USA > New York > New York City > History of the New Netherlands, province of New York, and state of New York : to the adoption of the federal Constitution. Vol. II > Part 28
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The supreme court consists at present of a chief justice and six associate justices, four of whom make a quorum. It holds one term annually at the seat of government, and though four judges
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are necessary for business generally,, any one may make necessary orders in a suit preparatory to trial, and continue the court from day to day : and the judge of the fourth circuit attends at the City of Washington on the first Monday of August annually for inter- locutory matters.
The supreme court has exclusive jurisdiction of all controversies of a civil nature where a state is a party, except in suits by a state against one or more of its citizens, or against citizens of other states, or aliens, in which case it has original but not exclusive jurisdiction. It has also, exclusively, all such jurisdiction of suits, or proceedings against ambassadors, or other publick ministers, and their domesticks or domestick servants. as a court of law can have or exercise consistently with the law of nations ; and original but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. The constitution also gave the supreme court appellate jurisdiction both as to law and fact, with such exceptions, and un- der such regulations as congress should make. It has also appel- late jurisdiction over the decisions of the state courts, under the limitations which congress has prescribed, touching the construc- tion and effect of the constitution, laws and treaties of the United States. Certain cases may be examined by writ of error, and reversed or affirmed after decision in the circuit courts.
The supreme court is also armed with that superintending au- thority over the inferiour courts which ought to be deposited in the highest tribunal and dernier resort of the people of the United States. It has power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime juris- diction, and to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed by, or per- sons holding offices under, the authority of the United States. This court, and each of its judges, have power to grant writs of ne ercat, and of injunction ; but the former writ cannot be granted unless a suit in equity be commenced, and satisfactory proof be made, that the party designs quickly to leave the United States ; and no injunction can be granted to stay proceedings in a state court, nor in any case, without reasonable notice to the adverse party. All the courts of the United States have power to issue all other writs necessary for the exercise of their respective juris- dictions, and agreeable to the principles and usages of law.
The circuit courts are established in the districts of the United States, and usually consist of one of the justices of the supreme court, together with the judge of the district. They are invested with orignal cognizance, concurrent with the courts of the ser- eral states, of all suits of a civil nature at common law or in equity where the matter in dispute exceeds five hundred dollars
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exclusive of costs, and the United States are plaintiffs, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. They have cognizance generally of crimes and offences cognizable under the authority of the United States. But no person can be arrested in one district for trial in another, and no civil suit can be brought against an inhabitant of the United States out of his district. The circuit courts have likewise appellate jurisdiction from judgments in the district courts over fifty dollars ; and in certain cases where the judiciary of the United States has jurisdiction either of the subject in controversy, or of the party, suits may at an early period of the cause be removed from a state court into the circuit court of the United States. The circuit courts have also original cogni- zance in equity and at law of all suits arising under the law of the United States relative to the law of copyrights, inventions, and dis- coveries. They are courts of limited though not of inferiour jurisdiction.
The district, as well as the circuit courts are derived from the power granted to congress of constituting tribunals inferiour to the supreme court. The district courts have, exclusive of the state courts, cognizance of all lesser crimes and offences cognizable un- der the authority of the United States, and committed within their respective districts, or upon the high seas, and which are punishable by fine not exceeding five hundred dollars, by imprisonment not exceeding six months, or when corporal punishment not exceed- ing thirty stripes is to be inflicted. They have also exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, of seizures under impost, navigation, or trade laws of the United States, where the seizures are made upon the high seas or in waters within their districts navigable from the sea with ves- sels of ten or more tons burthen ; and also of all seizures made under the laws of the United States ; and also of all suits for pen- .alties and forfeitures incurred under those laws. Concurrent with the circuit and state courts, they have cognizance of cases where an .alien sues for a tort committed in violation of the law of nations or of a treaty of the United States, and of all suits at common law, in which the United States are plaintiffs, amounting to one hundred .dollars. They have jurisdiction likewise, exclusive of the courts of the several states, of all suits against consuls or vice-consuls, except for offences of magnitude higher than above. In case of captures made within the waters of the United States or within a marine league of its coasts, they have cognizance of complaints by whomsoever made. They are authorized to proceed by Scire facias to repeal patents unduly obtained. In certain cases their judges have power to grant writs of injunction to operate within their dis- tricts. Guards are provided against the evil of a difference of
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opinion between the circuit judge and the district judge. The remedies are in the supreme court. The principal officers of the courts are attorneys and counsellors, clerks and marshals. The parties are expressly permitted to manage their own causes.
Clerks are appointed by the several courts, except that the clerk of the district court is ex officio clerk of the circuit court of such district. They have custody of the seal and records, and are bound to seal and sign all processes, and to record the proceedings and judgments of the courts. They must give security for faithful per- formance.
Marshals are analogous to sheriff's at common law. They are appointed by the president and senate for four years, removable at pleasure. They may appoint deputies. The marshal also gives security to the United States for the faithful performance of his duty.
- The powers granted by the constitution are specifick. The pow- ers vested in the state governments continue unaltered and unim- paired, except so far as they are granted to the United States. The people of the United States have declared the constitution to be the supreme law of the land. That which is repugnant to the consti- tution is necessarily void. This makes nugatory every act of con- gress, or of any state, that is in opposition to the constitution of the United States. The supreme court of the United States has the power to decide, and there is no appeal from its decision. The original jurisdiction of the supreme court is confined to those cases which affect ambassadors, public ministers, and consuls, and to those in which a state is a party. It is a question whether this original jurisdiction is exclusive. The appellate jurisdiction of the supreme court, in certain cases, over final decisions in the state courts is undoubted ; but it exists only in those cases in which it is affirmatively given : therefore the appellate jurisdiction of
the supreme court depends upon congress. The constitution says that the judicial power shall extend to all cases arising under- the constitution, laws, and treaties of the United States. It has been a subject of discussion whether the courts of the United States- have a common law jurisdiction, and, if any, to what extent. Yet in many cases, the language of the constitution and laws would be inexplicable without reference to the common law ; and the con- stitution not only supposes the existence of the common law, but it. is appealed to for the construction and interpretation of its powers.
The District of Columbia and the territorial districts of the Uni- ted States, are not states, within the sense of the constitution.
The district courts act as courts of common law and also as courts of admiralty. Whatever admiralty and maritime jurisdiction the district courts possess is exclusive ; for the constitution de-
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clares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.
In these cases, the alienation of state power or sovereignty exists, to wit: where the constitution in express terms grants an exclusive authority to the union, and in another prohibits to the states the exer- cise of a like authority ; and where it grants an authority to the union, to which a similar authority in the states would be absolutely -and totally contradictory and repugnant. This is the description of the powers given by the constitution, as stated by the Federalist, and approved by Kent and Story.
. The limitation of the power of the states contained in the consti- tution do not apply unless expressed in terms. . " No state shall enter into any treaty, alliance, or confederation : grant letters of marque, and reprisal; coin money ; emit bills of credit ; make any thing but gold and silver coin a tender in payment of debts ; pass any bill of attainder or ex post facto law, or law impairing the obligation of con- tracts, or grant any title of nobility." These and some other pro- hibitions as respecting duties, the keeping troops or ships of war in time of peace, etc., without permission of congress, speak for themselves. Bills of credit are defined to mean "promissory notes or bills issued exclusively on the credit of the state." The prohibition does not apply to the notes of a state bank, drawn on the credit of a fund set apart for the purpose.
By the constitution congress have power to establish a uniform rule of naturalization ; and to " regulate commerce with foreign nations and among the several states."
This brief view of the constitution of the United States, will I hope prepare the reader for the history of the New York conven- tion of 175s, which forms an important part of the history of the state, and to which we will shortly direct our attention. The con- vention of New York addressed a circular letter to the several states of the union, inviting them to call a general convention to revise the constitution. . Nor is this to be wondered at considering all the circumstances of our state, and the conflicting interests that were to be reconciled by that instrument .*
175S The legislature of New York met this year in January, and the subject of calling a convention to consider the pro- posed Federal Constitution caused warm debate. Parties assumed
' A' to the construction of the constitution, besides the Federalist, see Kent's Comm . Vol. I. Story's Constitutional Law. It will not be proper in a work like this, to refer to the ninerons judicial decisions by which its construction has been ascertained and settled. These decisions, so perspicnous, so free from technicality as to be intelligible to any man of understanding, although not belonging to the legal profession, were for the most part pronounced by the late illustrious Chief Justice Mar-hall, " The mantle of Elijah!" a hackneyed allusion.
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the names of Federalist and Anti-federalist. The first approved the measures of the great convention at Philadelphia and the con- stitution they proposed : their opponents declared, that in forming. a new constitution that convention had exceeded their powers, as they had been convened merely for the purpose of revising the articles of confederation then existing.
The Anti-federalists nominated 'in April, for delegates to the assembly from the City of New York, William Denning, Melanc- thon Smith, Marinus Willet and Aaron Burr ; but the Federal candidates had a great majority.
Before proceeding to the more important events of this year, I will briefly notice an occurrence in the City of New York, which at the time produced no little alarm and excitement.
On Sunday the 13th of April, some boys who were at play about the Hospital, in the City of New York, then out of town, by climbing on scaffolds left by workmen, saw the mutilated bodies or limbs of human subjects left by students of surgery in a room then used for dissection. The report spread, and a mob collected, whose rage was inflamed against all physicians and surgeons, es- pecially a young man of the name of Hicks, against whom and some others the vengeance of the multitude was vowed. Three or four days the mob increased and paraded the streets with threats of violence. The house of Sir John Temple, the British consul, in Queen Street, was with difficulty saved. It was said " Sir John" was misinterpreted "Surgeon." The writer saw Governour Clinton - exerting himself, and with effect at this place, although hustled at one time by the rioters. Many irritating, though doubtless exaggerated stories, were in circulation as to the disinterment of human bodies for anatomical purposes ..
On the 16th of April, the sheriff represented to the common council the insecurity of the jail, in consequence of damages done to it by riotous persons ; (the mob just alluded to,) and it was resolved, that an officer and fifteen men were necessary for the secu- rity of the jail, and a committee was appointed to wait on Governour Clinton and request such guard from the militia of the city, and the board would provide for their subsistence. The company of grenadiers, in marching to the jail had arms wrested from many of them by the mob. The doctors, Hicks and others, were in jail - : for protection, and the rioters attacked the place. Some troops were thrown in, and it was said, one of the mob in attempting to force his way in at a window, fell by a thrust of a bayonet. A committee was appointed to repair the jail.
February 1st, the legislature of New York resolved that the reso- lution of congress of September, 1787, and letter accompanying, recommending to the people of New York. to choose by ballot delegates to meet in convention for the purpose of taking into con- VOL. II. 33
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sideration the constitution agreed upon by the convention from the states met at Philadelphia should be complied with ; that the num- ber of delegates to be elected be the same as the number of mem- bers of assembly; that all free males of twenty-one and upwards be voters ; that the election be held the last Tuesday of April, 17SS, and continued not more than five days, with other directions for said election : and consequently the following gentlemen were returned, viz :
From the City and County of New York-John Jay, Richard Morris, John Sloss Hobart, Alexander Hamilton, Robert R. Liv- ingston, Isaac Roosevelt, James Duane, Richard Harrison, and Nicholas Low. 9.
City and County of Albany-Robert Yates, John Lansing, Jun., Henry Outhout, Peter Vroman, Israel Thompson, Anthony Ten Eyck, and Dirk Swart. 7.
Suffolk-Henry Scudder, Jonathan N. Havens, John Smith, Thomas Tredwell, and David Hedges. 5.
Ulster-Governour George Clinton, John Cantine, Cornelius C. Schoonmaker, Ebenezer Clark, James Clinton, and Dirk Wynkoop. 6.
Queens-Samuel Jones, Jonathan Schenck, Nathaniel Law- rence, and Stephen Carman. 4.
Kings -- Peter Lefferts, and Peter Vandervoort. 2.
Richmond-Abraham Banker, and Gozin Ryers. 2.
Westchester-Lewis Morris, Philip Livingston, Richard Hat- field, Phillip Van Cortlandt, Thaddeus Crane, and Lott W. Sarls. 6. Orange-John Haring, Jesse Woodhull, Henry Wisner, and John Wood. 4.
Duchess-Zephaniah Platt, Melancthon Smith, Jacobus Swart- wout, Jonathan Akin, Ezra Thompson, Gilbert Livingston, and John De Witt. 7.
Montgomery-William Harper, Christopher P. Yates, John Frey, John Winn, Volkart Veeder, and Henry Staring. 6.
Columbia-Peter Van Ness, John Ray, and Matthew Adgate. 3.
Washington and Clinton-Ichabod Parker, John Williams, Albert Baker, and David Hopkins. .
They met at the Court House, in Poughkeepsie, in the county of Duchess, on the 17th of June, 17SS, where they elected una- nimously Governour George Clinton, president.
Subordinate officers being appointed, it was ordered that the convention debate with open doors, and commence with prayers ; after which, Messrs. Duane, Jones, R. Morris, Lansing, and Har- ris,* were chosen a committee to report rules.
. As there was no Harris, either Harper, Haring, or Harrison, is probably meant.
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Rules, as is common, being agreed upon, the constitution was read on the 19th, and Robert R. Livingston addressed the chair. He professed to speak to those who had not made up their minds on the subject before them. The object of government was to secure peace. The deficiency of the former confederation was obvious. The people of the United States were blessed with an opportunity afforded to no other nation for forming a government to secure happiness. In the old world, kings would retain their power. Here it was acknowledged that all power is derived from the people. He advocated the constitution presented to them. Perfection was not to be expected. Jealousies must be eradicated, and our union secured upon a broad basis. He touched upon the state of the United States, and dwelt on the advantages New York possessed for internal and external commerce and improvement. He feared that a prospect of these advantages had excited an im- proper confidence in ourselves-had rendered us regardless of what was due to other states. He remarked upon the blessings of union among the states-the defenceless situation of New York, if standing alone, if the neighbouring states should be hostile-recom- mended yielding her independence to Vermont, and showed the dangers to New York of the British colonies and the Indians. He argued that our wealth and our weakness equally demanded union with the other states.
He took a view of the old confederation, and showed its insuffi- ciency-the British holding possessions within the limits of New York, and no power to redress the grievance-national credit un- stable-commerce unprotected. If the former confederacy was insufficient, more power must be added. He pointed out the deficien- cy of European confederacies, and dwelt on that of the Netherlands, who when struggling for every thing most dear, permitted the bur- then of the war with Spain to be borne by Holland alone. He showed the evils of the Germanick league as arising from the total independency of its parts.
He observed that congress should have the power of regulating the militia-the power of regulating commerce. He spoke of the necessity of a Federal judiciary-and commended generally the constitution as submitted. It was then proposed, and agreed, that no question should be put in the committee upon the proposed constitution, or any article or clause thereof, until after the said constitution and amendments should have been considered, clause by clause.
On the 20th, Mr. Lansing addressed the chair.
Mr. Lansing thought we ought to be extremely cautious how we gave distinct interests to the rulers and the governed. That the state governments would always possess a better representation of the opinion of the people-power could be deposited with greater
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safety with the state than with the general government. He thought the present confederation capable of amelioration, though sensible of its defects. External and internal disquiet or insult could be prevented, if congress were vested with power to raise men and money, and power to enforce its requisitions. The regulation of commerce should be vested in congress. He thought congress would be unwise to risk a war with Britain for the posts, until we had a fleet to cope with that nation. The present difficulties of the country arose from the extravagant importation of European goods, upon the termination of war with England. He was sensi- ble of the value of union, but would not even for it, risk the loss of civil liberty. He thought the powers proposed to be given to the Federal government would place us in the situation of people con- quered and governed by those they had not chosen as governours, and supposing New York conquered and governed by New Eng- land-where manners and institutions were like her own, the evil would not be very great. He had already published in a pamphlet his apprehensions tltat a consolidated government of republican principles, having for its object the control of so extensive a terri- tory as of the United Sattes, could not preserve the rights and lib- erties of the people-reflection had added force to the opinion." His constituents wished amendments to the present confederation. ' The chancellor (Mr. Livingston) in reply, thought the power to coerce requisitions, would act awkwardly and badly. .
Mr. Melancthon Smith was a man of rough exteriour, powerful in bodily appearance, and undaunted in expressing his mind, which he did in plain language, but with a sarcasm that was cutting, and a humour correct and playful.
Mr. Melancthon Smith called for the consideration of the consti- tution by paragraphs; and the first section being read without remark, he again rose after the second was read. He would sacri- fice all, except our liberties, to union. But why are our weaknesses dwelt upon ? He did not believe the eastern states inimical. But if war with our neighbours was to be the result of not acceeding to the proposed constitution, there was no use in debating. " We had better receive their dictates than be unable to resist them." We know the old constitution bad, but do not know the new one to be good. Defective as the old one was, we might have a worse. Former confederacies had failed, so had other governments. Hol- land had experienced evils ; but she yet existed and flourished. The Germanick confederacy was one of princes who consider their people as property ; there other causes for evil existed besides those of the confederacy. He was pleased that Livingston had acknow- ledged that the purpose of the new constitution was not a confed- eracy, but a consolidated government. From this concession, it was evident that the opposers of the new constitution were the
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Federalists, and the upholders Anti-federalists. Montesquieu had said that a confederated republick has all the internal advantages of a republick, with the external force of a monarchical government. After some remarks on the figures and similes used by those who preceded him, he stated his objections, and first, to section second of article one, clause three. First, the rule of apportionment is unjust. Second, there is no precise number fixed on, below which the house shall not be reduced. Third, inadequacy : the rule of apportionment of representatives is to be according to the number of white inhabitants, with three-fifths of all others, i. e. in addition to representatives of the whites to three-fifths of the slaves in the state. He exposed the absurdity of giving power to a man who could not exercise it. The intention is obviously to give privileges to those people who are so wicked as to keep slaves. He knew the injustice of this apportionment would be admitted, and the ne- cessity of accommodation pleaded, if we would have nnion with the south. We.might be under the necessity of submitting to this, though utterly repugnant to his feelings.
He thought one representative for every 30,000 of the people not enough : the people would not govern themselves. He acknow- ledged the difficulty. He knew the experiment of representative - government had not yet been fairly tried. He considered it in other times and countries. America bad the best opportunity for trying this experiment, but he did not think it consistent with a consolidated government. He thought the state governments alone could secure the rights of the people. We were yet in a stage of society in which we could deliberate freely ; he feared that fifty years hence it would not be so. Already patriotism was laughed at.
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