J. Hampden (John Hampden) Dougherty.

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GIFT OF
EVGENE MEYERsJIR.




CONSTITUTIONAL HISTORY

OF

THE STATE OF NEW YORK



m




m



Constitutional History



OF THE



State of New York



BY

J. HAMPDEN DOUGHERTY

Of the New York Bar

AUTHOR OF "power OF THE FEDERAL JUDICIARY OVER LEGISLATION.

"electoral SYSTEM OF THE UNITED STATES,"

AND OTHER LEGAL WORKS



SECOND EDITION
Raised and Enlarged by the Author




NEW YORK
THE NEALE PUBLISHING COMPANY






Copyright, 1915, by
J. HAMPDEN DOUGHERTY






TABLE OF CONTENTS

PAGB

Preface to Second Edition 13

Chapter I 19

Interest in Constitutional History Should Be General — Aim of
Present Work — Sources of the History — Contrast Between
Federal Constitution and State Constitution — Desirability of
Arousing Interest in Constitutional Questions

Chapter II 26

Indebtedness of the State to Roman Law and to Dutch Begin-
nings — The Charter Granted by the States General to the
Dutch West India Company — Commissions Issued to the Gov-
ernors of the Colony — The Charter of Freedoms and Exemp-
tions — Tribulations of the Colonists Under Dutch Rule — Ex-
tent of the Dutch Qaims in North America — Surrender of
New Amsterdam to the English — The Duke's Laws; Gov-
ernment Under Andros and Dongan — The Charter of Liberties
and Privileges — The Colony Under Sloughter, the Governor
Appointed by William III — The Charter of 1691 — Type of
Government Until the Outbreak of the Revolution — The Brit-
ish Parliament Had No Authority Over the Colonies — The
Constitution of the Colony of New York at the Date of the
Revolution an Outgrowth of Dutch and English Customs and
Laws — Limited Character of Suffrage

Chapter III 44

Impulses Towards State Government Come from Continental
Congress — Chaotic Conditions at Outbreak of Revolution, and
Formation of Provincial Governments in the Colonies — The
Third Provincial Congress of New York — The Fourth Pro-
vincial Congress, or First Constitutional Convention — The
Work of the Convention, the Council of Appointment, the
Council of Revision, the Judiciary, Senate and Assembly —
Other Features of the Constitution — Its Simplicity — Early
Government in the Infant State — New York Accepts the
Articles of Confederation — The Action of the State Legisla-

333745



5 TABLE OF CONTENTS

tAQB

ture, Ultra Vires — Ratification of the Federal Constitution —
Revision of the Laws — New York Cedes Her Lands in the
West — The Practice of Law — Unsuccessful Attempt by Burr
to Abolish Slavery — Beginnings of Education

Chapter IV 66

The Council of Appointment — Hamilton's View — Great Body
of Office-holders, Its Appointees — Star-chamber Power — Fed-
eralist Party First to Abuse the Power — Controversy Between
Governor Clinton and Council in 1794 — Controversy Between
Governor Jay and Council in 1800 — Constitutional Convention
of 1801— Its Construction of Article XXIII— Effects— Rise of
DeWitt Clinton to Power — Abuses of the Patronage System —
Hammond and the Council — General Desire in 1820 for Its
Abolition

Chapter V 86

Council of Revision — Percentage of Vetoed Bills — Council Ran
Counter to Public Sentiment in 1812-1814 — Its Vetoes of War
Measures — Its Veto of the Bill of November 20, 1820, for a
Constitutional Convention — History of the Movement for a
Convention — Act of March 13, 1821 — Election of Delegates,
and Analysis of Vote

Chapter VI 100

Convention of 1821 — Personnel of the Convention — Fall of the
Council of Appointment and of the Council of Revision — Lo-
cation of the Veto Power — Debates Over Negro Suffrage —
Extension of White Suffrage — Increase of Governor's Powers
— The New System of Appointments — Changes in the Senate —
Bank Charters — Power of Amendment Embodied in the Con-
stitution

Chapter VII 122

Reorganization of the Courts in the Convention of 182 1 —
Radical Element Insists Upon Destruction of Existing Su-
preme Court — Report of the Committee on the Judiciary —
Root's Amendment and Proposed Merger of Law and Equity —
Rejection of Root Program — The Tompkins Amendment, Aimed
Directly at Existing Judges — General Debate; Root Attacks,
Van Buren Defends, the Courts — Tompkins' Amendment Re-
jected — Select Committee Frames a New Plan, that Is Not
Satisfactory — Carpenter's Plan for the Abolition of the Exist-



TABLE OF CONTENTS 7

FAGB

ing Supreme Court and the Creation of New Tribunals, in
Reality a Revival of Root's Attack Upon the Judges— Carpen-
ter Plan Carried — The New Tribunals — Early Age Limit
Fixed for Retirement of Judges by First and Second Con-
stitutions — Kent — Brief Review of Courts Under the Second
Constitution — The Superior Court of New York City — The
Court of Common Pleas, New York County, and Its History —
Summary of Convention's Work — Its Address to the People —
Statutory Revision of 1830 — Treaty Between New York and
New Jersey

Chapter VIII 145

Canals — Topography of New York State and Early Efforts
for a Canal from the Hudson to the Great Lakes — Construc-
tion of Erie Canal Authorized — Lateral Canals — State Aid to
Railroads — Erie Enlargement Proposed — Internal Improve-
ments — Public Debts — Stoppage of Work Upon the Canals —
Act of 1842 and Its Policy — Attempt at Repeal — Governor
Wright's Veto and Its Effect Upon His Political Career —
Public Demand for a Constitutional Convention and for Con-
stitutional Restrictions Upon State Debts and Prohibition of
Loan of State Credit to Private Enterprises, and for Judicial
Reform — Passage of Law Recommending a Constitutional
Convention — ^Vote for a Convention — The Apportionment of
1846

Chapter IX 162

Convention Assembles at Albany — John Tracy, President —
Personnel of Convention — Chief Work of Convention — Provi-
sions as to Canals, Public Revenue, and Public Debts — Evils
of Special Legislation — Provisions as to Corporations — The
Loco-Foco Party and Its Declaration of Principles — Effect
Upon Convention — Policy of Convention Extreme Decentrali-
zation — Increase in Number of Senatorial Districts — Abolition
of County Representation in the Assembly — Provision for
Arbitration Tribunals — Creation of New Supreme Court With
Law and Equity Powers — Adoption of Additional Mode of
Amending the Constitution — Address of the Convention to
the People— Estimate of Its Work— The Canal Bill of 1851,
Declared Unconstitutional — Amendment of Canal Provisions
of Constitution in 1854 — Origin and Progress of Anti-rent
Controversy and Limitations Upon Agricultural Leases in
New Constitution



8 TABLE OF CONTENTS

PAQB

Chapter X 182

Fluctuations in Constitution of Judicial Department — Perma-
nent Tenure in the Higher Courts Under the First Constitu-
tions — Uncertainty of Tenure in Colonial Days — English Ju-
diciary Before William III — Removals of Inferior Judges by
Council of Appointment — Defects in the Judiciary Under
Constitution of 1821 — Unwise Solution Attempted in 1846 —
Popular Election the Creed of the Time — Brief Analysis of
Judicial System as Reconstituted in 1846 — Right of Judges
to Sit in Review of Their Own Decisions — New York Not the
First State to Adopt Elective Judiciary — Reaction Since 1846
in Various States in Favor of Appointive System or Longer
Judicial Terms — Treatment of the Judiciary by the Constitu-
tional Convention of 1867 — Judiciary Committee of the Con-
vention — The Majority and the Minority Report to the Con-
vention — Lengthening of Judicial Tenure — Daly Upon the
Convention of 1846 and Its Adoption of the Elective System
Without Discussion — Evarts Advocates Tenure During Good
Behavior — Votes of the Convention of 1867 Upon This Sub-
ject — Questions Affecting the Judiciary Submitted by the Con-
vention to the People — Organization of New Court of Ap-
peals

Chapter XI 205

Failure of the Convention's Work Other Than Its Judiciary
Article — Causes of Failure, Political Passions of the Time —
Reports of Committee on Suffrage — Negro Suffrage — Separate
Submission of Question Whether Property Qualifications for
Colored Voters Should be Retained or Abandoned — Vote Upon
the Subject — Woman Suffrage, and Speech of George William
Curtis — Minority Representation — Reaction from Decentraliz-
ing Spirit of 1846 — Convention Favors Larger Senatorial Dis-
tricts and County Representation in the Assembly — Debate
Upon the Report of the Committee on State Affairs — Argu-
ments for Establishment of Cabinet of State Officers and the
Nomination of Such Officers by the Governor — Governor's
Power Over Bills After Close of Session — Extension of Veto
Pow^r — Municipal Government — Convention's Report Drafted
by Judge Folger — Adjournment of the Sessions of the Conven-
tion, and Effect — Vote Upon Convention's Work

Chapter XII 224

Governor Hoffman Proposes a Constitutional Commission in
Lieu of a New Convention — His Suggestions for Constitutional



TABLE OF CONTENTS ' 9

PAQB

Reform — Chapter 884, Laws of 1872, Authorizing the Governor
to Appoint a Commission — Personnel of the Commission — Re-
semblances Between Its Suggestions and the Constitution
Drafted in 1867 — Enlargement of the Sphere of Ineligibility to
the Legislature — Prohibition of Local and Special Legislation —
The Nature of Private and Local Laws to Be Fairly Specified
in Titles — Prohibition Against Audit or Allowance of Private
Claims Against the State — Increase of Legislative Powers of
Boards of Supervisors — Suggestion as to Private Bills Not
Approved by the Legislature — History of Private Legislation in
Great Britain — Proposed Re-creation of a Council of Revision
— Enlargement of Governor's Veto Power — Thirty-Day Bills —
Proposed Increase of Governor's Term — Proposed Appoint-
ment of State Officers — Sale of Non-paying Lateral Canals —
Provisions as to Charters of Savings Banks — Constitutional
Limitations Upon Power of Cities and Counties to Incur In-
debtedness — Enormous Extent of Such Indebtedness in 1872 —
Prohibition of City or County Indebtedness in Aid of Private
Enterprise — Commission Proposes Two New Articles — The
Bribery Article — Difference Between the Plan of the Commis-
sion and That of the Convention of 1867 — The Municipal
Article — Later Restraints Upon Local Expenditure— Adoption
of Many Suggestions of the Commission by the Legislature
and the People — Commission an Innovation in the State's
History

Chapter XIII 246

New York and Albany Only Cities Mentioned in Constitution
of 1777— Freedom of the City— Cities of the State Few in
Number in 1846 — Home Rule Instinct as Old as Civilization —
Early American Cities Like English Prototypes— New York
City Charters, Dutch and English— Dongan Charter— City
Charter of 1830 and Its Defects— Charter of 1849— Legislative
Usurpation of City Government in 1857, Reason Therefor, and
Results— Tweed Charter of 1870— Charter of 1873— Attention
First Focused on City Maladministration After Civil War —
Treatment of City Problems by Convention of 1867, and Com-
mission of 1872

Chapter XIV 262

Tilden Commission — Its Advocacy of Limited Suffrage in
Cities— Summary of Its Plan for Improving City Govern-



10 TABLE OP CONTENTS

FAaa
ment — Failure in Legislature — Convention of 1894 Divorced
City from State and National Elections — Its New Municipal
Article — General and Special City Laws — Recent Enactments
Enlarging Powers of Cities — Dual Functions of the City — Con-
cluding Considerations— Outlook for Future Hopeful

Chapter XV 279

Effect of the Construction of Railroads Upon Canal Revenues
— Formation of the New York Central System — The Erie
Railroad — Increase in Tonnage Carried by Rail — Influence of
the Grain Carrying Trade Upon Railroad Rates — Assembly
Committee to Investigate Railroad Abuses — Its Report — In-
justice of Secret and Special Rates — Recommendations of the
Committee — Passage of Constitutional Amendments Affect-
ing Canals — Improvement of Canals and Inland Waterways —
Governor Roosevelt's Committee on the State Canal Policy
and Its Report — Provision for the $101,000,000 Barge Canal

Chapter XVI 296

Taxation — Its Purposes — Character of Taxes — Provisions of
State Constitutions Referring to Taxation— Lotteries Forbid-
den by First Constitution — Early Methods of Taxation — The
General Property Tax — Escape of Personalty from Assessment
—Tendencies in Modern Taxation— Inefficacy of the Personal
Tax — Indirect Taxation Superseding Direct Taxation for State
Purposes — Differentiation Between Sources of State and Local
Revenue— State Taxes on Corporations — Transfer Taxes —
Liquor Tax — Stock Transfer Tax — Taxation of Special Fran-
chises—Secured Debts Tax— Sting of Taxation Is Wasteful-
ness—Early State Taxes— State Debts— Federal Direct Tax
of 1861— Recent Constitutional Amendments Regarding Debts
— Highway Improvements

Chapter XVII • • .322

Contrasts Between the Earlier Courts of the State and Present
Tribunals — The Constitutional Commission of 1890 — Treat-
ment of the Judiciary by the Convention of 1894 — The Court
of Appeals — The Appellate Divisions — Abolition of the Su-
perior Courts— Surrogates' Courts— Judiciary Pensions— Re-
cent Constitutional Amendments Affecting the Judiciary—
The Work of the Courts— Their Power to Declare Legislation
Yoid — Courts and Public Opinion — Independence of Courts



TABLE OF CONTENTS in

PAGB

Vital — Futile and Unwise Attempts in Congress to Bring
Federal Judiciary Under Popular Control

Chapter XVIII 344

Vote in 1886 for a Convention — Differences Between Legisla-
ture and Governor — Legislation Providing for Convention —
Election of Delegates in Fall of 1893 — Outline of Work of the
Convention Other Than Upon the Judiciary Article, and in
Relation to Canals — Treatment of Article XIV — Reapportion-
ment in Senate and Assembly — Convention's Report — Submis-
sion of Its Work to the People — Later Constitutional Changes
— Relative Value of Methods of Amendment

Chapter XIX 363

Workmen's Compensation — The Wainwright Law — "Ives"
Case — The Workmen's Compensation Amendment — Recent
Important Change in the Federal Law — The Sulzer Impeach-
ment — Impeachment Trial and Constitutional Questions
Raised Thereat — The Judgment of Removal — Questions for the
Coming Constitutional Convention — Act of the Legislature
Recommending the Calling of a Convention — The Vote — Tax-
payer's Action to Enjoin Assembling of Convention — The De-
cision of the Court of Appeals — Election of Delegates

Chapter XX 380

Brief Summary of Constitutional Changes Since Organization
of State — Checks Upon Legislative Action Imply No Distrust
of Democracy — Initiative, Referendum, Recall; Extent of
Their Employment in* New York — No Real Danger of En-
croachment by the Nation Upon the Province of the State —
Greatness of the State Depends Upon Its Own People— Uni-
versal Suffrage— Its Value In the History of State and Nation
— Assured Future of Democracy — Conclusion

Index 395



PREFACE TO SECOND EDITION

The apathy which seemed to prevail when the question
of calling a constitutional convention was submitted to
the people of this State in the fall of 191 3 has been suc-
ceeded by widespread interest in its proceedings and by great
activity among civic bodies interested in various reform
projects. Associations of the bar seem keenly awake to the
desirability of urging changes in the judiciary article. Ad-
vocates of local home rule will seek a constitutional amend-
ment granting municipalities adequate powers of local self-
government. The recent Workmen's Compensation Amend-
ment will come under scrutiny. Woman suffrage will have
its champions. The short ballot will strongly be urged. Bi-
ennial legislative sessions will probably be advocated, as
also four-year terms for senators and the governor. The
convention may be asked to limit legislative power over
franchises. Labor will doubtless have claims to present.
Changes will probably be sought in the canal provisions of
the constitution, better conservation of the water power
of the State, and of its forests, demanded. The proceed-
ings of the convention will be followed with interest all
over the country. Its work, if ratified, may have profound
effect upon the destinies of the State, and influence the
fortunes of other States to an extent that can hardly
be measured.

Whether the action of the convention be conservative
or radical, the State cannot divorce itself from its past.
The past should be understood by those who would inter-
pret and build for the future. Sociological phenomena are
as related as other physical phenomena. Nature's aberra-

13



14 PREFACE TO SECOND EDITION

tions, its cataclysms, could be foretold if the past were
completely known. Human society is subject to like inex-
orable laws. The most revolutionary constitutions, as in
France after the first Revolution, were built upon accepted
foundations. Constitutional history is an evolution. Hence
the necessity to understand the past. Ideas supposedly new,
seem to have been repeatedly and well discussed in former
conventions. Of the subjects now in the popular mind it
will, I think, be found that few have not been considered
by previous conventions. The short ballot is now ardently
advocated. The expression is modern, the idea old — as is
revealed in the discussions in the convention of 1867 and
the commission of 1872. The need for some reform which
shall prevent constitutional changes at the behest of slender
minorities, now strongly felt, has long been patent. Judi-
cial recall is an old fallacy masquerading under a new name.
Although since the publication of the first edition of this
book, the doctrine of judicial recall and of the recall of
judicial decisions has been the subject of profound analysis
and exhaustive discussion, the author has preferred to leave
untouched what he originally wrote upon this theme.

Unless a constitution is to be radically altered it is the
author's opinion that as between a convention and such a
commission as was appointed in 1872, the latter furnishes
a more satisfactory method of revision. The coming con-
vention will consist of one hundred and sixty-eight dele-
gates; the commission of 1872 had thirty-two members, all
specially equipped to deal with constitutional problems.
From a small commission work of a higher quality usually
emanates. Not only matter but also phraseology receives
more careful consideration. Moreover, the work of a con-
vention is at once submitted to voters ; whereas a commis-
sion reports to the legislature, and two altogether distinct
legislatures decide whether they approve the proposed
amendments before these can be submitted. In 1869, it is
true that besides the question of approving or rejecting the



PREFACE TO SECOND EDITION 15

constitution framed by the convention of 1867, three sep-
arate questions were submitted. In 1894 two questions
were submitted in addition to the question whether the new
constitution should be ratified. It is, however, imprac-
ticable for voters to pass upon a new constitution section
by section — it has to be considered as a whole. The pres-
ence of one unpopular change may endanger the whole
work. Or some unwise provision may be carried by a
powerful demand for the rest. With the report of a com-
mission nothing of this kind is likely to happen, for its
report is considered section by section in the legislature,
and each separate amendment, if approved by two legisla-
tures, is separately submitted to the people.

Had no convention been favored at the special election
last April, resort could have been had to the method of
amendment first provided in 1822. This has become the
vehicle for numerous amendments, some of profound
importance. For example, eleven distinct amendments
were submitted November 3, 1874. This is the largest num-
ber submitted in any one year. In 1905, seven amendments
were voted upon; in 1909, four. The relative smallness
of the vote upon such amendments — in fact, of the vote
upon the work of a constitutional convention — is the sub-
ject of comment in subsequent pages. Some remedy should
be sought by the coming convention.

Although the people have voted that a convention shall
be held **to revise the constitution and amend the same," it
does not follow that the convention should report in favor
of any change. It may make none. Such a conclusion,
however, is extremely unlikely. Nor does to "revise" and
"amend" forbid complete remodeling — building from an
altogether different basis. The powers of the convention
are imperial, save only that no form of government not
republican may be devised. It is extremely improbable that
the convention will attempt to raze the present structure
and build anew from the foundation.



i6 PREFACE TO SECOND EDITION

Every convention has contained a large number of law-
yers. The coming one will not be an exception. In some
quarters there may be a disposition to look askance at the
lawyer, yet he is a necessary factor in every constitutional
convention. If the reproach that the bar is a mercenary
body with no larger horizon than fees or the narrow special
interests of its clients were ever merited, it is not so today.
The work of the profession all over the State is of the
most altruistic sort. The interest of the lawyer in consti-
tutional government is of the philosophic kind. He lives
in the atmosphere of basic principles and is ready to
expound them in the public interest. As President Wilson
has said, the State "never needed lawyers who are states-
men more than it needs them now . . . lawyers who can
think in the terms of society itself," and are not "mere
cogs in a machine which has men for its parts." Every
one familiar with the activities of lawyers in behalf of
sound government must admit that at present they are
responding to the highest claims of society upon them.

Whether or not the constitution be revised in its princi-
ples and ideas, it might well be improved in phrase and
greatly abridged. Why should not the convention challenge
every word to explain its function, expunge every unneces-
sary expression ? The constitution could be shortened with-
out sacrifice of one idea. Some provisions have none of the
attributes of a constitution; they are altogether statutory.
Furthermore, every qualifying phrase is a restriction of
power. Every limitation upon the two methods of amend-
ing the constitution is an obstacle in the path of freedom
of amendment. Such qualifications have led astute lawyers
to insist that some constitutional powers have not been
constitutionally exercised. They would construe a hair-
breadth departure from a specifically defined plan as an
unconstitutional procedure, whereas a broader theory
should prevail. The reserve power of alteration and
amendment should not be hedged about by meticulous



PREFACE TO SECOND EDITION 17

restrictions that hinder rather than aid freedom of change.
The purpose behind the power of amendment should ever be
kept in mind — to enable the voters of the State to decide
whether they wish to alter their constitution basically or
otherwise, and to elect responsible representatives or dele-
gates to do for them that which, because of their great
numbers, they cannot do for themselves.
New York, February 12, 1^15.



Constitutional History of the
State of New York



CHAPTER I

INTEREST IN CONSTITUTIONAL HISTORY SHOULD BE GENERAL

^AIM OF PRESENT WORK SOURCES OF THE HISTORY

CONTRAST BETWEEN FEDERAL CONSTITUTION AND STATE

CONSTITUTION DESIRABILITY OF AROUSING INTEREST

IN CONSTITUTIONAL QUESTIONS.

The history of constitutional development in New York
should interest the lawyer, the statesman, the student and the
man of affairs. Much has been admirably written to show
the extent of the debt which the State owes to its Nether-
land beginnings and the influence of a long English colonial
experience in shaping the main outlines of the first State
government and in moulding institutions which still persist
and will form enduring features of State polity. After the
elaborate, painstaking, and admirable work of Mr. Charles