Production Note
Cornell University Library produced this
volume to replace the irreparably deteriorated
original. It was scanned using Xerox software
and equipment at 600 dots per inch resolution
and compressed prior to storage using CCITT
Group 4 compression. The digital data were
used to create Cornell's replacement volume on
paper that meets the ANSI Standard
Z39.48-1984. The production of this volume was
supported in part by the New York State
Program for the Conservation and Preservation
of Library Research Materials and the Xerox
Corporation.	Digital file copyright by
Cornell University Library 1993.DEVELOPMENT OF
CONSTITUTIONAL LAW IN NEW
YORK STATE
And The Constitutional Convention of 1894.
READ BEFORE THE SOCIETY, APRIL 13, 1896.
BY HON. HENRY WAYLAND HILL,
Of the Buffalo Bar, and Member of the New York Constitutional
Convention of 1894.
The development of civil institutions in the territory now
comprised within the State of New York, from 1609 to the
present time, under three successive sovereign powers, must be
traced through four different forms of government. These
were: (1) The government of the Dutch West India Company,
a commercial corporation, in subordination to the paramount
sovereignty of the States-General of Holland, which from 1623
to 1664 exercised local sovereignty through a Director-General
and a Council of not exceeding five members of his appointment
with the approval of the company, under restrictions contained
in a charter granted by the States-General, and also under
instructions and ordinances issued by the same company. (2)
The Proprietary government under the Duke of York, extending
from 1664 to 1685, and the Royal government, extending from
1685 to April 19, 1775, these two latter under the Crown,
being considered as one government. (3) The Provincial gov-
ernment from April 19, 1775, to the latter part of 1777, when
the State government was instituted; and (4), the State govern-
163164
CONSTITUTIONAL LAW
ment from 1777 to the present time. An outline of these four
forms of government and the development of civil institutions
under them, is all that time will permit us to consider on this
occasion.
During the first period, the Director-General and his Council
exercised local and limited executive, legislative and judicial
powers, subject ttf the right of appeal to the States-General,
wherein ultimate sovereignty resided. On many occasions, the
inhabitants of New Netherland exercised such right of appeal
and brought about the recall of tyrannical officials. The
primitive condition of the people and the absence of conflict of
property or other rights, for the first few years did not necessi-
tate much legislative or judicial action. It will not be inferred,
however, that the settlers in New Netherland were without a
body of laws. Such was not the case. They brought with
them the Roman-Dutch laws of the Fatherland, or the corpus
juris civilis, as modified by the statutes, customs and usages of
Holland.
This adds to the study of our civil institutions an interest not
found in the study of the civil institutions in any other of the
Thirteen Colonies. Nowhere else on American soil may be
found in operation during our Colonial Period the principles of
the free institutions of the Teutonic Nations.
One writer has said that ‘Gong before the founding of the
colony, the inhabitants of the cities and of many communes, or
townships, in the Fatherland, had acquired a good degree of
independence, both municipal and personal, and had come into
the settled enjoyment of various definite and important political
rights. Among these was the privilege of choosing annually a
certain number of persons from whom the central government
selected the local magistrates or schepens. ’ ’
These elements of popular government were transplanted in
New Netherland and gradually manifested themselves in its
town, municipal and county governments. Many other “ ele-
ments of a sound and expansive polity ’ * were brought from the
Fatherland and incorporated into the fabric of the government
of New Netherland. 'The Dutch ground briefs were adopted
and have frequently been regarded as valid titles. [See DentonIN NEW YORK STATE.
165
vs. Jackson 2 John, Ch. 324; 2 Wend, no.] Although lands
were theoretically holden of the company, all small holdings
were allodial and the manors of the province were essentially
feudal tenures. A system of servitudes, derived from the Roman
law, obtained in various parts of the colony. Highways laid
out between the villages of New Netherland were essentially
Roman roads, governed by the principles of the civil, rather
than of the common law, as was decided by our Court of Appeals
in the case of Dunham vs. Williams. [37 N. Y. 251.] The
same had been held true in regard to inheritances and the
devolution of property [Van Giessen vs. Bridgford 18 Hun, 80,
83 N.Y. 348], and in regard to domestic relations and riparian
rights. [The Canal Appraisers vs. the People 17 Wend 590 and
33 N. Y. 461.] For half a century, from 1614 to 1664, the
Roman-Dutch Law was essentially the law of the land and all
the affairs of the colony were regulated thereby. In many
respects the laws, customs and usages of the Netherlands were
far in advance of those of other countries. A large degree of
civil and religious liberty was tolerated there, so that it became
an asylum for the oppressed of other lands. Its institutions
were reared on a liberal, progressive basis, and its people were
tolerant, frugal and honest. It is said that ‘6 since 1477 Holland
maintained the principle that ‘ Taxation and Representation are
inseparable.’ ”
This principle was asserted in the “ Charter of Liberties”
of 1683 and adopted nearly one hundred years later in the
American Declaration that “ taxation without representation is
tyranny.” The freemen of New Netherland, who had enjoyed
the privileges of the Fatherland, were therefore opposed to any
such restrictions as were sought to be imposed by the Patroons,
acting as feudal seigniors, with extraordinary administrative
powers. This system was intended to promote the settle-
ment of the province, but in operation it proved to be a relic
or species of feudalism, and repugnant to the interests of
the settlers. They were also opposed to the invasion of their
rights by the Director-General and his Council and secured the
recall of the first three Directors of the Province for abuse of
power.166
CONSTITUTIONAL LAW
Under the “ Charter of Freedom and Exemptions” of 1629,
the colonists were relieved from the payment of taxes imposed
and assessments for ten years, and private or individual owner-
ship was permitted in lands, subject to assignment by the
Director-General and his Council.
This was an inducement to prospective freeholders to locate
in the Province. Local government did not develop very
rapidly in the Colony, but the freeholders kept up the struggle
for it against all the powers of the Director-General and his
Council. In 1660 New Amsterdam was for the first time per-
mitted to designate its sheriff. Still, during the Dutch rule, the
people were not wholly dominated by the Director-General and
his Council. Representatives of the people met from time to
time to protest against acts of usurpation, out of which finally
was organized the Assembly.
Although it might be interesting to trace the development of
legislative bodies from the Greek Ecclesia and the Roman
Comitia down through the German Popular Assemblies,
described by Tacitus, and English Folkmoots to the origin of
the House of Commons in the reign of Henry III. (A. D. 1216-
1272), suffice it to say, that the genesis of our State Assembly
may be traced, either to the “ Twelve Men,” appointed in
1641 at the suggestion of Director-General Kieft, by the freemen
of New Amsterdam at the first popular meeting ever held in
New Netherland “ to aid in the management of the affairs of the
Colony,” or to the “ Eight Men,” summoned in 1643 by the
same . Director-General and approved by twenty-eight freemen
to consider the critical circumstances of the country; or
possibly to the “ Nine Men,” selected by Director-General
Potrus Stuyvesant, on September 25, 1647, from the eighteen
men elected by the freemen of New Netherland, who were
known as “interlocutors and trustees of the Commonalty,” or
“tribunes” of the people, and who were to hold courts of
arbitration weekly, advise the Director-General, and, as a legis-
lative body, to pass upon all matters of taxation. Thus was
conceded the principle of representation in the government of
the Colony.IN NE W YORK STA TE.
167
A body, known as “ the Tribunal of Well-Born Men,” with
both civil and criminal jurisdiction, is said “to have existed for
centuries in the Netherlands.” It has been said that “the
Dutch Administration in the New York Colony, under the
original and supplemental commissions, partook of the character
of the government in the Netherlands, which was a combination
of the Roman parental with the German popular system of
administration.” It is affirmed that “ for many generations the
towns and villages of the Fatherland had been accustomed to
the government of magistrates elected by their fellow-citizens.”
Such a system was well adapted to the wants of the people, and
as early as 1650, the General Assembly of the United Nether-
lands made important concessions that tended to advance
popular government in the New York Colony, in compliance
with the demands of the “ Nine Men.”
The provisional order of 1650 contained the following :
“ XVII. And within the city of New Amsterdam shall be
erected a burgher government, consisting of a sheriff, two burgo-
masters and five schepens (but these were to be appointed, not
elected). XVIII. In the meantime shall the Nine Men con-
tinue for three years longer and have jurisdiction over small
causes arising between man and man, to decide definitively such as
do not exceed the sum of fifty guilders, and on higher with the
privilege of appeal.” [1 Doc. Hist. N. Y., 387.] On April 4,
1652, the directors of the West India Company granted permis-
sion “ to erect a Court of Justice, formed as much as possible
after the custom of- Amsterdam, and to choose one sheriff, two
burgomasters and five schepens, from all of whose judgments an
appeal shall lie to the Supreme Council, where definite judg-
ment shall be decreed.” [1 Doc. Hist. N. Y., 387.] In Febru-
ary, 1653, New Amsterdam was formally organized as a munici-
pality, with a schout, two burgomasters and five schepens. The
Court of Burgomasters and Schepens was transformed into the
Mayor’s Court under the English, and afterwards into the
Court of Common Pleas of New York. This was merged into
the Supreme Court by the Revised Constitution. The Burgher
Government of schout, burgomasters and schepens of New
Amsterdam was abolished by the Nicolls Charter of 1665, and168
CONSTITUTIONAL LAW
in its place was instituted a government under the name and
style of mayor, alderman, and sheriff, according to the custom
of England, [i Doc. Hist. N. Y., 389,] The powers of
Burgher Government are enumerated in the Colve Charter of
1674.	[1 Doc. Hist. N. Y., 392.] During the Dutch period
the “ Nine Men” continued to exercise important provincial
functions and was the guardian and promoter of civil and
religious liberty in the colony. It frequently prevented the
Director-General from imposing burdensome exactions upon the
Colony, in violation of the terms of provincial commissions and
of the privileges, customs and laws of the Netherlands, where
liberal ideas, honest maxims, and homely virtues generally
prevailed.
A very important popular convention assembled in December,
1653, to protest against the encroachment of Director Stuyvesant
and declared that
it is contrary to the first intentions and genuine principles of every well-
regulated Government, that one or more men should arrogate to themselves
the exclusive power to dispose at will of the life and property of any indi-
vidual, and this by virtue, or under pretense, of a law or order which he might
fabricate without the consent, knowledge or approbation of the whole body,
their agents or representatives. Hence the enactment, in manner aforesaid of
new laws, affecting the commonalty, their lives and property, which is con-
trary to the granted privileges of the Netherlands Government, and odious to
every free-born man, and principally so to those whom God has placed under
a free State, in newly-settled lands, who are entitled to claim laws not trans-
cending but resembling, as near as possible, those of Netherland. We humbly
submit that it is one of our privileges that our consent, or that of our repre-
sentatives, is necessarily required in the enactment of such laws and orders.
Stuyvesant’s answer was that “ Directors will never make
themselves responsible to subjects, and the old laws will remain
in force.” The convention responded that by the law of nature
all men may associate and convene together for the purpose of
protecting their liberty and their property.
The conflict between the Director-General and the represen-
tatives of the people grew sharper as time went on and materially
developed the principles of popular government in the colony.
The union of Roman paternalism and German popularism as
modified by Dutch privileges and customs formed the basis uponIN NEW YORK STATE.
169
which the grand structure of the Empire State was reared. One
historian* has said that
without underrating others, it may confidently be claimed that to no nation,in
the world is the Republic of the West more indebted than to the United
Provinces for the idea of the confederation of states, for noble principles of
constitutional freedom, for magnanimous sentiments of religious toleration, for
characteristic sympathy with the subjects of oppression, for liberal doctrines in
trade and commerce, for illustrious patterns of private integrity and public
virtue, and for generous and timely aid in the establishment cf independence.
Nowhere among the people of the United States can any be found excelling in
honesty, industry, courtesy or accomplishments the posterity of the early
Dutch settlers in New Netherland.
Still it will be remembered that “ negro slavery was intro-
duced by the Dutch ” and that ‘‘the Dutch Reformed Church
was the only one publicly sanctioned,” and that although “ repre-
sentative government was recognized, it savored much of the
English idea” as found in some of the other colonies. In some
respects the province was not abreast of the civilization of the
New England Colonies, although its inhabitants, numbering
about ten thousand souls, enjoyed a fair degree of self-govern-
ment and were protected in the matter of assessment and taxa-
tion. After the conquest of the colony by the English in 1664, and
the promulgation of the Duke’s laws in 1665, and the permanent
right of control of the colony by the English, which was secured
by the Treaty of Westminster in 1674, the system of jurispru-
dence, borrowed from the high civilization of Rome, as well as
the principles of civil and religious freedom, which had been
maintained by the Dutch, still existed and it is impossible to deter-
mine absolutely how far they were superceded by English laws
and institutions.
It was agreed that “the Dutch should enjoy their own cus-
toms concerning their inheritances” in the terms of treaty
whereby the States-General gave up control of the Colonial terri-
tory, but the English law of primogeniture was soon introduced
and enforced. Upon the Colonial introduction theory, it has
been stated that the common law and other principles of the
British system might properly be introduced, and they were put
into operation. Mr. Benjamin F. Butler epitomized the govern-
ment under the Crown as follows :
*Brodhead, Hist, of N. Y., Vol. I. p. 747.170
CONSTITUTIONAL LAW
The Colonial Government, as settled in 1691, and as substantially con-
tinued until the Revolution of 1776, was vested in a Governor, appointed by
the King’s Commission and holding at his pleasure a council, consisting at
first of seven, but afterwards increased to twelve members, and a General
Assembly, chosen by the freeholders of the several counties. No formal
charter, like those held by the New England Colonies, having ever been
granted to the inhabitants of New York, and the act of religious toleration to
Protestants of 1691, having been rejected by the King, it was the theory of the
Governors and their superiors that all the immunities enjoyed by the people
not only flowed from, but were absolutely dependent on the grace and will of
the Crown.
Popular rights, however, were not promoted, but. to a con-
siderable extent, disregarded by the Royal Governors, and it
became incumbent on the people, whenever an occasion pre-
sented itself, to assert in assembly their natural and inherent
rights irrespective of grants and prescriptions.
The first General Assembly of the Province of New York,
composed of ten councillors and seventeen representatives of the
people, iriet at the City Hall in New York on October 17, 1683,
and remained in session three weeks and passed fourteen acts,
the first of which was entitled “The Charter of Liberties and
Privileges granted by His Royal Highness to the Inhabitants of
New York and its Independencies.”
It declared that the supreme legislative power should ever be and reside
in the Governor, Council and people, met in General Assembly; that every
freeholder and freeman should be allowed to vote for representatives without
restraint; that no freeman should suffer but by judgment of his peers; that all
trials should be by a jury of twelve men; that no tax should be assessed on
any pretence whatever, but by the consent of the Assembly; that no seaman or
soldier should be quartered on the inhabitants against their will; that no mar-
tial law should exist, and that no person professing faith in God, by Jesus
Christ, should at any time be anywise disquieted or questioned for any differ-
ence of opinion.*
This Charter of Liberties has been said to contain the Roman
legislative system rather than the Saxon, in that it recognizes the
possession of power by the executive, his councillors and the
people, as did the Roman system. It was signed by Governor
Dongan, but disallowed by the King. It will be observed that
this charter contained many of the principles that are found in
the first State Constitution.
*Lossing’s “ Empire State,’’ p. 97.IN NEW YORK STATE.
171
Various other General Assemblies met from time to time in
the colony. From 1691 to 1716 they convened biennially.
That which assembled in 1716 continued for ten years. From
1726 to 1737 there were four General Assemblies. Thereafter
General Assemblies until 1743 met biennially, and from 1743 to
the Revolution they continued for seven years. The last General
Assembly under the Crown adjourned sine die on April 3, 1775,
and the battle of Lexington followed on April 19, 1775, which
terminated all allegiance to the Crown of England. Occa-
sionally these assemblies were prorogued and sometimes dis-
solved by the Governors of the Colony, who usually represented
the spirit of the English Monarchy. King James II. rejected the
Charter of Liberties, took away legislative power from the people
and conferred it upon Governor Dongan and Council in 1686
to be exercised agreeably to the “ laws and statutes of England.”
Frequent conflicts occurred, but the Assembly was organized
under Leisler, and permanently restored in 1691 by William and
Mary in the commission to Governor Sloughter and thereafter
the principle of representative government was recognized.
The Assembly boldly asserted the sovereign rights of the people.
To its firm stand, though not possessing the omnipotence of
Parliament and subordinate to the Council and the Crown, may
be attributed the steady growth of civil and religious freedom
and the establishment of representative government in New
York.
Judicial tribunals were established in the province as follows:
The Duke’s Laws of 1665 recognized the difference between
cases in equity and at law. By an Act of Assembly in 1683, a
Court of Chancery was created, whose jurisdiction was modified
by the Act of 1691. It was, however, re-established by an ordi-
nance in 1701, which authorized the Governor and Council to
perform the duties of a Court of Chancery. The Governor and
Council also constituted the Court of Errors. It was claimed by
the Crown lawyers that the Governor of the province, as the
custodian of the great seal, was ex-officio Chancellor. The
exercise of such extraordinary powers by the Governor, while
acting as Chancellor and without the assent of the Assembly,
occasioned spirited and far-reaching controversies in the Colony.
An Act for establishing Courts of Judicature was passed in 1691.172
CONSTITUTIONAL LAW
It provided that Justices of the Peace should have cognizance of
all causes, cases of debt and trespasses to the value of forty
shillings, and a jury trial was given to either party demanding it.
Every city and county was to have a Court of Sessions of the
Peace and a Court of Common Pleas. By this same act a
Supreme Court was established with jurisdiction similar to that
of the Courts of King’s Bench, Common Pleas and Exchequer
in England. It had supervisory and appellate jurisdiction over
other inferior law courts. By implication it repealed the Act of
1683, creating courts of Oyer and Terminer. Probate Courts
were established in 1692. It has been stated that owing to the
expiration of the Judiciary Act of 1691 in 1699, thenceforth the
entire judicial establishment of the province was continued by
ordinances, promulgated by virtue of the reserved powers of the
Crown to erect courts of law and equity, found in the commission
to Sloughter.
In the case of Crosby vs. Van Dam, the Supreme Court
decided that it possessed equity jurisdiction, analagous to that of
the Court of Exchequer [See 4 Doc. Hist. N. Y., 629-633], but
it did not continue to exercise it. In Dorsey vs. Cunningham, it
is asserted that the Supreme Court of the province of New York
proceeded according to the practice of the Courts at Westmin-
ster, and according to the common law as modified by Acts of
the Assembly of the Colony, although fragments of the Dutch
law remained and must have been recognized by the Courts.
Practice in cases on appeal had not been settled and the rights
of persons charged with criminal offenses occasioned profound
discussion as to the powers of existing civil institutions. The
conflicts which followed and the controversies ranging over
three-quarters of a century, between the people and the Crown,
prepared the Colony for the Revolution and the assumption and
responsibilities of an independent government. [See 4 Doc.
Hist. N.Y., 627-639.]
On May 10, 1776, the Continental Congress resolved
that it be recommended to the several Assemblies and Conventions of the
United States Colonies, where no government sufficient to the exigencies of
their affairs hath hitherto been established, to adopt such a government as shall
in the opinion of the Representatives of the people best conduce to the happi-
ness and safety of their constituents in particular and of America in general.IN NE W YORK STA TE.
173
In conformity therewith, the people of New York elected
delegates to a Provincial Congress, which assembled in July,
1776, at White Plains, for the purpose of exercising govern-
mental powers, until such time as the State Government were
established. On August 1, 1776, this Provincial Congress
appointed a committee to draft a State Constitution. Such
committee consisted of John Jay, its chairman, John Sloss
Ho.bart, William Smith, William Duer, Gouverneur Morris,
Robert R. Livingston, John Broome, John Martin Scott,
Abraham Yates, Jr., Henry Winner, Samuel Townsend, Charles
DeWitt and Robert Yates. Nearly all of these were then or
thereafter distinguished for important public services. The
powers of government were exercised by the Provincial Congress
and through a Council of Safety, consisting of fifteen. Bold and
independent resolutions were passed by this Provincial Congress,
and it is stated that by reason of these and the pivotal position of
New York, affairs were in a more critical condition in New
York than in Massachusetts. The courage and patriotism of
John Jay and Gouverneur Morris at this eventful period were
not excelled by those of the Massachusetts patriots, and their
services to their country were equally potent.
It has been said that “ the symmetry and clarity of the Con-
stitution of the United States are due to the pen of Gouverneur
Morris,” and John Jay, the first Chief Justice of the Supreme
Court of the United States, first gave it judicial construction.
At the time the committee, of which Mr. Jay was chairman,
began its labors, there was no written Constitution in this
province. Apriori Constitution-building has been attended
with ill success.
The historical development of Constitutional law, while in
some instances oppressive and inelastic to reformatory measures,
in the progress of civilization, has been adopted by the most
progressive and stable nations of the world. The loss of liberty
in Greece and in the Italian Republics may be ascribed to the
lack of conservatism.
In speaking of the English Revolution of 1688, Macaulay
says: “As our Revolution was a vindication of ancient rights, so
it was conducted with strict attention to ancient formalities. In174
CONSTITUTIONAL LAW
almost every word and act may be discerned a profound rever-
ence for the past.” And the English Constitution is still vig-
orous after nearly a thousand years of such transformations as
that wrought by the Revolution of 1688.
The last Crown Governor, William Tryon, in 1774, reported
to the Lords of Trade, the existing civil institutions in New
York to be as follows*:
By the Grants of this Province and other Territories to the Duke of York
in 1663-4 and 1674, the powers of Government were vested in him, and were
accordingly exercised by his Governors until he ascended the Throne, when
his Rights as Proprietor merged in his Crown, and the Province ceased to be a
charter Government. From that time it has been a Royal Government, and
in its Constitution nearly resembles that of Great Britain, and the other Royal
Governments in America. The Governor is appointed by the King during his
Royal Will and pleasure, by Letters Pattent, under the Great Seal of Great
Britain, with very ample Powers. He has a Council in imitation of His
Majesty’s Privy Council. This Board, when full, consists of Twelve Mem-
bers, who are also appointed by the Crown during Will & Pleasure, any three
of whom make a quorum. The Province enjoys a Legislative Body, which
consists of the Governor as the King’s Representative, The Council in the
place of the House of Lords, and the Representatives of the People, who are
chosen as in England. Of these the City of New York sends four. All the
other Counties (except the New Counties of Charlotte & Gloucester, as yet
not represented) send two. The Borough of Westchester, the Township of
Schenectady, and the three Manors of Rensselaerwyck, Livingston and
Cortlandt each send one; in the whole forming a Body of Thirty-one Repre-
sentatives.
The Governor, by his Commission, is authorized to convene them, with
the advice of the Council, and adjourn, prorogue or dissolve the General
Assembly, as he shall judge necessary.
This Body has not power to make any Laws repugnant to the Laws and
Statutes of Great Britain. All Laws proposed to be made by this Provincial
Legislature, pass thro’ each of the Houses of Council and Assembly, as Bills
do thro’ the House of Commons and House of Lords in England, and the
Governor has a Negative voice in the making and passing of all such Laws.
Every Law so passed is to be transmitted to His Majesty under the Great Seal
of the Province, within three months or sooner after the making thereof, and
a duplicate by the next conveyance, in order to be approved or disallowed by
His Majesty; And if His Majesty shall disallow any such Law and the same
is signified to the Governor, under the Royal Sign Manual or by Order of his
Majesty’s Privy Council, from thenceforth such law becomes utterly void. A
law of the Province has limited the duration of the Assembly to seven years.
*1 Doc. Hist. N. Y., 511.IN NEW YORK STATE.
175
The Common Law of England is considered as the Fundamental law of the
Province, and it is the received Doctrine that all the 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 the Statutes passed since do not affect the Colony, unless by
being specially named, such appears to be the Intentions of the British Legis-
lature. The Province has a Court of Chancery, in which the Governor or
Commander in chief sits as Chancellor, and the Practice of the Court of
Chancery in England is pursued as closely as possible. The officers of this
Court consist of a Master of the Rolls, newly created—Two Masters, Two
Clerks in Court, A Register, An Examiner, and a Serjeant at Arms. Of the
Courts of Common Law, the Chief is called the Supreme Court, the Judges of
which have all the powers of the King’s Bench, Common Pleas and Exchequer
in England. This Court sits once every three months at the City of New
York, and the practice therein is modelled upon that of the King’s Bench at
Westminster. Tho’ the judges have the Power of the Court of Exchequer, they
never proceed upon the Equity side. The Court has no Officers but one Clerk,
and is not organized nor supplied with any officers in that Department of the
Exchequer, which in England has the care of the revenue. The judges of
the Supreme Court hold their offices during the King’s Will and Pleasure, and
are Judges of Nisi prius of Course by Act of Assembly, & Annually perform a
Circuit through the Counties. The Decisions of this Court in General are
final, unless where the Value exceeds £300, Sterling, in which case the
subject may be relieved from its errors only by an application to the Governor
and Council, and where the Value exceeds £$00, Sterling, an appeal lies from
the judgment of the latter to His Majesty in Privy Council. By an Act of the
Legislature of the Province, suits are prohibited to be brought in the Supreme
Court where the Value demanded does not exceed £20, Currency. The
Clerk’s Office of the Supreme Court has always been held as an Appendage
to that of the Secretary of the Province. There is also in each County an
Inferior Court of Common Pleas, which has the Cognizance of all actions
real, personal & mixed, where the matter in demand is above £5 in value.
The practice of these Courts is a mixture between the King’s Bench and
Common Pleas at Westminster. Their Errors are corrected in the first Instance
by Writ of Error brought into the Supreme Court; and the Judges hold their
offices during pleasure.—The Clerks of these Courts also hold their offices
during pleasure and are appointed by the Governor, except the Clerk of
Albany who is appointed under the King’s Mandate. Besides these Courts
the justices of peace are by Act of Assembly empowered to try all Causes to
the amount of £$ Currency (except where the Crown is concerned or where
the Title of Lands shall come into Question :—and Actions of Slander), but
the parties may either of them demand a jury of Six Men. If wrong is done
to either party, the person injured may have a Certiorari from the Supreme
Court, tho’ the remedy is very inadequate. The Courts of Criminal Jurisdiction176
CONSTITUTIONAL LAW
are Correspondent to those in England. The Supreme Court exercises it in
the City of New York, as the King’s Bench does at Westminster. The Judges
when they go to the Circuit have a Commission of Oyer and Terminer and
General Goal Delivery; and there are Courts of Sessions held by the justices
of the peace; the powers of which and their proceedings correspond with the
like Courts in England. The Office of Clerk of the Sessions, is invariably
connected with that of the Clerk of the Inferior Court of Common Pleas in
the respective Counties. By Acts of the Provincial Legislature the Justices of
the Peace have an extraordinary Jurisdiction with respect to some offences by
which any three Justices (one being of the Quorum), where the offender does
not find Bail in forty-eight Hours after being in the Custody of the Constable,
may try the party without any* or a jury, for any offence under the
Degree of Grand Larceny; and inflict any punishment for these small
offences at their Discretion, so that it exceeds \_qy ? extends] not to Life or
Limb. And any three Justices of the Peace (one being of the Quorum) and
Five Freeholders have power without a Grand or Petty Jury to proceed
against and try in a Summary Way, Slaves offending in certain cases, and
punish them even with death. The Duty of His Majesty’s Attorney General
of the Province is similar to the Duty of that Officer in England, and the
Master of the Crown Office. He is appointed by the Crown during Pleasure,
and His Majesty has no Solicitor General nor Council in the Province, to
assist the Attorney General upon any occasion. There are two other Courts in
the Province. The Court of Admiralty which proceeds after the Course of the
Civil Law in matters within its Jurisdiction, which has been so enlarged by
divers Statutes as to include almost every breach of the Acts of Trade. From
this Court an appeal lies to a Superior Court of Admiralty, lately established
in North America by Statute; before this Establishment an appeal only lay to
the High Court of Admiralty of England. The Prerogative Court concerns
itself only in the Probate of wills and in matters relating to the Administration
of the Estates of Intestates and in granting Licenses of Marriage. The
Governor is properly the Judge of this Court but it has been usual for him to
act in general by a Delegate. The Province is at present divided into
fourteen Counties, viz:— The City and County of New York; The County of
Albany; Richmond (which comprehends the whole of Staten Island); Kings,
Queens & Suffolk (which include the whole of Nassau or Long Island);
Westchester; Dutches; Ulster; Orange; Cumberland; Gloucester; Charlotte
and Tryon. For each of these Counties a Sheriff and one or more Coroners
are appointed by the Governor, who hold their offices during pleasure.
As to the Military power of the Province, the Governor for the time being is
the Captain General and Comander in Chief and appoints all the Provincial
Military Officers during pleasure.
Some of these institutions were swept away by the Revolu-
tion, although the essential principles of the Provincial Govern-
*Following break as in original.—Ed.IN NE W YORK STA TE.
177
ment, with sovereignty transferred from the Crown to the peo-
ple, were preserved in the new order of things, that supervened
upon the formation of State Government. Basic principles were
not wanting in the Colony of New York out of which to con-
struct a form of government. Colonial Law, Provincial Con-
gressional Acts, the great principles of the Common Law, the
customs and usages of the people, the civil institutions thereto-
fore created, and their development through a period of more
than one hundred and fifty years altogether formed a foundation
upon which a system of popular government might be reared.
But it required the skill of a master to fuse these basic princi-
ples harmoniously, and out of them to forge a new instrument
that would prove a stable repository of sovereign powers for gov-
ernment by the people.
.... Sed quis custodiet ipsos
Custodes ?
Wherein were to reside the guarantees of liberty under law?
Theretofore popular government had revealed many infirmities
and had suffered many lapses, as might be seen in the proceed-
ings of the Long Parliament and more recently in the history of
the French National Assemblies. Popular government was re-
garded by many as an Utopian dream. The trial made of it in
some of the Grecian States and in some of the Swiss Cantons,
had not demonstrated conclusively its superiority to other forms
of government, consequently it had but few apologists outside of
America.
Furthermore, difficulties multiplied as soon as an effort was
made to differentiate its executive, legislative and judicial func-
tions. Still the three-fold classification of governmental powers
has come down to us from Aristotle, who states in his Politics
[Bk. IV., Ch. 14, Jowett’s Translation] that
all states have three elements, and the good law-giver has to regard what is
expedient for each State. When they are well-ordered, the State is well-
ordered, and as they differ from one another, constitutions differ. What is the
element first (1) which deliberates about public affairs (legislative); secondly
(2) which is concerned with the magistrates and determines what they should
be, over whom they should exercise authority, and what should be the mode of
electing them (executive); and thirdly (3) which has judicial power? .	.	.
All these powers must be assigned either to all citizens or to some of them.
12178
CONSTITUTIONAL LAW
Montesquieu in his “L*Esprit des Lois ” further emphasizes
the importance of such separation. The concurrence of opinion
of these eminent writers is supplemented by the successful opera-
tion for a century of the three-fold division of Federal govern-
mental powers.
But to erect a Republican form of government that should be
a secure repository of constitutional liberty and contain a proper
distribution of executive, legislative and judicial powers, was an
unsolved problem, demanding unusual political sagacity. Mr.
Jay, who was a champion of popular rights, was entrusted with
the responsibility of preparing the original draft of the first Con-
stitution of the State. This was done in the midst of the Ameri-
can Revolution while the struggle for independence was still
undecided. The Provincial Congress, of which Mr. Jay and the
other members of the Constitutional Committee were a part, was
driven from New York City and held sessions in Harlem, Kings-
bridge, White Plains, the Philipse Manor, Fishkill, Pough-
keepsie and Kingston.
Great excitement prevailed through the Thirteen Colonies and
the important questions of Federal Unity, and the extent of and
limitations upon State sovereignty had neither been considered,
nor had they then arisen. Accordingly, the first Constitution is
silent on many important subjects that have since been provided
for, and it treats in extenso of the paramount question of the
independence of the State from the dominion of the British
Crown. It created an Executive, a Legislative and a Judicial
Department in our State Government. Its departure from Brit-
ish principles and precedents, however, is less marked than some
of the constitutions of other colonies. In some respects it was a
compromise with English institutions.
It preserved parts of the Dutch and British systems that there-
tofore obtained in the colony. In principle it perpetuated the
British system of appointment to office, by creating a Council of
Appointment consisting of the Governor and four Senators,
which was empowered to appoint to office and remove at pleas-
ure nearly all the civil and military officers of the State. It be-
came one of the most gigantic political machines that has ever
existed in this State. At one time there were six thousand sixIN NE W YORK STA TE.
179
hundred and sixty-three civil offices and eight thousand two hun-
dred and eighty-six military offices at its disposal. The abuses
which naturally resulted from the operation of this system,
wrought its unpopularity and its abolition in 1821, and have
since served as a standing objection to the policy of filling
offices by appointment under a Republican form of government.
Such a system is inconsistent with the genius of our American
institutions and is adopted only in exceptional cases and under
proper restrictions where the appointing power, which is elec-
tive, is held responsible for the administration of the office so
filled.
The original draft of the first Constitution “ after affirming
the sovereignty of the people ’ ’ was so framed as to perpetuate
the supremacy of the Assembly by declaring “ that the Assembly
thus constituted .	.	. .. shall enjoy the same privileges
and proceed in doing business in like manner as the Assemblies
of the Colony of New York of right formerly did.” The Assem-
bly was empowered to appoint from the Senators the members of
the Council of Appointment and to provide for the appointment
of the State Treasurer, who controlled the finances of the State.
Under the Colonial Government the Council was appointed by
the Crown, and as the Colonial Legislature was constructed on
the model of Parliament, no act of appropriation could originate
or be amended except in the Assembly, the members of which
were the immediate representatives of the people. In these par-
ticulars the Assembly maintained its supremacy until 1821, with
the exception of permitting the Governor to participate with the
Senators of the Council of Appointment in making official
appointments, as the result of the Constitutional Amendment of
1801.
The original draft of the first Constitution therefore gave
prominence to the supremacy of the Assembly. It also provided
for a Senate of twenty-four members, which was permitted to
amend, modify or reject any bill, but it did not have the power
to originate monetary bills until 1821. As first constituted, the
Senate was modeled, to some extent^ after the Council, and to
some extent after the House of Lords and not after the Roman
Senate, whose functions during the Republic were principally180
CONSTITUTIONAL LAW
executive, although under the Empire it exercised independent
legislative power. [Gaj. I. 4.] Mr. Maine affirms that “the
first real anticipation of a separate chamber, armed with a veto
on the proposals of a separate authority and representing a dif-
ferent interest, occurs in the much misunderstood institution,
the Roman Tribunate,” to whose establishment Cicero attributes
the preservation of the Republic. In addition to its legislative
powers, the Senate of New York, under the first Constitution,
when forming a part of the Court of Errors and Impeachment,
also exercised judicial powers. So intrenched in American in-
stitutions has this bicameral system of legislation become that
Pennsylvania, Georgia and Vermont have also adopted it in
place of their original single legislative chambers. In the first
State Constitution provision was also made for a Council of
Revision, consisting of the Governor, Chancellor and Judges of
the Supreme Court, or any two of them, to revise all bills which
passed the Senate and Assembly before they became laws. The
Court of Chancery and the Supreme Court were continued. A
court for the trial of Impeachments and the Correction of Errors
was created, consisting of the President of the Senate the Sena-
tors, Chancellor and Judges of the Supreme Court. Provision
was also made for the free exercise of religion, for trial by jury,
for the exercise of a qualified suffrage.
This Constitution contained a tentative provision for voting
by ballot, in place of voting viva voce. The first secret ballot
law was passed in 1778. The method of voting by ballot was
adopted in Massachusetts as early as 1634. The Dutch religious
toleration principle was also incorporated. The original draft
of the first Constitution was in the handwriting of Mr. Jay and
was submitted to the Convention at Kingston March 12, 1777.
It was debated until April 20, 1777, when it was promulgated as
the organic law of the State, without submission to the people
for their ratification. During its final consideration, Mr. Jay
was absent and unable to amend it in some important particulars,
such as requiring all persons holding office under the Govern-
ment to swear allegiance to it and renounce all allegiance to
foreign Kings, Princes and States. He desired to insert a pro-
vision against domestic slavery and one for the encouragement
of literature.IN NE W YORK STA TE.
181
Forty-four of one hundred and fifty-seven Constitutional
Conventions held in this country have not submitted the results
of their deliberations to the people for ratification, and neither
did the New York Convention of 1777; but such a course is not
usually advisable and would not have been followed in New
York had not the times been perilous and the enemy about to
invade her territory. Immediately after the promulgation of our
first Constitution, a Council of Safety, consisting of Mr. Jay
and fourteen others, was vested with the powers of government,
until the Constitution went into operation. A few months
thereafter, a State Government was organized with George
Clinton as Governor, Robert R. Livingston as Chancellor, and
John Jay as Chief Justice of the Supreme Court.
On September 9, 1777, a quorum of the first State Legis-
lature met at Kingston and elected Walter Livingston its Speaker,
and on the following day Governor Clinton addressed his first
message to the State Legislature. General Howe and his Coun-
cil were still in control of the four wealthiest counties, viz:
New York, Westchester, Richmond and Long Island.
During this period little legislation was attempted until 1782
to 1784, when the powers of the Governor and Council ceased
and the State Government went into full operation over the
whole State, and important laws were enacted abolishing entails
and assimilating the statute of descents to our domestic polity.
Samuel Jones and Richard Varick were authorized to compile
such existing laws as were preserved by Section 35 of the Consti-
tution of 1777, and to determine what laws were so preserved.
Accordingly they reported a Bill of Rights, embracing the most
important provisions of the Magna Charta, the English Bill of
Rights, the Habeas Corpus Act [31 Charles 11.] and other Acts
of the English Constitution.
They also reported Acts abolishing feudal tenures and making
lands allodial, as they were regarded under the Dutch. They
also reported statutes of Frauds, of Wills, and of Limitations.
The great body of existing law was thus preserved by the Con-
stitution of 1777, and it contained the following provision, that
‘‘ the Legislature shall at no time hereafter institute any new
Court or Courts, but such as shall proceed according to the182
CONSTITUTIONAL LAW
course of the Common Law.” Thus was preserved all the
guaranties of popular rights found in the Charter of Liberties of
1683, as well as those which had been secured by subsequent
Acts of the Assembly and the Provincial Congress. It contained
all the Constitutional principles that had been evolved during
the development of the civil institutions of the Colony and the
Province of New York. In spite of all the precautions taken by
Mr. Jay and his colleagues, it contained some provisions and
omitted others, that impaired its efficacy. Still the eminent Dr.
Jameson said of it, that “ it was at that time generally regarded
as the most excellent of all the American Constitutions, and the
model of the National Government under which we live.” It is
apparent from its numerous provisions, that its framers did not
fall into the error, pointed out by Mr. Maine, of so simplifying our
political institutions, as to lead to absolutism. In preserving
their essentials, it provided checks and safeguards, which were
not to be disregarded in the administration of the affairs of the
State.
The second Constitutional Convention convened in Albany
on October 13, 1801, chose Aaron Burr its President, remained
in session until October 27, 1801, and proposed an Amendment,
suggested by DeWitt Clinton, providing that the members of
the Assembly should not exceed one hundred and fifty and there
should be thirty-two Senators, and that the Governor should
have a voice in the Council of Appointment. This was the
substance of the work of that Convention which was submitted
to the people and by them approved.
The third Constitutional Convention met in the Assembly
Chamber on August 28, 1821, and consisted of one hundred and
ten delegates. Daniel D. Tompkins was elected President and
among the more prominent delegates were Chancellor Kent,
Chief-Justice Ambrose Spencer, Henry Wheaton, William Van
Hess, Nathan Sandford, Samuel Nelson, Jacob Radcliff, John
Duer, Jacob Southerland, Rufus King, Martin Van Buren, Gen-
eral Root and others. It remained in session until November
10, 1821. It entered upon a thorough examination of the
Constitution of 1777, and its practical operation in the light of
experience and in view of the development of free institutions inIN NE W YORK STA TE.
183
America. Sufficient time had elapsed to reveal the defects of the
first Constitution and to impress upon the members of the Con-
vention of 1821, the importance of such modifications as would
place the organic law of the State on as liberal a basis as that of
other States and in harmony with the provisions of the Federal
Constitution. The debates of that Convention are replete with
learned disquisitions on Representative Government, the dura-
bility and permanency of which were still questionable. This
Convention abolished the Council of Revision and the Council
of Appointment. The veto power after much deliberation was
given to the Governor. The Convention made a systematic
revision of the whole Constitution and made much ampler pro-
vision for the practical operation of popular government than
that which had previously existed in this State. The Secretary
of State, Comptroller, Treasurer, Attorney-General, Surveyor-
General and Commissary-General were to be appointed by the
Senate and Assembly, but in case of the disagreement of the
Senate and Assembly as to such appointment, then such officers
were to be elected by joint ballot of the Senators and members
of Assembly.
The Governor, with the consent of the Senate, which, as a
Council to the Governor, enabled the people, through their
Senators, to have voice in the selection of officers, was empowered
to appoint all judicial officers, except justices of the peace. These
were appointed by the supervisors and county judges. Sheriffs
and county clerks were elected and district attorneys wrere
appointed by the county courts.
The Court for the trial of Impeachments and the Correction
of Errors, the Court of Chancery and the Supreme Court, con-
sisting of a chief judge and two other justices, were continued
substantially as provided for in the Constitution of 1777. The
Chancellor and the Justices of the Supreme Court were to hold
office during good behavior or until they attain the age of 60 years.
Provision was made for dividing the State into not more than
eight circuits and for the appointment of a Circuit Judge with the
same powers as a Justice of the Supreme Court and with such
equity powers as might be conferred by the Legislature, subject
to the appellate jurisdiction of the Chancellor.184
CONSTITUTIONAL LAW
An appeal lay from a decree in Chancery and a writ of error
from a judgment of the Supreme Court to the Court of Errors,
but on such appeal the Chancellor might inform the Court of
Errors of the reasons of his decree but could not vote, and the
Justices of the Supreme Court might assign the reasons for their
judgment, but could not vote. Trial by jury was preserved as
well as the other fundamental principles of prior constitutional and
statutory enactments. Owing to the masterly argument of
Hamilton in the case of The People vs. Croswell [3 Johnson
Cases 343], provision was made for the first time in the consti-
tution of 1821, to admit in evidence the truth in cases of libel.
The Constitution of 1821 was duly ratified in February, 1822,
and went into effect January 1, 1823. In 1825 Messrs. Butler,
Duer and Wheaton were commissioned to revise the statutes of
the State.
Upon the cession of the Province to the Crown in 1664, cer-
tain rights and privileges were reserved by the Dutch and were
frequently thereafter recognized by the Courts as hereinbefore
stated. Dutch tenures were converted into socage tenures
although Dutch grants were confirmed by the “ Duke’s Laws”
and subsequent constitutional provisions. The Duke’s Laws was
the first code promulgated in the province. It was a compre-
hensive system formulated in 1664-65, and was followed by the
Acts of the Dongan Assemblies of 1683-84-85, all of which were
repealed in 1691. [Van Winkle vs. Constantine, 10 N. Y., 422.]
The first revision of the Acts of the Assembly was that of Liv-
ingston and Smith of those enacted between the years 1691 and
1763. The second revision was that of Van Schaack, including
the laws of the earlier revision and those passed between 1763
and 1774. The next revision and the first under the State Con-
stitution was that of Jones and Varick, heretofore referred to.
It determined what statutes and laws were preserved by Section
35 of the Constitution of 1777. Its importance can not be over-
stated. The next revision was that of Kent and Radcliff, pur-
suant to chapter 190 of the Laws of 1801. Still another revision
was made by Van Ness and Woodworth, and is known as the
Revised Laws of 1813. This superceded prior revisions but
made little change in the version of Jones and Varick’s revision.IN NE W YORK STA TE.
185
In addition to these there were several individual compila-
tions such as Bradford’s Laws of 1694, Greenleaf’s compilations
and Webster’s edition of New York Laws. The tenure of real
property involved much consideration on the part of the revisers.
Under the Dutch the title to the lands in the Province was
vested primarily in the West India Company, and patroonships
with certain seigniorial privileges were created by the States,
General, the Prince of Orange and the West India Company.
Of the seven thus created only that of Van Rensselaer and that
of Van der Donck remained after the surrender of the Province to
the Crown of England. Many private grants of lands were made
by the Dutch which were held as allodial lands, according to the
law of Holland. By the terms of the articles of surrender of the
Dutch to the Crown, it was stipulated that “all People shall
continue free Denizens jand enjoy lands, houses, goods, ships-
wheresoever they are within the County, and dispose of them as
they please,” and that “ the Dutch .here shall enjoy their own
customs concerning inheritances.” [1 Doc. Hist. N. Y., 249.]
After the conquest Dutch grants were required to be confirmed
under the Duke’s Laws and their validity was established by an
Act of 1691. The Duke of York received his first Patent in
1664 and his second Patent in 1674, under which grants the
province was held by “ the socage tenure as it stood in England
in 1664.” Certain franchises or political powers were also con-
ferred upon the Duke by these Patents. [1 Black. Com. 108 ;
2 Id. 346-348.] Mr. Fowler, in his “History of the Law of
Real Property,” states that “when the Duke of York ascended
the throne as King James II., the legal effect was to merge his
private estate, as lord proprietor, in the Crown. Thereafter he
held the province no longer in his own right but in jure Coronce.”
Thenceforth it was a Crown province and might be granted
generally to the Governors to be conveyed, but as the Statute of
Quia Emptores was in force after 1664, the grantees held of the
Crown direct. [See Van Rensslaer vs. Hayes, 19 N. Y. 68.] In
later years long and spirited controversies arose over the New
Hampshire grants and French Seigniories on Lake Champlain,
which involved the jurisdiction of the Crown over parts of the
territory now embraced within the State of New York, notwith-186
CONSTITUTIONAL LAW
standing by the Treaty of Utrecht, France had acknowledged the
sovereignty of the Crown of Great Britain over the Five Nations
of Indians* who claimed Lake Champlain and the circumjacent
country.
The tenure of these French grants was usually that of “Fief
and Seigniory with right of high, middle and low justice, rights
of hunting, fishing and the Indian trade,” as stated in the
grant to Bedou, embracing a tract on the River Chambly and
including Isle a La Mothe (Isle La Motte), in Lake Champlain,
[i Doc. Hist. N. Y., 362.] The tenure of English manors, such
as that of Livingston, was according to that of East Greenwich
in Kent. Freehold manors were thus created, the boundaries
and property rights of which have frequently been upheld by the
courts upon the principle of the maxim, Ut res magis valeat
quam pereat, although the franchises or political powers con-
ferred as a part of such manorial rights did not survive the Revo-
lution. [See cases of thz. People vs. Van Rensselaer, 9 N. Y.
291, and People vs. Livingston, 8 Barb. 252-278.] The Court
of Appeals very recently had occasion to pass upon the grant,
creating the manor of Pelham in the case of De Lancey vs. Piep-
gras [138 N. Y. 26], and decided that the political rights and
powers or franchises of a public character contained in such
grant might be restricted or even abrogated, whereas the property
rights of private ownership of the proprietor could not be
divested, except by due process of law. Some of the most per-
plexing questions that have been adjudicated upon by our State
and Federal Courts are those involving the construction of
Crown grants during the Colonial period. The revisers of the stat-
utes had many other weighty matters to consider, such as the revi-
sion of the Act concerning tenures and the Act of 1782 abolish-
ing entails, notwithstanding which, lands might still be rendered
inalienable by a springing use or an executory devise. Accord-
ingly Messrs. Butler, Duer and Wheaton undertook and com-
pleted a comprehensive and systematic revision of the entire
Statutory Law of the State, which was embodied in the Revised
Statutes of 1830, the foundation of all subsequent statutes.
The fourth Constitutional Convention convened at Albany on
June 1, 1846, and consisted of one hundred and twenty-eight dele-IN NE W YORK STA TE.
187
gates. General James Tallmadge, who was in the Convention
of 1821, was a member of this Convention. John Tracy was
elected President, and among the prominent delegates were
Charles O’Connor, Samuel J. Tilden, Ira Harris, Charles H.
Ruggles, Samuel Nelson, Richard P. Marvin, Henry C. Murphy,
Horatio J. Stow and others. It remained in session until Octo-
ber 9, 1846, and completed the work undertaken by the Conven-
tion of 1821, by doing away with the system of filling offices by
appointment and substituting in its stead the elective system.
All judicial officers and the Secretary of State, Comptroller,
Treasurer, Attorney-General, State Engineer and Surveyor, the
Canal Commissioners, the Inspectors of State Prison, the Clerk
of the Court of Appeals, Sheriffs, County Clerks, District
Attorneys and all city, town and village officers, except as other-
wise provided for by the Constitution,were to be chosen by popular
election. It abolished the Court for the trial of Impeachments
and the Correction of Errors and created a Court for the trial of
Impeachments, consisting of the Senators and the Judges of the
Court of Appeals. It created a new Appellate Court, known as
the Court of Appeals, composed of eight Judges, of whom four
were elected for the period of eight years, and four selected from
the Justices of the Supreme Court having the shortest term to
serve. It abolished the Court of Chancery and provided that
the Supreme Court was to have general jurisdiction in law and
equity and conferred jurisdiction upon its General Terms to
review appeals from its Special Terms and Circuit Courts and
Courts of Oyer and Terminer, and the Legislature was empowered
to provide for reviewing judgments, decrees and decisions of
inferior local courts. It also authorized the Legislature to provide
for Tribunals of Conciliation, to whose judgment parties might
voluntarily submit their matters in difference. The Legislature
was directed to appoint three Commissioners to revise, reform,
simplify and abridge the rules, and practice, pleadings, forms
and proceedings of courts of record of the State, subject to the
approval of the Legislature. Whence came our Codes and
reformed procedure. This Convention also formulated a scheme
for the creation of a sinking fund to liquidate the canal
debt and to provide also for the expenses and repairs of the188
CONSTITUTIONAL LAW
canals of the State and inhibited the Legislature from disposing
of any of the canals of the State.
The credit of the State was not to be loaned to, or in aid of
any individual, association or corporation, and later, in 1874,
counties, cities, towns and villages were prohibited from loaning
their money or credit or from incurring any indebtedness except
for county, city, town or village purposes. And in 1884 a
further limitation was imposed upon counties, containing cities
of one hundred thousand inhabitants or more, and also upon
such cities, restricting their indebtedness to ten per centum of
the assessed valuation of their real estate.
This Constitutional provision was further amended by the
Donvention of 1894 and is now one of the most salutary
measures in our organic law. It has been an insuperable barrier
to city and county extravagance and in the future will still
further abridge the powers of cities and counties to create
indebtedness.
The Convention of 1846 empowered the Legislature to
divide the State into eight judicial districts and provided that
there should be four Justices of the Supreme Court in each
judicial district. It retained the provisions of the Constitution
of 1821 as to the preservation of
such parts of the common law, and of the Acts of the Legislature of the
Colony of New York, as together did form the law of the said Colony on the
19th day of April, 1775, and the resolutions of the Congress of the said
Colony, and of the Convention of the State of New York, in force on the 20th
day of April, 1777, which have not since expired, or been repealed or altered?
and such Acts of the Legislature of this State as are now in force, shall be and
continue the law of this State, subject to such alterations as the Legislature
shall make concerning the same.
It also retained the provision of the Constitution of 1821 as
to grants of land within this State.
The Convention of 1846 spent much time in debating the
Negro Suffrage Amendment, which was separately submitted to
the people and defeated by about 150,000 majority vote,
although the Constitution of 1846 was adopted by about
130,000 majority vote. This Constitution completed the sep-
aration and establishment of the three departments of theIN NE W YORK ST A TE.
189
State Government. This was amended from time to time, but
for the most part, it remained in force for nearly half a century
and until the Revised Constitution of 1894 took effect on
January 1, 1895. Under its liberal provisions, the State
flourished, and the people enjoyed a good degree of prosperity
and the State indebtedness was fully liquidated.
The Fifth Constitutional Convention convened at the State
Capitol on June 4, 1867, and consisted of 160 delegates.
William A. Wheeler was elected President, and there were in
this Convention William M. Evarts, Samuel J. Tilden, Horace
Greeley, George William Curtis, Charles J. Folger, George W.
Clinton, Ezra Graves, Isaac Verplanck, and other prominent men.
Many important matters were considered by the Convention
of 1867, but all its recommendations, except the Judiciary
Article, were disapproved by the people. The debates and
proceedings of the Convention of 1867 fill several closely
printed volumes, which for their learning and breadth of discus-
sion of Constitutional questions will always be of interest to
students of the political history of this State.
In the Conventions of 1777, 1821 and 1846, was laid the
foundation of this Empire State. Fortunate indeed was the State
to have such able men as John Jay, Gouverneur Morris, Chancellor
Kent, Robert R. Livingston, Ambrose Spencer, Samuel Nelson,
Nathan Sanford, Martin Van Buren, Charles Ruggles, Samuel J.
Tilden, Daniel D. Tompkins, John Tracy, William A. Wheeler,
Charles J. Folger, William M. Evarts, and others, to take part
in formulating and expounding its Constitutional Law.
Alexander Hamilton took an important part in framing the
Federal Constitution, and he and Jay, through “ The Federalist,”
forecast the probable operation of its provisions. New York has
been progressive and has exerted a powerful influence in the
building up of Republican institutions in America.
The immortal and creative genius of Hamilton, the
patriotism of Jay, the civil and legal erudition of Kent, the
judicial temper of Livingston, Walworth, Nelson, Folger and
Andrews, the political sagacity of the Clintons, Van Buren,
Spencer, Tompkins, Fillmore, Tracy, Weed, Seward, Raymond,
Greeley, Conkling, Wheeler, Wright, Marcy, Dix, Curtis,
Dana, Morton, Evarts, Tilden and Cleveland, are some of the190
CONSTITUTIONAL LAW
the formative influences that have been exerted in the develop-
ment of Constitutional Law in the building-up of the Empire State.
The foregoing sketch of the development of Constitu-
tional Law in this State enables us readily to form a conception
of the work of the Constitutional Convention of 1894, which
convened at the Capitol in Albany on May 8, 1894, and con-
sisted of 175 delegates; fifteen of these were elected on the
general State ticket and the remaining 160 from the thirty-two
Senatorial Districts of the State, each District having five dele-
gates. It proceeded to organize by the election of Joseph H.
Choate, of New York City, as President, Thomas G. Alvord as
First Vice-President, William H. Steele as Second Vice-President,
Charles E. Fitch as Secretary, and Herbert A. Briggs, of Buffalo,
as Stenographer. There were one or two deaths among the
delegates, and one or two delegates who failed to qualify, so that
at no time did the membership exceed 171 in number. The
Erie County members'were Hon. Daniel H. McMillan, delegate-
at-large ; Harvey W. Putnam, Thomas A. Sullivan, William
Turner, James S. Porter, and Philip W. Springweiler, delegates
from the thirtieth Senate District; Henry W. Hill, Tracy C.
Becker, John Coleman, George A. Davis and Jonathan, W.
Carter, delegates from the thirty-first Senate District. Six of its
members were also members of the Convention of 1867, viz.,
Messrs. Francis, Augustus Frank, Schumaker, Veeder, Tucker,
and Alvord; one of the number, Mr. Tucker, was the steno-
graphic reporter of the Convention of 1846. Several of the
number had served in the diplomatic service of the United
States, such as Mr. Francis, of Troy, and Mr. Bigelow, of New
York. Several had been members of Congress, such as Augustus
Frank, William D. Veeder, John G. Schumaker and John A.
Griswold. Several others had a prominent civil or military
record. Many had been members of the State Legislature, such
as Messrs. McMillan, Vedder, and Gilbert, and several had
heretofore or then held judicial positions, among these Judges
Truax, Cady and McLaughlin. A majority of the number
were members of the legal profession, although other avocations
were represented. There were several journalists, several authors,
one or more physicians, and farmers, and a few business men.IN NEW YORK ST A TE.
191
Joseph H. Choate, a nephew of Rufus Choate, and one of the
half-dozen most prominent American lawyers, presided over the
deliberations of this Convention. The shafts of his wit, when
directed toward the parliamentary enigmas, which occasionally
embroiled the Convention, would convulse that body with
laughter and quiet the tumult, as oil does the troubled waters.
Without previous parliamentary experience, he readily familiar-
ized himself with parliamentary procedure and became an
efficient and satisfactory presiding officer.
The standing and special committees of the Convention
altogether were thirty-one in number, and the membership of
these ranged from five to seventeen each. They were classified and
known as the following : The Committee on Preamble and Bill
of Rights; on Legislative Organization ; on Powers and Duties of
the Legislature ; on Suffrage ; on Governor and State Officers ;
on the Judiciary ; on the State Finances; on Cities, their Organ-
ization and Government; on Canals; on Railroads ; on Coun-
ties, Towns and Villages and their organization; on County,
Town and Village Officers; on State Prisons and Penitentiaries;
on Corporations ; on Currency and Banking; on Military Af-
fairs ; on Educational Interests; on Charitable Institutions ; on
Industrial Interests ; on Salt Springs ; on Indians ; on Future
Amendments; on Revision and Engrossment; on Privileges and
Elections; on Printing; on Contingent Expenses ; on Rules ;
on Civil Service; on Proposed Amendments; on Forest Preser-
vation ; and on Land Titles.
The work of the Convention was greatly facilitated through
the efficiency and ability with which the various Committees
disposed of the four hundred and fifty proposed Constitutional
Amendments, introduced in the Convention and referred to
them. Notwithstanding the admonition of President Choate, in
accepting the duties as presiding officer, that “ we were not
commissioned to treat with rude or sacrilegious hands the Con-
stitution of 1846, which for nearly half a century had satisfied in
the main the wants of the people of the State of New York,”
nearly every provision of the State Constitution, in force on May
8, 1894, was touched upon, or affected by one or more of the
proposed Amendments. Some of these necessarily duplicated
one another and were finally merged into one. Others were192
CONSTITUTIONAL LAW
rejected in toto by the committee having them under consider-
ation. Interested parties appeared before such committees in
support of, or opposition to matters under consideration, and
many hours were occupied in the investigation of such matters
by such committees, or by sub-committees appointed from
their number. The responsibility resting upon sub-committees
was not unlike that resting upon members of the Court of Ap-
peals, charged with the duty of writing the opinion of the Court
upon the rendition of an important decision. Preconceived
personal opinions were subordinated to the concensus of opinion
of a majority of the committee.
This method of procedure brought into full exercise all the
ability and experience of all the members of the Convention.
Great freedom of debate was allowed in the consideration of
matters in Committee, and many members took part in such
debates,who did not' participate extensively in the formal debates
of the Convention. More than two-thirds of the volume of the
work of the Convention was disposed of by these Committees,
whose unreported debates ranged over the whole field of Con-
stitutional Law. Both American and foreign Constitutions
were consulted with a view of placing the Constitution of this
State abreast of our progressive civilization.
Many of the proposed Amendments introduced were of a
theoretical, temporal or legislative character and would be
entirely out of place in the organic law of the State. Memo-
rials, petitions and personal recommendations in vast numbers
were presented from various parts of the State, and it required
much courage for the delegates to withstand these, and, Horatius-
like, defend the Constitution against the assaults thus made
upon it. Extreme and speculative opinions found little favor
and it was decided early in the sessions of the Convention, to
make only such changes in the Fundamental Law of the State,
as were required to provide for new exigencies in State, county,
town, village and municipal government.
Conditions, unknown and unforeseen in 1846, had since
arisen requiring an expansion of $our Constitution in several
particulars. The rapid growth of cities and their demand for
freedom from Legislative interference, the necessity of the
separation of Municipal from State and Federal elections, theIN NE W YORK STA TE.
193
demand for further restrictions upon Legislative action, the
need of a more equitable apportionment of the Senatorial Dis-
tricts, and for a revision of the Judicial system, as well as the
demand for improved inland waterways to meet the require-
ments of the expansion of commerce, and the suppression of the
abuses and usurpations that were practiced in general elections,
such as those at Gravesend, Troy, New York and Buffalo, were
among the new exigencies requiring Constitutional enactments.
Webster once said, that “ every generation ought to have
some part in formulating its Fundamental Law.” More than a
generation had passed since the adoption of the Constitution of
1846. In the meantime the population of this State quadrupled,
its industries had been diversified and multiplied, its urban
population had exceeded its rural population and many import-
ant problems in Municipal Government had been presented, all
of which tended to convince the people that the State had out-
grown the Constitution of 1846, and a thorough revision thereof
were necessary to meet these new exigencies, and to ensure a
higher degree of Republican Government by the people of the
State, than they were capable of enjoying under the Constitution
then in force.
The Committees of the Constitutional Convention finally
disposed of about three hundred of the four hundred and fifty
proposed Constitutional Amendments, and thereby saved the
consideration of these by the Convention. These Committees
however reported on about one hundred and fifty Amendments,
which went onto the Calendar of the Convention, but only
thirty-three of this number were approved by the Convention
and incorporated into the Revised Convention.
There were some others, however, on the Calendar of the
Convention, which also would have been approved, had they
been reached before final adjournment. It may be of interest to
consider some of these Amendments, that were made to our
Constitution. It has well been said that “the problem of
the Constitution-maker is one of the most difficult in our whole
system of Government to reconcile the requisites for progress
with the requisites for safety. Every new Constitution gathers
up the fruits of past experiences, and in turn contributes some-
thing to the common stock.”
13194
CONSTITUTIONAL LAW
John Stuart Mill affirms that “’No Government can now
expect to be permanent unless it guarantees progress as well as
order; nor can it continue really to secure order unless it
promotes progress.” The American system rests upon the
principle that the people are the source of all political power
and that Government is instituted for their good but must be
exercised by their representatives, duly constituted to voice
their sentiments. Guizot says that “ the Representative system is
the only one that makes the responsibility of power one of its
fundamental conditions.” This Republican form of Govern-
ment is guaranteed by the Constitution of the United States to
every State in the Union. With these cardinal principles in
mind, the Convention undertook to amplify and adopt the
Constitution to the new exigencies heretofore referred to, and to
provide additional safeguards ‘ ‘ to secure the rights of life, liberty
and the pursuit of happiness.”
Notwithstanding the expansion of our Constitution in con-
formity with the recommendations of previous Conventions and
with those of the Legislature from time to time, it required also the
work of the Convention of 1894 to secure the full operation of
Republican form of government in all its plenitude in the cities
and political divisions of the State.
Our Revised Constitution was the fourth American Consti-
tution to provide any measure of Home Rule for municipalities.
The conquered municipalities of the Roman Empire for the most
part enjoyed a greater degree of autonomy, than did our cities
in 1892, under the then existing State Constitution. The spirit of
municipal institutions, after being fostered for centuries among
the Teutonic nations, was transferred through the Dutch into the
institutions of New Netherland and was wrought out in the
principles of American Constitutional freedom. It was a part of
the work of the last Constitutional Convention to restore to our
municipalities something of the freedom which they originally
enjoyed and which had been taken from them by recent legis-
lative interference.
Accordingly the New Constitution ordains:
After any bill for a special city law, relating to a city, has been passed by
both branches of the Legislature ... a certified copy thereof shall be
transmitted to the Mayor of said city, and within fifteen days thereafter theIN NEW YORK STATE.
195
Mayor shall return such bill, with the Mayor’s certificate thereon, stating
whether the city has or has not accepted the same, .	.	. and the same
shall be subject to the action of the Governor.
Whenever .	.	. any such bill is returned without the acceptance of
the. city or cities to which it relates, it may nevertheless again be passed by
both branches of the Legislature, and it shall then be subject to the action of
the Governor.
This provision enables the cities of the State to interpose
objections to all special legislation and thereby enjoy some
measure of Home Rule, without invading the domain of the
sovereignty of the State over all its political divisions. This
Amendment is commented upon in the case of People ex rel.
Einsfeld vs. Murray, 149 N. Y. 379. In addition to this,
another Amendment was also made, separating municipal from
State and Federal elections; and hereafter municipal elections
will occur on odd-numbered years and State and Federal elections
on the even-numbered years. These two provisions will have
the practical operation of making our cities to some extent
autonomous. The Civil Service Amendment was the first to be
inserted by any State in its fundamental law and has already
received judicial construction. [Matter of Keymer, 148 N. Y.
219; People ex rel. McClelland vs. Roberts, 148 N. Y. 260.]
Another important Amendment was that requiring all bills to
be printed and upon the desks of the members of the Legis-
lature in their final form at least three calendar legislative days
prior to their final passage, and prohibiting any Amendment being
made upon the last reading of such bills. This will prevent
hasty and “snap ’* legislation and enable the people of the State
to know what is transpiring in legislative chambers. As a mem-
ber of the Legislature of 1896, I found this to be a very
salutary provision. Another important Amendment was that
relating to general State elections and securing the right of
suffrage against force and fraud and providing for its exercise
by requiring proper registration of voters and the creation of
election boards with equal representation of the two principal
political parties thereon, and also by increasing the period of
citizenship after naturalization from ten to ninety days and by
also providing that elections may be “by such other method**
than by ballot “as may be prescribed by law, provided that
secrecy in voting be preserved.**196
CONSTITUTIONAL LAW
Honest and fair elections together with the legal exercise of
the privilege of suffrage are indispensable requisites to the
perpetuity of Representative Government, and it is believed
that the additional safeguards that have now been incorporated
into the State Constitution, will tend to secure these requisites.
Should experience warrant the introduction and use of any other
method of conducting elections, than the present cumbersome
and expensive method of voting by ballot, the Legislature under
the foregoing permissive Constitutional Provision may authorize
its introduction and use. This is a progressive measure, looking
toward an improved method of voting. It was my privilege to
draft, introduce and advocate this latter Amendment in the
Convention.
Another important Amendment was the Apportionment Article,
formulated with great care by the Committee of which Mr. Tracy
C. Becker of Buffalo was chairman, and designed to secure an
equitable representation of all the Counties of the State in
the Legislature. It was based upon a numerical representation,
increasing the Senate from 32 to 50 and the Assembly from 128
to 150 members, and did away entirely with the legislative
inequitable gerrymander of 1892. The operation of this new
apportionment was first seen in the general election in November,
1895. It is generally believed that it will prove satisfactory to
the people, who prefer fairness of representation to political
advantage in the election of members of the State Legislature.
[See People ex rel. Henderson vs. Supervisors, 147 N. Y. 1 \
In re Smith vs. Board of Supervisors, 148 N. Y. 187.]
Another Amendment thoroughly revised our Judicial system
and merged nearly all of our city Courts of Record in one
Court of original jurisdiction, known as the Supreme Court. It
also superceded the General Terms of the Supreme Court by a
new tribunal, consisting of from five to seven Justices and to be
known as the Appellate Division of the Supreme Court, of which
there are four in the State. This Article went into effect on
January 1, 1896, and that accounts for the necessary re-adjust-
ment of the Justices of the Supreme Court and former Judges of
the Superior Court of Buffalo. [In re Rapid Transit Com-
misioners, 147 N, Y. 260; People vs. Herrmann, 149 N.Y. 190.]
Another Amendment was that providing for the examinationIN NE IV YORK ST A TE.
197
and inspection of charitable, eleemosynary and reformatory
institutions, whether supported by the State, county, or a
municipality. Another still more important Amendment was
the Educational Article, which for the first time in the history of
the State makes Constitutional provision for the maintenance
and support of a system of free common schools.
A system of free common schools was established in Massa-
chusetts as early as 1647, but it was not until 1867 that the
unpopular rate-bill* was finally abolished in the State of New
York, and her common schools were supported by a State tax
and became in reality a free common school system.
The importance of the maintenance of such schools was
deemed to be such as to warrant Constitutional enactment co
avoid any legislative disturbance of the system in the future.
The new Educational Article also constitutionalizes the
University of the State of New York, and for the first time in
the history of the State places higher education beyond the reach
of legislative interference. The Regents of the University of
the State of New York were incorporated in 1784, and by a
more satisfactory Act in 1787, and have enrolled among their
number some of the most gifted sons of the Empire State.
Incorporated through the effort of L’Hommedieu and Hamilton,
fostered and upheld by a century of legislation, the Regents of
the University have been deemed worthy of perpetuation, and
the new Constitution so ordains.
Another important Amendment was that organizing “all
able-bodied male citizens between the ages of 18 and 45 years ”
into the State militia. There were several other less important
Amendments, recommended and adopted, to carry out our
representative system of State government in its three principal
co-ordinate branches more fully than it were possible under the
pre-existing Constitution.
In theopinion of many, one of the important Amendments
was that providing for canal improvement. Certainly no other
Amendment is likely to do more for the industrial and commer-
cial prosperity of the city of Buffalo and of the State.
The inland artificial waterways of the State may now be im-
proved and maintained. The experience of upwards of half a198
CONSTITUTIONAL LAW
century has confirmed the predictions of its projectors, that the
Erie Canal has done more to advance the interests of the State
and Nation, than any other one agency. Buffalo has grown
from an Indian village to the sixth greatest commercial port in
the world and New York City has become the second greatest
commercial port in the world, while all the intermediate villages
of the State have become flourishing cities, unsurpassed by
the maritime cities of Southern Europe. The policy which has
thus made New York the greatest commercial‘State in the Union,
we believed should be continued, and accordingly we undertook
to make provision for general canal improvement, and after
much labor, succeeded in prevailing upon the Convention to
adopt this line of policy and the people of the State approved
of the work thus done by an overwhelming majority vote.
It should be one of the proud achievements of Buffalo, that
she has had a prominent part in fostering, preserving and per-
petuating the internal waterways of the State and thus enabled
the State to control the commerce, passing each way between the
sea-board and the great lakes for nearly half a century, and also
enabled the State to maintain her commercial supremacy among
her enterprising sister States.
As a member of that Convention, ample opportunity was
given me to have part in formulating and in advocating such
Constitutional provision. It may be safely stated that our canal
system will now be improved and put beyond the vis inertia of
public sentiment for another generation.
The foregoing new Constitutional provisions necessitated
some change in the number and arrangement of the sections of
the Constitution, but its general framework was retained. The
fundamental provisions contained in the Preamble and Bill of
Rights embraced in Article, i. of the Constitution were not
disturbed. They have come down to us from the Magna Charta,
the English Habeas Corpus Act of 1679 and the English Bill of
Rights of 1689, or possibly from still more remote sources.
“From the earliest records of the English law/’ says Hallam,
“a freeman might demand of the Court of the King’s Bench a
writ of Habeas Corpus ad subjiciendum, etc. The Habeas
Corpus Act introduced no new principles.”IN NE W YORK STA TE.
199
It is quite probable that some of the principles contained in
the Athenian and Roman Constitutions have come down to us
and are preserved for us in the first Article of our Constitution.
We have already seen that we are indebted to Aristotle for the
plan of government, comprising three co-ordinate branches. It
is said that our highly-prized jury system may be traced back to
the Frankish inquisition one of the prerogative rights of a
Frankish king, if not to the Roman recuperatores, or even to the
Greek dikastes. From the promulgation of the Twelve Tables
in Rome, 450 B. C., down through the writings of the great
civilians, Gaius, Papinian, Ulpian and Paulus, to the Institutes of
Justinian, A. D. 533, the Romans developed, made trial of, and
perfected a system of jurisprudence, which has been to a great
extent the source of all subsequent systems, as well as the admir-
ation of the law-maker the world over.
Qu. Mucius Scaevola (100 B. C.) was the first to classify and
define the nature of legal institutions, such as a will, legacy,
guardianship, partnership, sale, hiring, etc. ; and Labeo was the
author of various new classifications, divisions and definitions
such as “ actiones in rem,” and “ actiones in personam,” and
“dolus matos" (excusable error), appurtenances, etc. Classi-
fication went on until the nomenclature of the Roman Law be-
came nomenclature of all subsequent systems. In speaking of the
Corpus juris civilis, Rudolph Sohm, of Leipsic, says “it forms, in
a sense, both the coping-stone of the whole structure of antique
law and the foundation-stone of the structure of modern law.”
Erwin Grueber also affirms that “ Roman Law was, through Brac-
ton, in perfect good faith made part of the work which forms the
very foundation of the Common Law. ” It has been said that “ it
was by a judicious mixture of the permanent or conservative, and
the progressive reformatory spirit, that Rome was enabled to
establish and frame laws that in time gave her the Empire of the
World.”
Our indebtedness to the Civil Law is evidenced not only by
our Constitution, but also by the Declaration of Independence.
The “self-evident truth” therein contained “ that all men
are created equal” is a reproduction of the Stoical dictum of
the Roman Jurisconsults “ Omnes homines natura cequales sunt"200
CONSTITUTIONAL LAW
found in Ulpian and translated “ All men are by nature equal,’*
or “ All men are born equal.” Justinian characterized the
principles of the Roman Law as follows: “Jurisprcecepta sunt
hcec, honeste vivere, alterum non Icedere, suum cuique tribuere. ’ ’
And Professor Sohm says :	“ In working out the jus gentium,
i. e., those rules of natural equity, which regulate the dealings
between man and man, and in reducing these rules to a system
of marvellous transparency and lucidity, which carries irresis-
tible conviction by its form as well as its matter to the mind of
every observer, in doing this, Roman Law has performed its
mission in the world’s history.”
From this source and from the English Court of Chancery,
which bears some resemblance to the praetorian jurisdiction at
Rome, was largely drawn our equity system, as outlined by our
great civilians and Chancellors, Livingston, Lansing and Kent.
It is possible to trace many other of our civil institutions
back to an English, Norman, Teutonic or Roman origin. In
the history of civilization, from time to time have appeared
important constitutional instruments, such as the Twelve Tables
of Roman Law, the Institutes or Code of Justinian, the Magna
Charta of King John, the English Declaration of Rights, the
Federal and other American and recent foreign Constitutions.
All these have been declarations of fundamental principles to
be observed in the administration of government and have suc-
cessfully advanced Constitutional liberty among the peoples of
the earth. These have imposed limitations upon the capricious
acts of executive, legislative and judicial officers, established the
rights of persons and property and made possible the evolution
of popular government. The Representative system, or Repub-
lican form, so well adapted to the conservation of these rights
and of free institutions generally became the American type of
government, and is guaranteed by the Federal Constitution to
all the States of the Union. It was a wise policy therefore, and
based upon well approved principles that moulded the develop-
ment of American civil institutions upon a Representative and a
Constitutional basis, and it is generally believed that no people
are more secure than Americans in the enjoyment of “ life,
liberty and the pursuit of happiness.”IN NE W YORK ST A TE.
201
The Constitutional Convention of 1894 supplemented the
efficient work done by the five preceding State Constitutional
Conventions and that proposed from time to time by the Legisla-
ture, acting spontesua, or upon the recommendation of the Constitu-
tional Commissions of 1872-1873 and 1890-1891, and it did not
undertake to disturb our American civil polity, although much
investigation was given to the provisions of many foreign Con-
stitutions. These latter instruments were found to conflict with
the principles of our civil polity, and not to be in harmony with
our Republican form of Government, guaranteed by the Federal
Constitution. The investigation of them however tended to
convince a majority of the delegates, that the framers of our
American Constitutions
builded better than they knew.
Our Revised Constitution therefore preserves the approved
principles, contained in the pre-existing State Constitution, but
extended its provisions to new exigencies, as already stated.
Those who have critically examined its provisions affirm that it
is the most explicit statement of the Constitutional principles of
Republican form of State government ever made and that its
beneficent operation will redound to the greater welfare of the
people of the State. Though very imperfectly and but par-
tially sketched, the development of our Constitutional Law may
thus be traced from the civil institutions of the Old World down
through many transformations to its culmination in our Revised
Constitution.
Thus fundamental principles survive the decay of Empires
and enter into the formation of improved systems of govern-
ment, and these in turn will advance the progress of civilization,
.... whose compulsive course
Ne’er knows retiring ebb.