USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume II > Part 68
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 607
after the 14th day of October, 1775.' Thus the sovereignty of the new State was intentionally hampered at the outset.2
By the year 1774-75 the relations existing between England and the American plantations had become very different from those of the prior century. The early English institutions, founded on feudal- ism, which depended wholly on contiguity between lord and feudatory, had not contemplated a transmarine empire. The vast intervening distance of this country compelled a total delegation of the para- mount feudal and governmental authority; and as such delegation was necessarily written, these various writings came finally to serve here as constitutions, and by the year 1775 had accustomed Americans to the fundamental written charters which are now the chief character- istic of our political institutions of government. The main point of difference between the English and the American construction of these written delegations related to two subjects: the extent of the pre- rogative of the crown here, and the right of the inhabitants of the plantations to the entire public law of England, or that department regulating the relations between the English state and the people of the plantations. The most radical difference in a construction of the colonial constitutions related to the extent of the jurisdiction of the British parliament here, which had always been denied by the more consistent American colonial politicians because of their non-rep- resentation in that body. The extent of the crown prerogative in the colonies had by the year 1774 become tolerably well settled in subor- dination to the principles of the English common law. The difference as to the power of parliament to legislate for the colonies finally be- came irreconcilable, and precipitated the inevitable conflict. In this connection it will be recalled that the first constitution of the State recites that the new government was formed for the sole purpose of opposing the usurpation of the British parliament.
Actual hostilities between the king confederating with his British parliament on the one side, and the people of the colonies on the other, began with the battle of Lexington and Concord on April 19, 1775. At the beginning of the struggle temporary governments by commit- tees and congresses were formed in New-York, and for a time in the city of New-York two governments-the ancient one emanating from
1 The State constitution of 1777 was always claimed by advanced republicans to have been the work of those who had private interests to subserve. See the article in the "New-York Daily Advertiser" of March 4, 1789, entitled "Beware of Lawyers," beginning as follows: "Of the men who framed that monarchical, aristocratical, oligarchical, tyrannical, diabolical system of sla- very, the new Constitution, one Half were lawyers. Of the men who represented, or rather misrepre- sented this City [New-York] and County in the late convention of this State. to whose wicked arts
we may chiefly attribute the adoption of that abominable system, seven out of the nine were lawyers."
2 The right to bear arms was an early privilege of English freemen, and from the earliest times in New-York the inhabitants had of necessity a right to bear arms, and there had been an organized mili- tia to guard against the Indians and the French. So that at the commencement of the hostilities with England nearly all the able-bodied men were a possible military contingent, of great value to the commonwealth.
608
HISTORY OF NEW-YORK
the crown, and the Revolutionary one formed by the people-con- tended for supremacy and issued contradictory proclamations. On May 10, 1776, the Continental Congress recommended that those col- onies which were without a sufficient form of government should adopt some suitable organization. This resolution was read in the provincial congress, then sitting at the City Hall in the city of New- York, on May 24, 1776, and a committee was appointed to consider the matter, which reported "that the right of framing, creating and new modeling civil governments is and ought to be in the people." But, doubting their authority to form a new government, the provincial congress recommended the election of new deputies who should be constituted specially for such a purpose.
The new congress accordingly elected met at the court-house in White Plains, Westchester County, on July 9, 1776, and on the next day changed the title of the congress of the colony to that of the "Convention of the Representatives of the State of New-York." On July 16, the city of New-York and vicinity being closely beset by the British forces, the convention postponed the formation of government until the following August. They requested that meanwhile all magis- trates and officers of justice should exercise their respective offices, provided that all processes and pleadings were issued under the author- ity and in the name of the State of New-York. This appears to have been the first official mention of the new title of the future govern- ment. The word "State" had been used to designate the government under Cromwell; it was generic, or nomen generalissimum, and would include any type of government that might be ultimately adopted. It committed the delegates to no particular form, and yet it sufficiently marked the change from the old institutions to the new. The request served to note that the king and parliament were no longer recog- nized as the source of political authority in New-York. The crown had ceased to be the general conservator of the peace and the foun- tain of justice in the province when the Declaration of Independence was adopted, July 4, 1776.
This declaration was the first formal act putting an end to the ad- ministration of justice by the old regime: the Supreme Court of Judi- cature of the province held its last session as late as the April term, 1776. When the convention met in August, 1776, pursuant to ad- journment, a committee was formed to take into consideration a plan for instituting and framing a State government.1. On March 13, 1777, the first section of the new constitution was agreed to, but the debates continued until Sunday, April 20, 1776, when the entire instrument was adopted and promulgated at Kingston as the supreme law of the new State. The memoranda and minutes of the first committees of
1 Journal Provincial Congress, August 1, 1776.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 609
government are not printed. Indeed until 1818 the State did not pos- sess the original constitution. It was in the possession of a private citizen. There have even been some doubts concerning the identity of the principal author of the instrument,1 although the literature of the late centennial has made it tolerably clear that John Jay was its principal draftsman, notwithstanding that he is known to have opposed some of its provisions.2
But we are concerned more with the changes accomplished in the legal institutions of the province of New-York by the Revolutionary constitution. It is a remarkable jural phenomenon that revolutions
UNITED
STATES
ARS
No 157/12
FIFTY DOD
1158 Sixty-five Dollars
DIOLARS
DOLLARS
SIX VI DOLLARS
DOL
LARS 6
No. 45541
SIX DOLLARS.
SEVER
THIS Bill entitles the
Bearer to receive
SIX SPANISH MILLED
DOLLARS, or the
Value thereof in GOLD or SILVER. according to ES
a Resolution of CON-
GRESS publishlat Phi.
Ladelphia Nov.2. 1776-
VI SIX
WGibson I Franklim
76
SIX DOLLARS
LARS 6
X DOL
arrencys.
DOLLARS
Cruojo
OG XI
to
CONTINENTAL CURRENCY.
effect at first but slight changes in the private law of a State. A successful revolution at once modifies public law, or the law governing the relations between the former state and its subjects, and in the end, notwithstanding the outward semblance of conformity, it modifies private law, or " sows the seed which sooner or later bears the fruit of change."3 Few of the features of the first State constitution were novel. The first section is the key to the entire scheme of revolution effected : "No authority shall, on any pretense whatever, be exercised over the people or members of this State, but such as shall be derived from and granted by them." The Revolutionary constitution of New- York was not submitted to the people at large, and to some extent it had a purely Revolutionary emanation. All writers on the subject of government now recognize that the modern American State constitu- tions are simply legislative acts, enacted in the fundamental legisla-
1 Thomas Jones's "History of New-York," 1: 142. 2 N. Y. Rev. Papers, p. 678.
3 Introduction to Ortolan's "History of Roman Law."
VOL. II .- 39.
THE
RENNI
She Limited
DOLLARS
continental
SIZ. VI DO
SIX
DOLLARS
Myamble
THE BEARER of this BILL
610
HISTORY OF NEW-YORK
ture consisting of the whole people, or rather of the entire body of suffragists of the State.1 But the first constitution of this State was not submitted to the people, although it was adopted by their delegates specially chosen.
While this constitution contained a most explicit statement of the rights of popular sovereignty, the practice was not coextensive with Illumination. the enunciation, the suffrage being confined to such as were freeholders in the pror- ince or freemen of the cities
C OLONEL TILGHMAN, Aid of New-York and Albany. de Camp to his Excellency General WASHINGTON, having brought official acounts of the SURRENDER of Lord Corn- wallis, and the Garrifons of York and Gloucefter, thofe Citi- zens who chufe to ILLUMI- NATE on the GLORIOUS Oc- CASION, will do it this evening at Six, and extinguifh their lights at Nine o'clock.
It was reserved to a later day to give fuller effect to the political emancipation declared by the American Revolution.2 The sections of the constitution which were of paramount impor- tance to the new frame of government thus established were those vesting the su- preme legislative power in two separate and distinct bodies to be called the assem- bly and the senate. The Decorum and harmony are earneftly recommended to eve- ry Citizen, and a general dif- countenance to the leaft ap- pearance of riot. leading authorities concede that the former legislative council, or upper house of the province, was the model of the senate, and not di- rectly the English House of October 24, 1781. 3 Lords. The lower house was but the former assembly of the province, and both in their functions and operations the two bodies were indistinguishable. The new legislature, in common with the old, had the power of enacting laws-but not all laws. Both bodies were constituted the sole judges of their respective member- ships-a grant bearing the mark of an historic struggle. Their procedure was not altogether optional. Section IX. of the consti-
1 Bryce's "American Commonwealth," Vol. I., were 93 freemen of the city (probably included in Chap. 37.
"In the year 1790, out of 13,330 males resident in the city of New York, but about 1303 appear to have had sufficient property to qualify them to be electors for State senators under the State con- stitution of 1777. At that time, it is said, there
this 1303). Smith's "New York in 1789," p. 7.
3 The above reduced fac-simile of a broadside issued in Philadelphia illustrates the joy of the patriots upon receipt of intelligence that aroused corresponding depression in New-York.
EDITOR
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 611
tution provided that the assembly should enjoy the same privileges and proceed in doing business in like manner as the former assem- bly. This served to introduce expressly some of the more binding principles of parliamentary procedure, or that body of Anglican legis- lative customs and law sometimes known as the "common law of parliament." This provision operated as a minor limitation on the powers of the new legislature. The major limitation was that the legislation should not be violative of the public law embodied in the new constitution or of certain great unwritten principles of natural right sometimes forgotten. The power of the new legislature to change the former common law was a modified power, and expressed as a power of alteration and not abolition. The first constitution ex- pressed also an apprehension, often remarked, of the unlimited power it vested in the people. To moderate the evil feared, the third section of the constitution provided for a revision of all legislative bills by a council of revision consisting of the governor, the chancellor, and the judges of the Supreme Court or any two of them acting with the governor. By a vote of two thirds of both houses a bill might be passed over the objections of the council, and become a law. The supreme executive power was vested in a governer to be chosen by ballot by the freeholders of New-York (out of their own body), having freeholds of the value of one hundred pounds. The constitution omitted to qualify for this office a freeman of the cities who might not be a freeholder. The powers of the governor were similar to those of his predecessors the crown governors. He was commander of the military forces, and could convene and prorogue the assembly. and pardon offenders for crimes other than treason and murder, the par- don of which was reserved to the legislature, as formerly to the crown. The governor was, in short, the chief magistrate of the State, as he had been of the former province. The constitution plainly contemplated that the new governor should deliver a message to the legislature, according to the custom of the preceding century. To aid the chief executive, the old office of lieutenant-governor was continued with a modification which made him the presiding officer of the senate. This office was also elective. In comparison with the general powers sub- sequently vested in the president of the United States, the powers of the governors of the State of New-York were specifically prescribed, with the view of preventing a repetition of the arbitrary conduct often manifested by the crown governors. The veto in the executive was shared with the other members of the council of revision, and the power of appointing to all offices other than that of governor and lieutenant-governor, which were elective, was vested in a council of appointment consisting of the governor and a council of senators chosen by the assembly in the manner prescribed by the constitution.
612
HISTORY OF NEW-YORK
The judicature, which rapidly became a coordinate branch of the new government, received very little attention at the hands of the founders of the State government. But one new tribunal was erected -the court for the trial of impeachments and the correction of errors. It consisted of the president of the senate, the senators, the chancel- lor, and the judges of the Supreme Court, or the major part of them. When the court sat as a court of impeachment, the chancellor and the judges, if impeached, were disqualified from sitting-a provision su- pererogatory at common law. The power of impeaching all officers of State was, by analogy to the ancient practice in England, vested in the lower house of the legislature. The conception of vesting the su- preme appellate jurisdiction in the upper legis- lative house was derived from the former prac- tice of appeals to the council of the province. This council had possessed judicial as well as legislative power: it was the court of errors of the province. So in all probability the designation of the judges as members of the new Court of Errors arose from the former practice in the province, for the judges were PAULDING MONUMENT.1 ordinarily members of the governor's council, but they could not vote on appeals from their own judgments, al- though they might deliver arguments in support of the same, which practice was perpetuated by the new constitution.2 From the earliest times the judges of New-York had been debarred from deciding on appeals from their own judgments.3
The great courts of original jurisdiction, the Supreme Court and the Court of Chancery of the province, were not disturbed; nor were they continued expressly by the new constitution, nor even men- tioned except indirectly. The tenure of the former offices of chan- cellor and Supreme Court justices was made during good behavior or until sixty years of age, in deference to the popular preference and prejudice exhibited in the provincial epoch, and these officers were made members of the council of revision and of the Court of Errors. In no more direct way were these ancient courts fastened upon the new order of things, and yet they continued as before, although both owed their existence to the quondam hated ordinances of the royal governors, made without the consent of, and in fact contrary to, the preference of the former assembly. In witness of the ancient con- tention between the crown and the assembly, the State legislature
1 The above illustration represents the marble monument reared in 1827 over the grave of John Paulding, who with Isaac Van Wart and David Williams captured Major André at Tarrytown, on his return from his conference with General Ar-
nold. He was buried in St. Peter's churchyard. near Peekskill, N. Y. EDITOR.
2 Sec. 33, Const. 1777; Forsey rs. Cunningham, N. Y. Hist. Society Collections.
3 "Duke's Lawes." See Vol. I, Ch. XIV.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 613
was prohibited from instituting any new courts "but such as shall proceed according to the course of the common law. It is highly probable that the former fundamental courts of common law and equity were thought to be continued by virtue of the thirty-fifth sec- tion of the constitution continuing in force the former common law of the province .? In any event the further continuance of the Su- preme Court and the Court of Chan- cery under the State government was assured only in the manner in- dicated, and to this day both the common-law and equity jurisdictions of the State courts are primarily due to the ordinances of the crown gov- ernors, promulgated nearly two cen- turies ago.3
The constitution made provision for an experimental test of secret voting by ballot, and if this should prove a failure, then for a return to the former viva voce method. The suffrage was confined to freeholders and freemen of the cities who had taken an oath of allegiance to the PWarren' new State. To qualify an elector for the senate, he must be a resident citizen and a freeholder possessed of a freehold of the value of one hundred pounds over all debts charged thereon. To be an elector for the assembly, the citizen must be a freeholder to the value of twenty pounds, or a taxpayer rent- ing a tenement of the yearly value of forty shillings. For the first time in the history of the province the free exercise and enjoy- ment of religious worship, not degenerating into license inconsistent with the public peace, was guaranteed by the constitution, against the wishes of several who would exclude those of the faith of Rome. Several provisions of the fundamental English statutes, Magna Charta and the Bill of Rights, although adopted as a whole by the section continuing the former common law, were reenacted. Trial by jury was to remain in the cases in which it had been used in the colony of New-York. All parties accused were to be allowed counsel. No bill of attainder was to be passed for crimes other than those com- mitted before the termination of the pending war, and such crimes were not to work a corruption of blood.
1 This portrait was obtained too late to place in kins, Lansing, Kent, Thompson, and Yates. Chapter VIII. EDITOR. Street's "New York Council of Revision," p. 370.
2 See the veto of the council of revision, Tomp-
3 2 R. S. of New York, 196, Sec. 1.
614
HISTORY OF NEW-YORK
The legislature was given discretion to pass an act to naturalize persons born out of the United States and abjuring all foreign author- ity, ecclesiastical as well as civil - the ecclesiastical abjuration being directed against Romanists. The constitution declared all clergymen ineligible to any civil or military office under the State, as they were "by their profession dedicated to the service of God and the cure of souls, and ought not to be diverted from the great duties of their function."
The future law of the State was fixed by the thirty- fifth section of the constitution, declaring "that such parts of the common law of England, and of the Statute law of England and Great Britain, and of the acts of the Legislature of the Colony of New York, as together did form the law of the said colony on the 19th day of April, 1775,"- the date of the battle of Lexington, - should continue the law of HICKS ARMS. the State, subject to such alterations and provisions as the legislature of the State should make concerning the same. In historical order, and in a subsequent chapter, we may briefly indicate the leading features of the law thus reestablished and perpetuated.
Such were the main provisions of the fundamental charter of the . new government. It bore an astonishing resemblance to the former crown government, except in the source from which the political authority emanated. That was a new political institute, but one long dreamed of by philosophers and at last realized. The realization was the legitimate inheritance of those who had left old institutions and worn-out forms for the politically formless regions of the world. It is true that it had been said by the political writers of ancient Greece that all forms of government proceed in cycles, and are constantly changing from free forms to forms less free and from absolutism to anarchy, and that no form of human government is stationary, entirely novel, or perfect. The new form of government of New-York, however, contained several features new to the history of political societies- absolute religious toleration, and the declaration, rather than the reali- zation, of a complete popular supremacy, absolutely unalloyed with differences in status, for no mention was made of African slavery in the constitution, and its total abolition was evidently contemplated by the founders of the new State.
With the exception indicated, the constitution contained no novel- ties. It was only an evolution, or the final consummation, of the political struggles written on every page of the history of the prov- ince. The people of New-York had always maintained their right to the entire public law of England, which, subsequent to the Bill
·
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 615
of Rights of 1689, and the Act of Settlement,1 they fully recog- nized as the best and freest public law any people had yet enjoyed.2 The constitution of the new State did not therefore indulge in a triumphant denunciation of the past, nor did it destroy those old and well-worn forms which experience had demonstrated could coalesce with liberty. On the contrary, it perpetuated those institutions of the province and of the common law of all English-speaking people which had been found fully consistent with equality, liberty, order, and justice. The only revolution was in the source of the future polit- ical power, which was declared to be founded on the will of the people. How great this single revolution indicated was, it took some genera- tions to comprehend; for at first the force of the ancient legal formula and the tyranny of custom rendered the political emancipation to some extent a phrase, and it was not until subsequent to 1800, when a new generation of lawyers had come on the scene, that the State entered on the phase of Paul Revere really popular institutions. The effect of the change wrought in the common law by a combination with republican institutions then became more apparent. The State government thus founded was, for a number of years afterward, regarded only as a de facto government by the inhabitants of the counties of New-York, Westchester, Richmond, and Long Island, by far the richest and most populous parts of the province. When the continental forces aban- doned the city of New-York on September 15, 1776, the British, under General Howe, reestablished their authority in the counties named, and continued to exercise a jurisdiction over them until November 25, 1783, when the formal evacuation took place, in accordance with the definitive treaty of peace with England. During this entire period there were two actual governments existing side by side within the limits of the present State. Both invoked virtually the same law, and both claimed the rightful jurisdiction of the entire territory of New- York, but one in the name of the crown and the other in the name of the State. The judicial records of each of these governments, within the sphere of its actual jurisdiction, are now equally authoritative. The records of the respective governments and courts are, however, entirely distinct.
A glance at the royalist government in the lower counties from 1776 to 1783 will be sufficient. The former civil courts, with two ex- ceptions,-the prerogative court and the admiralty court,-remained closed, and in their place was erected by proclamation, on May 1, 1777, a quasi-civil judicatory, called a court of police, which had cog- nizance of all causes arising thereafter. With a view to supersede
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.