USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 18
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15. Delegates to the Convention-President, George Clinton; Seretaries, John Mckesson, Abraham B. Bancker; Doorkeeper, David Barckley. Albany: John Lansing, Jr.,* Henry Oothoudt,* Dirck Swart, Anthony Ten Eyck, Israel Thompson,* Peter Vrooman,t Robert Yates .* Columbia : Mattthew Adgate,* John Bay,* Peter Van Ness .* Dutchess: Jonathan Atkins,* John DeWitt, Gilbert Livingston, Zephaniah Platt, Melancton Smith (a), Jacobus Swartwout,* Ezra Thompson.} Kings: Peter Lef- ferts, Peter Vandervoort. Montgomery: John Frey,* William Harper,* Henry Staring,* Volkert Veeder,* John Winn,* Christopher P. Yates.t New York: James Duane, Alexander Hamilton, Richard Harison, John Sloss Hobart, John Jay, Robert R. Livingston, Nicholas Low, Richard Morris,t Isaac Roosevelt. Orange: John Haring,* Henry Wisner,* John
Wood,* Jesse Woodhull. Queens : Stephen Carman, Samuel Jones, Nathaniel Lawrence, John Schenck. Richmond: Abraham Bancker, Gozen Ryerss. Suffolk: Jonathan N. Havens, David Hedges, Henry Scudder, John Smith, Thomas Tredwell .* Ulster: John Cantine,* Ebenzer Clark,* George Clinton,t James Clinton,* Cornelius C. Schoonmaker,* Dirck Wyn- koop .* Washington and Clinton : Albert Baker,* David Hopkins,* Ichabod Parker,* John Williams .* Westchester : Thaddeus Crane, Richard Hat- field, Philip Livingston, Lewis Morris, Lott W. Sarls, Philip Van Cort- landt.
In the above list of members, those who voted against the Constitution are marked thus (*) ; those who did not vote, thus (+).
(a) Resided in New York City.
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forth all the genius, skill and energy of Alexander Hamilton. Governor George Clinton led the opposition, and the conven- tion was so evenly divided that ratification was obtained by the narrow margin of three votes. Before the New York Conven- tion reached this decision, the new Union was an accomplished fact, for ten States had already approved of the Constitution, and ratification by nine only was needed to carry the new general gevernment out of the realm of theory into that of fact. New York, therefore, had to decide whether to enter the Union or stay outside. The Anti-Federalists had at first pro- posed a conditional ratification, their terms being the incor- poration in the new Constitution of a series of amendments constituting a bill of rights. When it became evident that the new government would be a success without New York, the delegates decided to vote for ratification and to change their conditional acceptance into expression of a hope that their suggestions would be adopted. Two of the proposals which emanated from New York were never accepted. The first ten amendments embody suggestions from several of the States, and upon the resolution of the first Congress, on Sep- tember 25, 1789, these were submitted to the members of the Union and were ratified by a sufficient number of States on or before December 15, 1791. New York was the eleventh State to enter the Union, and was the eighth to ratify the ten amendments.
PROGRESS OF STATE UNDER CONSTITUTION OF 1777.
Having, in the foregoing, stated substantially the initial relation of State to Nation, we will return to the direct sub- ject of this chapter, the Constitutional History of the State.
One of the first acts of the New York Legislature in 1778 was a measure which required the taking of an oath of al- legiance to the new State government by all office holders, including all officers of courts. On October 9, 1779, an act then passed required all attorneys, solicitors and counsellors-at-law to produce upon demand "certificates of their attachment to
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the Liberties and Independence of America," under penalty of suspension from practice; and on November 20, 1781, near the close of the war, a law was passed providing for the ad- ministration of a test oath, and forbidding all members of the profession who refused to take it from pursuing their voca- tion. These stringent measures, which must undoubtedly have benefited lawyers able to prove their loyalty, remained in force until April 4, 1786, when all disabilities upon Tory practitioners were removed.
The colonial laws of New York which, according to the Constitution of 1777, were made an integral part of the com- mon law of the State, acquired new importance and under- went various revisions. The earliest statutes of the State were revised and collected by direction of the Legislature, and were published in 1789 by the revisers, Samuel Jones and Richard Varick. A new revision was undertaken in 1801 by Justice James Kent and Justice Jacob Radcliff. In 1813 a revision was made by William P. van Ness and John Wood- worth, known as the Revision of 1813. This revision, which is in two volumes contains certain important ordinances of the Governor and Council of the colony, including the Charter of Liberties and Privileges of October 30, 1683, and also the Articles of Capitulation signed by Nicolls on behalf of the Duke of York upon the surrender of New Netherland to Eng- land. None of these revisions appear to have been complete.
In 1784 Governor Clinton invited the attention of the State Legislature to plans for the education of the people. There were some persistent advocates of the organization of a common school system, but the first measures taken were in connection with the higher schools. On May 1, 1784, the State Legislature passed an act establishing a Board of Regents16 for the University of the State of New York, and
16. First Board of Regents-(Under the Act of May, 1784) : Gov, ernor, ex-officio; Lieutenant-Governor, ex-officio; Secretary of State, ex-officio; Attorney-General, ex-officio; Speaker of Assembly, ex-officio;
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at the same time changed the name of King's College to Columbia College. The Board of Regents numbered twenty- four by the Act of May I, 1784. These were all men of high social standing and culture, "patrons of learning," and while they were fully cognizant of the importance of the higher grades of study, they were fully convinced of the vital part a common-school system would have in the develop- ment of the State. The Board of Regents from that time to the present has had a fostering supervision of all the develop- ment, which has been great, of elementary, intermediate and collegiate education within the State of New York. The first chancellor of the University of the State of New York was George Clinton, who presided by virtue of his status as Gov- ernor. The original Board of Regents was enlarged from twenty-four to thirty-three "citizen" members17 in November, 1784; and in addition there were thirty-one ex officio members. The board was empowered "to found colleges and academies in any part of the State." Law schools, therefore, have come within the supervision of the Regents since the first decade of the State and the latter give certificates on subjects required as preliminary to legal studies. The Board of Regents, as consti- tuted in 1784, soon proved to be unwieldy, and in 1787 reor-
Mayor of New York, ex-officio Mayor of Albany, ex-officio; Henry Brock- holst Livingston, Robert Harpur, Walter Livingston, Christopher Yates, Anthony Hoffman, Cornelius Humfrey, Lewis Morris, Phillip Pell, Jr., Henry Wisner, John Haring, Christopher Tappen, James Clinton, Christo- pher P. Yates, James Livingston, Abraham Bancker, John C. Dongan, Matthew Clarkson, Rutger Van Brunt, James Townsend, Thomas Law- rence, Ezra L'Hommedieu, Caleb Smith, John William, John McCrea.
17. Additional Regents-(Under Act of November, 1784) : John Jay, Samuel Provoost, John H. Livingston, John Rogers, John Mason, John Gano, John Daniel Gros, Johan Charles Junze, Joseph Deleplain, Gershom Seixas, Alexander Hamilton, John Lawrence, John Ruthurford, Morgan Lewis, Leonard Lispenard, John Cochran, Charles McKnight, Thomas Jones, Malachi Treat, Nicholas Romain, Peter W. Yates, Matthew W. Visscher, Hunlock Woodruff, Jeorge J. L. Doll, John Vanderbilt, Thomas Romain, Samuel Buel, Gilbert Livingston, Nathan Kerr, Ebenezer Lick- wood, John Lloyd, Jr., Hermanus Garrison, Ebenezer Russell.
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ganization was effected, a board of nineteen Regents, 18 besides the ex officio members, taking the place of the board of thirty- three.
The Constitution of 1777, except as modified in 1801, re- mained in force for more than forty-four years; and the State had phenomenal growth under it, despite its defects, which were in some respects serious, particularly in the functioning of the Council of Appointment and the Council of Revision.
In April, 1801, the Legislature passed an act by which it proposed to the citizens of the State to elect by ballot dele- gates to meet in convention,
"for the purpose of considering the parts of the constitution of this State respecting the number of Senators and members of Assembly in this State and with power to reduce and limit the number of them as the said Convention might deem proper ; and also for the purpose of considering and deter- mining the true construction of the Twenty-third article of the Constitution of this State relative to the right of nomination to office."
The people selected delegates to the convention and the convention, without submitting any subject to the people for ratification, modified the Constitution in the following par- ticulars :
It declared that the number of members of the Assembly thereafter to be elected should be one hundred and should never exceed one hundred and fifty, and that the Legislature at its next session should apportion the said one hundred mem- bers of the Assembly among the several counties of the State
18. Regents of the University from 1787-John Rodgers, appointed April 13, 1787; Egbert Benson, April 13, 1787; Philip Schuyler, April 13, 1787; Ezra L'Hommedieu, April 13, 1787; Nathan Kerr, April 13, 1787; Peter Sylvester, April 13, 1787; John Jay, April 13, 1787; Dirck Romeyn, April 13, 1787; James Livingston, April 13, 1787; Ebenzer Russell, April 13, 1787; Lewis Morris, April 13, 1787; Matthew Clarkson, April 13, 1787; Benjamin Moore, April 13, 1787; Eilardus Westerlo, April 13, 1787; Andrew King, April 13, 1787; William Linn, April 13, 1787; Jonathan G. Tompkins, April 13, 1787; John McDonald, April 13, 1787; Frederick William Baron de Steuben, April 13, 1787; also ex-officio members.
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as nearly as possible, according to the number of electors to be found in each county, as shown by the census directed to be taken that year. It fixed the membership of the Senate per- manently at thirty-two and, as the Senate then contained a larger number of members, make appropriate provisions for vacating the seats of certain Senators. It also ordained that the Assembly should be increased at the rate of two members a year until the maximum number (150) should be attained, and made provisions for future apportionments of Senators and members of Assembly.
The only other purpose for which the convention had been summoned was to determine the true construction of that article of the first Constitution, which vested in the Council of Appointment the power of nominating and appointing most of the officials throughout the State.
The precise question submitted to the convention was :
"Does the Constitution clothe the Governor with the sole right of nomination, or is that prerogative vested concurrently in all the members of the Council?"
The language of the article is certainly obscure, but for seventeen years the practice had been to consider the right of nomination as exclusively vested in the Governor, with the right of confirmation in the whole Council. But in 1794, a vacancy occurred in the Supreme Court. George Clinton, a Republican, was the Governor of the State. A majority of the Council were Federalists, and the Federalists were anxious to bestow the office on a judge of the Federalist faith. Accord- ingly, one of the Federalist members of the Council nomi- nated Egbert Benson to the vacant office, and his appointment was carried by a majority vote, despite Clinton's protest that the power to nominate belonged exclusively to himself.
After John Jay became Governor of the State the com- plexion of the Council was so changed that the Republicans had a majority, and Jay, a Federalist, found himself in the same predicament in which Governor Clinton had been placed.
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De Witt Clinton and Ambrose Spencer, then members of the Council and in political accord, warmly insisted upon their right to nominate, which Jay as vigorously denied. These differences of opinion became so bitter and each side clung so tenaciously to its opinion, that Jay broke up the Council and appealed to the Legislature to determine the meaning of the Constitution, but that body was either unable or unwilling to do so. DeWitt Clinton was one of the delegates to the con- vention of 1801 and there defended his action in the Council of Appointment, and won a majority of the convention to his views. Daniel D. Tompkins, then a young man, was also a delegate, but he argued that the exclusive power of nomina- tion was in the Governor. Had the construction that the Governor alone was empowered to nominate been adopted, responsibility for bad nominations would have been fixed upon him, but the new interpretation exonerated him from all responsibility, for a nomination and appointment could be obtained not only without his aid, but even against his protest.
Armed with this construction of the Constitution, the Council of Appointment proceeded to an even more tyrannical use of its power. The Constitution provided that new com- missions should be issued to the judges of the County Courts other than to the first judge, and to the justices of the peace, once at least in every three years. The Council now con- cluded that new commissions might issue oftener, at its pleas- ure, because the maximum limit imposed by the Constitution was three years. The result of this construction was that these judicial officers were removed as often as the political complexion of the Council underwent a change, an event which might happen every year.
The vast powers of the Council of Appointment were too often employed for personal or party advantage, regardless of the public welfare. When the Republicans predominated
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in the Council, they made a "clean sweep" of Federalists ; and the Federalists turned out all Republicans as soon as the Council fell into their hands. The whole official machinery of the State was controlled at Albany, and every year witnessed a disgraceful scramble for office, the influence of which was felt from the capital to the remotest parts of the State. The irresponsible and despotic power of the Council converted it into a great central machine, in absolute command of all political patronage, with its agents in every county. Those, who, like DeWitt Clinton, made the most remorseless use of the machine, suffered most from it when it fell into the hands of their political enemies. Political enmity too often led to personal hatreds, and, in more than one instance to deadly feuds.
CHAPTER XXIX. CONSTITUTIONAL HISTORY. The Convention of 1821.
The desire to abolish the Council of Appointment was one of the chief reasons for calling the Convention of 1821. Pub- lic opinion had for several years demanded the abolition of this Council, and of the Council of Revision, and there grew up concurrently a strong desire for the extension of the right of suffrage. The Legislature of 1820, accordingly, adopted a bill calling a convention and providing for the election of dele- gates.1 The bill was vetoed by the Council of Revision, Chan- cellor Kent writing the opinion on the ground that a conven- tion could not constitutionally be called until the people had first decided that it should be held, and that the bill was also defective in not directing the separate submission to the people of all amendments which the convention might propose, the
I. Delegates to the Constitutional Convention of 1821-President, Daniel D. Tompkins; Secretaries, John F. Bacon, Samuel S. Gardiner ; Sergeants- at-Arms, Henry Freyer, Louis S. Le Couteuix; Doorkeepers, Henry Bates, John Bryan, Richard Ten Broeck. Albany : James Kent,* Ambrose Spencer,* Stephen Van Rennselaer,* Abraham Van Vechten .* Allegany and Steuben : Timothy Hurd, James McCall. Broome: Charles Pum- pelly (a). Cattaraugus, Chautauque, Erie and Niagara : Augustus Porter, Samuel Russell. Cayuga : David Brinckerhoff, Rowland Day,* Augustus
F. Ferris. Chenango: Thomas Humphrey,* Jarvis K. Pike, Nathan Taylor. Clinton and Franklin: Nathan Carver. Columbia : Francis Sil- vester,* William W. Van Ness,* Jacob R. Van Rennselaer,* Elisha Wil- liams .* Cortland : Samuel Nelson. Delaware : Robert Clark,* Erastus
Root. Dutchess : Elisha Barlow, Isaac Hunting, Peter R. Livingston, Abraham H. Schenck, James Tallmadge, Jr .* Essex: Reuben Sanford. Genesee : David Burroughs, John Z. Ross, Elizur Webster. Greene : Jehiel Tuttle, Alpheus Webster .* Herkimer : Sanders Lansing, Richard Van Horn,* Sherman Wooster. Jefferson: Hiram Steele, Egbert Ten Eyck. Kings: John Lefferts. Lewis: Ela Collins. Livingston: James Roseburgh. Madison: Barak Beckwith, John Knowles, Edward Rogers. Monroe: John Bowman. Montgomery: William I. Dodge,* Howland Fish, Jacob Hees,* Philip Rhinelander, Jr.,* Alexander Sheldon. New York: Jacobus Dyckman, Ogden Edwards, James Fairlie, John L. Law- rence, William Paulding, Jr., Jacob Radcliff, Nathan Sanford, Peter
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bill providing only for popular ratification or rejection as a whole.
On March 13, 1821, an act was passed, recommending a convention. The act provided that all free male citizens of twenty-one years and upwards who were freeholders or who paid taxes, or were members of the State militia or a volun- teer corps, together with such as were exempt from taxation or militia duty, or who had been assessed or who had com- muted for work on the public highways, should be allowed to vote by ballot for three days in the town or ward of actual residence for delegates. The delegates were to be chosen in the same way as members of the Assembly, from the cities and counties of the State. All voters for delegates were to be eligible. The convention was to submit its proposed amend- ments to the decision of the citizens of the State entitled to vote for delegates together or in distinct propositions as the convention should deem expedient.
The law, it will be perceived, opened the convention to a
Sharpe, Peter Stagg, Peter H. Wendover, Henry Wheaton. Oneida and part of Oswego: Ezekiel Bacon, Samuel Sidney Breese,* Henry Hunting- ton, Jonas Platt,* Nathan Williams. Onondaga and part of Oswego : Victory Birdseye, Amari Case, Asa Eastwood, Parley E. Howe. Ontario : Micah Brooks, John Price,* David Sutherland,* Philetus Swift, Joshua Van Fleet. Orange: John Duer, John Hallock, Jr., Peter Milliken, Benjamin Woodward. Otsego: Joseph Clyde, Ransom Hunt, William Park, David Tripp, Martin Van Buren. Putnam: Joel Frost. Queens : Elbert H. Jones,* Rufus King, Nathaniel Seaman. Rensselaer: Jirah Baker, David Buel, Jr., James L. Hogeboom, John Reeve, John W. Woods. Richmond : Daniel. D. Tompkins .* Rockland: Samuel G. Verbryck. St. Lawrence :
Jason Fenton. Saratoga : Salmon Child, John Cramer, Jeremy Rockwell, Samuel Young. Schenectady: John Sanders,* Henry Yates, Jr. Scho- harie: Olney Briggs, Asa Starkweather, Jacob Sutherland. Seneca : Robert S. Rose, Jonas Seely. Suffolk : Usher H. Moore, Ebenezer Sage, Joshua Smith. Sullivan and Ulster : Daniel Clark, Jonathan Dubois, James Hunter, Henry Jansen (b). Tioga : Matthew Carpenter. Tompkins : Richard Smith, Richard Townley. Warren and Washington: Alexander Livingston, Nathaniel Pitcher, John Richards, William Townsend, Melanc- ton Wheeler. Westchester : Peter A. Jay,* Peter J. Munro, Jonathan Ward.
Those Marked thus (*) did not sign the Constitution.
(a) Resided in Nichols, Tioga County.
(b) Died suddenly in the hall of the Capitol, September 14, 1821.
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larger number of citizens than were entitled to the suffrage under the Constitution of 1777.
Four fundamental changes were wrought by the Conven- tion of 1821: I, abolition of the Council of Appointment; 2, abolition of the Council of Revision ; 3, extension of the elec- tive franchise ; 4, increase of the Governor's powers.
First-The project of abolishing the Council of Appoint- ment met with no opposition in the Convention of 1821. The report of the committee upon the Council shows how enor- mous was its patronage. Eight thousand two hundred and eighty-seven military and six thousand six hundred and sixty- three civil officers held their commissions from it, and in most instances at will.
Second-The Council of Revision was abrogated. This Council became unpopular during the War of 1812, for while the two Houses of the Legislature sought to uphold the arm of the President and of Congress, the chancellor and judges of the Council were in sympathy with the Federalists and op- posed to the war. The opprobrium which the vetoes of the Council during this period brought upon it cannot be better described than in the language of Martin Van Buren, in an address to the Convention of 1821 while the veto clause was under debate:
"The scenes which passed within these walls during the darkest period of the late war cannot be forgotten. It is well known that the two houses of the Legislature were divided ; while, in the one house we were exerting ourselves to provide for the defense of the country, the other house was preparing impeachments against the executive for appropriating money without law for the defense of the State. But the effort was unavailing. An election intervened and the people, with hon- orable fidelity to the best interests of their country, returned a Legislature ready and willing to apply the public resources for the public defense. They did so. They passed a variety of acts called for by the exigencies of our country. But from the Council of Revision were fulminated objections to the
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passage of those acts-objections which were industriously circulated throughout the State to foment the elements of fac- tion. Beyond all doubt at that moment was produced the sentiment which has led to the unanimous vote to abolish the council. The legislature had exerted themselves in the public defense ; and the object of these objections was to impress the public mind with a belief that their representatives were tread- ing under foot the constitution and laws of their country. The public voice on that occasion was open and decided ; and it has ever since continued to set in a current wide and deep against the Council."
Mr. Duer, another member of the convention, described it as "an executive council of which the members hold their seats for life, and possesses an efficient control over the acts and pro- ceedings of your legislature."
Third-Next to the abolition of the Council of Appoint- ment, the most important service rendered by the Convention of 1821 was an extension of the right of suffrage. This was accomplished, first by lessening the property qualifications established by the old Constitution, and, secondly, by making the qualifications of electors of Senators and Governor the same as those of electors of Assemblymen.
The convention followed close upon the settlement of the controversy over the admission of Missouri into the Union, and a determined movement was made by some of the dele- gates, led by Peter A. Jay to extend the right of suffrage to negroes upon the same terms as to white men. As this propo- sition met with great opposition, the decision of the conven- tion was a compromise. All male citizens of the age of twenty-one years, inhabitants of the State for one year preced- ing an election and for six months residents of a town or county, who within the year had served in the militia or paid a tax to the State or county upon real or personal property, were endowed with the right of suffrage. But it was provided that no man of color should have a vote who had not been a citizen of the State for three years and for one year next pre-
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ceding any election, and who was not the owner of a freehold estate of the value of two hundred and fifty dollars free and clear, upon which he had been rated and paid taxes.
In 1826 all property qualifications were abandoned, except in the case of colored citizens. It is a striking fact that, had the views of some members of the Convention of 1821 pre- vailed, and colored citizens been denied the suffrage altogether, a privilege exercised under the old Constitution by about thirty thousand colored citizens would have been taken away. Happily, no such injustice was done. As Mr. Jay well said, the convention had been sunmmoned to extend the franchise- not to disfranchise anybody.
Under the first Constitution the State presented the anomaly of colored men held in slavery and of free colored persons exercising the right to vote. Such an anomaly could not long be maintained, and before many years the Legisla- ture enacted a law giving freedom to every child born of a slave within the State after July 4, 1799, and to every child born after that date elsewhere, but brought within the State by any person intending permanently to reside within the State. In 1817 a statute was passed declaring that every negro or mulatto born within the State before July 4 1799, should be free after July 4, 1827.
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