submitted to the people for their approbation, should 
 contain authority to make loans for but a single work or object of expen- 
 diture, and should contain irrepealable provisions for a sinking fund to 
 
 141 
 
LEGAL AND JUDICIAL 
 
 meet the interest and pay off the principal of the debt within a specified 
 period. 
 
 "This legislature, elected with reference to these provisions as amend- 
 ments proposed to the constitution of the state, has expressed its sense, 
 the one house by the constitutional vote of two-thirds, and the other by a 
 majority in their favor, thus reflecting most truly, as I believe, the deliber- 
 ate sense and wish of a majority of the people of the state. The proposi- 
 tions, however, having failed to receive the constitutional vote of two- 
 thirds of the assembly, cannot be submitted to the people, according to the 
 provisions contained in the constitution for its amendment, and have there- 
 fore failed. This failure, together with that of other amendments similar- 
 ly proposed and similarly failing, has secured the passage of a law for 
 the call of a convention of the people of the state to amend the constitu- 
 tion." 
 
 Believing that the convention would be held, the governor 
 declared that the resumption of public works and the making of 
 new contracts would embarrass its proceedings. The measure 
 not receiving the requisite vote in either house to pass it over his 
 veto, was defeated. Wright's adamantine stand for the public 
 faith prevented his re-election. Another cause was his treatment 
 of the anti-Renters. Paradoxical as it may seem, the people, in 
 the canvass in which they defeated Wright, approved of the call- 
 ing of the constitutional convention. He had been elected in 1844 
 by a majority of 10,033 o'^^'' Fillmore, yet was beaten in 1846 by 
 an adverse majority of 11,572 in favor of John Young. The 
 anomaly is that in the election of 1846 his views were nevertheless 
 sustained, and his and Michael Hoffman's policy of having the 
 substance of the law of 1842 incorporated in the organic law of 
 the State was approved by about 130,000 majority. Wright's veto 
 may have been impolitic, but its explanation is his firm adherence 
 to principle. His friends complained that the real object of the 
 bill was the accomplishment of his overthrow ; his defeat in many 
 quarters was ascribed to "the old Hunkers". 
 
 Public sentiment urged the incorporation in the constitution 
 
 142 
 
HISTORY OF NEW YORK 
 
 of the essence of the act of 1842; the legislature of 1844 ap- 
 proved of the proposed amendments, yet the legislature of 1845 
 withheld requisite consent. The senate was favorable, but in the 
 assembly the resolutions for amendments were defeated. This 
 resulted not from opposition to the ideas embodied in the amend- 
 ments but from the determination of the majority to force the 
 holding of a constitutional convention. The "Hunkers" opposed 
 a convention unless a majority of all the voters of the State should 
 be found to demand it and all amendments were separately sub- 
 mitted to the people. Many radicals, including Hoffman, fa- 
 vored a convention as the only sure means of obtaining constitu- 
 tional guarantees against additional indebtedness. The Whigs 
 generally wished for a convention, and this was the attitude of 
 the native Americans and also of the anti-renters. In the as- 
 sembly the Whigs, under John Young's leadership, succeeded in 
 defeating the amendment resolutions, despite Seymour's brilliant 
 advocacy, and this forced the call of a convention.^^ 
 
 Under the constitution of 1821, as has been observed, only 
 one method of amendment was provided. Amendment might be 
 had after approval by two successive legislatures, followed by 
 popular ratification. There was no express authority for the sum- 
 moning of a convention. On May 13, 1845, an act was passed by 
 the legislature recommending a convention and providing for a 
 referendum upon the subject by a vote at the annual election in 
 November of that year.i* If the result of the canvass of votes 
 
 13. The Native American party came into existence after the great 
 emigration from Europe began. The coalescence of the Democratic party 
 in the city of New York with foreign born voters awakened some of the 
 native born element to temporary revolt. The party elected James Har- 
 per mayor in 1844. 
 
 14. The act recommending a convention was by some Democrats re- 
 garded as unconstitutional; Seward and other leading Whigs believed it 
 valid. The vote in the senate was 18 for, to 14 against; in the assembly, 
 83 in favor, to 33 in opposition. 
 
 143 
 
LEGAL AND JUDICIAL 
 
 should show that a majority of the ballots were cast in favor of 
 a convention, the act recommended the citizens of the State, on 
 the last Tuesday of April, 1846, to elect delegates to meet in con- 
 vention for the purpose of considering the constitution and of 
 making such alterations in the same as the rights of the people 
 should demand, and as they might deem proper. The number of 
 delegates was to be the same as the number of members of as- 
 sembly, and all persons entitled to vote for assemblymen were 
 eligible to vote for delegates. The delegates were to meet in con- 
 vention at the capitol in the city of Albany on the first Monday of 
 June, 1846. All amendments to the constitution submitted by the 
 convention to the people for their adoption or rejection were to 
 be voted upon at the annual election to be held in November, 
 1846, and every person entitled to vote at that election was en- 
 titled to vote upon the amendments. The call for the convention 
 was approved by popular vote on November 4, 1845, the vote for 
 a convention being 213,257, against it, 33,860. 
 
 At the time of the passage of the act of 1845, membership in 
 the assembly was regulated by the apportionment which had been 
 made in the spring of 1836. A new apportionment was, pursuant 
 to the constitution, made by the legislature in the spring of 1846, 
 and the legislature passed a law on April 22, 1846, which declared 
 that the number of delegates to be chosen in and by the respective 
 cities and counties of the State should be the same as the number 
 of members of the assembly to be chosen in and by said cities 
 and counties respectively, in pursuance of the act passed on May 
 30 of that year for the apportionment of members of the assem- 
 bly.15 
 
 15. "In other words, the act calling the convention was proposed to 
 be modified by the body which had originally passed it, after it had been 
 voted upon by the people." Jameson, "The Constitutional Convention," 
 Sec. 390. 
 
 144 
 
HISTORY OF NEW YORK 
 
 Inasmuch as the questions which had led to the vote for a 
 convention aroused party and factional differences, and as an 
 election of delegates under the apportionment of 1846 would give 
 preponderance to certain interests which they might not have had 
 with an election under the apportionment of 1836, the assembly 
 sought the opinion of the judges of the Supreme Court upon the 
 constitutionality of the act of 1846, and the judges, although the 
 opinion, was extra-judicial, unanimously declared that the legisla- 
 ture was without power to compel delegates to be chosen under 
 the later apportionment.^^ The number of members from the re- 
 spective counties under the apportionment in force when the act 
 of 1845 was passed was, said the court, to be determined by the 
 apportionment of 1836, and although a new apportionment of 
 members of the assembly had been made, it could not take effect 
 for any purpose until the fall of that year. The people "have not 
 only decided in favor of a convention, but they have determined 
 that it shall be held in accordance with the provisions of the act 
 of 1845. No other proposition was before them and, of course, 
 their votes could have had reference to nothing else". The opinion 
 of the learned judges was, nevertheless, disregarded by both the 
 legislature and the people, for the election took place under the 
 later apportionment. 
 
 The popular vote in favor of holding the convention prepon- 
 derated, yet the total vote upon the subject was not much more 
 than half the vote for the governor. Public indifference to constitu- 
 tional questions appeared also in the vote upon the convention's 
 work and has, as a rule, been a notable characteristic of later dis- 
 cussions of constitutional matters. 
 
 16. The judges were Bronson, Beardsley and Jewett. Judge Jame- 
 son vigorously dissents from that portion of their conclusions in which 
 they seemed to hold that where express authority to call a convention has 
 not been given by the constitution, a legislature has no power to do it. 
 
 145 
 
CHAPTER VIII 
 
 CONVENTION ASSEMBLES AT ALBANY JOHN TRACY, PRESIDENT — 
 
 PERSONNEL OF CONVENTION — CHIEF WORK OF CONVENTION 
 
 PROVISIONS AS TO CANALS, PUBLIC REVENUE AND PUBLIC 
 
 DEBTS EVILS OF SPECIAL LEGISLATION PROVISIONS AS TO 
 
 CORPORATIONS THE LOCO-FOCO PARTY AND ITS DECLARATION 
 
 OF PRINCIPLES EFFECT UPON CONVENTION POLICY OF CON- 
 VENTION EXTREME DECENTRALIZATION INCREASE IN NUM- 
 BER OF SENATORIAL DISTRICTS ABOLITION OF COUNTY REP- 
 RESENTATION IN THE ASSEMBLY PROVISION FOR ARBITRA- 
 TION TRIBUNALS CREATION OF NEW SUPREME COURT WITH 
 
 LAW AND EQUITY POWERS — ^ADOPTION OF ADDITIONAL MODE 
 OF AMENDING THE CONSTITUTION ADDRESS OF THE CONVEN- 
 TION TO THE PEOPLE — ESTIMATE OF ITS WORK THE CANAL 
 
 BILL OF 185 1, DECLARED UNCONSTITUTIONAL — AMENDMENT 
 OF CANAL PROVISIONS OF CONSTITUTION IN 1854 — ORIGIN 
 AND PROGRESS OF ANTI-RENT CONTROVERSY AND LIMITATIONS 
 UPON AGRICULTURAL LEASES IN NEW CONSTITUTION. 
 
 The convention assembled at the capitol on June i, 1846, 
 and John Tracy, of Chenango county, was chosen president. 
 The representation was of a high order. There was a large pro- 
 portion of lawyers in the assemblage, whose work called for 
 supreme legal talent. Seward was not a delegate, his county be- 
 ing unfavorable to his selection. Charles H. Ruggles (after- 
 wards chief judge of the Court of Appeals), Michael Hoffman, 
 Charles O'Conor, Samuel J. Tilden, Churchill C. Cambreleng, 
 Charles P. Daly, Ira Harris, later United States senator, Henry 
 
 146 
 
-5iGC^^^ 
 
 ,^^^/4^-^ ^^^J^^>^ 
 
 Samuel Nelson 
 
SAMUEL NELSON. ; ; 
 
 (1792-1873). 
 
 Lawyer and Jurist; Member Constitutional, Convention, 
 1821 ; Circuit Judge, 1823-31 ; Justice Supreme Court of New 
 York, 1831-37;. Chief Justice 1837-45; Member Constitutional 
 Convention of 1846; Associate Justice United States Supreme 
 Court, 1845-72 ; Member of Joint High Commission on the Ar- 
 bitration of the Alabama Claims. 
 
HISTORY OF NEW YORK 
 
 C. Murphy, Charles P. Kirkland, Samuel Nelson, John K. Por- 
 ter, Lorenzo B. Shepard, Alvah Worden, Ambrose L. Jordan 
 and ex-Governor William C. Bouck were among its leading mem- 
 bers. Both James Tallmadge and Judge Nelson had been dele- 
 gates to the convention of 1821. 
 
 The convention of 1846 was the first constitutional conven- 
 tion ever assembled in this State which fully deserved to be 
 styled a people's convention. The delegates were elected sub- 
 stantially upon the basis of manhood suffrage. The truly popu- 
 lar origin of the convention may explain its apotheosis of the 
 notion that all power emanates from the people. The cardinal 
 distinction between this convention and its predecessors is that 
 its work seemed chiefly to be a revesting of delegated power 
 in the people of the State. It was remarkable, no less in regard to 
 the power which it bestowed, than in regard to that which it re- 
 sumed. The chief innovation of the constitution of 1846 was in 
 limiting the sphere of legislative action. It deprived the legislature 
 of power to incur debts, or to undertake costly schemes of public 
 improvement, without direct popular consent, and forbade its loan- 
 ing the credit of the State to private capital, thus putting into the 
 organic law the principles for which Michael Hoffman had so 
 earnestly contended in 1842. The restraints which the constitu- 
 tion of 1846 placed upon the legislature may be ranked as the 
 most valuable service performed by the convention. 
 
 The convention reported a new constitution which em- 
 bodied the greater part of the old. The radical changes related 
 to: (i) the canals; internal improvements; public revenue and 
 public debts; (2) incorporations; (3) the election of State, ju- 
 dicial and local officers; (4) the enlargement of the number of 
 senate districts, and the substitution of district for county rep- 
 resentation in the assembly; (5) the reorganization of the ju- 
 
 147 
 
LEGAL AND JUDICIAL 
 
 diciary, and reformation in the system of legal procedure; (6) 
 the methods of amending the constitution. 
 
 The subject of public improvements and public debts, which 
 was the chief cause for the summoning of the convention, is 
 treated in article VII of the constitution of 1846. As originally 
 ratified, the article first provided for keeping the canals of the 
 state in repair out of its revenues. It then set apart $1,300,000 
 of the surplus revenues every fiscal year until June i, 1855, to 
 the liquidation of the principal and interest of the canal debt, and 
 thereafter devoted $1,700,000 of such revenues annually to the 
 same purposes.^ It set apart annually $350,000, and, after the 
 extinguishment of the canal debt, $1,500,000 every year to the re- 
 demption of the principal and interest of that part of the State 
 debt called the general fund debt, which it was claimed in the 
 convention had been incurred for the canals and which there- 
 fore the canal revenues ought equitably to defray. These pro- 
 visions in the main had been embodied in the report of the com- 
 mittee on canals and public debts, headed by Hoffman and Til- 
 den. The convention also proposed to render the canals inalien- 
 able and require the people to operate them, for the constitution 
 which it framed declared that these should never be sold, leased 
 or otherwise disposed of. Thus was extended to the canals, the 
 policy concerning the salt springs adopted by the convention of 
 1821. 
 
 As in the legislatures of 1842 and 1844 ^^d throughout the 
 State, so in the convention, were to be found earnest advocates 
 for and against the enlargement and completion of the canals.^ 
 
 1. This assumed the revenues would continue adequate for these 
 purposes, and they did. 
 
 2. A majority of the delegates to the convention, according to state- 
 ments made in the course of debates, were instructed to engraft the main 
 features of the law of 1842 upon the constitution. 
 
 148 
 
HISTORY OF NEW YORK 
 
 With the majority the extinguishment of the debts in the short- 
 est period, at least within the period contemplated by the law of 
 1842, was the paramount idea. Others were animated by the 
 desire to see the works completed and enlarged so as to produce 
 the fullest benefit to the State, and to prevent diversion of west- 
 ern trade to other Atlantic ports, — even at the cost of delaying 
 the liquidation of the debt, and it was the purpose of this class 
 to secure provision out of the canal revenues for the requisite 
 completion and enlargement. The constitution made provision 
 for the necessary work, and so fortunate was the State that it 
 was able to pay the debts then charged upon the canal revenues 
 in as short a time as was anticipated by those most desirous of 
 seeing them promptly extinguished. 
 
 But the most important provisions of the article were con- 
 tained in sections 8 to 14 inclusive, and with few substantive 
 changes these sections have remained intact to the present day. 
 Section 8 forbade the payment of money or funds of the State 
 except in pursuance of appropriations by law ; section 9 declared 
 that the credit of the State should not in any manner be given or 
 loaned to or in aid of an individual, association, or corporation, 
 thus preventing subsidies to railroads or to other public enter- 
 prises originated by private capital ; section 10 empowered the leg- 
 islature to contract debts in order to meet casual deficits or failures 
 in revenue or expenses not provided for, but such debts, direct 
 and contingent, singly or in the aggregate, were not at any time 
 to exceed one million dollars.' Moneys raised to pay such debts 
 were to be applied rigidly to the specific purposes for which they 
 had been obtained. Section 11 declared that these limitations 
 should not apply in extraordinary emergencies. The State was 
 therefore left free to contract debts in any amount in order to 
 
 3. Changed in 1894. 
 
 149 
 
LEGAL AND JUDICIAL 
 
 repel invasion, suppress insurrection, or defend itself in war; but 
 the constitution required that moneys raised for any of these ob- 
 jects should sacredly be devoted solely to their accomplishment. 
 Section 12 ordained that with the exception of the debts specified 
 in the tenth and eleventh sections the State should contract no 
 debt except in pursuance of a law specifying the sole work and 
 object for which the debt was to be incurred; that the law should 
 also provide for the collection of a direct annual tax, sufficient to 
 pay the interest on the debt as it fell due, and the principal within 
 a period of eighteen years from the time when the debt had been 
 contracted; and that every such law, before it could take effect, 
 should be submitted to the people and be sustained by a majority 
 of all the votes cast for and against it. Even after popular sanc- 
 tion was thus obtained, the legislature might repeal the law or stop 
 the work. To prevent the enactment of such laws in moments 
 of public excitement, the section provided that no such measure 
 should be voted upon by the people until three months should 
 have elapsed since its passage through the legislature. Nor was 
 a vote to be taken upon any such law when any other enactment 
 or bill, or any amendment to the constitution was to be voted 
 upon. Section 13 provided that every law imposing, continuing 
 or reviving a tax, should distinctly state the tax and the object to 
 which it was to be applied, without reference to any other law, 
 in order to fix the tax or object. Section 14 required that the vote 
 in either house upon all such measures should be taken by ayes- 
 and noes, to be entered on the journals, and that whenever such 
 measures were voted upon, a quorum should consist of three- 
 fifths of all the members elected to either house. 
 
 Article VIII contained the second class of restraints on the 
 state legislature, namely, those which relate to the creation of 
 corporations. The State had long suffered from the evils of special 
 
 150 
 
HISTORY OF NEW YORK 
 
 legislation. The constitution of 1822 had aimed to supply a 
 remedy by providing that the assent of two-thirds of the members 
 elected to each branch. of the legislature should be requisite to 
 every bill appropriating public money or property, for local or 
 private purposes, or creating, continuing, ahering or renewing 
 any body politic or corporation. Henry Wheaton, one of the 
 delegates to the convention of 1821, offered a resolution in that 
 body making it imperative on the legislature to enact general laws 
 on the subject of private corporations, but his wise resolution was 
 not adopted. The clause accepted by the convention failed to 
 remedy the evil ; it merely led to greater scandals in the legisla- 
 ture, since more money was required to secure the necessary 
 two-thirds vote. The vice lay in the permission of special legis- 
 lation. Additional bank charters were sought after it became 
 known that Congress would not for a second time renew the 
 charter of the Bank of the United States. The State law restrain- 
 ing the use of capital for banking purposes was repealed in 1838 
 and superseded by a general banking law, but the power to grant 
 special bank charters still existed, and special charters were 
 sought for insurance companies and railroad enterprises.^ 
 
 The sentiment against special privileges took concrete shape 
 in New York City in 1835 in the formation of a party known as 
 the Equal Rights party, to which was soon afterwards given the 
 
 4. Many applications for bank charters were made to the legislature 
 of 1824. From the City of New York, two were siKcessful, one for the 
 Fulton Bank, the other for the Chemical Bank. One came from Roches- 
 ter, and this Thurlow Weed engineered through the legislature. While 
 declaring that nothing was paid for this, he states in his "Autobiography 
 that the charter of the Fulton Bank "owed its success to a clause con- 
 tributing a large amount, $200,000, I believe, for the benefit of the then 
 vice-president, Daniel D. Tompkins. The other, the Chemical Bank, it 
 was alleged purchased its charter. Such at least were the charges and a 
 legislative investigation showed that a large amount of money had been 
 expended, and with damaging effect upon several members of the legis- 
 lature." "Autobiography of Thurlow Weed," I, 106. 
 
 151 
 
LEGAL AND JUDICIAL 
 
 sobriquet of the Loco-foco party. In a convention held in that 
 city, this party formulated a "declaration of rights" asserting its 
 hostility to the grant of special privileges, which brought upon it 
 almost universal censure from the press. The Evening Post 
 alone, among the city papers, approving of most of its principles. 
 The platform adopted at a State convention held in 1837 advo- 
 cated in addition the election of all judges by the people, the 
 abolition of capital punishment, and the punishment of all frauds 
 as felonies. The career of the party was ephemeral, but its ani- 
 mosity against special legislation and special privileges had its 
 influence upon the new constitution.^ 
 
 Article VIII of that constitution, which was the outcome of 
 the work of three separate committees — the committee on mu- 
 nicipal corporations, the committee on banking corporations, 
 and the committee on other corporations — was a feeble protest 
 at best, and in its adoption the convention did not take an ade- 
 quate forward step. While in one clause it forbade special char- 
 ters for private corporations, in another it practically nullified this 
 by allowing such incorporation where in the judgment of the leg- 
 islature the objects of the corporation could not be obtained under 
 general laws. This "judgment," as has well been said, is not 
 judicial, but legislative, and therefore not reviewable by the 
 courts. Special prohibition of the granting of special charters for 
 banking purposes was also inserted in the article ; the legislature 
 was forbidden to sanction in any manner the suspension of specie 
 payments by any person or association issuing bank notes ; and 
 required to provide for the registry of all bills issued to circulate 
 as money and for their redemption in specie. Stockholders in 
 
 5. Hammond, "Political History of New York," II, pp. 489-503- 
 Byrdsell, "History of the Loco-foco Party." "Martin Van Buren," by 
 Edward M. Shepard, at p. 293. 
 
 152 
 
HISTORY OF NEW YORK 
 
 banks of circulation were made individually responsible for cor- 
 porate debts to the extent of their shares, and bill holders were, 
 in the event of the insolvency of a bank, given a preference over 
 all its other creditors. As the Dartmouth College decision had 
 placed corporate charters theretofore granted above revocation, 
 the constitution wisely reserved to the legislature the power of 
 altering or repealing all such charters as should be thereafter 
 granted. 
 
 Next in importance to the restrictions upon the law-making 
 power imposed by the constitution of 1846, was the change which 
 it made in the system of appointment. The first constitution 
 vested the power of appointment, in all its amplitude, in the 
 council of appointment; the second constitution clothed the 
 governor and the senate with this function except in the case 
 of State officers who were to be elected by the two houses of the 
 legislature. The policy of 1846 was extreme decentralization. It 
 gave to the people in their several localities the right to elect, 
 not only the officers hitherto appointed by the governor, and the 
 State officials previously elected by the senate and assembly, 
 but also district attorneys, clerks of counties, and practically all 
 other county and all city, town and village officers. The power 
 of removal, which the constitution of 1822 had divided between 
 the governor and the legislature, was retained in the same hands, 
 but greatly increased in scope. Thus while the tendency in elect- 
 ing was decentralizing, the power of removal was centralized. 
 The people were to elect, but either the governor and the sen- 
 ate, or the legislature might remove for misconduct in office. 
 
 The spirit dominating the convention changed the tenure of 
 the senatorial office and the mode of electing senators and as- 
 semblymen. The State was divided into thirty-two senatorial 
 districts instead of eight, and each district was to choose a sena- 
 
 11 ^^ 
 
LEGAL AND JUDICIAL 
 
 tor every two years. County representation in the assembly 
 was abolished, and district representation substituted. The new 
 constitution directed that members of assembly should be ap- 
 portioned among the several counties of the State as nearly as 
 might be according to the number of their respective inhabitants, 
 excluding aliens and persons of color not taxed, and should be 
 chosen by single districts. But every county except Hamilton 
 was insured at least one member. Provision was also made for 
 a new census and a new re-apportionment every ten years. The 
 restrictions upon colored citizenship, for the removal of which 
 Peter A. Jay had gallantly pleaded in 1821, were unfortunately 
 continued. 
 
 The constitution also authorized the establishment of tri- 
 bunals of conciliation to hear cases voluntarily submitted by 
 parties and to render judgment thereon, the hope, which has 
 never been realized, being that this would tend to reduce the 
 volume of litigation. Also the legislature first thereafter to be 
 convened was required to revise the system of practice in the 
 courts, which resulted in the simplified procedure subsequently 
 adopted in this State, and substantially copied in many other 
 States and even in England. Measures were provided to secure 
 the codification of the substantive law of the State, but, although 
 the commissioners charged by the legislature with this duty re- 
 ported a code of the substantive law many years ago, so great 
 was the hostility it encountered from the bar that it was never 
 enacted.* However partial revision upon code lines has been 
 made, several branches of the law been reduced to a codified form, 
 and Codes of Procedure have been established. 
 
 The new constitution retained the Court of Impeachment, but 
 
 6. The constitution of 1894 finally eliminated these provisions (Sec. 
 17, Art. I). 
 
 154 
 
HISTORY OF NEW YORK 
 
 abolished the Court for the Correction of Errors. Chancery courts 
 as separate organizations also ceased to exist, and the old, ex- 
 pensive and tedious methods of taking testimony in equity cases 
 were abolished. It would be a great advantage to suitors in the 
 Federal tribunals were similar reforms to be introduced there. 
 Under the present practice in the United States courts, testi- 
 mony in equity cases is taken before a master, and, as he has no 
 power to pass upon its relevancy or competency, all evidence 
 presented by either party however immaterial or improper must 
 be accepted and printed for the use of the court. 
 
 The constitution of 1822 had abolished the former Supreme 
 Court, thus, "constitutionizing" the judges of that court out of 
 office. The constitution of 1846 created a new Supreme Court, 
 investing it with general juridiction in law and in equity. It di- 
 vided the State into eight judicial districts, of which New York 
 City was to be one, the others to be bounded by county lines, and 
 to be as compact and as nearly equal in population as possible, and 
 allotted four Supreme Court justices to each district, except the 
 district which was co-terminous with the city and county of New 
 York. This district was to elect as many such justices as the legis- 
 lature might prescribe. The term of office was fixed at eight 
 years. It established a Court of Appeals of eight judges, four of 
 whom were to be elected by the electors of the State for eight 
 years, the remaining four to be selected by methods to be provided 
 by law, from the justices of the Supreme Court having the short- 
 est time to serve.' The judges of the Court of Appeals were so to 
 be classified that one should go out of office every year; one 
 judge of the Supreme Court in each district was to go out of 
 
 7. The reason for this selection doubtless was the assumption that 
 the justices of the Supreme Court having the longest judicial experience 
 were as a rule better qualified to sit in the court of last resort than their 
 colleagues who had enjoyed shorter service upon the bench. 
 
 iSS 
 
LEGAL AND JUDICIAL 
 
 office at the end of every two years. Provision was also made 
 for supplying vacancies in the membership of these tribunals.' 
 
 While the constitution of 1822 made provision for its 
 amendment by legislative resolutions approved by the people, it 
 did not authorize the calling of a constitutional convention. 
 The act of 1845, disregarding the express language of the con- 
 stitution, provided for the election of delegates and the holding 
 of a convention. Two views were entertained as to this enact- 
 ment; one, that -although extra-constitutional, it was justifiable 
 as a peaceful revolution. The other and the sounder opinion, 
 endorsed by such constitutional lawyers as Rufus Choate and 
 Marcus Morton in the Massachusetts convention of 1852, up- 
 held its fundamental constitutionality, on the ground that the 
 right of amendment by convention is a popular right underlying 
 the constitution of every free people, which has not been re- 
 nounced, although the constitution may furnish other methods 
 for amendment. This interesting discussion was set at rest in 
 this State by Article XIII of the constitution of 1846, which pro- 
 vided for ascertaining the popular desire for a convention, at 
 least once in every twenty years, and for the holding of a con- 
 vention at shorter intervals whenever the people should so will. 
 Thus the constitution of 1846 secured two methods of amend- 
 ment, — ^the one by legislative intitiative, sustained by popular 
 vote, the other by a convention. This dual method is now 
 found in the constitution of many of the States, and the history 
 of this State demonstrates its practical value. 
 
 There is little of permanent value in the opinions of the 
 members of the convention regarding its work. It is within the 
 power of few except the greatest of men to view their own 
 achievements impersonally. Taggart, somewhat in the spirit in 
 
 8. For a fuller account of the judiciary, see Chapter IX. 
 
 156 
 
HISTORY OF NEfF YORK 
 
 which Jay spoke of the first constitution, and Washington of 
 the Federal constitution, said that there was much in the work 
 of the convention that he disapproved. Believing that as a 
 whole it would give the State the best constitution it had ever 
 had, he moved that the constitution be read, adopted and signed. 
 Patterson, the eminent Whig, in seconding the motion, hoped 
 it would receive a unanimous vote ; the constitution had defects, 
 but there was far more in it to approve. Henry C. Murphy 
 thought the good over-balanced the evil, but protested against pro- 
 visions which, he thought, authorized private property to be taken 
 for certain private purposes. Worden considered the document on 
 the whole an improvement in the science of government. Stow 
 believed it would not meet the first expectation of the State or 
 the country. Dana protested against the principle of making 
 constitutional distinctions between citizens on account of color. 
 Chamberlain frankly confessed that he had voted against the 
 convention, and while he dissented from part of the consti- 
 tution, yet there were bright spots in it and he should sustain 
 it as a whole with pleasure. He would have given the people an 
 opportunity to express their judgment upon each article; but 
 that the convention, following the example of the convention 
 of 182 1, had declined to do, and the fourteen articles were sub- 
 mitted for popular approval as a whole. Hoffman, in the exalta- 
 tion of his success in placing the guarantees of the act of 184:2 in 
 the constitution, declared that the new organic law contained more 
 excellent matter than any other constitution. Ira Harris pro- 
 nounced it the best ever framed. Cambreleng justly said that it 
 had made the legislative, judicial and executive departments dis- 
 tinct in reality as well as in name. But Charles O'Conor, who had 
 dissented from the work of the judiciary committee, and who 
 
 157 
 
LEGAL AND JUDICIAL 
 
 seems to have disapproved many features of the constitution, 
 did not hesitate to call it a signal failure.' 
 
 To Hoffman, one of its most eminent members, the con- 
 vention assigned the work of drafting its address to the peo- 
 ple, and the address thus sums up the work of the delegates : 
 
 "In these fourteen articles, they have reorganized the legislature; es- 
 tablished more limited districts for the election of the members of that 
 body, and wholly separated it from the exercise of judicial power. The 
 most important state officers have been made elective by the people of 
 the state ; and most of the officers of cities, towns and counties, are made 
 elective by the voters of the locality they serve. They have abolished a 
 host of useless offices. They have sought at once to reduce and decen- 
 tralize the patronage of the executive government. They have rendered 
 inviolate the funds devoted to education. After repeated failures in the 
 legislature, they have provided a judicial system, adequate to the wants 
 of a free people rapidly increasing in arts, culture, commerce and popula- 
 tion. They have made provision for the payment of the whole state debt 
 and the completion of the public works begun. While that debt is in 
 progress of payment, they have provided a large contribution from the 
 canal revenues towards the current revenues of the state and sufficient 
 for that purpose when the state debt shall have been paid; and have 
 placed strong safeguards against the recurrence of debt and improvident 
 expenditures of the public money. They have agreed on important pro- 
 visions in relation to the mode of creating incorporations and the liability 
 of their members and have sought to render the business of banking more 
 safe and responsible. They have incorporated many useful provisions 
 more effectually to secure the people in their rights of person and property 
 against the abuses of delegated power. They have modified the power of 
 the legislature with the direct consent of the people, to amend the consti- 
 tution from time to time and have secured to the people of the state, the 
 right once in twenty years to pass directly on the question whether they 
 will call a convention for the revision of the constitution." 
 
 In the sober light of history, the address seems a panegyric. 
 Much was indeed accomplished, yet much then done has since 
 
 9. Regarding the new constitution, Daniel Webster wrote Weed in 
 November, 1846, as follows : "There is much in it that is wrong in my 
 judgment, but then there is much in it that is right, and the good, I think, 
 is likely, in time, to root out the evil." 
 
 158 
 
HISTORY OF NEW YORK 
 
 been undone. Decentralization was carried to an extreme. The 
 wisdom of departing from county representation in the assem- 
 bly and of establishing smaller assembly districts has more than 
 once been impeached. Whether important State officers should 
 be elected by the people or appointed in accordance with the plan 
 of the Federal government, by the executive, has often since been 
 discussed. The convention itself was not a unit respecting its 
 treatment of the judicial system, and changes since made show 
 that it had not reached the ideal. Its hybrid Court of Appeals 
 was a mistake and its creation of an elective judiciary holding 
 for brief terms was an error partly repaired after twenty 
 years' experience. Although longer terms have since been in- 
 augurated, an elective judiciary seems to be a permanency. Even 
 the constitutional enunciations forced by the anti-Rent sentiment 
 have been declared unnecessary and in some instances unwise. 
 The convention contributed almost nothing to the solution of 
 municipal problems. The subject of municipal government was 
 superficially 'treated in the final hours of its sessions — as Gov- 
 ernor Tilden pointed out in his municipal reform message in 
 1875. Henry C. Murphy pleaded in vain for provisions for the 
 incorporation of cities under general laws. And in less than a 
 decade the carefully formulated canal policy was to undergo 
 radical change. 
 
 In 185 1, upon the recommendation of Governor Washington 
 Hunt, a bill was passed to anticipate the revenues of the canals 
 by the issue of certificates amounting to $9,000,000 for the imme- 
 diate enlargement of the Erie canal and the completion of the 
 Genesee valley and Black river canals. The constitutionality of 
 this measure was upheld not only by Attorney General John C. 
 Spencer, who had been one of the members of the statutory re- 
 vision commission of 1830, but also by Daniel Webster and Rufus 
 
 159 
 
LEGAL AND JUDICIAL 
 
 Choate. It was not carried in the regular "jession, as eleven Dem- 
 ocratic senators prevented a quorum by resigning their seats. In 
 the extra session re-enforcements to the cause were obtained at 
 the elections which had taken place to fill the senatorial vacancies 
 caused by these resignations. Despite the formidable array of 
 opinion in favor of the measure, it was deemed by many to be 
 a palpable violation of the constitution. Tilden, who had been 
 a colleague of Hoffman's in the canal committee of the conven- 
 tion, powerfully attacked it in a letter to the Albany Atlas, in 
 April, 185 1, in which he emphasized the necessity of adhering to 
 the salutary policy of the constitution, declaring that he owed it 
 to the memory of Michael Hoffman, "by whom these provisions 
 of the constitution were mainly prepared, and to whom they were 
 an imperishable monument," to show that his work was not so 
 imperfectly done that the measure proposed could ever be in- 
 vested with the authority of law while the constitution remained 
 unchanged. The canal auditor refusing to draw a warrant for the 
 payment of a claim that had been allowed by the canal commis- 
 sioners, a mandamus was sought, which was granted in the courts 
 below, but the Court of Appeals, after elaborate argument by 
 most eminent lawyers, pronounced the statute unconstitutional, 
 only one judge dissenting. The defeat of this legislation aroused 
 the Whigs to renewed efforts; a resolution was carried through 
 two successive legislatures for an amendment to section 3 of 
 Article VII of the constitution, and this was ratified by the 
 people at a special election February 15, 1854. The amendment 
 put at the disposition of the canal commissioners the sum of two 
 and a half million annually for four years for canal improve- 
 ments. There was wisely added to the section a provision that 
 "all contracts for work or materials on any canal shall be made 
 with the person who shall offer to do or provide the same at the 
 
 160 
 
HISTORY OF NEW YORK 
 
 lowest price with adequate security for their performance." Canal 
 contracts had constituted a valuable source of party patronage. 
 Abuses grew and flourished, and finally reached such a notorious 
 condition that the convention of 1867 sought a remedy in a 
 change of the administrative system, but all the work of that 
 convention except its judiciary article failed of approval. The 
 "canal frauds" were later vigorously taken up by Governor Til- 
 den. 
 
 Allusion has been made to the additions made to the bill of 
 rights at the instance of the anti-renters. The convention of 
 1846, following the language of the convention of 1821, 
 declared all lands within the State to be allodial and added 
 two new sections, one providing that no lease or grant of agricul- 
 tural land for a longer period than twelve years thereafter made 
 in which any' rent or service of any kind was reserved should be 
 valid, and the other providing that all fines, quarter sales, or other 
 like restraints upon alienations reserved in any grant of land 
 thereafter made should be void. This latter provision in particu- 
 lar was demanded in order constitutionally to guarantee the per- 
 manence of the legislation of 1846, which had been secured by the 
 tenants of the great estates in obedience to sentiment generally 
 entertained throughout the State. 
 
 The origin and progress of the anti-rent controversy may 
 briefly be explained. The dispute between New York and Massa- 
 chusetts had been settled in 1786 by the cession by Massachusetts 
 to New York of certain land^" in the western part of this State, 
 now including the city of Buffalo, and Massachusetts was given 
 the right to extinguish the Indian title by treating with the native 
 Indians. In 1791 it made conveyances of about five million acres 
 
 10. The cession included what was then known as "The Genesee 
 Country," and also the counties of Browne and Tioga. 
 
 161 
 
LEGAL AND JUDICIAL 
 
 to the famous banker Robert Morris, of Philadelphia, who in 
 turn conveyed to the Holland Land Company. The leases made 
 by this company were similar in many features to the leases made 
 by the patroons and owners of manors. Vast estates had long 
 previously been acquired by the patroons under the Dutch in the 
 eastern counties fringing the Hudson river, particularly in Al- 
 bany, Columbia and Rensselaer county. Extensive grants had 
 been made by some English governors to themselves and their 
 favorites, and so notorious had this policy become that it was the 
 subject of letters from Lord Bellomont when governor of the 
 colony, to the Board of Trade."- In one of these letters (January 
 2, 1701) he declared that seven million acres of land had been 
 disposed of in thirteen patents. In many instances Indians had 
 been persuaded into parting with their title to large speculators. 
 Thus a great part of the fertile territory of the State had become 
 concentrated in the hands of a few persons. At the date of its 
 independence the State still owned more than seven millions of 
 acres of unappropriated land. In 1791 the legislature, to supply 
 needed funds, passed a law authorizing the commissioners of the 
 land office (of whom Aaron Burr, then attorney general, was 
 one,) to dispose of this enormous territory in such parcels and 
 on such terms and in such manner as they should judge most 
 conducive to the public welfare. More than five and a half mil- 
 lion acres of land were sold under this law to a few large capital- 
 ists at trivial prices. One sale seemed the climax of prodigality. 
 3,635,200 acres were sold to Alexander McComb at eight pence 
 per acre. Payment was to be made in five annual instalments 
 without interest or, at his option, for cash at a discount which 
 made the net price about seven cents per acre. The action of 
 the commissioners was bitterly criticised, but the house by a 
 
 II. See Introduction by Hon. Charles P. Daly, I E. D. Smith. 
 
 162 
 
HISTORY OF NEW YORK 
 
 vote of 35 to 20 approved the conduct of the commissioners and 
 declared the sales judicious.^^ 
 
 The manor lords and capitalists into whose hands this im- 
 perial domain had passed usually made leases in fee or for long 
 terms, reserving the old rights of feudal service. George C. Clyde, 
 of Columbia county, in the convention of 1846, in depicting the 
 evils suffered by the lessees, spoke of the "cunningly devised" 
 clauses which reduced the tenants to mere serfs and vassals of 
 their feudal superiors. "The restrictions on the right of aliena- 
 tion—the reservation of wood, water, minerals, mill streams and 
 privileges— the quarter sales, the two fat fowls and day's labor 
 drawing manure — the covenants requiring the tenant to go to the 
 landlord's mill on pain of forfeiting his whole estate— and the 
 thousand and one other little mean degrading covenants, a viola- 
 tion of any one of which by the tenant works a forfeiture of the 
 whole estate— the right stipulated for by the landlords to do what- 
 ever they please and the covenants exacted of the tenants that 
 they shall do nothing as they please, — is all of a piece from begin- 
 ning to end." Mixed with some rhetorical exaggeration, there 
 was a great amount of truth in Clyde's denunciation. Rents due 
 to the patroon Stephen Van Rensselaer had long been in arrears, 
 as his policy to tenants was one of leniency, and the accumula- 
 tions had surpassed the ability of tenants to pay. Upon his death 
 in 1839, the attempts of his successors to enforce the harsh 
 
 12. Memoirs of Aaron Burr, by Matthew L. Davis, I, 328, 329. The 
 extent to which the people's patrimony, the land of the State, was sold at 
 absurdly low prices or was allowed by officials to pass into private owner- 
 ship is simply appalling. From the days of the colonial governors down 
 almost to the end of the eighteenth century, valuable forest and arable 
 tracts and mines and ores were disposed of in this manner. But history 
 keeps constantly repeating itself. If today there are no broad acres for 
 the public to retain it has nevertheless resources of untold wealth to con- 
 serve, yet these are too often dealt with as our ancestors dealt with public 
 lands. Whilst inveighing against them for their errors we follow the like 
 evil and reckless policy. 
 
 163 
 
LEGAL AND JUDICIAL 
 
 covenants and conditions of leases, which would have resulted in 
 evicting great numbers of the yeomanry from their homes, 
 brought the anti-Rent controversy to a head. It continued to 
 grow in proportions during the administrations of Governors 
 Marcy and Seward, and culminated in bloodshed and the calling 
 out of the militia by Governor Wright, in 1846. 
 
 As has so often happened in history, while one side was 
 within its strict legal rights, an overwhelming public sentiment 
 was opposed to its assertion of them. The proprietors stubbornly 
 insisted on enforcing covenants and conditions as to rent, fines 
 and quarter sales which had been inserted in the deeds or leases 
 made by them and accepted by their tenants and by purchasers. 
 The grantees and tenants contended, on the other hand, that the 
 principles of feudal ownership were hostile to the constitution 
 and the policy of the State, and tended to retard its development 
 and to create class distinctions. These feudal regulations, it was 
 urged by the occupants, would, if enforced, deprive the tenant of 
 all sense of manhood and independence. These differences were 
 on their way to adjustment months before the convention of 1846 
 assembled. The legislature of 1845 was flooded with petitions 
 from the representatives of the tenants, who appeared before a 
 committee of the assembly, of which Samuel J. Tilden was chair- 
 man, and advocated a taxation of the interests reserved in long- 
 term leases ; abolition of distress for rent ; and a law enabling the 
 tenant to dispute the title of his landlord. Tilden, as chairman of 
 the committee, presented to the assembly a report containing a 
 thorough and dispassionate review of the issues between the 
 tenants and the landlords. The report approved of the first two 
 measures advocated by the tenants and disapproved of the third. 
 
 Two bills drafted by the committee were enacted into law, 
 the one providing for taxation, in the locality where the land 
 
 164 
 
HISTORY OF NEW YORK 
 
 lay, of the rents reserved upon perpetual leases, leases for lives 
 and for twenty-one years or more; and the other abolishing .ill 
 distress for rent. The committee also matured a bill which pro- 
 hibited for the future leases of agricultural land for a period ex- 
 ceeding ten years, and which, said Tilden, proposed: "by the 
 exercise of the unquestionable power of the legislature over the 
 statutes of devises and descents, to provide at a future and not 
 very distant period for the commutation on equitable principles 
 in chancery of the rights and interests of the landlords, and the 
 conversion of them into mortgages payable at once or in rea- 
 sonable instalments."" As to the reservation of quarter and other 
 proportional sales and charges upon alienation, which was a com- 
 mon feature of these harsh leases in fee, the report declared 
 that they were not believed to be valid. "A general condition in 
 a conveyance in fee not to alien was settled in this State to be 
 void, as contrary to public policy." There is an interesting re- 
 semblance between Tilden's reasoning in this report and that 
 employed by Chief Judge Ruggles, of the Court of Appeals, some 
 years later, when that court declared such restraints upon fee 
 ownership absolutely void. This report and the legislation which 
 followed it were undoubtedly potent in bringing anti-rent troubles 
 to an end. 
 
 The legislation of 1846 really supplied adequate remedy, but 
 the feeling prevailed in the manor counties that a constitutional 
 declaration was essential to guarantee its permanence. Discus- 
 sion of Clyde's resolution was brief, as the lawyers of the con- 
 vention seem to have felt little interest in the subject. Ruggles, 
 afterwards to become the author of the opinion in DePeyster v. 
 Michael, wished to hear what benefit would result from such con- 
 stitutional provisions to those who demanded relief. The legisla- 
 
 13- Bigelow, "Life and Letters of Samuel J. Tilden." 
 
 l6S 
 
LEGAL AND JUDICIAL 
 
 ture had ample power to deal with the subject, and there was 
 no likelihood that it would ever assume to re-establish feudal 
 tenures. Judge Brown objected especially to the prohibition of 
 the right of an agricultural owner to lease his land for a long 
 term, as an unconstitutional limitation upon free alienation of 
 property, while others affirmed that these tenures were disastrous 
 to agriculture and had a tendency to degrade the character of 
 tenants, an opinion expressed more than once by Governors 
 Marcy, Seward and Wright. Yet each of these governors had 
 maintained law and order. The length of permitted agricul- 
 tural leases reserving rent or services, was reduced to twelve 
 years. The law of tenures is elaborate and perplexing; the 
 judgments which support the invalidity of these restraints upon 
 free alienation of land differ in their assumptions and reasoning. 
 It was Judge Ruggles' opinion that the statute, quia emptores, 
 had never become part of the colonial law of New York, and 
 was first introduced into the civil polity of the State in 1787. In 
 the celebrated case of Rensselaer v. Hays, brought to recover 
 rent upon a lease in fee long in arrears. Chief Justice Denio de- 
 cided on the contrary that the statute had always been in 
 force in the colony, and that the fact that it was re-enacted in 
 1787 did not tend to show that it had not the force of law prior 
 to that time. Since 1846 the last vestige of feudal tenures has 
 disappeared, but whether the restraint upon agricultural leases 
 which has ever since been retained in the constitution is wise, 
 remains to be seen. 
 
 166 
 
CHAPTER IX 
 
 FLUCTUATIONS IN CONSTITUTION OF JUDICIAL DEPARTMENT — 
 PERMANENT TENURE IN THE HIGHER COURTS UNDER THE 
 FIRST CONSTITUTIONS — UNCERTAINTY OF TENURE IN COLONIAL 
 DAYS — ENGLISH JUDICIARY BEFORE WILLIAM III — REMOVALS 
 OF INFERIOR JUDGES BY COUNCIL OF APPOINTMENT — DEFECTS 
 IN THE JUDICIARY UNDER CONSTITUTION OF 182I — UNWISE 
 SOLUTION ATTEMPTED IN 1846 — POPULAR ELECTION THE CREED 
 OF THE TIME — BRIEF ANALYSIS OF JUDICIAL SYSTEM AS RECON- 
 STITUTED IN 1846 — RIGHT OF JUDGES TO SIT IN REVIEW OF 
 
 THEIR OWN DECISIONS NEW YORK NOT THE FIRST STATE TO 
 
 ADOPT ELECTIVE JUDICIARY — RE-ACTION SINCE 1846 IN VARI- 
 OUS STATES IN FAVOR OF APPOINTIVE SYSTEM OR LONGER JU- 
 DICIAL TERMS — TREATMENT OF THE JUDICIARY BY THE CON- 
 STITUTIONAL CONVENTION OF 1 867 JUDICIARY COMMITTEE 
 
 OF THE CONVENTION — THE MAJORITY AND THE MINORITY 
 REPORT TO THE CONVENTION — CHANGES MADE, LENGTHEN- 
 ING OF JUDICIAL TENURE — ^DALY UPON THE CONVENTION OF 
 1846 ELECTIVE SYSTEM AND EVOLUTION EVARTS ADVO- 
 CATES TENURE DURING GOOD BEHAVIOR — ^VOTES OF THE CON- 
 VENTION UPON THIS SUBJECT — QUESTIONS AFFECTING THE 
 JUDICIARY SUBMITTED BY THE CONVENTION OF 1867 TO THE 
 PEOPLE — ORGANIZATION OF NEW COURT OF APPEALS. 
 
 "There seems," says a recent historian of the constitutions 
 of New York,i "to be no permanency in our judicial system. Its 
 fluctuations have been very marked, both in organization and 
 detail. In this respect it presents a striking contrast to the 
 
 I. Charles Z. Lincoln. 
 
 167 
 
LEGAL AND JUDICIAL 
 
 other great departments into which our government is divided." 
 The truth of this observation must impress every student of 
 the history of the State judiciary. 
 
 The best feature of the judiciary system under the first two 
 constitutions, was the permanent tenure of the judges of the 
 higher tribunals. There had been no such permanency during 
 the colonial regime. The province had its Court of Chancery 
 and also its Supreme Court; the governor, who sat as chancel- 
 lor, was removable at the sovereign's pleasure, and the judges of 
 the Supreme Court were at first appointed by the governor and 
 held office at his will. During the administration of Lord Bel- 
 lomont, Attwood was appointed chief justice by the sovereign, 
 his appointment being by warrant or mandamus, which was the 
 usual mode of appointing judges for the colony, requiring the 
 governor to commission him by letters patent under his own sig- 
 nature and the seal of the province. This mode of appointment 
 of chief justice was with one exception followed thereafter, his 
 tenure depending upon the sovereign's pleasure. The puisne 
 judges continued as before to be commissioned by the governor 
 and to hold their offices during his pleasure. "A tenure so pre- 
 carious was productive of very injurious consequences. It not 
 only lessened the independence of the judges, but as they were 
 generally members of the Council, and consequently mixed up 
 with all the political questions of the day, they were liable to be 
 removed, and many were removed upon the change of parties."^ 
 
 Upon the death in 1760 of Chief Justice Delancey, whose 
 commission had by way of compliment run during good behavior, 
 the assembly, with the idea of rendering the judges independ- 
 ent of either governor or king, passed an act for the reappoint- 
 ment of judges upon the like tenure, but Lieutenant-Governor 
 
 2. Hon. C. P. Daly in i E. D. Smith. 
 
 168 
 
HISTORY OF NEfF YORK 
 
 Golden refused his assent to it. In 1763 the assembly peti- 
 tioned George III. to make the appointment of judges run dur- 
 ing good behavior. This memorial, which had urged the ex- 
 ample set by William of Orange upon his accession to the Brit- 
 ish throne, was referred to the Treasury Board,' of which Lord 
 North was a member, but his influence was exerted against the 
 colonists. The tenure of the judges as well as their salary re- 
 mained throughout the residue of the colonial period entirely 
 dependent upon the crown. The convention of 1777, as has 
 been seen, provided that the chancellor, the judges of the Su- 
 preme Gourt and the first judge of the county court in every 
 county, should hold their commissions during good behavior or 
 until they had respectively attained the age of sixty years. 
 With these exceptions the tenure of all other judicial offices was 
 unfortunately during the pleasure of the appointing power. In- 
 asmuch as the establishment of the Federal judiciary did not 
 take place until 1789, Jay and his associates in the convention 
 of 1777 must have derived their idea of permanency in the ju- 
 dicial office from English models. 
 
 The principle of a tenure for judges to continue during 
 good behavior had its inception under the Act of Settlement in 
 1689, after the accession of William of Orange to the English 
 throne. In Lord Goke's time the barons of the exchequer had 
 been created to hold office during good behavior, and Gharles II. 
 signalized his restoration to the Grown by issuing commissions to 
 common law judges quamdiu se bene gesserint, but all such com- 
 missions were revocable at the pleasure of the sovereign. James 
 II., bent upon securing judicial sanction for his exercise of a 
 power which was palpably unconstitutional, found even the Tory 
 judges of Westminster inflexible in their opposition. "Jones", 
 
 3. Which had charge of the affairs of the colonies (see Bancroft). 
 
 169 
 
LEGAL AND JUDICIAL 
 
 says Macaulay, "the chief justice of the Common Pleas, a man 
 who had never before shrunk from any drudgery, however cruel or 
 servile, now held in the royal closet, language which might have 
 become the purest magistrate in our history. He was told that he 
 must give up either his opinion or his place. 'For my place', he 
 answered, 'I care little ; I am old and worn out in the service of 
 the crown, but I am mortified to find that your Majesty thinks 
 me capable of giving a judgment which none but an ignorant 
 or a dishonest man could give.' 'I am determined', said the King, 
 'to have twelve judges who shall be all of my mind as to this 
 matter'. 'Your Majesty', answered Jones, 'may find twelve judges 
 of your mind, but hardly twelve lawyers.' He was dismissed, 
 together with Montague, Chief Baron of the Exchequer, and two 
 puisne (associate) judges, Neville and Charlton." The constitu- 
 tional guarantee against future subversion of judicial independ- 
 ence erected by Parliament upon William's accession stimulated 
 other European nations to follow England's example, and rescue 
 the judiciary from Montesquieu's reproach, — that it was the 
 weakest department of government. 
 
 It was fortunate, indeed, that authority to remove superior 
 judges was not vested in the council of appointment, which for 
 acts of pitiless, machine tyranny has never been surpassed in the 
 annals of the State. This political guillotine was constantly busy, 
 and inferior magistrates were made to feel its fatal power. When, 
 for example, Radcliff resigned his place in the Supreme Court, 
 in 1804, the council raised Ambrose Spencer, attorney general, to 
 his office, and deposed Van Ness, a young Federalist lawyer of 
 eminence from the place of surrogate of Columbia county, yet this 
 same Van Ness was, notwithstanding his removal from the post 
 of surrogate, judged worthy to sit alongside of Spencer in the 
 Supreme Court in after years. Van Buren, who was appointed 
 
 170 
 
HISTORY OF NEW YORK 
 
 surrogate of the same county in 1808, underwent a similar deposi- 
 tion in 1813, when the Federalists obtained control of the coun- 
 cil. This system of reprisals was maintained until the second 
 constitution abolished the council of appointment. The framers 
 of that organic law might well have provided that the chancellor 
 and judges of the Supreme Court should hold their offices during 
 good behavior, and have abolished the early age retirement. A 
 further mistake was made in limiting the term of office of county 
 judges to five years. ^The defects which the convention of 1846 
 found in the judicial system were, according to Judge Charles P. 
 Daly (as stated by him in a speech which he made in the conven- 
 tion of 1867), that the union of legislature and judges in the court 
 of errors was incongruous; that a separate court of chancery 
 was unnecessary; that the scheme devised in 182 1 by which one 
 class of judges of the Supreme Court called circuit judges tried 
 causes, while another class heard appeals, had worked badly and 
 been universally condemned ; and that a single Supreme Court of 
 three judges holding sessions at four different places in the State 
 was insufficient for public business and inconvenient to the pro- 
 fession. The remedy adopted in 1846 was the creation of a Su- 
 preme Court of many branches, with numerous judges sitting 
 simultaneously in different parts of the State, and a Court of Ap- 
 peals, one-half of whose members sat for eight years, while the 
 other half changed every year, and it was vainly hoped that by 
 the establishment of courts of conciliation the volume of litigation 
 would be diminished. But the solution attempted in 1846 proved 
 no panacea, for litigation grew in amount, reported cases multi- 
 plied beyond anticipation, and suitors rarely resorted to arbitra- 
 tion of their differences. Besides reconstituting the courts, the 
 convention made the judges elective, and required their election 
 
 171 
 
LEGAL AND JUDICIAL 
 
 at short intervals, with the mistaken idea of making them directly 
 responsible to the people. 
 
 The disordered condition of the finances of the State ante- 
 cedent to the act of 1842, and the necessity for making that 
 law irrepealable by the enactment of a constitutional pledge of 
 State revenues to the redemption of the State debt, and for put- 
 ting a constitutional check upon the loan of State credit to private 
 capital, were the chief motives for the popular referendum in 
 favor of a convention. Deeper and more general causes than 
 widespread desire to get rid of debt were simultaneously at work 
 and these causes profoundly influenced the proceedings of the 
 convention. In the seventy years of its existence, the political 
 character of the State had undergone a revolution. The vote 
 for governor and for senators under the first constitution was 
 limited to owners of land in fee or freehold, and in the choice of 
 assemblymen only property holders participated. The suffrage 
 was placed on a broad foundation in 1826, but it remained partly 
 theoretical under the second constitution. The democratic move- 
 ments that swept over America within the succeeding twenty 
 years, and were felt in Europe also, produced a creed that de- 
 clared frequent popular election the solvent for all political ills. 
 The incumbent of every office should be elected by the people, 
 and to preserve responsibility to the electors, the tenure of office 
 should be short. The new cult attacked the judiciary. Hence, 
 the convention of 1846 reported in favor of electing judges, and 
 of substituting for the tenure of good behavior a fixed term of 
 eight years, thus overlooking the most fundamental consideration 
 — the independence of the judge, — which is completely attainable 
 only with full immunity from removal during good behavior, 
 within a reasonable age limit, whether the removing power be 
 
 governor, legislature, or people. 
 
 172 
 
HISTORY OF NEW YORK 
 
 This was the most radical change proposed by the conven- 
 tion. The members of the judiciary committee, numbering some 
 of the most eminent lawyers in the State, among them, David 
 Dudley Field, Charles O'Conor, Charles H. Ruggles and John 
 W. Brown, were not in accord in their views as to the reconstitu- 
 tion of the judicial system. This part of the work of the con- 
 vention was largely a matter of compromise, and was pronounced 
 by O'Conor a "signal failure". The Court of Impeachment was 
 preserved, with the substitution of the judges of the Court of 
 Appeals for the chancellor and the Supreme Court judges; but 
 the ancient Court of Errors was abolished. A clearer notion of 
 the distinction between legislative and judicial functions had de- 
 veloped since this tribunal, partly modeled on the English House 
 of Lords, was created, and legislative duties had grown to be 
 more engrossing. It was said that the court. had never declared 
 an act of the legislature invalid, and how, it was asked, could 
 senators who had taken part in framing laws be expected, as 
 members of the Court of Errors, to pronounce unfavorable judg- 
 ment upon their own work? The council of revision had a sub- 
 stantial veto upon legislation, but the second constitution, although 
 it had abolished that council, had provided no corresponding 
 check, for the chancellor and the Supreme Court judges formed, 
 in the Court of Errors, an uninfluential minority. The new Court 
 of Appeals bore a rough analogy to the former Court of Errors, 
 in consisting partly of judges elected at large, and partly of 
 judges designated from the supreme bench, the latter correspond- 
 ing to the chancellor and the judges of the old Supreme Court. 
 All the senators had not been lawyers, and it was not intended 
 that all the judges elected at large should be drawn from the bar. 
 According to Ruggles, an advocate of the plan, it was meant to 
 preserve a popular feature of the old court, and the presence of 
 
 173 
 
LEGAL AND JUDICIAL 
 
 laymen not educated in the legal profession might in many cases 
 be useful. O'Conor unsuccessfully argued for a scheme to make 
 the new court consist of the lieutenant-governor, eight to twelve 
 judges elected at large and two judges of the Supreme Court, 
 the latter to have no voice in reviewing their own decisions. The 
 office of circuit judge was abolished, for it was believed to be 
 better, said Ruggles, that judges who assemble to re-examine the 
 decisions at the circuits, should themselves hold the circuit courts, 
 and thus be brought into direct contact with the people and their 
 business. After a trial for fifty years of the substituted plan, the 
 State, in 1895, reverted in a measure to the substance of the old 
 system of circuit judges,— in the separation made in that year 
 between appellate divisions and supreme court judges. 
 
 The convention of 1846 created a new Supreme Court, not 
 with the malevolent purpose of wreaking vengeance on any judge 
 by abolishing his office, as had been done in 1821, but because the 
 alteration of tenure rendered a new court necessary. For the old 
 term to continue during good behavior, with its absurd age limit, 
 the convention unwisely substituted a short term of eight years. 
 In the organization of the court, the State was divided into eight 
 districts. All chancery and common law jurisdiction was vested 
 in this new tribunal. Intermediate appellate courts, designated 
 as general terms, were created, but serious conflict of opinion was 
 made possible by the establishment of eight such courts with 
 co-ordinate jurisdiction. The duties and functions of the circuit 
 judge and of the chancellor were confided to the Supreme Court 
 justices sitting either at nisi prius or at special term. The con- 
 vention also erected surrogates' courts into constitutional tri- 
 bunals but scarcely extended their powers. It would have been, 
 and it would now be, wise to abolish these courts, and add their 
 functions and all similar functions of county courts to those of 
 
 174 
 
HISTORY OF NEW YORK 
 
 the Supreme Court. Practice in the surrogate's courts, with their 
 limited jurisdiction, is beset with technicalities and pitfalls at 
 almost every step, and the settlement of estates is thus rendered 
 unduly expensive. 
 
 When the ancient Court of Errors fell, there fell also the 
 interdict forbidding the chancellor and the Supreme Court 
 judges from voting to support their own judgments in cases 
 which had previously come before them. In the first reported 
 case in the new Court of Appeals, the right of a judge to sit and 
 vote in review of his own decisions was enunciated. Judge 
 Bronson, in support of this right, after holding that there was 
 no disqualification upon judicial officers not expressly contained 
 in the new constitution, said: "There is nothing in the nature 
 of the thing which makes it improper for a judge to sit in re- 
 view upon his own judgments. If he is what a judge ought to 
 be — wise enough to know that he is fallible, and therefore ever 
 ready to learn; great and honest enough to discard all mere 
 pride of opinion, and follow truth wherever it may lead; and 
 courageous enough to acknowledge his errors — he is then the 
 very best man to sit in review upon his own judgments. He 
 will have the benefit of a double discussion. If right at the 
 first, he will be confirmed in his opinion, and if wrong, he will 
 be quite as likely to find it out as any one else." The reporter 
 adds that Chief Judge Jewett and Judges Ruggles and Jones 
 subsequently took part in reviewing their own decisions in the 
 tribunals from which they had come. That human nature, even 
 upon the bench, should discard pride of opinion does not 
 conform with experience. All history testifies to the inflexi- 
 bility of individual opinion, and there is nothing to exempt the 
 wearer of the ermine from subjection to the general law. 
 The constitution had taken a backward step in expecting the 
 
 175 
 
LEGAL AND JUDICIAL 
 
 judicial mind to emancipate itself from preconceptions. The 
 convention of 1867, in revising the judiciary article in the light 
 of intervening history — most interesting history, since it showed 
 how far the judges fell below this impracticable standard- 
 provided that no judge or justice should sit in an appellate 
 court in review of a decision made by him or by any court of 
 which he was at the time a sitting member, and this provision 
 has ever since remained in the organic law. 
 
 New York was not the first State to elect its higher judges. 
 The elective system had previously taken root in other States. 
 Mississippi in 1832 by her second constitution provided for the 
 election of all judges by the people, those of the Court of Errors 
 and the chancellor for six years and the circuit judges for four 
 years. Within the next four years eleven other States, — Illinois, 
 Wisconsin, Arkansas, California, Pennsylvania, Missouri, Vir- 
 ginia, Alabama, Connecticut, Kentucky and Michigan followed 
 the example of Mississippi. Between 1850 and i860 nine more 
 States adopted the elective system in the selection of their ju- 
 diciary. It was adopted in Iowa, when that State framed its first 
 constitution in May, 1846. The convention which drew up that 
 constitution made Supreme Court judges elective for terms of six 
 years, and district judges for terms of four years, and its work 
 was ratified by the people of the State in the following August. 
 The Iowa convention assembled but a month before the New 
 York convention. The example set by these States was contagi- 
 ous. Mr. Henry Hitchcock, in an address delivered before the 
 New York State Bar Association, January 18, 1887, said: "In 
 i860, twenty-four of the thirty-four States then composing the 
 Union had introduced an elective system to a greater or less ex- 
 tent". But this movement attained its maximum in the course of a 
 few years. "The changes since i860 indicate an opposite tendency, 
 
 176 
 
HISTORY OF NEfF YORK 
 
 — either in the lengthening of judicial terms in States still re- 
 taining the election, or in the abandonment of that system by- 
 some States", notably Virginia, Louisiana, Florida, Maine and 
 Connecticut. "In Pennsylvania, by the new constitution of 
 1873, the term was lengthened from fifteen to twenty-one years 
 for supreme judges and from five to ten years for other judges. 
 In Missouri, the term of supreme court judges was lengthened, 
 in 1875, from six to ten years, and that of the judges of two 
 intermediate appellate courts, more recently created, was made 
 twelve years; in Ohio, where, since 1851, the constitutional term 
 was five years, the legislature were authorized, in 1883, to fix 
 any term not less than five years; in California, the term of 
 supreme court judges was changed from ten to twelve years; in 
 Maryland, that of all judges from ten to fifteen years". It 
 would have been surprising had New York long remained insensi- 
 ble to influences operating so widely in favor of a more stable 
 judicial tenure. 
 
 In accordance with Article XIII of the constitution of 
 1846, the question was submitted to the people of the State, at 
 the general election held in 1866, whether a convention should 
 be called to amend and revise the constitution. The decision 
 was in the affirmative, by a vote of 352,854 in favor of a con- 
 vention to 256,364 against it. The legislature thereupon passed 
 a law providing for the election of 128 delegates from the vari- 
 ous senatorial districts of the State, and also for the election of 
 thirty-two delegates for the State at large, upon the principle of 
 minority representation. As no elector was permitted to vote 
 for more than sixteen of such delegates, the delegates at large 
 belonged equally to each of the two parties. Of the district 
 delegates the Republicans had a majority, so that they were able 
 to elect the president of the convention and, to a certain extent, 
 
 177 
 
LEGAL AND JUDICIAL 
 
 to control its committees. The epoch was not favorable for the 
 holding of a constitutional convention as partisan feeling ran 
 very high. The conflict between President Johnson and the Con- 
 gress of the United States was nearing its culmination, and the 
 country was disquieted with the excitement which this contest 
 had produced. The presidential election was approaching, and 
 it was evident to political managers that slight circumstances 
 might turn the scale. 
 
 In this convention the lawyers were in a large majority, and 
 among them were some of the most prominent in the State. 
 Horace Greeley, George WiUiam Curtis, Erastus Brooks and 
 George Opdyke were also delegates.* Some of the ablest men 
 in the convention had been chosen as delegates at large. Hon. 
 William A. Wheeler was elected permanent chairman. The 
 convention assembled on the first Tuesday of June, 1867, and 
 closed its sessions on the 28th of February 1868. The judiciary 
 committee included some of the foremost members of the bar — 
 George F. Comstock, William M. Evarts, Charles P. Daly, 
 Joshua M. Van Cott, Theodore W. Dwight, Francis Kernan, 
 Amasa J. Parker, Matthew Hale, Edwards Pierrepont, Charles 
 J. Folger and Charles Andrews, the last two, with Sanford E. 
 Church, also a delegate, destined to take seats in the Court of 
 Appeals. It would have been difficult to select a committee 
 more fully representative of the best members of the profession. 
 Evarts, then in the meridian of his practice, shortly afterwards 
 called to the post of attorney general under President Johnson, 
 was pre-eminent, and his arguments before the convention rank 
 among the best specimens of his forensic oratory. 
 A majority of the committee on the judiciary reported for the 
 
 4. Ira Harris, Charles P. Daly and Samuel J. Tilden had been mem- 
 bers of the convention of 1846. 
 
 178 
 
GEORGE F. COM STOCK. 
 
 (1811-1892). 
 
 Advocate and Jurist; Reporter Court of Appeals, 1847-50; 
 Solicitor United States Treasury, 1852 ; Associate Judge Court 
 of Appeals, 1856-60 ; Chief Judge 1860-61 ; Delegate at large, 
 Constitutional Convention of 1867. 
 
George F. Comstock 
 
HISTORY OF NEW YORK 
 
 election of judges to hold office during good behavior or until 
 the age of seventy had been reached. Their report further pro- 
 posed that at the general election in the year 1870 there should 
 be submitted to the people, under proper provisions to be de- 
 termined by the legislature, the question whether vacancies as 
 they should thereafter occur in the Court of Appeals, the Com- 
 mission of Appeals, and in the Supreme Court and the superior 
 city courts, should be filled by appointment by the governor with 
 the advice and consent of the senate. This report bore the sig- 
 nature of Charles J. Folger, chairman, William M. Evarts, Jo- 
 seph G. Hasten, George Barker, Joshua M. Van Cott, Charles 
 P. Daly, Waldo Hutchins, Francis Kernan, Theodore W. 
 Dwight, Amasa J. Parker, Charles Andrews, Edwards Pierre- 
 pont, and Matthew Hale. A minority report was submitted by 
 Mr. Goodrich favoring the election of Court of Appeals judges 
 for fourteen years, and of justices of the Supreme Court for 
 twelve years. Life tenure, he argued, would involve practical 
 denial of the benefits of the elective system. He dissented from 
 the recommendation of the majority to refer the question of 
 the future election or appointment of judges to a popular vote. 
 It would be difficult to present a brief sketch of the discus- 
 sion of these topics in the convention. The prevailing opinion 
 was that a court of last resort, composed of the four justices of 
 the Supreme Court having the shortest terms to serve, and of the 
 four justices elected at large throughout the State, lacked the 
 elements of permanence and stability necessary to a court of 
 dernier resort, and that uniformity of opinion could hardly be 
 expected from such a tribunal. The constant changes in its per- 
 sonnel impaired its efficiency and made its decisions uncertain and 
 conflicting. It was found in practice to take almost half a year 
 before the Supreme Court justices could work efficiently with 
 
 179 
 
LEGAL AND JUDICIAL 
 
 their more permanent brethren of the court, and when the desired 
 working efficiency was obtained, they were obliged to retire in 
 favor of new members recruited from below. A court thus con- 
 stantly changing "lacked the stability, the cohesiveness and the 
 unity which a permanent court should have". But the conven- 
 tion found criticism easier than constructive work. Various 
 schemes were proposed. Baker suggested a Court of Appeals of 
 nine members to hold office for twelve years ; Wakeman a court 
 of seven members to hold office for the same period, six to be 
 elected by the people and the chief justice to be appointed by the 
 governor and senate. Beckwith proposed a court with a chief 
 justice to be appointed by the governor and senate for fourteen 
 years, and with six associate judges to be elected by the people 
 for twelve years. Rumsey favored the continuance of the judges 
 of the existing Court of Appeals as members of the new tribunal. 
 Judge Comstock favored a court with seven members, all of 
 whom, including the chief judge, were to be elected by the people 
 for a term of fourteen years. The judges were not to hold office 
 beyond the age of seventy, and not to be eligible to re-election. 
 Pond suggested a court of ten judges, continuing the four elec- 
 tive members of the existing court, and providing for the election 
 of six more with the right to each voter to vote for four. Judge 
 Landon proposed to abolish the Court of Appeals and to make 
 the Supreme Court the final judicial tribunal of the State. The 
 decision was finally to report in favor of a tribunal of seven mem- 
 bers, consisting of a chief judge and six associate judges. 
 
 In the discussions about the constitution of the appellate 
 branch of the Supreme Court, the dominant feeling was that in 
 the creation of a court with eight independent general terms the 
 convention of 1846 had erred. Eight co-ordinate tribunals with 
 their divergent opinions had made the law uncertain ; the number 
 
 180 
 
Matthew Hale 
 
MATTHEW HALE. 
 
 (1829- 1 897). 
 
 Eminent Lawyer; Delegate to Constitutionar Convention of 
 1867; State Senator, 1868-69; Counsel for the "Ramsay" Di- 
 rectors in the Albany and Susquehanna Railroad cases against 
 Gould and Fisk, and in a large number of other important cases 
 in the State and Federal Courts. ; 
 
HISTORY OF NEW YORK 
 
 of appeals to the Court of Appeals had accordingly been increased 
 and the volume of litigation augmented. The convention there- 
 fore voted to reduce the number of general terms to four. ^ But 
 these conclusions were not reached without earnest debate. 
 
 The convention decided to lengthen the judicial tenure, and 
 there was a strong feeling in favor of the substitution of an ap- 
 pointive for an elective judiciary. Upon the subject of judicial 
 tenure, opinions were divided, some advocating the continuance 
 of the eight year term, many, including some of the ablest lawyers 
 of the convention, favoring a tenure to continue until judges 
 should have attained the age of seventy years ; others urging as a 
 compromise the lengthening of the term to fourteen years. This 
 last view prevailed not only as to the terms of the Court of Ap- 
 peals judges, but also as to the tenure of justices of the Supreme 
 Court and of the superior city courts. 
 
 The opinion that the adoption of the elective system had 
 proved a mistake, and that judges should be nominated by the 
 governor and confirmed by the senate, was powerfully voiced by 
 many prominent lawyers. Matthew Hale asked whether the 
 decisions since the radical and sweeping change made by the con- 
 vention of 1846 had commanded greater respect than the decisions 
 of James Kent, Ambrose Spencer, Savage, Sutherland, Cowen, 
 and Bronson. He pronounced the experiment of the previous 
 twenty years to have been a failure in every respect. The judges 
 were the equal in learning and in natural ability of their distin- 
 guished predecessors, but the fault was with the system. His 
 opinion might be unpopular in the convention, but he affirmed 
 that the great error committed in 1846 was in making judges elec- 
 tive; he believed there was no democracy in it. If it were not 
 possible to substitute the appointive method, he favored either a 
 life tenure or a term of fourteen years. Joshua M. Van Cott de- 
 
 181 
 
LEGAL AND JUDICIAL 
 
 Glared his preference for the system of appointment. The vice of 
 the elective system was that it destroyed the independence of the 
 judge after his election. "If there ever was a system devised by 
 human wit to get a political man on the bench, the least man, the 
 least revered in his character, the least impartial, the most under 
 influences which ought never to affect the mind of a judge, that 
 system is devised and is to be found embodied in the system of 
 1846." 
 
 According to Charles P. Daly, while the convention of 1821 
 unanimously resolved to detach the judges from necessary con- 
 nection with party politics, the convention of 1846 revived the 
 evil, and in a worse form. This last convention had, he said, been 
 summoned into being to remedy the defects of the judicial sys- 
 tem. There was at that time "a restless desire for change in 
 everything." It was a period of political theories not drawn from 
 the experience and the teachings of the past, but having their 
 origin in the fertile region of political speculation, and attractive 
 from their novelty and plausibility. Among these was the theory 
 that public officers of every class should be elected by the people 
 and for very short terms, that they might always be kept under a 
 constant sense of their responsibility to the power which created 
 them, a theory which had its foundation in an honest desire to 
 secure faithful and efficient officers, but which in its practical 
 operation had been attended with consequences which if imagined 
 or suggested would have been treated as absurdly improbable. In 
 this unsettled, confused and undirected state of political thought 
 and action, the convention of 1846 was called. Daly in 1867 
 forcibly urged the adoption of tenure during good behavior, as a 
 return to the system that had prevailed until 1847. He had, he 
 said, carefully re-read the debates in the convention of 1846, 
 and had discovered that the elective system had been approved 
 
 182 
 
HISTORY OF NEfF YORK 
 
 by the convention almost without discussion,^ only two or three 
 pages of the debates having been devoted to this subject. 
 
 This view the debates in 1846 do not fully confirm. The 
 prevalent sentiment was reflected in the speeches of prominent 
 members of the convention of that year. Jordan, although not 
 conscious, he said, of any general popular desire for the elec- 
 tion of judges by the people, was willing to have the principle 
 tested to a limited extent, but admonished the convention that 
 in no State in the Union, with the exception of Mississippi, 
 whose example he would not emulate, were judges of the higher 
 courts elected. Swackhamer favored the elective plan; Perkins 
 seems also to have approved of it; Ira Harris believed it an ex- 
 periment that might safely be tried ; Morris took similar ground ; 
 Hoffman asserted his belief that all the judges should be elected, 
 and his certain conviction that fully one-half should be. Mur- 
 phy and even O'Conor lavored election ; O'Conor, with his usual 
 acumen, pointing out that the existing Court of Errors was 
 composed largely of elected members (the senators) ; that the 
 election of the entire Court of Appeals was but a moderate step 
 in advance, and that since the lower judges were elective and 
 the higher judges so in large measure, the intermediate judges, 
 i. e., the judges of the Supreme Court, also might be elected 
 by popular vote. The subject of the judiciary was, according to 
 Cambreleng, debated for twelve weeks in committee and in con- 
 vention. But the question of election or appointment was never 
 brought to a test vote. 
 
 Nevertheless the elective system of 1846 had been in a sense 
 but a natural evolution. The Court of Errors under the first 
 two constitutions had consisted partly of appointive and partly 
 
 5. See also Article on Judiciary, by Dorman B. Eaton, 2 Lalor's 
 Cyclopaedia, 644. 
 
 183 
 
LEGAL AND JUDICIAL 
 
 of elective judges, the chancellor and the justices of the Su- 
 preme Court having been appointed under the first constitu- 
 tion by the council of appointment, and under the second by 
 the governor, with the advice and consent of the senate, the lieu- 
 tenant-governor and the members of the senate having been 
 elected by popular vote. Justices of the peace had also been 
 made elective in 1826. Thus, when the convention of 1846 sat, 
 the elected judges in the highest appellate tribunal greatly out- 
 numbered the members who owed their place to appointment. 
 It seemed a comparatively simple step to make all the judges of 
 that court elective. The real innovation lay in the extension of the 
 elective principle to justices of the Supreme Court and of the 
 superior city courts. The change, whether wise or unwise, was 
 an evolution, not a revolution. When the convention of 1867 
 sat, a revulsion of feeling had arisen; sentiment had reacted in 
 favor of the appointive method — at least of a longer tenure in 
 the higher courts. Hamilton, in the Federalist, in eulogizing the 
 system of appointing Federal judges during good behavior, had 
 declared that nothing could "contribute so much to the firmness 
 and independence of the judiciary as permanency in office". 
 Evarts expanded the argument and developed the philosophical 
 principles upon which it rests. Evarts, while a friend to the 
 appointive system, put the stress of his argument in brilliant and 
 conclusive fashion upon the proposition that a judge once seated 
 in office should be absolutely independent of the appointing 
 power whatever that power might be. By fixing the age limit 
 at seventy years, the term of office would not extend beyond the 
 continuance of the powers of mind and body requisite for the 
 performance of judicial duty. Establishing that as the term, 
 "we then give to the incumbent the security, and to the public 
 the advantage, of the continuance in office of a judge during 
 
 184 
 
HISTORY OF NEW YORK 
 
 that period." The debate, he said, had shown a remarkable 
 unanimity of opinion as to what the public interests require, in 
 the establishment and constitution of the courts. "The judiciary 
 is the representative of the justice of the State, and not of its 
 power. * * * The judge is not to declare the will of the 
 sovereignty, whether that sovereignty reside in a crowned king, 
 in an aristocracy, or in the unnumbered and unnamed mass of 
 the people. * * * Justice is of universal import, of uni- 
 versal necessity under whatever form of society." This being 
 the main policy of human society, as Burke had declared, every 
 society that fails to do justice stands self-condemned. "The 
 judges declare the law, they do not impose it. It is the law of 
 the land they are to declare, not the will of any power in the 
 land." The proper discharge of this high duty necessarily falls 
 upon men like ourselves, but to insure the choice of men who 
 will independently declare the law, it is essential that the judge 
 should be exempt from accountability for his judicial action. No 
 action lies against him for anything that he does in the judicial 
 office. The procedure of impeachment is the only means of cor- 
 recting judicial mal-conduct. But to perform his duty with ab- 
 solute independence, it is necessary that the judge shall hold his 
 office during the pleasure of no representative of power. Al- 
 though these truths were unquestionable, they had almost en- 
 tirely been ignored in the plan adopted by the convention of 
 1846 of electing judges for short terms of office. "In the prin- 
 ciple of short terms and recurring elections is included both the 
 element of accountability for judicial action to all persons whose 
 displeasure it has provoked, and of holding during pleasure." 
 This was no mere dogma, for experience had shown that in 
 short terms and recurring elections there was this pernicious 
 vice of holding during pleasure. "When Chief. Justice Bosworth 
 
 185 
 
LEGAL AND JUDICIAL 
 
 made certain decisions against a great political character, that 
 great political character's memory lasted till the recurring elec- 
 tion brought around the nomination in his own party. Chief 
 Justice Bosworth was succeeded by Judge McCunn, because such 
 was the royal pleasure of that political character". Recent events 
 have matched this case with another, for a few years ago in 
 New York City, a judge who had refused to appoint referees 
 dictated by a political boss, was denied renomination because of 
 his recusancy. 
 
 "Public office", continued Evarts, "is for the public service, 
 and not for the private advantage of the incumbent", although 
 "no people had departed more widely from this fundamental 
 theory in the practice of politics than we". He had, he said, "a 
 very clear, a very thorough, and very earnest conviction that the 
 experience both of England and of this country in the past, and 
 of this State in the past, showed that courts built upon the plan 
 of a judicial tenure during good behavior, up to a period of age 
 designated, give the best judges." The judge was, of course, 
 to be taken from the bar, and (how refreshing and stimulating 
 the doctrine!) "he is to have learning, integrity, industry 
 * * * every quality of mind and heart, and every ad- 
 vantage of health and strength". Forty or forty-five years was 
 the age at which the State might wisely ask the man to enter its 
 service as judge. But he may expect at the bar an honorable 
 and useful career for life. "You offer him half a life of judicial 
 service in exchange for a whole life of professional service and 
 duty to the community." Or, "will you postpone your proposi- 
 tion until he reaches the age of fifty-six, when he can take your 
 fourteen years tenure and expect to serve out his career?" It 
 was Evarts's belief that the people of the State expected the 
 convention to revise the judiciary article completely. Answering 
 
 i86 
 
HISTORY OF NEW YORK 
 
 the fallacy that in proposing a judicial tenure during good be- 
 havior, the convention might be making a constitution better 
 than the people desired, he said, and his words should indelibly 
 be inscribed in the mind of every one who may be called upon 
 to act in a similar capacity : "What is the trust reposed in us ? 
 It is the trust of framing a constitution such as we, upon our 
 oaths, think best for the people. * * * jf ^j,is convention 
 does not frame these clauses according to its conscience and its 
 wisdom, it frames them according to an unrepresented conscience 
 and wisdom that is not here. * * * No man has the right 
 to say what sort of constitution the people want, except this 
 convention, made up of delegates chosen for the purpose." 
 
 The convention voted three times on a motion to recommend 
 judicial tenure to continue during good behavior, or until seventy. 
 On the first vote, the motion was rejected by 43 to 48; on the 
 second, by 56 to 58 ; and on the third, which took place in the clos- 
 ing days of the convention, by 45 to 51. The convention seems 
 to have been almost evenly decided on each vote, with only a 
 slight majority against the committee's proposition. It modified 
 the proposal of the judiciary committee to submit the question of 
 appointment or election of judges in 1870, and proposed instead, 
 that at the general election in the year 1873, a date sufficiently 
 removed to allow arguments for and against the proposed changes 
 to be presented to voters, these questions should be submitted 
 upon separate ballots: "(i) Shall the offices of chief judge and 
 associate judge of the Court of Appeals and of justices of the 
 Supreme Court be hereafter filled by appointment, and (2) shall 
 the offices of the judges mentioned in sections 12 and 13 of Arti- 
 cle VI of the constitution (judges of the superior courts and of 
 the county courts) be hereafter filled by appointment?" The 
 resolution for submission of these questions was not however 
 
 187 
 
LEQAL AND JUDICIAL 
 
 carried without considerable dissent, for to many delegates it 
 seemed inconsistent that the convention, after framing a ju- 
 diciary article with an elective system which the people were 
 asked to ratify, should also ask the people to vote three years 
 later upon the question whether they would return to the ap- 
 pointive method, and to that extent reject the plan of their new 
 constitution. At the election of 1873, the vote in favor of con- 
 tinuing to elect judges of the Court of Appeals and of the Su- 
 preme Court was 319,979 for appointment to 115,337 against, and 
 for the election of county judges and judges of the superior 
 courts was 319,660 to 110,725 for their appointment. The satis- 
 faction which the newly reconstituted tribunals had given in the 
 interval of three years undoubtedly contributed to this decisive 
 approval of the elective system. 
 
 The convention provided for a commission to dispose of the 
 unfinished causes on the calendar of the retiring Court of Appeals. 
 The commission consisted of the four judges of the old court, 
 and a fifth commissioner appointed by the governor and con- 
 firmed by the senate. The judiciary article continued the existing 
 county courts and provided that the judges thereof in office at the 
 time of its adoption should hold their offices until the expiration 
 of their respective terms. It further provided that their succes- 
 sors should be chosen by the electors of the counties for the term 
 of six years, and that the county courts should have the powers 
 and jurisdiction they had theretofore possessed, until altered by 
 the legislature. The constitution of 1847 had made the surro- 
 gates' courts constitutional tribunals. The judiciary article of 
 1869 continued them as such. It authorized the legislature for 
 the relief of surrogates' courts to confer upon courts of record 
 in any county having a population exceeding 400,000, the powers 
 
 188 
 
Rufus W. Peckham 
 
RUFUS W. PECKHAM. 
 
 (1809-1873). 
 
 Eminent Lawyer and Jurist; District Attorney of Albany 
 County, 1838-41; Member of Congress, 1853-55; Justice Su- 
 preme Court, 1859-70; Judge of Court of Appeals, 1870-73. 
 
HISTORY OF NEW YORK 
 
 and jurisdictioti of surrogates, witTi authority to tty issues of fafit 
 by jury in probate cases. 
 
 The juditiary article was submitted se^iarately from the 
 other w6rk of llie convention, kild was fatifiied at the general 
 election in November, 1869, the vote being 247,240 in its favor, 
 to 240,442 against it, — a vote corresponding fairly with the dif- 
 ferences throughout the State upon polifittil quiestiOfts. But the 
 ratification of the article at an election at which the remainder of 
 the work of the convention was disapproved by a vote of 290,456 
 to 223,935, and in which the Democratic party won every depart- 
 ment of the State government, is gratifying evidence how ad- 
 mirably the convention in its recohstitution of the judicial system 
 had succeeded in meeting public expectation. In the following 
 winter the l^slatuf 6 ertacted that the new judges of the Court of 
 Appeals should be elected on May 17, 1870. It was on the 
 basis of minority representation, an express requirement of 
 the judiciary article being that at the first election of 
 judges under it, every elector might vote for the chief and only 
 four of the associate judges. The members of the tribunal chosen 
 ait this election were Sanford E. Church, chief judge ; William F. 
 Allen, Rufus W. Peckham, Martin Grover, Charles J. Folger, 
 Charles A. Rapallo and Charles Andrews, associate judges. The 
 chief judge and two of the associate judges (Folger and An- 
 drews) had been among the most influential members of the con- 
 vention. The judges assumed their office on the first Monday of 
 July, 1870. 
 
 The new Court of Appeals was formally organized in the 
 Senate Chamber, July 4, 1870, exactly twenty-three years after 
 the old court began its labors. In an address to the court on 
 behalf of the bar, it was fitly said that from the commencement 
 of the State government the courts of final resort had been filled 
 
 189 
 
LEGAL AND JUDICIAL 
 
 by men of unquestioned integrity whose opinions had commanded 
 the respect of the world, and were cited at Westminster Hall and 
 in all the States of the Union. Church, the new chief judge, was 
 one of the minority who had never had previous judicial experi- 
 ence. He had been prominent in the politics of the State for 
 many years, having entered the assembly in 1841, and was one 
 of the original "Barnburners." As was said by his associate, Fol- 
 ger, upon his death, "he went through many stirring canvasses 
 and many times of strong temptation ; but when party strife was 
 hottest, and aspersions were the usual utterances of partisans, 
 not a breath that he was not upright ever settled on the mirror of 
 his fame".^ Allen had been a member of the assembly from 
 Oswego county in 1843-4, then attorney for the United States 
 for the Northern District of New York, and subsequently was 
 elected justice of the Supreme Court for the Fifth District. 
 From the position of state comptroller he was called to the place 
 of associate judge of the highest tribunal. Rufus W. Peckham 
 had for many years been identified with the judiciary of the 
 State, having begun his judicial life as a judge of the Supreme 
 Court. He was a member of Congress when the Missouri Com- 
 promise was abrogated, and was one of the Democrats who voted 
 against its repeal. His death was the first breach in the member- 
 ship of the original court. This tragic event occurred on Novem- 
 ber 22, 1873, when the Ville du Havre sank in mid-ocean. Martin 
 /. Grover had been upon the bench from November, 1857, when 
 he was first elected to the Supreme Court in the Eighth Judicial 
 District. In powers of observation, faculty of description, and 
 quaintness of expressions and quickness of humor, he reminds 
 one of Abraham Lincoln. Folger had never had earlier judicial 
 experience. In 1880 he was promoted to the chief judgeship of 
 
 6. 77 N. Y., 63s. 
 
 190 
 
Sanford E. Church 
 
SANFORD E. CHURCH. 
 
 (1815-1880). 
 
 Jurist and Statesman ; Member of Assembly from Orleans 
 County, 1842; District Attorney, Orleans County, 1846-47; 
 Lieutenant Governor, 1851^55; Comptroller, .1^58-59 ; Delegate 
 to Constitutional Convention of 1867 ; First Chief Judge of New 
 Court of Appeals, 1870-80. 
 
HISTORY OF NEW YORK 
 
 the court, upon Church's death, defeating Rapallo for the office, 
 and was himself to suffer humiliating defeat in his aspirations for 
 the governorship in 1882. Rapallo, perhaps the greatest jurist in 
 a company of remarkable men, will long be remembered because 
 of splendid opinions with which he has illustrated the law. 
 Charles Andrews, who with Church and Folger had been a mem- 
 ber of the convention of 1867, is the sole survivor of the famous 
 tribunal. For a short time Judge Andrews held the place of chief 
 judge by appointment after Church's decease. 
 
 191 
 
CHAPTER X 
 
 FAILURE OF THE CONVENTION''S WORK OTHER THAN ITS JtFDICIARY 
 ARTICLE — CAUSES OF FAILURE, POLITICAL PASSIONS OF THE 
 TIME — GOVERNOR FENTON's MESSAGE URGES THE NECESSITY 
 OF REFORMS IN CONSTITUTION, ESPECIALLY IN JUDICIARY 
 ARTICLE — REPORTS OF COMMITTEE ON SUFFRAGE NEGRO SUF- 
 FRAGE SEPARATE SUBMISSION OF QUESTION WHETHER 
 
 PROPERTY QUALIFICATIONS FOR COLORED VOTERS SHOULD BE 
 RETAINED OR ABANDONED — ^VOTE UPON THE SUBJECT — WO- 
 MAN'S SUFFRAGE AND SPEECH OF GEORGE WILLIAM CURTIS — 
 MINORITY REPRESENTATION REACTION FROM DECENTRALIZ- 
 ING SPIRIT OF 1846— CONVENTION FAVORS LARGER SENA- 
 TORIAL DISTRICTS COUNTY REPRESENTATION IN THE ASSEM- 
 BLY — ^DEBATE UPON THE REPORT OF THE COMMITTEE ON STATE 
 
 AFFAIRS ARGUMENTS FOR ESTABLISHMENT OF CABINET OF 
 
 STATE OFFICERS AND THE NOMINATION OF SUCH OFFICERS 
 
 BY THE GOVERNOR GOVERNOR'S POWERS OVER BILLS AFTER 
 
 CLOSE OF SESSION EXTENSION OF VETO POWER — MUNICIPAL 
 
 GOVERNMENT — CONVENTION'S REPORT DRAFTED BY JUDGE 
 FOLGER ADJOURNMENT OF THE SESSIONS OF THE CONVEN- 
 TION, AND EFFECT — ^VOTE UPON CONVENTION'S WORK. 
 
 The convention of 1867 suffered the singular fate of hav- 
 ing all of its work except its judiciary article rejected by the 
 people. All the propositions of the conventions of 1821, 1846 and, 
 as we shall see hereafter, 1894, were ratified at the polls. Inas- 
 much as the personnel of the convention of 1867 was of a very 
 high order, explanation must be found to account for this 
 defeat. Some of its suggestions were favorably reported by the 
 
 192 
 
HISTORY OF NEW YORK 
 
 constitutional commission which sat in 1872, and accepted by 
 the people in the fall of 1874. The true explanation of the re- 
 jection of most of the work of the convention of 1867 lies in the 
 fact that it sat, and its results were submitted, at an inoppor- 
 tune time. The convention was called in the midst of an excited 
 political era. President Lincoln's assassination, the unexpected 
 policy of his successor, the unwise reactionary legislation adopted 
 in some southern States in the winter of 1865-66, the recon- 
 struction measures of Congress, President Johnson's opposition, 
 and wide differences of opinion as to negro suffrage, all roused 
 great intensity of party feeling, and the convention, which was 
 preponderatingly Republican, became the subject of much hostile 
 criticism. The passions of the time were reflected in a degree even 
 in the debates in this body. Its refusal to depart from the con- 
 servative policy regarding negro suffrage adopted in 182 1 and 
 followed in 1846, led political opponents to taunt the Republi- 
 cans with inconsistency and cowardice. It was charged that 
 for partisan advantage they were giving a free ballot to the 
 poor and uneducated negro of the south, while not daring to 
 suggest a like poHcy for the colored voter in New York. Re- 
 action from the extreme decentralization of 1846, and compara- 
 tive distrust of popular elections as the antidote for political 
 evils, had become manifest. In England, government was on 
 the point of widening the circle of parHamentary voters, and 
 the wisdom of limiting the suffrage by educational or property 
 tests was critically discussed. Educational or economic tests 
 had in this interval been adopted in several States of the Union. 
 On the other hand, John Stuart Mill, in his "Representative 
 Government" and his "Subjection of Women," had cogently 
 presented the claims of women to vote. The first women's rights 
 convention in this State was held at Seneca Falls, July 19, 1848, 
 
 193 
 
LEGAL AND JUDICIAL 
 
 and the first national convention to urge the claims of that sex to 
 the suffrage assembled at Worcester, Massachusetts, October 
 23, 1850. Concurrently the subject had been treated with abil- 
 ity in the Westminster Review, and agitation in its favor was 
 earnestly maintained down to 1870. Minority or proportional 
 representation, one of whose first and most forcible exponents 
 was Thomas Hare, was quite naturally brought into the crucible 
 of debate. Problems of city government that had been kept in 
 the background by the grave issues of Civil War and recon- 
 struction were looming into prominence. Governor Fenton, in 
 his message to the legislature in 1867, declared that the large 
 vote in favor of a convention was an emphatic expression that 
 some modification of the organic law was in the public judgment 
 essential to the general welfare. Reform was indeed needed, 
 as the governor said, in the judicial system, especially in the 
 structure of the Court of Appeals ; but the old constitution, not- 
 withstanding its defects, was an admirable instrument, and the 
 people in 1858 had refused to call a convention, believing at the 
 time that it needed no remodelling. 
 
 The judiciary article has heretofore been discussed. It is the 
 unaccepted work of the convention which is here treated. De- 
 bate took a wide range, but the chief topics of discussion were the 
 right of colored citizens to vote on equal terms with white men, 
 woman's suffrage, minority representation, the appointment in- 
 stead of the election of judges, district attorneys and State of- 
 ficers, special legislation, the governor's veto power, bribery, edu- 
 cation, intemperance, canals, State police, official corruption, 
 emancipation of cities. 
 
 Two reports came from the committee on suffrage, of which 
 Horace Greeley was chairman, the majority report proposing an 
 article in which the qualifications of a legal voter should be adult, 
 
 194 
 
HISTORY OF NEW YORK 
 
 rational manhood; citizenship of the United States of not less 
 than thirty days' standing, and residence in the State for the year 
 preceding, and in the election district for thirty days; freedom 
 from crime, and exemption from dependence upon others through 
 pauperism or guardianship. All discriminations based upon color 
 were eliminated, for, said the report, men should be dealt with 
 according to their conduct, without regard to color. The commit- 
 tee refused to recommend extension of the elective franchise to 
 women. "Public sentiment," it said, did "not demand and would 
 not sustain an innovation so revolutionary and sweeping, so 
 openly at war with the distribution of duties and -functions be- 
 tween the sexes, as venerable and pervading as government itself, 
 and involving transformation so radical in social and domestic 
 life". It refused to impose a property qualification or to extend 
 the franchise to lads of eighteen years. Manhood suffrage for 
 white voters had, it asserted, been adopted by the legislature of 
 1825 and ratified by an overwhelmingly popular vote in 1826, 
 yeas 127,077, nays 3,215; and "we", said the report, "do not feel 
 called upon to appeal from their judgment." Two of the com- 
 mittee dissented from the majority, mainly because they desired 
 the separate submission to the people of the question whether the 
 elective franchise should be extended to colored men. Discussion 
 upon this topic could not easily be limited, and before it was ter- 
 minated it involved the whole subject of racial differences and 
 the fitness of the African for the ballot. Just as the fact that tbt 
 white yeomanry of the State had been called to tht defence of the 
 Union in 1812 was urged as a reason for extension of the suffrage 
 to them in 1821, so, in 1867, the fact that colored citizens had, like 
 their white brethren, taken up arms in the nation's cause and shed 
 their blood in its service, was eloquently advanced as ground for 
 
 195 
 
LEGAL AND JUDICIAL 
 
 the removal of all differences respecting white and negro suffrage 
 in the State. 
 
 The convention decided to submit this question sepafately to 
 the peopile at the fall election of 1869, when a nlajority of those 
 voting upon the amendment were found to favor the retention of 
 the existing property qualifications for colored voters. 249,802 
 persons voted in favor of the ahrogatibn of these qualifications, 
 282,403 for their preservation. The figures show an advance iii 
 public sentiment in the course of two decades ; the vote in 1826 to 
 remove the property test for negroes was 85,306 in its favor to 
 223,834 against it. The vote in i860 in favor was 197,503, to 337,- 
 984 against; whereas, in 1869, sentiment was almost evenly di- 
 vided upon this subject. The old restrictions on colored voters 
 therefore continued in force until they were overriden by the 
 adoption of the Fifteenth Amendment to the National Constitu- 
 tion. Had it been left with the convehtion to decide whether the 
 color line should be erased and manhood suffrage established, its 
 vote would have determined the matter favorably. The vote in 
 the convention against Murphy's amendment to continue the old 
 restrictions upon colored suffrage was 78 to 29. 
 
 The committee on suffrage declined to recommend an edu- 
 cational qualification, and declined also to recommend women's 
 suffrage or to permit the separate submission to the people of the 
 question whether women should be allowed to vote. Although 
 opinion was markedly adverse to the movement to give women 
 the ballot, their claims could not have had a more able or brilliant 
 protagonist than George William Curtis. Curtis never spoke 
 more eloquently or forcibly, and if oratory could have assured the 
 success of this cause, the vote would have been overwhelming ill 
 its favor. His speech deserves to be rescued from the oblivion 
 in which it is buried in the convention debates. The measure 
 
 196 
 
HISTORY OF NEW YORK 
 
 which, said Curtis, the report of the committee on suffrage had 
 declared to be radically revolutionary and perilous to the very 
 functions of sex was, according to the most sagacious of 
 political philosophers, John Stuart Mill, "reasonable, conserva- 
 tive, necessary and inevitable." Mill had obtained for it seventy- 
 three votes "in the same House in which out of about the same 
 whole number of voters Charles. James Fox, the idol of the Brit- 
 ish Whigs, used to be able to rally only forty votes against the 
 policy of Pitt. The dawn in England will soon be day here. 
 Before the American principle of equal rights, barrier after bar- 
 rier in the path of human progress falls. If we are still far from 
 its full comprehension and further from perfect conformity to 
 its law, it is in that only like the spirit of Christianity to whose 
 full glory even Christendom but slowly approaches. From the 
 heat and tumult of our politics we can still lift our eyes to the 
 eternal light of that principle ; can see that the usurpation of sex 
 is the last form ofcaste that lingers in our society ; that in Amer- 
 ica the most humane thinker is the most sagacious statesman." 
 The Curtis amendment was supported by a few conspicuous 
 leaders in the convention, but there was an overwhehning senti- 
 ment in opposition. It secured 19 votes, but 125 were cast against 
 it. The proposition advanced by Graves that the matter of wom- 
 an suifrage should be determined by a vote of women only at a 
 special election, had even less support, for it was negatived, 133 
 to 9. The movement in England to enfranchise women has not 
 advanced much further than in this country. England has done 
 no more than to concede to women rate payers votes for members 
 of school boards and other local officers.^ 
 
 extfnH thl P^^ of this year (1910) the so-called Conciliation Bill "to 
 "cond r^lZj W^"*^''^-^'^"''''f *° ^""'^^ occupiers" was carried to a 
 house" wwS, "* ^ "°*'°" *° ''^" ^^^ ^"' t° "a committee of the whole 
 nouse — which in a sense was a tabling of the measur^was carried by 
 
LEGAL AND JUDICIAL 
 
 With the refusal of the committee on suffrage to recommend 
 an educational qualification, the convention evidently concurred. 
 Hale, one of the strongest advocates of minority representation, 
 called attention to the fact that to the legislation under which 
 they vi^ere assembled, which had permitted the election of 32 dele- 
 gates at large, each voter to vote for only 16, was to be attributed 
 the presence of some of the master spirits in the convention,— 
 Evarts, chairman of the committee on preamble and bill of 
 rights; Greeley, chairman of the committee on the right of 
 suffrage; Church, chairman of the finance committee; Harris, 
 chairman of the committee on cities ; and Curtis, the eloquent 
 and accomplished chairman of the committee on education. But 
 minority representation was not popular, and the convention 
 adopted it only in the judiciary article, and there only to the 
 extent of requiring the associate judges of the new Court of Ap- 
 peals to be chosen at the first election, equally from the two great 
 political parties. 
 
 Although in 1820 freeholders alone voted for senators and 
 governor, and a property qualification restricted the vote for as- 
 semblymen, the legislature, in submitting to the people the ques- 
 tion whether a convention should be called in 1821, had, as we 
 have seen, opened the gates wide and permitted to be delegates 
 all persons who paid taxes or worked upon the highways. The 
 convention adopted precisely the test for electors that the legis- 
 lature had enacted for delegates and the constitution was sub- 
 mitted to this larger electorate, — a circumstance essential to its 
 ratification. The legislature in 1846 prescribed that persons 
 
 decisive vote. The subject of woman's suffrage was thoroughly debated 
 and many leading members of the house were heard in its support or 
 against it, speeches in its favor having been made, among others, by Mr. 
 Balfour, Lord Hugh Cecil, Mr. Haldane, and Mr. Keir Hardie; and 
 against it by Mr. Lloyd George, chancellor of the exchequer, Mr. Austen 
 Chamberlain, Mr. F. E. Smith, and others. 
 
 198 
 
HISTORY OF NEW YORK 
 
 qualified to vote for assemblymen should be qualified to vote 
 for delegates to the convention held in that year, and in 1867 
 and again in 1894 similar qualifications were adopted for electors 
 for delegates, viz., that they should be the persons entitled to 
 vote for assembymen. In the discussion of this subject the 
 convention of 1867 decided that the qualifications of electors of 
 constitutional delegates should be settled in the constitution 
 itself, and it therefore, in its draft of the clause fixing the quali- 
 fications of voters, provided that every elector might vote not 
 only for all officers chosen by the people, but upon all questions 
 that might be submitted to the vote of the people of the State. 
 This provision was ultimately incorporated in the constitution 
 in 1894. 
 
 In some respects the convention of 1867 exhibited a marked 
 reaction from the decentralizing spirit which animated the con- 
 vention of 1846. This is chiefly observable in its treatment of 
 the mode of selection and the term of senators ; in its return to 
 county representation in the assembly, partly abandoned in 1846; 
 in its lengthening of the judicial term, and providing for the elec- 
 tion of the entire Court of Appeals upon a general ticket, and in 
 its debates upon the proposition to appoint State officers and dis- 
 strict attorneys. Upon the other hand, the proposed amendment 
 which it reported, conferring increased legislative functions upon 
 county boards of supervisors, was a further advance in the line 
 of decentralization. 
 
 When the convention of 1846 determined to break the 
 State up into thirty-two senate districts, it did so in obedience to 
 the demand of localities for separate representation in each 
 house. It was then seriously argued that under the constitution 
 of 1822 candidates had been chosen to the senate for whom 
 voters never intended to cast their ballots. One illustration fre- 
 
 199 
 
LEGAL AND JUDICIAL 
 
 quently pressed into service related to a youthful candidate for 
 senatorial honor, who was elected because many of his constitu- 
 ents in a distant part of his district had cast their suffrages for 
 him in the belief that he was another and maturer person of the 
 same name. Since the development of increased facilities for 
 the dissemination of news which later generations have wit- 
 nessed, such mistakes (if they ever occurred) are rendered well- 
 nigh impossible. As a rule, under the system prevailing between 
 1822 and 1847, with the State subdivided into a small number of 
 districts, men of great promise, if not of actual prominence, 
 were chosen to the senate. Comparison of the lists of two gen- 
 erations ago with those of recent times shows a marked decline 
 in the intellectual character of the upper house. Formerly men 
 of the stamp of DeWitt Clinton, Ambrose Spencer, Martin Van 
 Buren, William H. Seward, Silas Wright, Samuel Young, Sam- 
 uel Beardsley, Alonzo C. Paige sat in the senate, but their peers 
 are rarely chosen to-day to the same office. So pronounced had 
 the difference become even in 1867, that many of the delegates 
 to the convention of that year urged return to the small number 
 of districts established in 1822. Among the leaders in this ef- 
 fort were Evarts, Andrews, Harris, Folger, Van Cott and Pro- 
 fessor Dwight. Small districts, they contended, were no more 
 entitled to separate representation in the upper house than were 
 counties. Large districts would invite men worthy of representing 
 the entire State, and banish, at least from the upper chamber, 
 the spirit of local jealousies and of log-rolling so potent in se- 
 curing local legislation. 
 
 Professor Dwight, in a philosophical argument, showed 
 that the only reason for a bicameral legislature was that 
 the two houses should represent entirely different constituen- 
 cies and not reflect alike the passions of the people. Gen- 
 
 200 
 
HISTORY OF NEW YORK 
 
 eral laws, he said, were comparatively few in number, and 
 since a senate elected from large districts would be more occupied 
 with matters of great import than a senate representing smaller 
 districts with their local requirements, the volume of legisla- 
 tion should be correspondingly less. He did not believe that it 
 would be possible to prevent special legislation, but if it could 
 be done, "what would be the next step ? Suppose we had only 
 general laws, then the effort of an unscrupulous lobby would be 
 to obtain special legislation under the guise of general laws.^ If 
 a man has a special provision which he wishes to have applied to 
 a corporation in which he is interested, he will seek to alter the 
 general law of corporations ; if he wishes to release himself from 
 a hated marriage tie, he will seek to alter the general law of di- 
 vorce". Corruption could not be stopped by piety or philosophy. 
 There should be men of the right character in the legislature, 
 and the election of such would be best assured with large dis- 
 tricts. To exalt the dignity of the senatorial office, it was pro- 
 posed also to make the term four instead of two years, vacating 
 one seat in each district every year, thus ensuring the choice of 
 one-fourth of the senate at each annual election. This plan was 
 only partially adopted. The constitution reported by the con- 
 vention retained the tliirty-two senate districts, while it length- 
 ened the senatorial term to four years. It provided that the first 
 senators elected under the new constitution in the districts bear- 
 ing odd numbers were to vacate their offices at the end of two 
 years, those in the districts bearing even numbers at the end 
 
 ., .^■., The Convention so fully appreciated the evils of special legislation 
 tftat It proposed to forbid the legislature from chartering any kind of 
 stock corporation under special laws, and it proposed also to prevent the 
 consolidation of railroad corporations owning parallel or competing lines 
 
 U ^' 
 
LEGAL AND JUDICIAL 
 
 of four years, thereby securing the election of one-half of the 
 senate every second year. 
 
 When the subject of assembly representation came up for 
 debate, a majority of the delegates voted to return to county rep- 
 resentation as fixed by the constitution of 1821. The constitu- 
 tion of 1777 had provided for the election of assemblymen by 
 counties, but it made the size of the assembly dependent upon the 
 growth of population, fixing the minimum membership at seventy 
 and the maximum at three hundred. In 1801 the assembly was 
 limited to one hundred members. In 1821 the unit of assembly 
 representation was ordained to be the county, but the membership 
 was fixed at 128. A new unit of representation was introduced 
 in 1846 : the assembly district. The constitution of 1846 required 
 that members of assembly should be apportioned among the sev- 
 eral counties by the legislature, as nearly as might be according to 
 the number of their respective inhabitants, excluding aliens, and 
 that they should be chosen by single districts. It then provided 
 that every county theretofore established and separately organ- 
 ized (except the county of Hamilton) should always be entitled 
 to one member of the assembly, and that no new county should 
 be erected unless its population should entitle it to a member. 
 This complicated system was adopted probably because of the 
 clamor of small districts for separate representation, and of the 
 reluctance of the least populous counties to risk loss of separate 
 representation with the growth of other parts of the State in 
 population. But one great defect in this plan was the impossibil- 
 ity of giving all districts equitable representation, so long as 
 county representation was adhered to and the assembly remained 
 a fixed quantity. Either the membership of the assembly should 
 vary with the population, or small counties should be merged 
 together for purposes of assembly representation. County rep- 
 
 202 
 
HISTORY OF NEfF YORK 
 
 resentation, it was cogently argued, would bring into the lower 
 house a superior class of representatives corresponding to the 
 better class to be obtained in the senate from large districts. The 
 substitution of the county for the assembly district as the unit of 
 assembly representation was carried by the strong vote of 64 
 to 43. An earnest attempt was made to increase the number of 
 members of the assembly, but the convention finally decided upon 
 retaining the number fixed in 1846. Biennial sessions were fa- 
 vored by the committee on legislation, but the convention nega- 
 tived their attempt by a vote of 62 to 38. 
 
 Separate assembly districts might perhaps better be abol- 
 ished. They have not elevated the character of assemblymen. 
 But even if separate districts should be retained in the rural 
 counties, cities of more than a fixed population might well elect 
 their assemblymen at large, and provision could easily be made 
 enabling minorities to obtain adequate representation. It would 
 be a great boon to the city of New York if all its assemblymen 
 were chosen by all the voters of each county included within it, 
 instead of in districts controlled by district leaders. A ticket ad- 
 dressed to all the electors of the city would be more certain to 
 contain good names, and far less likely to contain bad or doubtful 
 ones. Whatever objection may be urged to county representation 
 in other parts of the State, there is no reason for electing assem- 
 blymen by districts in the city of New York. The interests of 
 separate municipal districts do not differ at Albany. They might 
 clash in a municipal board, but not in the state legislature. 
 
 The extent to which the feeling pervaded the convention of 
 1867 that the convention of 1846 had gone too far in making offi- 
 cers elective is well shown in the exhaustive and highly informing 
 debate upon the report of the committee on State officers, pro- 
 posing that State officers be elected at the same time and for the 
 
 203 
 
LEGAL AND JUDICIAL 
 
 same term as the governor. Duganne wished to amend by pro- 
 viding for the appointment of the attorney general by the gov- 
 ernor, subject to senatorial confirmation, and many Democrats 
 came to his support. Francis Kernan hoped the amendment 
 would prevail ; not because of his distrust of the people, but be- 
 cause of his belief that an efficient state government required the 
 appointment of this officer by the governor and senate. In all 
 governments, said Judge Daly, the executive head should have a 
 cabinet in accord with him upon all public measures to be carried 
 into effect by executive authority. The constitution of 1846 had 
 altered the former system, but in his judgment the alteration was 
 not for the better. He would appoint all State officers with the 
 exception of the comptroller.* Fuller, chairman of the committee 
 on State officers, declared that in the deliberations of the commit- 
 tee he was in favor of having all State officers appointed. Cas- 
 sidy, in supporting the amendment, said that the constitution of 
 1846 contained great errors, and that Mr. Calhoun was reported to 
 have declared, when it was adopted, that the people of New 
 York would thereafter be governed at Washington. Cassidy 
 would elect the comptroller, as the head of the department of 
 finance; have the treasurer appointed, as under the system of 
 1821, by joint resolution of the two houses; and the secretary of 
 state and attorney general appointed by the governor. Martin 
 I. Townsend, on the contrary, asked who it was that needed an 
 attorney general, the governor or the people? Believing him to 
 be the people's representative he himself favored his election; 
 and so also did Pierrepont, who declared that unless the conven- 
 tion was prepared to say to the people that its judges should be 
 
 3. Within the last decade or two discussion of this topic has been re- 
 vived. Hoffman, as far back as 1872, advocated a cabinet of State officers, 
 appointed by the governor, and in different forms the idea has been re- 
 vived by Governors Roosevelt and Hughes. 
 
 204 
 
Charles Andrews 
 
JHARLES ANDREWS. 
 
 (1827-).. 
 
 Lawyer and Jurist; District Attorney Onondaga County, 
 1853-56; Mayoc of Syracuse, 1861-62 and 1868; Delegate at 
 large to Constitutional Convention of 1867 ; Associate Judge 
 Court of Appeals, 1870-93, being Chief Judge 1881-82 and 
 1893-97. 
 
HISTORY OF NEW YORK 
 
 no longer elected, it should not propose that the attorney general 
 should be appointed. The attorney general should be as inde- 
 pendent as any judge in his opinions upon questions aifecting the 
 great interests of the State, and ought not to be a creature of the 
 governor. Van Campen and Judge Andrews favored the ap- 
 pointment of the attorney general, as did also Van Cott and 
 Judge Church, Church arguing that the governor should have 
 at least one officer with whom he could act and with whom he 
 might consult upon terms of entire confidence. Lapham, Greeley, 
 Curtis, Opdyke, Hale, and Folger also favored appointment; 
 while Baker, M. H. Lawrence and Gerry opposed it. Dwight, in 
 arguing for appointment, said that he would love to see in the 
 State of New York "some dim reflection of those great names 
 that in English history had made illustrious the office of attorney 
 general", — Mansfield, Ellenborough, Eldon, "men who, commenc- 
 ing with the attorney generalship, rose through all the grades of 
 judicial office to the very highest position in the law". Such was, 
 in fact, the history of the office in the State's earlier days, when 
 Egbert Benson, Aaron Burr, Morgan Lewis, Ambrose Spencer, 
 John Woodworth, Martin Van Buren, Thomas J. Oakley, Samuel 
 A. Talcott, Greene C. Bronson, Samuel Beardsley, occupied the 
 place and ascended from it to higher political station or to the 
 bench; or, like John Van Buren, became master spirits in party 
 councils. Debate upon the subject ran through two days, but the 
 sentiment foi: election prevailed and Duganne's amendment was 
 lost, the vote being 50 for it to 66 against it. 
 
 The convention sought to remedy a practice, which had 
 gradually grown up under the constitution of 1846, of allowing 
 the governor to sign bills after the adjournment of the legisla- 
 ture, — a practice at variance with that followed by the national 
 executive with respect to bills presented to him by Congress. 
 
 205 
 
LEGAL AND JUDICIAL 
 
 The validity of a statute passed in 1855 which the governor ap- 
 proved after adjournment of the legislature, was questioned in 
 People V. Bowen, 21 N. Y., 517, but upheld by the Court of 
 Appeals; and after that decision the governor repeatedly exer- 
 cised the power of appending his signature to bills even more 
 than ten days after adjournment, since the decision was con- 
 strued as authorizing the governor to approve a bill at any time 
 during the recess. Mr. Charles Z. Lincoln, in his "Constitutional 
 History of New York," states that the increase in legislation and 
 the custom, which still prevails, of postponing final action on 
 many bills until near the close of the session, made it practically 
 impossible for the governor to consider all these bills before the 
 adjournment. In the year 1867, he states, 135 bills were pre- 
 sented to the governor on the day of adjournment and 494 were 
 afterwards signed; whereas, under a analogous clause in the 
 Federal constitution, it had been the uniform custom of the 
 president, with one exception in President Lincoln's administra- 
 tion, to approve bills before the final adjournment of Congress, 
 the ten day limitation in the national organic law having been 
 construed as referring to the time during which Congress re- 
 mains in session and as having no application after adjournment. 
 The convention of 1867, in its endeavor to perfect the consti- 
 tution, gave careful consideration to this subject. The commit- 
 tee on the governor and lieutenant-governor reported that by 
 the then existing constitution no bill could be passed without the 
 consent of a majority of all the members elected to each house, 
 yet it might be passed over the governor's veto by a vote of two- 
 thirds of all the members present, "thus in effect not only greatly 
 weakening and rendering in a manner utterly powerless the ob- 
 jections of the executive, but also virtually annulling that part 
 of the section requiring in the first instance a vote of a majority 
 
 206 
 
HISTORY OF NEW YORK 
 
 of all the members elected"; and the committee added that its 
 proposed amendment was in harmony with the Constitution of the 
 United States in respect to the power of the president to sign bills 
 passed by Congress. The convention therefore proposed to mod- 
 ify section lo of Article IV of the constitution of 1846 so as to 
 make it read that if any bill were not returned by the governor 
 within 10 days (Sundays excepted) after its presentation to him, 
 it should be a law, unless the legislature by its adjournment pre- 
 vented the return, and that no bill should become a law by the ap- 
 proval of the governor after the end of the session at which the 
 same was passed, unless it should be sent by him to the office of the 
 secretary of state within ten days (excluding Sundays) after the 
 end of the session. Governor Fenton in 1867 had suggested that 
 the time for signing bills left over at the conclusion of the ses- 
 sion should be extended to thirty days thereafter, and this rule was 
 subsequently adopted by the constitutional commission of 1872, 
 and ratified by the people in 1874. 
 
 The convention of 1867 modified the language of sec- 
 tion 10 in one other particular. The constitution had pro- 
 vided that a bill returned to the house from which it had 
 originated, with the governor's disapproval, should become 
 law if approved by two-thirds of all the members present, 
 and by two-thirds of the members present in the other 
 house, notwithstanding the governor's objections. The change 
 proposed in 1867 would have required the approval of two- 
 thirds of all the members elected to either house, to pass 
 the bill over the governor's veto; but the convention unfortu- 
 nately did not approve of the suggestion, made to it by Thomas 
 G. Alvord, that the governor should have power to veto distinct 
 items in tax and appropriation bills. As will hereafter be seen, 
 the constitutional commission of 1872 would have conferred this 
 
 207 
 
LEGAL AND JUDICIAL 
 
 power and its proposal was, after receiving the requisite legisla- 
 tive approval, ratified by the people in 1874. 
 
 The subject of municipal government received much con- 
 sideration. The debate upon the conflicting reports from the 
 committee on cities was protracted and to a certain extent par- 
 tisan. The speeches of Harris, chairman of the committee 
 on cities, and of Opdyke, also a member of the commitee, pre- 
 sented in a clear and striking light the evils of city government, 
 and the proposed remedies therefor. The majority report advo- 
 cated a great enlargement of the powers of mayors of cities, 
 recommending that a mayor should have exclusive power to ap- 
 point heads of departments, and to remove at his pleasure all 
 his appointees, a principle embodied in many city charters to- 
 day. It proposed also to confer on cities absolute power of self- 
 government and to forbid. the legislature from interfering with 
 their affairs except by passing general laws. Opdyke, in 
 a minority report, urged the restriction of the elective franchise 
 in local affairs as a pre-requisite to investing cities with local 
 self-government. He proposed that the mayor and a portion of 
 the common council should be elected by citizens having the 
 right to vote for State officers, and that municipal boards of 
 aldermen and comptrollers should be chosen by persons owning 
 property valued at not less than one thousand dollars. Such a 
 limitation upon suffrage would, in his beUef, be sanctioned by 
 the people of the State; without it he should be constrained to 
 vote against every increase of governmental power of cities. 
 This sort of restriction was actually approved by the Tilden com- 
 mission, in 1877. 
 
 The convention voted to report that general laws should 
 be passed for the organization of cities; that members of com- 
 mon councils should hold no other office in cities, and that no 
 
 208 
 
HISTORY OF NEW YORK 
 
 city officer should hold a seat in the legislature. Beyond this, 
 it contented itself with a section, drafted by Henry C. Murphy, 
 the purport of which was that the mayor should be chosen by 
 the electors of every city as the chief executive officer; that he 
 should have power to investigate the acts of the various city offi- 
 cers and the right to examine them and their subordinates on 
 oath ; that he should also have power to suspend or remove such 
 officers, whether they were elected or appointed, for misconduct 
 in office or neglect of duty, to be specified in the order of sus- 
 pension or removal, but that no such removal should be made 
 without reasonable notice to the officer complained of and an 
 opportunity afforded him to be heard in his defence. 
 
 The financial article (Article VIII) remained substantially 
 as in the constitution of 1846; but additions were made cover- 
 ing certain questions, and a new section (15) was added, pro- 
 viding that real and personal property should be subject to a 
 uniform rule of assessment and taxation. 
 
 Space will not permit a complete enumeration of the changes 
 finally adopted by the convention. For a full list of these 
 modifications, the constitution reported by the convention must 
 be examined. Many suggestions made by committees or 
 members upon the floor were not accepted by the convention, 
 but the following provisions which it approved subsequently 
 found their way into the constitution, either in 1874 or upon 
 the ratification of the work of the convention of 1894, viz. : 
 abrogation of the property qualifications of colored voters, which 
 was adopted in 1874 ; registration of citizens entitled to vote in 
 the several election districts, adopted m 1894; increase in the 
 membership of the assembly, adopted in 1894; prohibition of the 
 audit by the legislature of private claims against the State, and 
 of the grant of extra compensation to public officers or contrac- 
 
 209 
 
LEGAL AND JUDICIAL 
 
 tors, adopted in 1874; prohibition of local or special laws in cer- 
 tain cases, many of which were set forth in the report of the 
 commission of 1872, and adopted in 1874; election of secretary 
 of state, comptroller, treasurer and attorney general at the same 
 time and for the same term as the governor, which was adopted 
 in 1894; bribery provisions, adopted in a modified form in 1894; 
 the provision that the question of calling a constitutional con- 
 vention should be determined by a majority of the votes cast 
 upon that question only, adopted in a modified form in 1894. 
 Much therefore of the excellent work of the convention thus 
 finally became part of the organic law of the State, although its 
 incorporation into the constitution was deferred for a longer or 
 shorter period. Some of its ideas regarding city government also 
 became fruitful in later years. 
 
 Following the example of its predecessors, the convention 
 appointed a select committee to draft an address to the people. 
 This draft, the work of Charles J. Folger, briefly summarized 
 the proposed amendments, commending attention to its new and 
 stringent provisions to stop bribery and improper influences at 
 elections and to check abuses in the disposition of public money by 
 placing important restrictions upon the exercise of legislative 
 power and by inhibiting the passage of special laws; to its pro- 
 posed abolition of the offices of canal commissioners, and the 
 substitution of a single head to the canal system, to be 
 appointed by the governor and senate; to its creation of a 
 Court of Claims ; its plan for the organization and government of 
 cities; its proposed changes in the control of the state prisons, 
 and its drastic measures as to corruption in office and bribery of 
 officials. In language analogous to that employed in previous 
 addresses, the convention expressed its belief that if its work should 
 find favor with the people, the government of the State would be 
 
 210 
 
HISTORY OF NEW YORK 
 
 safe and beneficent, "and the Commonwealth, with the favor of the 
 Ruler of all events, be borne forward for another generation in 
 increasing happiness and prosperity." 
 
 The convention by adjournments had prolonged its sessions 
 beyond the November election of 1867, notwithstanding the statu- 
 tory mandate requiring its work to be submitted to the people in 
 the fall election of that year. Its report was not completed until 
 February 28, 1868. The constitution was on that day agreed to 
 by a vote of 84 in favor to 31 against it, Comstock, Amasa J. 
 Parker, Church, Murphy and Daly being prominent among the 
 dissenters. It adopted a resolution permitting members not in 
 attendance to sign it, before its submission to the people and pre- 
 vious to the third of the following November, at the office of the 
 secretary of state. The question of submission was in fact most 
 perplexing, and from the outset of the convention had led to 
 numerous debates and the expression of much diversity of opin- 
 ion. The first two constitutions had never been presented to 
 voters for ratification, and one source of controversy between the 
 legislature which had met in the spring of 1820 and the council 
 of revision, was upon the question whether provision should not 
 be made for the submission of different articles separately. The 
 convention of 1821 decided to submit its work for approval or 
 disapproval in its entirety and the like course was pursued in 
 1846, except as to two special matters. Chapter 194, Laws of 
 1867, providing for the convention after a popular verdict for 
 it, required the new constitution to be voted upon at the fall elec- 
 tion of 1867, and left it to the discretion of the convention to 
 determine whether its amendments should be submitted as a 
 whole or separately. Opinions in the convention were in con- 
 flict upon the question of the power of the convention to fix 
 a different date of submission from that named in the law, many 
 
 211 
 
LEGAL AND JUDICIAL 
 
 arguing that it had such power, others that it was bound by the 
 statute. Differences of view arose as to whether the people should 
 be asked to vote upon the constitution at the regular election or 
 at a special election, when the public mind would not be pre- 
 occupied with other issues and the work of the convention 
 might stand or fall upon its merits. The separate submis- 
 sion of different questions was urged by some and opposed 
 by others, Comstock, for instance, declaring that if the con- 
 vention decided to submit all its propositions as an entirety, 
 he would oppose ratification. The form in which separate 
 issues should be couched for presentation to the people provoked 
 much debate, and this was especially true as to the property 
 qualification for negro suffrage, an issue worthy to be presented 
 without equivocation and in such clear and concise language that 
 voters would know to a certainty the exact point upon which their 
 opinion was asked. The vote for submission at a special elec- 
 tion in June, 1868, was lost in the convention, 40 to 65; and 
 the vote for submission at the general election in November, 1868, 
 carried, 61 to 31. 
 
 The convention adjourned sine die on February 28; 
 subsequently the assembly, but not the senate, approved a 
 bill for submission at the general election of that year, but on 
 May 2 the legislature (Chapter 538, Laws of 1868) while it rati- 
 fied the continuance of the convention's sessions after the first 
 Tuesday of November, 1867, and authorized the payment of all 
 its expenses down to the date of its close, specially provided that 
 nothing in the act should be held or construed to affirm or ratify 
 any form or mode of submission to the people of the constitution 
 by said convention proposed. This prevented its submission that 
 year. On April 24, 1869, Chapter 318, Laws of 1869, specifically 
 authorized submission at the general election of that year, and 
 
 212 
 
HISTORY OF NEW YORK 
 
 provided four ballot boxes for the ballots of electors upon the 
 proposed constitution, thus giving voters an opportunity to ex- 
 press their opinions upon the constitution itself, the judiciary 
 article, assessment and taxation, and the suffrage question. The 
 proposed constitution, section 17, Article VI, had, as will be re- 
 membered, provided for the submission of two questions at the 
 general election in the year 1873 — one with respect to the election 
 or appointment of the chief judge and associate judges of the 
 Court of Appeals and of justices of the Supreme Court, and the 
 other with respect to the appointment of the judges mentioned 
 in sections 12 and 15 of Article IV. The results of this last vote 
 have heretofore been given.' The proposed constitution, with the 
 exception of the judiciary article was on November 2, 1869, voted 
 down, the vote against it being 290,456 to 223,935 in its favor. 
 Besides the judiciary article, which was adopted, and the proposi- 
 tions to appoint judges which were disapproved in 1873, two sub- 
 jects were separately submitted in 1869 and both incurred defeat, 
 — ^the proposal to abolish property qualifications for colored vot- 
 ers, and the proposal to subject real and personal property to a 
 uniform rule of taxation. 
 
 3. See page 188. 
 
 2'.'? 
 
CHAPTER XI 
 
 GOVERNOR HOFFMAN PROPOSES A CONSTITUTIONAL COMMISSION- 
 IN LIEU OF A NEW CONVENTION HIS SUGGESTIONS FOR CON- 
 STITUTIONAL REFORM CHAPTER 884, LAWS OF 1 872, AU- 
 THORIZING THE GOVERNOR TO APPOINT A COMMISSION — PER- 
 SONNEL OF THE COMMISSION — RESEMBLANCES BETWEEN ITS 
 SUGGESTIONS AND THE CONSTITUTION DRAFTED IN 1867 — EN- 
 LARGEMENT OF THE SPHERE OF INELIGIBILITY TO THE LEGIS- 
 LATURE PROHIBITIONS OF LOCAL AND SPECIAL LEGISLATION 
 
 THE NATURE OF PRIVATE AND LOCAL LAWS TO BE FAIRLY 
 
 SPECIFIED IN TITLES — PROHIBITION AGAINST AUDIT OF AL- 
 LOWANCE OF PRIVATE CLAIMS AGAINST THE STATE — IN- 
 CREASE OF LEGISLATIVE POWERS OF BOARDS OF SUPERVISORS — 
 SUGGESTION AS TO PRIVATE BILLS NOT APPROVED BY THE LEG- 
 ISLATURE — HISTORY OF PRIVATE LEGISLATION IN GREAT 
 BRITAIN — PROPOSED RE-CREATION OF A COUNCIL OF REVISION 
 
 ENLARGEMENT OF GOVERNOR'S VETO POWER — ^THIRTY DAY 
 
 BILLS PROPOSED INCREASE OF GOVERNOR'S TERM — PROPOSED 
 
 APPOINTMENT OF STATE OFFICERS SALE OF NON-PAYING LAT- 
 ERAL CANALS PROVISIONS AS TO CHARTERS OF SAVINGS BANKS 
 
 CONSTITUTIONAL LIMITATIONS UPON POWER OF CITIES AND 
 
 COUNTIES TO INCUR INDEBTEDNESS — ENORMOUS EXTENT OF 
 SUCH INDEBTEDNESS IN 1872 PROHIBITION OF CITY OR COUN- 
 TY INDEBTEDNESS IN AID OF PRIVATE ENTERPRISE — COMMIS- 
 SION PROPOSES TWO NEW ARTICLES THE BRIBERY ARTICLE — 
 
 DIFFERENCE BETWEEN THE PLAN OF THE COMMISSION AND 
 
 THAT OF THE CONVENTION OF 1867 THE MUNICIPAL ARTICLE 
 
 LATER RESTRAINTS UPON LOCAL POWERS OF EXPENDITURE — 
 
 ADOPTION OF MANY SUGGESTIONS OF THE COMMISSION BY THE 
 LEGISLATURE AND THE PEOPLE — COMMISSION AN INNOVATION 
 IN THE state's HISTORY. 
 
 214 
 
HISTORY OF NEfF YORK 
 
 The constitution which had been formulated with such care 
 and intelligence by the convention of 1867 was, with the excep- 
 tion of its judiciary article, defeated at the polls in 1869 by an 
 adverse vote of more than 66,000. Yet this disapproval so em- 
 phatically registered was, by one of those reversions so common 
 in politics, to be followed in 1874 by a measurable degree of ap- 
 proval; for in that year the people were to ratify by majorities 
 ranging for 120,000 to 360,000 many of the separate suggestions 
 of the convention as they came to it, in revised form, from the 
 constitutional commission of 1872. The people seem to be able to 
 deal only with one paramount issue at a time, and cannot well 
 pass upon many questions simultaneously. The white heat of 
 1868 and 1869 had cooled in five years, and the electorate was 
 then ready to consider upon its merits part of the work of the con- 
 vention. Constitutional reform profoundly interested Governor 
 Hoffman who, whatever history may say regarding his associa- 
 tion with the Tweed ring, rose towards the close of his term as 
 governor to the height of statesmanship. 
 
 Hoffman had begun his career in the office of the re- 
 corder of New York City, from which James Kent had 
 gone to the supreme bench; he had been mayor, and after- 
 wards an unsuccessful candidate for his party's nomination 
 for the governorship in 1866, and became governor in 1868, 
 in a campaign in which false registration and fraudulent 
 voting were believed to have been practised upon a colossal 
 scale. His opportunities for the study of State and city govern- 
 ment had been exceptional and had been wisely improved. He 
 was among the first to advocate publicly the kind of legislation 
 that culminated in the Tilden taxpayers' acts. His final message 
 to the legislature, January 2, 1872, reads like an essay upon 
 constitutional reform, and is replete with excellent suggestions. 
 
 215 
 
LEGAL AND JUDICIAL 
 
 The governor seems to have carefully studied the deliberations 
 of the convention of 1867. After allusion to its work and its 
 rejection by the people — with the exception of the judiciary ar- 
 ticle in 1869, — ^he pronounced the existing constitution defective 
 "as a framework of efficient republican government." He would 
 not, he said, recommend another convention, for popular atten- 
 tion would be engrossed during the year by a presidential can- 
 vass; but he proposed instead the appointment of a commission 
 of thirty-two eminent citizens to be selected equally from each 
 of the two leading political parties. A commission so chosen 
 might have "all the benefit of the debate incident to a larger 
 body through intelligent discussions in the press and the volun- 
 tary suggestions of thoughtful citizens" and its report could 
 not be expected until after the presidential election, when the 
 public mind would be able to examine it calmly. In his opinion 
 a constitution from such a source, when approved by the legisla- 
 ture, and also by the people, would be as duly established as if the 
 suggestions of the commission had, in the first instance, ema- 
 nated from the legislature itself. 
 
 In analyzing defects in the organic law, the governor showed 
 an interesting coincidence of view with the majority opinion of 
 the convention of 1867. The secretary of state and the attorney 
 general should, he argued, be appointed by the governor and hold 
 office during his pleasure. The comptroller, the superintendent 
 of canals and the superintendent of prisons, might be appointed 
 by the governor either with or without the senate's consent, and 
 should hold office during the same term as the governor and be 
 removable by him at any time for cause. The state treasurer, as 
 actual custodian of public moneys, and, perhaps, also the superin- 
 tendent of public instruction, should be appointed by joint ballot 
 of the two houses. Additional safeguards against local and special 
 
 216 
 
HISTORY OF NEW YORK 
 
 legislation were urgently necessary. The numbers of laws passed 
 for a score of years had exceeded upon the average five hundred 
 a year and for the previous six years had surpassed eight hundred 
 a year. Special legislation was the chief contributing cause of 
 this great volume of statutes. There was no profit in limiting the 
 legislative session to one hundred days, as this had not lessened 
 the volume of legislation, but induced haste and carelessness in its 
 passage. The governor urged that power should be reposed in the 
 chief executive of the State to prorogue the legislature after it 
 had been in session for one hundred days. 
 
 His views regarding the composition of the senate and the 
 assembly bore close resemblance to those presented by the ablest 
 minds in the convention of 1867. The senate should consist of 
 representatives versed in public affairs; its very name im- 
 ported that it should be a council of men of long experience and 
 every inducement should be offered to invite a high order of minds 
 to service in it. "A long term and a large constituency would 
 greatly enhance the dignity of office of senator, and make it at- 
 tractive to our most distinguished citizens." Hoffman favored 
 also the restoration of county representation in the assembly. 
 Doubtful of the wisdom of attempting to frame a universal char- 
 ter for the cities of the State, a skepticism still shared by many, 
 he advocated "more specific constitutional restraints upon legis- 
 lative power to grant special charters for corporations; upon 
 special legislation generally, upon legislative awards of extra 
 compensation to claimants under contracts and otherwise". The 
 veto power also should be made more effectual. 
 
 Hoffman's home rule doctrines were sound. True decentral- 
 ization would consist in giving to the people of every county and 
 of the other political subdivisions of the State autonomous con- 
 trol of their own local affairs. They should not possess the power 
 
 217 
 
 IS 
 
LEGAL AND JUDICIAL 
 
 of selecting State officers whose duties were exclusively connected 
 with general affairs of the State and the enforcement of State 
 laws. It is interesting to hear from a Democratic governor the 
 confession that "the framers of the constitution of 1846, eager 
 for decentralization of power, made the mistake of supposing that 
 this was to be effected by breaking apart and disconnecting the 
 machinery whereby the State government is to be carried on and 
 by multiplying the number of elective officers." 
 
 Pursuant to the governor's recommendation, the legislature 
 passed an act,^ which he approved, authorizing him to nominate, 
 and with the advice and consent of the senate to appoint, a com- 
 mission of thirty-two persons, four from each judicial district of 
 the State, to propose to the legislature at its next session such 
 amendments to the constitution (exclusive of the recently adopted 
 judiciary article) as the commission might deem proper. The act 
 man nominated and the senate confirmed thirty-two commission- 
 the place of its meeting, compensation of its members, and other 
 incidental matters. Pursuant to this enactment. Governor Hoff- 
 man nominated and the senate confirmed thirty-two commission- 
 ers, six of whom had been delegates to the convention of 1867, 
 and to whose presence in the commission the close correspond- 
 ence in the work of these two bodies may partially be ascribed. 
 These men were George Opdyke, who had succeeded Fernando 
 Wood as mayor of New York City in 1861 ; Augustus Schell ; 
 Erastus Brooks, editor of the New York Evening Express; David 
 Rumsey, who had represented his district in Congress, William 
 Cassidy, the accomplished editor of the Albany Argus, who was 
 destined not to live to the close of his term as commissioner; 
 and Francis Kernan, a leading lawyer, who in 1874 was elected 
 to represent the State in the United States senate. George B. 
 
 I. Chapter 884, Laws of 1872. 
 
 218 
 
HISTORY OF NEfF YORK 
 
 Bradley, who subsequently occupied a place upon the bench of the 
 Court of Appeals, second division, and Lucius Robinson, the suc- 
 cessor in the governorship of Samuel Tilden, were also members 
 of the commission.^ It assembled in the council chamber of the 
 city of Albany, December 4, 1872. Robert H. Pruyn was chosen 
 permanent chairman. Its sessions continued until March 15, 
 1873, when it adjourned sine die. On March 24 it reported to the 
 assembly and on March 25 to the senate, numerous amendments 
 to the fourteen articles of the existing constitution, and two new 
 articles, one relating to municipal government, the other to the 
 crime of bribery. The commission gave little heed to memorials 
 for the abolition of distinctions on account of sex, or to arguments 
 of the "Committee of Seventy" of New York City for minority 
 or proportional representation in municipal charters and county 
 government. Like the convention of 1867 it reported in favor 
 of the repeal of property qualifications for colored voters. Im- 
 pressed alike by the danger incident to the growing use of money 
 in elections and by the repugnance of legislatures to the exercise 
 of the power bestowed by the existing constitution to pass statutes 
 against bribery, it proposed to embody in the organic law drastic 
 provisions excluding bribers and the recipients of bribes from the 
 exercise of the elective franchise, substantially approving of the 
 
 2. The names of the members are: John D. Van Buren, George Op- 
 dyke, Augustus Schell, John J. Townsend, Erastus Brooks, Odle Close, 
 John J. Armstrong, Benjamin D. Silliman, William Cassidy, Robert H. 
 Pruyn, George C. Burdett, Cornelius L. Tracy, Artemas B. Waldo, James 
 M. Dudley, Samuel W. Jackson, Edward W. Foster, Daniel Pratt, Ralph 
 Mcintosh, Francis Kernan, Elias W. Leavenworth, Lucius Robinson, John 
 F. Hubbard, Jr., Jonas M. Preston, and Barna R. Johnson, appointed in 
 place of Francis M. Finch, who had been appointed in place of Orlo W. 
 Chapman, both of whom resigned before the first meeting of the com- 
 missiorl. George B. Bradley, Van Rensselaer Richmond, Horace V. How- 
 land, David Rumsey. Mr. Rumsey resigned in January 1873; Guy H. 
 McMaster was appointed to succeed him, but declined, and the place was 
 filled by the appointment of Lysander Farrar. Sherman S. Rogers, Cyrus 
 E. Davis, Benjamin Pringle, and Lorenzo Morris. 
 
 219 
 
LEGAL AND JUDICIAL 
 
 amendment drafted by the convention of 1867 to check this evil. 
 This amendment after its adoption by two successive legislatures 
 was ratified by the people in the fall of 1874.' But the commission 
 declined to recommend the amendment approved in the convention 
 requiring registration to be uniform in all cities. It proposed also 
 to increase the term of senators to four years, and to divide the 
 State into eight senate districts, each of which should choose 
 four senators, one every year, a slight departure from the plan 
 urged in the convention of 1867, but voted down upon the floor 
 of that body, to elect one-half of the senate every two years. 
 One object which the commission sought to effectuate by its sen- 
 ate with large districts was the creation in that chamber of a re- 
 viewing power free from mere local influence, to some extent 
 analogous to that lodged in the chief executive. It was thus 
 hoped to stop the passage of much "special and ill-digested" 
 legislation, which in existing conditions could be nullified only by 
 unsparing use of the governor's veto power. The senatorial office, 
 said the commission, "should be one which the ablest and most 
 experienced men in the district should compete for and accept", 
 and the annual removal of one-fourth of the senate should "in- 
 sure the continual presence of a large number of experienced 
 members". But its proposed reconstitution of the senate failed 
 of legislative acceptance, and was never submitted to popular 
 vote. It differed from the convention and from Governor Hoff- 
 man in not favoring return to county representation in the as- 
 sembly. It enlarged the sphere of legislative ineligibility, which 
 had theretofore covered only members of Congress and persons 
 in the judicial or miltary service of the United States, by provid- 
 ing that no person should be chosen to either house who, at the 
 time of his election or within one hundred days prior thereto, 
 
 3. See Section 2 of Article II. 
 
 220 
 
HISTORY OF NEW YORK 
 
 had been a member of Congress, a civil or military officer of the 
 United States, or an officer under any city government, and by 
 requiring further, that if any person after his election to the leg- 
 islature should be elected to Congress or appointed to any civil 
 or military office under the United States or under any city gov- 
 ernment, his acceptance thereof should vacate his seat. This 
 amendment met with due legislative approval and was accepted 
 by the people at the November election in 1874. 
 
 In its discussion of the subject of special legislation, the 
 commission declared that three-fourths of all statutes were in 
 reality special acts. Following the example of the convention of 
 1867, it reported the prohibition of private, special or local laws in 
 a number of cases, but enlarged the list fixed by that body. Two 
 legislatures accepted its suggestions in the main, with some 
 omissions from its list, and the inhibition upon special legislation, 
 thus modified, was ratified by the people in 1874. It added two 
 new sections to Article III, — one declaring that no private, special 
 or local law should embrace more than one subject, which should 
 be named in its title, and that any such law embracing more than 
 one subject should be void, and the other declaring that no act 
 should be passed which should provide that any exisiting law or 
 any part thereof should be made or deemed a part of said act, 
 or which should enact that any existing law or any part thereof 
 should be applicable, except by inserting it in such act. It added 
 a section, similar to one favored in 1867, forbidding the legisla- 
 ture to audit or allow any private claim or account against 
 the State, although it was permitted to appropriate money 
 to pay claims audited and allowed according to law. All 
 of these amendments received due approval and became part of 
 the organic law in 1874. The commission proposed to alter 
 the existing constitution so as to require the legislature by general 
 
 221 
 
LEGAL AND JUDICIAL 
 
 laws to confer upon boards of supervisors of counties such further 
 powers of local legislation and administration as the legislature 
 might from time to time deem expedient, which was adopted, 
 and it proposed also to deprive the legislature and the common 
 council of any city and any board of supervisors, of power to 
 grant any extra compensation to any public officer, servant, agent 
 or contractor (similar section in 1867), which was also adopted. 
 
 Some suggestions of the commission upon the subject of 
 legislation were not approved by the le^slature, and therefore 
 were never submitted to the people for ratification ; for example, 
 a section requiring that every bill introduced into the legislature 
 should be considered and read twice, section by section, in the 
 senate and assembly; that every bill should have three readings, 
 no two on the same day; that every bill and all amendments 
 to it should be printed and distributed among the members of 
 each house at least one day before the vote upon its final pas- 
 sage; that the question on the final passage should be taken im- 
 mediately upon the last reading, section by section, and by yeas 
 and nays to be entered upon the journals; and that the assent of 
 a majority of the members elected to each house should oe 
 requisite to the passage of every bill. 
 
 Section 18, as reported by the commission, is as follows: 
 
 "No private, special or local bill shall be introduced in any regular ses- 
 sion after sixty days from the commencement thereof, without, in each 
 case, the recorded consent by yeas and nays of three-fourths of all the 
 members elected to the house in which such bill is offered; and no such 
 bill shall be passed unless public notice of the intention to apply therefor 
 and of the general objects of the bill shall have previously been given. The 
 legislature, at the next session after the adoption of this section, and from 
 time to time thereafter, shall prescribe the time and mode of giving such 
 notice, the evidence thereof and how such evidence shall be preserved." 
 
 The main purpose of this provision — which unfortunatfely 
 
 222 
 
HISTORY OF NEW YORK 
 
 was not approved by the legislature and therefore was never 
 submitted to the people — was to inform the public as to all pri- 
 vate bills introduced into the senate or assembly, and thereby to 
 secure to those most interested in defeating their passage ample 
 opportunity to register opposition. This was the first attempt in 
 the State of New York to adopt the principle of the parliamen- 
 tary standing orders which have proved an invaluable safeguard 
 in Great Britain against the passage of improper private or local 
 bills. In the matter of private legislation the example of Great 
 Britain is worthy of emulation. The passage of special legisla- 
 tion through Parliament is in the nature of a judicial proceed- 
 ing. All private or special bills must be filed sixty days before 
 Parliament convenes, and all whose interests such bills may ef- 
 fect adversely must be given ample notice to file objections. The 
 promoters of all such bills are required to deposit sufficient 
 sums to meet the expenses of the proceedings. If the promoters 
 fail to give the requisite notice or otherwise fail to comply with 
 the standing orders of Parliament regarding private or local 
 bills, no further consideration of them can be had at that ses- 
 sion. If the requirements of the standing orders have been ob- 
 served, the bills are then referred to special parliamentary com- 
 mittees, acting as judges; and if the objects of these promoters 
 are approved, the bills must be made to harmonize with existing 
 legislation before becoming laws.^ The attempt to pass a section of 
 this tenor was renewed in the legislature in January, 1896, but it 
 failed to secure the needed votes. 
 
 4. "With but very rare exceptions", says Mr. Simon Sterne, "the 
 House of Commons regards the findings of a committee on a private or 
 local bill as final. This method of ascertaining the merits of a measure is 
 so complete, the examination of witnesses and experts is so thorough, every 
 element that can enlighten the mind of the legislator has been brought to 
 bear with so much accuracy and forensic skill, that the market of human 
 error, after such a trial, is very small." Governor Roosevelt in his mes- 
 sage of 1899 directed attention "to the custom of the British Parliament, 
 
 223 
 
LEGAL AND JUDICIAL 
 
 Erastus Brooks proposed to re-create a council of revision 
 to consist of two senators, the chief judge or one of the asso- 
 ciate judges of the Court of Appeals, the attorney general and 
 the governor, the governor to designate every year the senators 
 and judge who should form part of the council, but the commit- 
 tee to which the project was referred, in declining to recommend 
 its adoption, declared that the experiment had been tried and 
 had signally failed in the early history of the State. The rea- 
 sons urged so forcibly in the convention of 1821 for the aboli- 
 tion of the council of revision, and which are as valid to-day 
 against a revisory council in which judges sit, were, that it 
 mingled judicial and legislative functions that ought to be kept 
 separate, gave the judges potent influence in shaping legislation, 
 and brought them into politics. A senate with a longer term 
 and a larger constituency would be a far more salutary check upon 
 improper and incoherent laws.^ 
 
 The commission terminated the controversy, which had 
 perplexed the conventions of 1821, 1846 and 1867, about the 
 number of members of each house whose concurrence should 
 be necessary to pass a bill over the governor's veto. The pro- 
 vision which it reported made the consent of two-thirds of the 
 members elected to each house essential to the passage of a 
 vetoed bill. It further reported that no bill should become a 
 law after the final adjournment of the legislature, unless ap- 
 
 which puts upon the would-be beneficiary the cost of all private and spec- 
 ial legislation, and wisely makes it diiBcult to obtain at all, and impossi- 
 ble to obtain without full advertisement and discussion. No special law,^| 
 he added, "should be passed where a general law would serve the purpose." 
 S. Nevertheless an advisory council of revision properly organized 
 would be an invaluable instrumentality in the formulation of legislation. 
 A commission organized under Chapter 1025, Laws of 1895 reported to the 
 legislature of 1896 a scheme to govern the introduction of private bills and 
 the method of procedure after their introduction, but its suggestions 
 never bore practical fruit in legislation. 
 
 224 
 
HISTORY OF NEW YORK 
 
 proved by the governor within thirty days after the adjourn- 
 ment. These modifications were adopted by two legislatures and 
 by the people and form part of the constitution. 
 
 Governor Hoffman, in his message, had argued in favor 
 of making the veto more effectual by requiring a vote of 
 two-thirds of -the members elected to each house to overcome it 
 and by giving the governor power to veto separate items of an 
 appropriation bill without requiring him to defeat the entire bill. 
 Another and much needed amendment reported by the com- 
 mission, which, also found its way into the constitution, em- 
 powers the governor to veto one or more items of an appropria- 
 tion bill, while approving all of its other features. The superior 
 flexibility of the constitution of New York, as contrasted with 
 the Federal constitution, is shoivn by this amendment. The 
 State has not suffered more from improper riders upon appro- 
 priation bills than the general government. But this pernicious 
 practice on the part of Congress, which was temporarily checked 
 by President Hayes' resolute action in 1879, cannot perhaps be 
 effectually suppressed without an amendment to the Federal 
 constitution. 
 
 The commission proposed also that the governor's and the 
 lieutenant-governor's term should be increased to three years. 
 This amendment was ratified and went into effect on January i, 
 187s, too late, however, to have influence upon Governor Tilden's 
 term, but his successors, — Robinson, Cornell, Qeveland, Hill and 
 Flower, — each served for three years. On January i, 1895, the 
 term of the chief magistrate was reduced to two years. It would 
 have been far better had the convention of 1894 lengthened it to 
 correspond with the term of the president and made the term of 
 senators correspond. The commission also reported amendments 
 providing that the comptroller should be elected at the same time 
 
 225 
 
LEGAL AND JUDICIAL 
 
 with the governor and for a like term, and that the secretary of 
 state, attorney general, state engineer and surveyor should be 
 appointed by the governor with the consent of the senate, and 
 hold their offices until the end of the term of the governor by 
 whom they should be nominated and until their successors should 
 be appointed. Discussion of this topic was, as has been seen, very 
 full in the convention of 1867. These amendments were not 
 favorably considered by the legislature and were therefore not 
 voted upon by the people. 
 
 The commission proposed also that a superintendent of state 
 prisons and a superintendent of public works should be appointed 
 by the governor with the consent of the senate for the like term, 
 and that the state treasurer should be chosen by the senate and 
 assembly upon joint ballot for three years or until his successor 
 should have qualified. Only two of these provisions were adopted 
 by two legislatures and have met with popular approval, namely, 
 those relating to the appointment of the superintendent of state 
 prisons and the superintendent of public works. These are now 
 embodied in the constitution. The amendment in the mode of 
 electing the treasurer was defeated in the legislature. The treas- 
 urer under the first constitution had been selected by the two 
 houses upon nomination by the assembly, and under the constitu- 
 tion of 1822 by both houses upon joint ballot, if the two chambers 
 should not agree in their nomination. That constitution had pro- 
 vided for the election of the secretary of state, comptroller, sur- 
 veyor general, and attorney general in like manner with the treas- 
 urer. The plan of the constitutional commission was a return to 
 the plan of 1822 in the election of state treasurer. The office of 
 district attorney, an outgrowth in 1801 of the office of assistant 
 attorney general, was by the constitution of 1822 placed within 
 the appointive power conferred upon the county courts and in 
 
 226 
 
HISTORY OF NEW YORK 
 
 1846 district attorneys were made elective. In the constitutional 
 commission a disposition, shown also in the convention of 1867, 
 was manifested to treat this official as a sort of deputy attorney 
 general and to give his appointment to the governor, an idea 
 which had been urged by Governor Hoffman; but the plan 
 did not prevail.^ 
 
 The commission decided that most of the lateral canals had 
 outlived their usefulness and would continue in the future, as 
 they had proved in the past, a burden to the state. It declared 
 that the time had arrived to relieve the canal system from the 
 odium caused by these non-paying laterals, and therefore recom- 
 mended a modification of section 6, Article VII, restricting the 
 prohibition upon the sale, lease or other disposition^ of the canals 
 of the State, to the Erie, Champlain, Oswego, and Cayuga and 
 Seneca. This modification was found acceptable to the legisla- 
 ture and was approved by the people, yet within a few years de- 
 cision was reached to retain perpetually the Black river canal as 
 well. Although the revenues from the laterals had never equalled 
 the cost of their maintenance, they had served the purpose of 
 opening communication with some of the most fertile portions of 
 the interior of the State, to which their discontinuance proved a 
 temporary loss, as these sections thereafter became exclusively 
 dependent upon railway transportation.'' In the interval between 
 1874 and 1882 attempts had been made to dispose of the 
 Chemung, Crooked lake, Genesee valley, and Black river canals, 
 
 6. According to Hammond, Governor DeWitt Clinton in his first 
 message (1818) "recommended several important improvements in our 
 municipal laws, among which was the abolition of the division of the 
 State into districts, for the purpose of criminal prosecutions, and the ap- 
 pointment of an attorney for the people in each district; and he advised, 
 in lieu of this system, the appointment of an attorney for the people in 
 each county". "Political History of New York," I, 449, 450. 
 
 7. Whitford's "History of the Canals," 781, 785. Hill, "Waterways 
 and Canal Construction, N. Y.," 194. Report of Commission of 1872. 
 
 227 
 
LEGAL AND JUDICIAL 
 
 and it was this effort which led the legislature to decide to retain 
 the Black river, which was a valuable feeder to the Erie. The 
 amendment made in 1882 added it to the list of inaUenable canals. 
 At the close of section 3 of Article VII, the commission pro- 
 posed to add "no extra compensation shall be made to any con- 
 tractor, but if from any unforeseen cause the terms of any con- 
 tract shall prove to be unjust and oppressive, the canal board may, 
 upon the application of the contractor, cancel such contract" ; and 
 took away from the legislature, the canal board, the canal ap- 
 praisers, and their agents, power to audit, allow or pay any claim 
 barred by lapse of time, as between citizens of the State. These 
 two amendments were embodied in the constitution on January 
 
 I, 1875- 
 
 The commission proposed also to amend section 4, Article 
 VIII, of the constitution, by requiring that the legislature by gen- 
 eral law should conform all charters of savings banks or institu- 
 tions for savings, to a uniformity of powers, rights and liabilities, 
 and that all charters thereafter granted for such corporations 
 should be made to conform to such general law and to amendment 
 thereto. No such corporation was to be permitted to have capital 
 stock, nor were the trustees to possess any interest, direct or indi- 
 rect, in the profits of the corporation nor to be interested in any 
 loan or use of money or property of such corporation. This amend- 
 ment was ratified and is now in the constitution. The amendment 
 eradicated an evil which had sprung from the creation of savings 
 banks with stock, under special charters, without proper restric- 
 tions upon the investment of their funds. Some of these institu- 
 tions, actuated by the desire to make large profits and declare 
 handsome dividends, had taken risks entirely inconsistent with the 
 nature of their business, to the great injury of depositors ; and the 
 temptation to such risks was increased by their havmg capital 
 
 228 
 
HISTORY OF NEW YORK 
 
 stock of which the directors or trustees could be holders. In 
 his annual message (January 4, 1870), Governor Hoffman had 
 advised the legislature that 128 savings banks had theretofore 
 been organized in this State with an aggregate of assets exceeding 
 $180,000,000. The magnitude and importance of the savings 
 bank interest seemed, he thought, to demand more intimate 
 guardianship and more careful supervision. In his message in 
 January, 1872, he alluded to a recent tendency to careless legisla- 
 tion regarding savings bank and other monied incorporations, an 
 evil so extensive that he had felt constrained to refuse his signa- 
 ture to 68 bills for the incorporation or increase of the powers of 
 all such institutions. 
 
 A ban had wisely been placed in 1846 upon State aid to pri- 
 vate enterprise, and the experience of intervening years had con- 
 vinced the commission that a like prohibition should be extended 
 to cities and other local subdivisions of the commonwealth. The 
 report of its committee on city, town and county indebtedness, 
 contained striking proofs of reckless abuse of power in the 
 creation of local obligations for future generations to pay. 
 There had been issued by the towns, cities and villages of the 
 State, in aid of railroads, bonds then remaining unpaid amount- 
 ing to $26,946,662.09;' the debt growing out of the recent civil 
 war was almost as large; for the erection of public buildings 
 obligations had been incurred amounting to more than $10,000,- 
 000; for roads, boulevards, streets, avenues and bridges, of 
 more than $36,000,000; for waterworks and fire apparatus, more 
 than $29,000,000, and for parks, local improvements and other 
 purposes, more than $84,000,000. The counties, cities, towns 
 and villages of the State were then staggering under the enor- 
 
 8. See Report of Hepburn Committee to the Legislature, 1880. 
 
 229 
 
LEGAL AND JUDICIAL 
 
 mous indebtedness of $214,344,676.58, or more than ten per 
 cent, of the assessed valuation of real and personal property 
 within the State, and the statistics were not quite complete. The 
 commission's conclusion was surely temperate that it was in- 
 deed time to impose restraint upon the power of municipalities 
 to incur debt, if disastrous financial results were to be avoided. 
 It therefore recommended the prohibition now contained, with 
 other restrictions, in section 11 of Article VIII. 
 
 The new section (11) which the commission proposed to add 
 prohibited every city, county, town or village from thereafter giv- 
 ing any money or property or loaning its credit in aid of any in- 
 dividual, association or corporation or from becoming directly 
 or indirectly the owner of stock or bonds of any association or 
 corporation and further prohibited every such county, city, town 
 or village from incurring any indebtedness except for county, 
 city, town or village purposes, the prohibition, however, not to 
 preclude provision for aid or support of the poor. This section 
 was approved by two legislatures and ratified by the people. It 
 added a new section (10) which overlaps section 9 of Article 
 VII. That section, introduced into the constitution in 1846, 
 prohibited the credit of the State from being given or loaned to or 
 in aid of any individual, association or corporation. Section 10, 
 Article VIII, declares in terms that neither the credit nor the 
 money of the State shall be given or loaned to or in aid 
 of any association, corporation or private undertaking, but that 
 the section shall not prevent the legislature from caring for the 
 education and support of the blind, the deaf and dumb and ju- 
 venile delinquents, noi- apply to any fund or property held or 
 to be hereafter held by the State for educational purposes. Sec- 
 tion II had become eminently necessary because of the latitud- 
 inary construction which the courts, particularly those of the 
 
 230 
 
HISTORY OF NEW YORK 
 
 United States, had given to the powers of municipaHties and 
 towns in the loan of their money and credit to railroads and 
 other private enterprises. Similar constitutional restrictions 
 were adopted about the same time in many other States. A new 
 section (9) was also added to Article X, providing that no offi- 
 cer whose salary is fixed by the constitution should receive any 
 additional compensation; that the compensation of other State 
 officers should be fixed by law, and neither increased nor di- 
 minished during their term; and that no State officer should re- 
 ceive to his use any fees or perquisites of office or other com- 
 pensation. Article III, relating to the oath of office, was also 
 amended. Despite the stringent oath now required from legis- 
 lators and the severe penalties enforced against all concerned in 
 bribery at elections, the offence continues to be common. 
 
 All of these amendments were subsequently approved by 
 two legislatures and ratified by the people. 
 
 The commission proposed two additional articles to the 
 constitution: Article XV and XVI. Article XV related to 
 municipal reforms. Article XVI related to bribery. This ar- 
 ticle (which resembles XIV, proposed by the convention of 
 1867) was adopted and is Article XIII of the present constitu- 
 tion. The article makes it a felony for any person holding office 
 under the laws of this State to receive any money except his 
 legal salary, or any fees or perquisites or anything of value or 
 of personal advantage or any promise of either, for the per- 
 formance or non-performance of any official act or upon the ex- 
 press or implied understanding that his official action is to be 
 influenced thereby. The article further provides that any per- 
 son who shall offer or promise a bribe, if it shall be received, 
 shall be deemed guilty of a felony and liable to punishment. The 
 briber shall not be privileged from testifying upon any prose- 
 
 231 
 
LEGAL AND JUDICIAL 
 
 cution of the officer for receiving such bribe ; but he shall not be 
 liable to civil or criminal prosecution for offering the bribe if he 
 shall testify to offering or giving it. Offering a bribe which 
 shall be refused is made a felony. The article also permits 
 either the briber or the bribed to testify in his own behalf in any 
 civil or criminal prosecution for the bribery. Provision is also 
 made that any district attorney failing to prosecute a person 
 amenable under this article shall be removed from office by the 
 governor, after due notice and an opportunity to be heard in his 
 defence. Expenses incurred in any county in investigating and 
 prosecuting any charge of bribery or attempt at bribery within 
 such county are made a charge against the State, and their pay- 
 ment by the State is required to be provided for by law. 
 
 The convention of 1867 expressly proposed that if a person 
 should offer a bribe, and it be accepted, he should not be liable to 
 civil or criminal prosecution therefor. The feeling in the conven- 
 tion was that convictions for bribery would never take place under 
 existing laws and it therefore concluded that the briber must be 
 absolutely immune if bribery was to be reached and punished. 
 The commission of 1872 was unwilling to go as far in leniency 
 towards the briber, but it relieved him from liability if he would 
 testify to the giving of the bribe, whereas no such immunity was 
 offered to the recipient of the bribe. It seems remarkable that 
 offering a bribe which shall be refused is by the constitution made 
 a more dangerous offence than to offer one which is accepted. 
 This article was approved by two legislatures and ratified in 1874.' 
 
 9. According to the Committee on Official Corruption in the con- 
 vention of 1867 corruption of legislators was common but extremely dif- 
 ficult to prove, owing to the immunity extended by the constitution to both 
 the giver and the recipient of the bribe. While legislative corruption was 
 the evil to be eradicated, a corrupt legislature could not be expected to 
 furnish the remedy: hence the people must supply it in the organic law. 
 In weighing the turpitude of the giver and the taker of the bribe, the 
 
 232 
 
HISTORY OF NEfF YORK 
 
 Section 1 1 of Article VIII was destined to further alteration 
 in the direction of restraint upon local powers of expenditure. 
 The legislature of 1874 did not accept in all their amplitude the 
 suggestions of the commission of 1872 upon this subject and agi- 
 tation for more thorough restriction continued. In 1881 the leg- 
 islature recommended an amendment to section 11 of Article 
 VIII — the section proposed by the commission of 1872 and rati- 
 fied by the people in 1874 — ^which amendment consisted in an ad- 
 dition forbidding any county containing a city of over 100,000 in- 
 habitants or any such city from contracting any indebtedness 
 which with its existing indebtedness should exceed ten per cent, of 
 the assessed valuation of the real estate of such county or city sub- 
 ject to taxation. This amendment was approved by succeeding 
 legislatures and was submitted for popular ratification in Novem- 
 ber, 1884, and became part of the constitution on January i, 
 
 latter might justly be considered the worse offender, for he violated both 
 his official oath and his trust. Since it was obvious that no conviction 
 could be had under the act of 1853 (Chapter 539, Laws of 1853) which 
 treated both classes of offenders alike, the constitution would have to ex- 
 culpate the successful briber, if the recipient of the bribe were to be pun- 
 ished. There was force in the cogent dissent of Martin I. Townsend who 
 regarded the act of 1853 as adequate, and thought that legislation of this 
 nature did not belong in the organic law. The discrimination which per- 
 mitted the briber to practice his nefarious trade he regarded as pernicious. 
 Much evidence suggestive of bribery had been taken by the Committee 
 under authority previously given it by the convention. Townsend de- 
 clared that it had not been the policy of the State to punish the seduced 
 and let the seducer go free. As he said later in debate: "Suppose the 
 owner of several great railroads were the sort of man to bribe the legis- 
 lature and should use the funds of his road to prevent just legislation ad- 
 verse to its interests, would it be safe and right to provide in the con- 
 stitution that he should incur no risk? Would it not be dangerous to say 
 in the organic law that the professional lobbyist who should be adrcrit 
 enough to carry out his objects should be guilty of no crime whatsoever? 
 Comstock, in supporting the article, said that only one of the two could be 
 found guilty, and which one is guilty depends upon the question wheth- 
 er the offence is consummated by the acceptance of the bribe. If it is, 
 then the person receiving the bribe is the guilty party, and if it is not, 
 he is not ; but if the offence is not consummated, then he who offered the 
 bribe is the guilty person and can be convicted." 
 
 After an experience of forty years with the existing provision, bribery 
 has not been stopped, but, it is feared, has alarmingly increased. 
 
 "33 
 
LEGAL AND JUDICIAL 
 
 1885. But curtailment of local power over local moneys was not 
 yet at an end, and section 1 1 was again amended, this time by the 
 constitutional convention of 1894, which changed the number 
 of the section, making it number 10. The amendment of 1885 
 was limited to a county containing a city of upwards of 100,000 
 inhabitants, or to a city of like dimensions. The amendment of 
 1894 was more general, and forbade every county and city from 
 incurring indebtedness exceeding ten per cent, of the assessed 
 valuation of its real estate subject to taxation. Other amend- 
 ments have been made to this section, which relate especially to 
 the debts to be eliminated in the computation of the ten per cent, 
 indebtedness, and as these chiefly affect cities and particularly the 
 city of New York, an allusion to them will be reserved for a later 
 chapter. 
 
 Thus, through the agency of the constitutional commission 
 acting as an aid to the legislature, many of the excellent sugges- 
 tions of the convention of 1867 ultimately entered the organic 
 law of the State. This beneficent result was largely due to Gov- 
 ernor Hoffman, originator of the plan for a constitutional com- 
 mission. The antipathy of his party to the work of the late 
 convention had been emphatically declared in the platform of the 
 Democratic State Convention in 1869, which had resolved that the 
 "amended constitution of the State, with its various schedules for 
 submission to the electors, did not commend itself to the favor of 
 the Democrats of the State either by the motives in which it was 
 conceived or by the manner in which it was presented, or by its 
 intrinsic worth" ; but the governor rose superior to party consider- 
 ations in his treatment of the subject, and thus rescued much of 
 the splendid labors of the convention from utter defeat. 
 
 The commission of 1872 was an innovation in constitutional 
 evolution in this State. The experiment of an intermediate body 
 
 234 
 
HISTORY OF NEW YORK 
 
 summoned into being to advise and report to the legislature upon 
 constitutional reform had never before been tried in its history. 
 But the device proved so successful that it was again employed 
 in 1890. Commissions of this nature are likely to contain men of 
 higher talent, wider learning and greater constitutional knowl- 
 edge than the ordinary legislator possesses, and, as their number 
 is small, their deliberations may be conducted with more order 
 and advantage than attend the proceedings of a large convention. 
 Judge Jameson has questioned the constitutionality of amend- 
 ments originating in commissions not expressly provided for in 
 the organic law ; but there does not seem to be any valid objection 
 to the creation of such bodies, because their work is futile if not 
 accepted by the legislature, and, when so accepted, it becomes in 
 effect the work of the legislature as completely as though it had 
 originated with it. The argument carried to an extreme would 
 prevent any suggestion to the legislature from an outside source 
 respecting the propriety of an amendment and a commission so 
 constituted exercises no more coercion over a legislature than the 
 public sentiment to which all commissions and legislatures are or 
 should be alike sensitive and alike amenable. 
 
 23s 
 
CHAPTER XII 
 
 NEW YORK AND ALBANY ONLY CITIES MENTIONED IN CONSTITU- 
 TION OF 1777 — FREEDOM OF THE CITY CITIES OF THE STATE 
 
 FEW IN NUMBER IN 1846 HOME RULE INSTINCT AS OLD AS 
 
 CIVILIZATION EARLY AMERICAN CITIES LIKE ENGLISH PROTO- 
 TYPES NEW YORK CITY CHARTERS, DUTCH AND ENGLISH — 
 
 DONGAN CHARTER CITY CHARTER OF 183O AND ITS DEFECTS — 
 
 CHARTER OF 1849 LEGISLATIVE USURPATION OF CITY GOVERN- 
 MENT IN 1857, REASON THEREFOR, AND RESULTS — TWEED 
 
 CHARTER OF 187O CHARTER OF 1873 — ^ATTENTION FIRST 
 
 FOCUSSED ON CITY MAL-ADMINISTRATION AFTER CIVIL WAR — 
 TREATMENT OF CITY PROBLEMS BY CONVENTION OF 1867, AND 
 COMMISSION OF 1 872. 
 
 The only cities mentioned in the constitution of 1777 are 
 New York City and Albany, and this reference was necessary to 
 prevent a denial to freemen of either city of the right to vote for 
 assemblymen. During the colonial period, all but the freemen of 
 a borough or city were usually excluded from the practice of any 
 art, trade or occupation within its limits ; in New York City and 
 Albany, freemen alone were allowed to be merchants, traders or 
 shop-keepers, and equally with property holders freemen were 
 voters, and were qualified to hold corporate office. When the 
 convention of 1821 sat, cities were few in number, and such as 
 then existed enjoyed special charters. In the convention of 1846 
 the subject of municipal government received scant attention; the 
 meager outcome of its brief discussion in the final days of its ses- 
 sions was embodied in the provision (Sec. i. Art. VIII) that cor- 
 
 236 
 
HISTORY OF NEW YORK 
 
 porations might be formed under general laws, but should not be 
 created by special act except for municipal purposes, and in cases 
 where, in the judgment of the legislature, the objects of the cor- 
 poration could not be attained under general laws. Only nine 
 cities had been incorporated in this State down to 1846; the 
 number since has been greatly multiplied. The problem of the 
 city may fairly be said to have arisen in this State since the close 
 of that convention. 
 
 Cities are as old as civilization. In Greece, nearly every city 
 was an independent sovereignty. Cities under ancient Rome 
 possessed more or less completely the right of self-government, 
 and in the days of the empire, while they were more essentially 
 parts of the vast political organism, were as to local affairs treated 
 like autonomous communities. Their privileges in some instances 
 survived the decadence of the empire, and when feudalism spread 
 throughout Europe they became the recipients of special charters 
 exempting them from customary feudal obligations. These char- 
 ters, says Chancellor Kent, were cherished by their inhabitants as 
 "invaluable barriers against the insecurities and oppression of the 
 feudal system." In England the first municipal charter appears 
 to have been granted to the city of Kingston-upon-Hull, in 1429. 
 The rights which cities came to enjoy were, according to Bishop 
 Stubbs,^ "free election of magistrates, independent exercise of 
 jurisdiction in their own courts and by their own customs and the 
 direct negotiation of their taxation with the officers of the ex- 
 chequer". The character of these grants is somewhat nebulous, 
 but such privileges as they conferred were defended with vigor 
 against the sovereign and the noble. The love of home rule, the 
 instinct for self-government, seems to be as old as civilization. 
 
 The first American municipalities, according to Cooley, "were 
 
 I. "Constitutional History of England," vol. I, p. 628. 
 
 237 
 
LEGAL AND JUDICIAL 
 
 formed in the likeness of their British archetype". Like the 
 English municipal corporation, the early American city was 
 mainly an organization for the satisfaction of purely local needs, 
 which were then few and simple; executive and judicial func- 
 tions were usually merged in the same set of officers, and it was 
 seldom that the city had the power to levy taxes for local pur- 
 poses.^ 
 
 _ 2. Even in colonial days, the legislature was reluctant to give the 
 city power to levy local taxes. In Dutch times the city of New Amster- 
 dam had its own revenues, which often rendered resort to direct taxation 
 unnecessary. Improvements were paid for by special assessments. The 
 method of special assessment seems to have been introduced in 1657 for 
 the pavement of what now constitutes Stone street, the first street 
 in New Amsterdam to be paved. Under early English rule the 
 city's revenues were frequently adequate to pay the charges imposed 
 upon the public, and to render unnecessary any direct property tax. After 
 the provincial assembly was established in 1691, taxes for municipal pur- 
 poses were levied only by its special permission, and up to about 1750 such 
 legislation was rarely necessary, as the city revenues usually sufficed to 
 meet its annual bills. Its income came from its ferries, its dock, tavern 
 licenses, special license charges to merchants and handicraftsmen, and 
 other miscellaneous sources; its expenditures for salaries, repairs of pub- 
 lic buildings and property, and repair of the common sewer, were made 
 out of its income. The lighting and cleaning of the streets had to be 
 done by the citizens themselves, and improvements were defrayed by 
 special assessments. After the Revolution, the State legislature followed 
 the precedent set by the colonial assembly in granting authority to levy 
 taxes for local purposes year by year as the city needed the power, and 
 in 1813 the same power to levy taxes for local purposes was conferred 
 upon it as was bestowed upon supervisors of counties. The machinery 
 of assessment for taxation and of taxation is provided by Chapter 86 
 of the session laws of that year. By Chapter 262, Laws of 1823, the 
 supervisors of the different counties were required to meet on the first 
 Tuesday of October in every year and examine the several assessment 
 rolls of the several towns within the county, and the mayor, recorder 
 and aldermen of the city of New York were required to perform all 
 the duties enjoined upon supervisors of counties, which included the power 
 of levying taxes. Chapter 83, Laws of 1825, provided that the mayor, 
 recorder and aldermen of the city of New York should be supervisors of 
 the city, and as such annually meet on the third Tuesday of August at 
 the City Hall to examine the assessment rolls, equalize and correct valua- 
 tions, and thereafter lexy taxes. From about this time down to and 
 including 1852, the legislature seems annually to have authorized the city 
 authorities acting as county officials, to raise by tax a sum not in excess 
 of an amount fixed in the act, in order to defray the various expenses 
 legally chargeable to the city and county. In 1853 the legislature began 
 to supervise appropriations with far more minuteness. Chapter 232 of 
 
 238 
 
HISTORY OF NEW YORK 
 
 The first charter of New Amsterdam came from the Dutch 
 government February 2, 1654, and partakes of the nature of the 
 Uberal charters theretofore granted to cities in the Netherlands. 
 Upon the surrender of the fort to the English August 27, 1664 
 (O. S.), Colonel Nicoll gave its inhabitants under the corporate 
 name of the mayor, aldermen and sheriff a new charter which 
 recognized their former privileges. The Dongan charter, in 
 which New York is described as "an ancient city," in turn con- 
 firmed all the rights which the city had enjoyed by its Dutch 
 name of Schout, Burgomasters and Schepens of New Amster- 
 dam, as well as all more recent grants under British rule, con- 
 ferred upon it ownership of all waste, vacant, unpatented and 
 unappropriated lands within the city and upon Manhattan Island 
 —the sale of which lands was to be a source of revenue to the 
 city — extended its jurisdiction to low water mark upon both the 
 Long Island and the Jersey shore ; authorized a government by a 
 mayor, recorder, town clerk, six aldermen and six assistants 
 under the name of the mayor, aldermen and commonalty of the 
 city, in whom was vested power from time to time to make, 
 amend and alter laws and ordinances so long as they should not 
 be repugnant to the laws of England or of the provincial assem- 
 bly, which laws were to be binding for the space of three 
 months and no longer, unless confirmed by the governor and 
 council. The mayor and also the recorder were annually to be 
 appointed by the lieutenant-governor, and the aldermen and their 
 assistants chosen by a majority of the votes of those inhabitants 
 of each ward qualified to vote. This charter, which bestowed a 
 
 that year provided that the board of supervisors should be empowered 
 to order and cause to be raised by tax and to be collected according to 
 law "a sum not exceeding $2,354,925, for the objects and purposes fol- 
 lowing, to wit" — which was followed by a long detailed specification of 
 the items of appropriation. Legislative appropriations and authorizations 
 of tax levies continued until about 1873. 
 
 239 
 
LEGAL AND JUDICIAL 
 
 large measure of self-government upon the city, was confirmed 
 by the Montgomerie charter of 1730; both charters were con- 
 firmed by an act of the colonial assembly in 1732 ; and the first 
 constitution of the State, as has been noted, expressly saved from 
 abrogation all charters to bodies politic made by authority of 
 George III. or his predecessors. 
 
 For a considerable period after the adoption of the first 
 constitution, and down to the year 1853, changes in the charter 
 of New York City were made upon the initiative of the qualified 
 voters of the city, through the medium of charter conventions, 
 the members of which were elected by city voters. Few statutes 
 affecting only the aflfairs of the city of New York passed by the 
 legislature in that interval took effect until they had been ap- 
 proved by popular referendum. Thus, in 1829, delegates to a 
 convention to amend the city charter were chosen by voters of the 
 city from its fourteen wards. This convention, which numbered 
 in its membership such distinguished men as John Hone, John 
 Duer, Philip Hone, Gulian C. Verplanck and Peter A. Jay assem- 
 bled on June 23, 1829, and produced a charter which was sub- 
 mitted to the people of the city at a special election and approved 
 by them. This municipal organic law passed the legislature un- 
 changed.' When it is contrasted with modern city charters its brev- 
 ity is striking ; it contains only twenty-six sections, many of which 
 are short. It vested the "legislative power" in a bicameral council 
 — the Board of Aldermen and the Board of Assistant Aldermen 
 — fixed the date for the election of charter officers as the second 
 Tuesday of April, and the date of their entry into office as the 
 second Tuesday of May, 1830; and provided that the executive 
 business of the corporation should be performed by departments 
 organized and appointed by the common council. It retained 
 
 3. Chapter 122 of the Laws of 1830. 
 
 240 
 
HISTORY OF NEW YORK 
 
 intact all parts of the time-honored colonial charters not incon- 
 sistent with its express provisions. Its legislature of two houses 
 was quite naturally modeled after the Federal Congress, and the 
 State senate and assembly, and the mayor's qualified veto was 
 similar to the veto given the governor under the constitution of 
 1821. The convention proposed that the mayor should be elected 
 by the voters of the city instead of by the common council, as 
 the constitution then required, but his election by citizens was not 
 brought about until the constitutional amendment of 1834 took 
 effect. 
 
 The charter of 1830 failed to realize the expectations of its 
 framers. Its chief defect was that it clothed the common council 
 with executive power — a power which in its ability to select heads 
 of departments it continued to enjoy even after the mayor came 
 to be elected by the people, in 1834. This was effected through 
 the provision that the executive business of the city should be 
 performed by distinct departments to be organized and appointed 
 by the council. Thus, aldermen and assistants were able through 
 their committees and departments to control even the minutiae 
 of administration, the "very name of 'executive committees,' 
 which these officially retained, showing how little they confined 
 themselves to legislative functions."^ The executive had merely 
 a shadow of authority; he could recommend, but do Httle more; 
 whereas nearly all substantial power was centred in the common 
 council. After nineteen years this evil was remedied, but unhap- 
 pily there followed others born of over-confidence in the wisdom 
 of the sovereign people. The right of citizens to frame their own 
 charter through delegates of their own selection was, however, 
 again expressly recognized, as it had been in 1830. The legisla- 
 
 4. "History of New York City Finances," by Edward Dana Durand, 
 page 60. 
 
 241 
 
LEGAL AND JUDICIAL 
 
 ture of 1846 passed a law^ providing for an election in the city 
 on the first Monday of June of that year for the choice of dele- 
 gates to a county convention empowered to frame a new charter 
 or amend the existing one. The delegates were required to meet 
 on the first Monday of July, and to complete their business in 
 time to allow the submission to the electors of the city and county 
 of New York at the succeeding November election, of any charter 
 or amendments formulated by them. Delegates were accordingly 
 chosen, and the city convention assembled in the city almost 
 simultaneously with the meeting of the State constitutional con- 
 vention at the capital. The new charter was not approved by the 
 local electorate, partly because of absorbing interest in the Mexi- 
 can war, and partly because of public pre-occupation with the 
 work of the State constitutional convention; but in 1849 the 
 legislature amended the charter along lines proposed by the city 
 convention of 1846. The Democratic sentiment of the time in- 
 sisted upon the election by manhood suffrage not only of the 
 mayor and the common council, but also of the heads of the 
 various executive departments, which under the charter of 1830 
 had been controlled by committees of the common council. The 
 most revolutionary feature of the legislation of 1849 was the 
 creation of executive departments, the heads of which were to be 
 elected for short terms. The act provided that the new charter 
 should be submitted for approval to the electors of the city and 
 county of New York at an election to be held on the second Tues- 
 day of April, 1849, and that in case of its approval by a majority 
 of the electors it should go into effect on June first of that year. 
 By a popular vote the new charter was approved. 
 
 The charter of 1849 was almost as succinct as that of 1830. 
 It vested all executive power in the mayor and heads of depart- 
 
 5. Chapter 172, Laws of 1846. 
 
 242 
 
HISTORY OF NEW YORK 
 
 ments, and forbade the common council and its committees from 
 exercising executive functions. The executive departments were 
 single-headed, with the exception of the Croton Aqueduct Board, 
 which was established on May 2, 1834, as a state board to secure 
 a supply of water for the city from the Croton region. Contracts 
 for work and supplies the charter required to be let by depart- 
 ment heads under regulations to be prescribed by the common 
 council. It expressly repealed the charter of 1830. 
 
 The change in city government effected in 1849, which was 
 approved by" a popular vote of 19,339 i" f^^or and of only 1,478 
 against it, was seemingly not inspired by party motives. The 
 charter of 1849 was amended in 1853, but not without popular 
 approval, for the act containing the proposed amendments re- 
 quired the submission to the electorate of the question whether 
 they should be incorporated in the city's organic law. The alter- 
 ations made in 1853 grew out of public revolt against corruption 
 in the grant of city railway franchises, the most important reform 
 of this year being the provision requiring all franchises, as well as 
 all leases of ferries, docks, slips and piers, to be offered at public 
 auction to the highest bidder giving adequate security. 
 
 But an extraordinary revolution in legislative treatment of 
 the city was to be witnessed inside of four years. The slavery 
 question had assumed portentous prominence, and the conflict 
 which Seward in 1858 declared to be irrepressible, was felt to be 
 impending. The Republican party, which controlled the State 
 government, was ardently opposed to the extension of the south's 
 peculiar system into the new territories of the nation ; while New 
 York City, which was Democratic by a large majority, contained 
 many sympathizers with extreme pro-slavery views. Both parties 
 were deeply interested in success in the coming State and national 
 elections ; the city's officials did not command the confidence of its 
 
 243 
 
LEGAL AND JUDICIAL 
 
 better citizenship, and, in the tenseness of feeling and prejudice. 
 Republicans were naturally eager to seize any tactical advantage, 
 when apparently sound reasons existed for curbing the power of 
 a Democratic administration. So unsatisfactory and even cor- 
 rupt had been the management of the city's affairs, so insecure 
 property and even life within its borders, that the Republican 
 State government felt impelled to intervene. Hope of party ad- 
 vantage may have prompted its action, but its legislation had 
 strong backing in public sentiment. Nevertheless, this legislation 
 was not carried into operation without tumult and bloodshed, nor 
 without intelligent opposition, for it involved nearly complete sub- 
 version of the principle of home rule, until then almost unbroken- 
 ly acknowledged. The city charter was radically altered; the 
 election of all department heads except the corporation counsel 
 and the comptroller, was taken from the people and their ap- 
 pointment given to the mayor, upon confirmation by the common 
 council ; the city government was separated from the county gov- 
 ernment and a board of supervisors created to levy local taxes, 
 canvass the vote, and perform other county duties.^ For the 
 ward, the old unit of an aldermanic election, was substituted an 
 arbitrary district so gerrymandered as to increase the strength of 
 the Republicans in the board of aldermen. Councilmen were to 
 be elected from senatorial districts. Charter elections were to 
 take place on the first Tuesday in December. The control of 
 the police system was taken from the city ; a metropolitan police 
 district, in imitation of the London system, was established, and 
 there was created a police board, appointments to which were 
 made at Albany. Later, the government of thb new Central Park 
 was vested in a state commission, and a metropolitan fire district 
 and a health district also were formed. These changes in 
 
 6. See Chapters 446, 569, 59°. Laws of 1857. 
 
 244 
 
HISTORY OF NEW YORK 
 
 the charter in effect removed the administration of the city's 
 affairs from the City Hall to the Capitol, but the transfer of 
 power was not accomplished without controversy in the courts, 
 and the case of the People v. Draper et al (15 N. Y., 532) became 
 a notable landmark in the centralization of city government at the 
 capital. 
 
 In order to sustain the constitutionality of the law, the Court 
 of Appeals in the Draper case was obliged to hold and did hold 
 that the legislature might constitutionally establish new civil di- 
 visions of the State embracing the whole or parts of different 
 counties, cities, villages or towns for general purposes, permanent 
 or temporary, of civil government, provided the divisions recog- 
 nized by the constitution were not abolished nor their capacity im- 
 paired to subserve the purposes and arrangements to which they 
 were made instrumental by the constitution. Chief Judge Denio, 
 author of the prevailing opinion, admitted that the legislature could 
 not abolish counties, cities or towns, since these were indispensable 
 subdivisions of the State government, but nothing in the consti- 
 tution, he declared, required that these local divisions should 
 always possess the same measure of administrative power. Jus- 
 tice Brown, who had been a member of the State constitutional 
 convention of 1846, cogently argued for the minority that these 
 civil divisions of the commonwealth were "coeval with the govern- 
 ment" and that they were as much beyond the pale of legislative 
 abrogation as though their destruction had expressly been pro- 
 hibited. 
 
 The. Albany legislature ruled the city with an iron hand for a 
 number of years after 1857. It not only levied taxes within the 
 city, but fixed all details of the city budget, and made minute ap- 
 propriations of the city's money. Reaction set in with the election 
 to the governorship of John T. Hoffman, who, in his first message 
 
 245 
 
LEGAL AND JUDICIAL 
 
 to the legislature in 1869, denounced the system of government of 
 the city by legislative commissions, and recommended its repeal. 
 The plain spirit of the constitution, he contended, had been vio- 
 lated in the creation by the legislature of geographical divisions 
 not recognized in the organic law, and, vfhile by a bare majority, 
 the highest judicial tribunal had upheld the legislation, he charged 
 it "to have been a partisan contrivance for power, and, if not an 
 open violation, at least an evasion of the constitution", whose 
 effect was "to give to the political minority in these districts the 
 power of governing the majority." 
 
 The city charter of 1870, commonly known as the Tweed 
 charter, was fundamentally sound in rescuing the city from gov- 
 ernment at the State capital, although the powers restored to the 
 people were abused by the officials to whom they were entrusted.' 
 
 7. It may seem like a condemnation of the home rule theory that a 
 charter of such admirable character as to meet with general approval in 
 the press of the time, should have been immediately followed by the 
 rise of the Tweed ring. It was not the charter, but other legislation 
 secured by the ring, which enabled it to enrich its members beyond the 
 dreams of avarice, and increased the city debt in a few years to $50,000,000. 
 Coincidently with the procurement of the charter, the ring obtained the 
 passage of legislation abolishing the county board of supervisors estab- 
 lished in 1857, and transferring to the mayor, recorder and aldermen 
 the powers of that odious bi-partisan board. Legislation was obtained 
 authorizing the mayor, comptroller, and president of the board of super- 
 visors (a position occupied by Tweed) to audit the county liabilities and 
 issue revenue bonds for their payment, — a process by which $6,413,737 of 
 county liabilities, in large measure fictitious, was audited by a board 
 which never met; and new bonds were accordingly issued. There was pro- 
 cured, also, legislation for the consolidation of the city and county debt, 
 and the refunding of this debt by the issue of thirty year stock, and 
 further legislation by which the money spenders were placed in the new 
 board of estimate and apportionment ; also laws changing the grade of 
 Ninth avenue; establishing a board of street openings; and authorizing 
 the widening of Broadway, Sixth avenue, Seventh avenue, St. Nicholas 
 avenue, and the repaving of numerous streets. By some of this legisla- 
 tion, unprecedented powers were conferred upon the commissioner of 
 public works. Improvements in the water supply system received legis- 
 lative sanction, and unnecessary mains were ordered to be laid. The 
 gigantic operations of the ring were not the fruit of the new charter, 
 but the direct consequences of the evil habit, begun in 1857, of constant 
 legislative intervention in city affairs. It was the numerous, compli- 
 cated and sometimes overlapping measures passed in 1870 and 1871, which 
 
 246 
 
HISTORY OF NEW YORK 
 
 In this year the Democrats had a majority in the legislature and a 
 governor of their own faith at Albany. By the charter aldermen 
 were to be elected upon a general ticket through the city at large, 
 and assistant aldermen were to be chosen in assembly districts ; 
 all heads of departments other than finance and law were to be 
 appointed by the mayor, and confirmation by the common council 
 was dispensed with ; a department of public works was created 
 with a commissioner of public works at its head; the December 
 city elections were abandoned, and all city elections thereafter 
 directed to be held in November. The county board of super- 
 visors was abolished, important tax legislation enacted, and an 
 entirely new board called the Board of Estimate and Apportion- 
 ment* created, to which the department heads were required to 
 submit their annual estimates and which was charged with the 
 duty of making up the city budget ; while to meet appropriations 
 thus authorized the common council was permitted to levy taxes. 
 Thus there was restored to the city the power of levying taxes 
 which it originally enjoyed in a limited degree, and of which for 
 three generations it had been deprived ; and the ability of the leg- 
 islature to delegate this authority was subsequently upheld in the 
 courts.' 
 
 The evils of ring misrule led in 1872 to the draft of a charter 
 by the Committee of Seventy, which was passed by the legislature, 
 but vetoed by Governor Hoffman, mainly upon the ground that 
 
 enabled the ring to acquire apparently absolute control of the city govern- 
 ment and its finances ; and all this legislation, by which the ring attained 
 the height of its power, was, as was clearly revealed in testimony at the 
 time, the result of legislative corruption. The Tweed regime, there- 
 fore, IS to be attributed to the policy of legislative interference with the 
 city, and not to the evils of the Tweed charter. 
 
 8. This board has since played a most important part in city gov- 
 ernment; Its powers have from time to time been enlarged and it may 
 ultimately become the vehicle for the evolution from the mayoral system 
 mto the commission system of government. 
 
 9. Townsend v. Mayor, etc., of N. Y., 16 Hun. 362. 
 
 247 
 
LEGAL AND JUDICIAL 
 
 the principle of minority representation which that charter 
 proposed to employ in the election of certain city officers, was 
 unconstitutional. A cardinal defect in the proposed charter, as 
 the governor said, was its creation of a mayor without real exec- 
 utive responsibility; it lodged the power of appointment in the 
 common council. In the succeeding year (1873) there was passed 
 a new law, a species of compromise between the Tweed charter 
 of 1870 and the charter drafted by the Committee of Seventy,^' 
 and it remained in operation with few changes until the creation 
 of Greater New York in 1897. 
 
 In the period following the Civil War, attention became 
 concentrated upon the evils of city government, and public feeling 
 in New York City rose to fever height after the disclosures of 
 1 87 1. The long era of misgovernment in that city had culminated 
 in the criminal peculations of the Tweed ring, but misgovernment 
 was not confined to the metropolis alone. The speculative spirit 
 engendered during the Rebellion, and the lowered moral stand- 
 ards usually consequent upon a period of war, had led to general 
 corruption in the affairs of cities, while the concentration of pub- 
 lic attention upon national questions had secured municipal 
 wrong-doers a certain degree of immunity. The dangers to city 
 government that would flow from the naturalization and admis- 
 sion to citizenship of hordes of ignorant immigrants from Europe, 
 and the advantage that such numbers would give to corrupt lead- 
 ership, were dimly appreciated as far back as 1846. In. the con- 
 vention of that year, Henry C. Murphy earnestly advocated the 
 passage of a constitutional requirement for the incorporation of 
 cities under general laws, — a requirement adopted in Ohio, but 
 not altogether successfully, in 185 1. Murphy's views met with 
 little favor in the convention. City misgovernment and its causes 
 
 10. Chapter 335, Laws of 1873. 
 
 248 
 
HISTORY OF NEW YORK 
 
 and remedies aroused warm debate in the convention of 1867, 
 and the legislation placing the police under state control was bit- 
 terly attacked, though as strongly defended. Martin I. Town- 
 send with much justice declared in that body that but for the 
 efficiency of the metropolitan police the draft riot of July, 1863, 
 might have culminated in revolution. The Democrats of the con- 
 vention urged the abrogation of all legislative commissions, but 
 failed to carry a majority of the convention with them. The com- 
 mittee on cities was divided in sentiment; while nearly all favored 
 the passage of general legislation for the incorporation of cities, 
 a minority under the leadership of ex-Mayor Opdyke urged as a 
 remedy some restriction upon the suffrage in the selection of 
 officials having charge of the expenditure of city moneys. The 
 convention decided to report amendments to Article VII of the 
 constitution, one of these amendments delimiting the powers 
 of boards of supervisors, another defining the powers of mayors, 
 and a third prohibiting the enactment of special laws for the or- 
 ganization and government of municipalities, save where the ob- 
 ject to be attained could not in the judgment of the legislature 
 be effected by general legislation. 
 
 The constitutional commission of 1872, which was a much 
 smaller body than the convention of 1867, but made up equally 
 from the two political parties, approved of a constitutional amend- 
 ment in shape of a municipal article containing five sections. Sec- 
 tion I provided for the choice by the electors of every city in this 
 State of a mayor as the chief executive officer, charged with 
 power to nominate and with the consent -of the board of aldermen 
 to appoint the heads of executive departments, and with power 
 to investigate their acts and all books and documents in their 
 offices, and to examine them and their subordinates under oath. 
 He was empowered also to suspend or remove the heads of de- 
 
 249 
 
 IT 
 
LEGAL AND JUDICIAL 
 
 partments for misconduct in office or neglect of duty, but was 
 obliged to specify the misconduct or neglect in the order of sus- 
 pension or removal. He was given a power of veto over acts of 
 boards of aldermen like that possessed by the governor under the 
 constitution over the acts of the legislature, and boards of 
 aldermen were invested with power of reconsideration and enact- 
 ment, after a mayor's veto, analogous to that possessed by the leg- 
 islature over bills vetoed by the governor. Section 2 provided 
 that heads of departments might appoint and remove their sub- 
 ordinate officers. 
 
 Section 3 is as follows : 
 
 "The local government of every incorporated city shall be vested 
 in a mayor and a board of aldermen. Aldermen shall be chosen by dis- 
 tricts or wards, not more than three from each district or ward ; and the 
 whole number of aldermen shall not be less than one to every fifty thou- 
 sand of population. There shall also be a board of audit of not less 
 than five nor more than eleven members. They shall be electors of the 
 city, and shall be chosen by general ticket, by such electors thereof as 
 shall have paid, individually, in the year previous to the election, a tax 
 on property ofiicially assessed for taxation at not less than two hundred 
 and fifty dollars. The assent of such board of audit, by the vote of a 
 majority of all members elected thereto, shall be necessary to every 
 resolution, ordinance or other proceeding of the board of aldermen involv- 
 ing the auditing of claims and accounts, the expenditure of money, the 
 contracting of debts or the levying of taxes and assessments; and the 
 board of audit shall be clothed with no other power." 
 
 Section 4 is as follows : 
 
 "The government of every city shall have, within its own boundary, 
 exclusive lepslative power in all matters relating to taxation and expen- 
 diture for local purposes, the care, regulation and improvement of its 
 streets, avenues, public grounds and public buildings, of its supply and dis- 
 tribution of water, of its almshouse and its other charitable and benevo- 
 lent institutions, and may exercise such further powers as shall be con- 
 ferred by law". 
 
 Section 5 required the legislature at its first session after the 
 
 250 
 
HISTORY OF NEW YORK 
 
 adoption of the new article to enact a general law for the govern- 
 ment of cities in harmony with its terms. 
 
 The municipal article approved by the commission of 1872 
 did not meet with the acceptance of the legislature to which it was 
 submitted, nor did it obtain the approval of any subsequent leg- 
 islature; hence the people were never called upon for their 
 opinion of its merits or unwisdom. 
 
 Under a general law for the creation of cities, the legislature 
 might escape "the swarms of local bills forced upon its attention 
 at every session", and the constant alteration of city charters 
 might cease, with gain to home rule ; yet despite these advantages, 
 a stage in which a satisfactory general law for cities of the first 
 class might be framed had not then been reached. The con- 
 servatism shown in legislative disinclination to adopt this article 
 was wise. It would have been a mistake for the legislature and 
 the people to have accepted it, even had it been rid of the some- 
 what undemocratic provision urged by Opdyke both in 1869 and 
 1872, and subsequently indorsed by the Tilden commission of 
 187s,— that city officers charged with the spending of city moneys 
 should be chosen only by owners of property. The minimum 
 valuation suggested by Opdyke in 1867 was $1000; in 1872 he re- 
 duced it to $250. 
 
 The municipal article drafted by Opdyke, in providing for 
 the choice of a mayor as the chief executive officer of every city 
 of the State, covered the same subject as the constitutional 
 amendment of 1839, and was unnecessary. The idea of fettering 
 the mayor's power of nominating or removing heads of executive 
 departments was erroneous. Governor Hoffman in several of his 
 annual messages had advanced beyond this now generally dis- 
 credited theory of limited mayoral responsibility, for he urged 
 that the mayor should have the amplest power of appointment 
 
 251 
 
LEGAL AND JUDICIAL 
 
 and unrestricted power of removal, and such has been the trend 
 of recent legislation for the cities of the State. In his first mes- 
 sage Hoffman affirmed that good government could not be secured 
 to any great city unless it had one responsible head, vested with 
 all executive power, to whom, as the elected representative of the 
 people, all departments charged with executive duties should be 
 directly and summarily responsible and accountable.^ In his 
 second message he said : "I believe this to be the very foundation 
 stone of a good structure of municipal government." In his mes- 
 sage of January 2, 1872, he advocated "fixing the responsibility 
 for good administration upon the mayor; and to this end giving 
 him full power of appointment and removal of all heads of de- 
 partments except the police." The article advocated by the com- 
 mission of 1872 would have enabled heads of departments to 
 appoint and remove their subordinate officers. Had this been 
 ratified, the Civil Service Law of 1883 might have been unconsti- 
 tutional, and reform of the civil service perhaps belated until its 
 incorporation into the constitution of 1895. The scheme to limit 
 the franchise was chimerical, and would alone have insured the 
 defeat of the article. 
 
 II. Messages of Governor Hoffman, pp. 26, 96. 
 
 252 
 
CHAPTER XIII 
 
 TILDEN COMMISSION — ITS ADVOCACY OF LIMITED SUFFRAGE IN 
 CITIES — SUMMARY OF ITS PLAN FOR IMPROVING CITY GOV- 
 ERNMENT — FAILURE IN LEGISLATURE — CONVENTION OF 1894 
 
 DIVORCED CITY FROM STATE AND NATIONAL ELECTIONS ITS 
 
 NEW MUNICIPAL ARTICLE — GENERAL AND SPECIAL CITY LAWS 
 — MUNICIPAL REFORM REMAINS EMBRYONIC — ^DUAL FUNC- 
 TIONS OF THE CITY — MUNICIPAL PROGRAM OF NATIONAL MU- 
 NICIPAL LEAGUE — CONCLUDING CONSIDERATIONS OUTLOOK 
 
 FOR FUTURE HOPEFUL. 
 
 Municipal reform, although a prominent feature of the work 
 of the constitutional commission of 1872, had suffered a seem- 
 ing failure in the refusal of the legislature to submit the pro- 
 posed municipal article^ to the people in 1874; but the subject was 
 soon to be urged by a statesman of large theoretical and prac- 
 tical experience, one who had been a member of the constitutional 
 conventions of 1846 and 1867— Samuel J. Tilden. After his elec- 
 tion to the chief magistracy of the State, he submitted to the 
 legislature a special message relating to cities. It stated that the 
 convention of 1846 had accomplished nothing for municipal 
 reform beyond adopting on the last day of its session a provi- 
 sion devolving upon the legislature the duty of enacting laws to 
 protect municipalities against excessive taxation and financial 
 evils similar to those which afflicted the State at large prior to 
 1846. After alluding to the fact that, far from discharging 
 
 I. Page 249. 
 
 253 
 
LEGAL AND JUDICIAL 
 
 this constitutional obligation, the legislatures had in reality acted 
 in direct opposition to their duty, and after adverting to the 
 alarming increase in the debts of some of the leading cities in the 
 State, the governor suggested the appointment of a commission 
 to be charged with the duty of framing some permanent uniform 
 plan for the government of the cities of the State. The message 
 sought to indicate the true sphere of independent city authority. 
 "In the most completely developed municipality", "it embraced 
 the care of police, health, schools, street cleaning, prevention of 
 fires, supplying water and gas, and similar matters, most con- 
 veniently attended to in partnership by persons living together in 
 a dense community, and the expenditure and taxation necessary 
 for those objects. The rights of persons, property and the ju- 
 dicial systems instituted for their preservation — general legisla- 
 tion — government, in its proper sense; these are vast domains 
 which the functions of municipal corporations and municipal 
 officers do not touch." 
 
 The message was presented to the legislature on May 22, 
 1875. On the same day a concurrent resolution was adopted by 
 the two houses, authorizing the governor to appoint a commis- 
 sion, to consist of not more than twelve persons, "whose duty 
 it should be to consider the subject referred to in said message, 
 to devise a plan for the government of cities, and to report the 
 same to the next legislature." The members of the commission, 
 selected equally from the two great political parties, were William 
 M. Evarts, Samuel Hand, Edwin L. Godkin, Edward Cooper, 
 Martin B. Anderson, John A. Lott, Oswald Ottendorfer, William 
 Allen Butler, Simon Sterne, Joshua M. Van Cott, Henry F. 
 Dimock, and James C. Carter, all of whom save President An- 
 derson of Rochester University accepted the appointment. With 
 the exception of Ottendorfer, Godkin, Cooper and Dimock, all 
 
 254 
 
^..-,— "--^H ..-«'**" 
 
 HISTORY OF NEff YORK 
 
 were publicists and lawyers of eminence, and the high qualifica- 
 tions of Godkin, for years editor of the Nation, and of Otten- 
 dorfer, editor of the Staats Zeitung, were generally recognized. 
 Cooper had been mayor of New York City between 1879 and 1881. 
 The commission organized immediately after its appointment. At 
 its first meeting, held December 15, 1875, Evarts was elected 
 chairman. The magnitude of its task precluded report to the 
 legislature of 1876, and the legislature of that year therefore 
 extended its time so as to authorize the presentation of the report 
 to the session of 1877. 
 
 The report submitted by the commission March 6, 1877, is a 
 valuable contribution to discussions respecting municipal reform. 
 According to Mr. Bryce it may be said to have become classical. 
 Yet in some respects its views were of questionable wisdom, and 
 few of its suggestions have yet been embodied in the constitu- 
 tion. The salient features of city misgovernment were, according 
 to the diagnosis of the commission, the existence of incompetent 
 and unfaithful governing boards and officers, the introduction 
 of State and national politics into municipal affairs and the as- 
 sumption by the legislature of direct control of local affairs. Con- 
 cerning the fearful burden of debt that corrupt officials had im- 
 posed upon the city and the poverty of return for prodigious ex- 
 penditures, the commission declared the outlay "sufficient for 
 the construction of all the public works of a great metropolis 
 for a century to come, and to have adorned it besides with the 
 splendors of architecture and art." The cure was to 
 be found in the elimination of these evils. The com- 
 mission dismissed as inadequate, remedies dealing with the symp- 
 toms rather than the disease, and declared that the work of 
 amendment should begin at the very foundation of the structure. 
 As the Evarts' report sonorously phrased it, the fundamental 
 
 255 
 
LEGAL AND JUDICIAL 
 
 question was whether "the general application of universal 
 suffrage in the election of the local guardians and trustees 
 of the financial interests of public corporations was in 
 accordance with sound principle." The commission answered 
 that it was not, — that the assumption was a fallacy and that "the 
 choice of the local guardians and trustees of the financial con- 
 cerns of cities should be lodged with the taxpayers". The rea- 
 sons for its conclusion although they were fully and ably pre- 
 sented seem unsatisfactory. They are like an echo from the dis- 
 tant past of the State, when property holders alone were 
 deemed competent to exercise the elective franchise. They 
 sound a note of distrust of democracy, since it fails at the 
 very core of things — in local administration. Because all voters 
 participate in elections for city officers, it had come, said the 
 commission, "to be a common belief that the question of submit- 
 ting the local government of cities in all respects to the full 
 operation of universal suffrage had, after the fullest considera- 
 tion of the legislature and people of the State, been deliberately 
 adopted." This was affirmed to be an error, the correction of 
 which was of primary importance. The contrary was declared 
 to be the policy of the State in respect to the financial concerns 
 of its political subdivisions. In the establishment of the govern- 
 ments of villages the legislature as early as 1847 had determined 
 to entrust to taxpayers alone the control of financial concerns. 
 "The village executive officers, the board of trustees, the local 
 legislature of the village are elected by voters possessing the or- 
 dinary qualifications ; but the vote of the tax paying electors is 
 with certain exceptions requisite to confer the authority to raise 
 money by taxation." The general village incorporation act of 
 1870 reaffirmed and adopted the same principle of discrimination 
 in the exercise of the suffrage, giving the election of officers to 
 
 256 
 
HISTORY OF NEW YORK 
 
 the electors generally, but committing questions of expenditure, 
 with the exception of small amounts for ordinary purposes, to 
 taxpayers alone. Many cities of the State grew out of village 
 organizations and their charters usually contain the same discrim- 
 ination. That this policy had not been applied to the larger cities 
 was declared to be "an anomaly", "an accident", not the result 
 of deliberation, as the lodgment of voting power with taxpayers 
 in villages had antedated the constitution of 1846, and in many 
 instances also the year 1826, when property qualifications for 
 State voters were swept away. The commission said : 
 
 "The establishment of a representative body, to be chosen by tax- 
 payers, is, therefore, the proper method by which they can control the 
 question of expenditure and taxation in large cities; but the provisions 
 of the constitution, declaring in effect that all elective officers are to be 
 chosen by universal suffrage, stands in the way of such a procedure. 
 The commission created in 1872 for the amendment of the constitution 
 perceived the anomaly we have pointed out and the necessity for the 
 creation in large cities of a board representative of taxpayers under whose 
 guardianship the prime matters of debt and taxation should be placed, 
 and recommended an amendment of the constitution designed to remedy 
 the evil. * * * The measure we recommend is not in opposition to 
 the principle of general suffrage but in support of it — as much so as if the 
 sole duty of this commission had been to consider how that principle 
 could be best preserved and perpetuated. No surer method could be 
 devised to bring the principle of universal suffrage into discredit, and 
 prepare the way for its overthrow, than to pervert it to a use for which 
 it was never intended and subject it to a service which it is incapable of 
 perlorming." 
 
 The practical difficulty of securing a constitutional amend- 
 ment restricting the suffrage is almost insuperable, for as Kent 
 said in the convention of 1822, "there is no retrograde movement 
 in the rear of democracy", yet this seems not to have weighed 
 with the Tilden commission. From the standpoint of fairness or 
 even of expediency, such a restriction as it proposed could hardly 
 have been justified. Taxpayers and rent payers are not the only 
 
 257 
 
HISTORY OF NEW YORK 
 
 classes entitled to share in government. The people who live in a 
 city, who from choice or necessity make it their home, however 
 infinitesimal seem their contributions to the expense of adminis- 
 tration, are vitally interested in its concerns, and have the same 
 right as their wealthier neighbors to be consulted about its ex- 
 penditures. It would be difificult to say who should form the fa- 
 vored class of voters, for taxation is often indirect, and its inci- 
 dence uncertain. Who do, and who do not, pay taxes is not easy 
 to determine. Mere physical numbers cause higher assessed 
 and rental values in different localities, and those whose presence 
 aids in bringing others within the favored class may not fairly 
 be excluded from it. 
 
 The policy in the long run might, as has often been 
 said, prove detrimental to public welfare by checking growth 
 in civic knowledge and devotion on the part of non- 
 voters, who upon the plan proposed would still constitute the 
 great mass of the citizenship, although without any right to par- 
 ticipate in the city government. Mill, who would have taxpayers 
 alone elect the assembly that is to vote the taxes, has glowingly 
 portrayed the great benefit in education of the intelligence and 
 sentiments that the ordinary voter derives from the use of the 
 ballot. Until tax laws are so amended as to make taxation 
 uniform, owners of property not of a taxable nature would 
 be excluded from the franchise equally with those who 
 own none at all ; and the application of such a test in the use 
 of the ballot would greatly complicate present cumbrous election 
 machinery. Any limitation of suffrage might result in the exclu- 
 sion from office of all not possessed of the requisite property to 
 make them voters, whatever their other qualifications. Arguments 
 drawn from partial exclusion from the suffrage of the non-tax- 
 paying element in villages, with their simpler life, are hardly 
 
 258 
 
HISTORY OF NEW YORK 
 
 analogies, for the city touches the welfare of its inhabitants at a 
 thousand points ; its mighty industries compel their presence, yet 
 upon the commission's plan of limiting the franchise they would 
 be powerless to better evil conditions from which they would 
 often be the chief sufferers. 
 
 The plan of the commission for the improvement of city gov- 
 ernment may briefly be summarized : In every city there should 
 be a single elective board of aldermen, an elective mayor clothed 
 with the right to appoint department chiefs except the heads of 
 the department of law and of finance, and with a qualified power 
 of removal, reviewable by the governor. A Board of Finance — 
 corresponding in function with the present board of estimate and 
 apportionment in New York City — should be elected by tax- 
 payers and rent payers, certain minima of taxes and rents be- 
 ing established in order to qualify voters in different classes of 
 cities. All estimates for annual expenditures should be made by 
 this board, subject to the mayor's approval, the estimates stating 
 separately the amount of moneys in the treasury or receivable for 
 city purposes and the amount required by taxation. No debt or 
 liability should be created in the absence of a prior appropriation 
 therefor. Local improvements falling altogether upon the city 
 at large should not be undertaken without the consent of two- 
 thirds of all the members elected to each of the two houses. 
 No improvement charged exclusively upon property owners 
 should be initiated without a two-thirds vote of the board of 
 aldermen, and the approval by a majority in interest of the land 
 owners within the contemplated assessment district. No part 
 ■of the cost should be paid by the city except with the approval 
 of two-thirds of both houses and the consent of the majority 
 in interest of the property owners within the proposed assess- 
 ment district. Municipal borrowing power should be restricted 
 
 259 
 
LEGAL AND JUDICIAL 
 
 and legislative assent to debt creation required. Sinking funds 
 should be created and ten per cent, amortization instalments 
 raised by annual taxation.^ 
 
 To liberate cities from legislative control, the commission 
 proposed the following provision for the organic law : 
 
 "Sec. 8. The Legislature shall itself have no power to pass any law 
 for the opening, making, paving, lighting, or otherwise improving or 
 maintaining streets, avenues, parks, or places, docks or wharves, or for 
 any other local work, or improvement in or for a city, but all authority 
 necessary for such purposes shall be by law conferred on the city govern- 
 ment; nor shall the Legislature impose any charge on any city or civil 
 division of the State containing a city, except by a vote of two-thirds of 
 all the members elected to each house." 
 
 The bestowal upon the mayor of exclusive power of appoint- 
 ment and removal would, the commission thought, furnish no 
 corrective for mal-administration. It would be an unprecedented 
 step and would lodge in the hands of a single individual the dis- 
 position of a revenue larger than that of some kingdoms. Few 
 men worthy of public confidence, would, it said, accept place- at 
 the hands of a master who might make or unmake them at 
 pleasure. An autocratic mayor as a remedy for bad government 
 has been declared by Mr. Bryce to be of the "cure or kill" order, 
 for "if voters are apathetic and let a bad man slip in, all may be 
 lost till the next election." Yet the principle of broad mayoral 
 responsibility has within the last decade or two become almost 
 generally accepted. In six of the larger cities in New York 
 State, in Boston, in all cities in Indiana, and in a few other cities, 
 says Professor Fairlie in a recent work, the mayor has been 
 clothed with the sole power of appointing the chief heads of 
 
 2. The suggestions of the commission were embodied in an article 
 added to the constitution known as Article XVII. The article contained 
 eleven sections. It may be found in the Session Laws of 1877, pp. 560-564. 
 
 260 
 
HISTORY OF NEW YORK 
 
 departments and in the same cities with the addition of the four 
 largest in Pennsylvania he has also the power of removing at 
 any time appointive department heads. "Under this system the 
 executive authority and responsibility is concentrated in the 
 mayor, except for a few officials still elected by popular vote."' 
 Constitutional limitations forbidding city indebtedness in ex- 
 cess of a percentage of assessed values seem to have been viewed 
 with disfavor by the commission, because the limitation might 
 readily be evaded by raising assessed values. Yet such limitations 
 have been widely adopted within recent years and have proved 
 valuable safeguards against excessive expenditure. Its remedy 
 for the temptation to excessive indebtedness was to require the 
 city to appeal to the legislature for permission to incur the debt, 
 which would simply have forged more tightly the fetters by 
 which the city is held in bondage by the legislature, whereas abso- 
 lute emancipation from legislative control is what the city re- 
 quires. The commission's idea of separating city and state elec- 
 tions was excellent. It proposed however to hold city elections in 
 March or April, but the constitution of 1894 has improved upon 
 this. Its plan to take away legislative power in respect- of certain 
 matters, like the plan outlined by Opdyke in 1872, was not suffi- 
 ciently far reaching. 
 
 The suggestions of the Tilden commission were approved by 
 the legislature of 1877, but were not acted upon by the succeeding 
 legislature, and hence were never submitted to the people. It 
 seems extraordinary that the work of such a commission with 
 the endorsement of one legislature, even if it had not also the in- 
 fluence of the governor, behind it,* could successfully be "buried" 
 
 3. "Essays on Municipal Administration,'' igo8, page 22. 
 
 4. Governor Robinson who had been a member of the constitutional 
 commission of 1872 gave only a tepid approval of the work of the Tilden 
 commission in his annual message of 1878. Amendments in accordance 
 
 261 
 
LEGAL AND JUDICIAL 
 
 and its submission to the people thus prevented. Few things bet- 
 ter illustrate the notable growth of public opinion in the last 
 generation, for politicians today are unable to resist public senti- 
 ment. 
 
 The movement for a larger degree of municipal autonomy 
 was felt in the convention of 1894, but despite the elaborate re- 
 port of its committee on cities and prolonged discussion, con- 
 tinuing sixteen days, the outcome was not great. Suggestions 
 made to the convention and its committee on cities for improve- 
 ment of municipal goveriunent were numerous and diverse. On 
 July 27 the committee presented to the convention a proposed new 
 article of the constitution "to provide home rule for cities". The 
 legislature was to be required to pass general laws for the incor- 
 poration of cities ; each city was to have a mayor and a common 
 council of one or more chambers ; members of the common council 
 might be chosen by minority representation ; city ofificers were to 
 be chosen at the general election in an odd numbered year; cities 
 were to be divided into two classes, the first to include all muni- 
 cipalities having a population exceeding 50,000, and the second 
 to include all other cities; special laws relating to cities were, 
 with certain enumerated exceptions, to be prohibited; permissi- 
 ble special laws might be enacted with the consent of the mayor 
 or the mayor and common council of a city after prior notice 
 to the city of the terms of the bill and upon the consent of the 
 city affected. The legislature might also pass such laws on the 
 consent of a majority of city electors expressed at a general or 
 a special election. The legislature was authorized to provide for 
 the consolidation of contiguous cities and the enactment of a new 
 
 with the report had, he said, been approved by the previous legislature and 
 would require the approval of the existing legislature before they could 
 be submitted to the people. If, he added, "you see fit to do so they will 
 be referred to the people for action at the next general election." 
 
 262 
 
HISTORY OF NEW YORK 
 
 charter for the consoHdated city, — a prevision of Greater New 
 York. 
 
 Divorce of city from State and national elections met with 
 no objection, but the proposition to forbid special legislation 
 elicited much discussion, with the result that the whole ar- 
 ticle with the amendments suggested during debate were 
 referred to the committee on cities for further consideration. 
 The committee subsequently reported a new municipal ar- 
 ticle containing provision for city elections in odd num- 
 bered years, bi-partisan election boards, the appointment and re- 
 moval of police officers, and minority representation . in the 
 choice of mayor and common council; and it reported also in 
 favor of general laws for the incorporation of cities and their 
 division into three classes upon the basis of population. This re- 
 port, together with a minority report favoring an even larger 
 grant of home rule, was discussed in the convention, and on Au- 
 gust 30 the convention decided to recommit the entire article to 
 its committee. 
 
 The final outcome, which was a compromise, appears in the 
 amended constitution (sections 2, 3, Article XII). Section 2 
 provides for the classification of cities, and section 3 for three 
 separate classes ; the first with a population of 250,000 or more ; 
 the second with a population of 50,000 and less than 250,000; 
 the third, all other cities. Laws relating to the property, affairs 
 or government of cities and their several departments may be 
 general or special city laws; general, relating to all cities of one 
 class or more than one class; special, to a single city or to 
 fewer than all the cities of any class. No bill for a 
 special city law shall become effective unless after its pas- 
 sage by both houses a certified copy be immediately trans- 
 mitted to the mayor of the city which it affects, who within fif- 
 
 263 
 
LEGAL AND JUDICIAL 
 
 teen days thereafter shall return it to the house from which it 
 emanated, or if the legislative session have ended, to the gover- 
 nor, with a certificate of the city's acceptance or non-acceptance 
 of the bill. For cities of the first class the mayor acts alone. For 
 every other city the mayor and the city legislature act concur- 
 rently. Public notice of a hearing upon a bill is to be given 
 in the city before the city shall act thereon. Where more than 
 one city is affected by the measure, every city concerned must 
 have an opportunity to accept its terms. All special city bills 
 returned with the city's acceptance go to the governor for his 
 approval or veto. If a bill be returned during the session without 
 the approval of the city or cities to which it relates, or if fifteen 
 days elapse without its return, the bill may again be passed by a 
 majority in both branches of the legislature, and like oth- 
 er bills, becomes subject to the governor's action. Wherever 
 a special city law is accepted by any city, the title is to be fol- 
 lowed by the words "Accepted by the City", or "Cities", as the 
 case may be. Every such bill passed without the city's approval 
 must, in the event of its enactment by the legislature, show in the 
 title that it was passed without the acceptance of the city or 
 cities, as the case may be. With the exception of elections to 
 fill vacancies all elections of city officers, including supervisors 
 and judicial officers of inferior local courts elected in any 
 city or part of a city, and of county officers elected in the 
 counties of New York and Kings, and in all counties whose 
 boundaries are the same as those of a city, are to be held 
 at the regular fall election in an odd numbered year and 
 the term of every such officer is to expire at the end of 
 an odd numbered year. To prevent an interregnum city officers 
 may in case of vacancies be elected in even numbered years. The 
 section is inapplicable to any city of the third class and to elec- 
 
 264 
 
HISTORY OF NEW YORK 
 
 tions of all judicial officers except judges and justices of inferior 
 local courts. 
 
 This amendment with all other provisions of the proposed 
 constitution was ratified by the people in the fall of 1894. But 
 no clause making it compulsory upon the legislature to pass 
 general laws for the incorporation of cities was adopted. Con- 
 ditions were so different in different cities that the convention 
 felt it unwise to follow the theories of the commissions of 1872 
 and 1877. It therefore abstained from framing a general munic- 
 ipal law. Concerning the value of the constitutional classification 
 of cities, and the provision subjecting special laws in the first 
 instance to local supervision, Mr. Lincoln, who was, for 
 six years, legal adviser to the governor, says in his Con- 
 stitutional History: "After an official observation of the prac- 
 tical operation of this amendment (Section 2, Article XIII) 
 through six years, 1895- 1900, I have no hesitation in pronouncing 
 it a wise and beneficent provision in relation to city legislation, 
 and one which embodies all the city control of such legislation 
 which is practicable, under a system of government in which all 
 the people acting in the capacity of the State are responsible to 
 one another for the protection and enjoyment of the rights of 
 persons and property guaranteed by the fundamental law of so- 
 ciety." The amendment has aroused a degree of watchfulness on 
 the part of city officials and public-spirited bodies, and has led to 
 the frustration of many evil measures. But the legislature can 
 too easily override local disapproval, as it needs but a majority 
 vote to enable it to ignore local wishes. The benefit attained by 
 this section is negative at best; it is preventive in character; 
 it assures no city a chance to initiate constructive legisla- 
 tion. The true remedy is to give the city absolute control of 
 
 26s 
 i« ^ 
 
LEGAL AND JUDICIAL 
 
 strictly local business through its own local legislature or govern- 
 ing body. 
 
 Fifteen years have passed since the recent amendment, yet 
 city debts continue to grow in disproportionate ratio to popula- 
 tion and assessed values, and legislative intervention is only par- 
 tially checked. Tested by results, municipal reform is still in an 
 embryonic state. Restrictions upon city indebtedness, reduction 
 of legislative activity, better civil service regulations, salutary 
 use of the Tilden tax payers' acts and submission of special city 
 bills in the first instance to city authorities have not yet reme- 
 died mal-administration. The people would not accept a limi- 
 tation of suffrage, even were it wise, and as American cities fail 
 where foreign ones succeed, the question is asked, with sincere 
 doubt, whether city government is capable of reformation by 
 democracy. The dual function of the city, the agent on the one 
 hand of the State, the instrument upon the other for the perfor- 
 mance of purely local functions, is the primary thing to be under- 
 stood. Just as the central government, supreme in its sphere, 
 does not encroach upon the business of the State, so the city as a 
 locally independent thing must be discriminated from the city as 
 an arm of the State, and the jealousy which conventions and 
 commissions have ever manifested lest the just powers of the 
 State be infringed in the grant of local authority, rests upon a 
 sound underlying consciousness of the distinction. The solar sys- 
 tem, with its sun, planets and satellites, each rotating upon its 
 own axis, revolving in its own orbit, obeying its own 
 law, while subject to the central force that binds them all into 
 one vast organization, has often furnished an analogy. Is it not 
 possible to distinguish genuine city powers from the political pow- 
 ers which the State entrusts to the city as a part of itself; and 
 if so, may not the sphere of organic local government, the in- 
 
 266 
 
HISTORY OF NEW YORK 
 
 stinct for which is imperishable and the exercise of which is 
 essential to the maintenance of free institutions, be exactly cir- 
 cumscribed? The commonly accepted creed that the city is the 
 creature of the State, drawing its breath by fiat of the State, must 
 be revised. The two organisms are as independent as the mole- 
 cule and the body built of molecular combinations. A recent 
 writer, in expressing the trend of intelligent study of the mu- 
 nicipal problem well says : "The city, as a local government, 
 needs from the central government, the State, nothing but ade- 
 quate power to exercise the functions of local government" ;' in 
 other words, it needs all powers requisite for the proper service 
 of its citizens in its distinctive capacity as an agency to satisfy 
 distinctively local needs. The local policy must be locally deter- 
 mined, and be administered by servants selected by the locality. 
 When once the legislature has created and equipped the city for 
 its distinctively local work, — whether this be done by general or 
 special legislation, and wise general legislation might be sounder, 
 — legislative intervention should be deemed usurpation of power. 
 The State through its various administrative departments would 
 still be able to control such business of the city as is not local, 
 but general and related to the entire government. The detach- 
 ment of local concerns should be complete. The city remains 
 within its corporate limits the agent of the State government in 
 the administration of a general State policy and this policy should 
 be enforced through the administrative departments of the State, 
 and not, as has been mistakenly assumed, through the legislature. 
 The attempt to distinguish a sphere of local municipal action 
 has been undertaken by the National Municipal League in its 
 Municipal Program, and also by earnest and profound students 
 of municipal problems, among them, Professor Frank J. Good- 
 s' "The Government of American Cities," ilorace E. Deming. 
 
 267 
 
LEGAL AND JUDICIAL 
 
 now. In his "Municipal Home Rule"* -he has tried to delimit 
 such a sphere of action without impairment of the cen- 
 tral control over matters of general interest. Contrasting the 
 English and the Continental systems of local government, he 
 points out that the State either "has formed special authorities 
 under the direct control of a central administrative authority for 
 the administration of matters which concern the State as a 
 whole rather than the locality, or has, where it has pemiitted any 
 of the local corporations authority with regard to matters of cen- 
 tral concern, subjected the exercise of the powers granted to a 
 central administrative control." Concurrently with this centraliza- 
 tion of general administrative matters in State administrative au- 
 thority, England has been granting to its municipal corporations 
 a larger degree of power over purely local concerns, — a policy 
 which commenced with the general municipal corporation act 
 passed in 1835. In distinguishing the American and the Con- 
 tinental method. Professor Goodnow says : "While our method is 
 one of enumerated powers, the continental method is one of gen- 
 eral grant of power, subject to specific enumerated restrictions. 
 The municipal corporation may do anything where power has not 
 been conferred specifically upon some other authority, and is sub- 
 jected to a central control only where the law specifically and 
 expressly provides for such a control." 
 
 In his view the American error has been twofold — it has 
 refused to provide for an administrative control of the central 
 commonwealth government over municipalities, as England has 
 done, and has attempted at the same time to destroy legislative 
 control, forbidding the legislature to take any special, and in 
 some cases even general, action regarding municipal affairs. 
 
 If the fashion seems at the moment to be tending from mayoral 
 
 4. Macmillan & Co., 1895. 
 
 268 
 
HISTORY OF NEW YORK 
 
 government to commission government, the vital gain is, never- 
 tiieless, the recognition of the idea that city government is a 
 business requiring expert training and that experts can better be 
 had if the city be treated as a unit and elective offices reduced 
 in number. The short ballot with public attention focused upon 
 few officials and direct nominations as the surest means of elim- 
 inating boss influence and securing the services of the best qual- 
 ified, are also advocated. City dwellers are rousing themselves 
 from their long lethargy to learn that the government of them- 
 selves is the highest political task in modern life. The extent 
 and importance of the public service rendered by private citizens 
 without expectation of reward and their zeal in reform politics, 
 are most hopeful auguries. Knowledge of the effect of city 
 development upon land values and public utilities has stimulated 
 the inclination to preserve collective wealth for the public to 
 which it belongs, and to check its appropriation by private inter- 
 ests, a process which, had it sooner been begun, would have re- 
 duced municipal taxation almost to its lowest terms and placed 
 an enormous capital balance to the city's credit in its ledger. The 
 absorption of community property by individuals will cease, 
 franchises deriving their financial importance from city expan- 
 sion, whether they relate to the surface, to land beneath it, or to. 
 avenues through the air, will be neither corruptly obtained nor 
 given away, but will be unwaveringly acknowledged to be mu- 
 nicipal property ; and yet the sphere of private enterprise will not 
 be unjustly circumscribed. 
 
 The city revolutionizes notions of government. It initiates- 
 revolt against assent to long accepted principles. It has taught the- 
 hisses faire doctrine its limitations, and opened new areas to the- 
 police power. The concentration of masses in urban life compels 
 many readjustments, if the right to live and to live healthfully is. 
 
 269 
 
LEGAL AND JUDICIAL 
 
 to be recognized. The railway or rather the larger transporta- 
 tion problem and the city, which constitute the newest forces 
 in civilization, are transforming law and elaborating a new soci- 
 ology. The "more and fuller" life which is the dream of modem 
 democracy includes in its comprehensive aspirations successful 
 treatment of the housing, the fire, the water, the sanitary, the 
 transportation problem, better education, ample school accommo- 
 dations, recreation centers, parks, courts in which real justice is 
 administered to the poor, streets and avenues fitted for the varied 
 business of a city, and a comprehensive city plan with oppor- 
 tunities for expansion and beautification. The test of civilization 
 may in a sense be said to lie in its ability to solve the intricate 
 problems of city life. The relations of the city to the future of 
 democracy are momentous. The city may transform its children 
 into grotesque creatures like the comprachicos who were the sport 
 of royalty a few centuries ago, or may prepare them for wise 
 and lofty citizenship. There are signs that commercialism in city 
 politics has reached its flood and is ebbing. The checkered history 
 of municipal government during the last generation rightly inter- 
 preted shows signal advance, and justifies the largest measure of 
 hope for the city of the future. The remedies for municipal 
 mal-administration may confidently be trusted to the intelligence 
 and judgment of the constantly widening circle of educated cit- 
 izenship. 
 
 270 
 
CHAPTER XIV 
 
 effect of the construction of railroads upon canal rev- 
 enues — formation of the new york central system 
 
 the erie railroad increase in tonnage carried by rail 
 
 — influence of the grain carrying trade upon railroad 
 rates — ^assembly committee to investigate railroad 
 
 abuses — its report injustice of secret and special 
 
 rates — recommendations of the committee passage of 
 
 constitutional amendments affecting canals improve- 
 ment of canals and inland waterways governor 
 
 Roosevelt's committee on the state canal policy and 
 its report — provision for the $101,000,000 barge canal. 
 
 When, after the completion of the Erie canal, it was found 
 to bring a golden flood of benefits into the State, in the general 
 optimism of feeling that the commerce of the west had become 
 perpetually tributary to the state, the belief prevailed that canals 
 would always bring immense revenues into its treasury.^ Gover- 
 nor Clinton, as early as 1818, declared that the canals were to be 
 "a prolific source of revenue for the general purposes of govern- 
 ment." The Erie canal might have proved a veritable Pactolus 
 
 h ."The revenue from tolls was so large during the decade after the 
 completion of the Erie that extravagant notions were entertained as to 
 their volume in the future. It was predicted that they would amount to a 
 milhon dollars in .1836 and four million in 1856, and would continue to 
 increase in that proportion for half a century" (Hill, "Waterways and 
 Canal Construction in New York State," 152). 
 
 The gross tolls in 1876 were only $1,340,000, and in 1877 only $880,000, 
 a lower amount of receipts for tolls than had been known, said Governor 
 Robinson in 1878, for the preceding forty-five years. There was a slight 
 advance in the next year, but the gross tolls for the year ending Sep- 
 tember, 1882, fell to $818,264.61. 
 
 271 
 
LEGAL AND JUDICIAL 
 
 flowing on forever, but for the rise of an agency of transportation 
 not foreseen when it was first projected; and this novel and 
 unexpected competitor not only diverted commerce to its own 
 rails, but also revolutionized the point of view to be taken of the 
 canal. As Eli Whitney's invention of the cotton gin, with all its 
 profound effects, is after a century seen to have been one of the 
 most influential factors in the political history of the nation, so the 
 modern railway, which has grown from George Stephenson's 
 locomotive, "The Rocket," is, as Charles Francis Adams, jr., has 
 said, "with perhaps few exceptions the most tremendous and 
 far-reaching engine of social change which has either blessed or 
 cursed mankind." 
 
 We are not here concerned with the evolution of the railway 
 system except to show its effect upon the utiUty of the canals, 
 which reached their period of greatest prosperity between 1868 
 and 1874, after which canal commerce began to decline. 
 
 The genesis of the vast New York Central system was in the 
 charter granted by the State of New York to the Mohawk and 
 Hudson railroad, in the year 1826. In 1827 the legislature of 
 Massachusetts ordered surveys to be made of the most practicable 
 routes for a railway between Boston and the Hudson river at or 
 near Albany. The Erie railway, in which the State invested 
 $6,ocx),ooo of its own money by way of concession to the inter- 
 ests of its southern tier of counties as an equivalent for the Erie 
 canal, was chartered in 1832. Pennsylvania initiated its railway 
 system in 1827; the Baltimore and Ohio road followed in Mary- 
 land in the succeeding year. In 1853 the New York Central was 
 formed by the consolidation of eleven separate lines, and in 1869 
 was amalgamated with other roads into the New York Central 
 and Hudson River Railroad Company. This road speedily ab- 
 sorbed the Lake Shore and Michigan Southern Railroad Com- 
 
 272 
 
HISTORY OF NEW YORK 
 
 pany by obtaining control of a majority of its stock, and about 
 the same time acquired control of the Rock Island and the Chi- 
 cago and Northwestern. The Pennsylvania in 1870, by means of 
 a perpetual lease of the United Companies of New Jersey, gained 
 a terminus at New York, and almost simultaneously established 
 connections which brought it into Chicago, Cincinnati, and St. 
 Louis. The Erie, and the Baltimore and Ohio, also expanded to 
 the same points west. An era of railroad enterprise had set in 
 which met a temporary check only in the panic of 1873. 
 
 "The great factors in the economic progress of the country 
 between 1867 and 1880 were railroad building with its dependent 
 industries and the expansion of farming".^ To stimulate the first, 
 both the national government and the States made grants of land 
 to railways upon a colossal scale. Garfield declared that these 
 donations covered an area nine times the size of the State of Ohio. 
 The release from army service of a great body of men to return 
 to peaceful pursuits, and the opening of the west by railroads, 
 coincided with a period of large immigration, a movement of na- 
 tive population westward, and depression in the wheat industry 
 abroad. By the opening of the great routes to the seaboard and 
 the reduction of railway freight over long distances, a condition 
 most favorable to large exports was created, with the result that 
 the balance of trade with Europe was turned in favor of this 
 country. "Since 1880 the country as a whole has exported each 
 year from twenty-one to forty-one per cent, of the wheat which 
 it has raised, the average being thirty-two per cent. In these 
 same years the leading surplus wheat producing States of Kan- 
 sas, Nebraska, Minnesota and the Dakotas have had to find in 
 the South, upon the Atlantic seaboard and in Europe, a market 
 for not less than eighty-five per cent, of their crop."^ 
 
 2. Hugo Richard Meyer, Regulation of Railway Rates, p. 204. 
 
 3. Meyer, Regulation of Railway Rates, pp. 210, 211. 
 
 273 
 
LEGAL AND JUDICIAL 
 
 To accomplish this result, the rates for carrying wheat to the 
 Atlantic seaboard had to be reduced. As late as 1866-68 prac- 
 tically the whole of the grain arriving at New York had come by 
 water, but the improvements made by the railways, and the re- 
 duction of rates, soon led to a vast increase in the tonnage carried 
 by rail. The economies on the canal stood still, while those on 
 the railways forged ahead ; by 1872 the amount carried by canal 
 was seventy per cent., and by 1876 it had fallen to fifty-seven per 
 cent. And when the Baltimore and Ohio and the Pennsylvania 
 succeeded in reaching Chicago by rail, they competed with the 
 New York roads and canals for the grain carriage, but as ocean 
 freights to Europe were higher from Baltimore and Philadelphia 
 than from New York, the differential agreement was established 
 by the railroads, which made the rail rates to New York suf- 
 ficiently higher than to Baltimore and Philadelphia to compensate, 
 as it was claimed, for the higher cost of ocean service from these 
 last ports. To check the loss of canal freights, the State reduced 
 canal tolls, and ultimately, by the constitutional amendment of 
 1882, abandoned all toll charges. The competition of rival sea- 
 board cities for the grain carrying trade was a leading factor in 
 further reduction of railway freight rates, and the handicap put 
 upon the port of New York by the differential agreement un- 
 doubtedly aided the diversion of a large trade from New York 
 City to other competing cities. It was this sensible decline in the 
 outward commerce of the port, felt also in a decline in imports, 
 that was the origin of the movement for an enlarged canal. 
 
 As early as March, 1879, the legislature of New York had 
 been impelled by public sentiment to appoint a commission to 
 investigate abuses alleged to exist in the management of railroads 
 chartered within the state. The report of this committee, of 
 which A. Barton Hepburn was chairman, made on January 2y, 
 
 274 
 
.HISTORY OF NEW YORK 
 
 1880, created a profound impression, for it showed the abuses 
 perpetrated by the railways to the detriment of commerce that 
 would naturally find its way through the commonwealth. It was 
 originally supposed, said the report, that only passengers and not 
 freight, except in the most limited degree, could be carried by 
 rail. The report continued: 
 
 "Restrictions were accordingly thrown around the passenger traffic, 
 and it has been at all times and is today carefully guarded and regulated 
 by positive statutes. The roads were forbidden to carry freight in oppo- 
 sition to the canals; and later, when they — the railroads now forming 
 the New York Central — were found carrying freight, they were required 
 to pay to the canal fund a sum equal to the tolls exacted for a similar 
 carriage by canal. This restriction was soon removed, and the railroads 
 left to their own management, practically unrestricted and uncontrolled as 
 to carriage of freight, and remain so today. True, April 14, 1855, a law 
 was passed creating a board of railroad commissioners. But this was 
 found an inconvenient interference with railroad plans, and so the roads 
 paid the commissioners the full amount of their salaries for the term 
 for which they were created ($25,000), to silence their opposition, and 
 then procured the repeal of the law creating the commission, in April, 1857. 
 
 "In discharging the duty it owed to commerce and the public, the 
 State either had to construct railroads on its own account, or authorize cor- 
 porations or associations to do so, clothing them with the prerogatives of 
 the State for that purpose. In view of our costly experience in State 
 management of various institutions, and the extent to which the managers 
 and attaches of those institutions became factors in our politics, there is 
 no doubt the State acted wisely in committing the construction of rail- 
 roads to associations of citizens. There is no doubt of the wisdom of 
 lending State aid to encourage railroad building during its incipient and 
 experimental period. It grew, however, into an abuse." 
 
 The report dealt also with the subjects of fast freight lines, 
 watered stock, railroad consolidation, and terminal facilities. The 
 cities of New York and Brooklyn from their insular position en- 
 joyed peculiar advantages in receiving and forwarding freight 
 by water, but what was to their advantage in this respect was to 
 their disadvantage as a railroad terminus. In contrast with cities 
 
 275 
 
LEGAL AND JUDICIAL 
 
 to the south, their disadvantage was that the roads had not im- 
 mediate access to the water-front, and that lighterage expenses 
 had to be incurred in transporting freight from railroad termini 
 to warehouses and points of shipment. This lighterage charge, 
 which brought no profit to the railroads, nevertheless constituted 
 a tax upon transportation, and a burden upon the commerce of 
 New York, threatening a diversion of commerce from the city 
 until vessel and car should be brought together. 
 
 The agreements entered into in 1877 between the New 
 York Central and Hudson River Railroad Company, the Erie, the 
 Pennsylvania Railroad, and the Baltimore and Ohio Company, 
 made the charges on east bound freight less to Baltimore than to 
 Philadelphia, and less to Philadelphia than to New York; and 
 of the west bound business of the port, thirty-three per cent, was 
 apportioned to the New York Central and the Erie each, twenty- 
 five per cent, to the Pennsylvania, and nine per cent, to the Balti- 
 more and Ohio, while all California business was divided equally. 
 Ocean rates from Philadelphia averaged slightly higher per year 
 than the rates from New York, and the rates from Baltimore 
 slightly higher per year than the rates from Philadelphia, yet the 
 difference by no means equalled the difference in rail rates con- 
 ceded to the more southern cities. Boston was inconsistently 
 given the same railroad rate as New York. The ocean rates from 
 New York and Boston averaged the same. 
 
 The report disclosed for the first time the arrangements be- 
 tween the railroads and the Standard Oil Company, by which the 
 roads had placed in the absolute control of this company the 
 handling of all oil carried by them to New York. The preferen- 
 tial rates given to that company had enabled it to grow to 
 colossal proportions. The report dealt with the inducements to 
 mismanagement by the sale of proxies of the real owners of stock 
 
 276 
 
HISTORY OF NEW YORK 
 
 to the officers of a company for the time being, which enabled 
 such officers to perpetuate themselves in power. (This led to a 
 change in the law respecting proxies). It showed also the failure 
 of statutory requirements to secure an accurate history of the 
 transactions of the railroads during a year, for full compliance 
 with the law did not disclose their actual condition. The rail- 
 roads of the State discriminated against citizens of the State in 
 favor of western and foreign producers, and numerous special 
 contracts existed with the New York Central and Hudson River 
 Railroad, estimated by railroad men at six thousand, (the number 
 was much less with the Erie,) whereby secret special rates were 
 given upon time contracts, and under which the open rate varied 
 to the advantage of the party obtaining the special rate, thus 
 favoring certain localities, and even individuals in localities, as 
 against other individuals in the same region. There was no unit 
 of volume at which one man might ship as cheaply as another. 
 He who went into a railroad office and bartered for a low rate 
 obtained it, while his competitor, relying on equitable treatment, 
 or unaware that secret special rates might be had, paid a higher 
 rate. Competition among railroads as a regulator of freight tariff 
 was found to be a failure. No community could support parallel 
 railroads. But the competition of waterways served as a general 
 regulator of rail rates. The report said also : 
 
 "The political influence of these corporations should be understood. 
 Not less than thirty thousand voters are in the direct employ of the rail- 
 roads of this State — a number sufiicient to have turned the scale at any 
 election in recent years. These employees are doubtless divided in polit- 
 ical sentiments, yet in times like the past and present, the question of 
 remunerative employment is of paramount importance to the individual 
 employed, as compared with .the success of either party. The political 
 sentiments of corporations have been aptly and truly described by a 
 prominent railroad man who testified : 'In a Republican district I was 
 Republican, in a Democratic district I was a Democrat, in a doubtful dis- 
 
 277 
 
LEGAL AND JUDICIAL 
 
 trict I was doubtful, but I was always Erie'. The possible exercise of this 
 vast political power, direct and indirect, not to discuss its exercise in the 
 past, seems to your committee an unanswerable argument in favor of 
 instituting governmental supervision of railroads and holding them in 
 their management to a strict accountability." 
 
 The report recognized that the questions involved often 
 transcended the Hmits of State jurisdiction. It censured the 
 secret rate system, the granting of unequal or preferential rates, 
 the making of secret rates, and the giving of drawbacks and re- 
 bates. It advocated the fixing of a proper unit of shipment, and 
 the prohibition of a greater charge for a short haul than for a 
 long haul. It advocated publication of a full history of the 
 transactions of each road during each year, both financial and 
 business, and amendments to the law permitting consolidation of 
 roads which permitted the roads upon consolidation to fix their 
 capital stock at any amount ; and it recommended the creation of 
 a commission to be composed of three individuals with ample 
 powers of investigation and recommendation, one of the commis- 
 sioners an expert in railroad business, another a representative 
 of the commercial interests of the city of New York, the third 
 of the interests of the interior of the State, one of the three to be 
 a lawyer. Two of the members dissented from the suggestion 
 for the appointment of a commission.* 
 
 4. The Railroad Commission as organized by Chapter 353, Laws of 
 1882, consisted of three persons to be appointed by the governor with 
 the advice and consent of the senate, one to hold office three, one four, 
 and one five years. One of the members was to be selected from the party 
 which should cast at the general election for governor succeeding the year 
 1882, the largest number of votes ; one was to be a person experienced 
 in railroad business; and the third member was to be selected upon the 
 recommendation of the Chamber of Commerce, the New York Board of 
 Trade and Transportation, and the National Anti-Monopoly League of 
 New York, or any two of such organizations. The commission had 
 jurisdiction over the matter of accidents, fatalities, and injuries, and also 
 freight rates. The expenses of the Commission were to be paid by the 
 railroads. The number was increased by Chapter 728, Laws of 1905, to 
 five. This commission was eventually superseded by the creation of two 
 
 278 
 
HISTORY OF NEW YORK 
 
 The committee proposed also certain amendments to the 
 law, which were submitted as an appendix to its report, one 
 being an amendment to the general railroad law authorizing the 
 formation of railroad corporations and regulating the same; an- 
 other an amendment to Chapter 917, Laws of 1869, authorizing 
 the consolidation of railroad companies, the amendment forbid- 
 ding the issue of capital stock of the consolidated company in 
 excess of the aggregate of the capital stock of the companies so 
 consolidated, at par, and forbidding the issue of bonds or other 
 evidences of debt as a consideration for or in connection with 
 such consolidation; the third to regulate voting by stockholders 
 and bondholders, the fourth to regulate the transportation of 
 freight, the fifth creating a board of railroad commissioners, and 
 defining and regulating their powers and duties, and the sixth pro- 
 viding for the filing of a verified annual report setting forth spe- 
 cifically the matters referred to in the proposed enactment. Many 
 of these suggestions were embodied in legislation, but as the ma- 
 jor evils of which the report complained affected interstate com- 
 merce, the subject transcended the powers of the State, and 
 could be dealt with adequately only by Congress, which in 1887 
 created the Interstate Commerce Commission. 
 
 public service commissions, one for Greater New York, the other for 
 the residue of the state (Chapter 429, Laws of 1907). Each commission 
 was to consist of five members to be nominated by the governor and con- 
 firmed by the senate. This last statute abolished not only the Railroad 
 Commission, but also the Gas and Electricity Commission, the Rapid 
 Transit Commission of New York, and the office of gas inspector, and 
 transferred their respective jurisdiction, powers and duties, to the new 
 commissions. By legislation in 1910 the jurisdiction of the Public Service 
 Commissions was extended to include telegraph and telephone companies. 
 The Board organized under the act of 1855 was maintained by the, 
 different corporations it was appointed to supervise, in this respect fol- 
 lowing the principle adopted for the Banking Department; and the same 
 course was pursued when the Commission of 1882 was appointed. The 
 salaries of the members of the Public Service Commissions are paid by 
 the State at large, while certain expenses in the first district are borne 
 by the City of New York. 
 
 279 
 
LEGAL AND JUDICIAL 
 
 The announcement by the Hepburn Committee of the prin- 
 ciple that the competition of waterways, whether artificial or 
 natural, would serve as a general regulator of railway rates, un- 
 doubtedly aided the movement for the abolition of canal tolls. 
 The freedom of the canals was favored by some of the ablest of 
 New York statesmen— Conkling, Evarts and Seymour— and its 
 wisdom approved by Judge Cooley, who, as chairman of the 
 Interstate Commerce Commission, ofi&cially declared in its first 
 report that the Erie canal influenced the rates to New York more 
 than any other one cause, and that indirectly through its effect 
 upon these rates it influenced those to all other seaboard cities. 
 It was recognized that the commercial supremacy of the State 
 was in jeopardy, that the freedom of the canals was necessary to 
 save it, — if, in fact, it could be preserved. The movement for 
 abolition culminated in the presentation to the assembly by Hon- 
 orable Isaac I. Hayes of a resolution proposing an amendment 
 to the constitution abolishing tolls and providing for the payment 
 of canal expenses and the liquidation of the debt. This amend- 
 ment was approved by the legislatures of 1881 and 1882, and 
 ratified by the people at the general election in the fall of 1882, 
 by the decisive popular vote of 486,105 in its favor to 163,151 
 against it, and became operative January i, 1883. By it the tolls 
 were abolished for the future, and the legislature was required 
 annually to provide for the expenses of the superintendence and 
 repairs of the canals, and for the payment of the principal and 
 interest of the canal debt, by equitable taxes. 
 
 Abolition of the tolls, however salutary and wise, could not 
 impede the operation of the causes which had necessitated it. 
 Western grain areas kept constantly expanding, and the competi- 
 tion for their harvests increased and necessitated railway and 
 canal improvements to the seaboard. A slight gain in canal ton- 
 
 280 
 
HISTORY OF NEW YORK 
 
 nage temporarily followed the passage of the amendment, which 
 was not, however, able to arrest decline for any great length of 
 time. The impression prevailed that the canals should be enlarged 
 and improved, and the necessity for an amendment to render this 
 practicable was urged in the convention of 1894. The chief advo- 
 cates of this policy in the convention were Senator Henry W. 
 Hill, Judge Chester B. McLaughlin, and Judge Daniel S. Cady. 
 Hill argued that it would be unwise to dig a ship canal between 
 Lake Erie and the Hudson, as its cost would exceed the financial 
 ability of the State, and lake transportation and canal trans- 
 portation could never profitably be assimilated. He quoted fig- 
 ures from the State auditor's report to show what vast revenues 
 had accrued to the State from its canals. The State had received 
 from canal tolls and water privileges upwards of $133,000,000; 
 the boatmen upon the canals had reecived for freights more than 
 $225,000,000. According to reliable estimates there had been con- 
 tributed by canals to merchants, warehousemen and forwarders in 
 commissions and storage, upwards of $110,000,000. The aggre- 
 gate revenues from the canals, he declared, had exceeded 
 $468,000,000, and had been obtained at an expense to the 
 taxpayers of only $60,000,000. The canals were an advan- 
 tage because they tended to regulate railway charges, as had been 
 frequently acknowledged. They had enabled the State to control 
 the carrying trade of the northwestern States and Territories. 
 Reliance upon national aid for improvement was useless, for 
 Congress would require as a condition precedent the transfer of 
 the canals to the government. Without them the cost of trans- 
 porting grain to market would according to the best authorities 
 be increased at least two cents a bushel. Every reason favored 
 the removal of the constitutional prohibition upon the creation of 
 canal indebtedness and provision for immediate canal improve- 
 
 281 
 
LEGAL AND JUDICIAL 
 
 ment. The proposed amendments provided that the canals might 
 be improved in such manner as the legislature should direct by 
 law, and that a debt might be authorized for that purpose in the 
 mode described in section 4 of article VIII, or that the cost of im- 
 provement might be defrayed by appropriation of funds from the 
 state treasury or by equitable annual tax. 
 
 These amendments were submitted separately from the body 
 of the new constitution, were ratified by the people, and took 
 effect January i, 1895. The vote in their favor was 442,998; 
 against, 327,645. The legislature in 1895 passed a law authorizing 
 with the approval of the people, an issue of bonds not exceeding 
 $9,000,000 in amount, for the improvement of the Erie, Cham- 
 plain and Oswego canals, and directing the submission of the 
 question to popular vote at the general election in the fall of 
 that year. The act provided that the Erie and Oswego canals 
 should be deepened to a depth of not less than nine feet, and the 
 Champlain canal to seven feet of water. The plan of improve- 
 ment, commonly known as the Seymour plan, was approved by a 
 decisive vote. 
 
 It soon became evident that the contemplated expenditure 
 would not accomplish adequate results, and that fully $16,000,000 
 would be needed for the purpose. The contracts which had been 
 let were closed, and settlements were made with the contractors. 
 Charges of fraud and misappropriation of funds grew out of 
 these adjustments, and these led to the appointment of an investi- 
 gating commission, and eventually to the appointment by Gover- 
 nor Roosevelt of special counsel to assist the attorney general 
 in the institution and prosecution of such criminal proceedings as 
 should be warranted by the testimony taken by the commission. 
 Governor Roosevelt reported to the legislature of 1900 that the 
 able counsel assigned by him deemed criminal prosecutions 
 
 282 
 
HISTORY OF NEW YORK 
 
 inadvisable and impracticable. There had been numerous 
 instances of apparently unjustifiable favoritism to contractors and 
 of improvident agreements — not, however, of a criminal charac- 
 ter, although they subjected the State to large pecuniary loss. As 
 the Governor said : "The delinquency shown justified public in- 
 dignation, but it did not afford ground for criminal prosecution." 
 
 The national government had meanwhile deepened the lake 
 channel from Chicago to Buffalo to twenty feet, and the Hudson 
 river to twelve feet. The Canadian government had designed 
 an enlargement of its canal system between Chicago and Mon- 
 treal from twelve to twenty feet. The project of a canal from 
 Georgian Bay direct to Montreal, and from the river St. Law- 
 rence to the Atlantic Ocean, was also considered in Canada and 
 Great Britain. At the suggestion of Governor Black the legisla- 
 ture of 1898 appointed a commission upon the commerce of New 
 York, which reported on January 25, 1900, that the leading cause 
 of its decline was the differential rates on all east bound traffic. 
 As a contributing cause the report mentioned excessive terminal 
 charges. The commission advocated the abandonment of im- 
 provement upon the nine million dollar plan, which had been 
 authorized by the people in the fall of 1895.^ 
 
 Governor Roosevelt on March 8, 1899, appointed a commit- 
 tee to consider the whole canal question and report upon the 
 proper policy to be pursued by the State. The report of this 
 committee (January 15, 1900) sensibly assumed at the outset that 
 unless freight could be carried by canal at lower figures than 
 
 5. "To offset all the advantages enjoyed by New York City by an 
 inland discriminating rate against New York, is an arbitrary imposition 
 St ^ °"™^" "Pon all the export products of the territory tributary to 
 New York, in the competition to which they are subjected in the markets 
 of the world. Such an imposition is not only indefensible from any stand- 
 point of legitimate competition; it is not only an injury to the Harbor 
 and to the State; it is a crime against the commerce of the nation." 
 (Report of Governor Black's Commission, 2). 
 
 283 
 
LEGAL AND JUDICIAL 
 
 those at which railroads could profitably transport it, the canals, 
 whatever had been their past value, might as well be abandoned. 
 It then proceeded to argue that the canals would be able to carry 
 freight at minimum rates. Water transportation, declared the 
 committee, is inherently cheaper than rail transportation, and 
 such is the experience of different countries ; on the continent of 
 Europe, canals, far from being decadent, have been constantly 
 enlarged and improved; New York State possesses exceptional 
 topographical advantages which it would be folly not to utilize, 
 but she has, nevertheless, to encounter competition for the west- 
 ern grain trade from ports on the Gulf of Mexico and from Can- 
 ada, as well as from shorter all-rail routes to the Atlantic sea- 
 board. Besides grain and lumber, the carrying of which, when 
 the Erie canal was first dug, was expected to be its chief function, 
 recent developments in the iron trade, due to the discovery of an 
 almost inexhaustible body of iron ore in the upper lake region, 
 justified belief that with an adequate waterway between Lake 
 Erie and the Hudson river, and the prevailing cheap rates upon 
 the lakes, the iron industry might be centralized within this State ; 
 and with the utilization of electric power from Niagara, western 
 New York should become a manufacturing district of the first 
 importance. 
 
 The alternative, according to the committee, seemed to be 
 either to leave the canals as they were, which was virtually to 
 abandon them — a thing forbidden by the constitution — or to 
 improve them. It warmly advocated the latter policy. The State 
 ought not to ignore its wonderful natural advantages and cut off 
 its chance of keeping within it the route that would produce the 
 minimum freight rate. The ship canal project was pronounced 
 impracticable and prohibitive in expense, and the committee esti- 
 mated that by an expenditure of sixty-two million dollars, a one 
 thousand ton barge canal could be built. 
 
 284 
 
HISTORY OF NEW YORK 
 
 The committee declared that although some of the lateral 
 canals had proven unprofitable, the reverse was true as to the 
 Erie, which had "paid into the State more money by many mil- 
 lions of dollars than had been spent upon it in the aggregate for 
 any and all purposes whatsoever". The revenues collected from 
 this canal down to the date of the stoppage of tolls exceeded all 
 sums paid out upon it for any purpose whatsoever by the sum of 
 $42,599,718. The canal debt attained its maximum in 1844, being 
 then 3.8 per cent, of assessed valuation in the State; a cor- 
 responding percentage in 1900 would amount to nearly one hun- 
 dred and ninety million dollars, or double the expenditure which 
 the committee would propose. The ability of the State to cope 
 with the new undertaking was undoubted ; it would require the 
 imposition of a small state tax, sixty per cent, of which would 
 fall upon the city of New York. The committee therefore recom- 
 mended the construction of a barge canal from Lake Erie to the 
 Hudson, from Lake Ontario to the Erie canal, and from Cham- 
 plain to the Hudson river, with a prism generally twelve feet in 
 depth, and a width of seventy-five feet at the bottom ; and pro- 
 posed that the route of the Erie canal be along the Mohawk river 
 through Oneida lake and through Seneca and Clyde rivers. 
 
 The impression produced by this report was electric. It was 
 submitted to the legislature by the Governor with a special mes- 
 sage on January 25, 1900. It proposed a policy entailing 
 "very heavy expenditure, which could only be justified by suc- 
 cess, and which there would be no warrant in adopting save for 
 the weightiest and most unanswerable reasons." The Governor 
 declared the reasoning unanswerable and the policy proposed 
 "not merely wise and proper, but indispensable, if the future 
 development of the state were to in any way correspond with its 
 past." He reviewed the three plans proposed in the report. Act- 
 
 285 
 
LEGAL AND JUDICIAL 
 
 ing upon the recommendations in the report, the legislature ap- 
 propriated the sum of $200,000 for surveys and estimates of the 
 cost of enlargement or improvement, and the report of the State 
 engineer and surveyor showing the surveys and estimates was 
 submitted to the legislature by Governor Odell with a special 
 message in March, 1901. 
 
 Governor Odell wisely commended the counting of the cost, 
 and argued that the loss of canal traffic was not ascribable alto- 
 gether to inadequate canal facilities, but that terminal charges and 
 dock facilities were not as favorable at the port of New York as 
 at other ports, and concluded by recommending that "the question 
 of improving the canals along the line of the act of 1895 be sub- 
 mitted to the people at the following election." He again called 
 attention to the subject in his message in 1902. The canals, he 
 then reminded the legislature, were absolutely closed for at least 
 five months of the year, during which time manufactories were 
 dependent upon railroads. Were it not for the fact that imports 
 followed to a great extent the line of exports, the canal improve- 
 ment, he declared, would deserve but very little consideration. 
 
 In his annual message in 1903, Governor Odell entered upon 
 an extensive consideration of the subject. "Neither the lowering 
 nor the abolition of tolls upon the canals brought, as was hoped, 
 an increase of traffic". Railroad transportation was more costly, 
 yet shippers were willing to pay the increased cost. "Is it be- 
 cause of greater facilities and more prompt shipment at other out- 
 ports that this decline in canal traffic is due, and will an enlarged 
 canal win back the commerce which we have lost?" He briefly 
 reviewed the history of the recent movements for canal exten- 
 sion, and urged strongly upon the legislature the necessity for 
 "immediate attention to this important problem." 
 
 The legislature of that year provided for the construction of 
 
 286 
 
HISTORY OF NEPr YORK 
 
 a one thousand ton barge canal at a maximum cost of $101,000,- 
 000, and directed that the act be submitted to the people for ap- 
 proval at the general election in November, 1903. The popular 
 vote was overwhelmingly favorable, being 673,010 for, to 427,698 
 opposed." The belief, particularly in New York City and in Buf- 
 falo, was widespread that nothing but a deep and broad waterway 
 from lake to ocean could save the commercial prestige of the 
 State and prevent her from lapsing into a secondary position. 
 In 1903 the legislature voted favorably upon a resolution to 
 amend the constitution by extending from eighteen to fifty years 
 che period during which bonds issued for state purposes might 
 run, and this amendment after approval by the legislature of 
 1905 was ratified by the people at the general election in the latter 
 year. 
 
 6. In 16 counties there was a majority in favor. The favorable ma- 
 jority in New York county was 223,729, in Kings county, 142,377. 
 
 287 
 
CHAPTER XV 
 
 TAXATION ITS PURPOSES CHARACTER OF TAXES — PROVISIONS OB 
 
 STATE CONSTITUTIONS REFERRING TO TAXATION — ^LOTTERIES 
 
 FORBIDDEN BY FIRST CONSTITUTION EARLY METHODS OF 
 
 TAXATION — ^THE GENERAL PROPERTY TAX ESCAPE OF PERSON- 
 ALTY FROM ASSESSMENT — TENDENCIES IN MODERN TAXATION 
 
 INEFFICACY OF THE PERSONAL TAX — ^INDIRECT TAXATION 
 
 SUPERSEDING DIRECT TAXATION FOR STATE PURPOSES — ^DIFFER- 
 ENTIATION BETWEEN SOURCES OF STATE AND LOCAL REVENUE 
 
 STATE TAXES ON CORPORATIONS — ^TRANSFER TAXES — ^LIQUOR 
 
 TAX STOCK TRANSFER TAX TAXATION OF SPECIAL FRAN- 
 CHISES STING OF TAXATION IS WASTEFULNESS — EARLY 
 
 STATE TAXES STATE DEBTS — FEDERAL DIRECT TAX OF 1861 — 
 
 RECENT CONSTITUTIONAL AMENDMENTS REGARDING DEBTS — 
 HIGHWAY IMPROVEMENTS. 
 
 Ruskin speaks of the preacher as having in his Sunday ser- 
 mon "thirty minutes to raise the dead in." Almost as ambitious 
 and as equally hopeless may be the effort to convey in a brief 
 chapter any intelligible idea about taxation. "The right to tax," 
 it has been well said, "is not granted by the constitution, but of 
 necessity underlies it, because government could not exist or per- 
 form its functions without it".i Taxes are levied for the revenue 
 necessary for the maintenance of government. They cannot prop- 
 erly be imposed to benefit one part of the community at the ex- 
 pense of another, or to promote private enterprises. What con- 
 stitutes the public purposes which justify a tax is often, however, 
 
 I. People ex rel Hatch v. Reardon, 184 N. Y., 431. 
 
 288 
 
HISTORY OF NEW YORK 
 
 a debatable proposition. Taxes are commonly divided into direct 
 and indirect. The poll, or capitation tax, which led to the in- 
 surrection under Wat Tyler, is an illustration of a direct tax, 
 whereas the tariff levied upon imported goods by the United 
 States government, which, although paid by the importer, ulti- 
 mately falls upon the consumer, is a clear type of indirect taxa- 
 tion. The incidence of taxation has an important bearing upon 
 the question whether a tax is direct or indirect. The literature of 
 taxation is filled with subtle and curious analyses, regarding the 
 shifting and incidence of taxation. What is a direct tax, was a 
 question asked by Mr. Rufus King in the convention of 1787, but 
 not answered. The recent income tax cases have decided that 
 taxes upon rent or income from real estate, or upon personal 
 property or the income therefrom, are direct taxes, and accord- 
 ingly cannot be levied by Congress except where they are appor- 
 tioned among the several States according to population. A tax, 
 based upon such an apportionment, is highly improbable; inhabi- 
 tants in States where wealth is a rarity would never consent to 
 bear a higher rate of tax than would be imposed in States where 
 wealth is concentrated. The government in the immediate future 
 will in the absence of a constitutional amendment be compelled to 
 look for its support to internal revenue duties and customs, un- 
 less new forms of taxation, such as the corporation tax imposed 
 by Congress in 1909, are to become prevalent. The power of 
 Congress to tax for Federal purposes is plenary, save that it may 
 impose no direct tax unless upon the basis of a census or enumer- 
 ation of inhabitants taken on the principle prescribed by the con- 
 stitution, that no tax or duty may be laid upon exports, and that 
 all duties, imposts and excises must be uniform throughout the 
 United States. As Hamilton declared in The Federalist, 
 no part of the administration of government requires such 
 
 289 
 
LEGAL AND JUDICIAL 
 
 extensive information or thorough knowledge of the principles 
 of political economy as the business of taxation. After a century 
 of unsuccessful effort to compel personal property to bear its 
 statutory share of taxation, the tendency to rely for local revenue 
 upon the real estate tax alone is now plain. There has also dur- 
 ing a quarter of a century been a clear trend toward the separa- 
 tion of the sources of state and local revenue. 
 
 The constitution of 1777 put no limitation upon the taxing 
 power of the newly formed State of New York. There is no 
 reference to taxation in the instrument except in the preamble 
 setting forth the Declaration of Independence. The constitution 
 of 1821 contained a negative provision (Section 11, Article VII) 
 which declared that no lottery should thereafter be authorized; 
 that the legislature should pass laws to prevent the sale of lottery 
 tickets within the State except in lotteries theretofore provided 
 by law. Private lotteries had been illegal from colonial days, but 
 public lotteries had often been sanctioned by state legislatures 
 and by the Congress of the United States.^ Two opposing and 
 irreconcilable principles had prevailed in this State — one putting 
 a ban upon private, the other permitting public, lotteries. In the 
 convention of 1821 the wisdom of the proposed constitutional pro- 
 
 2. There were hundreds of lotteries for the building of schools, the 
 erection of bridges and docks, the repair of churches and roads, the 
 establishment of foundries and glass works (McMaster's "History of the 
 United States," vol. II, p. 23). A long list of purposes for which lotteries 
 were organized is given in McMaster, vol. I, 588, note. Lincoln, in his 
 "Constitutional History," gives a list of lotteries authorized by this State, 
 vol. Ill, pp. 35-38. See also Wells' "Theory and Practice of Taxation," 
 p. 60s. "Lotteries were formerly often relied upon to defray a portion of 
 the State and local expenditures in this country, and are still used for that 
 purpose in two of our States." Ely, "Taxation in American States and 
 Cities," p. 41. The Continental Congress in 1777 established lotteries to 
 raise funds for carrying on the war, and sent agents into all the States 
 to sell tickets (Id., 113). The lotteries authorized by Congress in the 
 District of Columbia led to the famous case of Cohens v. Virginia, 6 
 Wheaton, 257. It is an interesting fact that several of our leading uni- 
 versities, Columbia and Harvard in particular, have benefited by lotteries. 
 
 290 
 
HISTORY OF NEW YORK 
 
 hibition was thoroughly discussed and the debate developed diver- 
 gent opinions. Upon the final vote, both Chancellor Kent and 
 Chief Justice Spencer opposed the constitutional prohibition. 
 Spencer declared that it was not appropriate matter for a consti- 
 tution ; Colonel Young, on the other hand, would have included a 
 prohibition against horse racing, thus anticipating the constitu- 
 tion of 1894. The only other constitutional provisions regarding 
 taxation were incorporated in the constitution of 1846. These 
 were equally negative in character; they grew out of the canal 
 debt, and consisted of limitations upon the debt-incurring power 
 of the State. 
 
 The methods of taxation were originally merely an evolution 
 of the Dutch and English colonial systems. The Dutch estab- 
 lished the system of special assessments for public improvements. 
 In 1683 the first regular system of taxation was adopted by law. 
 The frequent wars in which the colony was involved in conse- 
 quence of the conflicts of Great Britain with other nations of 
 Europe, especially the French, plunged it into great indebtedness. 
 These wars cost the colony nearly a million of pounds.' The gen- 
 eral property tax was in vogue at the Revolution, not only in New 
 York but in sister colonies. The first general tax statute was 
 passed in this State in 1796. It was superseded by the Act of 
 1801, and this by the Act of 1813, establishing a system for the 
 assessment of real and personal estate for taxation, dividing 
 towns and wards into assessment districts, and empowering the 
 county supervisors to equalize valuations, levy taxes and deliver 
 warrants to collectors. This Act of 1813 was superseded by the 
 Act of 1823, and that in turn by the provisions of the Revised 
 Statutes. The general characteristics of taxation in the earlier 
 epoch were similar in all the States : specific objects, rather than 
 
 3. See note to vol. II. Laws of 1813, pp. 523, 524. 
 
 291 
 
LEGAL AND JUDICIAL 
 
 all property, were usually selected for taxation, and upon tan- 
 gible property was imposed all or nearly all the burden. 
 
 Personalty has never borne its fair proportion of taxation. 
 In 1851 Governor Washington Hunt declared in his annual mes- 
 sage that a large share of personal property escaped assessment 
 altogether, and that in many portions of .the State real estate was 
 estimated by assessors at less than half its actual value. The 
 discrimination in favor of personal property by which it avoided 
 its equitable share of local and State taxes, was pointed out by 
 Governor Fenton in 1866 and 1868; also by Dix in 1873, and 
 Cleveland in 1884. Assessments of real estate in the various 
 counties were so disproportionate, even as early as 1843, that 
 Governor Bouck in that year recommended the adoption of some 
 method for equalizing valuations among the several counties. 
 But nothing was done until 1859, when a direct tax had to be 
 imposed to meet the expenses of canal enlargement. The legisla- 
 ture of that year fixed the tax at five-eighths of a mill upon all 
 real and personal property subject to taxation within the State, 
 and at the suggestion of Governor Morgan created a state board 
 of equalization to equaUze assessments and taxes among the dif- 
 ferent counties. The result has not been a success. Comptroller 
 Roberts, in 1898, called attention to the discrepant assessments 
 in the various counties of the State, although the same rule of 
 assessment applied throughout the State. Real estate in one 
 county was assessed at fifty per cent, of its real value ; in two at 
 fifty-one per cent. ; in three at fifty-five per cent. ; in two at fifty- 
 eight per cent. ; in five at sixty per cent. ; in one at sixty-two per 
 cent.; in two at sixty-three per cent.; in one at sixty-five per 
 cent.; in one at sixty-six per cent.; in one at sixty-seven per 
 cent. ; in one at sixty-eight per cent. ; in three at sixty-nine per 
 cent. ; in twelve at seventy per cent. ; in four at seventy-one per 
 
 292 
 
HISTORY OF NEW YORK 
 
 cent.; in three at seventy-two per cent.; in four at seventy-five 
 per cent. ; in one at seventy-eight per cent. ; in one at seventy- 
 nine per cent. ; in one at eighty per cent. ; in one at eighty-two 
 per cent. ; in one at eighty-three per cent. ; in one at eighty-four 
 per cent. ; in one at eighty-five per cent. ; in one at ninety-two per 
 
 cent.* 
 
 Despite the inevitable imperfections of this crude system, the 
 state still clings to it, as it clings to the general property tax, which 
 year by year is becoming almost exclusively a real estate tax. 
 All necessity for equalization of county valuations would be 
 eliminated if direct taxation of land for state purposes were to be 
 definitely abandoned. 
 
 Land should not be taxed for State revenue, and personal 
 property should be the subject of neither State nor local taxation. 
 The modern tendency is to confine the local tax to real estate — 
 not only because of the difficulty of taxing personalty, but also 
 because fiscal science recognizes the importance of discriminating 
 between the sources of State and local revenue. In the popular 
 mind, confusion often exists as to State and local taxation, yet 
 these are as distinct from each other as either is from Federal 
 taxation. The bill which the taxpayer gets from a receiver or 
 collector of taxes blends both local and State tax in one, and as- 
 sists in this confusion. The local bill customarily includes the 
 quota of the tax levied for State purposes through local agencies. 
 All attempts to value and assess personal property have proved 
 
 4. "The sixty counties of the State had twenty-five different per- 
 centages of its value, at which they assessed real estate, while the same 
 provision of law requiring that real estate should be assessed at its full 
 market value was the sworn obligation of every assessor in the State. * * * 
 It is not possible for any man or body of men to equalize values of 
 property extending over so wide a stretch of territory, with myriads of 
 facts and conditions, to be taken into consideration in getting the true 
 valuation." 
 
 293 
 
LEGAL AND JUDICIAL 
 
 extremely unsatisfactory, and with the exception of the States of 
 the Federal Union, almost all civilized communities long ago 
 abandoned the project of levying taxes upon personalty, as inex- 
 pedient and impracticable.^ Because of the difficulty of discover- 
 ing and assessing this kind of property, the amount subject to 
 assessment is, in comparison with the assessment of real estate, 
 rapidly becoming negligible. It is only a question of time when 
 the percentage of personal assessments will be so small that such 
 assessments will cease, and the tax fall exclusvely upon real 
 estate. 
 
 "Delaware, Pennsylvania and Vermont levy no State tax on 
 real estate, while Wisconsin and other States following her 
 method of taxing railroads, either exempt real estate from taxa- 
 tion for State purposes, or contemplate such action in the near 
 future." Comptroller Roberts, in his report of 1898, advocated 
 the abolition of a state tax upon real and personal estate, and 
 the raising of the state's revenue "from what we have come to 
 call indirect sources, i. e., from sources other than the general 
 property tax." Mr. Horace White, a recognized authority, in an 
 introduction to a translation of Cossa's famous work upon taxa- 
 tion, says: "There is a movement going on to drop real estate 
 from the list of State taxables, and remit it wholly to the lesser 
 political subdivisions, the cities, towns and counties." The tend- 
 ency, says Professor Seligman, is to confine the local tax to real 
 estate. In some countries, "as in England and Australia, this is 
 now the fact by law ; in some places, like the more developed in- 
 dustrial centers of the United States, it is now virtually a fact by 
 custom." This tendency "throughout the world toward reliance 
 for local revenues upon the real estate tax is not alone indis- 
 
 S. Wells' "Theory and Practice of Taxation," 393. 
 
 294 
 
HISTORY OF NEW YORK 
 
 putable, but also in complete harmony with the newer theories of 
 finance."' 
 
 Rome, says M. Savigny, at the epoch of her great conquests 
 levied a capitation tax in her subject provinces, but by degrees 
 various persons and classes were exempted from this tax. One 
 edict exempted painters. In Syria, all under twelve or fourteen, 
 or over sixty-five, were exempted; at a later period all under 
 twenty and all unmarried females; still later, all under twenty- 
 five, widows, nuns, soldiers, veterans and clerics; afterwards 
 towns and whole dioceses. Such a tax was more sensible and 
 more humane than our personal property tax, for the Roman 
 removed the burden from the widow and the child, but that is 
 precisely where the operation of our peculiar laws imposes the 
 heaviest load. Intangible personal property can never be discov- 
 ered by the tax collector, unless the tortures of antiquity are to be 
 revived, or the rack and the thumb screw again brought into 
 requisition. Nothing less cruel than the methods of a Claver- 
 house would enable an assessor to find it. Under an income tax 
 law enacted in England in 1691, Romanists were taxed at rates 
 double those imposed upon Protestants. But, shocking as was 
 such injustice, it was hardly worse than are laws which, in prac- 
 tice, exempt dishonesty and tax truthfulness, and lay heavy hands 
 on the widow and orphan. 
 
 Again and again during the last thirty years the inequaUty, 
 immorality and stupidity of the personal property tax have been 
 proved. It has been styled a tax upon ignorance and honesty; 
 no one, it has been said, need pay, unless deterred from evasion by 
 a scrupulous sense of honor; its defects and oppressions have 
 been denounced as too glaring to be longer tolerated. The stat- 
 
 6. The Progress of Taxation during the Past Twenty-five Years and 
 Present Tendencies— Paper Read at 22nd Annual Meeting of the American 
 Economic Association. 
 
 29s 
 
LEGAL AND JUDICIAL 
 
 utes have been described as "old and rickety", "passed in a by- 
 gone generation" ; the system as a "farce and a humbug", a "re- 
 proach to the state", "a dismal failure", "an outrage upon the 
 people, a disgrace to the civilization of the nineteenth century, 
 and worthy only of an age of mental and moral darkness and 
 degradation, 'when the only equal rights were those of the equal 
 robber.'" Hon. George H. Andrews, once commissioner of 
 taxes in the City of New York, in a letter published years ago, 
 asserted that honestly to assess personal property it would be 
 necessary to do four things ; first, to amend the constitution of 
 the State; second, to amend the constitution of the United 
 States; third, to amend the constitution of human nature; and 
 fourth, to amend the constitution of things. Despite all that has 
 been so forcibly said against the assessment of personal property,' 
 and despite the abandonment of this sort of tax by all the rest of 
 the civilized world, we still adhere to it, and every few years 
 some State makes a ridiculous effort, by the enactment of severe 
 penalties, to discover what personal property its citizens own, 
 but of course fails. The system of "guessing" adopted by local 
 assessors in this State is more sensible and practically more suc- 
 cessful in reaching property, than the absurd and intolerable 
 method of "listing bills", or "dooming" the reluctant citizen to 
 pay upon a certain assessment, (the practice in some States,) and 
 depriving him of all right of appeal. Outside of a few persons 
 as to whom the guess of New York assessors is so low that they 
 think it politic not to complain, and of the few with a nice sense 
 of honor, the tax upon personal property in this State is paid, as 
 a New Jersey commission some years ago reported, by the estates 
 of decedents, widows, orphans, idiots and lunatics. 
 
 6. "The personal property tax is a farce. It falls inequitably upon 
 the comparatively few who are caught. The burden it imposes upon pro- 
 
 296 
 
HISTORY OF NEW YORK 
 
 In the city of New York, since consolidation, the assessed 
 valuation of real estate has increased year by year. In 1899 it 
 was $2,932,445,464, and in 1907, $6,240,480,602; whereas the 
 total of assessable personalty keeps constantly decreasing. It 
 was less by $12,417,069 in 1907 than in 1906, and was only $554,- 
 889,871 for 1907. In 1908 the aggregate of real estate assess- 
 ments in the city was $6,722,4iS>789. of personal estate only 
 $435,774,611. In 1909 real estate was assessed at $6,807,179,704, 
 personal estate at only $443,320,855.^ Nor must it be assumed 
 that as strenuous effort is not made in the metropoUs to assess 
 personal estate as in other cities. The president of the depart- 
 ment of taxes and assessments in New York City in a recent 
 report to the mayor (July i, 1909) declared that although the 
 assessment of personalty was the more difficult the larger the city, 
 personal property assessed in the metropolis formed a larger pro- 
 portion of the total assessment than in other large cities of the 
 state. In New York, personal property constituted 8.2 per cent, 
 of the whole; in Buffalo 8.1 per cent.; in Rochester 5.22 per 
 cent. ; in Syracuse 5.22 per cent. 
 
 The State comptroller's reports illustrate a like inability to 
 
 duction is out of all proportion to the revenue it produces. Year after 
 year state and local assessing boards have denounced it as impracticable 
 in its workings and unjust in its results. 
 
 ********* 
 
 "But it is not a farce to those who are fully assessed. These are 
 chiefly the widows and orphans who are caught when their property is 
 listed in the probate court, retail merchants and others, incorporated or 
 unincorporated, with stocks of goods, and the small investors who are 
 not skillful enough to make non-taxable investments. The tax of i}4 per 
 cent, is equivalent to an income tax of 25 per cent, on a 6 per cent, 
 investment. A general income tax of 10 per cent, would create a revo- 
 lution — ^yet we take a quarter of their income or more from the most 
 helpless class in the community." Report of Fassett Investigating Com- 
 mittee. 
 
 7. The above figures are taken from the report of the President of 
 the Department of Taxes and Assessments, New York City, to the Mayor, 
 July I, 1909, p. 72. 
 
 20 
 
LEGAL AND JUDICIAL 
 
 reach personalty for assessment outside of cities. The valuation 
 of real estate increased between the years 1859 ^^^ ^9^4 more 
 than six times : whereas the amount of personalty assessed in 
 1859 was little less than half of the amount assessed in 1904. 
 While the record shows an almost steady increase in the real 
 estate valuations year after year, it shows during a part of the 
 interval an actual decrease in personalty assessments, and a uni- 
 form decrease relatively. The total amount of real estate assessed 
 throughout the State in 1909 was upwards of $9,800,000,000; of 
 personalty, only $555,000,000. The futility of the effort to tax 
 personalty is evident. The local tax should be limited to real 
 estate, and the general property tax for State purposes discon- 
 tinued. 
 
 Indirect taxation for State purposes has, in fact, virtually 
 superseded the direct tax. The desirability of separating State 
 from local revenues has been pointed out by Professor Selig- 
 man, in his Essays upon Taxation, in the following language : 
 
 "If we can raise the entire State revenue from some other sources 
 than the general property tax, we shall accomplish three great results: 
 In the first place, the unseemly quarrels between the counties (as to 
 equalizing assessments) will cease. In the second place, since the burdens 
 of the farmer will be diminished by the suppression of the State tax on 
 property, he will no longer feel that he is paying the city man's share, 
 and he will listen with greater readiness to a proposition to divide the 
 purely local burdens more equitably. Third, if we raise the State revenues 
 entirely through the socalled 'indirect' taxes on personalty in the shape 
 of corporation taxes, inheritance taxes and taxes on other forms of secu- 
 rities, it will be a far simpler task to bring about an adjustment of local 
 revenues on the basis, not of a general property tax, but of a tax on real 
 estate, together with a few specific taxes on the elements of taxable 
 ability neglected by the State law." 
 
 The policy of drawing State and local revenues from differ- 
 ent sources was initiated in this commonwealth in the year 1880, 
 
 298 
 
HISTORY OF NEW YORK 
 
 when New York passed its first law imposing a license or fran- 
 chise tax upon corporations for State purposes only. This was 
 soon followed by a law requiring each corporation organized 
 under the statutes of the State to pay to the State treasurer an 
 organization tax of one-eighth of one per cent, upon its capital 
 stock, — a tax subsequently reduced to one-twentieth of one per 
 cent. A few years later a license tax was imposed upon foreign 
 corporations for the privilege of doing business within the State. 
 The system of franchise taxes upon corporations has been 
 amended and re-amended, so that at the present time many classes 
 of corporations, both domestic and foreign, pay an annual tax 
 based upon the amount of their capital stock employed within this 
 State.^ Corporations and associations engaged in the business of 
 transportation or transmission pay an annual excise tax or license 
 fee predicated upon gross earnings within the State, exclusive of 
 earnings from interstate business. 
 
 Elevated and surface railroads not operated by steam are 
 taxed one per cent, upon gross earnings, and three per cent, 
 upon dividends in excess of four per cent, upon the actual amount 
 of paid up capital. Waterworks corporations, gas companies, 
 electric, steam heating, lighting and power companies, pay 
 an annual tax of one-half of one per cent, upon gross earn- 
 ings within the State, and three per cent, upon dividends declared 
 in excess of four per cent, upon their paid up capital. Insurance 
 corporations pay an annual tax of one per cent, on the gross 
 amount of premiums received in any one year ; trust companies, 
 an annual tax of one per cent, on capital stock, surplus and undi- 
 vided profits ; savings banks, one per cent, on surplus and undi- 
 vided earnings ; and foreign bankers, five per cent, on the amount 
 
 8. The tax upon foreign companies is called a license, upon domestic 
 corporations, a franchise, tax. 
 
 299 
 
LEGAL AND JUDICIAL 
 
 of interest or compensation of any kind earned and collected on 
 money loaned, used or employed within the State. All such 
 corporations are exempted from all taxation for State purposes 
 within the locality. Franchise taxes upon corporations have been 
 found to operate fairly well, and legislation establishing them, 
 although at first obstinately resisted by corporate capital, has been 
 declared to be valid by the Supreme Court of the United States. 
 The expense of collection is relatively small. 
 
 In 1881 the State initiated a system of inheritance or trans- 
 fer taxes upon property passing by bequest, devise or by reason of 
 intestacy. This system has become a source of considerable 
 revenue. No community allows a property owner to devise or 
 bequeath his property untrammeled by State regulation. In Anglo- 
 Saxon law the full right to make a will dates back only to the 
 time of Henry VIII. Transfer taxes are levied upon the privilege 
 of transmitting or receiving property and not upon the property 
 itself, and are analogous to license or franchise taxes, which are 
 taxes upon privil^es, not upon property. Legislation imposing 
 a tax upon mortuary transfers of property which has long been in 
 vogue in England, and was adopted in Pennsylvania in 1826 and 
 in Louisiana in 1828, has become quite general throughout the 
 United States. Adam Smith, who classes such taxes among the 
 few that may properly be levied upon capital, traces them back 
 as far as the days of Augustus Caesar. The imposition of such 
 taxes, especially when they fall upon transfers to strangers or col- 
 lateral relatives, is not resented.' 
 
 9. "The inheritance tax in one form or another has come to stay, and 
 new States are being added every year to the list of those which have 
 adopted it. Five years ago it was found in only nine States of the Union 
 — Pennsylvania, Maryland, Delaware, New York, West Virginia, Connec- 
 ticut, Massachusetts, Tennessee, and New Jersey. During the first half 
 of 1893, Ohio, Maine, California, and Michigan were added to the list, 
 though the Michigan law was afterwards annulled because of an unusual 
 provision in the State constitution which was not complied with. In 
 
 300 
 
HISTORY OF NEW YORK 
 
 The inheritance tax imposed by Congress at the outbreak of 
 the Spanish-American War in 1898 was a progressive tax. It 
 followed the principle of Sir William Harcourt's graduated death 
 duties, which became law in England in 1894. This legislation 
 was assailed as unconstitutional, but sustained by the Supreme 
 Court of the United States (Knowlton v. Moore, 178 U. S., 41). 
 
 Comptroller Roberts in 1898 advocated a progressive inherit- 
 ance tax in this State. It was favored in 1891 by Governor Hill, 
 who pronounced its theory "fair and just, especially in view of the 
 fact that personal property under existing methods, almost en- 
 tirely escapes taxation during the life of its owner". Recently, at 
 an extra session in June, 1910, the legislature of this State, at 
 the instance of Governor Hughes, passed such a law. 
 
 This species of taxation brings emphatically into the fore- 
 ground of discussion the question of the power of the State over 
 individual or private property." There is perhaps no point at 
 
 1894 Louisiana revived her former tax on foreign heirs; Minnesota 
 adopted a constitutional amendment permitting a progressive inheritance 
 tax which has not yet been given effect by the legislature; and Ohio 
 added to her collateral inheritance tax a progressive tax on direct suc- 
 cessions. In 189s progressive inheritance taxes were adopted in Illinois 
 and Missouri, and an old proportional tax was revived in Virginia; and 
 last year Iowa adopted in part the inheritance tax recommendation of her 
 revenue commission." Wells, "Theory & Practice of Taxation," pp. 621, 
 622, quoting Max West, in North American Review, May, 1897, p. 625. 
 
 10. Mill claims that the right of bequest is an attribute of property, 
 yet admits that it may be restricted as, in fact, it often has been, especially 
 by limiting the amount any legatee may acquire. Mill more readily con- 
 cedes the right of the state to restrict inheritance, and its right to limit 
 the taking, rather than the giving of property by will. Few writers have 
 undertaken to give definitions of property, although tihe right of ownership, 
 acquisition, and transmission is the subject of repeated discussion. The in- 
 stitution of property, according to Mill, "when limited to its essential ele- 
 rnents, consists in the recognition in each person of a right to the exclu- 
 sive disposal of what he or she have (sic) produced by their own exer- 
 tions, or received either by gift or by fair agreement without force or 
 fraud from those who produced it" — a definition needing many limitations. 
 There is a degree of truth in Mirabeau's assertion that private property is. 
 goods acquired by virtue of the laws. Property and government are in a. 
 sense correlatives. There can be no absolute right of ownership, acquisi- 
 tion or transmission, independent of law. 
 
 301 
 
LEGAL AND JUDICIAL 
 
 which the right of the commonwealth to tax property passing at 
 death may be denied, once the power of taxation is conceded, and 
 that cannot be questioned. John Stuart Mill, although an opponent 
 of graduated income taxes, as taxes upon industry and commerce, 
 favored progressive inheritance taxes as just and expedient. As 
 Mr. Justice White said in Knowlton v. Moore, a number of au- 
 thoritative thinkers and economic writers regard the progressive 
 tax as "more just and equal than a proportional one." 
 
 In 1896 the State established a new policy in the enactment 
 of legislation, recommended by Governor Morton, embodying 
 "the best features of the liquor law in successful operation in the 
 various States, with a consistent aim towards the reduction of 
 the number of saloons in this State." A State Department of 
 Excise was created and placed under the supervision of a com- 
 missioner appointed by governor and senate. Local boards and 
 commissioners of excise were abolished. All certificates author- 
 izing the sale of intoxicating liquors were thereafter to be issued 
 either by the State commissioner or by special deputy commis- 
 sioners in certain counties, or by county treasurers. One-third 
 of all net revenue from liquor taxes, fines and penalties, was to 
 be paid into the State treasury, and the remaining two-thirds 
 were to go to the city or town in which the business was carried 
 on. These revenues were subsequently apportioned half to the 
 State and half to the locality. The imposition and collection of 
 this tax by State authorities have greatly enlarged the revenue 
 from the liquor traffic, while centralization of the administration 
 has not proven unsatisfactory. This legislation, as the Governor 
 said, marked the beginning of a new era in the State in the regu- 
 lation of the liquor traffic. It was a radical departure from the 
 traditional policy, which had considered the regulation and sale 
 of liquor matters of purely local jurisdiction. The law imposed 
 
 302 
 
HISTORY OF NEW YORK 
 
 severe penalties for the sale of liquors without the payment of a 
 tax, and contained stringent provisions concerning the persons 
 by whom and the places in which liquor might be sold. It con- 
 tained a provision, which the governor described as "new in our 
 legislation, authorizing an injunction to restrain the sale of 
 liquor without a certificate, and making the violation of an order 
 of the court a contempt". 
 
 A special committee on taxation composed of members from 
 both the senate and the assembly was appointed by the legislature 
 in 1899. This committee by its report (January 15, 1900) ad- 
 vocated the imposition of a five mill tax upon mortgages, and a 
 tax of one per cent, on the stock of national banks, state banks, 
 and trust companies. Appended to its report was a bill designed 
 to carry its recommendations into effect. The legislature in 1905 
 enacted a mortgage tax law laying an annual tax upon mortgages, 
 but the law was so amended in 1906 as to render mortgages free 
 from taxation after a single payment of a five mill tax thereon, 
 called a recording tax. Governor Odell in several of his messages 
 had urged the exemption of all mortgages from taxation. As a 
 concomitant of the new tax, mortgages were exempted from all 
 local taxes. This legislation was for a time vehemently resisted 
 and as earnestly advocated. The revenue which the State derived 
 from this source during the fiscal year ending September 30, 
 1909, was $1,844,821.45. 
 
 In the year 1905 a stock transfer tax law was adopted 
 (Chapter 241, Laws of 1905) which was amended (Chapter 414, 
 Laws of 1906; Chapter 324, Laws of 1907). The State tax upon 
 transfers of corporate stock has been held to be a tax not upon 
 property, but its transfer, and therefore constitutional. The 
 amendment of 1906 imposing a tax of two cents on each share of 
 one hundred dollars of face value or fraction thereof, has been 
 
 303 
 
LEGAL AND JUDICIAL 
 
 declared an unconstitutional discrimination in favor of the owner 
 of a share with a face value of one hundred dollars as against the 
 owner of a share with a smaller face value. And the provision of 
 the law subjecting private books to examination has been held to 
 violate both the State and Federal constitutions. 
 
 The State has never exacted any income tax except in so far 
 as the State tax upon corporations is in a degree a form of in- 
 come tax. Income taxes have for years been employed in Massa- 
 chusetts, Virginia, North Carolina, and Louisiana. The experi- 
 ence of those States which employ this method of taxation has 
 not been satisfactory. Professor Seligman considers that an 
 income tax is more and more unsuccessful as the basis of the tax 
 becomes narrower. In modern times the income of the taxpayer, 
 and especially of the larger taxpayer, has little to do with the 
 locality in which he happens to live. "Incomes nowadays, through 
 the working out of economic forces, have become national and 
 international in character, and at all events have far transcended 
 State lines." It is therefore hardly possible for any local or State 
 administration successfully to ascertain or adequately to control 
 the income of its resident citizens. "The State income taxes in 
 the United States are largely for that reason the veriest farces, 
 and under present economic conditions can never become any- 
 thing else. If we are to have an income tax of any kind that is 
 at all in consonance with fiscal principles, it must obviously be a 
 Federal income tax rather than a State income tax."*^ 
 
 The tendency to eliminate personal property from local taxa- 
 tion has been enhanced by the passage of the so-called Ford 
 special franchise tax, which created a new source of revenue. 
 The Court of Appeals in 1891 promulgated a decision that revo- 
 
 II. "The Relations of State and Federal Finance," North American 
 Review, November, 1909, P- 621. 
 
 304 
 
HISTORY OF NEW YORK 
 
 lutionized for a time the practice of assessing the personal prop- 
 erty of corporations. In People ex rel. Union Trust Company v. 
 Coleman (126 N. Y., 433), the court, through Judge Finch, de- 
 cided that the capital stock of a company for purposes of taxa- 
 tion meant, not the share stock, which had previously been the 
 basis of taxation, but the capital owned by the corporation ; that 
 is, the fund required to be paid in and kept intact as the basis of 
 its business. "The capital stock of a company is one thing; that 
 of the shareholders is another and a different thing. That of the 
 company is simply its capital, existing in money or property or 
 both ; while that of the shareholders is representative, not merely 
 of that existing and tangible capital, but also of surplus, of divi- 
 dend earning power, of franchises and good will." The one was 
 declared to be the property of the company, the other of its stock- 
 holders. Ascertainment of actual capital required deduction of 
 debts; furthermore, the intangible franchises of a corporation 
 rarely were valued upon its books ; but into the market value of 
 share stock debts only remotely entered, while its franchises, es- 
 pecially if the corporation were exercising public franchises, 
 were prominent factors. 
 
 After an experience of eight years of assessments of corpor- 
 ations upon the theory of this decision, public opinion began to 
 appreciate the extent to which corporations enjoying profitable 
 public franchises had escaped taxation. To fasten upon the pub- 
 lic franchise a tax not susceptible of evasion became the important 
 thing, and the ingenious device was adopted of treating the fran- 
 chises as real estate, for debts in New York are not deductible 
 from the assessed value of real estate, although they are in the 
 determination of personal property. Governor Roosevelt, on 
 March 27, 1899, in a special message to the legislature, urged a 
 change in the law to bring such franchises under taxation. He 
 
 305 
 
LEGAL AND JUDICIAL 
 
 had, he said, no sympathy with the outcry against corporations 
 as such; nevertheless, they enjoyed too frequently a large share 
 of immunity from taxation. This was especially true as to fran- 
 chises bestowed upon gas companies, street railroads, and the like. 
 Whether these franchises should be taxed as realty or should pay 
 upon their gross earnings, was a question; but they should cer- 
 tainly in some form yield a money return to the government. A 
 bill was introduced in the senate by Senator John Ford (now Mr. 
 Justice Ford) enlarging the definition of real estate to include 
 these franchises, and was passed in the senate by an overwhelm- 
 ing majority. Its consideration was blocked for a time in the 
 assembly, but on April 28, 1899, a vigorous special message from 
 the Governor led to its prompt passage. It became a law with his 
 signature on May 26, 1899. 
 
 The Court of Appeals, and ultimately the highest court in the 
 nation, has sustained its constitutionality. With the increasing 
 number and value of these public utilities, especially in crowded 
 municipalities, and their augmenting use of the street, of the sub- 
 surface, and even of the air, enormous revenue may come from 
 them in the future, to the relief of the ordinary taxpayer. The 
 vitally sound principle underlying this sort of taxation, like that 
 tinderlying the newer forms of taxation for state purposes, is that 
 privilege should pay for the advantages accorded. The incidence 
 of taxation may cast the ultimate burden upon the community, 
 but with growing regulation this is tolerable. 
 
 As was said by Governor Higgins in 1906 : 
 
 "The State's revenues are now derived entirely from the liquor tax, 
 corporation and inheritance taxes, taxes on transfers of stock, and the 
 like. The primitive form of land tax has been broken up and personal 
 property, escaping as it does practically all direct taxation, is reached by 
 indirect methods which work little hardship." 
 
 306 
 
HISTORY OF NEW YORK 
 
 It was a wise saying of the historian Hallam that "the sting 
 of taxation is wastefulness, but it is difficult to name a limit be- 
 yond which taxes will not be borne without impatience when 
 faithfully applied." A fifth canon might be added to Adam 
 Smith's celebrated four canons upon the subject of taxation, — 
 that moneys exacted from the community for public purposes 
 should be devoted strictly and sacredly to the ends for which they 
 have been obtained, with utmost regard to economy. Expendi- 
 tures for State government, originally simple and small in 
 amount, cover to-day a wide realm — schools, charities, hospitals, 
 prisons, canals, good roads, etc. 
 
 In a report made by Mr. Wolcott, Secretary of the Treasury, 
 in 1796 to Congress, upon the subject of taxation in the various 
 States, it was asserted that no direct tax had been levied in New 
 York since 1788, and that no objects of taxation were defined by 
 the laws, nor any principles of valuation prescribed. The credit 
 and funds of the State were ample, and their products sufficient 
 to supersede the necessity of taxation except for county and local 
 purposes. The State tax of 1788 was only $60,000. Hamilton 
 argued in The Federalist that all necessary expenses of State 
 governments could not for many years exceed a million dollars 
 annually for all purposes. Until the State embarked upon canal 
 building, its expenditures were moderate indeed — so moderate 
 that direct taxation, to which resort was had about 1800, was 
 discontinued a few years later. It was reimposed in 1814, when a 
 tax of two mills on each dollar of valuation of real and personal 
 property throughout the State was levied. This tax was con- 
 tinued until 1818 ; then reduced to one mill ; in 1824 it fell to half 
 a mill, and in 1827 wholly ceased. Several governors, notably 
 Governor Marcy, impressed with the diminution of the general 
 fund, urged recurrence to direct taxation, but direct taxes were 
 
 307 
 
LEGAL AND JUDICIAL 
 
 not resumed until 1842, when the celebrated "pay as you go" act 
 was passed. Direct taxation was again discontinued in 1907, and 
 there would now seem to be no occasion for its resumption. 
 
 No constitutional limitation upon debt creation existed until 
 1846. Once thereafter the State debt exceeded the constitutional 
 limit. In 1859 the auditor of the canal department reported that 
 drafts had been made upon the canal commissioners for sums far 
 beyond the ability of the treasury. This debt, estimated at upwards 
 of $2,000,000, had grown out of claims against the State for work 
 upon the canals, and for private property appropriated for their 
 use or needed in canal construction. As Governor Morgan said 
 in his annual message of that year, a debt had been created "with- 
 out the means of payment in the treasury or at the command of 
 those who made it", and he urged the legislature to take prompt 
 measures "to save unimpaired the public faith", for under no 
 circumstances, added the governor, "will the State of New York 
 ever refuse to acknowledge and pay any and all just claims that 
 exist against her, or that may have been contracted by any of her 
 authorized agents." Chapter 271 of the Laws of 1859, author- 
 ized, subject to popular approval, a loan to the State of two and 
 a half million dollars to defray these claims, and the imposition 
 of a direct tax upon real and personal property to be collected 
 proportionately in the several counties to meet the loan and inter- 
 est upon it. The bond issue was accordingly authorized by the 
 people at the election of 1859. 
 
 A large debt grew out of the bounties offered for the enlist- 
 ment of soldiers in the Civil War. Governor Morgan, in the 
 special message of April 15, 1861, evoked by President Lin- 
 coln's proclamation calling for a force of 75,000 men, of 
 which the quota assigned to New York was 13,000, offered a 
 State bounty of fifty dollars to each volunteer, and large sums 
 
 308 
 
HISTORY OF NEW YORK 
 
 besides were voted in various localities of the State as additional 
 premiums to soldiers enlisting in the service. The burden upon 
 the towns and municipalities was so heavy that it was eventually 
 felt that the State should assume it. Governor Seymour recom- 
 mended the passage of suitable legislation for this purpose, and 
 accordingly a reimbursing act was passed in 1866 imposing a tax 
 of two per cent, on taxable real and personal property in the 
 State, to raise money to pay these bounties, in case the people, by 
 popular vote, should approve the procedure. The act authorized 
 an issue of not exceeding thirty million dollars payable in twelve 
 years. The people, by a vote at the fall election of 1866, approved 
 the bond issue, the vote being 393,113 in favor to 218,665 against, 
 and bonds were issued to the extent of $27,644,000. This debt 
 was extinguished at its maturity, although the convention of 
 1867 had proposed its extension to 1886. Governor Robinson in 
 his message in 1878 congratulated the legislature upon the pay- 
 ment of the debt, which had fallen due on April 7, 1877. The 
 debt, he said, had been a heavy burden upon the taxpayers of the 
 State, the whole amount paid by them during the twelve years 
 which it had run being $43,270,337.47. The extent to which the 
 moneys supplied by the generosity of the commonwealth reached 
 "the soldiers, remains matter of uncertainty; as Governor Tilden 
 said, in his message of 1876, the bounty debt was an "after war 
 adjustment." It was created, as the comptroller had said in his 
 report of 1875, "nominally to pay bounties to the volunteer sol- 
 diers who enlisted in the service of the United States during the 
 Rebellion, but only an inconsiderable part of this sum is believed 
 to have reached the soldiers who were actually engaged in the 
 contest." 
 
 Early in the Civil War, Congress imposed a diriect tax for 
 war purposes of $20,000,000, to be apportioned among the States, 
 and the act fixed the share of each, that of New York being 
 
 309 
 
LEGAL AND JUDICIAL 
 
 $2,603,916.67. The law enacted that any State might assess or 
 collect the tax in its own way, through its own officers, provided 
 it paid the same into the national treasury. Governor Morgan 
 recommended that the State assume its quota at once, and the leg- 
 islature accordingly by concurrent resolution authorized the gov- 
 ernor to notify the Secretary of the Treasury that its share of the 
 tax would be paid on or before June i, 1862.^ 
 
 After the declaration of war against Spain, the legislature, 
 upon the suggestion of Governor Black, in extra session appro- 
 priated $1,000,000 to defray the expenses of the National Guard 
 and Naval Militia of the State, and volunteers furnished 
 by it when called into service for the public defence, on the requi- 
 sition of the president. Payments were to be made only upon the 
 certificate of the governor. The act imposed a tax for the pur- 
 pose of raising the amount appropriated. 
 
 By vote of the people, as has been seen, the power to incur 
 a canal debt of $9,000,000, and afterwards of $101,000,000, was 
 approved at the polls, and in 1905 the term during which any 
 State debt thereafter incurred might run, was extended to fifty 
 years. By the same amendment the provision forbidding a vote 
 upon any proposition to incur or increase a debt simultaneously 
 with any other constitutional amendment, was eliminated, the 
 constitution now reading upon this point as follows: "No such 
 law shall be submitted to be voted on within three months after 
 its passage, or at any general election when any other law or any 
 bill shall be submitted to be voted for or against." There was 
 also added in the same year the following provision : "The legis- 
 lature may provide for the issue of bonds of the State to run for 
 a period not exceeding fifty years, in lieu of bonds heretofore au- 
 thorized but not issued, and shall impose and provide for the 
 
 12. See also Chapter 192, Laws of 1862. 
 
 310 
 
HISTORY OF NEW YORK 
 
 collection of a direct annual tax for the payment of the same as 
 hereinbefore required. When any sinking fund created under 
 this section shall equal in amount the debt for which it was 
 created, no further direct tax shall be levied on account of said 
 sinking fund and the legislature shall reduce the tax to an amount 
 equal to the accruing interest on such debt." This last provision 
 saves the State from repeating the unfortunate experience of 
 New York City in regard to sinking funds. The growth of the 
 surplus revenues of the sinking funds of the city had become so 
 enormous by 1903 as to justify a law, almost trenching upon the 
 contract rights of the city's bondholders, diverting into the city's 
 general fund a large annual sum. Under the State constitution, 
 whenever the sinking fund shall have become equal to the debt, 
 increase in the fund automatically stops by the cessation of the 
 direct tax which is its source of supply. By an amendment of 
 the same year the imposition of a direct tax for the payment of 
 the principal and interest of certain State debts, ceased to be man- 
 datory, and it was made optional with the legislature to provide 
 for the discharge of the bonded debt either by direct taxation or 
 from indirect sources of revenue.^ The vote in 1905 in favor of 
 this amendment was 293,552, against 127,364; majority 166,108. 
 
 In 1905 there was also added a new section (12) to the 
 seventh article of the constitution, authorizing a debt for the 
 improvement of highways. Rome had been celebrated for her 
 great state roads, which during the latter days of the republic 
 and the early years of the empire had been extended all over 
 Europe and into Asia Minor ; and these avenues of commerce and 
 communication were important agencies in the rapid diffusion of 
 Christianity. The use of the bicycle, and later of the automobile, 
 focussed public attention upon the archaic state of the highways 
 
 13- Comptroller's Report, 1906, XXX. 
 
 3" 
 
LEGAL AND JUDICIAL 
 
 of New York, with the result that an amendment was formulated, 
 passed by two legislatures and adopted by the people, the vote in 
 its favor being 307,768, against it 134,773; majority 172,995. The 
 aggregate of the highway debt may not at any time exceed fifty 
 millions of dollars. Annual interest and amortization instalments 
 are to be provided for by general laws, and the legislature may by 
 such laws require a county or town or both to pay to the sinking 
 fund the proportionate part of the cost of any such highway 
 within the boundaries of the county or town, and its proportionate 
 part of the interest, but no county shall at any time, for any high- 
 way, be required to pay more than 35-100 of the cost, and no 
 town more than 15-100. No provision of the fourth section is 
 to apply to debts for the improvement of highways. This amend- 
 ment has greatly stimulated road improvement; already two 
 thousand three hundred miles of State roads which form the 
 leading arteries of communication have been completed, and in- 
 termediate or minor roads between counties and townships have 
 to a large extent already been improved. The systems of taxa- 
 tion gradually evolved are apparently permanent and will assure 
 abundant revenues ; but the temptation to excessive expenditures 
 grows with the ease with which resources are supplied. Since 
 the State expenditures have grown in sixteen years from a lit- 
 tle more than $15,000,000, to almost $40,000,000 per year, it is 
 time to consider whether government is wisely administered, 
 whether the numerous State commissions are necessary, and 
 whether their administration is conducted with such regard to 
 economy as to take the sting from taxation. 
 
 312 
 
CHAPTER XVI 
 
 SOME CONTRASTS BETWEEN THE EARLIER COURTS OF THE STATE 
 AND PRESENT TRIBUNALS — THE CONSTITUTIONAL COMMISSION 
 OF 1890 — TREATMENT OF THE JUDICIARY BY THE CONVEN- 
 TION OF 1894 — ^THE NEW COURT OF APPEALS — ^THE APPELLATE 
 DIVISIONS — ABOLITION OF THE SUPERIOR COURTS — SURROGATES' 
 COURTS — JUDICIARY PENSIONS — RECENT CONSTITUTIONAL 
 AMENDMENTS AFFECTING THE JUDICIARY — THE WORK OF THE 
 COURTS — THEIR POWER TO DECLARE LEGISLATION VOID — COURTS 
 AND PUBLIC OPINION — INDEPENDENCE OF COURTS VITAL FU- 
 TILE ATTEMPTS IN CONGRESS TO BRING FEDERAL JUDICIARY 
 UNDER POPULAR CONTROL — ITS UNWISDOM. 
 
 When the courts of the early State are contrasted witli 
 present tribunals, very marked differences are brought sharply 
 to notice. The highest appellate court in the latter part of the 
 eighteenth and first part of the nineteenth century was a large 
 and unwieldy tribunal. All of the senators participated in the de- 
 cisions, although comparatively few wrote opinions. In this re- 
 spect the court was unlike the House of Lords, the final court 
 of appeal in Great Britain. There the law lords alone really con- 
 stitute the court. The early Supreme Court, on the contrary, 
 consisted of but three members, who guarded their prerogatives 
 so jealously that they were unwilling to share them with a lar- 
 ger number. Under the second constitution the court of errors 
 and appeals continued unchanged (save as to actual numbers), 
 the Supreme Court became a court exclusively of appellate juris- 
 diction and the circuit judges sat at nisi prius and oyer and ter- 
 
LEGAL AND JUDICIAL 
 
 miner. Under the constitution of 1846 the court of appeals 
 which superseded the old court of errors was an unstable tri- 
 bunal. 
 
 It is an interesting fact, illustrative of the instability of 
 the first Court of Appeals, that in its existence of twen- 
 ty-three years there sat in it one hundred and four different 
 judges, while in the period between July, 1870, and the present 
 time the number of judges in the newly organized Court of Ap- 
 peals has been only thirty-four, and since the formation of the 
 federal constitution only sixty-four justices have been members 
 of the highest judicial tribunal of the nation. 
 
 The growth of population has necessitated a great increase 
 in the number of justices of the Supreme Court. The judges of 
 the original court who were so tenacious of their authority that 
 they would never permit the tribunal to be enlarged could not 
 have foreseen the enormous augmentation in the number of Su- 
 preme Court justices to follow in less than a hundred years. 
 They would perhaps have considered so large a court incompat- 
 ible with the dignity of the office. It would not have been a court 
 of which they would ever have aspired to be members. Perhaps 
 enlargement may have a tendency to cheapen the place : neverthe- 
 less judicial business seems to require a great number of judges. 
 The federal tribunals contain in all one hundred and sixteen 
 judges; no other State has anything like the relative number of 
 judges that New York has. 
 
 With numerous changes every year in the personnel of the 
 highest court of the State between 1847 and 1870, the marvel 
 is that there was not far more uncertainty in the law. The 
 strongly conservative habit of judges kept them faithful to legal 
 precedents. In 1846 the size of the highest tribunal had been re- 
 duced to eight, although its membership unfortunately kept con- 
 
 314 
 
HISTORY OF NEfF YORK 
 
 stantly changing. In 1870 a small court was continued, but it was 
 rendered more compact, and all its members were elected at 
 large throughout the State, thus ensuring a stable tribunal. Al- 
 though an enlargement of the Court of Appeals has several times 
 been suggested sentiment in favor of enlargement has never 
 been sufficiently influential to effect a change, and the members 
 of the court itself have almost uniformly been hostile to it. 
 
 The inability of the court to keep pace with its business and 
 promptly dispose of the causes before it led the judiciary com- 
 mittee in the convention of 1867 to suggest the organization of 
 a temporary commission of appeals, and when the work of the 
 court again fell into arrears, as it did about 1887, a second di- 
 vision of the Court of Appeals was organized, the constitution 
 having been amended to permit of its creation.^ But two co-or- 
 dinate courts of appeal could not well co-exist without diverg- 
 ence of opinion and the introduction of a degree of uncertainty 
 into the law. The tendency of the court when not under most 
 efficient management being to fall behind with its calendars, it 
 was felt soon after the second division had disbanded either that 
 the Court of Appeals must be increased or that its jurisdiction 
 must be circumscribed and the number of appeals reduced. To 
 bring about this last result and to create an intermediate appel- 
 
 I. In 1887 a proposed constitutional amendment was passed by the 
 legislature authorizing the governor, upon certification by the Court o£ 
 Appeals that its calendar had proven too heavy for prompt disposition, to 
 designate seven justices from the Supreme Court to act as a Second 
 Division of the Court of Appeals and hear and decide the causes assigned 
 to it by the original court. The proposed amendment having passed the: 
 legislature of 1889 also was submitted to and ratified by the people at 
 the fall election of that year. The Second Division commenced its hear- 
 ings on March s, 1891, and closed its work on October i, 1892. AH such, 
 schemes as Commissions of Appeals and Second Divisions were felt to- 
 be mere temporary makeshifts. The aim of the commission of 1890 and', 
 afterwards of the convention of 1894 was so to reconstitute the Court 
 of Appeals as to render it efficient in the despatch of business, while main- 
 taining it as a small and harmonious tribunal. 
 
 315 
 
LEGAL AND JUDICIAL 
 
 late tribunal of sufficient distinction and character to furnish a 
 court of last resort in many important cases was the chief task 
 of the commission of 1890. 
 
 Although the people in 1886, by a decisive vote, favored the 
 call of a constitutional convention, no law for the election of del- 
 egates was enacted until 1892, as the Republican legislature and 
 the Democratic governor were unable to agree upon the man- 
 ner of their choice. But as it had become apparent in the inter- 
 val that the judicial system needed correction, the legislature on 
 April 26, 1890, passed an act — ^authorizing the appointment by 
 the governor, with the advice and consent of the senate, of a 
 commission to propose amendments to the judiciary article of the 
 constitution.^ The commission doubtless had its origin in the 
 failure of the legislature and the governor to agree upon a bill 
 for a constitutional convention. The commission was to consist 
 of thirty-eight persons, four from each judicial district except the 
 first district which was to have eight, and the second district which 
 was to have six members. Not more than one-half of the num- 
 ber of members from each district were to belong to the same po- 
 litical party. The commission was limited to the duty of proposing 
 amendments to the judiciary article of the constitution. The 
 persons selected by the governor were, as a rule, lawyers who 
 had achieved high distinction in the profession. The commis- 
 sion organized at Albany, June 3, 1890, and elected ex- Judge 
 George F. Danforth chairman. Its report was submitted to the 
 senate on March 4, 1891. 
 
 Briefly stated, the report of the commission favored a single 
 Court of Appeals unchanged in number, general terms of enlarged 
 jurisdiction, the abolition of The Superior Court of the City of 
 New York on December 31, 1894, and the continuance of the 
 
 2. Chapter 189, Laws of 1890. 
 
 316 
 
HISTORY OF NEW YORK 
 
 Court of Common Pleas for the City and County of New York, 
 the City Court of Brooklyn, and the Superior Court of Buffalo, 
 but without appellate jurisdiction. It proposed that the State be 
 divided into four judicial departments and that the governor 
 should designate the justices who were to sit at general term; 
 and that general term justices should exercise none of the powers 
 of justices of the Supreme Cour,t other than those pertainmg to 
 the general terms of which they were respectively to be members. 
 At first it outlined a theory for the election of twenty general 
 term justices by the State at large, the purpose of which was to 
 secure for this appellate court men recognized for their legal 
 attainments throughout the entire State. But as neither the bar 
 nor the public approved the policy of electing these justices upon 
 a general ticket, (which would have required each party to nom- 
 inate its best men), the commission modified its plan so as to 
 provide for the continuance of the Supreme Court justices 
 throughout the State in judicial districts, twenty to be selected 
 by the governor to preside in the several general terms. The 
 district system is undoubtedly less likely to secure commanding 
 talent, for a lawyer of mediocre ability may achieve popularity 
 in a district. The judicial departments were made alterable 
 every ten years by the legislature. An attempt to reduce the 
 terms of Supreme Court justices to eight years was wisely voted 
 down, — 23 to 10. 
 
 The theory underlying the report of the commission as it has 
 been stated by one of its members,^ was that an appellate court 
 possessed two functions: (i) to apply the law as previously 
 laid down by the courts and the legislature to the case at bar and 
 to correct any substantial errors committed by the courts 
 below; (2) to decide new questions of law and to lay down rules 
 
 i802^' ^'"'^"^ ^- Hornblower, 5 Columbia Law Times, (No. 6), March, 
 
 317 
 
LEGAL AND JUDICIAL 
 
 for the guidance of the courts in future cases. The first of these 
 functions primarily concerns the individual; the second affects 
 the community at large. The great proportion of litigations 
 should, upon this theory, never be carried beyond the first appel- 
 late court, — the general term. Its decision in applying the law to 
 the facts should be conclusive unless some doubt should arise as 
 to the underlpng principle of law or unless such important ques- 
 tions were involved as to render it desirable in the interests 
 of the State at large that the Court of Appeals should consider the 
 case. The commission was justly opposed to two co-ordinate 
 courts of appeal and opposed also to a court of fifteen judges, — 
 a proposition widely urged. The commission's remedy was first 
 to enlarge the number of judges sitting at the general term to 
 at least five, instead of leaving the number at three; to select the 
 judges from a greater territory than one district or department in 
 order to eliminate or at least lessen local influence or prejudice 
 (although this mode of selection was afterwards abandoned and 
 the plan of having five judges residents of each department sub- 
 stituted), and to prohibit appeals to the Court of Appeals wherever 
 there was a unanimous affirmance by the general term of the de- 
 cision in the first instance, unless such important questions were 
 involved as the general term should certify to the Court of Ap- 
 peals for its consideration, or unless the case itself fell into the 
 category of cases which might be supposed to present difficult 
 and intricate questions of law. 
 
 The recommendations of the commission were not approved 
 by the legislature of that year. That body differed seriously 
 with the commission regarding the proper size of the Court of 
 Appeals, for it adopted a resolution for an amendment to the con- 
 stitution the substance of which was that the court should be 
 composed of a chief judge and fourteen associate judges, the 
 
 318 
 
HISTORY OF NEW YORK 
 
 chief judge and associate judges then in office to compose a part 
 of the court until the expiration of their respective terms, and 
 that no elector should vote for more than one-half of the number 
 of judges at any election at which an even number was to be chos- 
 en. The principles underlying the work of the commission were 
 unimpeachable and its report was of great value. As in the case of 
 the convention of 1867, the labor of the commission was not fu- 
 tile, although its report was never fully accepted. The substance 
 of it in form and theory was incorporated in the constitution 
 drafted by the convention of 1894 and was accepted by the people 
 with the other provisions of that instrument. 
 
 The controversy between the legislature and the governor 
 respecting the mode of electing delegates to a constitutional con- 
 vention, which had continued for several years after the popular 
 vote for a convention in 1886, came to an end in 1892, when 
 both the legislature and the governor were democratic. One of 
 the most important subjects considered by the convention which 
 assembled in the spring of 1894 was the proper manner of amend- 
 ing the judiciary article. The need of improvement in the ju- 
 dicial system had become increasingly evident since the failure of 
 the legislature to permit the work of the commission of 1890 to 
 be submitted for popular approval. 
 
 Upon the judiciary committee of the convention of 1894 
 were seventeen prominent lawyers from various parts of the 
 State; two of them (Joseph H. Choate and Louis Marshall) 
 had been influential members of the commission of 1890. The 
 plan adopted in committee was in essence similar to the plan 
 previously favored in the commission. Two methods of relief 
 of the over-burdened Court of Appeals were proposed in the com- 
 mittee. The first involved either an increase in the membership 
 of the court, or its division into two coordinate tribunals, but to 
 
 319 
 
LEGAL AND JUDICIAL 
 
 both of these there were obviously grave objections and neither 
 was approved by the judges themselves. The other plan of re- 
 lief was to restrict the classes of cases to be appealed, and so 
 reduce the volume of work as to bring it within the control of 
 a court of moderate numbers in which consistency of legal view 
 might be attainable. As the best solution of the problem the ju- 
 diciary committee accepted the idea of a small court for the re- 
 view of abstract questions of law, and accordingly reported to 
 continue the Court of Appeals as previously constituted, but with 
 limitations upon its powers. The plan of the committee was ap- 
 proved by the convention. The jurisdiction of the court was 
 after December 31, 1895, to be confined, as provided ip a new 
 section (9), of the judiciary article, to the review of questions 
 of law, except in capital cases. The money limitation upon 
 appeals was to be abandoned and a section briefly enumerating 
 the subjects of which the court of last resort might take cc^- 
 nizance, was adopted by the convention in lieu of the more 
 cumbersome phraseology used by the commission of 1890. Thus, 
 it was believed, would happily be solved the problem of continu- 
 ing the court as a unit of workable size and at the same time 
 insuring "consistent declaration and development of the law". 
 
 For the general term system, with nine tribunals,* co-ordin- 
 ate or nearly so, often diverse in views of law, the judiciary 
 committee of the convention proposed to substitute a court that 
 should be the ultimate tribunal in the vast majority of cases. In 
 the creation of this court it was desirable to cure, so far as prac- 
 ticable, the weakness of the former system, which it was pro- 
 
 4. The constitutional amendment of 1882 created an additional de- 
 partment. Thus, with five departments of the supreme court exercising 
 appellate functions and with general terms in the Court of Common 
 Pleas in New York County and in the three superior city courts there 
 were in 1894 nine tribunals of practically coordinate jurisdiction. 
 
 320 
 
HISTORY OF NEW YORK 
 
 posed to remedy by the division of the State into four depart- 
 ments, and the creation of appellate tribunals of such size and 
 strength as to satisfy the bar and the public that it would be a 
 worthy court of last resort for the great bulk of suitors. "Its 
 judgments," said the judiciary committee, "were to be made final 
 in a much wider range of questions through limitations upon 
 the jurisdiction of the Court of Appeals"; it was to be made large 
 enough "to insure full discussions and the correction of individ- 
 ual opinions by the process of reaching a consensus of opinion", 
 and for the attainment of these ends, its members were to be re- 
 lieved from all circuit and special term duties. As the name 
 "general term" was considered meaningless, the title suggested 
 for the new court was that of "appellate division." The appel- 
 late division in the first department was to consist of seven 
 judges, five forming a quorum. In each of the other departments 
 the court was to consist of five judges, four of whom were to 
 form a quorum. 
 
 The convention wrought a beneficent work when it pro- 
 posed the abolition of the superior city courts. There were 
 splendid traditions attached to all of these tribunals, but they had 
 fulfilled their functions. In so far as their jurisdiction was 
 transcended by that of the Supreme Court, positive injury had 
 
 S. Of the foregoing portion of the convention's treatment of the 
 judiciary, Mr. Lincoln, its historian, well says: 
 
 "The Convention of 1894, was fortunate in being held so soon after 
 the judiciary commission of 1890 had submitted its recommendations to 
 the legislature, and whose work was thus fresh in the minds of law- 
 yers; it was also fortunate in having among its delegates two prominent 
 members of that commission, — Mr. Choate and Mr. Marshall, — who were 
 able to speak intelligently^ of the plans, purposes, and deliberations of the 
 commission. * * * It is a high tribute to that commission, whose work 
 was, apparently, not well received at the time, and which was not con- 
 sidered by the legislature, that in less than four years the chief features 
 of the judiciary system proposed by it were incorporated in the constitu- 
 tion by a convention which apparently could find no better solution of the 
 then troublesome judiciary problem." 
 
 321 
 
LEGAL AND JUDICIAL 
 
 often been wrought to litigants because of the difficulty of fix- 
 ing the lines beyond which their circumscribed authority did not 
 extend; and as in their later history their jurisdiction grew by 
 legislation to be practically commensurate with that of the Su- 
 preme Court, all reason for their separate existence had ceased. 
 The day, let us hope, will eventually dawn when the probate 
 court, with its numerous important functions, will be merged 
 in the Supreme Court, and the serious difficulties regarding its 
 jurisdiction which have often perplexed lawyers and worked 
 injury to estates, altogether disappear. Conflicts in which the 
 question of jurisdiction is alone involved are most senseless and 
 most inexcusable. There would seem to be no reason why a 
 will should not be proved in the Supreme Court in every in- 
 stance, the proceeding being instituted by summons instead of 
 by citation. Accountings should all take place in that court. 
 Such anomalies as the upholding of a will as valid in so far as it 
 disposes of personal estate and the adjudging it to be invalid as a 
 will of real estate, (anomalies which have actually occurred), 
 would then cease.' 
 
 The constitutional commission of 1890 was in favor of 
 abandoning pensions to judges elected after November i of that 
 year, but unable to complete their term of office because of age. 
 It proposed to continue the pension as to judges then in office, 
 provided that to receive a pension a judge should have served 
 
 6. In the English system of jurisprudence, courts of probate and 
 divorce have been welded with the common law courts. A special com- 
 mittee of distinguished lawyers recently reported to the American Bar 
 Association in favor of a unification of the judicial system, declaring that 
 the whole judicial power of each state, at least for civil causes, should 
 be vested in one great court, of which all tribunals should be branches, 
 departments or divisions. The business as well as the judicial adminis- 
 tration of this court should be thoroughly organized so as to prevent not 
 merely waste of judicial power, but all needless clerical work, duplica- 
 tion of papers and records, and the like, thus obviating expense to litigants 
 and cost to the public. 
 
 322 
 
HISTORY OF NEW YORK 
 
 ten years of the term abridged by the age limit. The judiciary 
 committee in the convention of 1894 and also the convention itself 
 substantially adopted the recommendations of the commission of 
 1890, the only difference in plan being that the convention of 
 1894 proposed that no judge elected after January i, 1894, 
 ■should be entitled to receive a pension by reason of the reduction 
 of his actual term of office by the age limitation. 
 
 The judiciary system, as the convention of 1894 proposed 
 to reconstruct it, was approved by the people together with the 
 other work of the convention. In the main it has given satis- 
 faction. Some particulars in which it has not worked with com- 
 plete success will be mentioned later. The only constitutional 
 changes made in it in more recent years have been the increase 
 in the number of trial justices in certain districts, notably the 
 first and the second, and the creation of a ninth judicial district 
 within the second department out of the counties of Westchester, 
 Dutchess, Putnam, Orange and Sullivan, formerly included in the 
 second district. The popular decision to continue the elective 
 system was so emphatically expressed in 1873 that the subject of 
 a return to the appointive system was hardly discussed in the 
 commission of 1890 or the convention of 1894. 
 
 The appellate divisions have in the main been well equip- 
 ped, the designations of justices have been excellent, and the new 
 courts in the fifteen years of their existence have made valuable 
 contributions to the jurisprudence of the State. In their rule- 
 making functions they may perhaps exercise too much power 
 over justices sitting at trial and special terms, for these inter- 
 mediate appellate courts are authorized to designate the parts 
 in which trial judges shall preside during each year. If criticism 
 of the new constitution may be ventured, it would seem to have 
 failed in successfully limiting the Court of Appeals to the review 
 
 323 
 
LEGAL AND JUDICIAL 
 
 of questions of law.' There is an apparent incopipatibility be- 
 tween two provisions of section 191 of the Code of Civil Pro- 
 cedure, one of which declares that the jwrisdiction of the Court of 
 Appeals shall be limited to the review of questions of law, the 
 other of which permits review of facts in certain classes of cases, 
 where there has not been a unanimous decision in the appellate 
 division. The wisdom of the provision that the legislature may 
 restrict the jurisdiction of the Court of Appeals is questionable, 
 although somewhat like power was lodged in the legislature by 
 the constitution of 1867. Yet when a similar suggestion was 
 made in the convention of 182 1, it was voted down, for it was 
 felt that the jurisdiction of the highest court should not be 
 susceptible of change at the instance of a co-ordinate depart- 
 ment of government. The power may never be employed, but 
 the jurisdiction of the Court of Appeals might be reduced to a 
 mere shadow by a hostile legislature. The Supreme Court of 
 the United States would many .years ago have been stripped of 
 much of its jurisdiction had Congress had any equivalent power 
 over it. In this the State constitution differs from the federal con- 
 stitution, which declares the jurisdiction of the Supreme Court 
 
 7. It is rare today for a judge to merit praise for terse and_ compact 
 writing, such praise as was justly given by D. D. Barnard to Chief Judge 
 Spencer. Speaking of his brief yet masterly opinion in Griswold v. 
 Haddington, 15 Johnson's Reports, 57, his biographer says: "The opinion 
 is comprised in about four pages of the volume where it is found, and it 
 would be hard to find in the whole range of our judicial records a more 
 clear, comprehensive, condensed, well-reasoned and conclusive opinion. 
 John Marshall, Theophilus Parsons and Ambrose Spencer were, I think, 
 the only judges of their time in this country who delivered such opinions 
 as this." The opinions of the court of last resort in this state at present 
 deal too elaborately with questions of fact. It was expected that recent 
 constitutional changes would relieve the court altogether of the necessity 
 of discussing the facts; the contrary seems to be the result. In many 
 cases the differences between the judges, often expressed in long opinions, 
 arise from the contradictory interpretations which they put upon the facts. 
 The province of the court should be to deal solely with questions of 
 law. Consideration of the facts or of the appropriate deductions from 
 the facts should end with the appellate divisions. 
 
 324 
 
HISTORY OF NEW YORK 
 
 of the United States, while it permits Congress to ordain and 
 establish inferior courts and to fix their powers. 
 
 As through some praetorian edict in ancient Rome, the crit- 
 ical historian gains a vivid idea of the character and habits of its 
 people, so through judicial decisions the life of modern society 
 becomes comprehensible and is invested with an intense human 
 interest. The reported cases contain a dramatic history of per- 
 sonal strife, family contentions, commercial and political rival- 
 ries, struggles of classes and of ideas ; they mark also the mile- 
 stones of constitutional evolution. The first Supreme Court and 
 the court of errors were the tribunals of a new country, largely 
 agricultural, in which questions of title to land were of first im- 
 portance, — a commonwealth dominated by great landed interests, 
 but deficient in manufacturing resources and in wealth. The cases 
 of that day were mostly trespass and ejectment, or grew out of 
 claims upon marine policies for losses upon the high seas during 
 the Revolution. Numerous legal complications sprang from the 
 wars in Europe, and, later, from the War of 1812, between 
 Great Britain and the United States. In the second period 
 the Supreme Court remained unchanged, but the causes be- 
 fore it increased in variety and complexity. There are many 
 "per curiam" or "curia" opinions in the volumes of the 
 reports of this epoch, and opinions rarely reached the 
 length of the ordinary judicial opinion of the present day. 
 New classes of litigations began to tax the consideration of the 
 judiciary, among them cases of powers and trusts, due to the 
 revision of the statutes in 1828. Later, an even more highly 
 organized society is revealed in the decisions, which include con- 
 troversies about fire insurance, banking, negotiable instruments, 
 sales of personal property and other suits indicative of the exist- 
 ence of a mercantile community, and later still come cases arising 
 
 325 
 
LEGAL AND JUDICIAL 
 
 from the creation and operation of railroads and the develop- 
 ment of cities. The law of negligence in its various ramifications 
 is the theme of numerous decisions, the law of eminent domain of 
 many others, and almost a legion of causes has grown out of the 
 many aspects of corporation law. The cases well exhibit what 
 has somewhere been called "the ever growing miscellaneousness 
 of modern society". The bulk of decisions has been increased 
 by discussions necessitated by the passage of the Code of Pro- 
 cedure, and later the Code of Civil Procedure. 
 
 For forty-six years judicial and legislative functions 
 were strangely commingled, judges sitting as legislators in the 
 council of revision, and senators sitting as judges in the Court 
 of Errors. In the second period the senators still did judicial 
 duty, although the council of revision had passed into oblivion. 
 Sharper lines of demarcation between the legislature and the 
 judiciary were drawn in the constitution of 1847, and 
 the judiciary employed the power peculiar to American consti- 
 tutional government of passing in litigations in the courts upon 
 the constitutionality of acts of the law-making body. In few 
 instances under the first and the second constitution did the 
 courts declare acts of the legislature void. The infrequency of 
 such decisions has sometimes been ascribed to the fact that the 
 council of revision was in the habit of vetoing unconstitutional 
 laws. That explanation is not satisfactory. Of the 6,590 bills 
 which came before the council it vetoed only 83 on constitutional 
 grounds. The council fell when the second constitution went 
 into operation, and during the life of that constitution few 
 statutes were declared repugnant to it. The cases were rare in 
 which prior to 1847 legislation had been abrogated as infringing 
 the organic law of the State : in fact the date when the courts of 
 this State began freely to use this power might be put far later 
 
 326 
 
HISTORY OF NEW YORK 
 
 than 1847. While members of the senate sat in the court of er- 
 rors that court may have been less likely to condemn statutes in 
 the passage of which many of its members had taken part. With 
 due allowance for all this it is, nevertheless, a patent fact that 
 the tendency of the judiciary to nullify legislation has greatly 
 increased during the last few decades. 
 
 Two causes may be assigned : the deterioration in the char- 
 acter of legislation, and the greater complexity of the constitution 
 together with the numerous checks which it puts upon legisla- 
 tive action. Whether legislation is less perfect than form- 
 erly there is no means of ascertaining. Bills are drawn 
 with haste and carelessness, yet there is far keener pub- 
 lic scrutiny of legislative measures. Legislatures and gov- 
 ernors do occasionally pass and approve bills of doubtful 
 constitutionality leaving it to the courts to apply the corrective; 
 but this does not often happen. The greater complexity of the 
 constitution and the great number of checks it has affixed to 
 legislative action explain the growing tendency of the courts 
 to declare legislation void. The judiciary have no wish to usurp 
 functions of the veto power, but the responsibility of annulling 
 unconstitutional laws is theirs. If the constitution to-day pre- 
 scribes a score of checks upon the legislature where but one or 
 two existed sixty years ago, the judges must fulfil their obliga- 
 tions. In an age when criticism of the courts is too common, 
 when they are censured by public men and the press for doing 
 what is a simple matter of duty, it should be remembered that the 
 duty is not self-assumed — but a task that the people have im- 
 posed upon them. Nor do courts of their own impulse pass upon 
 legislation, however offensive it may be to constitutional princi- 
 ples; they await the demand of some aggrieved individual who 
 
 327 
 
LEGAL AND JUDICIAL 
 
 formulates his objection in a suit. Thus direct collisions among 
 the several departments of government are avoided.* 
 
 8. Thayer, in his Cases on Constitutional Law, discusses the origin 
 of the power of the judiciary to declare legislation unconstitutional. He 
 asserts that it arose as a natural result of our political experience before 
 the war of independence, — as being colonists governed under written 
 charters of government proceeding from the English crown, — ^that after 
 this and by way of analogy the power seemed naturally applicable to 
 written constitutions. This new application of judicial power was, he 
 says, not universally assented to, was denied by several members of the 
 federal convention, and was referred to as unsettled by various judges 
 in the last two decades of the eighteenth century. "In Vermont it seems 
 to have been the established doctrine of the period that the judiciary 
 could not disregard a legislative act, and the same view was held in 
 Connecticut as expressed in 1795 by Swift, afterwards Chief Justice of 
 that state. * * * As late as 1807 and 1808, judges were impeached 
 by the legislature of Ohio for holding acts of that body to be void." 
 
 New York seems to have been a leader in maintaining the power 
 of the judiciary to nullify legislation in contravention of the constitution. 
 In Rutgers v. Waddington, the first case which Hamilton argued. Judge 
 Duane in the Mayor's Court of New York City, held void as unconstitu- 
 tional an act of the legislature of 1783 called forth by anti-Toiy senti- 
 ment. The statute provided that any one who by reason of the invasion 
 of the enemy had left his place of abode might bring an action of tres- 
 pass and recover daimages against any person who had occupied it or 
 had injured his real or personal property, or against any one who had 
 received his goods or effects while the same was under the control of 
 the enemy. The statute forbade the defendant from setting up by way 
 of defence that the property was occupied, injured or destroyed by a 
 military order or command. Hamilton contended that the statute was in 
 violation of the law of nations and of the treaty between the United 
 States and Great Britain, and Duane in his judgment supported Hamil- 
 ton's view. The treaty he said "bound the whole confederacy and every 
 state and no member of the compact could alter, abridge or impair it". 
 With his usual perspicacity Hamilton, in The Federalist, argued that 
 the judiciary must have the power to pronounce legislative acts void. 
 It was urged that the authority which could declare tiie acts of another 
 void must necessarily be superior to the one whose acts may be declared 
 void. "There is no position which depends on clearer principles, than 
 that every act of a delegated authority, contrary to the tenor of the com- 
 mission under which it is exercised, is void. No legislative act, therefore,, 
 contrary to the constitution, can be valid. To deny this, would be to 
 affirm, that the deputy is greater than his principal; that the servant is 
 above his master; that the representatives of the people are superior to 
 the people themselves; that men, acting by virtue of powers, may do 
 not only what their powers do not authorize, but what they forbid. "" 
 *****♦♦**♦ 
 
 The interpretation of the laws is the proper and peculiar province of the 
 courts. A constitution is, in fact, and must be, regarded by the judges 
 as a fundamental law. It must therefore belong to them to ascertain its 
 meanm^, as well as the meaning of any particular act proceeding from 
 the legislative body. ******iS.*** 
 
 328 
 
HISTORY OFNEWYORK 
 
 How admirably this system makes for tranquillity and pre- 
 vents friction between the national and the State government 
 has often been noted by foreign writers. As Mr. Bryce ob- 
 serves : "The court does not go to meet the question ; it waits 
 for the question to come to it. When it acts, it acts at the in- 
 stance of a party. * * * This method has the merit of not 
 hurrying a question on, but leaving it to arise of itself. * * 
 
 * A State might be provoked to resistance, if it saw as soon 
 as it had passed a statute, the federal government inviting the 
 Supreme Court to declare that statute invalid."* 
 
 Sir Henry Maine in his essay upon "Popular Government" 
 says the process of annulling legislation by suit "is slower, but it is 
 freer from suspicion of pressure and much less provocative 
 of jealousy than the submission of broad and emergent propo- 
 sitions to a judicial body; and this submission is what an Euro- 
 pean foreigner thinks of when he contemplates a Court of Jus- 
 tice deciding on alleged violations of a constitutional rule or 
 principle."^" 
 
 Had the constitution of the United States like the first con- 
 stitution of the State of New York authorized a council of re- 
 
 "Nor does the conclusion by any means suppose a superiority of the 
 judicial to the legislative power. It only supposes that the power of the 
 people is superior to both; and that where the will of the legislature de- 
 clared in its statutes stands in opposition to that of the people declared 
 in the constitution, the judges ought to be governed by the latter, rather 
 than the former. They ought to regulate their decisions by the funda- 
 mental laws, rather than by those which are not fundamental." 
 
 The power of the federal courts to nullify State statutes in conflict 
 with the federal constitution was thus argued (LXXX) : "What would 
 avail restrictions on the authority of the State legislatures without some 
 constitutional mode of enforcing the observance of them? * * * 
 This power must either be a direct negative on the State laws, or an 
 authority in the federal courts to overrule such as might be in manifest 
 contravention of the articles of the Union. There is no third course that 
 I can imagine." 
 
 9. American Commonwealth, I, p. 252. 
 
 10. Popular Government, p. 224. 
 
 329 
 
 22 
 
LEGAL AND JUDICIAL 
 
 vision to interpose its veto, the peace of the country would time 
 and again have been threatened and perhaps overthrown. The 
 serious collisions between the council of revision and the State 
 legislature about bank charters and measures to strengthen the 
 federal government in the War of 1812, and to enlarge the 
 judicial force, and finally, about the convention bill of 1820, caused 
 the downfall of the council. Since 1822 State courts have been 
 discharging purely judicial functions, and the old antipathy be- 
 tween the legislature and the judiciary no longer exists. 
 
 At a time when distinguished judges are criticised as "fos- 
 silized minds", it may be well to recall the functions of the 
 courts. As was eloquently said by Evarts in the convention of 
 1867, "the judiciary is the representative of the justice of the 
 State and not of its power. * * * The judge is not to de- 
 clare the will of the sovereignty, whether that sovereignty re- 
 side in a crowned king, in an aristocracy or in the unnumbered or 
 unnamed mass of the people." The judges declare the law, they 
 do not make it. Necessarily and properly the judiciary is the 
 most conservative branch of government. Recognizing the value 
 of the accumulated experiences of the past and the continuity 
 of legal evolution that runs through history, it is for the courts 
 to say, not what they think the law should be, but what it is; 
 and in a free community capable of altering its jurisprudence by 
 legislation at the need of society it rarely happens that any long 
 divorce will exist between the law and enlightened public sen- 
 timent. The judiciary constitutes a salutary check upon crude 
 public opinion. It is an obstacle wisely set in the way, not of 
 the public will, but of what James Russell Lowell styled the 
 public whim. In the discharge of its duty of declaring what the 
 law is, it should be steadfastly kept independent of all influ- 
 ences which might tempt it to fail in its obligations. The need 
 
 330 
 
HISTORY OF NEW YORK 
 
 of an independent judiciary was never greater in the history of 
 the country than at the present time. The power of determining 
 when an "act of a delegated authority contrary to the tenor of the 
 commission under which it is exercised is void" must, as Ham- 
 ilton luminously argued, be lodged in the judiciary, if the con- 
 stitution is to remain in fact as well as in theory the ultimate gov- 
 erning law. 
 
 The rational employment of this far reaching prerogative 
 of the judiciary is essential for the protection of the people, 
 even against themselves, and the security of private rights. But 
 if the impression should become wide-spread that it was tyran- 
 nically or arbitrarily exercised, the people would undoubtedly 
 abridge the tenure of the judicial office and thus bring the bench 
 more directly under the influence of public opinion, which would 
 be an evil of incalculable consequence. The judiciary is not a 
 species of upper legislative chamber with a possible final veto 
 upon every statute which judges may happen to think unwise. 
 In an age when the constitutionality of legislation is assailed 
 at every step in its making, — in its passage through the 
 houses, and in its submission to the executive, — the courts, 
 while jealously safeguarding all their prerogatives, should 
 remember that it is not a question whether had they been 
 the legislature they would have enacted the law under crit- 
 icism, but simply whether in passing it law-makers have trans- 
 cended constitutional authority. 
 
 The independence of the judiciary rests vitally upon per- 
 manency of tenure, and so loiig as the courts use their vast pow- 
 ers temperately, no measures need be taken to re-establish the 
 equilibrium between the legislative and the judicial branches of 
 the government; in fact the equilibrium will not be disturbed. 
 As Hamilton well said, judicial independence is the citadel be- 
 hind which justice sits safe and serene. With an unstable ju- 
 
 331 
 
LEGAL AND JUDICIAL 
 
 diciary, how different might have been the decisions of the fed- 
 eral courts, how altered the history of the country! Attacks 
 have been made upon these courts, and are again threatened. The 
 use by the Federal bench under Marshall's leadership of the power 
 to declare acts of Congress void when they conflicted with the 
 Federal constitution aroused Jefferson's wrath^ and led to a 
 proposed constitutional amendment introduced in Congress by 
 John Randolph, in March, 1805. Had this amendment been 
 passed, all Federal judges would have been removable by the 
 president upon the joint address of both houses of Con- 
 gress ; the courts would have become responsive to every 
 transitory popular feeling. Defeated in 1805, the amend- 
 ment was offered again in substantially the same form in 
 1806, but without result. In 1807, Senator Tiffin, of Ohio, 
 moved an amendment that all judges of the United States 
 should hold for a term of years, subject to removal by 
 the president on address by two-thirds of both houses. Sen- 
 ator Tiffin's motion was not an isolated or personal act. The 
 State legislatures were invoked to support the scheme. "Ver- 
 mont adopted the amendment. The House of Delegates in Vir- 
 ginia, both branches of the Pennsylvania legislature, the popu- 
 lar branch in Tennessee and various other State governments, in 
 whole or in part, adopted the principle and urged it upon Con- 
 gress. In the House George W. Campbell moved a similar 
 amendment January 30, and from time to time other senators and 
 members made attempt to bring the subject forward".-'^ 
 
 11. Jefferson was consistent even to old age in his belief that the 
 federal courts ought to be curbed. Writing to James Pleasants, December 
 6, 1821, he declared that the best remedy he could devise "would be to 
 give future commissions to judges for six years (the senatorial term) 
 vifith a reappointability by the President with the approbation of both 
 Houses" The adoption of such a plan would have been destructive of 
 judicial independence. 
 
 12. Henry Adams, Hist, of the U. S., IV, 205. 
 
 332 
 
HISTORY OF NEW YORK 
 
 In the house, Wright of Maryland in 1811, and in the sen- 
 ate, Nathan Sanford of New York in 1816, urged a similar 
 amendment. When under the leadership of Marshall and Story 
 the Supreme Court began to declare unconstitutional state legis- 
 lation that was in violation of the "supreme law", this action of 
 that tribunal was construed by extremists as an affront to the 
 majesty of state independence, and accordingly attempts 
 were made to bridle the courts, and curb their jurisdiction. In 
 1822 Richard M. Johnson of Kentucky offered in the senate 
 an amendment, which is: "That in all controversies where the 
 judicial power shall be so construed as to extend to any case in 
 law or equity, arising under the constitution, the laws of the 
 United States, or treaties made or which shall be made pursuant 
 to their authority, and to which a State shall be a party, and in 
 all controversies in which a State may desire to become a party, 
 in consequence of having the constitution or laws of such State 
 questioned, the senate of the United States shall have appellate 
 jurisdiction." 
 
 This not coming to a vote, propositions were subsequently 
 submitted in the house of representatives to amend the consti- 
 tution by limiting the term of federal judges, but all failed of 
 success; and their failure brought an end for years to attacks 
 upon the independence of the federal courts. Dissatisfaction with 
 federal judicial action has of late aroused some to advocate elec- 
 tion of federal judges and for short terms. To follow such coun- 
 sel would be not only to ignore the lessons of history, to cast 
 away our heritage, to destroy the wise separation of govern- 
 mental powers, but inevitably to bring the bench into politics, 
 and have law declared at the ballot box, according to popular 
 passion, instead of in the judges' consulting room, in conformity 
 with the principles of jurisprudence. 
 
 333 
 
CHAPTER XVII 
 
 VOTE IN 1886 FOR A CONVENTION — ^DIFFERENCES BETWEEN LEGIS- 
 LATURE AND GOVERNOR LEGISLATION PROVIDING FOR CON- 
 VENTION ELECTION OF DELEGATES IN FALL OF 1 893 — OUT- 
 LINE OF WORK OF THE CONVENTION OTHER THAN UPON THE 
 JUDICIARY ARTICLE, AND IN RELATION TO CANALS TREAT- 
 MENT OF ARTICLE XIV RE-APPORTIONMENT IN SENATE AND 
 
 ASSEMBLY — CONVENTION'S REPORT — SUBMISSION OF ITS WORK 
 
 TO THE PEOPLE LATER CONSTITUTIONAL CHANGES — RELATIVE 
 
 VALUE OF METHODS OF AMENDMENT. 
 
 Section 2 of Article XIII of the constitution, as it stood be- 
 fore the changes made in 1894, prescribed in brief that at the 
 general election in the year 1886 and every twentieth year there- 
 after, the electors qualified to vote for members of the legislature 
 should have an opportunity to determine whether a convention 
 should be called to revise and amend the constitution, and that 
 if a majority of the qualified electors voting upon the subject at 
 the election should favor a convention, the legislature at its suc- 
 ceeding session should provide for the election of delegates to 
 such convention. The popular vote in 1886 for a convention 
 overwhelmingly preponderated over the vote against it, being 
 574,993 to 30,766; in other words, ninety-five per cent, of those 
 voting upon the subject wished a convention called. There had 
 never before in the history of the State been such a decisive 
 expression upon a constitutional question. Out of a total vote 
 of 144,247 in 1821 upon the question of a convention or no con- 
 
 334 
 
HISTORY OF NEW YORK 
 
 vention, 109,346 favored a convention, — almost seventy-six per 
 cent, of the total vote. The percentage of voters who wished a 
 convention called in 1846 (213,257 out of 247,117) was so large 
 that Governor Wright, in his message to the legislature, declared 
 that the people of the State had "with a unanimity almost un- 
 known in the history of our elections" decided to hold a conven- 
 tion. The vote in November, 1866, for the holding of a con- 
 vention, 352,854 in favor, to 256,354 against it, was considered 
 by Governor Fenton "an emphatic expression of the public judg- 
 ment that some modification of the organic law" was essential. 
 
 The demand for a convention in 1886, although supported 
 by an extraordinary vote, was in effect ignored because of the 
 inability of Governor Hill and the State legislature to agree upon 
 the method of selecting delegates. The conflict between these 
 two departments of the government had one beneficent result; 
 it led to the formulation and adoption of a provision in the 
 amended constitution which in future cases should render such a 
 deadlock impracticable. The controversy came to an end with 
 the election of Governor Flower and democratic control of both 
 houses. Governor Flower, in his first annual message, urged 
 action to make the popular mandate effectual, arguing that 
 the disinclination shown by the preceding legislature to ap- 
 prove the revision of the judiciary article proposed by the 
 constitutional commission of 1890 seemed to make the holding of 
 a convention more necessary than ever. The legislature passed 
 a law^ for an election of delegates on the second Tuesday of Feb- 
 ruary, 1893. The act fixed the number of delegates at 171, of 
 whom 128 were to be chosen by assembly districts, 32 were to be 
 elected from the State at large, and provision was made for 
 minority representation, as no elector might vote for more than 
 
 I. Oiapter 398, Laws of 1892. 
 
 335 
 
LEGAL AND JUDICIAL 
 
 i6 of the delegates at large. The governor was authorized to 
 appoint eleven persons to sit in the convention with all the rights 
 of elected delegates, three of the governor's appointees to be 
 prohibitionists, three, advocates of woman suffrage, and five, 
 representatives of labor organizations. Here for the first time in 
 the history of the State was manifested a disposition to secure 
 class representation in a constitutional convention. The consti- 
 tutionality of the provision was extremely doubtful. The dele- 
 gates were directed to convene in the assembly chamber at the 
 capitol on the second Tuesday of May, 1893. The amendments 
 or the revised constitution which might be the outcome of their 
 deliberations were to be submitted to the people for adoption or 
 rejection at the general election in November, 1893. The conven- 
 tion act contained various other provisions; for example, that 
 vacancies in the election of district delegates should be filled at a 
 special election in the same manner as vacancies in the office of a 
 member of assembly, and that vacancies in the office of delegate 
 at large should be filled by the convention. The new constitution 
 was to take effect from and after December 31, 1893, unless the 
 convention should fix a different date ; and no amendment receiv- 
 ing less than a majority of all the votes given upon it at the 
 general election of 1893 was to be treated as ratified. 
 
 Before the time fixed for the holding of the special election 
 for delegates, the legislature fundamentally modified the law. A 
 new act was passed by the legislature of 1893 which, on Jan- 
 uary 27, 1893, met with the governor's approval.^ The radical 
 differences between it and the act of 1892 are worthy of notice. 
 By the act of 1893, delegates were to be chosen, not at a special 
 election, as prescribed in the law of 1892, but at the general 
 election in November, 1893, and the number of delegates was 
 
 2. Chapter 8, Laws of 1893. 
 
 336 
 
HISTORY OF NEfF YORK 
 
 fixed at 175 instead of 171. Under the act of 1892, district dele- 
 gates were to be elected from assembly districts ; the act of 1893 
 made the unit the senate district; 160 delegates were to be chos- 
 en by senate districts, each senate district being entitled to elect 
 five. Fifteen delegates were to be elected for the State at large, 
 to be known as delegates at large, and no provision was made for 
 minority representation. As will be seen hereinafter, the new 
 constitution renders minority representation in the next conven- 
 tion impossible. The convention act made eligible as a delegate 
 any male or female citizen of this State above the age of twenty- 
 one years. Vacancies among district delegates were to be filled 
 at a special election in the same manner as vacancies in the 
 office of State senator. Any vacancy in the office of delegate at 
 large was to be filled by special election in the same manner as 
 a vacancy in the office of a State officer. The date of the open- 
 ing of the convention was fixed as the second Tuesday of May, 
 1894. The provisions for submission of amendments or of a 
 revised constitution to the people were similar to those contained 
 in the act of 1892, save that all amendments were to be sub- 
 mitted at the general election in November, 1894, and the new 
 constitution was to take effect at the end of that year, unless 
 the convention should prescribe a different date. The legislature 
 in 1895 passed a bill for the submission of the work of the con- 
 vention in two separate years, if such should be the determina- 
 tion of the convention, but the measure was vetoed by Governor 
 Flower. Mr. Lincoln observes that the result of the election of 
 delegates to the convention of 1894 would not have been mate- 
 rially different in respect to political representation had the as- 
 sembly district plan of 1892 been continued.' 
 
 3. "Constitutional History of New York,'' III, p. 24. 
 
 337 
 
LEGAL AND JUDICIAL 
 
 Pursuant to the act of 1893, delegates were chosen at the 
 general election in the fall of that year ; the convention assembled 
 in the assembly chamber in the capitol on the second Tuesday 
 of May, 1894, and elected Honorable Joseph H. Choate as its 
 chairman. 
 
 The work of the convention upon the judiciary article and 
 upon the canals has already been noted; its treatment of the 
 subject of special legislation for cities has also been described. 
 Its remaining work may be briefly outlined. There was no gen- 
 eral desire or urgent need for a thorough remodeling of the con- 
 stitution ; the principles incorporated in it had not been devital- 
 ized in the evolution of history. As the president of the con- 
 vention wisely said upon taking the chair, the convention had not 
 been summoned into being to treat the constitution "with any 
 rude or sacreligious hands". The convention would, he declared, 
 be false to its trust, if it should attempt "to tear asunder this 
 structure which for so many years had satisfied in the main the 
 minds of the people of the State of New York." He briefly 
 touched the more important topics likely to come before the con- 
 vention and concluded with an exhortation to the delegates to sub- 
 ject themselves to the "self-denying ordinance" that forbade 
 "idle talk", since time was precious and many subjects demanded 
 attention. 
 
 Besides reconstructing the judiciary system, the convention 
 made few important changes in the constitution. It dealt with 
 the basic law in a spirit of restraint, recognizing that it had no 
 mandate to work a revolution. It placed both the civil service 
 and the cause of education upon a constitutional foundation; 
 framed an altogether new article upon the subject of charities; 
 enlarged the senate from a membership of 32, at which it had 
 remained since 1801, to 50, and the assembly from a membership 
 
 338 
 
JOSEPH H. CHOATE. 
 
 (1832-). 
 
 Lawyer and Diplomat ; President Constitutional Convention, 
 1904; Ambassador to Great Britain, 1899- 1905 ; ex-President 
 American Bar Association and New York State Bar Association. 
 
Joseph H. Choate 
 
HISTORY OF NEfF YORK 
 
 of 128, established in 1821, to 150, and retained the assembly dis- 
 trict as the unit of representation in the lower house. It paid 
 scant consideration to arguments for lengthening the term of the 
 governor, senators and State officers, even reducing the gover- 
 nor's term from three to two years. It made radical alterations in 
 the representative system, by providing that no county, however 
 populous it might become, should have more than one-third of 
 all the senators; and that no two counties which adjoin, or are 
 separated only by public waters should have more than one-half 
 of all the senators. This provision, which reduces the city of 
 New York to a condition of partial vassalage, was, fortunately, 
 the only partisan use of power by the majority of the conven- 
 tion. 
 
 The convention added to Article I — the Bill of Rights — a 
 new section (18) declaring that the right of action to recover 
 damages for injuries resulting in death shall never be abrogated, 
 nor the amount recoverable be subject to any statutory limita- 
 tions. The wisdom of this amendment was questioned by the 
 president (Choate) who asserted it to be "a mere piece of legis- 
 lation" which ought never to have been placed in the constitu- 
 tion. A new section (6) in Article II, recognizing the principle 
 that the machinery of elections should be under the control of the 
 two principal parties, prescribed that all registration and election 
 boards other than for town meetings or village elections should 
 be bi-partisan in character. The propriety* of crystallizing this 
 doctrine in a constitutional provision may be debated. The sub- 
 ject of prison labor perplexed the convention, and while ap- 
 proving of the policy which kept convicts from idleness, it for- 
 
 4. For an instructive history of the development of the policy of 
 bi-partisan representation in the conduct of elections, see Lincoln, III, 115, 
 et seq, 
 
 339 
 
LEGAL AND JUDICIAL 
 
 bade the sale of products of convict manufacture for private use 
 in the open market or in any competition with outside industries, 
 but permitted their disposal to the State itself or its political 
 divisions or public institutions owned or controlled by it.^ It 
 differentiated city elections from State elections, and required 
 State elections to be held in the even numbered years com- 
 mencing in 1898. This separation of city and State elections has 
 proved invaluable in educating city voters in the belief that city 
 government is a business distinct from national or State gov- 
 ernment. The benefits of the constitutional provision are likely 
 to be far-reaching. The convention initiated the sound policy of 
 protecting the lands of the State, known as the forest preserve, 
 forbade their being leased, sold or exchanged or taken by any 
 corporation public or private, and prohibited the sale, destruction 
 or removal of the timber thereon. This was the first constitu- 
 tional recognition of forestation and its grave bearing upon the 
 water system of the State. After long debate upon the subject 
 of free passes to public officers, the convention decided to prohibit 
 the giving or receipt of such passes, either for the use of the 
 recipient or for the use or benefit of another, and it extended the 
 interdict to include franking privileges, telegraph and telephone 
 rates. Following the precedent adopted in 1874 in the bribery 
 article, which was based upon the implication that legislatures 
 might not be trusted to enact adequate penalties against their own 
 members, the convention itself provided that violation of the 
 new section should constitute a misdemeanor, and the violator 
 forfeit his office at the suit of the attorney general. It also made 
 the promisor or giver of the pass or privileges a misdemeanant. 
 
 5. For an admirable summary of the evils of the competition of 
 prison labor with labor in generaJ and of the arguments showing the 
 undesirability of the total abolition of prison labor, see "Hadley's 
 Economics," sections 459-461. 
 
 340 
 
HISTORY OF NEW YORK 
 
 and withdrew constitutional immunity against his testifying, 
 while preserving his immunity from civil or criminal prosecution. 
 
 In order to prevent a recurrence of such incidents as had 
 delayed until 1894 the meeting of a convention demanded by 
 popular vote in 1886, the convention made substantial changes 
 in the clause of Article XIV providing for the call of future con- 
 ventions. This was accomplished by the formulation of a self-exe- 
 cuting provision, to the effect that if at the general election in the 
 year 1916, and every twentieth year thereafter and also at such 
 intermediate times as the legislature might provide, the question 
 whether a convention should be called to revise and amend the 
 constitution should be favorably answered by a majority of the 
 electors voting thereon, the electors of every senate district of 
 the State as then organized should elect three delegates at the 
 following general election for members of assembly and the 
 electors of the entire State voting at the same election should elect 
 fifteen delegates at large — which under the new membership of 
 the senate would make a convention of 165 members. The effect 
 necessarily is to defer the meeting of the convention until the sec- 
 ond year after the people vote that it shall be held. Delegates 
 are to convene at the capitol on the first Tuesday of April next 
 ensuing after their election and to continue their session until 
 the business of the convention shall have been completed. The 
 article then prescribes how a convention shall be organized, the 
 manner of its proceedings and the method of filling vacancies 
 among delegates. In the case of previous conventions all these 
 matters had been contained in legislative acts providing for the 
 call of a convention, if its call should be approved by the people. 
 
 The convention itself adopted the constitution by a vote of 
 93 to 46. Like all of its predecessors from 182 1 onwards, it 
 drafted a report to the people briefly summarizing its pro 
 
 341 
 
LEGAL AND JUDICIAL 
 
 posed changes. The report declared that the convention 
 had not altered the frame-work and substance of the con- 
 stitution. It had abstained from venturing upon undue ex- 
 periments and had made only such modifications as exper- 
 ience had shown to be desirable. Of more than four hun- 
 dred amendments proposed and considered it had adopted thirty- 
 one. The main features of its work are briefly summarized in 
 the report. It renewed the recommendation of the convention 
 of 1867 providing for progress in agriculture by requiring gen- 
 eral laws giving the right of drainage across adjoining lands ; it 
 separated municipal from State and national elections in the larger 
 cities of the commonwealth and required the election of municipal 
 officers in the odd numbered years and of State officers in the 
 even numbered years; it erected various safeguards against 
 abuses in legislative procedure, by requiring that all bills should 
 at least three days before their passage be printed in their final 
 form; it prohibited riders on appropriation bills; provided for 
 notice to municipal authorities before special acts relating to the 
 larger cities should become eflfective; prohibited the issuance of 
 passes by railroad, telegraph and telephone companies to public 
 officers ; enlarged the express constitutional powers of the pres- 
 ident of the senate, and changed the day for the annual meet- 
 ing of the legislature from Tuesday to Wednesday for the bet- 
 ter convenience of its members. 
 
 "We have also", said the report, "removed the prohi- 
 bition against the sale of the Onondaga salt springs which 
 are a source of annual loss to the State", and "the prohi- 
 bition against the sale of the Hamburg canal in Buffalo, 
 which is about one mile in length and which serves no 
 purpose except to breed pestilence. We have also provided that 
 the public lands in the Forest Preserve shall never be sold or 
 
 342 
 
HISTORY OF NEW YORK 
 
 leased, and that the timber thereon shall never be cut. * * * 
 We have extended the prohibition against lotteries, so as to 
 include all pool selling, book-making, and other forms of gam- 
 bling. * * * We have abolished the statutory provision lim- 
 iting the right of recovery for injuries causing death to five 
 thousand dollars. There is little or no attempt to defend the 
 justness of this limitation. * * * ^f^ have sought to throw 
 grave safeguards around the elective franchise by prescribing a 
 period of ninety instead of ten days of citizenship before that 
 right can be exercised, so that naturalization may be taken out of 
 the hands of campaign committees and removed from the period 
 immediately before election. * * * We have modified the 
 language relating to elections, so that if a mechanical device for 
 recording and counting votes is so perfected as to be superior 
 to the present system, the legislature may make trial of it. * 
 
 * * We have established in the constitution the well tried 
 and satisfactory system of registration of votes * * * ^nd 
 have provided for securing an honest and fair election by re- 
 quiring that on all election boards, election officers shall equally 
 represent the two principal parties of the State." 
 
 In defence of the new apportionment and of the changes 
 made in the size of the senate and assembly, the report urged that 
 the number of senators had first been fixed at 32 in 1801 ; that 
 with this number the senate districts in 1846 were of convenient 
 size; that only one county in the State (New York) then had 
 more than one senator; that the citizen population in that year 
 was 2,450,778, and in 1892, 5,790,865 ; that the ratio of popula- 
 tion for a senator had consequently grown from 76,586 in 1846 
 to 180,899 in 1892 ; that the great increase of population in cities 
 since 1846, carrying with it additional representation in the sen- 
 ate, had required a decrease in representation of the country dis- 
 
 343 
 
LEGAL AND JUDICIAL 
 
 tricts, these having been enlarged and their representation ac- 
 cordingly diminished ; that the purpose of the proposed increase 
 was to restrict the country districts to the position which they had 
 in 1846 and to provide for the increased representation of the 
 cities by the increase in number. The enlargement of the as- 
 sembly was ascribed to the necessity of maintaining due propor- 
 tion between the membership of the two houses. The purpose 
 . was also "to permit in the apportionment of members a more rea- 
 sonable recognition of the great difference in population in the 
 smaller counties of the State." In the distribution both of sen- 
 ators and assemblymen absolute fairness had been the aim, and 
 the "distribution had been made in exact accordance with popu- 
 lation, so far as the maintenance of county lines would permit."' 
 The new constitution was submitted to the people at the No- 
 vember election in 1894, simultaneously with the submission to 
 the voters of Greater New York of the question whether the 
 larger city should be formed. This was also the final election 
 at which the governor and local ofificers were chosen. The con- 
 vention deliberated whether or not it would be desirable to pre- 
 sent its amendments to the people for separate vote. These were 
 thirty-three in all and separate submission was voted to be im- 
 
 6. The Committee on Apportionment, in its report to the convention, 
 said: "When the senatorial districts were but eight in number, the con- 
 troUing reason for the change made by the Constitutional Convention of 
 1846, from eight senatorial districts, each electing four Senators, to thirty- 
 two senatorial districts, each electing one Senator, was that the Senators 
 from the eight large districts could have no close relation with .all the 
 people of their districts. Our proposed number of fifty Senators will 
 substantially restore to the people approximately the same representation 
 that they had under the Constitution of 1846, the additional eighteen Sen- 
 ators going to the great centers of population. The opportunity for any 
 selfish or corrupt interest to obtain control over a body composed of fifty 
 members will, undoubtedly, be much less than to obtain control over a 
 body of thirty-two members. As we propose, the most popular body, the 
 Assembly, is increased to 150, which is three times as large as the Senate, 
 thus preserving a fair proportion between the number of members of the 
 two bodies." 
 
 344 
 
HISTORY OF NEW YORK 
 
 practicable. There were however three distinct questions pre- 
 sented by the convention: (i) This related to the apportionment 
 provisions of the new constitution. While these were considered 
 by some members of the convention to be distinctly partisan in 
 character they were approved by popular vote, the vote in their 
 favor being 404,335 to 350,625. (2) The amendment advocating 
 improvement of the canal system which was also separately sub- 
 mitted, was adopted by a vote of 442,998 to 327,645. (3) The 
 other provisions of the revised constitution, which were submitted 
 en bloc, were approved by a vote of 410,697 to 327,402. 
 
 Changes in the constitution since 1894, while numerous, have 
 not been vital. Several have grown out of the need of expand- 
 ing the judicial force and equipping the Court of Appeals with 
 power more easily to dispose of its enlarging calendar. The 
 purpose of others is to relieve city governments from too narrow 
 limitations in the creation of debts ; one has been inserted at the 
 behest of the labor interests and still others affect the canal 
 policy of the State. Briefly, apart from those increasing the abil- 
 ity of the State to incur debt, they are as follows : 
 
 In 1899 Section 7 of Article VI was amended to authorize 
 the governor, upon the certificate of a majority of the judges of 
 the court of appeals that the court, by reason of the accumulation 
 of causes before it, was unable to hear and dispose of the same 
 with reasonable speed, to designate not more than four justices 
 of the Supreme Court to serve as associate judges of the Court 
 of Appeals until the number of causes undisposed of upon the 
 calendar should be reduced to 200, when the judges so designated 
 should automatically return to the Supreme Court. Section i of 
 this article was again amended in 1905, authorizing increase in the 
 Supreme Court membership in the various judicial districts, and 
 the creation of a ninth district out of the second district. 
 
 345 
 
LEGAL AND JUDICIAL 
 
 The judiciary article was further amended in 1899 by the 
 inclusion in section 2 of Article VI of power to the governor to 
 make temporary designations to any appellate division, when- 
 ever its presiding judge should certify as to the neces^ 
 sity for the service of an additional justice or justices 
 for the speedier disposition of the business of the court. The 
 same section was again amended in 1905 to confer upon appellate 
 division justices outside of the department in which they were 
 performing the duties of appellate justices, and while not en- 
 gaged in such duties, the power to hold terms of the Supreme 
 Court and exercise the functions of justices of that court in 
 any county or judicial district in any other department of the 
 State. The vote for this change was 288,227, against it 125,649; 
 majority 162,578. 
 
 In 1899 section 10 of Article VIII was amended to provide 
 that whenever the boundaries of any city are co-terminous with 
 those of a county or when any city shall include within its boun- 
 daries more than one county, the power of any county wholly in- 
 cluded within such city to become indebted should cease, but the 
 debt of the county theretofore existing should not for the pur- 
 poses of the section be reckoned as part of the city debt. 
 
 In the same year section 26 of Article III was amended to 
 exempt the counties included in Greater New York from the 
 provisions of the constitution requiring a board of supervisors 
 in each county. Instead a provision was inserted that in a city 
 including an entire county or two or more entire counties, the 
 powers and duties of a board of supervisors might devolve upon 
 the board of aldermen or other legislative body of the city. 
 
 In 1905 section 10 of Article VIII respecting city indebted- 
 ness was amended so as to permit the city of New York to ex- 
 empt its water debt from consideration in the computation of the 
 
 346 
 
HISTORY OF NEW YORK 
 
 ten per cent, indebtedness which may not be exceeded. The 
 water debt of the city is protected by special sinking funds ; con- 
 sequently no valid reason obtained why the existence of that debt 
 should interfere with other needed improvements, as it did, so 
 long as the amount entered into the computation of the ten per 
 cent, limitation. The amendment was approved by a vote of 
 363,117 to 129,424, or a majority of 233,693. 
 
 In 1905 a new clause was added to section i of Article 
 XII, which is as follows : "And the legislature may regulate and 
 fix the wages and salaries, the hours of work or labor, and make 
 provision for the protection, welfare and safety of persons em- 
 ployed by the State, or by any county, city, town or village, or 
 other civil division of the State, or by any contractor or sub-con- 
 tractor performing work, labor or services for the State, or for 
 any county, city, town, village or other civil division thereof." 
 This was approved by a vote of 338,570 to 133,606; majority 
 204,964. The result of this amendment is that the cost 
 of all construction of public works and institutions for the State 
 will be materially increased. 
 
 Several amendments were adopted by the people in 1909, one 
 affecting the compensation of judges of the Supreme Court, 
 another permitting the legislature to alter the rate of interest upon 
 any State debt constitutionally authorized. Other amend- 
 ments affected the powers of boards of supervisors and judges, 
 the drainage of lands, and timber and trees on the forest pre- 
 serve. One amendment enlarged the debt creating power of New 
 York City by eliminating from the computation of its debt so 
 much as might be incurred for public improvements owned by the 
 city and run by it at a profit. 
 
 Six constitutional conventions have been held in the State 
 in one hundred and seventeen years, and, excepting the convention 
 
 347 
 
LEGAL AND JUDICIAL 
 
 of 1801, whose task was limited chiefly to the determination of 
 the true construction of the article of the constitution of 1777 
 creating the council of appointment, each convention has re- 
 ported a complete constitution. Of the five constitutions sub- 
 mitted to the people, four have been accepted in their entirety, 
 the constitution drafted by the convention of 1867 being the only 
 one that failed of complete adoption. Down to the constitution 
 of 1846 there was no provision of any kind in the organic law 
 for the call of a convention. The method of amendment by 
 legislative resolution followed by popular ratification (incorpo- 
 rated in the constitution in 182 1) has been actively employed 
 ever since 1826, when the first and second amendments to the 
 constitution of 1821 entered into the fabric of the fundamental 
 law. The amendment reducing duties on salt manufacture and 
 permitting the qualified voters of New York City to elect the 
 mayor became part of the constitution in 1833, and an amend- 
 ment allowing the qualified voters of other cities than New York 
 City to elect the chief magistrate, was ratified in 1839. Save for 
 alterations in the canal and the judiciary article, and the pro- 
 vision authorizing soldiers in actual service to vote, the constitu- 
 tion of 1846 stood unchanged until 1874. A large number of the 
 amendments formulated in the convention of 1867 and favored 
 by the commission of 1872 either in their original form or as 
 revised by it were with the permission of two successive legis- 
 latures submitted to the people at the general election of 1874, 
 and on January i, 1875, entered into the organic law. The 
 amendment abolishing canal tolls followed in 1882. 
 
 Since the adoption of the constitution of 1894 many amend- 
 ments have been made upon legislative initiative. Very important 
 provisions have through this method found their way into the con- 
 stitution. Its advantage in earlier days was that one amendment 
 
 348 
 
HISTORY OF NEW YORK 
 
 was presented at a time, or at most never more than two arose for 
 consideration at the same election ; and each succeeded or fell up- 
 on its own merits or demerits. The practice of submitting several 
 amendments at the same election may be said to have arisen 
 in 1874. While this course was perfectly proper in that year, 
 because the work presented for public approval consisted of 
 amendments advocated by the able commission of 1872, amend- 
 ments since submitted have often come up for popular consid- 
 eration without adequate knowledge on the part of voters of the 
 reasons for or against them. This has several times been con- 
 demned by the highest officials of the State. "The practice" said 
 Governor Higgins, in 1906, "is not to be commended of submit- 
 ting numerous, disconnected and complicated constitutional 
 amendments to popular vote, as in case of four of the seven 
 voted on (in 1905) two years after their final approval by the 
 legislature, without the aid of an address to the people explaining 
 their purpose and object. The provision that a majority of the 
 electors voting thereon shall be sufficient to ratify constitutional 
 amendments, is necessary and salutary, but greater care should 
 be taken to call forth a large and intelligent vote". The same 
 thought was tersely phrased by Governor Hughes when he urged 
 that means be devised to familiarize the voters with proposed 
 constitutional amendments, so that more intelligent consideration 
 of them might be secured. 
 
 Until recent years amendments originating in the leg- 
 islature frequently met great public indifference, and the 
 opportunity for burying them in legislative committees often 
 occurred. The danger at present seems rather to be that 
 resort may too often be had to this method of amendment and 
 the organic law changed hastily without adequate reflection or 
 discussion. It is usually easier to summon support for a measure, 
 
 349 
 
LEGAL AND JUDICIAL 
 
 however unwise the measure may be, than to obtain adequate 
 vote to defeat it. Once only in the history of the State during 
 the last thirty-five years, has an amendment which had passed two 
 successive legislatures been defeated at the polls. This happened 
 in the fall of 1896 when it was proposed to amend section 7 of 
 Article VII so as to permit encroachments upon the forest pre- 
 serve. The proposed change was defeated by an adverse vote of 
 710,505 to 321,486. 
 
 It has never been deemed practicable by any of the consti- 
 tutional conventions to submit articles to the people section by sec- 
 tion, although the law under which each convention assembled 
 has contained provisions for submission of its work in whole or 
 in separate parts. The convention of 1777 never submitted its 
 work to the people; the convention of 1821, although authorized 
 by the act of 1820 to present its amendments together or in dis- 
 tinct propositions as it might deem expedient, submitted them as 
 a whole, and as a whole they were approved. The act of 1845 
 gave the convention of 1846 a like option, yet its work was sub- 
 mitted and ratified as an entirety. The act under which delegates 
 to the convention of 1867 were chosen provided that any amend- 
 ments or the amended constitution should be voted upon as a 
 whole or in separate propositions as the convention should deem 
 practicable, and by resolution declare. The convention reported 
 that its amendments were interdependent ; that, in its judgment, 
 they made a complete and harmonious constitution, and that it 
 was not judicious to take any part from the other to be passed 
 upon by the people separately, excepting only those separately 
 submitted. In accordance with this report, the act of 1869 di- 
 rected that the constitution proposed by the convention should 
 be submitted as a whole, with the exception of the provisions 
 relating to the qualifications of colored voters, to bribery and 
 
 350 
 
HISTORY OF NEW YORK 
 
 corruption, assessment and taxation, and with the exception of 
 the amended judiciary article; which article alone met with pop- 
 ular approval. The convention of 1894, having prepared thirty- 
 three separate amendments to the old constitution, decided that 
 it would be unwise to ask the people to vote upon these singly. 
 The provisions it submitted separately have heretofore been 
 noted. 
 
 Changes in the constitution should not too lightly be permit- 
 ted, and while the constitutionality of the employment of com- 
 missions has been doubted by some constitutional students, not- 
 ably Judge Jameson, the results in practice have been admirable, 
 for there has been concentration of more intelligent, disci- 
 plined, and expert thought upon the proposed amendments than 
 might otherwise have been secured. 
 
 351 
 
CHAPTER XVIII 
 
 BRIEF SUMMARY OF CONSTITUTIONAL CHANGES SINCE ORGANIZA- 
 TION OF STATE — CHECKS UPON LEGISLATIVE ACTION IMPLY NO 
 DISTRUST OF DEMOCRACY — INITIATIVE, REFERENDUM, RECALL; 
 EXTENT OF THEIR EMPLOYMENT IN NEW YORK — NO REAL 
 DANGER OF ENCROACHMENT BY THE NATION UPON THE PROV- 
 INCE OF THE STATE — GREATNESS OF THE STATE DEPENDS UPON 
 ITS OWN PEOPLE — UNIVERSAL SUFFRAGE, AND ITS VALUE IN 
 
 THE HISTORY OF STATE AND NATION ASSURED FUTURE OF 
 
 DEMOCRACY THE PLACE OF THE LAWYER — CONCLUSION. 
 
 Almost a complete constitution was established during 
 colonial days. With a clause to indicate change of allegiance, and 
 a few Other modifications, the charter of the colony might, as 
 actually happened in the case of Connecticut, have become the 
 first constitution of the State. A generally aristocratic government 
 by a few wealthy families has since been transformed into a 
 representative democracy with manhood suffrage. The three co- 
 ordinate branches of sovereignty have gradually gained in sharp- 
 ness of outline notwithstanding that at times one or another has 
 seemed to be dominating.^ To distrust of the executive has suc- 
 ceeded almost undemocratic reliance upon it. To an era when 
 the policy of internal improvements had unbroken sway suc- 
 
 I. In this respect the history of the state is similar to that of the 
 nation. Webster denounced what he styled executive usurpation on Jack- 
 son's part; in the reconstruction period Congress seemed to absorb an 
 undue fraction of governmental power; today the complaint with some is 
 that the executive assumes too great authority; with others that the courts 
 overshadow the legislature and have really become an additional legislative 
 body with a veto upon much legislation. 
 
 352 
 
HISTORY OF NEW YORK 
 
 ceeded a time of jealousy of State enterprise and strict resolve to 
 limit State indebtedness. But the State has since embarked 
 upon expenditures so gigantic as to suggest doubt in thoughtful 
 minds whether the change of policy is wise. Government by 
 commissions has become fashionable, and State surveillance over 
 all forms of activity enormously increased. Much of this is 
 inevitable unless the artificial creatures of the State are to con- 
 stitute a despotism superior to the State and its people. It is 
 evident, however, that there is much yet to be learned regarding 
 the differentiation of governmental functions. There never was 
 a time when the nature of government, the proper distribution 
 of its powers, and the adjustment of checks and balances needed 
 more to be understood than at present. 
 
 In essentials the constitution has undergone shght change 
 save in the widening of the electoral franchise, the curbing of 
 legislative powers and the providing for city government. The 
 legislature remains bicameral, and the courts exercise their old 
 functions, except that law and equity are administered in one 
 set of tribunals. The term of the assembly is still one year, and 
 of the senate two years ; the governor's tenure, originally fixed at 
 three years, was, because of the extension of his powers, reduced 
 to two in 1822 ; it was raised to three in 1875, ^^'^ reduced to 
 two again in 1895. The popular election idea reached its climax 
 a half century ago; today the feeling is that frequent elections 
 and numerous officeholders are likely to prejudice rather than 
 advance representative government. For almost seventy years 
 judges of the higher courts have not been appointed, nor do they 
 hold during good behavior. From an elective system with short 
 terms of eight years for the superior judges — the outcome of 
 the popular fervor of 1846 — the oscillation has been towards life 
 tenure, though the movement stopped with a term of fourteen 
 
 353 
 
LEGAL AND JUDICIAL 
 
 years. If the elective system seem a permanency, the progress 
 of the principle of nonpartisanship in the selection of judicial 
 candidates is an auspicious sign of the public resolve to keep the 
 bench out of politics. Whatever may be said regarding criticism 
 of judicial decisions, there ought to be free criticism of judicial 
 conduct. Every judge ought to discharge his functions in whole- 
 some dread of impeachment, — a proceeding that seems almost 
 obsolete. The instinct of the American people is sound; it does 
 not admit that any public servant should be above criticism. 
 High character, great attainments, and exalted standards of life 
 ought to be insisted upon in the judiciary. If the bar were a 
 more courageous body, these great ends would readily be attained. 
 
 The organic law has reached the limit of mobility consistent 
 with wisdom; the constitution is almost too easily susceptible of 
 change. The danger is lest the process of amendment be too 
 readily invocable. In some states this is partially overcome by 
 provisions requiring a two-thirds or three-fourths vote in the 
 legislatures before the submission of amendments to the people. 
 The necessity for adequate popular vote as a basis of organic 
 changes is coming more and more to be recognized, although it is 
 a mistake to permit a minority of the voters, so long as it be 
 merely a majority of those voting upon the proposition, to pos- 
 sess power to alter the fundamental law. 
 
 It is sometimes argued that the checks upon legislation, the 
 adoption of which has practically coincided with the advent of 
 manhood suffrage, imply distrust of popular government. Such 
 was the assertion of Governor John Young in his message to 
 the legislature in 1847 in criticising the constitution of that year. 
 It placed "novel restraints upon the legislature and denied the 
 people the right to vote a single dollar unless by the statute which 
 proposed the expenditure a tax was imposed to pay principal 
 
 354 
 
HISTORY OF NEW YORK 
 
 and interest". Was there anything in the history of the State, 
 he inquired, which "should beget this want of reliance in the 
 wisdom and stability of the people ?" 
 
 Far from signifying the failure of democracy such checks 
 indicate a developing sense of the need of limiting ordinary legis- 
 lative activity. It is not wise to confide to an agent more power 
 than is needed for the office and the time. Assurning, for exam- 
 ple, as an abstract proposition, the competence of any legislature 
 to grant perpetual franchises, the wisdom of conferring this 
 measureless power upon men elected for one or two years, thus 
 enabling them for any motive to subject the people for all time 
 to some particular interest, may well be doubted. There have 
 always been checks in constitutions. A second house with a 
 constituency different from the more popular chamber is a check 
 upon legislation; the requirement of a majority or two-thirds 
 vote to pass a bill over the governor's veto constitutes another 
 check upon it. Experience teaches the wisdom of creating agents 
 with special and definite, rather than general and indefinite, pow- 
 ers. Unable to manage their public business directly, the people 
 prefer to delegate as little authority as possible, and to put checks 
 upon one class of agents by the creation of another, as the best 
 means of eliminating abuses or reducing them to a minimum. 
 Thus the ability of local government to incur debt has very prop- 
 erly been curbed and appropriation of public funds for private 
 enterprises wisely interdicted. The constitution restricts the 
 executive and the courts, yet no one has suggested that this 
 implies suspicion of democracy; why, therefore, should limita- 
 tions upon the legislative branch be deemed proof of its failure ? 
 Far from denoting failure of popular government all such limi- 
 tations mark a higher political evolution. 
 
 The initiative, the referendum and recall have become very 
 
 355 
 
LEGAL AND JUDICIAL 
 
 popular in some western states. The initiative furnishes voters 
 opportunity to compel action by a legislative body upon a pro- 
 posed law of their own preparation. The referendum allows 
 them to decide whether a law shall go into effect. The recaii 
 enables them to end the term of an elected public ofificer before 
 its statutory limit in case his official conduct does not square 
 with his pre-election promises or otherwise fails to meet their 
 approval. It may be well to consider to what extent the princi- 
 ple underlying these is employed in this State, and whether a 
 broader use would be wise. 
 
 In New York State the referendum is employed whenever 
 the people vote whether a convention to amend or revise the 
 constitution shall be summoned or register their verdict upon its 
 work. They may revise the constitution by electing two succes- 
 sive legislatures to carry out their wishes and by ratifying its 
 proposed amendments. Frequently have they been asked to ap- 
 prove at the polls a certain policy before it should go into effect. 
 To submit legislation often to popular vote would contlict with 
 the basic idea of representative government. In theory public 
 officers are chosen to enforce a definite legislative or administra- 
 tive policy. The success of representative democracy rests with 
 the Demos itself. It is the fault of the voters if they do not elect 
 good representatives. They should endure the evils of mis-gov- 
 ernment, until they learn to do their duty at the polls. There 
 must be the expert in the political as in every other field. The 
 business of making laws is the business of experts trained by long 
 and laborious study. Voters should fix policies, but their experts 
 must be trusted to embody these in appropriate legislation. 
 
 Every tenure shorter than that of good behavior involves 
 a species of recall. Short terms have been found to operate pre- 
 judicially to the public interest, and they have gradually been 
 
 356 
 
HISTORY OF NEW YORK 
 
 lengthened, thus proving that one form of the recall may be un- 
 wise. What citizenship needs is the faculty of making rational 
 choice of its agents at the outset. The device of the recall is 
 the shift of inefficiency that hopes to repair its initial errors by 
 reserving the power to end the service of the agent at will. This 
 would involve no education in the art of making better selections ; 
 there would be danger that even poorer agents would be chosen 
 because of the facility with which they could be deposed. The 
 best officials might easily be made victims of the system. Use 
 of the recall could work positive mischief of the worst kind in 
 the removal of judges. 
 
 A form of initiative prevails under the existing government, 
 but as a rule we legislate too easily under the pressure of popular 
 excitement. With wide enjoyment of the suffrage the people 
 may initiate whatever legislation they will. A higher grade of 
 legislators might be had if terms were longer ; and while no one 
 would revive the old council of revision, there might well be a 
 council to bring bills into harmony with the whole content of 
 legislation. Adoption of the English private bill system would 
 obviate many evils. 
 
 Fear is often expressed that the general government by 
 undue centralization is usurping State functions. The extent of 
 this danger, if in fact there be any, may easily be determined. 
 Upon six different occasions during the course of one hundred 
 and eighteen years, this State through delegates assembled in 
 convention has made and revised its constitution. In changing its 
 organic law it has acted independently of sister states, and of the 
 general government. No provision of its constitution bears marks 
 of extrinsic dictation; no clause has been inserted because of 
 Federal coercion. With few exceptions the State enjoys all ele- 
 ments of sovereignty. It may not declare war, nor maintain 
 
 357 
 
LEGAL AND JUDICIAL 
 
 ambassadors or consuls in foreign capitals; nor conclude a 
 treaty of peace or an alliance with any foreign power. It has, 
 however, its own militia, which may be summoned to quell dis- 
 order; it creates its own government, and may make any con- 
 stitution whatsoever, provided that the constitution be republi- 
 can in form. During its entire life its people have hardly 
 been conscious of the existence of the Federal government. In 
 the review of its history in the foregoing pages there has rarely 
 been occasion to allude to the national government. What is 
 true of New York may be affirmed of all other states of the 
 Union except such as have opposed the central authority. 
 
 No one can study the constitution and laws of the State with- 
 out perceiving the almost illimitable sphere of State activities. 
 The danger is, not that the State cannot do enough, but that it 
 may attempt too much, thus transcending the just limits of gov- 
 ernment. As Professor Jameson has acutely observed, nearly all 
 the important questions which have agitated England during the 
 last century would, had they arisen in America, have fallen within 
 the domain of State legislation. The fear, old as the Union, that 
 the central power may usurp State functions is unfounded. The 
 lines of State and Federal action are substantially unaltered; 
 even the Civil War never seriously threatened the equilibrium. By 
 the national constitution interstate and foreign commerce were 
 placed in control of Congress, but the marvelous development of 
 commerce and the implications within the grant of power to 
 Congress could not have been foreseen by the framers of that 
 instrument. Nor, on the other hand, could the early patriots 
 have dreamed of the limitless field of State activities. The mod- 
 ern functions of city government alone cover a range of busi- 
 ness hard to conceive in its totality. The city and the State are 
 
 3S8 
 
HISTORY OF NEfV YORK 
 
 more likely than the nation to threaten individualism or absorb 
 the enterprises of society. 
 
 The chief menace to the State may seem to come from the 
 Federal judiciary. This is more fancied than real. Federal 
 judges not only habitually regard constitutional boundaries in 
 their decisions, but are themselves citizens of the respective states. 
 No State could be oppressed by Congress without the consent of 
 other states. Congress can enact no law infringing State rights 
 without the consent of the states themselves, for it consists 
 of representatives from states. The danger of encroachment is 
 minimised because the people of the states, mediately or imme- 
 diately, elect the president and the members of both houses of 
 Congress, and appointments of Federal judges may be said to 
 emanate from them. Were the sources of Federal authority 
 foreign or extrinsic, dangerous consequences might be feared, 
 but no outside potentate or sovereignty imposes, enforces or inter- 
 prets Federal powers. Federal officeholders come from, and 
 upon retirement return to, the citizenship of the states ; in fact, 
 during all their official life they remain citizens of their respective 
 commonwealths. There is no analogy to the prefecture or prp- 
 consulate in the relation of the states to the Federal govern- 
 ment, and the power of amending the national constitution rests 
 exclusively with the states themselves. The government consists 
 still, as ever, of an indissoluble union of indestructible states. 
 As has eloquently been said by a great historian, the nation, like 
 Milton's angels, "vital in every part, cannot but by annihilating 
 die".i 
 
 It is for the men of today to give such interpretation to the 
 idea of the State that it shall retain its rightful domain in the 
 field of public life. The mental vision which perceives the almost 
 
 I "The Nation", by Alexander Johnston, 2 Lalor's Cyclopedia, 936. 
 
 359 
 
LEGAL AND JUDICIAL 
 
 illimitable horizon of the State has neither jealousy nor fear of 
 national power. Let the citizenship of the State set exalted 
 standards for public servants, State and local ; send to the national 
 senate and house neither placemen "all servility and smiles", nor 
 tools of special interests, but representatives of that genuine 
 manhood which still persists if there be any virtue in the com- 
 monwealth, and there will be no occasion to fear central usurpa- 
 tion.^ If the State is ever undermined, the canker will come 
 from within. Had membership in important State and local 
 boards, which in the past has too often been determined by petty 
 politics, been decided by large considerations of public interest, 
 history would have been revolutionized. Vast opportunities for 
 distinguished service have been open, but often have been abused. 
 In the laws and constitutions of the State, futurp historians will 
 find proof that official corruption and betrayal of public trusts are 
 almost inveterate vices, and, paraphrasing the language of Jugur- 
 tha, may be tempted to exclaim that everything was venal in New 
 York. We need a quickened conscience in the selection of officials. 
 They especially need it in the discharge of their duties. With the 
 ancient Romans patriotism was a religion ; it ought to be so with 
 us. There is hardly a baser form of turpitude than pillage of 
 the public treasury committed or weakly allowed by an official 
 whom a confiding public has honored with place. Yet looting 
 occurs under Protean forms. It is a species of treason against 
 the State and public opinion will some day demand that it be 
 treated as such. 
 
 To emphasize the importance of the State is not scholastic 
 
 2. The election of Governor Hughes was a great gain for good citi- 
 zenship and the election of Mayor Gaynor of New York City has added 
 new dignity to the mayor's office. The election of such a typical repre- 
 sentative of our best citizenship as Dr. Woodrow Wilson to the chief 
 magistracy of a commonwealth is an auspicious sign of a reawakening 
 estimate of the real significance of the state. 
 
 360 
 
HISTORY OF NEW YORK 
 
 in an age when a new nationalism is inculcated. The State is the 
 home of the individual. Its institutions, laws and customs environ 
 his life and may surround him with an atmosphere of opportunity 
 or discourage all aspiration. It is the originator and con- 
 troller of the innumerable corporate phases of modern busi- 
 ness, so far as business is transacted within the State. It 
 must devise and enforce rules to prevent these artificial creatures 
 from dominating society with an imperial sway hardly enjoyed 
 by past kings and rulers, and from rearing a genuine economic 
 servitude upon conventional political freedom. It must restrain 
 these vast and generally beneficent aggregations from becoming 
 possible enemies or masters of the people. It must revise and 
 re-examine the whole law in relation to grants of privileges and 
 the people must understand, as Burke declared, that there is a 
 public as well as a private aspect to every franchise, and that the 
 primary, even the sole, object of the State in the creation of a 
 franchise is the promotion, not of the interests of individuals, 
 but of the general public welfare. In the last analysis the power 
 of government to grant special privileges springs not from any 
 right to confer a benefit upon individuals, for it has no such right, 
 but from expectation of advantage to the community. The State 
 has nothing to fear from the nation if it perform its full duty as 
 a distinct governmental entity. The danger of absolutism is 
 chimerical. There is no soil here for the growth of a Caesar or a 
 Napoleon. Far more imminent and far more insidious is the 
 peril from accumulated wealth, especially wealth fostered and in- 
 creased by government favoritism, the peril from widespread 
 corruption, from debasement of the electorate by unrestricted 
 immigration, from the gross materialism and low moral standards 
 of the age, and the effect of irreligion upon natures deficient if 
 not altogether lacking in ethical quality. There is an incalculable 
 
 361 
 
 24 
 
LEGAL AND JUDICIAL 
 
 menace in the widespread disrespect for law ; in fact by this dis- 
 respect, wealth has too often been attained. 
 
 Nothing is clearer than that the future of the State is in 
 the keeping of all its people, and not of a class. That was settled 
 when the states adopted manhood suffrage early in the last cen- 
 tury. Their wisdom could readily be justified by a priori reason- 
 ing; it has abundantly been proved by intermediate history. 
 Without manhood suffrage this State would not have attained 
 its acknowledged primacy ; without manhood suffrage the nation 
 would have been stunted in its growth ; without it slavery exten- 
 sion could not have been arrested. Without it there would have 
 been no logical substructure for Lincoln's appeals to his audi- 
 ences in the debates with Douglas. His arguments were based 
 upon the proposition that no man has a right to say to another, 
 white or colored, "you earn the bread, but I shall eat it." As 
 Mill has well said, "human beings are only secure from evil at the 
 hands of others in proportion as they have the power of being, 
 and are, self-protecting" , and this they could not be without the 
 suffrage. Nor would the successful conduct of the Civil War 
 have been possible upon any narrow electoral basis. With the 
 enormous growth of private fortunes in recent years and the 
 creation of vast if not sinister aggregations of capital, manhood 
 suffrage might perhaps not have come at all, or might have been 
 long deferred, had the idea of its adoption been postponed. Vot- 
 ing power would, perhaps, have been firmly concentrated in few 
 hands; its holders might have stubbornly resisted any interfer- 
 ence with their privilege of exploiting masses of men for their 
 own benefit. The point to be emphasized is that democracy has 
 the future in its own keeping; what the people desire they will 
 surely obtain. They make and they may unmake constitutions 
 and substitute other instrumentalities of government. Their 
 
 362 
 
HISTORY OF NEW YORK 
 
 power is altogether too titanic long to withstand opposition. The 
 great, the abiding need in the interest of genuine progress is that 
 this invincible power shall not be misused. 
 
 Fears of the rise of a plutocratic class are frequently ex- 
 pressed ; nevertheless, there are cogent reasons for believing that 
 a wealth caste will never flourish in this republic, although at 
 times the belief wavers as a servile and cynical press, and almost 
 all grades of officialdom are seen to prostitute themselves before 
 the money power — the only power, as Hudibras says, "that all 
 the world bows down before ; money, that like the sword of kings 
 is the last reason of all things." The chief antidote is the organ- 
 ized public opinion auspiciously on the increase and co-extensive 
 with the republic that exalts character, intelligence, disinterested 
 public service, nobility of aim and purpose above mere financial ac- 
 quisition, — an opinion growing vastly more formidable as fortunes 
 accumulate. Democracy has in fact less to fear from plutocracy 
 than from itself, — its own unwisdom, its own low standards, 
 even its own virtuous impatience with evils the extirpation of 
 which requires the exercise of sanity and trained intelligence. 
 There are moods in which one almost despairs of democracy. It 
 seems a dead level of commonplaces ; its vulgar contests are unin- 
 spiring; its judgment is undiscriminating. It lives in an atmos- 
 phere of bustle and hurry; it lacks poise; its manners are 
 plebeian ; it can scarcely distinguish a patriot from a demagogue, 
 a Caesar from a Clodius ; it bows down before false gods, and 
 worships false creeds. These are only moods, for the lesson, 
 repeatedly enforced, is that the people may be trusted. 
 
 A cardinal error of democracy is its tendency to seek an 
 instant cure for an ill, sacrificing the ultimate to the immediate 
 good, its action militating against true progress. There is the 
 same recuperative energy in the social as in the physical life of 
 
 363 
 
LEGAL AND JUDICIAL 
 
 man. Evils tend to disappear or cure themselves, but democ- 
 racy is restless and unthinking. It needs that proud and uncon- 
 querable patience which has somewhere been said to be beloved 
 by the gods. In reckless pursuit of specific remedies, worse ills 
 are often fostered. Government is thus made to consist of a 
 series of reactions. 
 
 In a commonwealth of manhood suffrage needed reforms 
 can never long be resisted. Let us first be sure that our remedies 
 are reforms. To the toiling masses life is narrow and in emo- 
 tional moments they sometimes seem victims rather than bene- 
 ficiaries of industrial progress. Freedom of contract on the part 
 of the employed often seems the ironic freedom to accept from 
 an employer the terms of a slave. Sympathy resents intolerable 
 evils and injustices long before reason discovers the cure. If, 
 for example, constitutional obstacles have apparently blocked the 
 passage of laws to indemnify labor from the almost inevitable 
 casualties of employment, such laws are bound to come; the 
 check is only temporary. Legislation in the interest of humanity 
 cannot long be resisted, for constitutions will yield sooner than 
 human sentiments. The harsh rules of the common law, rules 
 adapted to a simple society and not to the complex labor condi- 
 tions of the modern state, will be rejected and there will be sub- 
 stituted the principle that injuries to labor constitute risks of the 
 business, to be borne by it as an expense of production. The 
 Employers' Liability Act passed at the extra session of the legis- 
 lature may be adjudged unconstitutional, for serious questions lie 
 beneath it; but if it be so adjudged, constitutional amendment 
 will come, for the agitation for ameliorating conditions will not 
 cease until a remedy has been attained. 
 
 The constitution assumed substantially its present character 
 under the impulse of the democratic movement culminating in this 
 
 364 
 
HISTORY OF NEW YORK 
 
 State in the convention of 1821. The modern industrial State 
 had then hardly begun its life. The steamship was in its infancy, 
 the railroad unknown, the telegraph, the ocean cable, the tele- 
 phone, the phonograph, the wireless current, unimagined. Pho- 
 tography had not been invented; modern chemistry was almost 
 undiscovered. The boundaries of the solar system have since im- 
 measurably extended; Uranus was then the most distant planet 
 of the sisterhood, for not until 1846 did the combined genius of 
 Adams and of Leverrier extend the sun's family to Neptune. 
 The spectroscope, the latest revolutionizer of stellar science, had 
 not been invented. Corporations were few in number and had 
 not yet become vehicles of trade. The immense industrial ad- 
 vancement witnessed during the last generation could not have 
 been dreamed of. A tremendous impetus has been given to 
 thought by the scientific, industrial and social evolution of the 
 last sixty or seventy years. It has involved and will continue to 
 involve reconsideration of accepted creeds and ideas. No doc- 
 trine based upon traditions however long continued or valued will 
 be safe from mordant analysis. It would be strange indeed if in 
 the general intellectual uprising old theories of political economy 
 and assumed axioms of jurisprudence should escape rough 
 handling. The false and the mistaken will disappear, the true 
 will emerge the stronger from the ordeal. 
 
 All needed reforms in the State would seem attainable through 
 legislation, and there seems to be no adequate reason for a favor- 
 able vote to call a convention in 1918. Thorough and intelligent 
 discussion of the desirability of summoning it into being should 
 precede vote upon the question. If a convention is not needed it 
 should not be held, especially since the constitution furnishes- 
 another method of securing amendments. Valuable as was the 
 work of the convention of 1894, it perceived that besides formu- 
 
 365 
 
LEGAL AND JUDICIAL 
 
 lating a few new sections its function was that of attempting to 
 improve the phraseology of the existing framework of govern- 
 ment, not of radical alteration of its structure. With the many 
 amendments which have found their way into the organic law 
 since the constitution of 1895 was ratified, it may seriously be 
 doubted whether a convention should be held in 1918. Every 
 desirable alteration that might be sought for a score of years 
 could be obtained through the method of amendment by legis- 
 lative initiative. Moreover even if no convention should be 
 favored by the voters in 1916 the legislature by the present con- 
 stitution is vested with the power in any year to refer to popular 
 vote the question whether a convention should be called. Even 
 without this provision the legislature could properly provide for 
 a public vote for or against the holding of a convention, as was 
 done in 1845, at a time when there was no express authority in 
 the fundamental law for such action. In several other states 
 the constitution has remained static for many years. The burden 
 of establishing the need of a convention ought to be imposed 
 upon those who would advocate it. 
 
 At the outset of this book it was urged that the constitu- 
 tional history of the State should interest the legal profession. 
 The interest should not, however, be merely of that nature which 
 stimulates the lawyer to invoke a constitutional principle for a 
 particular client, but of a philosophic kind. The lawyer more 
 than any other citizen should live in the atmosphere of basic 
 principles, and be ready to expound them in the public interest. 
 He ought to be a leader in the march of events. Such was the 
 mission of the bar until recent years. If there have come over 
 the community the feeling that the bar is no longer potential in 
 formative political movements, that the lawyer of today is merely 
 a client's attorney, who, as Dr. Woodrow Wilson has recently 
 
 366 
 
HISTORY OF NEW YORK 
 
 said, "has become part of the mercantile structure rather than 
 part of the general social structure of the commonwealth, as he 
 used to be", has "become narrowed to a technical function", it is 
 for the members of the profession to endeavor to regain the 
 educative and inspiring ascendency it once enjoyed. The State 
 "never needed lawyers who are statesmen more than it needs 
 them now, * * * lawyers who can think in the terms of 
 society itself" and are not "mere cogs in a machine which has 
 men for its parts."^ 
 
 The questions of the future will probably be economic, rather 
 than political. For their solution the best and most disciplined 
 mental power will be requisite. In meeting new problems study 
 of our constitutional history should be an efficient aid. The 
 crises of the past have been successfully confronted; the crises 
 of -the future may be faced with confidence by a genuine democ- 
 racy with belief in itself and its institutions. 
 
 3. Address of Woodrow Wilson, LL.D., before the American Bar 
 Association, August 25, 1910. 
 
 367 
 
INDEX 
 
 ERRATUM 
 Page 22, tenth line; for Van Hoist, read von Hoist. 
 
 Abolition — ^Aaron Burr champions, 39. 
 
 Adams, Henry — ^History of United 
 States, 332, note. 
 
 Age limit — effect of, on judiciary, 31. 
 
 Albany Gazette — articles on the action 
 of the council of appointment in 
 the, 49. 
 
 Albany Regency, int. ii. 
 
 Albany Register — urges Clinton for 
 president, 59. 
 
 Alexander, De Alva Stanwood, int., 1. 
 
 Amendment of Constitution — mode of, 
 provided by convention of 1821, 98 ; 
 by convention of 1846, 156. 
 
 Anderson, Martin B. — member of com- 
 mission of 1875, 254. 
 
 Andrews, George H. — on tax on per- 
 sonalty, 296. 
 
 Andros, Edmund — colonial governor of 
 New York, administration of, 11. 
 
 Anti-Rent party — attitude of, towards 
 a new convention, 143 ; influence 
 of, upon convention of 1846, 161 ; 
 origin of, 161. 
 
 Appointments — change in system of, 
 by constitution of 1846, 153 ; prac- 
 tice of making, in different States, 
 85. 
 
 Appropriation bills — power to veto 
 parts of, 225. 
 
 Appropriations — for school system, 42. 
 
 "Arlstides" — nom de plume of William 
 P. Van Ness, 56, 57. 
 
 Articles of Capitulation by the Dutch 
 to the English — 9, 41. 
 
 Articles of Confederation — approved 
 by State legislature, 35 ; signed on 
 behalf of State, 36. 
 
 Assembly, the — Governor Hoffman's 
 views upon, 217 ; how first con- 
 stituted, 27 ; how constituted in 
 1821, 93, 94; method of election 
 of members of, 262 ; report of con- 
 vention of 1894 upon, 344. 
 
 Assembly districts — discussion about, 
 203 ; constitution of, 154, 202. 
 
 Attorney General — aa to appointing, 
 204-5. 
 
 Attorneys — required to produce certifl- 
 eate of loyality, 39, 40 ; required 
 to take test oath, 40. 
 
 Baltimore and Ohio Railway — ^when 
 organized, 272. 
 
 Bank of Albany, the — incorporated In 
 1792, 100. 
 
 Bank of New York, the — Incorporated 
 in 1791, 99. 
 
 Banks — applications for charters for, 
 151, note ; entry of, into politics and 
 results, 99-102 ; tax on stock of, 
 recommended by committee of 
 1899, 303. 
 
 Banking laws — act of 1804 and Its re- 
 sults, 100. 
 
 Barge canal — approved by the people, 
 287; recommended, 285. 
 
 Barnard, D. D.— on Chief Justice Spen- 
 cer, 324, note. 
 
 Barnburners — policy of, 139. 
 
 Bellomont, Lord — on grants by Eng- 
 lish governors, 162. 
 
 Benson, Egbert — and the Supreme 
 Court, 48-49 ; becomes attorney 
 general, 34. 
 
 369 
 
INDEX 
 
 Bill of Rights — addition to, by conven- 
 tion of 1894, 339; enlarged In 
 1821, 121 ; New York delegates 
 In 1788 wished to add, to Federal 
 constitution, 41. 
 
 Bills — recommendation of commission 
 of 1872 as to, 222 ; relating to cit- 
 ies, procedure upon, 26i!; thirty 
 day provision regarding, 224, 225. 
 
 Black, Prank S. — suggests State ap- 
 propriation for war purposes in 
 1898, 310. 
 
 Black river and Genessee valley ca- 
 nals — authorized, 136. 
 
 Boston — railway from, to Hudson riv- 
 er, 272. 
 
 Boundary — between New York and 
 Massachusetts, 9, 161 ; treaty be- 
 tween New York and New Jersey, 
 9. 
 
 Boundary dispute — between New York 
 and New Jersey, 125. 
 
 Bounties — offered at time of Civil War, 
 308 ; payment of, 309. 
 
 Bribery — proposals of commission of 
 1872 as to, 232 ; constitutional 
 provision regarding, 231. 
 
 Brooks, Brastus — ^proposes to re-create 
 council of revision, 224. 
 
 Brown, John W., Justice — in People 
 V. Draper, 245. 
 
 Bryce, James — 329. 
 
 Buoktails, the — breach of, with Clinton 
 faction, 62 ; interest in canal 
 board, 132 ; a majority in legisla- 
 ture in 1820, 73. 
 
 Burgomaster, the — office and duties of, 
 118. 
 
 Burke, Edmund — 361. 
 
 Burr, Aaron — on abolition, 39 ; chos- 
 en president of convention of 1801, 
 54 ; offered justiceship of Supreme 
 Court, 47 ; his biographer, Mat- 
 thew L. Davis, 39 ; other refer- 
 ences, 50, 56. 
 
 Butler, William Allen — member of 
 commission of 1875, 254 ; see also 
 114, 124. 
 
 Cady, Daniel S. — advocates enlarge- 
 ment of canals, 281. 
 
 Campbell, George W. — on amendment 
 to the constitution, 332. 
 
 Canals — Int. 11. 
 
 129-141, 146, 149, 159, 161, 227, 
 228, 271, 272, 274, 275, 286, 287, 
 308, 342, 345. 
 
 Carter, James C. — member of commis- 
 sion of 1875, 254. 
 
 Central Railroad of New Jersey v. The 
 Mayor — New Jersey's claim up- 
 held, 127. 
 
 Chancery courts — abolished as sepa- 
 rate courts, 155 ; merged with 
 common law courts, 174. 
 
 Charles II— 8, 9, 10, 169. 
 
 Charter of 1691 — provisions of, 14. 
 
 Charter of Freedoms and Exemptions 
 — granting of, 5. 
 
 Charter of Liberties and Privileges — 
 in revision of 1813, 41 ; promul- 
 gated in 1683, 12 ; vetoed by 
 James II, 13. 
 
 Chemical Bank — applies for a, charter, 
 151, note. 
 
 Chisholm v. Georgia — cited, 55, note. 
 
 Choate, Joseph H. — int. vi ; on ju- 
 diciary committee, 319 ; president 
 of convention of 1894, 338. 
 
 Church, Sanford B. — Chief Judge of 
 Court of Appeals, 189. 
 
 Cities — debts of, 261 ; general laws for 
 incorporation of, 248 ; influence of, 
 upon government, 269-70 ; princi- 
 ples of government of, 263; early 
 American, organization of, 238 ; 
 power of, to levy taxes, 238, note; 
 regarding, in convention of 1894, 
 262. 
 
 Civil War — ^New York's tax for sup- 
 port of, 309-10. 
 
 Clermont, the — aided canal develop- 
 ment, 130. 
 
 Clinton, DeWitt — advocates building of 
 canal, 130 ; advises call of a con- 
 vention in 1820, 72 ; becomes 
 mayor of New York City, and lieu- 
 tenant-governor of state, 59 ; be- 
 comes a dominant factor in the 
 State, 51; elected governor, 60; 
 re-elected, 133 ; removed from ca- 
 nal commlssionershlp, 132, 133 ; 
 urged for presidency of United 
 States, 59. 
 
 Clinton, George, Governor — breach with 
 council of appointment, 47 ; de- 
 clines to stand for re-election, 50 ; 
 
INDEX 
 
 attitude of, toward Board of Reg- 
 ents, 41 ; opposes ratification of 
 Federal constitution, 40 ; other 
 references, 46, 48, 50. 
 
 Clyde, George C. — on wrongs done to 
 tenants, 163. 
 
 Columbia University — formerly Kings 
 College, 42. 
 
 Colonial laws of New York — made part 
 of common law of State, 41. 
 
 Compensation — of officers fixed by law, 
 231. 
 
 Commission government — present ten- 
 dency towards, 269. 
 
 Commission of 1890 (on Judiciary) — 
 authorization and organization of, 
 316 ; recommendations of, not ap- 
 proved by legislature, 316-17-18. 
 
 Commission on city government — ap- 
 pointed by Governor Tilden, 254. 
 
 Committee of Seventy (New York 
 City) — draft of a charter by, 247. 
 
 Common Council — of City of New 
 York, 240. 
 
 Congress — power of, to tax, 289. 
 
 Connecticut charter — account of, 12. 
 
 Conservatives — in older parts of the 
 State, 78. 
 
 Constitution of the State — first, 25, 26 ; 
 described, 26-34. 
 
 Constitutional commission of 1872 — 
 proposals of, 231 ; recommenda- 
 tions of, 220, 234, 235, 249. 
 
 Constitution of New York — sources of, 
 18. 
 
 Constitution of the United States — 40. 
 
 Continental Congress (Second) — rec- 
 ommendations of, to colonies, 23. 
 
 Convention of 1777 (Constitutional) — 
 int. U. 
 
 Convention of 1801 (Constitutional) — 
 meets at Albany, Oct 13, 54. 
 
 Convention of 1821 (Constitutional) — 
 bill providing for, passed and ap- 
 proved, 76 ; changes made by, 83- 
 4 ; debates upon suffrage In, 93 ; 
 delegates to, largely democratic, 
 81 ; results of, 121 ; some members 
 of, 82-3 ; the vote for, 77 ; votes 
 to abolish council ot appointment, 
 65. 
 
 Convention of 1846 (Constitutional) — 
 a people's convention, 147 ; leading 
 delegates to, 146 ; recommenda- 
 
 tions of, 147-8 ; views of its mem- 
 bers upon work of, 157 ; the vote 
 for, 144. 
 
 Convention of 1867 (Constitutional) — 
 committee in, on official corruption, 
 232, note ; discussion in, as to ten- 
 ure of judiciary, 179-80 ; discus- 
 sion in, upon submission of work 
 to the people, 211 ; leading mem- 
 bers of, 178 ; most of work of, de- 
 feated at polls, 215 ; ratification 
 of judiciary article of, 189 ; rea- 
 sons for failure of work of, 193 ; 
 report of judiciary committee of, 
 178-9 ; vote for, 177. 
 
 Convention of 1894 (Constitutional) — 
 election of delegates to, 336-7 ; 
 proposals in, regarding courts, 
 321 ; report of, 341-2 ; work of, 
 338. 
 
 Cooley, Thomas M. — on freedom of 
 canals, 280. 
 
 Cooper, Dr. Charles D. — made Secre- 
 tary of State, 60. 
 
 Cooper, Edward — member of commis- 
 sion of 1875, 254. 
 
 Corporations — taxation ot, 299, 300, 
 305. 
 
 Council of appointment — abolished by 
 convention of 1821, 83 ; Hamilton 
 on, 45 ; Hammond on, 44, 45 ; In- 
 ferior Judges removed by, 170 ; 
 influence of, 64 ; how first consti- 
 tuted, 30, 35; power of, Int. 11; 30. 
 
 Council of revision — abolished by con- 
 vention of 1821, 84 ; as suggested 
 by Robert R. Livingston, 29 ; cause 
 of downfall of, 330 ; discussion 
 upon abolition of, 89 ; opposes pub- 
 lic sentiment, 67 ; subject of pub- 
 lic odium, 66. 
 
 Council of Safety — created In 1777, 34 ; 
 proceedings of, ratified by legisla- 
 ture of 1778, 35. 
 
 Court of Appeals — members of, elected 
 in 1870, 189 ; number of judges of, 
 from 1847 to date, 314; organiza- 
 tion of second division of, 315 ; 
 review of questions of law and 
 fact in, 324 ; sentiment against en- 
 largement of, 315. 
 
 Court of Burgomaster and Schepens — 
 abolished, 119. 
 
 Court of Common Pleas of the City of 
 
 371 
 
INDEX 
 
 New York — account of, 121 ; ori- 
 gin of, 117. 
 
 Court of Impeachment — retained un- 
 der constitution of, 1846, 154 ; 
 changes in, by second constitution, 
 112. 
 
 Court for the Correction of Errors — 
 created, 31 ; abolished, 155. 
 
 Courts — criticism of, commented upon, 
 327 ; as provided for by constitu- 
 tion of 1846, 155 ; of the State in 
 early times, 313. 
 
 Criminal libel — English law of, be- 
 comes State law, 96; State statute 
 as to, changed in 1805, 97. 
 
 Croton Aqueduct Board — creation of, 
 243. 
 
 Curtis, George William — on woman suf- 
 frage, 196. 
 
 Daly, Charles P. — 15, note; on ju- 
 dicial tenure, 182. 
 
 Danforth, George P. — chairman of 
 commission of 1890, 316. 
 
 Davis, Matthew L. — biographer of 
 Aaron Burr, 39. 
 
 Debts — limitation upon creation of, 
 308 ; of cities, towns, etc., 229- 
 30 ; provisions affecting, in cities 
 of over 100,000 population, 233 ; 
 restraint upon cities to incur, 230 ; 
 two policies in the State regarding, 
 134-5 ; 'when the State could con- 
 tract, 149-50. 
 
 Doming, Horace B. — "Government of 
 American Cities," 267, note. 
 
 Denio, Hiram, Chief Judge of Court 
 of Appeals — in People v. Draper, 
 245 ; on law of tenures, 166. 
 
 Deserters — bill to aid in arrest of, ve- 
 toed, 68. 
 
 Dimock, Henry F. — member of com- 
 mission of 1875, 254. 
 
 Direct taxes — ^what are included In, 
 289. 
 
 Discovery — title by, 2. 
 
 Dongan charter — provisions of, 239. 
 
 Dongan, Thomas — becomes governor of 
 colony, 11. 
 
 Duer, John — delegate to amend city 
 charter, 240 ; delegate to conven- 
 tion of 1821, 82. 
 
 Duganne's amendment— as to appoint- 
 ment of Attorney General, 204. 
 
 Duke's Laws — adopted in , colony In 
 1665, 10. 
 
 Dutch — surrender colony of New Am- 
 sterdam, 9. 
 
 Dutch claims — extent of, 8. 
 
 Dutch Bast India Company — authority 
 of, 3. 
 
 Dutch West India Company — charter 
 of, 3 ; powers of director of, 4. 
 
 Dwight, Theodore W. Professor — on 
 appointment of attorney general, 
 205 ; on senatorial districts, spe- 
 cial legislation, 200. 
 
 -plan 
 
 B 
 of 
 
 New York for. 
 
 Bducation- 
 41. 
 
 Educational qualifications of voters — 
 discussion upon, 198. 
 
 Edwards, Ogden — in the assembly, 61. 
 
 Erie Canal — benefits from, 271 ; bill 
 passed in 1851 for its enlargement, 
 159 ; law passed for its enlarge- 
 ment, 135 ; tolls from, 271, note. 
 
 Brie and Champlain Canals — comple- 
 tion of, 133. 
 
 Brie Railway — chartered, 272. 
 
 Evarts, William M. — discussion by, of 
 Judicial tenure, 184-6-6, 330 ; mem- 
 ber of Tilden commission, 254. 
 
 Evening Post, the — approves the prin- 
 ciples of the Doco-foco party, 152. 
 
 Excise — State Department of, 302. 
 
 F 
 
 Pairlie, Professor — on powers of may- 
 ors, 260. 
 
 Federalist, The — on council of appoint- 
 ment, 45. 
 
 Federalists — and the State appointive 
 system, 47. 
 
 Fenton, Reuben E., Governor — on de- 
 cision to hold convention, 335. 
 
 Finance — ^passage of bill in 1842, 138. 
 
 First Constitution, the — its provisions, 
 26. 
 
 Flower, Roswell P., Governor — advo- 
 cates the holding of a convention, 
 335. 
 
 Polger, Charles J. — address to the peo- 
 ple, 210. 
 
 372 
 
INDEX 
 
 T"ord Special Franchise Tax — ^passage 
 of, 304 ; result of. 306. 
 
 Foreign Corporations — taxed In New 
 York, 299. 
 
 Forest preserve — ^work of convention 
 of 1894 regarding, 340. 
 
 Fowler, Robert Ludlow — Int. 1. 
 
 Franchises — act of 1853 In respect to, 
 243 ; taxation of, 305. 
 
 Freemen — during colonial period, 236. 
 
 Freight — charges on, 276 ; transporta- 
 tion of, 275. 
 
 Fulton Bank — applies for a charter, 
 151, note. 
 
 Funds of the State — ^how to be used, 
 149. 
 
 G 
 
 Garfield, James A. — 273. 
 
 General city laws — 251. 
 
 Gitterman, J. M. — article on council 
 of apportionment, 44, note. 
 
 Godkln, Edwin L. — in commission of 
 1875, 254, 255. 
 
 Goodnow, Frank J. — on municipal 
 problems, 267-8. 
 
 Governor, the — ofBce of, how first cre- 
 ated, 28 ; extension of term of, to 
 three years in 1875, 225 ; reduc- 
 tion of term of, to two years In 
 1895, 225. 
 
 Griswold v. Haddington — opinion of 
 Chief Justice Spencer, 324, note. 
 
 Grotlus — theory developed by, 2. 
 H 
 
 Hamilton, Alexander — adovcates Judic- 
 ial tenure during good behavior, 
 184 ; on council of appointment, 45 ; 
 other references, 25, 40, 47, 49, 97, 
 113, 120, 328-9, note, 331. 
 
 Hammond, Jabez D. — his Political His- 
 tory of New York, int. iv; vlewa 
 on council of appointment, 44 ; 
 other references, 55, 61-64, 74, 82, 
 84, 85, 115, 133, note. 
 
 Hand, Samuel — member of commission 
 of 1875, 254. 
 
 Harris, Ira — on work of convention of 
 1846, 157. 
 
 Hayes, Isaac I. — resolution to abolish 
 canal tolls, 280. 
 
 Hepburn, A. Barton — chairman of as- 
 sembly investigating committee, 
 274 ; committee's report, 275. 
 
 Henry, John V. — removal from comp- 
 trollership, 55 ; in convention of 
 1801, 56. 
 
 Hlggins, Frank W., Governor— on rev- 
 enues of the State, 306 ; on sub- 
 mission of constitutional amend- 
 ments, 349. 
 
 Highways — debt for improvement of, 
 authorized, 311 ; project to build, 
 135. 
 
 Hill, David B. — disagreement with 
 legislature as to mode of elect- 
 ing delegates to constitutional 
 convention, 335. 
 
 Hill, Henry W. — advocates canal en- 
 largement in convention of 1894, 
 281. 
 
 Hitchcock, Henry — address before N. 
 Y. State Bar Association, 176. 
 
 Hobart, John Sloss — 34; 115, note. 
 
 Hoffman, John T. — as governor advo- 
 cates appointment of State ofHcers, 
 216; appoints members of consti- 
 tutional commission of 1872, 218- 
 19 ; career of, 215 ; elected gov- 
 ernor, 245 ; message of, advocat- 
 ing a constitutional commission, 
 234 ; on desirable constitutional 
 changes, 251-2. 
 
 Hoffman, Josiah Ogden — criticises 
 council of appointment, 48. 
 
 Hoffman, Michael — and act of 1842, 
 138 ; address of, to people on work 
 of convention, 158 ; also 142, 143, 
 160; Tilden on, 146. 
 
 Holland — colonial Interests of, 3 ; 
 courts of, 117-8. 
 
 Hooker, Thomas — author of Connec- 
 ticut charter of 1639, 12, 13. 
 
 Homblower, W. B. — 317. 
 
 House of Lords — as final court of ap- 
 peal in Great Britain, 313. 
 
 Hughes, Charles E., Governor — ^favors 
 progressive Inheritance tax, 301; on 
 submission of constitutional amend- 
 ments, 349. 
 
 Hunkers, the — a Democratic faction, 
 139; policy of, 139; "the old 
 Hunkers," 142 ; oppose a constitu- 
 tional convention, 143. 
 
 Hunt, Washington, Governor — favors 
 bill of 1851 to enlarge canals, 159 ; 
 on personal taxation, 292. 
 
 373 
 
INDEX 
 
 Immigration — certain evils of, 248. 
 Imprisonment for civil debt — abolished, 
 
 127. 
 Income taxes— 289, 304. 
 Indians — title to lands from, 2. 
 Inheritance taxes — Federal (1898), 
 
 301 ; State legislation of 1881 as 
 
 to, 300 ; various States adopt, 300, 
 
 note. 
 Improvements — ^by the State, 133, 134 ; 
 
 public feeling regarding, 139-40. 
 Initiative, the — 365, 357. 
 
 172 ; discussion as to tenure of, lir 
 tem under first constitution in New 
 convention of 1867, 181-2 ; sys- 
 Tork, 31 ; functions of, 331 ; tenure 
 of, during good behavior, 169; 
 election of, 176 ; tenure of, during 
 colonial regime, 168 ; value of the 
 independence of, 331 ; vote of 1873 
 upon appointment of, 188. 
 
 Judiciary committee in convention of 
 1894 — plan of, 319-20. 
 
 Judges — number of, in Court of Ap- 
 peals from 1847 to date, 314 ; ap- 
 pointment of, voted upon, 188 ; ten- 
 ure of, under council of appoint- 
 ment, 46. 
 
 James II — control over judiciary, 169- 
 70 ; other references to, 9, 10, 11, 
 13, 14. 
 
 Jameson, John A., Judge — 144, note ; 
 on constitutional commissions, 235. 
 351, 358 ; on revolutionary con- 
 ventions, 26. 
 
 Jay, John — becomes chief justice of 
 State Supreme Court, 34 ; declares 
 for exclusive right of nomination 
 in council of appointment, 53 ; 
 election to governorship, 50 ; his 
 nominations rejected by council of 
 appointment, 52 ; participation in 
 convention of 1777, 26 ; seeks to 
 prohibit negro slavery, 39. 
 
 Jay, Peter A. — becomes recorder in 
 New York City, 62 ; delegate to 
 convention of 1821, 83 ; to amend 
 New York City charter 1830, 240. 
 
 Jefferson, Thomas — 20, 46, 332, and 
 note. 
 
 Johnson, Richard M. — offers in U. S. 
 Senate proposed amendment limit- 
 ing federal judicial powers, 333. 
 
 Johnson v. M'Intosh — on Indian titles, 
 3, note. 
 
 Jones and Varick — Statutory Revision 
 of 1789, 41. 
 
 Judicial pensions — as favored in com- 
 mission of 1890, 322 ; in conven- 
 tion of 1894, 322, 323. 
 
 Judicial retirement — discussion upon, 
 113. 
 
 Judiciary — attitude of convention of 
 1846 towards, 169 ; convention of 
 1846 reports in favor of elective. 
 
 K 
 
 Kent, James — becomes chancellor, 60 ; 
 his appointment to the Supreme 
 Court, 114, note; objections of, ta 
 convention bill of 1820, 73-4 ; op- 
 poses privateering bill, 67 ; other 
 references, 34, 41, 68, 83, 94, 95, 96, 
 97, 103, 106, 109, 113, 120, 121, 124, 
 181, 215, 291. 
 
 Kent and Radcliff — statutory revision 
 of 1801 by, 41. 
 
 Kieft, Director of Dutch colony — re- 
 sults of his administration, 7. 
 
 King, Rufus — opposes slavery in North 
 West territory, 39. 
 
 King's College — ^name changed to Co- 
 lumbia, 42. 
 
 Kingston-upon-HuU — 237. 
 
 Land grants — extent of, 162; to rail- 
 ways, 273. 
 
 Lansing, John, Jr. — 99. 
 
 Lateral canals — 227. 
 
 Lewis, Morgan — appointed to Supreme 
 Court, 47 ; becomes governor, 57 ; 
 on appropriations for schools, 42. 
 
 Lieutenant-Governor — constitutional 
 provision for a, 32. 
 
 Lincoln, Abraham— 190, 193, 206, 308, 
 362. 
 
 Lincoln, Charles Z.— Int. 1; on con- 
 vention of 1894, 321, note; on our 
 constitutional history, 15 ; on pa- 
 troon system, 6, note; on ten day 
 
 374 
 
INDEX 
 
 bills, 206 ; quotations from "Con- 
 stitutional History," 265. 
 
 Liquor law — ^passed in 1896, 302. 
 
 Liquors — revenues derived from, 302. 
 
 Litigation — growth of, 171. 
 
 Livingston, Edward — 58, note, 123. 
 
 Livingston, Robert R. — first chancellor 
 of the State, 34 ; suggests a coun- 
 cil of revision, 29 ; work in first 
 constitutional convention, 24, 88. 
 
 Loco-foco party- — its formation and 
 principles, 152. 
 
 Lett, John A. — member of commission 
 of 1875, 254. 
 
 Lotteries — sanctioned by legislation, 
 290. 
 
 M 
 
 Madison, James — 92. 
 
 Maine, Sir Henry — essay of, on Popu- 
 lar Government, 329 ; influence of 
 Roman law, 2. 
 
 Manhattan Company — its incorporation 
 planned, 99. 
 
 Marcy, William L.— 61. 
 
 Marshall, John— 332, 324, note. 
 
 Marshall, Louis — on judiciary com- 
 mittee of convention of 1894, 319. 
 
 Mayor, the — concentration of power in, 
 249 ; Tilden Commission on, 260. 
 
 Mayor's Court — account of, 120 ; ori- 
 gin of, 119. 
 
 McBain, Howard Lee — monograph on 
 DeWitt Clinton, 44, note. 
 
 McLaughlin, Chester B., Hon. — advo- 
 cates enlargement of canals, 281. 
 
 MoComb, Alexander — sale of State land 
 to, 162. 
 
 Meyer, Hugo Richard — on railway 
 rates, 273, note. 
 
 Mill, John Stuart — favors taxation of 
 inheritances, 302 ; on right of wo- 
 men to vote, 193 ; on suffrage, 362. 
 
 Minuit, Peter — becomes director of New 
 Netherland in 1626, 6. 
 
 Mohawk and Hudson Railway — charter 
 granted to, 272. 
 
 Monroe, James — 29, 122. 
 
 Montesquieu — influence of, on our early 
 government, 19. 
 
 Montgomerie charter — 240. 
 
 Morgan, Edwin D., Governor — on 
 bounty debt, 308. 
 
 Morris, Gouvemeur — in first constitu- 
 tional convention, 24. 
 
 Morton, Levi P., Governor — recom- 
 mends State excise law, 302. 
 
 Mortgages — taxation of, 303. 
 
 Municipal Government — discussion 
 upon, 208 ; plan of Tilden com- 
 mission for, 259 ; report of com- 
 mittee on cities on, 208. 
 
 Municipal reform — seeming failure of, 
 253. 
 
 Municipalities' — restraint upon power 
 of, to incur debt, 230. 
 
 Munro, Peter Jay — chairman of ju- 
 diciary committee in convention of 
 1821, 105. 
 
 Murphy, Henry C. — advocates general 
 law for the incorporation of cities, 
 248 ; on work of convention of 
 1846, 157; on municipal govern- 
 ment, 209. 
 
 N 
 
 Navigation Act — results of, 18. 
 
 Negroes — discussion regarding the ex- 
 tension of the suffrage to, 195 ; 
 property qualifications for, retain- 
 ed, 196 ; abolished, 196. 
 
 Negro slavery — acts of 1799 and 1817, 
 94 ; other references, 39, 243. 
 
 New Amsterdam — charter of, 239 ; 
 courts of, 118 ; surrendered to the 
 English, 9. 
 
 New England — settlers from, in New 
 York, 79. 
 
 New Hampshire Grants — dispute be- 
 tween New York and New Hamp- 
 shire, 38. 
 
 New Jersey — boundary dispute with 
 New York, 125. 
 
 New Netherland — conflicting claims re- 
 garding, 2 ; flrst government in, 
 3. 
 
 New York Central Railway — formation 
 of, 272. 
 
 New York — first State to surrender 
 title to western lands, 37 ; educa- 
 tion in, 41. 
 
 New York City — assessed value of 
 realty in, 297; corruption in af- 
 fairs of, 244 ; charter of 1830, 
 241, 244; of 1849, 242, 243; ruled 
 by legislature, 245. 
 
 375 
 
INDEX 
 
 NicoU's Code — 10. 
 
 North West Territory — attracts Immi- 
 gration, 78. 
 
 O 
 
 Oakley, Thomas J. — 62, 116, 117. 
 
 Oath of allegiance — required of all of- 
 iieeholders, 39. 
 
 O'Conor, Charles — on work of con- 
 vention of 1846, 157; 174. 
 
 Odell, Benjamin B., Jr., Governor — on 
 canals, 286 ; advocates exempting 
 mortgages from taxation, 303. 
 
 "Old Hunkers" — and defeat of Wright, 
 142. 
 
 Ottendorfer, Oswald — member of com- 
 mission of 1875, 254. 
 
 Parliament (British) — its authority 
 over the colonies, 17, 18 ; private 
 or special bills in, 223. 
 
 Patroons — powers of, 5, 6 ; vast estates 
 granted to, 162. 
 
 Patroon's courts — establishment of, 5. 
 
 Pensions — to judges, proposal of com- 
 mission of 1890 for, 322. 
 
 People V. Bowen — cited, 206. 
 
 People V. Croswell — 97. 
 
 People V. Draper — 245. 
 
 People ex rel Hatch v. Reardon— -cited, 
 288, note. 
 
 Personalty, taxation of— 292, 294, 295. 
 296. 
 
 Pinckney, Charles C. — on the Declara- 
 tion of Independence, 22. 
 
 Piatt, Jonas, Justice — in convention 
 of 1821, 88. 
 
 Poughkeepsie — convention at, in 1788, 
 40. 
 
 Prison discipline — reforms in, adopted, 
 127. 
 
 Privateering — encouraged by the legis- 
 lature, 67. 
 
 Property — lack of philosophical defi- 
 nitions of, 301, note. 
 
 Property qualifications — abolished for 
 white voters in 1826, 127 ; for col- 
 ored voters, 195, 196, 198, 199, 219. 
 
 Proxies — law respecting, 277. 
 
 Public improvements — cause of State 
 debt, 229. 
 
 376 
 
 Public Service Commissions — organiza- 
 tion of, 278, note ; salaries of 
 members of, 279, note. 
 
 B 
 
 Railroad commission — advocated by 
 Hepburn committee, 278 ; of 1882, 
 278, note. 
 
 Railways — abuses in management of, 
 274 ; growth of, 272 ; effect of 
 growth upon canal commerce, 273, 
 274. 
 
 Randolph, John — proposed amendment 
 to Federal constitution, 332. 
 
 Real estate— different rate of assess- 
 ment of, in different counties, 292. 
 
 Recall the — 355, 356. 
 
 Referendum the — 355, 356. 
 
 Regents, Board of — advocate com- 
 mon school system, 42 ; established 
 by legislature, 42. 
 
 Religious freedom — secured by con- 
 stitution, 32. 
 
 Repudiation of public debts — 137-8. 
 
 Roberts, Comptroller — report on real 
 estate tax, 294. 
 
 Robinson, Lucius, Governor — message 
 of 1878, 261, note. 
 
 Roman law — indebtedness to, 2 ; Sir 
 Henry Maine on, 2. 
 
 Rome, N. T. — Brie canal begun at, 132. 
 
 Roosevelt, Theodore, Governor— ap- 
 points committee to consider ques- 
 tion of canal enlargement, 283, and 
 its report, 284-5 ; favors taxation 
 of special franchises, as real es- 
 tate, 305. 
 
 Root, Erastus— 83, 87, 96, 106, 107, 109, 
 111. 
 
 Ruggles, Charles H., Chief Judge of 
 Court of Appeals — 165, 173, 175. 
 
 S 
 
 Sanford, Nathan — delegate to conven- 
 tion of 1821, 82 ; urges amend- 
 ment to Federal constitution, 333. 
 
 Savigny, M. — on taxation, 295. 
 
 Savings banks — 228, 229. 
 
 Schepens — olHce of, 118. 
 
 School system — appropriation for, 42 ; 
 advocated by Board of Regents, 
 42 ; creation of school commission- 
 ers, school Inspectors, school dis- 
 tricts and trustees, 42, 43. 
 
INDEX 
 
 Sellout — duties of, 118. 
 
 Schuyler, Philip — antipathy to Gover- 
 nor George Clinton, 48-9. 
 
 Seligrman, Edwin R. A., Professor — on 
 taxation, 294, 295, 298, 304. 
 
 Senate, the — constituted, 2 8 ; guardian 
 of the landed interests, 94, 95, 96. 
 
 Senate districts— under constitution of 
 1777, 28 ; under constitution of 
 1822, 96 ; under constitution of 
 1847, 153 ; views regarding, in 
 convention of 1867, 199, 200 ; in 
 commission of 1872, 220. 
 
 Seward, William H., Governor — en- 
 courages canal building, 137 ; oth- 
 er references, 117, 143. 146, 160, 
 166. 
 
 Seymour, Horatio — his canal policy, 
 140, 141, 280 ; upon State assump- 
 tion of county debts, 309. 
 
 Seymour plan — for canal improvement, 
 282. 
 
 Skinner, Roger — holds three offices sim- 
 ultaneously, 62. 
 
 Skinner's Council — account of, by 
 Hammond, 62-3. 
 
 Slavery — legislation for abolition of, 
 in New York, 94 ; disappearance 
 of, in New York, 127. 
 
 Sloughter, Henry — governor of Colony 
 of New York, 14. 
 
 Spencer, Ambrose — int. v; 51, 53, 71, 
 73, 74, 83, 84, 89, 94, 95, 100, 101, 
 102, 110, 324, note, 170; praised 
 by D. D. Barnard, 324, note. 
 
 State governments — recommendation 
 for formation of, by Continental 
 Congress, 22. 
 
 State prisons — proposed appointment of 
 superintendent of, 226. 
 
 State treasurer — method of election of, 
 226. 
 
 States General — appeal of convention 
 to, 8 ; commissions issued by, 4. 
 
 Statutory revisions — by Jones & Var- 
 ick in 1789, 41; by Kent & Rad- 
 clifE in 1801, 41; by Van Ness & 
 Woodworth In 1813, 41; in 1825, 
 122, 123. 
 
 Sterne, Simon — member of commission 
 of 1875, 254 ; on private bills, 223, 
 note. 
 
 Stuyvesant, Peter — becomes governor 
 of New Netherland, 7. 
 
 Subsidies — prevention of, 149. 
 
 Suffrage — debates upon, in convention 
 of 1821, 93 ; educational and prop- 
 erty qualifications for, 198 ; ex- 
 tension of the right of, 93 ; Til- 
 den commission upon, 257; extend- 
 ed in 1826, 96 ; recommendations 
 of committee on, in convention of 
 1867, 194-5. 
 
 Superior Court of the City of New 
 York — judges of, 116. 
 
 Supreme Court — created anew in 1846, 
 155; changes in, recommended by 
 judiciary committee in 1821, 105 ; 
 debates upon, in convention of 
 1821, 108-9; discussion in 1783 as 
 to fifth place upon, 48 ; growth of 
 litigation in, 105 ; in recent years, 
 314 ; in early times, 313 ; under 
 second constitution, 313 ; when 
 first established, 117. 
 
 Surrogates' Courts — 174, 175, 188, 322. 
 
 Suspension act — policy of, 138. 
 
 Swartwout, John — election to assem- 
 bly, 50. 
 
 Tammany Hall — opposes the Erie Ca- 
 nal, 132. 
 
 Taxation — direct, in New York State, 
 307 ; early methods of, 290, 291 ; 
 of personalty, 292 ; of corpora- 
 tions, 300, 305 ; kinds of, 289. 
 
 Tenants — seek aid of legislature In 
 1845, 164. 
 
 Thayer, James Bradley — on power of 
 the judiciary, 328, note. 
 
 Thompson, Smith — 73. 
 
 Tildeii Commission — authorized, 254 ; 
 members of, 254 ; report of, 254, 
 255, 256, 261. 
 
 Tilden, Samuel J. — in legislature of 
 1845, 160, 164, 165; member of 
 convention of 1846, 146 ; of 1867, 
 178 ; message of, relating to cities, 
 253; other references, 219, 225. 
 
 Tiffin, Senator — his proposed amend- 
 ment to the Federal constitution, 
 332. 
 
 Toll charges — abolished, on canals, 274, 
 280. 
 
 Tompkins, Daniel D. — becomes asso- 
 ciate judge, 58 ; arraigns the 
 council of revision, 70. 
 
 377 
 
 25 
 
INDEX 
 
 Townsend, Martin I.— on election of at- 
 torney general, 204 ; in convention 
 of 1867, 249. 
 
 Townsend v. The Mayor — cited, 247, 
 note. 
 
 Tracy, John — president of convention 
 1846, 146. 
 
 "Tribunes of the People" — influence 
 of, under Stuyvesant, 7. 
 
 Tryon, Governor — on the colonial con- 
 stitution, 16. 
 
 Tweed charter — effect of, 246 ; pro- 
 visions of, 247. 
 
 Tweed ring — misgovernment under, 
 248. 
 
 U 
 
 Ulshoeffer, Michael — 76. 
 
 "Union of Utrecht" — 19. 
 
 Union Trust Company v. Coleman — 
 principle of, 305. 
 
 United States Supreme Court — New 
 York's contribution to its bench, 
 116. 
 
 University of New York — board of reg- 
 ents for, 42. 
 
 Van Buren, Martin — delegate to con- 
 vention of 1821, 81 ; opinion of, on 
 council of revision, 69 ; other ref- 
 erences, 58, 61. 
 
 "Van Cott, Joshua M. — member of con- 
 vention of 1867, 178, 179, 181, 182 ; 
 of commission of 1875, 254. 
 
 Van Ness, William P. — 56. 
 
 Van Ness, William W. — deposed as sur- 
 rogate, 170. 
 
 Van Ness and Woodworth — statutory 
 revision of 1813 by, 41. 
 
 Van Rensselaer, Kiliaen — obtains title 
 to large tracts of land, 6. 
 
 Van Twiller — commission to, in 1633, 6. 
 
 Vermont — 39. 
 
 Veto — 90, 91, note; 92, 224. 
 
 von Hoist — on Second Continental Con- 
 gress, 22. 
 
 W 
 
 Washington, George — 46. 
 Webster, Daniel — 158, note; 159. 
 Wheat — transportation of, 273. 
 Wheaton, Henry — advocates general 
 
 laws for private corporations, 151. 
 Wheeler, William A. — chairman of 
 
 convention of 1867, 178. 
 Westminster Review — on woman suf- 
 frage, 194. 
 White, Horace — on taxation, 294. 
 White, Mr. Justice — 302. 
 Whitford's "History of the Canals" — 
 
 note, 227. 
 William III— 14. 
 Wolcott, Oliver, Secretary of the 
 
 Treasury — ^his report to Congress, 
 
 307. 
 Woman suffrage — 193-4, 196, 197. 
 Woodworth, John — becomes member of 
 
 Supreme Court, 73. 
 Wright, Silas — int. iv, 138, 139, note, 
 
 140, 141, 142, 160, 166, 335. 
 
 Yates, Robert — becomes justice of Su- 
 preme Court, 34 ; nominated for 
 governor, 50. 
 
 Young, John— 142, 143, 354. 
 
 Young men — era of, 25. 
 
 Young, Samuel — 68. 
 
 378 
 
M 
 
 \m