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 66
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1 Constitution of 1821. Art. IV. Sec. 7.
2 Under an act of February 12, 1796, seven as- sistant attorney-generals were appointed by the governor and council of appointment during pleasure. The attorney-general officiated per- sonally in New-York County. The office of district attorney was created April 4, 1801. By a law
passed April 21, 1818, each county was erected into a separate district. Under the second constitution the district attorneys were appointed by the Court of General Sessions in each county. See Volume II. Chapter XIV, of this work.
3 In 1826 most barriers were removed, and white manhood suffrage made practically universal.
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The most interesting chapter in the history of the convention relates .to the judicial establishment, which we have seen owed its existence to the former royal government, and its continuance to the conservatism of those who had framed the constitution of 1777. In the year 1821, the Supreme Court of Judicature consisted of Chief Justice Spencer and three associate justices, who were, as we see them now, all able common-law lawyers, but perhaps not free from the peculiar formalism of the old English law administered by them. Their political attitude and their labors in the council of revision had undoubtedly made them very obnoxious to the people, and had brought even their judicial work, which was of the highest order, into great and unmerited disrepute. The new constitution vacated all judicial offices after December 1, 1822, and thus assured a new common-law judiciary. Various proposals were made in convention to transfer the entire equity powers of the chancellor to the Supreme Court, and to render the court more popular and accessible ; but this reform was postponed.
The changes effected in the judicial establishment were not great. The powers of the judges of the great courts were somewhat circum- scribed, and the judges themselves were removed out of the imme- diate realm of politics by the destruction of the council of revision. They were retained as members of the old Court of Errors, consisting of the senators and the higher judiciary, as before, though the senate was rendered much more democratic by the practical abolition of the former property qualification required of the electors for senators. Some slight change was made in the procedure of the court when sitting as a court for the trial of impeachments. The powers of the Supreme Court justices were further circumscribed, as it was sup- posed, by taking away from them the duty of going the circuit, which it was asserted had been often made a political tour whereby the authority and majesty of the law had been perverted to partizan uses. The circuit and chamber duty of Supreme Court justices was trans- ferred to a new class of circuit judges, who might also be invested by the legislature with an original equity jurisdiction.1 Thus relieved of circuit duties, the Supreme Court was reduced to three justices, con- sisting of a chief justice and two associates, who were to hold office, as before, during good behavior or until sixty years of age, though they might be removed by joint resolution of the two houses of the legis- lature. Although the Court of Chancery was not destroyed, Chan- cellor Kent's term of office was not extended, and was left to expire in a few months, or when he reached sixty years of age,2 which hap-
1 Constitution of 1821, Art. V.
2 The same limitation was contained in the constitution of 1777. It was inserted at the in- stance of the lawyers, who had been plagued VOL. III .- 40.
through the senile infirmities of Chief Justice Horsmanden, one of the last of the crown judges, and for some thirty years on the bench.
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pened in a short space.1 It was proposed in the convention to abolish this court and transfer its powers to the law courts, but the time was not deemed opportune. Under the authority of the consti- tution, which authorized the legislature to vest equity powers in the common-law judges,2 very considerable changes in the organization of the court were, however, soon introduced in practice. It was thought that this measure would lessen or popularize the power of the chancellors. But the chancellors soon demonstrated the fallacy of this opinion,3 claiming that their judicial powers were beyond the control of the legislature. The measure, however, did demonstrate the feasibility of merging legal and equitable powers in the same judicial officer, and under the succeeding constitution it led to very extended reforms of a like nature.
The new constitution of 1821' made a slight alteration in the declaration concerning the future law of the State. The original constitution had continued a part of the statute law of England as the law of New-York. The legislature, having consolidated all the English statute law in a general revision, had repealed in 1788 the residue, and so the new constitution, unlike the first, made no reference to the English statutes, but declared "such parts of the Common Law 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, and the resolutions of the Congress of the Colony and of the Convention of the State of New-York in force on the 20th day of April, 1777, which had not since expired, or been repealed, or altered, and such acts of the legislature of this State as were then in force, should be and continue the law of this State, subject to such alteration as the legislature should make con- cerning the same." All parts repugnant to the new constitution were excepted.
The other changes wrought by the constitution of 1821 were in the main subordinate to those indicated. The Bill of Rights sections were amplified in conformity to the amendments to the federal constitu- tion. One section, growing out of a famous case, was, however, en- tirely new.5 It provided that, in all prosecutions for libel, the truth might be given in evidence; and if it should appear to the jury that the matter charged as libelous was true, and published with good motive and for justifiable ends, the party should be acquitted. The
1 When Chancellor Kent left the bench he was overwhelmed with attention by the bar, and va- rious memorials and tributes were addressed to him. He had been a faithful, learned, and diligent judge, and reflected great honor on the State. But he was not in strict accord with the more ad- vanced democratic notions of popular govern- ment; and when he refused even to sign in the
convention so moderate a reform as the constitu- tion of 1821, he was consistent.
2 Art. V, Sec. 5. 3 2 Paige, 95.
4 The constitution of 1821 came into full force and effect on the 1st day of January. 1823, but the convention was chosen in 1821, and entered upon its duties in August of that year.
5 Art. VII. Sec. 8.
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jury were to have the right to determine the law and the fact in such cases. The history of this section was intimately associated with the trial of Crosswell, indicted in 1803 for libeling Thomas Jefferson, then president of the United States. On the trial, Chief Justice Lewis had charged the jury that they were to pass only on the publication of the libel and the truth of the innuendoes, other questions being re- served to the court. Alexander Hamilton, in the motion in arrest of judgment, was said to have made the great- est argument of his life, thus vividly recall- ing the trial of Zenger, and the argument by another great advocate of the same name, in the same court, in the year 1735. The court in banc being divided in Cross- well's case, a bill was introduced in the legislature in 1805, by William W. Van Ness, settling the law on this point. The pur- port of this act was now thought important enough to be fixed more securely by consti- tutional enactment.
In January, 1822, the people ratified the new constitution by a vote of 75,422 to 41,497 for the constitution, and in favor of a change in the nature of the original State - government of New-York. By the con- temporaries of this measure it was esteemed a revolution; but as we see it now it was but a conservative step forward in the march of more democratical institutions. The changes thus really wrought in the political fabric may be briefly summarized as follows: The mode of exercising the veto power was reformed by transferring a qualified negative to the governor alone. A more democratic method of exer- cising the appointing power was adopted, while complete democracy was attained in respect of many minor offices made elective. The suffrage was so extended as to constitute practically white manhood suffrage, few persons without property, except those of African descent, being disqualified to vote." The senate having been thus
1 William Paterson was born in 1745, and his preme Court of the United States, an office he held parents, who were Irish, brought him to this coun- until his death, in 1806. His daughter Cornelia married General Stephen Van Rensselaer. ( Vide, "New-York Genealogical and Biographical Record of 1892," for an address on the judge by his grand- .son William Paterson of Perth Amboy.) try when he was two years old. He was graduated at Princeton, studied law, and was admitted to the bar in 1769. In 1776, he was a member of the New Jersey State Constitutional Convention, and the same year became attorney-general. He was a EDITOR. delegate to the Continental Congress in 1780-81 2 It was not until 1826 that citizenship, man- hood, and residence became the avowed basis of the electoral franchise (Constitutional Amend- ment of 1826) for the white part of the population, negroes being required until 1870 to be freeholders paying tax before they were entitled to vote. and to the National Constitutional Convention in 1787, and in 1789 was elected to the United States Senate, which then met in this city. He became governor of New Jersey in 1791, and two years later was appointed by Washington a justice of the Su-
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popularized, the Court of Errors, then constituted in the senate, was brought nearer to the great body of the people. The original courts of justice of New-York, the Chancery and the Supreme Court, were left in such a condition that the chancellor and the Supreme Court justices were no longer officers of State, but were to exercise judicial functions only, of which they might be largely shorn by the power reserved to the legislature, and affecting their several jurisdictions. The defect in the original constitution, which made no provision for its future amendments, was remedied by Article VIII of the new in- strument, prescribing the formalities, including a vote of the electors, to attend future amendments. This amendment was taken from a similar provision in the constitution of Massachusetts, and obviated the necessity of a convention upon each change proposed thereafter.
In several respects the new constitution still reflected ancient class prejudices: the governor must be chosen from the body of free- holders, and must be a native citizen of the United States. Neither the possession of personal estate nor naturalization was sufficient to qualify a non-freeholder and an alien born for this office. The ex- periment of voting by ballot, having been provided for in the first constitution and having proved successful, was, in the new constitu- tion, made imperative on the future.
The first legislature under the new constitution was overwhelmingly Democratic, not a single senator being of the other political party. Governor Clinton met the legislature when it convened, and delivered a speech to them, which was met with a motion for a committee to consider the propriety of answering it. This committee made a re- port animadverting in terms of severity upon the governor, and pro- nounced the practice of delivering a speech instead of a message "a remnant of royalty " which ought not to be tolerated. This incident serves only to indicate the jealous deprecation of the ancient customs of New-York, and that with the new constitution the people intended more fully to break with the past and to enter upon a genuine era of republican government.
In April, 1823,' the legislature, pursuant to the new constitution, divided the State into circuits for the purpose of organizing the new Circuit Courts carved out of the old Supreme Court, and substituted for the old nisi prius or itinerant sessions. By the same act, the new circuit judges, who possessed the powers of the old justices of the Supreme Court in chambers and on circuit, werc required to reside within the circuit for which they were appointed. This last provision for prudential reasons had not been thrust on the convention, as it might have alienated the votes of those who were believed to be can- didates; but the idea was nevertheless very influential in animating
Chapter 182.
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some persons who regarded the old courts as centralized institutions and too closely connected in their traditions with ante-revolutionary times. This school of thought desired a local judiciary of first in- stance, rather than one whose domicile and inspiration were to be found at the seat of government. This was the beginning of that re- form in the judicial establishment of New-York which consists in decentralizing or rather localizing all the courts of first instance, thus constituting them county rather than State tribunals.
In 1823 an act was passed authorizing the circuit judges to hold Courts of Equity; it was soon repealed and the power restored to the chancellor, but the circuit judges were to act as vice-chancellors within their circuits. In the year 1826, in the first district, embracing the city of New-York, equity jurisdiction was conferred on a legal officer termed the vice-chancellor; for in this district the volume of litigation demanded an increase in the number of judges. From time to time other coadjutors were in like manner appointed. By an act of 1823,' the Court of Probates, founded in 1778, was abolished, and its original probate jurisdiction was transferred to the surrogates of the various counties, but subject to an appeal to the chancellor, who was invested with the residuum of the jurisdiction of the Court of Pro- bates not otherwise delegated.
We come next to one of the most important reforms instituted under the second constitution - the Revised Statutes. Before treating of this celebrated work, let us review for a moment the prior revisions of the statute law of the State. In the chapter on the laws of the preceding century some account was given of the first revision by Messrs. Jones and Varick. The second revision of the acts of the State legislature was undertaken as a private or commercial venture by Thomas Greenleaf. The second edition of Greenleaf's work brought the revision of the State laws to a period nine years later than that of Messrs. Jones and Varick, and as it was recognized by the courts as a faithful work, it received a judicial sanction, accorded to no other private edition of laws, excepting perhaps the Webster publications from 1802 to 1812 inclusive. The next revision of the laws was under- taken by Justices Kent and Radcliff, pursuant to an act of the legis- lature ;? this soon became the corrected version of the public and private acts of the State. This revision simply omits the laws or parts of laws abrogated, and pursues a chronological arrangement of the first volume and a subject arrangement of the second. The new re- vised laws of 1813 next superseded Kent and Radcliff's revision. By an act of the legislature,3 William P. Van Ness and John Woodworth were directed to arrange the laws of a general and permanent nature
1 Chapter 70. Chapter 190, Laws of 1801. 3 Chapter 150, Laws of 1811; Chapter 195, N. R. L. of 1813.
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systematically in divisions under proper heads, with such marginal notes as appeared to be best calculated for public information. As the revision of Jones and Varick was the first of the State revisions in point of time, so that of Van Ness and Woodworth was facile princeps in point of method and arrangement; the marginal notes, prepared by John V. N. Yates, and in- cluded in the revision of 1813, are among the most valuable expositions of the laws of this State; they often- times, by enumerating the various English and colonial acts which con- tained like provisions, embrace a suc- cinct history of the statutes to which they refer. Even at the present day the history of many legislative mea- sures may be. more easily gathered from this revision than from any other single work, and it remains a profound example of faithful profes- sional service.2
The revisers of 1813, imitating the example of Messrs. Jones and Varick, did not include in their revision the colonial acts which remained in force under the 35th section of the State constitution. Printed as an appendix to the revision of 1813, are to be found several acts of the colonial assembly which the revisers thought would be useful to the profession. Among these is the "Charter of Libertys" enacted by the first regular legislature of New-York in 1683; the Ordinances of Lord Bellomont and Viscount Cornbury - continuing the Supreme Court of New-York after the act of the legislature passed in 1691 had expired by limitation-are also included in such appendix. As illus- trating several questions concerning the former provincial law of inheritances, which long retained some elements of the Dutch juris- prudence, the revisers appended also the Articles of Capitulation between the Dutch and English, signed in 1664. They might, with
1 Benjamin F. Butler was born December 17, 1795, and was a lineal descendant of Oliver Crom- well on his mother's side. He attended the academy at Hudson, N. Y .; afterward studied law with Martin Van Buren, then practising in that town, and eventually became his partner. In 1821 - 24 he was district attorney of Albany County, and was appointed one of the three commissioners to revise the statutes of New-York. In 1828 he was a member of the legislature; in 1833, the commissioner for the State of New-York to adjust the New Jersey boundary line ; and the same year
President Jackson appointed him attorney-gen- eral of the United States. In 1837 he became the chief professor of law in the University of the City of New-York. Mr. Butler was a Democrat until the passage of the Kansas-Nebraska bill abolish- ing the Missouri Compromise, when he joined the Republican party. He died in Paris, France, November 8, 1858. EDITOR
2 See, however, the commentary on the revi- sion of 1813 by Samuel Jones, co-author of Jones and Varick's Revision (N. Y. Historical Society's Col., III).
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equal propriety, have included in the appendix the definitive treaty of peace between Great Britain and the United States in 1783, for it was, with unusual particularity, made a fundamental part of the State law by an act of the legislature, passed in 1788,1 repealing all acts and parts of acts which conflicted with the treaty in question.
To recur to the revision under the second constitution of the State. In the year 1823, and again in 1824, Governor Yates directed the attention of the legislature to the condition of the statute-book of the State, and recommended a revision on account of the changes made in the law by the constitution of 1821-3, and the very confused and scattered situation of the statutes.2 Obedient to the governor's suggestion, an act was passed, at the following session of the legis- lature,3 for the purposes indicated. This act of 1824, though soon re- pealed, is important as the precursor of the Revised Statutes. The revisers designated by it were of very different types of thought. Chancellor Kent was selected as the exponent of the traditional school of law; Erastus Root, the lieutenant-governor, as the most radical of the reforming lawyers. Benjamin F. Butler, then a young lawyer associated with Martin Van Buren, was the third reviser under this act. By the act of 1824, the revisers were authorized and directed, among other things, to collect and to reduce into proper form all acts of the legislature then in force, omitting all the acts repealed, and re- ducing the various acts upon the same subject to acts of one chapter each ; they were also to report to the legislature the defects in the existing laws. Two years were allowed for the contemplated revision, which, like its predecessors of 1802 and 1813, was to be little more than an orderly arrangement of the statutes then in force, with a proper index for more convenient use.
Chancellor Kent, for reasons easily perceived from the reports of the constitutional convention of 1823, refused to act with any one else; and the governor designated, in his stead, John Duer. There seems to have been little or no sympathy existing between General Root and his associates, Messrs. Duer and Butler, who, quite inde- pendently of their colleague, submitted the plan of the revision which they deemed to be the most suitable.4 Meanwhile General Root had been proceeding on his own account with the revision of the laws re- lating to taxation and highways.
During the legislative consideration of Messrs. Duer and Butler's proposed amended bill giving larger scope to the revisers, the name of Henry Wheaton was substituted for that of Erastus Root. The senate non-concurring in this particular amendment, a compromise was attained by directing compensation to be given to General Root
1 Chapter 41. 2 " Assembly Journal," 1824, p. 9. 3 Chapter 336, Laws of 1824. 4 See Appendix D, "Journal of Assembly," 1825.
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for his services in the matter.1 The amended bill then became a law .: In their suggestions to induce the legislature to enlarge the scope of the revision, Messrs. Butler and Duer stated, among other things, that they conceived that not only a reduction of all the laws on the same subject into chapters was necessary, but also an entire new arrange- ment of the existing statutes. This they thought would reduce the statutes then in force to half their extent; it would render them so concise, simple, and perspicuous as to be intelligible not only to pro- fessional men, but to persons of every capacity ; it would relieve the statutes from obscurities, lead to an easy reference by proper indexes, and greatly facilitate the acquisition of the law as a science. Lastly, it would supersede the necessity of all future revisions, and prepare the way for a scientific codification of the law. Utopian as the scheme then seemed, it nevertheless led to what may be called the most brilliant achievement ever then performed upon the text of the English common law. It is even highly probable that future revi- sions might long have been dispensed with, had the revisers' plan been carried out, and had each new act, as passed, been assigned to its appropriate chapter, by some persons or persons whose duty it was to prepare the session laws for publication. That the revision led to codification may well be believed, for even Jeremy Bentham, in a letter to Livingston of Louisiana, approved of the work.
But to follow the inception of this great revision. The act of 1825,' thus amending the original act of 1824, reappointed Mr. Butler, added the governor's appointee, Mr. Duer, and substituted Mr. Wheaton, afterward the distinguished publicist, for General Root in the corps of revisers. That the substitution of Mr. Wheaton added much to the philosophic conception and character of the work ought not to be doubted; but greater praise is due to the other revisers, for they, with Mr. Spencer, completed the whole work with a lucidity and a felicity of expression at that time unparalleled in the history of statutes com- posed in the English tongue.
The act of 1825 empowered and directed the revisers to collect all public acts in force at the end of the forty-eighth session (1825), and to reduce and consolidate into one act all the different acts relating to the same subject, distributing them under such titles, divisions, and sections as they thought proper, but omitting all acts and parts of acts repealed or expired by limitation. In every other respect the revisers were to complete the revision in such a manner as to them seemed most useful and proper to render the revised acts more plain and easy to be understood .. From time to time they were to report the revision to the legislature, to be reenacted if that body saw fit. An important feature of the act of 1825 was the advisory power it con-
1 "Assembly Journal," 1825, p. 1173. 2 Chapter 324, Laws of 1825. 3 Chapter 324.
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ferred on the revisers, who were to suggest to the legislature all such changes as they deemed expedient in the statute law of the State. Two years were allowed by the act to complete the revision.
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