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 69
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the dissatisfaction with the nature of the government under the con- stitution of 1821, and in 1844 and 1845 steps were taken toward a constitutional convention.
In the year 1845, the mandates of the constitution of 1821 providing for its amendment having been per- formed,' the question of " constitutional convention " or "no convention" was submitted to the electors, and decided in the affirmative by a vote of 213,257 to 33,860.
On June 1, 1846, the convention, elected pursuant to law in April pre- ceding, assembled at the capitol. It embraced many distinguished citizens, including some of the leading lawyers of the State, notably Charles O'Conor, Churchill Cambreling, John K. Porter, Levi Chatfield, Samuel Nelson, Samuel J. Tilden, Henry Nicoll, Ambrose L. Jordan, Ezekiel Bacon, Nathan Wil- liams, and others. For the first time in the history of political movements of New-York, the great landhold- ers of the ancient parts of the State seem to have been ignored by the voters. The old regime had obviously lost control, and new coun- sels were thenceforth to prevail in the State, founded on the enlarged suffrage and on more democratic and enlightened principles, or at least on those freer from purely Anglican traditions and customs inherited or transmitted by the constitution of 1777. It was obvious that a large share of the rural population were no longer to be obligated by such ridiculous restraints and covenants in farm leases as "that they should go to the grantor's mill only," or that they should not entertain strangers over one day, or that they should set out trees to the number of -, keeping them replaced winter or summer.
The new constitution was formulated in fourteen articles, much discussed, and adopted with one exception by large majorities. Space will permit a glance only at their purport. The preamble repeated its emanation from the people of the State, while the first article con- tained certain general limitations of the powers of government in the shape of a bill of rights and privileges, every sentence of which again bore evidences of the historic struggle for liberty by the English- speaking peoples in the old and new worlds. Most of these limita- ยท tions had been contained in the earlier constitutions. Trial by jury, religious liberty, the writ of habeas corpus, bail for accused persons,
1 New-York Laws, 1845, c. 252.
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the exercise of eminent domain, freedom of speech, were each pro- tected by appropriate clauses. Some old statutes reenacted in the Revised Statutes of 1829, regarding tenures of real estate, were incor- porated in the first article of the constitution, against the general protest of the lawyers, who thought them supererogatory. All feudal tenures were again declared abolished, saving, however, all rents and services. So all lands were again declared allodial, but subject to escheat. All fines, quarter sales, or other restraints upon alienation were again made void. Leases of agricultural lands for longer than twelve years were made void for the future. All these provisions, in so far as they affected vested rights, were known to be quite in- operative, and the only really new provision of importance was di- rected against long farm leases in the future. The old farm leases which were valid in their inception had to be dealt with by very different modes from a constitutional referendum. For this reason some of the lawyers thought that these clauses of the constitution betokened insincerity. The provisions as to the land law, however, had the effect of making the policy of the State, in the future, very clear, and of prohibiting thenceforth long leases of farm lands. Even these clauses of the constitution might not, however, have proved effectual had not the new methods of transportation acted as auxiliaries and made better and cheaper lands more accessible to the agriculturist; so that the tenure of large districts of farm lands of New-York had to be revised by the consent of the proprietors them- selves, through commutations and compromises, which naturally fol- lowed the new economic rather than the new constitutional conditions. Article II carefully regulated the right of suffrage, conferring the bal- lot on all white male citizens, in conformity to the amendment of 1826, already noticed. Negroes, unless freeholders, were still excluded from the suffrage, and so remained until the adoption of the fifteenth amendment to the federal constitution, the electors of the State hav- ing refused in the years 1846, 1860, and 1869 to relieve them of this disability. In 1874, by constitutional amendment, the electors, how- ever, removed the ban. Slavery after the year 1827 had been abol- ished by a statute of 1817, while all persons were by statute born free in this State after July 4, 1799. By Article III of the constitution the legislative power, vested, as theretofore, in the assembly, was regu- lated. The senate was reduced to thirty-two members and the legis- lature to one hundred and twenty-eight.
As space forbids following minutely the extensive alterations of the fundamental law by the convention of 1846, attention must be directed to the important features only of the new organic law. By Article IV it was provided that a candidate for governor might be a naturalized citizen, and he was no longer required to be even a free-
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holder. This provision well indicated the very serious change which public sentiment had undergone in the preceding twenty years. The time when property was regarded as the easiest test of a man's capa- city or respectability had passed away; so naturalized foreigners were no longer, as a body, to be deprived for that reason of the su- preme honors of the State. Such changes were no doubt reason- able, as the electors at large might be depended on, without artificial restrictions, to choose the great State officers wisely. In other arti- cles of the constitution the general power of appointment to public office, vested by the constitution of 1821 in the governor or in the senate and assembly, was given directly to the people. Even judicial offices were made elective without any formidable protest in the con- vention. This feature was not so novel as it might seem, for a major- ity of the members of the old Court of Errors (the senators) had been elective since the foundation of the State government, and the Court of Errors had, on the whole, in the past proved more satisfactory to the people at large than the other courts of record where the judges were appointed. It was well understood by the convention of 1846 that the people desired an elective judiciary, and were dissatisfied with the ancient appointive system. Many plans were suggested in the convention, but nearly all favored a judiciary partly or wholly elective. The judiciary article of the constitution of 1846 made great changes in the judicial organization of the State, and was carried by a small majority. A new appellate court of last resort in cases civil and criminal was created, to be called the Court of Appeals, and with its erection the old Court of Errors was to disappear. Four of the justices of the new Court of Appeals were to be elected for a term of four years, and another four were to be selected from the justices of the Supreme Court. Instead of the old Supreme Court and Court of Chancery a new Supreme Court was established, having general origi- nal jurisdiction in law and equity. In order to prevent centralization of judicial authority at the capitol, this new court was divided into eight districts, of which the city of New-York was one. The judges were to be elected in the districts. Thus the great court of original jurisdiction was in this way constituted on the basis of county rather than of State lines; the evident object being to diffuse and not to centralize judicial influence and responsibility. With an elective judiciary the district plan for courts of original jurisdiction was inevitable.
One of the objects of the convention being to reform the laws rela- tive to the debt, finances, and property of the State, most minute directions were contained in the new constitution, and very consider- able limitations were imposed, in this respect, on the powers of the legislature. No compromises with certain debtors of the State were
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to be tolerated; sinking funds were to be created; the State salt- mines and canals were not to be sold; the State credit was not to be loaned. Time has justified the wisdom of all these limitations. The subject of franchises to corporations also received attention, and it was provided that private corporations could not be formed in the future except under general laws, subject to alteration at the legisla- tive will. In conformity with the popular demand, the stockholders in such corporations were made personally liable for debts in proper cases. Certain banking principles looking to the security of note- holders were fixed in the constitution itself. Many other minute provisions, some of which may be noticed hereafter, were contained in the constitution. Thus the policy of the State, touching certain spheres of legislative action, was so fixed by the people as to be beyond the control of the ordinary legislative body. This course was then more novel than it has since become in this country. On November 3, 1846, the new constitution was adopted by a vote of 221,528 to 92,436. In conformity to the terms of the instrument which made future amendments more easy than did that of 1821, the constitution of 1846 has been since amended in several particulars, but its general features remain undisturbed. The policy of these amendments has been to reserve more of the legislative power to the people, and further to limit the powers of the legislature. In 1874 the term of office of the governor was extended from two to three years; his powers as chief magistrate under the constitution of 1846, as amended, remained substantially as under the former constitution, being, however, some- what more prescribed with each organic change. In the year 1858, a proposition for a new constitutional convention was defeated by the people; but in 1866, steps were taken, as directed by the constitution, toward a convention, and on April 23, 1867, delegates were chosen who convened at Albany, June 4, 1867. Among them were many per- sons of distinction and attainment. Notwithstanding that the popu- lation of the State had increased from 1,372,111 in 1820 to nearly 3,000,000 in 1846, the people evinced greater satisfaction with the con- stitution of 1846 than many had expected. The constitution framed by the convention of 1867 was, with the exception of the judiciary article, defeated by a vote of 290,456 against, to 223,935 for, its adop- tion. By the particular amendment then adopted, some of the city courts were made constitutional courts, and thus freed from legisla- tive interference. The other changes were not extensive. The general policy of the constitution of 1846 in making the great courts of general original jurisdiction decentralized or local courts, was, in 1867, and again in 1880, confirmed by provisions compelling the Supreme Court justices to reside within their districts, although any Supreme Court justice might, if designated, sit in any county of the State. In the
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year 1873 the people rejected an amendment looking to the future appointment to office of the justices of the Court of Appeals and the Supreme Court. In 1874, and again in 1884, the powers of counties, cities, towns, and villages to incur indebtedness were restricted by an amendment to this end. In 1882 the canals of the State were made free by constitutional amendment. In 1874 two new articles were added to the constitution of 1846: one of these was directed against bribery of public officials, and the other provided that all amend- ments to the constitution should be in force from the first day of January succeeding the election at which the same were adopted.
Of all the changes instituted by the constitution of 1846, those creating a new judicial establishment, elective and di- rectly responsible to the people, were the most profound. Next in importance were those provisions concerning the codifica- tion of the law and the further direction to the legislature to appoint commission- ers to revise, simplify, and abridge the practice, forms, and proceedings in all the courts of justice of the State. Up to this time the courts in the State and their practice and proceedings had been sur- vivals, and antedated in whole or in part the war of independence. It was very Rose fondling obvious, from the articles of the new con- stitution, that the people desired a revolu- tion in these ancient institutions-an inference further emphasized by its permission to the legislature to erect new courts of conciliation. Such new tribunals were the first English courts contemplated in New-York which were not patterned after the law-courts in England. The scope of the political revolution intended by the people was fur- ther shown by the innovation which permitted a naturalized citizen to become governor, and which took away from the executive the . appointing power. A policy of governmental decentralization was disclosed also by those provisions which permitted the legislature to vest a share of the legislative power in boards of supervisors of counties. This constitution provided that senators were to be chosen for two years instead of for four years, and by smaller dis- tricts, thus enlarging their direct responsibility to the people. Mem- bers of the lower house were to be chosen by single districts, and no longer by the counties as a whole. This single-district system was an innovation, and had a tendency to do away with the old county as a political unit. The argument for it was that in large
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communities, such as cities, the district system provided for a more direct and responsible representation. It was provided also that these districts were to be reapportioned from time to time so as to provide for more equal representation, as populations were shifted or augmented. While the argument in favor of this single-district system was no doubt sincere, it has met with great opposition and censure from many who, while ardently attached to representative institutions, have believed the ancient county a more dignified and proper political unit than a district. In the city of New-York the single-district plan at first met with no favor, and it may be doubted whether the opinion of the more thoughtful has had reason to change the earlier opinion.
In addition to the organic changes tending to do away with a cen- tralized State government, and to reserve greater power, judicial, legislative, and executive, to the people, should be noted that article of the new constitution which provided for its future amendment. Under the constitution of 1821, a majority of the first and two thirds of a second legislature must favor the change before a proposed amendment could be submitted to the people. By the constitution of 1846, a bare majority vote of approval sufficed to cause such submis- sion. The constitution of 1846 directed that in the year 1866, and in each twentieth year thereafter, and at such other times as the legisla- ture provided, the question of holding a constitutional convention must be submitted to a direct vote of the people. To many these last provisions furnish the greatest evidence of change in the nature of the State government as first established. The system constructed by the earlier constitutions may be said to have been one by which the government was delegated to certain officers, executive, legisla- tive, and judicial, who were invested with general and more or less permanent powers. These officers were the law-makers and adminis- trators of the system. But by the new constitution such delegation was not only more limited in scope, but greater power was reserved to the people themselves to act more frequently by constitutional en- actment on a large class of questions. The student of institutions has detected in this constant reference of important laws to the people. themselves, an advance in the nature of popular institutions-the referendum being the greatest height to which popular government can obtain among large masses of people. Such legislation by the people themselves was not contemplated by the founders of the State government, either when they created their permanent judicial estab- lishment or invested their executive with the magisterial and legisla- tive powers of the former crown governors. Nor did the founders of the State government dream that the investment of the legislature with the entire legislative power-an achievement which then re-
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flected the success of the Revolution-would some day have to be guarded by reservations from the legislature itself.
The constitution of the State government formulated by the con- vention of 1846 was adopted by a vote of 221,528 in its favor to 92,- 436 against it. This new organic law went into effect on January 1, 1847, and with few modifications it still remains in force. The nature of the judicial establishment created by this constitution was in substance as follows : A court of final appellate jurisdiction, known as the Court of Appeals, and already described, was substituted for the old Court of Errors constituted in the upper legislative house, attended by the great common-law judges and the chancellor. It should be said that in the whole history of the commonwealth of New-York from the time when final appeals lay to great tribunals in Europe down to the present, no other appellate court connected with New-York has given greater general satisfaction to the people than the Court of Appeals erected under the constitution of 1846 and con- tinued and reestablished by constitutional amendment. The courts of original jurisdiction created under the frame of government estab- lished in 1846 have generally preserved the historical continuity. The new Supreme Court, for example, which is the great court of original jurisdiction, preserved the jurisdiction of the former Su- preme Court of Judicature of the State and province, but added to it that of the Court of Chancery. In other words, the two former courts have been merged into one great court, whose judges possess sub modo the jurisdictions of the old chancellor and of the supreme jus- ticiars of the State, who in turn had the power of the chancellor and of the justices of the King's Bench, Common Pleas, and Court of Ex- chequer in England.1 The proceedings of the new supreme court of general jurisdiction were soon much simplified by the adoption of a uniform system of pleading, evidence, and trial in all actions in the new court, whether such actions were formerly denominated legal or equitable. Without such auxiliary provisions the fusion of the former courts of law and equity in one court would have been more difficult. As the nature of this fusion possesses great historical importance, it will be again noticed below. In addition to the new Supreme Court, the courts of record provided for under the constitution of 1846, or created by the legislature pursuant to such constitution, are, as for- merly, of several orders. There are minor civil courts for the dif- ferent counties, which are known, as formerly, as county courts, and there are likewise civil courts for cities, generally styled city courts, or superior courts. In addition to these are the several crimi- nal courts for counties and municipalities, such as courts of sessions and recorders' courts. The jurisdictions of all these courts are pre-
1 Section 217, Code of Civil Procedure.
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scribed by law, and sometimes have cross or remote references to the jurisdictions of the courts of the province of New-York which pre- ceded them. Where the jurisdiction of any of. the present courts is fixed by the constitution itself, it is beyond legislative interference; but when such court is one created by the legislature, its jurisdiction is subject to alteration by the legislature. In addition to the county and municipal courts are certain civil courts, not of record, intended for the trial of small or speedy causes. In the counties these courts are generally styled the courts of the justices of the peace; but in the cities, district courts. In addition to these small courts not of record there have been created under the consti. tution of 1846 certain criminal courts of lesser jurisdiction, with power to try minor offenses, or to bind offenders over to keep the peace. These courts are known generally as police or justices' courts. The jurisdictions of all the lower courts in the State may be styled statu- tory. The Supreme Court, under the con- stitution, alone possesses a common-law jurisdiction, or one defined most largely by reference to judicatories having their rise and origin in the common law of THOMAS J. OAKLEY.1 England, as it stood before the British occupation of this commonwealth. In this respect the Supreme Court possesses a certain historic significance not possessed by even the appellate court. It also affords the gateway to the pro- fession of the law, as it licenses for all courts of the State all at- torneys and counsel, who by the new constitution may be any male citizen of the age of twenty-one years, of good moral character, and proper attainment. In addition to the courts denoted, the constitu- tion of 1846 provided expressly for courts having jurisdiction of wills, testaments, cases of intestacy, and probate matters generally, in counties possessing a population of over forty thousand inhabitants. In smaller counties the county judges, who had a probate jurisdiction conferred by the constitution itself, were to act exclusively as surro- gates. Surrogates' courts have now been generally created for all the counties of the State. Occasional courts of impeachment were also
1 Thomas J. Oakley was born in 1783; practised law in Poughkeepsie, N. Y. ; served in Congress, as a Federalist, from 1813 to 1815, and was at- torney-general of New-York State in 1819. In 1827 he went to Congress as & Clinton Democrat, resigning in 1828 to become a judge in the Superior Court of New-York city. Upon the court's re- organization in 1846 he was elected chief justice,
filling the office until his death, May 12, 1857. He possessed remarkable mental powers, was cool and imperturbable even in the heat of debate, reason- ing clearly and logically; and his caution and judgment made him an admirable party leader. He was highly esteemed as a judge of unsullied character. EDITOR
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created and limited by the constitution of 1846, as by all preceding constitutions of the State. Such is the outline of the present judicial establishment of the State under the existing constitution. The State courts possess complete and entire jurisdiction throughout the State, and, except as modified by the federal constitution and acts of Congress conferring exclusive jurisdiction of certain prescribed cases on the federal establishment, the range of the jurisdiction of the State courts covers the entire field of judicial inquiry. The jurisdiction of the lesser courts is confined to certain cities and counties, and their process cannot run beyond the limits prescribed.
The constitution of 1846 is also notable for its effort to confer upon the people a system of laws which should not afford such persistent evidence of the former colonial subordination. Although the con- stitution elsewhere declared that such parts of the common law as did form the law of the colony on April 19, 1775, and not since abro- gated, should remain in force (together with such acts of the colonial legislature, of the congress of the colony, and of the former legisla- tures of the State), but subject to future legislative alteration, yet it directed the first legislature of the State thereafter to appoint three commissioners, whose duty it should be to reduce into a written and systematic code the whole body of the law of the State, or so much thereof as to the commissioners seemed practicable and expe- dient. To many persons this was a welcome announcement that the State had entered a more complete phase of independence, and that it was preparing to make its laws of purely domestic origin, and to avoid the necessity of constant reference to the laws of England. From the context of the constitution it was exceedingly plain that the people of the State demanded the codification of their laws. The judiciary article of the constitution of 1846 contained also some pro- visions obligatory upon the proceedings in the new courts, such as that "the testimony in equity cases shall be taken in like manner as in cases at law"; but there was considerable ambiguity about the pro- visions concerning the Supreme Court, which induced some of the older school of lawyers to hope that the practice in the new Supreme Court might still continue to reflect the former antinomy between law and equity in some such manner as now prevails in the federal courts of this country. In January, 1847, David Dudley Field of New-York published a tentative treatise entitled "What shall be done with the practice of the courts? Shall it be wholly reformed? Questions addressed to lawyers." A memorial followed, largely signed by law- yers of the State, urging the legislature to abolish the old forms of action, and to provide for a uniform course of proceedings in all cases, whether of legal or equitable cognizance. On the 8th of April, 1847, the legislature passed an act appointing Arphaxed Loomis, David
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