USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 19
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One of the great battles in the Convention of 1821 was over the proposition to make the qualifications of electors of the Senate and Governor the same as those of the electors of the Assemblymen. In the first convention the great landed proprietors were all represented, and the Constitution which was then framed retained the suffrage in the hands of the owners of large estates and of their tenants. As the landed interest was all powerful in the election of Senators and of the Governor and as it had a predominant influence in the election of Assemblymen, the Council of Appointment was naturally subservient to it. It was thus able not only to con- trol the appointment of justices and the political patronage of
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the State, but also legislation adverse to its interests. As public opinion in 1821 required an extension of the suffrage, the landed proprietors foresaw that they would lose control of the Assembly, but they desired to retain their influence in the Senate. Chancellor Kent and Judge Spencer were the chief advocates of a restricted suffrage, and their views were ably and successfully contested by Erastus Root, Martin Van Buren and others. Had the election of Senators been kept in the hands of the landed class, the tendency would have been strong to the enactment of class legislation and the estab- lishment of class influence in the State. Chancellor Kent and Judge Spencer were unquestionably honest in their views; but, while their dislike of universal suffrage was unwarranted, it must be admitted even by the warmest friends of unre- stricted suffrage that much of their fear was justified, and that we have yet to learn, particularly in cities, how to secure to the intelligent voter that proportion of influence which he ought to exercise.
Fourth-Another great achievement of the Convention of 1821 was the modification of the position of Governor. There is the greatest difference between the powers of the Governor under the old Constitution and under that of 1822. Under the first Constitution as modified by the amendments of 1801, as also under the early constitutions of our sister States, he was divested of almost every power. Under the Constitu- tion framed in 1821 he was invested with the greatest powers which have ever been exercised by persons holding the office of Governor, during the entire history of the State.2 He was
2. Four of the States-Delaware, North Carolina, Ohio and Rhode Island-have never given their Governor the veto power. In eight others, a very limited veto power has been given, which may be overridden by a majority of the whole number elected to each house. These are as follows, the year in which the veto was granted being added: Alabama, 1819; Arkansas, 1836; Connecticut, 1818; Indiana, 1816; Kentucky, 1799; New Jersey, 1844; Vermont, 1836; West Virginia, 1872. In twenty-four others, a two-thirds vote is required to override the veto: California, 1849; Colo- rado, 1876; Florida, 1865; Georgia, 1789; Illinois, 1870; Iowa, 1846;
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then given a veto upon all legislation and, subject to the con- firmation by the Senate, the right to appoint a large proportion of State officials, including all judicial officers except justices of the peace. He was also clothed with the power to remove certain elective officers.
The veto and appointing power which was thus vested in the Governor rendered him so much more of a factor in pol- itics than he had been under the old Constitution, that the convention deemed it necessary to shorten his term of office so as to increase his responsibility to the electors of the State. Advocates of a three-years term were not wanting, but the more conservative members, at the head of whom was Van Buren, favored a two-years term on the ground that it gave the Governor sufficient time to qualify himself for the admin- istration of his office, and at the same time held him suf- ficiently accountable to the people. Under the Constitution of 1777 any person could be Governor if he were a freeholder. The Convention of 1821 retained the freehold restriction, but limited the office to citizens of the United States of the age of
Kansas, 1859; Louisana, 1812; Maine, 1820; Massachusetts, 1780; Michi- gan, 1835; Minnesota, 1857; Mississippi, 1817; Missouri, 1875; Nevada, 1864; New Hampshire, 1792; New York, 1821; Oregon, 1857; Pennsyl- vania, 1790; South Carolina, 1865; Tennessee, 1870; Texas, 1836 (Repub- lic), 1845 (State) ; Virginia, 1870; Wisconsin, 1848. In Maryland (1867) and Nebraska (1875) a three-fifths vote is requisite. But one State (Ken- tucky) has changed from a two-thirds vote (1792) to a majority vote (1799). The following States, now requiring a two-thirds vote, as above, required only a majority vote at first : Florida, 1838; Illinois, 1848; Mis- souri, 1820; Connecticut, Maryland, South Carolina, Tennessee, Virginia and West Virginia were without the veto power until it was granted in the years mentioned above. In Nebraska a two-thirds vote only was needed from 1866 until 1875. In Illinois, 1818-1848, the veto power was given to the Governor and Supreme Court judges, to be reversed by a majority vote ; and in New York, 1777-1821, the Governor, Chancellor and Supreme Court judges, to be reversed by a two-thirds vote. In Vermont, 1786-1836, a suspensory power until the following session was given to the Governor and Council. In the States the tendency generally has been to increase the strength of the veto power by making the votes of two-thirds of all the members elected requisite to override it, and further, by giving the power to veto single sections of appropriation bills. (Article on "Veto" in Lalor "Cyclopædia, III," 1067.)
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at least thirty years, residents within the State at least five years prior to the election. But absence from the State during the period on business of the State or the United States was not to render a candidate ineligible.
In various other particulars, the Constitution departed from the first form of government. The State was subdivided into eight Senatorial districts, because the old districts were so large that their inhabitants were unable to vote intelligently for Senators, inasmuch as it had often happened that men who were not well known in their communities received nomina- tions, and in some instances votes sufficient to elect were cast under a misapprehension as to the identity of the candidate. But, as formerly, all Senators were required to be freeholders.
The convention enlarged the judicial force of the State, increasing the number of justices of the Supreme Court. It further provided for the subdivision of the State into not less than four, nor more than eight circuits, and for the appoint- ment of Circuit judges by the Governor, subject to confirma- tion by the Senate, who were to hold their offices by the same tenure as justices of the Supreme Court, and who were clothed with the powers of Supreme Court justices at chambers, and at nisi prius and in Courts of Oyer and Terminer. When the first Constitution was framed, the English laws of criminal libel, which then became the law of the State, was extremely narrow, making it the province of the jury to ascertain whether the so-called libel had been published, and leaving the ques- tion of the fact of libel to the Court. Through the efforts of Erskine, Fox and Pitt the English law had been ameliorated in 1792. In the case of the People v. Croswell, in which the defendant was indicted for a libel upon Thomas Jefferson, President of the United States, two of the judges-Kent and Thompson-considered that the truth should be received in evidence, and that the jury should judge both of the facts and the law. The contrary view was maintained by Chief Justice Morgan Lewis and Justice Brockholst Livingston. Kent's
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learned and exhaustive opinion shows that before the days of the Star Chamber the common law rule accorded with the view so ably contended for by Hamilton of counsel for the de- fendant. There were, said Kent in the Convention of 1821, only four judges on the bench at the time ; and, the court being equally divided, the matter rested there, the defendant going unpunished. In April 1804, the Legislature sent to the Coun- cil of Revision a bill framed along the lines of Kent's opinion in the Croswell case. The Council objecting to parts of the bill, William W. van Ness, later a justice of the Supreme Court, introduced a new bill which passed both houses unanimously and became law on April 6, 1805. This declared that on the trial of every indictment or information for libel, the jury should determine the law and the fact under the direction of the court in like manner as in other criminal cases, and should not be directed to find the defendant guilty merely on proof of publication, and that in every such prosecution, the de- fendant might give the truth in evidence as a defense. The Convention of 1821 incorporated the substance of the statute into the organic law of the State. This was was one of the last causes argued in banc by Hamilton. Of his presentation, Kent, in the Convention of 1821, declared that a more able and eloquent argument was perhaps never heard in any court. In closing his opinion of the Croswell case, he adopted as per- fectly correct "the comprehensive and accurate definition of one of the counsel at the bar (General Hamilton) that the lib- erty of the press consists in the right to publish, with impunity, truth with good motives and for justifiable ends, whether it respects government, magistracy, or individuals."
The convention also rectified an omission in the first Con- stitution by making specific provision for the amendment of the new. Only one mode of amendment, however, was then adopted. Amendments were first to be approved by a majority of the members elected to each of the two Houses and then agreed to by two-thirds of all the members elected to each
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House of the succeeding Legislature. They were then to be submitted to the electors qualified to vote for the members of the Legislature and, when ratified by a majority of the electors voting thereon, were to become part of the constitution.
Section 9, of Article VII, of the new Constitution made the consent of two-thirds of the members elected to each branch of the Legislature essential to the pasage of every bill appro- priating the public moneys or property for local or private purposes, or creating, continuing, altering or renewing any body politic or corporate.
This section records the first public victory in the State over the advocates of exclusive franchises to individuals or corporations. The triumph became more complete when pro- visions were inserted in the Constitution of 1846 requiring banking and other private corporations to be organized under general laws, and forbidding the Legislature to create cor- porations by special act, or for other than municipal purposes.
At common law the exercise of banking powers was a universal right. The common law continued in existence in the State of New York until 1804. Between the date of the adoption of the first Constitution and that year, very few bank charters were granted, owing to the reluctance of Legisla- tures to consent to the issuance of paper money, the evils of which had caused much suffering during the Revolutionary period. In 1804 the Legislature of New York made banking a franchise or privilege dependent upon its grant; and this un- fortunate policy was continued in the State until the year 1838, when the incorporation of banks was provided for by general law.
While banking continued to be a Legislative privilege, and, even before the act of 1804, when special charters were sought from the Legislature, so bitter was the spirit of faction that charters were often refused to applicants whose politics dif- fered from the politics of the majority of the Legislature. Federalists refused Republican applications, and Republicans
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retaliated in their turn. In 1799, the Manhattan Company, whose promoters were Republicans, obtained a charter, osten- sibly as a water company, but in reality merely for the pur- pose of carrying on a banking business. Increased water fa- cilities were then sorely needed in the city of New York, and the incorporators presented at Albany a charter, skilfully de- vised by Aaron Burr, containing one subsidiary sentence, which gave the company permission to invest its surplus cap- ital in any business not inconsistent with the Federal or State Constitutions. Had the applicants boldly requested a bank charter their request would have been denied.
A few years later, a company of Federalists sought to charter the Merchants' Bank, but the Legislature refused to grant a charter, on the ground that the concession would be injurious to the Republican party. Such a proscriptive abuse of legislative functions impelled capitalists to the employment of corruption as the only means left open for the attainment of their aims. Where partisanship and faction so degrading were exhibited, it was not surprising that bribery was found to be the only efficacious means of extorting favors from political ad- versaries. In 1812, the promoters of the Bank of America, who were Federalists, sought a franchise. The Republicans in the Legislature opposed it on the plea that there were too many banks in New York City ; but as the bank's agents had, by judicious distribution of stock managed to get a bill through the Legislature despite charges of fraud, and, as it was popularly known that a majority of the Council of Re- vision, being Federalists, would approve the bill, Governor Tompkins prorogued the Legislature, alleging as the reason of his remarkable action, that it was openly asserted that legis- lators had been bribed to vote for the bill. The factions and corruptions engendered by controversies over bank charters led the Convention of 1821 to adopt the section which has been cited, but, as Hammond says, the provision failed to remedy
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the evil ; it simply required capitalists to buy up a larger num- ber of members.
The Convention of 1821 was an unqualified victory for popular rights. It sensibly impaired, although it did not destroy, the system of central government established by the old Constitution. It enfranchised a large and deserving class of citizens ; it made the Governor a real power and differen- tiated the government more clearly into three departments, executive, legislative and judicial, all of which were fused under the first charter. It rendered the Senate and the Gov- ernor agents of the people as fully as the Assemblymen. Although it retained the framework of the old judicial fabric, it increased the judicial force. It also incorporated into the organized law a fuller bill of rights. For the omnipotent Council of Appointment, it substituted a somewhat complex system of appointments, which had, at least, the merit of dis- persing power. The secretary of State, comptroller, treasurer, attorney-general, surveyor-general, and commissary-general were appointed by the Senate and Assembly, either by sep- arate agreement or on joint ballot. Mayors of cities were chosen by the municipal Common Councils. Justices of the peace became entitled to their commissions by analogous ac- tion of Board of Supervisors and county judges, although in a few years (1826) these officers were made elective. Clerks of courts, other than county clerks, were appointed by the judges of their respective courts, while sheriffs and county clerks were chosen by the electors of their respective counties, but were removable by the Governor, after an opportunity to be heard in their own defence.
The Constitution submitted by the delegates was adopted by the people, as an entirety, in February, 1822.
While but two amendments had been made to the Constitu- tion, ten separate propositions of amendment to the second Constitution were at different times submitted by the Legisla- ture to the voters of the State, six of which were adopted.
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The most important were the amendment of 1826, abolishing all property qualifications for white voters; the amendment of 1834, giving the electors of the city of New York qualified to vote for other municipal officers the right to vote for mayor, thus taking away from the Common Council of that city the appointment of that official ; and the extension in 1838 of a like privilege to the voters in all the cities of the State.
The subject of the appointment of mayors of cities was brought before the Legislature in 1831, and motions were made in the Senate favoring the appointment of these officials by the Governor, by the Governor and Senate and also by the Legislature. William H. Seward, who was then a member of the Senate from the old Seventh District, vigorously op- posed all these plans and argued that the qualified voters of the city of New York should elect the city's chief magistrate, and that a like right should be extended to the people of all the cities of the State.
The Constitution of 1822 remained in existence for twenty- four years. During a large part of the time, the State enjoyed almost unexampled prosperity. Men of great ability and sa- gacity, most of whom afterwards acquired national reputation, filled its gubernatorial chair. Its judiciary numbered some of the most exalted names in the annals of its jurisprudence. The advancement of the State was, however, largely due to its canal system, which invited immigration, augmented the rev- enues of the State, imparted value to the land in its middle tier of counties, and summoned villages and towns into life. The Appalachian Range, which in the States south of New York raises a barrier between the Atlantic Ocean and the Mississippi Valley, falls away to a level between Lake Erie and the Hud- son River. That nature had made it possible for the Great Lakes and the Hudson River to be united by a canal through New York State, had impressed far-seeing men even in the eighteenth century, but it was reserved for De Witt Clinton to give practical form to their ideas. Scarcely had the Erie
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Canal become an accomplished fact before the idea of lateral canals intersecting the chain of lakes in the centre of the State was conceived, and acts were passed for their construction. After ten years of use it was found that the Erie Canal needed enlargement and improvement; and, in 1835, a law went into effect which authorized the Canal Commissioners to make im- provements in the Canal, whenever and to such extent as they should deem desirable. The act clothed the commissioners with great and perhaps questionable powers, but it was shorn of much of its danger, as well as its utility, by the clause which forbade the commissioners contracting for any improve- ments the cost of which could not be defrayed out of the sur- plus revenues of the canals. As the work of enlargement au- thorized by this act did not proceed with sufficient rapidity to satisfy public demands, the Legislature of 1838 took the sub- ject under consideration. The canal commissioners reported to the Assembly of that year that, by an expenditure of about $12,500,000, the canal could be made seventy feet in width and seven feet in depth and supplied with adequate gates and locks. The Legislature thereupon passed a bill which Governor Marcy approved, authorizing the commissioners to borrow $4,000,000 on the credit of the State for the enlargement of the canal. The act further directed the commissioners to prepare and put under contract, with as little delay as possible, such portions of the work as were mentioned in their report to the Assembly, and also such other portions as, in the opinion of the canal board, would best secure the completion of the entire enlarge- ment with double locks on the whole line. Thus empowered, the canal commissioners made contracts, pledging the State treasury to an expenditure of $12,500,000, nearly all of which sum was made payable before May 1, 1842. Laws were also passed during these years for improvements in the lateral canals, and the public credit was liberally extended to various railroad enterprises, among others, to the amount of $3,000,000, to the Erie Railroad.
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In the following year (1839), the canal commissioners were asked to revise their estimates and report again to the Legislature. It was then discovered that the expenditure nec- essary to complete the improvements on the scale contem- plated in their previous report had risen to $23,000,000-double the original estimates; and that, with the other public im- provements undertaken or assisted by the State, the State had involved itself in a possible indebtedness of $30,000,000. These facts were adverted to by Governor Seward, in his an- nual message to the Legislature in 1840, 1841, and 1842, but, true to the policy of internal improvements, of which he was a life-long advocate, the Governor argued in favor of continu- ing the work which had been undertaken, but of keeping the expenditures therefor within an amount the interest upon which could be paid from the surplus revenues of the canals.
These events followed shortly upon the commercial panic of 1837. The credit of most of our sister States was then at the lowest ebb, and foreign confidence in all American securi- ties was much weakened by the policy of partial repudiation which had been adopted in some of the States. The revelation of the canal commissioners had a disastrous effect upon the credit of New York. Its stocks rapidly depreciated, money could not be borrowed for public uses for long terms, and it was with great difficulty that temporary loans could be pro- cured to meet even the most pressing emergencies.
In 1842 the Democrats secured the ascendency in the State Legislature. The policy of their leaders was to retrieve the credit of the State by at once stopping all improvements and by levying taxes sufficient, with the canal revenues to meet the yearly interest on the State debt and to provide for the yearly expenses of the State government. Under the leadership of Michael Hoffman a finance bill of 1842, to which the Governor gave a reluctant approval, was enacted.
The policy of this act, called also the Suspension Act, was C.&L .- 43
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summary. It put an end to further expenditures for improve- ments, by suspending all work on the canals, except such as was strictly necessary in order to preserve and render useful what had already been done. To meet the State's pressing necessities, it imposed a direct tax upon real and personal prop- erty, and authorized the issue of bonds and pledged the sur- plus canal tolls to the redemption of the canal debt. The action of the Legislature soon effected a marked improvement in the credit of the State and in the value of its stock.
So long as the "pay as you go" policy of the act of 1842 was maintained, the completion of the contemplated enlarge- ment of the Erie Canal became practically impossible. It was not long, therefore, before the Democrats began to divide upon the question of maintaining the act of 1842 in all its strictness. In 1844, the party was split into two factions ; one branch, the Radicals, or "Barnburners," were for rigidly upholding the system of 1842 and applying all surplus tolls to the extinction of the public debt. The Conservatives, or "Hunkers," argued that the surplus should be devoted to the completion of the public enterprises which had been suspended by the act of 1842. But, whatever conflicting opinions were held as to the desirability of finishing the incomplete public works, public sentiment was awakened to the necessity of maintaining the policy of keeping part of the canal revenues pledged to the payment of the canal debt, and to the necessity of limiting the debt-contracting power of the Legislature. Resolutions em- bodying these ideas were introduced into successive Legisla- tures and barely failed of the vote required to permit their submission to the people.
In 1845 the Legislature approved a bill appropriating $197,000 from the revenues of the canals to various improve- ments in the Crooked Lake, the Genesee Valley, the Black River, and the Erie canals. The bill was in reality an effort to undermine the statute of 1842, and it therefore met with a prompt and emphatic veto from Governor Wright. The fol-
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lowing portions of the Governor's veto message are quoted, because they serve to explain the circumstances which led to the Convention of 1846:
"Another reason why I consider the present an unfortunate time to make this change of policy, is the evidence before us of a determinate disposition in the public mind to remodel our constitutional system, in reference to expenditures of this description. Ever since the prostration of the credit of the State in 1841, and the consequent suspension of the public works and establishment of the financial system adopted by the legislature of 1842, the attention of our people has been drawn to the necessity of some further constitutional protec- tion against the danger of enduring debt and perpetual tax- ation. Extended discussion for two years resulted in action by the last legislature, originating and submitting to the people, previous to the last election, specific amendments to the constitution, taking two most important positions in ref- erence to the further increase of our public debt for these objects, namely :
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