USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 17
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And in order to prevent any unnecessary delays :
Be it further ordained, That if any bill shall not be returned by the council within ten days after it shall have been pre- sented, the same shall be a law, unless the Legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case, the bill shall be re- turned on the first day of the meeting of the Legislature after the expiration of the said ten days.9
The section of the Constitution destined to exercise the most potent influence in the political history of the State was the provision for a Council of Appointment.10 This Council consisted of the Governor and four Senators who were to be openly nominated and appointed by the Assembly every year, one Senator from each of the four Senatorial districts; Sen- ators were not eligible to the Council for two years succes- sively. A majority of the Council constituted a quorum.
9. The Council had a Clerk, and sat with closed doors. Its members were not to be allowed any compensation, under any pretense whatever. Dur- ing its existence it returned one hundred and sixty-nine bills to the Legis- lature, with its objections, fifty-one of which became laws notwithstanding. The Council was abolished by the Constitution of 1821. Its minutes com- prise five volumes, and are deposited in the office of the Secretary of State. They have never been printed; but a history of the Council, its Members and its Vetoes, edited by Alfred B. Street, formerly State Librarian, has been published .- "Civil List N. Y.," 1888 edition, p. 366.
IO. Council of Appointment-John Morin Scott, Jesse Woodhull, Alex- ander Webster, Abraham Yates, Jr., September 16, 1777; Jonathan Law- rence, Zephaniah Platt, Ebenezer Russell, D. Wessel Ten Broeck, October 17, 1778; Isaac Roosevelt, Levi Pawling, Alexander Webster, Rinier Myn- derse, September II, 1779; Stephen Ward, Ephraim Paine (a), Ebenezer Russell, Abraham Ten Broeck, September 11, 1780; Isaac Stoutenburgh, Zephaniah Platt, Alexander Webster, Henry Oothoudt, October 25, 1781 ; Jonathan Lawrence, John Haring, Elkanah Day, William B. Whiting, July 22, 1782; Ezra L'Hommedieu, Jacobus Swartwout, Alexander Webster, Abraham Yates, Jr., January 21, 1784; Isaac Roosevelt, Joseph Gasherie, Ebenezer Russell, William B. Whiting, October 19, 1784; Lewis Morris, Jacobus Swartwout, David Hopkins, Philip Schuyler, January 19, 1786; William Floyd, John Hathorn, Ebenezer Russell, Peter Schuyler, January C.&L .- 41
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The Governor had no vote, but had a "casting voice" in the event of a tie. The language of the Article which created this irresponsible body was very vague, although the intention of those who drafted it probably was that the Governor should nominate and, with the advice and consent of the Coun- cil, should appoint all officers except those for whose appoint- ment the Constitution made other express provision. The obscurity was not cleared until the convention of 1807. The whole power of appointment in the State was thus, with few exceptions, lodged in the Governor and a Council of four Senators, two of whom, with the Governor, virtually held the appointing power. An equally despotic power of removel was placed in the same hands. We of to-day, who have swung to the opposite extreme of electing all officers, find it hard to appreciate the vast extent of power vested in the Council. Very few offices were made elective by the first Constitution. Electors of certain qualifications voted for Assemblymen, and a more restricted body of electors voted for Senators and
18, 1787; John Vanderbilt, Anthony Hoffman, David Hopkins, Philip Schuyler, January 18, 1788; Samuel Townsend, John Hathorn, John Wil- liams, Peter Van Ness, January 2, 1789; Philip Livingston, John Cantine, Edward Savage, Philip Schuyler, January 15, 1790; Isaac Roosevelt, Thomas Tillotson, Alexander Webster, Peter Schuyler, January 14, 1791; Philip Van Cortlandt, David Pye, William Powers, Stephen Van Rensselaer, Janu- ary 14, 1792; David Gelston, Joseph Hasbrouck, Robert Woodworth, John Frey, January 14, 1793; Selah Strong, Reuben Hopkins, Zina Hitchcock, Philip Schuyler, January 7, 1794; Richard Hatfield, Joseph Hasbrouck, William Powers, J. Van Schoonhoven, January 6, 1795; Joshua Sands, Abraham Schenck, Ebenezer Russell, Michael Myers, January 7, 1796; Andrew Onderdonk, Ambrose Spencer, Leonard Gansevoort, Thomas Mor- ris, January 9, 1797; Ezra L'Hommedieu, William Thompson, Moses Vail, Joseph White, January 3, 1798; William Denning, Ebenezer Foote, Ebene- zer Clark, John Frey, January 4, 1799; Samuel Haight, Robert Sands, James Gordon, Thomas R. Gold, January 28, 1800; DeWitt Clinton, Ambrose Spencer, John Sanders, Robert Roseboom, November 7, 1800; Benjamin Huntting, James W. Wilkin, Edward Savage, Lemuel Chipman, January 30, 1802; Ebenezer Purdy, John C. Hogeboom, J. Van Schoon- hoven, Jacob Snell, February 3, 1803; John Broome, Abraham Adriance, Thomas Tredwell, Caleb Hyde, February 7, 1804; John Schenck. Joshua H. Brett, Stephen Thorn, Jedediah Peck, January 29, 1805; DeWitt Clinton, Robert Johnson, Adam Comstock, Henry Huntington, January 31, 1806;
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Governor. Incumbents of all other offices, civil and military, including a large part of the judiciary, sheriffs, coroners, clerks, marshals, registers and notaries public, and even the mayors of cities were placed in power by the voice of the Council of Appointment.
Another peculiar feature of the Constitution related to tenure of office. Almost all of the officers appointed by the Council held their position during its pleasure.
The convention, by an ordinance adopted May 8, 1777, appointed a Council of Safety,11 investing it with all powers necessary for the preservation of the State until a meeting of the Legislature. There was immediate need of this Coun-
Thomas Thomas, James Burt, Edward Savage, John Nicholas, January 28, 1807; Benjamin Coe, Peter C. Adams, John Veeder, Nathan Smith, January 29, 1808; Jonathan Ward, James G. Graham, Isaac Kellogg, Alexander Rea, January 27, 1809; Isaac Carl, Robert Williams, Daniel Paris, Amos Hull, January 31, 1810; Benjamin Coe, James W. Wilkin, John MeLean, Philetus Swift, January 30, 1811; William W. Gilbert, Johannes Bruyn, Henry Yates, Francis A. Bloodgood, February 1, 1812; Peter W. Radcliff, James W. Wilkin, John Stearns, Jonas Platt, January 12, 1813; Egbert H. Jones, Morgan Lewis, Samuel Stewart, Henry A. Townsend, January 25, 1814; Jonathan Dayton, Lucas Elmendorf, Ruggles Hubbard, Farran Stranahan, February 1, 1815; Darius Crosby, William Ross, Perley Keyes, Archibald S. Clark, February 5, 1816; Walter Bowne, John Noyes, John I. Prendergast, Henry Bloom, February 2, 1817; Peter R. Livingston, Jabez D. Hammond, Henry Zates, Jr., Henry Seymour, January 31, 1818; Stephen Barnum, William Ross, George Rosecrantz, Stephen Bates, February 3, 1819; John D. Ditmis, John Lounsbery, Levi Adams, Ephraim Hart, Janu- ary II, 1820; Walter Bowne, John T. More, Roger Skinner, David E. Evans, November 8, 1820; John Townsend, Charles E. Dudley, Benjamin Mooers, Perry G. Childs, January 10, 1822.
(a) Vacated by expulsion from Senate March 15, 1781, and Arthur Parks appointed March 23, 1781.
II. Council of Safety-President, Pierre Van Cortlandt; Secretaries, John McKesson and Robert Benson. First Council: Matthew Cantine, Jacob Cuyler, Charles DeWitt, Robert Harpur, John Sloss Hobart, John Jay, Robert R. Livingston, Gouverneur Morris, Zephaniah Platt, John Morin Scott, Christopher Tappen, Jonathan G. Tompkins, Thomas Tredwell, Pierre Van Cortlandt, Abraham Yates, Jr. Second Council : Evert Bancker, Egbert Benson, Daniel Dunscomb, William Floyd, Robert Harpur, Jonathan Landon, Levi Pawling, John Morin Scott, Johannis Snyder, Peter Pra Van Zandt, Alexander Webster, William B. Whiting, Abraham Yates, Jr.
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cil for the "distribution of justice." The convention had re- tained the colonial Supreme and County Court systems, but until the Council of Safety had been organized, there was no appointing body, inasmuch as the Council of Appointment could not function until the Legislature had convened and elected a Council of Appointment. So the Council of Safety designated certain persons to fill the judicial offices tem- porarily. In all important instances, these temporary ap- pointments were subsequently confirmed by the Council of Appointment. The higher officials who thus brought the judiciary system of the State into operation were: Robert R. Livingston, who was appointed chancellor ; John Jay, who was appointed Chief Justice ; Robert Yates and John Sloss Ho- bart, puisne justices, who with Chief Justice Jay were to con- stitute the entire bench of the Supreme Court of the State; and Egbert Benson, who was made attorney-general.
The judicial system was entirely different from that which has been familiar to us for three-quarters of a century. The convention placed in the new Constitution a provision that the chancellor, the justices of the Supreme Court and the first judge of the County Court in every county should hold their offices during good behaviour, or until the age of sixty years. While the Constitution deprived the Council of Appoint- ment of power to remove these judicial officers, they were by its own terms displaced at too early an age in most cases. Chancellor Kent, for instance, was forced to retire from the bench at sixty, on the supposition that he had reached the age of infirmity. Yet he lived for another twenty-four years, and his opinions were sought eagerly throughout the coun- try, as well as his services as counsel in important causes; and his greatest work, the "Commentaries," was the product of his vigorous brain many years after the convention esti- mated that the mental processes of the average jurist would be approaching the stagnant stage.
The Constitution forbade the chancellor and judges of the
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court holding any other office than that of delegate to the General Congress. It instituted a Court for the Trial of Im- peachments and the Correction of Errors. The Impeachment Court was similar to that which still exists. The Court of Errors was to consist of the President of the Senate, the Senators, the chancellor and judges of the Supreme Court, or a majority of them. In the event of an appeal from the de- cision of the chancellor, the chancellor was required to in- form the court of the reasons of his decree, but was not to have a voice in the final sentence. The justices of the Su- preme Court, when their decisions were under review, were also deprived of a vote for affirmance or reversal.
The anomaly of the Constitution was the absence of pro- vision for the great courts of original jurisdiction, the Supreme Court and the Court of Chancery. These, as well as the pro- bate courts, the county courts and the Court of Admiralty, while not forgotten come in for only incidental reference in sections limiting the ages of the judges, and so forth, as stated above; the courts were not recreated, but, by inference, simply recognized as existing.
The Constitution adopted the common law of England, the statute law of Great Britain, and the Acts of the Legislature of the colony of New York in force on April 19, 1777, as the laws of the State, declared all grants of land by the King of England after October 14, 1775, void, authorized the Legislature to naturalize all who would take the oath of alle- giance, or otherwise publicly renounced foreign allegiance, and assured to every one the free exercise of religion. It also ordained that, as ministers of the gospel "were dedicated to the service of God and the cure of souls and ought not to be diverted from the great duties of their function," no minister or religion, of any denomination, should be eligible to any civil or military office in the State. This peculiar clause was continued in the Constitution of 1822, but abandoned in 1847. Embodied in the Constitution of 1777 also was the famous Thirty-ninth
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Article of Magna Charta: "No member of this State shall be disfranchised or deprived of any rights or privileges secured to subjects of this State by this Constitution, unless by the law of the land or the judgment of his peers."
One patent defect in the Constitution was its failure to make provision for its own amendment. Like all the early State Constitutions, with the exception of that of Massa- chusetts, it was never submitted to the people, nor ratified by them. It was merely adopted by the Convention, which ordained that it should be the Constitution of the State. Indeed, close analysis of the plan of government devised in those early days for New York shows that the framers of the Constitution, while declaring their profound belief in the in- alienable rights of the individual, were convinced that the government established should so guard the rights of the land-owning class that the lower class, e. g., the people, would be an unimportant factor. The colonial government was a government of the land owner, for in none of the first con- stitutions of the original thirteen States did the people receive any consideration in either branch of the Legislature. The idea crystallized in John Jay's maxim, that those who owned the country ought to govern it, underlay every constitution. The government set up by many a constitution, despite the principle announced in its preamble, was in reality that of a class. Not until about the beginning of Jefferson's adminis- tration did the States commence to broaden the suffrage.
Having completed its work by drafting the Constitution, the convention dissolved on May 13, 1777,12 leaving the gov-
12. The Fourth Provincial Congress assembled at the courthouse in the town of Whiteplains, in the county of Westchester, on the 9th of July, 1776; and the Declaration of Independence having been read and unani- mously agreed to, the title of the body was changed, on the 10th of July, from that of the Provincial Congress of the Colony of New York, to that of The Convention of the Representatives of the State of New York. This body continued to sit at Whiteplains until the 27th of July, when it adjourned to meet at Harlem on the 29th; where it continued until the 29th August ; when it adjourned to Fishkill, leaving the public business, meanwhile, in the hands
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ernment in the hands of the appointed Council of Safety, until such time as the first Senate and Assembly of the State could convene. In due course, and under the supervision of the Council of Safety, elections were held in the Senatorial and Assembly districts. The returns showed that George Clinton had been elected to the Governorship, and in due course he took office. The twenty-four Senators13 began their first ses- sion on September 9, 1777, at Kingston, the President of the Senate being Lieutenant-Governor Pierre van Cortlandt. The first Assembly of seventy members14 began their initial ses-
of the Committee of Safety. The Convention met in the latter place on the 5th of September, in the Episcopal Church, but that building "being very foul with the dung of doves and fowls, without any benches, seats, or other conveniences whatever," it adjourned to the Dutch Church. On the 7th it took a recess until the 14th of the same month, and thence continued in ses- sion until the 5th of October, when it adjourned over to the 15th, and again resigned the care of public affairs to the Committee of Public Safety. It held brief sessions on the 5th and 6th of December, and on the IIth of February, 1777, resolved to adjourn to Kingston. It met at the latter place on the 6th of March, and having formed a State Constitution and provided a temporary form of government by electing a Council of Safety, it finally dissolved on the 13th of May .- "N. Y. Civil List" (1888), p. 390.
13. Members of the Senate-First Session, 1777: September 9 to Octo- ber 7, at Kingston; (a) 1778: January 15 to April 4, June 22-30, at Pough- keepsie. President, Pierre VanCortlandt; Clerk, Robert Benson; Sergeant- at-Arms, Stephen Hendrickson (March II, 1778) ; Doorkeeper and Messen- ger, Victor Bicker. Southern District (b) : Isaac Roosevelt, John Morin Scott, Dr. John Jones (c), Jonathan Lawrence, Lewis Morris, William Floyd, William Smith, Pierre Van Cortlandt (d), Philip Livingston, Jr. (e), Richard Morris (f). Middle District: Henry Wisner, Jonathan Landon, Zephaniah Platt, Arthur Park, Levi Powling, Jesse Woodhull. Eastern District : William Duer (g), Col. John Williams (h), Alexander Webster. Western District: Isaac Paris, Abraham Yates, Jr., Dirck W. Ten Broeck, Anthony Van Schaick, Jellis Fonda, Rinier Mynderse.
(a) Dispersed by approach of enemy.
(b) Appointed by Convention, May 8, 1777.
(c) Vacated from ill health, February 26, 1778.
(d) Chosen Lieutenant-Governor, June 30, 1778.
(e) Died before second meeting.
(f) Appointed by Assembly, March 4, 1778, vice Jones.
(g) Vacated at the end of first meeting.
(h) Expelled for misconduct. See Council Minutes, A. Vol. I, p. 64, Secretary's office, for an account of an attempt to remove him.
14. Members of Assembly-First Session, 1777 : September I to Octo- ber I, at Kingston (a) ; 1778: January 5 to April 4, June 22-30, at Pough-
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sion on September 1, 1777, at Kingston. The first Assembly apportionment was :
Albany, 10 members; Cumberland, 3; Dutchess, 7; Glou- cester, 2; Kings, 2; Montgomery, 6; New York, 9; Orange, 4; Queens, 4; Richmond, 2; Suffolk, 5; Ulster, 6; Washington, 4; Westchester, 6. Total, 70 members.
They preferred to meet, at first, as a convention rather than as an Assembly ; and after electing a Council of Appointment which could legalize the appointments temporarily made by the Council of Safety, the Assembly dissolved the latter emer- gency Council, but in view of the unsettled condition of affairs, civil and military, throughout the State, another Coun- cil of Safety was organized, with full power to act for the State whenever the convention was not in session. The As- sembly, in fact, was more concerned in the military situation
keepsie. Speaker, Walter Livingston; Clerk, John Mckesson. Albany : Jacob Cuyler (b), John Cuyler, Jr., James Gordon, Walter Livingston, Stephen J. Schuyler, John Tayler, William Van Rensselaer, Robert Van Rensselaer, Peter Vrooman, William B. Whiting. Charlotte: John Barns, Ebenezer Clarke, John Rowen, Ebenezer Russell. Cumberland : (No returns). Dutches: Egbert Benson, Dirck Brinckerhoff, Anthony Hoff- man, Gilbert Livingston, Andrew Moorhouse, John Schenck, Jacobus Swart- wout. Gloucester : (No returns). Kings (c) : William Boerum, Henry Williams. New York (c) : Evert Bancker, John Berrien (d), Abraham Brasher, Daniel Dunscomb, Robert Harpur, Frederick Jay, Abraham P. Lott, Henry Rutgers (e), Jacobus Van Zandt, Peter P. Van Zandt. Orange: Jeremiah Clark, John Hathorn, Tunis Kuyper, Roeluf Van Hou- ten. Queens (c) : Benjamin Birdsall, Benjamin Coe, Philip Edsall, Daniel Lawrence. Richmond (c) : Abraham Jones (f), Joshua Mersereau. Suf- folk (c) : David Gelston, Ezra L'Hommedieu, Burnet Miller, Thomas Tredwell, Thomas Wickes. Tyron: Samuel Clyde, Michael Edie, Jacob
G. Klock, Jacob Snell, Abraham Van Horne, Johannes Vedder. Ulster : John Cantine, Johannes G. Hardenburgh, Matthew Rea, Cornelius C. Schoonmaker, Johannis Snyder, Henry Wisner, Jr. Westchester: Thad- deus Crane, Samuel Drake, Robert Graham, Israel Honeywell, Jr., Zebediah Mills, Gouverneur Morris.
(a) Dispersed by the approach of the enemy.
(b) Resigned September 30, 1777.
(c) Appointed by Constitutional Convention May 8, 1777.
(d) Appointed by Senate, vice Rutgers, resigned.
(e) Resigned February 16, 1778.
(f) Seat declared vacant June 8, 1778, for being with the enemy.
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at that time, and passed no laws in its 1777 session. The first statute of the State of New York bears date of February 6, 1778. In that year the Legislative Convention took over the authority of the Council of Safety and ratified all the actions of that body.
FEDERAL UNION.
As to the relation of the State with the Union, or of the State of New York with the United States, it appears that the delegates to the Continental Congress during the year 1777 gave their attention closely to Articles of Confederation, and in November of that year had these articles ready for submission to the Legislatures of the several States. The Continental Congress, in submitting the articles to the local authorities, proposed that the latter, in the event of approval, should "authorize their delegates to ratify the same in the Congress of the United States; which being done the same should become conclusive." Most States responded promptly to this proposal of Congress. The New York Legislature, on February 6, 1778, instructed her delegates to sign, and the Articles of Confederation were signed on behalf of the States on August 8, 1778, by James Duane, Francis Lewis, William Duer and Gouverneur Morris, her representatives in the Con- gress. It appears, however, that the Legislature, like that of more than one other State, was extra-legal in its action, as the people had not authorized the signing. No State Legis- lature had been elected for such a purpose, nor had the ques- tion of their acceptance been submitted for popular approval. But expediency governed most actions at that time, and the people did not analyze as closely as in later years the actions of supposedly popular legislative bodies. In England, for example, the people were satisfied that they had representa- tion in the House of Commons, notwithstanding that several of the populous cities had no member of Parliament at all, while some "pocket boroughs" of but a handful of voters, most of whom were but tools of the aristocracy or gentility,
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elected two or more members. And by the same psychology the average Briton, as well as the English legislators, thought American colonists should be quite satisfied with what action the English Parliament might take in their behalf, for they had as much representation in the House of Commons as the majority of Britons enjoyed. The Americans might well reason as the Britons did, that the members of the lower house acted not only for the little "pocket borough" from which they had been sent, but in the interests of all the people of Great Britain and of her colonies and dependencies. The same elastic reasoning influenced the first State Legislatures of America. The legislators did not think it necessary to submit to the people, for their ratification, the State Constitutions they had devised for their protection and governance; and, seeing that they were acting for the people, they did not con- sider it necessary to learn the common will of the people on the subject before they, as the representatives of the people, pledged their State to a larger confederation. Of the failure of the citizens of the State or of the Union to ratify the Articles of Confederation, it has been said : "It was the part of the people and not of the State legislatures to establish the new gov- ernment; and had the people framed these articles, the act, however unwise, would have been perfectly legal. . . . The whole system must therefore be considered in our political history as a period of interregnum covering the time between the downfall of royal authority under the British Constitution in 1773-1780 and the final establishment of the popular will in its place in 1789, under the American Constitution." The Confederation was "a rope of sand," but a real union of the people, by the people, and for the people of the various States followed in 1787. States' sovereignty was not affected, and while Patrick Henry in declaring himself to be an American, and not a Virginian, proclaimed a vision rather than a fact, the ultimate union of the people of the United States in a general government for certain political purposes was "not an assemblage of States, but of individuals" . .; it was "not
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meant for the States but for the individuals composing them." As Ellsworth reminded the convention, the value and im- portance of the States were not lost sight of. "Without their cooperation it would be impossible to support a Republican Government, over so great an extent of our Country. . The largest States are the worst governed. . . . If the prin- ciples and materials of our Government are not adequate to the extent of these single States, how can it be imagined that they can support a single Government throughout the U(nited) States. The only chance of supporting a General Government lies in grafting it on to that of the individual States." (Hunt, "Madison's Notes," I, 233-234).
The acceptance of the Constitution of the United States by the people of New York State was by no means certain, from the outset of the proceedings. The delegates elected by the people of New York State assembled in convention at Pough- keepsie on June 17, 1788.15 The opposition of the Anti-Fed- eralists to ratification was strong, and to counteract it called
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