Civil List and Constitutional History of the Colony and State of New York, Part 14

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380

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The supremacy of the Assembly was secured in the appointment of delegates to the General Congress, by providing for their designa- tion by joint nomination; and that, in the event of disagreement, the two Houses were to meet in joint ballot, where the preponder- ance of the Assembly enabled it to secure its choice, if united.

The Assembly was given an indirect voice in appointments, by a provision which authorized it to select a Council of Appointment from the Senators, in which Council the Governor was to have " a casting voice, but no other vote." Under this provision, he claimed the right of nomination, but it was taken away from him by a Conven- tion in 1801, which decided that any member of the Council had the

120 IMPOTENCE OF THE EXECUTIVE - PRIMACY OF THE JUDICIARY.

right to make nominations. Thus was taken from the Governor powers deemed to belong to the office, or to the Crown, and which the Assembly had encroached upon during the colonial period. So fear- ful had the People become of an irresponsible Executive, that they, at first, failed to appreciate the nature of the revolution they had wrought by securing a Governor elected by and responsible to them. They knew that they had become sovereign, but they thought that they must exert their sovereignty mainly through the Assembly.

Appointees of this Council (the Chancellor and Judges of the Supreme Court) were associated with the Governor as a Council of Revision, to which was given a qualified veto, in place of the abso- lute veto formerly held by the Governor and the Crown.

Two of the functions possessed by the Governor and Council under the Colonial Constitution were thus vested in two separate Councils, more or less responsible to the Assembly ; and in both those Councils the Governor could be entirely neutralized. He was part of the Legislative Department under the colonial system. The Legisla- ture now consisted of two instead of three departments. Whereas, it formerly consisted of the Governor, Council and Assembly, sitting separately, it was now expressly declared to consist only of the Senate and Assembly ; while the Council of Revision was instituted simply to prevent " laws inconsistent with the spirit of this Constitu- tion or with the public good" from being " hastily and unadvisedly passed." To this end, the Judiciary was made supreme in the law- making power, unless overruled by two-thirds of both branches of the Legislature.

The legislative and judicial functions of the old Council were con- ferred upon the Senate; and the Governor was entirely stripped of the Judicial power he possessed under the Colonial Constitution. With the Senate, however, the Chancellor and Judges of the Supreme Court were associated as a Court for the Trial of Impeachments and the Correction of Errors.

The primacy of the Judiciary is as conspicuous a feature of this Constitution as the supremacy of the Assembly and the subordination of the Governor. The latter was simply an executive agent, to see that the declared will of the people was carried into effect ; and was no longer a dictator asserting the will of his sovereign. The Chan- cellor and Judges of the Supreme Court were eligible to no other office, except that of Delegate to the General Congress on special occasions ; and the First Judges of County Courts could hold no other office, except Senator or Delegate. These exceptions were for the

121

WEAKNESS OF THE CONFEDERATION.

express purpose of preserving the equal balance of the Law, which had been so serviceable in all emergencies.

No new courts could be constituted, except such as proceeded according to the common law ; the right of trial by jury was declared inviolate, and liberty of conscience was guaranteed.

Thus the framers of the Constitution wrote in the organic law the principles for which the People had been contending for over a century. At the same time, their efforts to provide a mechanismn for the preservation of the liberties they had secured were ernde and imperfect.

FEDERAL UNION.

The Articles of Confederation provided that " the Union shall be perpetual." They were ratified by the Legislature February 6, 1778; but some of the other States proceeded more slowly. Dis- satisfied with the weakness of the Confederacy, agitation began for an increase of power in the General Government. At a Convention held in Boston in August, in 1780, relative to the currency, at which New Hampshire, Massachusetts and Connectient were represented, it was declared to be essential to the power and prosperity of the country, "that the Union of these States be fixed in a more solid and permanent manner; that the powers of Congress be more clearly ascertained and defined ; and that the important national concerns of the United States be under the superintending and direction of one supreme head." In his speech at the opening of the fourth session of the Legislature of New York, Governor Clin- ton expressed his hearty concurrence and dwelt upon " the defect of power in those who ought to exercise supreme direction." Both Houses, in their addresses in response, united in the same opinion. On the 23d it was decided to send delegates to a Convention to be held at Hartford the second Wednesday in November, "to give a vigor to the governing powers equal to the present crisis ; " and on the 25th, Philip Schuyler, John Sloss Hobart and Egbert Benson were appointed the Commissioners. On the 10th of October, it was "resolved, unanimously, that the delegates from this State be instructed to declare in Congress that it is the earnest wish of the State that Congress should, during the war, or until a perfected Confederation shall be completed, exercise every power which they may deem necessary for an effectnal prosecution of the war; and that, whenever it shall appear to them that any State shall be defi- cient in furnishing the quota of men, money, provisions or other

122

ORIGIN OF THE FEDERAL CONSTITUTION.

supplies required of such State, that Congress direct the Com- mander-in-Chief, without delay, to march the army or such part of it as may be requisite, into such State, and by a military force compel it to furnish its deficiency." A second resolution di- rected the Commissioners to the Hartford Convention to propose that Congress be explicitly authorized and empowered thus to do. The Convention did not accomplish any thing ; but the ratification of all the Articles by all the States followed, and was announced to the Legislature in a special message, March 19, 1781. In July, 1782, a resolution was adopted setting forth the weakness of the Confederation, and recommending that "a General Convention of the States, especially authorized to revise and amend the Confedera- tion," be called. On the 10th of March, 1783, Ezra L' Hommedieu, Ephraim Paine and John Lansing were named by resolution, as Commissioners to a Conference at Hartford. In 1785, General Washington suggested the holding of a Commercial Convention. In February, 1786, the Governor of Virginia addressed a letter on the subject, and on the 3d of March Congress adopted a resolution relative thereto, what was transmitted to the Legislature of New York by the Governor March 26. This Convention was called for the purpose of considering the trade and commerce of the United States, and how far the common interest and permanent harmony might be promoted by a uniform system in their commercial inter- course, and was to report to the several States an act to enable Con- gress to secure the desired result. Egbert Benson, James Duane, Leonard Gansevoort, Alexander Hamilton, Robert C. Livingston and Robert R. Livingston were named as such Commissioners from New York, in an act passed May 6, 1786; but Messrs. Benson and Hamilton only attended. The Convention was held at Annapolis, Md., September 11-14, 1786, and strongly recommended that a General Convention be held in the ensuing May, for the purpose of framing a more efficient union, and conferring enlarged powers on the Federal Congress. On the 17th of February, 1787, the As- sembry of New York adopted a joint resolution instructing the Delegates of the State in Congress to move that a Convention be held for the purpose of so amending the Articles of Confederation as " to render them adequate to the preservation and support of the Union." There does not appear to have been any division in the House thereon, but in the Senate the resolution was agreed to (February 20) by a vote of 10 to 9. An Assembly resolution providing for the appointment of delegates by this State came up in the Senate

123

FEDERAL CONSTITUTIONAL CONVENTION.

February 28, when Senator Yates moved to amend by providing that the new amendments should " not be repugnant to or inconsist- ent with the Constitution of this State." The vote on this amend- ment stood 9 to 9, and the Lieutenant-Governor voted in the nega- tive. The resolution was then adopted, and on the 6th of March Robert Yates, John Lansing, Jr., and Alexander Hamilton were appointed delegates " for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the several States, render the Federal Constitution adequate to the exigencies of gov- ernment and the preservation of the Union."

The Federal Constitutional Convention met in Philadelphia, on the second Monday in May, 1787, and on the 17th of September conelnded its work. Alexander Hamilton was the only delegate from this State who signed the new Constitution. The Convention adopted a resolution recommending to Congress that it be submitted to Conventions in each State, chosen by the People thereof, called by the respective Legislatures. The Constitution was transmitted to Congress by George Washington, President of the Convention, with a letter commending the same. Congress adopted a resolution, Septem- ber 28, referring the new Constitution to the various Legislatures for submission to the People of the respective States. On the 31st of January, 1788, the Assembly of New York adopted a joint resolu- tion providing for a State Convention. Mr. Schoonmaker moved to amend the preamble, by including a more comprehensive statement of facts, and by reciting that the proposed organic law does " mate- rially alter the Constitution and Goverment of this State, and greatly affects the rights and privileges of the People thereof ; " which motion was lost, 25 to 27. The resolution as it passed the House was concurred in by the Senate, February 1, 10 to 8. The Convention met at Poughkeepsie, June 17, and adjourned July 26.

The adoption of the Federal Constitution did, indeed, work great changes in the structure of the government of the State. Revenue laws had already been passed, and customs officers appointed ; the Admiralty Court was still in existence, and Commissioners of Indian Affairs continued to regulate the relations with the native tribes. All these were to be superseded by Federal officials. After debate in the Convention, it was proposed to ratify the Constitution " on condition " that certain propositions be submitted to a General Con-

124

ADOPTION OF THE FEDERAL CONSTITUTION.

vention ; but these words were changed to an expression of ~ full confidence" that the suggestions of the Convention would be com- plied with. A motion was lost, reserving to New York the right to withdraw its ratification unless its recommendation of a General Convention was adopted. The Constitution was ratified July 26, by a vote of 30 to 27-seven not voting.

DELEGATES TO THE CONVENTION.

Iresident-George Clinton.

Secretaries-John Mckesson, Abraham B. Bancker. Door-keeper-David Barckley.

Albany.

Kings.

Orange .

Ulster.

John Lansing, Jr., *

Henry Oothoudt, *

Peter Lellerts, Peter Vandervoort.

Jolm Haring." Henry Wisher,+ John Wood * Jesse Woodhull. Quiens.

John Cantine, * Ebenezer Clark .* George Clinton.t James Clinton,* Cornel's (.Schoonmaker* Direk Wynkoop. +

Robert Yates *

William Harper, * Henry Staring,* Volkert Veeder,*

Stephen Carman,

Washington d. Clinton.

Columbia.

John Winn,*

N.uhaniel Lawrence, John Schenck.

Albert Baker .* David Hopkins * Ichabod Parker, * John Williams.4

Peter Van Ness. *

New York.

James Duane.

Richmond. Abraham Bancker, Gozen Ryerss, Suplolk.

Westchester.

Jonathan Atkins,*

John De Witt,

Gilbert Livingston,

Zephaniah Platt,

Robert R. Livingston,

Melaneton Smith, I

Nicholas Low,

Jonathan N. Havens, David Hedges, Henry Soudder, John Smith,

Lewis Morris, Lott W. Sarl-,

Jacobus Swart wont,* Ezra Thompson.t

Richard Morris,t

Isaac Roosevelt .

Thomas Tredwell .*

Philip Van Cortlandt.

In the above list of members, those who voted against the Constitution are marked thus *; those who did not vote, thus t.

In his address to the Legislature in December, Governor Clin- ton said : " A declaration of rights with certain explanations are inserted, in order to remove doubtful constructions, and to guard against an undue and improper administration, and that it was assented to in the express confidence that the exercise of different powers would be suspended until it [the Constitution] should undergo a revision by a General Convention of the States

* * * nothing short of the fullest confidence of obtain- ing such revision could have prevailed upon a sufficient number to have ratified it without stipulating for previous amendments." At the first session of the first Congress, amendments were proposed substantially attaining the objects sought by New York, the pre- amble reciting that, " the Convention of a number of the States having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory or restrictive clauses should be added." Ten of these amendments were ratified by the Legislature, March 27, 1790, and

1 Resided in New York city.

Dirck Swart.t Anthony Ten Eyck, t 1-rael Thompson,* Peter Vrooman, t

Montgomery.

John Frey, $

Matthew Adgate, *

Christopher P. Yates, t

John Bay,*

Dutchess.

Alexander Hamilton, Richard Harison, John Sloss Hobart, John Jay,

Thaddeus Crane. Richard Hatfield, Philip Livingston,

125

CONVENTION OF 1801.

another, September 21, 1791. Thus the influence of New York secured, first, a better organized goverment, and then limited it strictly to the purposes for which it was established.

CONVENTION OF 1801.

This.convention was held at Albany, October 13-27, 1801, pursu- ant to an act passed April 6 of that year, to settle the controversy which had arisen regarding the relative powers of the Governor and Council of Appointment respecting nominations for office, and to consider the expediency of altering the Constitution in regard to the number of Senators and Assemblymen, with power to reduce and limit the same. The Convention unanimously decided that the Coun- cil of Appointment had equal powers of nomination with the Gov- ernor ; fixed the number of Senators at 32 and the Assemblymen at 100, to be increased after each census, at the rate of two yearly, until they reached the number of 150.

DELEGATES TO THE CONVENTION.

President - Aaron Bnrr.

critaries - James Van Ingen, Joseph Constant.

Sergeant-at-Arms-Volckert A. Douw. Doorkeeper - Benjamin Whipple.

Albany.

Johan Jost Dietz, Leonard Gansevoort, Daniel Hale,

John V. Henry

Josiah Ogden Hoffman, Abraham Van Ingen, Stephen Van Rensselaer, Peter West.

Cayuga.

Silas Halsey.

Chenanjo.

John W. Buckley, 1 Stephen Hoxie.

Clinton and Essex. Thomas Tredwell.

Columbia.

Benjamin Birdsall, Alexander Cothn, Stephen Hogeboom, Moses Trafford, James 1. Van Allen, Moses Younglove.

Delaware.

Roswell Hotchkiss, Elias O-born.

Dutchess.

Jonathan Akin,

Isaac Bloom, Caleb Hazen,

Peter Hnested, Edmund Parlee, Smith Thompson, Joseph Thorn,

John Van Benthuysen, Theodorus Van Wyck, Ithamner Weed.

Greene. Martin G. Schnneman, Stephen Simmons.

Herkimer.

George Rosecrantz, Matthias B. Talhnadge, Evans Wherry. Kings.

John Hicks.

Montgomery.

Nathaniel Campbell. Jonathan Hallett, John Herkimer, Thomas Sammons, Peter Waggoner, Jr., Caleb Woodworth. Queens. De Witt Clinton,

New York.

Joshna Barker,

John Bingham,

George Clinton, Jr., Nicholas De Peyster, William Edgar, Archibald Kerly,

Maturin Livingston, John Mills, James Nicholson, Daniel D. Tompkins, Solomon Townsend, William P. Van Ness, Peter HI. Wendover. Oneida.

James Dean, Bezaleel Fisk,

Henry Huntington. 2

Onondaga. Moses Carpenter.

Ontario and Steuben.

Saratoga. Adam Comstock, Samnel Lewis, Beriah Pahner, John Thompson, Daniel L. Van Antwerp.

Moses Atwater, John Knox. Orange.

Schoharie. (Not represented.)

Aaron Burr, James Clinton, Arthur Parks, John Steward, Peter Townsend. Otsego.

Suffolk. William Floyd. Ezra L'Hommedien, Samuel L'Hommedieu, Joshua Smith, Jr.

Tioga.

John Patterson.

James Ravner. John Schenck,

John W. Seaman.

Rensselaer.

Cornelins Lansing,

Jonathan Nites, William W. Reynolds, Jonathan Ronse, John Rvan, Jacob Yates.

Richmond.

Joseph Perine. Rockland.

Peter Taulman.

Thomas Ferris, Israel Honeywell, Jonathan G. Tompkins, Pierre Van Cortlandt, Jr. Ebenezer White.

1 Contested by Anson Cary.

2 Contested by Joseph Kirkland.

Daniel Hawkes, James Moore, Luther Rich, David Shaw. Uister. John Cantine. Lucas Elmendorf. Abraham Schoonmaker, Anning Smith.

Washington.

John Gale, Solomon King, Thomas Lyon, Edward Savage, Solomon Smith, John Vernor.

Westchester.

126

DEFECTS OF THE FIRST CONSTITUTION.

CONVENTION OF 1821.

The Constitution did not meet the expectations of its framers. The cumbrous machinery by which it was sought to insure the con- trol of the People, through the supremacy of the Assembly, had only resulted in fortifying power practically beyond their reach.

The Council of Revision was objected to because it had exercised the veto power contrary to the spirit of the Constitution, which was in harmony with the traditions of the Colony from the earliest con- fliet with the Exentive power; and because the officers who thus interposed their objections to the will of the Legislature, holding office for good behavior (except the Governor), were beyond the reach of the People. It was seen that this power was a dangerous one, in a Council so constituted ; but it was thought that it could be safely intrusted to the Governor alone, as he was directly responsi- ble to the People. The Council of Appointment, although not vested with any judicial authority, and in fact disclaiming it, nevertheless at an early day summoned its appointees before it, for the purpose of hearing acensations against them, and proving their truth or falsity. At a later day, more summary proceedings were resorted to. The office thus became very unpopular. Nearly every civil, military, and judicial officer of the commonwealth was appointed by this Council. In 1821, 8,287 military and 6,663 civil officers held their commissions from it, and this vast system of centralized power was naturally very obnoxious.

The Legislature, in 1820, passed " an act recommending a Con- vention of the People of this State," which came up for action in the Council of Revision, on November 20th of the same year ; present, Governor Clinton, Chancellor Kent, Chief Justice Spencer, and Justices Yates and Woodworth, on which day the Council, by the casting vote of the Governor, adopted two objections to it ; first, because it did not provide for taking the sense of the People on the question ; and second, because it submitted the new Constitution to the People in toto, instead of by sections.1 These objections were referred to a select committee, Michael Ulshoeffer, chairman, who submitted their report January 9, 1821, in opposition to the opinion of the Council, which was adopted by the Assembly .? The bill, however, failed to pass, not receiving a two-third vote. Immediately thereupon a committee was appointed to draft a new bill. The Committee subsequently introduced a bill for submitting the ques-

1 Street's Council of Revision, pp. 390-393

2 Ibid., pp. 455-476.

127

CONVENTION OF 1821.

tion to the people, which passed both Houses; received the sanction of the Council of Revision on the 13th of March, and was subse- quently amended, the amendments receiving the sanction of the Council on the third of April.1 The popular vote on holding the Convention was had in April, and resulted as follows :

"For Convention," ......... 100,316. " For No Convention,". 34,901.

DELEGATES TO THE CONVENTION.

President-Daniel D. Tompkins. Secretaries-John F. Bacon, Samuel S. Gardiner. Sergeants-

at- Irms-Henry Freyer, Lonis S. Le Couteulx. Doorkeepers-Henry Bates, John Bryan, Richard Ten Brorck.

Albany.

James Kent. Y

Ambrose Spencer,* stephen Van Renselaer,* Abraham Van Vechten .*

Allegory and Steuben. Tunothy Hurd, James McCall.

Broomte, Charles Pumpelly. 2

Cuttaraugus. Chantanque, Eric and Niagara.

Augustus Porter,

samuel Russell.

Hiram Stpele, Egbert Ten Eyck. Kings. John Lefferts.

Lewis.

Augustus F. Ferris.

Chenango.

Thomas Humphrey,* Jarvi- K. Pike, Nathan Taylor.

Clinton und Franklin. Nathan Carver.

Columbia.

Francis Silvester # William W. Van News. * Jacob R. Van Rounselaer. $ Elisha Williams .*

Cortland. Samuel Nelson.

Delaware.

Robert Clark, $ 2 Erastu- Root.

Dutchess.

Elisha Barlow, Isaac Hunting, Peter R. Livingston, Abraham 11. Schenck, James Tallmadge, Jr.#

Esse.r, Reuben Sanford.

Genesee. David Burroughs, John Z. Ross, Elizur Webster. Greene. Jehiet Tuttle, Alphous Webster. * Herkimer. Sanders Lansing, Richard Van Horn,$ Sherman Wooster. Jefferson.

Om ida and part of Osuy go.

Ezekiel Bacon, Samuel Sidney Breuse,* Henry Huntington, Jonas Platt, $

Nathan Williams.

Saratoga. Salmon Child, John Cramer, Jeremy Rockwell, Samuel Young.

Schenectady. John Sanders,* Henry Yates, Jr.

Schoharie.

Olney Briggs, .1-a Stark weather, Jacob Sutherland.

Seneca. Robert S. Rose, Jonas Seely. Suffolk. Isher HI. Moore, Ebenezer Sage, Joshna Smith.

Sallivan and Ulster.

Daniel Clark, Jonathan Dubois, James Hunter, Henry Jansen. 3

Joel Frost.

Tioga.

Matthew Carpenter.

Tompkins. Richard Smith, Richard Townley.

Warren and Washing- tun. Alexander Livingston, Nathaniel Pitcher, John Richards, William Townsemi,

Melaneton Wheeler.

Richmond.

Daniel D. Tompkins. *

Westchester.

Peter A. Jay * Peter J. Munro, Jonathan Ward.

Those marked thus *, did not sign the Constitution.

1 Street's Counsel of Revision, pp. 476-479.

2 Died suddenly in the hall of the Capitol, September 14. 1:21.

3 Resided in Nichols, Tioga county.

Onondaga and part of Osugo. Victory Birdseye, Amari Case, Asa Eastwood, Partey E. Howe. Ontario. Micah Brooks, John Price David Sutherland,# Philetus Swill, Joshua Van Fleet. Orange. John buer, John Hallock, Jr., Peter Milliken, Benjamin Woodward. Otsego. Joseph Clyde, Ransom Hunt, William Park, David Tripp. Martin Van Buren. Putnam.

Ela Collins. Livingston. James Roseburgh. Madison. Barak Beckwith, John Knowles, Edward Rogers.

Monror. John Bowman.

Montgomery William 1. Dodge, # Howland Fish, Jacob Ileps .* Philip Rhinelander, Jr., # Alexander Sheldon.

Qacens. Elbert HI. Jones,* Rufus King. Nathamel Seaman.

Rensselaer.

Jirah Baker.

David Bnel, Jr .. James L. Hogeboom, John Breve. John W . Woods.

New York. Jacobus Dyckman, Ogden Edwards, James Fairlie, John L. Lawrence, William Paulding, Jr., Jacob Radcliff, Nathan Sanford, Peter Sharpe, Peter Stage, Peter Il. Wendover. Henry Wheaton.

Rockland. Samuel G. Verbryck.

St Lawrence. Jason Fenton.

David Brinckerhoff, Rowland Day *

12S

VOTES BY THE PEOPLE.

The Convention assembled in Albany, August 28, and adjourned November 10, 1821. The Council of Revision was abolished, and its powers transferred to the Governor. The Council of Appoint- ment was abolished without a dissenting voice. The principal department officers were directed to be appointed on an open sep- arate nomination by the two Houses, and subsequent joint ballot. Of the remaining officers, not made elective, the power of appoint- ment was conferred upon the Governor, by and with the advice and consent of the Senate. In 1846, two hundred and eighty-nine offices were thus filled. The elective franchise was extended.1

The Constitution was adopted at an election held in February, 1822, by the following vote :

Constitution-For.

71,732 Against. ... .41,402

Under this and the preceding Constitutions, the civil and political year commenced on the first day of July.

Thus civil liberty emerged from the ancient chrysalis in which it had been preparing a new organism, adapted to its better growth. The People took to themselves a large portion of the power they had felt it necessary, in the exercise of a natural conservatism, to intrust to the Assembly. They had learned that an elective Gov- ernor and an elective Senate are equally their agents, and interests which they thought ought to be conserved, they intrusted to them, subject to their responsibility to the People. The entire Senate were substituted in the place of the members who chanced to be the favor- ites with a majority in the Assembly, as a Council to the Governor, and thus the People of all the State were given a voice in appoint- ments. The Supreme Judicial Tribunal remained the same. The direct sovereignty of the People was thus rendered far more effective, and popular government took the place of parliamentary administra- tion.

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Civil List and Constitutional History of the Colony and State of New York, Part 14

Author: Publication date: 1886 Publisher: Albany Number of Pages: 1380

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380