USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume III > Part 65
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The delegates accordingly elected by the suffragists met at Albany, October 13, 1801, and chose Aaron Burr, a delegate for Orange County, chairman. The ultimate number of members of assembly was for the future restricted to one hundred and fifty, and the number of
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senators to thirty-two. The right to nominate to office under the 23d section of the constitution of 1777 was declared to be vested concurrently in the governor and in each of the members of the council of appointment. The change made in the appointing power by this construction of the constitution deprived the office of gor- ernor of the State of much of its existing influence, and led to a per- petual struggle of the politicians. for the control of the council of appointment. It introduced no real reform, and led only to the con- viction that the appointing power was more safely lodged in the hands of the executive than in the hands of a council or committee.
In reading the accepted version of the political history of the State of New-York, one might infer that the entire period between 1777 and 1821, the date of the second constitution, was devoted to a con- stant and petty struggle for political place, and that no lofty public measures received or demanded the attention of the leaders of the political parties of the State. Yet such an inference is not wholly verifiable. During this entire period there was great popular dissatis- faction with those provisions of the State constitution of 1777 which related to the property qualifications for electors, and with other pro- visions which vested such transcendent political powers in the judges of the great courts of record. The precise nature of such provisions has been adverted to in the preceding volume.1 The popular dissat- isfaction for some time took the usual form of protests in the news- papers of the day. But in August, 1820, Tammany Hall, as the organized representative of the dissatisfied element of the population, initiated a movement for a convention to amend the State constitu- tion. The subsequent legislative bill providing for the convention promptly met with the disapprobation of a majority of the council of revision, who vetoed it, Chancellor Kent writing the opinion of the council with all the conservatism of a trained lawyer. No veto in the history of the State has met with greater censure than this action of the council of revision. The council was openly accused of wish- ing to defeat the will of the people, and of conspiring to retain the State in the hands of the lawyers and landholders who, from its foundation, had carefully guided its political fortunes. The report of Michael Ulshoeffer, chairman of the select committee of the assembly, combated the logic of the veto with great vigor, and is regarded as the abler State paper of the two.2 A bill was finally so drawn in March, 1821, as to meet the main objection of the veto by the council of revision. It submitted the question of holding a constitutional convention to the decision of the electors of the State. The electors having decided in the affirmative by a vote of 109,346 to 34,901, dele- gates were next chosen, who met at Albany in August, 1821. Before 1 Chapter XIV, Vol. II, of this work. ? See this paper in Street's "N. Y. Council of Revision," 455.
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considering the changes accomplished by the convention, it will be in order to survey the forms to which some of the leading institutions had then attained.
The judicial establishment of New-York was never more efficient than in the first twenty-one years of the present century. It was still substantially the provincial establishment erected by the Eng- lish, and continued by virtue of the recognition accorded to it in the first State constitution, adopted in 1777. Under this constitu- tion the Supreme Court of Judicature, as origi- nally established in 1691, continued on its ancient footing. But the influ- ence of the court in- creased much with the growth of population and affairs, and this was fol- lowed naturally by the publication of a regular series of printed law re- ports. The elevation of James Kent to the Su- preme Court bench in 1798, and his interest in the law reports, did much to place this ancient court on a more influ- Smith Thompson ential basis. Under the judgeships of three great judges - Kent, Thompson, and Ambrose Spencer-the court was very excellently administered, and many legal principles were settled; while fluctuating theories gave place to deter- minate and known rules of law, reported in the famous series of lead- ing cases by Caine and Johnson, the official Supreme Court reporters The Supreme Court justices still went the circuit when the regular terms of the court in banc were not in session in Albany, Utica, or New-York. As a law court the Supreme Court of New-York may have been surpassed by several of the law courts of other States, whose influence on American law has been, no doubt, more profound. But it was otherwise in respect of the Court of Chancery.
1 Smith Thompson was born in Stanford. Duchess County, N. Y., January 17, 1768, graduated at Princeton, and was admitted to the bar in 1792, practising in Troy and Poughkeepsie. He went to the legislature in 1800; from 1802 to 1814 he was associate justice of the State Supreme Court, meanwhile declining the mayoralty of New-York
city, and in the latter year he was made chief justice, an office he held until his appointment as secretary of the navy in 1818. by President Monroe. He was elevated to the United States Supreme Court bench in 1823, remaining there until his death, December 18, 1843. The portrait is from the original painting by Durand. EDITOR.
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In the year 1814, James Kent was translated from the chief-jus- ticeship of the Supreme Court to the Court of Chancery. From a common-law judgeship he passed to the "throne of equity." In the same year, Johnson, the Supreme Court reporter, was directed by the legislature to report the decisions of the chancellor. With this event begins the most brilliant period of the New-York Court of Chancery. Livingston, the first chancellor under the State government, had been an able judge, a great diplomat, and a sagacious figure in politi- cal life, but his judicial work is not known, as his opinions have re- mained unpublished. Only his legal opinions in the council of revision, and a few rules of court, as yet mark his term of office as chancellor. Of Chancellor Lansing's administration more is known, for he promulgated seventy-four chancery rules, or standing orders in chancery, which are called by jurists the equivalents of edicts or direct legislation, and are recognized as powerful factors in the ad- ministration of government. Some of these rules were an improve-
ment on the contemporary English equity practice. Chancellor
Lansing's career also labors under the disadvantage of having had no reporter. But with Lansing's successor, Chancellor Kent, it is otherwise: from the very beginning of his judicial life he was at- tended by the reporters, and the precise value of his labors to the State and nation is approximately ascertainable. Chancellor Kent had, at the threshold of his career, perceived that to an American lawyer of his day two great and living problems were presented for solution : the relations of the common law of the older country to the new republic, and the relations of the judicature branch of government to the legislative and executive branches in a composite or federal state. In 1794, as professor of law in Columbia College, he had ad- dressed himself tentatively to the latter proposition. In 1795 he pub- lished a small volume of dissertations preliminary to a proposed course of lectures on the common law. But the lectures failed to at- tract hearers, and were discontinued. At a long subsequent period, and in his retirement, he gave to the public his "Commentaries on American Law," which throughout the United States became a recog- nized institutional treatise, as celebrated in its way as Blackstone's "Commentaries on the Laws of England" had been in its way. In the New-York Court of Chancery, Kent found an instrument which he at least knew how to use. He was profoundly impressed with the traditions and dignity of the ancient prototype of his court, the High Court of Chancery in England. No one could be more mindful of the fact that in England the chancellors had exercised legislative func- tions similar to those which the Roman pretors discharged in the development of the civil law. But Kent had no disposition to inno- vate. His was an eminently practical mind, and in the year follow-
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ing his elevation to the chancery he stated that he would follow the English chancellors' conceptions of equity, and would undertake no innovations, which he regarded as very dangerous.1 In thus limit- ing his extended judicial powers, he, perhaps, denied himself an opportunity of expressing his own conceptions of equity, and of taking an original place in the very front rank of English-speaking chancellors. He was content to serve as an expounder and com- . mentator of Anglo-American law: thus he contributed little that was original to those fundamental canons of English equity which comprise the perpetual edict of that system, and which were prac- tically completed in England by his contemporary, Lord Eldon. In this respect Kent's present influence differs from the influence, for example, of such an American jurist as Marshall, who possessed an original and creative intellect of the highest order, and whose judg- ments must always be sensible on this continent in the region of political law and philosophy. In thus treading in the footsteps of the English chancellors, Kent did not, as we shall see, escape the re- sponsibilities which the anomalies incident in New-York to his office made inevitable; for the recipient of such great political powers could not hope to elude criticism under a republican form of government. Nor can it be said that those who, in the convention of 1821, criticized the abnormal power intrusted to a chancellor of this State, were wholly without justification. In addition to exercising the law pow- ers of a chancellor under the former English system, the chancellor of New-York, by virtue of his office, sat in the court of last resort, and, though he could not vote, might argue in support of his own judg- ment below. He was also one of those who possessed in the council of revision a qualified veto on all legislation under the first constitu- tion. This was an abnormal and tremendous power for a judge. These powers, which it is proper to say Kent had not sought, nor even helped to confer, he exercised without fear, in the old-fashioned federal and professional manner, very exasperating to the newer school of republican lawyers, who would not defer so profoundly to the legal system of England. Thus, toward the year 1821, Kent, in the minds of his opponents, was the leading representative of the hated and influential survival of what they believed ought to have been purely ante-revolutionary traditions, having little application to the conditions of American life under the republic. His opponents deprecated the chancery conceptions of a "throne of equity." Indeed, the whole idea of a chancellor, they said, was associated with a king- ship: a chancellor without a king was almost as inconsistent as a king without a chancellor. The entire chancery establishment came in for condemnation because it fostered a class of officials and prac-
1 1 Johnson's Chancery, 530.
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titioners whose exclusiveness was distasteful to the population of the newer and growing parts of the State. Thus, side by side with Chan- cellor Kent's practical, conservative, and just administration of the Court of Chancery, were growing up the seeds of discontent in the minds of the more independent and emancipated political thinkers. This discontent culminated in the constitutional convention of 1821, when Kent had been only seven years chancellor of New-York.
In addition to the great courts mentioned, there were in the year 1821 the Court of Errors and the Court of Probates, already noticed. The Court of Errors, it will be recalled, consisted of the senators, the chancellor, and the judges of the Supreme Court.1 In 1787 a minis- terial part of the jurisdiction of the Court of Probates had, by an act of the legislature,' devolved upon certain officers termed surrogates. The Court of Admiralty had expired when the admiralty jurisdiction had been called into being by the federal constitution of the general government. The minor courts of the State remained in 1821 sub- stantially as before the Revolution.
Before noticing the changes wrought by the new constitution, let us glance again at the condition of the State of New-York about the time of the convention of 1821. In 1808 the number of freeholders entitled to vote for senator and governor was 36,500, and in 1820, despite the increase in population, the number of freeholders qualified to vote for the great officers of the State had not increased in a like ratio with the population. This was felt to be a grievance by the people at large. In 1820 the major part of the inhabitants were still engaged in agriculture, and the rural districts were increasing in population at a greater ratio than the urban communities. In 1812, twelve new counties had been carved out of the one great county theretofore lying west of Seneca Lake. In 1820 the sixteen counties in the State of the year 1790 had become fifty-five counties, embracing five incorporated cities and six hundred and sixty-two boroughs or towns.3 After the peace with England in 1783 the western terri- tory, or that great country west of the 80th meridian, had attracted large numbers of settlers. One of the routes to the Ohio country from New England was through central New-York, and many men of New England birth either stopped on their way to the far West, or settled in New-York, finding certain advantages or attractions in the then wild parts of this State. Thus, central, western, and northern New-York soon began to have the political tone of New England.' These men of New England entertained very different conceptions of government from those embodied in the State consti- tution of 1777 by the old land-owning and lawyer classes of the prov-
1 Chapter XIV, Volume II. 2 Chapter 38. 3 Spofford's "Gazetteer," p. 691. + "Gazetteer of Western Continent for 1810:" title, "New-York."
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ince of New-York. Thus it happened that the exponents of' the new parts of the State-men of the old-fashioned Puritan names-were, in the constitutional convention of 1821, as a rule, found in the party of reform, and not in the ranks of the more conservative and native element of the State.
As late as 1820 the more populous districts of the State existed in the two oblongs anciently settled,-extending, the one down Long Island and the other up the Hudson River,-and there the inhabitants were mainly of the old provincial type. In Kings, Ulster, Albany, and parts of Orange County might still be heard the Low Dutch of the seven- teenth century, although, from the want of Dutch schools and the preponderance of people of English stock, the use of the language of the first European settlers had greatly diminished. But in the an- cient districts Dutch and English names were still found in most families curiously combined, denoting that the social condition had followed the political transitions of the province, and that the race of the conqueror had blended with that of the conquered. The pop- ulation in these districts was still largely native. Franklin pointed out that even at the time of the war of independence the inhabitants of all the American colonies were largely natives, and descended from those who had emigrated from Europe prior to the year 1700. The fact that the population of New-York State was largely native in 1820 is corroborated by the statistics of the city of New-York in 1820, when, out of a total population of 123,706, but 5390 of the inhabitants of that city appear to be classed as unnaturalized foreigners. Indeed, in 1820 the population of the whole State was mainly composed of na- tive Americans, and, as stated, the major part were engaged in agri- cultural pursuits.
The great city which now stands rather for North America than for the State of New-York, and which is fast outgrowing its traditions as an ancient capital of an ancient province, had increased from 80,000 inhabitants in 1808 to 123,706 in 1820. From the year 1756 to the year 1790 the general progress of the city in population and resources was much like that of other American cities. But after 1790 it became evident that New-York was, for a long time at least, to lead other American cities.1 Yet for some years after the constitutional con- vention of 1821 the affairs of this city were conducted mainly under the royal charter known as the Montgomerie Charter of 1730.2 As late as 1827 General Dix noticed the fact that in New-York city "the Dutch families by which the first settlement was formed were still represented in their descendants, who constituted a considerable pro- portion of the whole number of inhabitants,"3 but he admitted "that
1 Dix's "Resources of the City of New-York in 1827." 2 See Chapter VI, Volume II. 3 "Resources of the City of New-York," p. 38.
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the descendants of the English families who established themselves during its colonial dependence on Great Britain" were then much more numerous.
Such, then, were some of the conditions prevailing in New-York at the time of the constitutional convention of 1821-a population composed largely of native Americans, whose pursuits were in the main agri- cultural. No body of aliens had yet be- come so formidable or consolidated as to constitute a known and separate political organization, generaled and led by pro- fessional political headmen of their own race. The conditions of commerce were still largely primitive in character: the Erie Canal had not been completed; steam navigation was yet in its infancy; the telegraph and the railroad were unknown; while postal circuits were made over the And Javik harhicks." common turnpikes and waterways of the State. Yet the material conditions of life were relatively those of a highly civilized State, and not very dissimilar to the conditions in the civilized States of the older world. New-York had already been settled for two cen- turies.
When the constitutional convention met at Albany, August 28, 1821, the delegates were fairly representative of both the reformers and the conservative party in the State. The older counties sent their most distinguished lawyers and the landholders representing their tradi- tions. From Albany and the older counties came Chancellor Kent, the Jays, and the Livingstons; from New-York County came, among others, Nathan Sandford, Ogden Edwards, Henry Wheaton, and Jacob Radcliff. From the newer counties were sent such men as Jarvis Pike, Nathan Carver, Victory Birdseye, Micah Brooks, Jason Fenton, and General Erastus Root. Among the other notable members of the convention were Daniel D. Tompkins and Martin Van Buren. From the fact that Daniel D. Tompkins, "the favorite farmer's son," as he was then called, was elected chairman of the convention, it was soon evident that the Democrats were in the majority, and that the new constitution was to be made more democratic in principle than the
1 Andrew Kirkpatrick was born February 17, 1756, and graduated at Princeton. He studied law, was admitted to the bar in 1785, and practised suc- cessfully. In 1797 he was a member of the New Jersey legislature, soon resigning to become judge of the State Supreme Court. In 1803 he was made
chief justice of the State, which office he held for twenty-one years. He married Jane, eldest daughter of Colonel John Bayard, and died in New Brunswick, N. J., January 7, 1831. ( Vide & privately printed address on the chief justice, by General Wilson, New-York, 1870.) EDITOR.
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old one had been. The debates in the convention show clearly that the primacy of the old judicial establishment, with its abnormal polit- ical power and the qualified electoral franchise erected on a basis of landed interest, in conformity to the former Anglican institutions of the province, were the main points of attack by the reformers. In- cidentally the justices of the Supreme Court, and even the distin- guished chancellor, were virtually put on trial by the convention. They were made the manifest victims of an organization which had confused the coordinate departments of government, and their ex- planations in convention were generally prefaced by apologetic and painful explanations due to their unfortunate position. In this re- gard the spectacle of the convention was a triumph of democracy over the upholders of ancient institutions. Sometimes the debates became virulent. The chancellor was likened to " the Bohun Upas of Java, that destroyed whatever sought for shelter or protection in its shade." Even his reporter, Johnson, with his " big and little " books, was ridiculed. Chief Justice Spencer, in some respects the ablest common-law judge in the State, was contemptuously told "that he might have been a Holt or a Mansfield had he kept from the political arena." It was evident that the people were impatient with the veto power vested in the council of revision, which, it will be remembered, consisted of the governor, the judges of the Supreme Court, and the chancellor. The judiciary had thus been dragged into every political measure of importance, and the consequent torrent of popular de- nunciation had much diminished their usefulness. Thus, Kent and Spencer, whom we now regard as the high priests of the ancient sys- tem of law, were at the end of their judicial careers made the victims of the Anglican institutions of a former century, of which they were the stoutest upholders. It may well be doubted whether the chan- cellor and the judges were wise in attending the convention as dele- gates. They knew that their power was to be broken; they were there making stately defenses of their past, and to save the remnant of former institutions, when neither needed extenuation. The con- vention finally decided to make a new constitution, as the old was deemed past amending. The council of revision was abandoned, and after the fullest deliberation a limited veto power was transferred to the governor. The council of appointment, which then appointed 709 officers in the city of New-York alone, next shared the fate of the council of revision. A great number of minor offices were made elective.1 Justices of the peace were to be appointed by the boards of supervisors and the county judges.2 The appointment of the higher judicial officers was vested in the governor, with the consent
1 Constitution of 1821, Art. IV. 2 In 1826 an amendment made the justices elective.
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of the senate.1 The appointment of secretary of state, comptroller, treasurer, attorney-general,2 surveyor-general, and commissary was vested in the senate and assembly on joint ballot. All officers hold- ing their offices during good behavior might be removed by joint resolution of the two houses of the legislature. The term of office of governor having been invested with some part of the former powers of the several councils of revision and appointment, was abridged from three to two years in order to insure a greater responsibility to the electors.
The debates in the convention on the electoral franchise were spirited, exhaustive, and really instructive. With the most advanced thinkers on this subject stood Peter R. Livingston of Duchess County. He allied himself to the tenant-farmers, who were largely for reform, and opposed General Van Rensselaer and Chancellor Kent, who stood openly by the ancient traditions of a superior landed interest, and who were at least for the survival of an upper legislative house which should represent the more exclusive body of freeholders. All recognized that some extension of the franchise was inevitable, and the more conservative fought to retain the provisions of the old constitution which divided the electors into two classes according to property interest. The debates afford curious evidences of the sur- vival of ancient institutions, and the frequent use of such words as "yeomanry " and "landed interest" denotes that the legacies and tra- ditions of a former century were hard to extinguish even under the republic. General Van Rensselaer placed his objections to universal suffrage on the ground that the influence of the city of New-York would be augmented at the expense of the ancient and long-settled rural districts. Other opponents placed them on the more subtle ground of experience, which they affirmed had demonstrated that uni- versal suffrage gave an undue control to the plutocracy of wealthy manufacturers and other employers of labor. The convention finally enlarged the basis of the franchise. Freeholds no longer qualified. Every white male resident taxpayer, militiaman, fireman, and laborer on the public highways, of full age, was to have a vote for all elective officers.3 Men of color only were disfranchised, unless they were free- holders and for three years citizens of the State. Singularly enough. the most radical upholders of universal suffrage appear to have been the opponents of the negroes, whose true friends were found in the ranks of the old land-holding and legal aristocracy of the State.
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