|
"The Constitutional History of New York ..." |
|
This action shows a clear purpose to form a government
by a representative body of undoubted authority,
and is a high illustration of wise and conservative statesmanship.
It is quite probable that, if this third congress
had itself acted on the recommendation of the
Continental Congress, and had erected a state government,
such a government would have been accepted and
recognized by the people; but the delegates to this congress
had not been commissioned for such a purpose and
had no express authority to institute a permanent government.
They therefore wisely determined to go back
to the people and obtain full and specific authority for
themselves, or other representatives, to organize a government
with the very clearest title, because coming
directly from the people. The people did not reserve the
right to ratify the action of their representatives, but
clothed them with full authority to frame, erect, and put
in operation such a government as they might deem best
suited to the interests of the colony. The congress thus
chosen combined in itself and exercised the double function
of a constitutional convention and a legislature. It
administered the affairs of the colony, and at the same
time instituted a new government with a written constitution.
A constitutional convention is the highest representative body known to a free people, and may create or alter the legislative department of the government. This congress exercised legislative powers, and at the same time instituted a new government, providing a new legislature to succeed itself, thereby surrendering at the earliest opportunity the authority which had been committed to it by the election held in June, 1776. On the 30th of June, 1776, the third congress, apprehending an attack on New York by the British, adjourned to White Plains, to meet there on the 2d of July, and also directed that the fourth congress meet at the same place on Monday, the 8th of July. The third congress did not meet again after the 30th of June. The Fourth Provincial Congress, which became the First Constitutional Convention, met at the court house in White Plains on the 9th of July, 1776. General Nathaniel Woodhuil was chosen president, and John McKesson and Robert Benson secretaries. This was one of the most important bodies that ever assembled in this state. It had received a high commission from the people, namely, to institute an independent government in such form and with such component parts as might be best suited to the genius, the spirit, and the traditions of the colony * * * The Constitution was not submitted to the people, but took effect immediately, and, according to Jackson ex dem. Russell v. White, 20 Johns. 313, above cited, its adoption was deemed the origin of the state government. This day must therefore stand in history as THE BIRTHDAY OF THE STATE OF NEW YORK,
SUNDAY, APRIL 20, 1777.
* * *
SYNOPSIS OF CONSTITUTION.
The first Constitution was a brief instrument, and was limited to very few subjects. Some important provisions, notably those relating to the Council of Revision and the Council of Appointments were added while the Constitution was under consideration by the Convention, and we learn from Mr. Jay's correspondence that he intended to suggest other additions, which he thought it would be better to submit in convention than in the first draft, but he was called away by the death of his mother, and during his absence the Constitution was unexpectedly, and, as he thought, somewhat hastily, adopted. He afterwards expressed great regret that some other subjects had not been included. Omitting the preliminary part, consisting of the resolutions adopted by the Third Provincial Congress, providing for the election of the Convention, and the Declaration of Independence, which is quoted in full, the Constitution proper consists of forty-five short sections, or "articles," as they were then termed. The range of subjects treated is limited, and the powers conferred on the new government are quite meagerly expressed. The framers of the instrument seem to have taken the colonial government as they found it, and continued its principal features, while eliminating its royal characteristics. The judicial system of the colony, and also the county and town governments, were continued substantially as they then existed. It became necessary to construct a new legislature and provide a new executive. The skeleton of the new government was then complete, and the remainder of the Constitution either asserts abstract rights, or confers or limits power in matters of administrative detail. The abstract rights asserted are few and briefly stated. In substance they are: 1. All power is derived from the people. This is fundamental in any system of representative popular government. 2. Each citizen is entitled to full protection in his individual rights; stating, in substance, the 39th article of Magna Charta. 3. Each citizen is entitled to the enjoyment of complete religious liberty. 4. The right of trial by jury shall remain inviolate forever. 5. General, but not universal, suffrage was established, and the legislature was authorized to provide for the use of ballots at elections, instead of voting viva voce, which was then the practice. Three general departments of government were established, namely, the legislative, executive, and judicial. These three divisions were already familiar, both from English precedents, and from colonial experience for nearly a century. The influence of tradition and custom is shown by the unwillingness of the Constitution makers to vest in these departments the distinct and independent powers naturally belonging to them. They did not seem to appreciate fully the importance of a clear separation of the powers of the three great departments into which the government was divided. Subsequent experience and development have marked these lines of distinction with much more clearness than was apprehended by the framers of the first Constitution. There seems to have been an unwillingness to trust either the legislative or the executive department with its appropriate powers under a proper distribution of constitutional authority. The Constitution shows a manifest intention to reserve to and vest in each department some authority over the others. In a representative constitutional government, as now understood, the legislature is the supreme law-making power, subject to the possible check of an executive veto, which may sometimes prevent hasty, ill-considered, and unwise legislation; but even this check may he overcome by the legislature, if a given number of its members, arbitrarily fixed at two thirds, shall be in favor of enacting the statute, notwithstanding executive objections. The executive is charged with the duty of executing the laws, with only the limited veto check on legislation. But both the legislative and executive branches are subject to indirect control or restraint, and may be kept in the path of constitutional duty, by the judiciary; for this branch of the government has the exalted function of determining whether a given statute violates the fundamental law as expressed in the Constitution, thus testing every statute by the principles established by the people for their government. So clearly have these principles, specially applicable to each department, been enunciated in recent years, that it is now almost axiomatic that the supreme legislative power is vested in the senate and assembly, and that this legislative power cannot be delegated, except as authorized by the Constitution itself; that the functions of the governor are executive, and not legislative, except to the extent of the veto power, and not judicial, except generally in determining questions affecting removals from office, and in the exercise of the pardoning power; and that the functions of the courts are judicial only, and not administrative. The framers of the first Constitution, perhaps from a lack of an apprehension of these principles, now so familiar, and possibly, also, from a lack of experience necessarily incident to pioneer conditions, combined these functions in the several departments in a manner which would not now be tolerated in framing a well-ordered scheme of representative government. They not only made the legislature the lawmaking power, but they vested it with executive functions through the Council of Appointment, composed of four senators chosen annually by the assembly. They gave the higher courts, not only judicial powers, but also authority over legislation through the Council of Revision, composed of the governor, the chancellor, and the judges of the supreme court. By these two contrivances the power of the governor was limited in two very important particulars; namely: He was deprived of the full veto power, for he might be overruled by the judges in the Council of Revision; and he was deprived of the responsibility for official appointments, by being made subject to the control of the Council of Appointment. The Constitution contains a few details concerning the separate powers of the senate and assembly, including the power of the assembly to select the members of the Council of Appointment, and to present articles of impeachment. The legislature was to elect the state treasurer; it was also given control over contracts with Indians; and might naturalize aliens; but this right of naturalization was soon superseded by the Federal Constitution. The legislature was prohibited from passing acts of attainder, and from instituting any courts, except those which proceeded according to the common law. Terms of judicial officers were established, and provision was made for the choice of state, county, and town officers. The English common law was continued, and English grants were confirmed. Provision was also made for a state militia; and a curious provision was inserted, by which clergymen were excluded from the right to hold office. It will be observed that the first Constitution was quite limited in its scope, and many subjects now deemed important were omitted. It was, however, sufficiently elastic to permit the expansion and growth of a great state, and it is a high tribute to the patience, good sense, and patriotism of the men who framed it, and of the men who administered the government under it through a third of the history of the state, that the only amendment in forty-five years was for the purpose of reducing and limiting the number of members of the senate and assembly. The Jays, the Livingstons, the Morrises, the Clintons, the Gansevoorts, the Schuylers, the Van Cortlandts, the Van Rensselaers, the Roosevelts, the Spencers, the Lansings, the Lewises, the Ten Broecks, Duane, Scott, Kent, Hamilton, Tompkins, Burr, and others who constructed, set in motion, and maintained this simple machinery of government, did not need elaborate descriptions or limitations of power. They had a Constitution which gave them the right of self-government, and they knew how to use that right judiciously. There was placed in their hands a state to govern and improve, and they appreciated its possibilities and the importance of the trust reposed in them. The Constitution was sufficient for their needs. They were almost wholly unrestrained, for it will be noted that the restrictions in the first Constitution related chiefly to immaterial subjects which soon became obsolete. They did not need to tie their own hands, for they could trust themselves. The simple brevity, the "unsuspecting simplicity," of the first Constitution is in striking contrast to the prolixity of some modern Constitutions, which evince a misapprehension of the real purpose of a written constitution, namely, to state principles of government in general terms, and not with the fluctuating detail necessarily incident to statutes intended to meet shifting conditions of society or administration. Under this Constitution, despite its limitations, the state had a remarkable development. It witnessed the growth and enlargement of our unsurpassed system of jurisprudence, molded by the genius of Kent, with the aid of his distinguished associates in the judiciary. Under it were established the university and the common school; and colleges, academies, and libraries were nourished and encouraged. The care of the poor and other unfortunates was provided for by a system of administration which in its essential features has continued to this day. A system of taxation was established, the statute law was frequently revised, counties, cities, towns, and villages were created, internal administration adequate for the needs of the time was provided for the different branches of state and local government. * * * [O]n the last day of December, 1822, the first Constitution of New York passed into history. It had served its purpose well. It might almost literally be said of it that it was born on the battle-field. Its authors wrote it, musket in hand. They left the arena of war at short intervals to sit in the councils of state, to construct a government for times of peace. It had some defects, not especially manifest at first, but which became apparent as the state increased in wealth, population, and commercial interests, and as new problems were presented for the consideration of the people. It was founded on correct principles; but these principles needed extension and enlargement to meet the growing needs of the state. It was a good Constitution for that time, and deserved the encomiums which it received from statesmen of that period. We may most fittingly quote here the eloquent words of Chancellor Kent, who, in the Convention of 1821, speaking of the first Constitution, said: "This state has existed for forty-four years under our present Constitution, which was formed by those illustrious sages and patriots who adorned the Revolution. It has wonderfully fulfilled all the great ends of civil government. During that long period, we have enjoyed, in an eminent degree, the blessings of civil and religious liberty. We have had our lives, our privileges, and our property, protected. We have had a succession of wise and temperate legislatures. The code of our statute law has been again and again revised and corrected, and it may proudly bear comparison with that of any other people. We have had, during that period (although I am, perhaps, not the fittest person to say it), a regular, stable, honest, and enlightened administration of justice. All the peaceable pursuits of industry, and all the important interests of education and science, have been fostered and encouraged. We have trebled our numbers within the last twenty-five years, have displayed mighty resources, and have made unexampled progress in the career of prosperity and greatness. Our financial credit stands at an enviable height; and we are now successfully engaged in connecting the great lakes with the ocean by stupendous canals, which excite the admiration of our neighbors, and will make a conspicuous figure, even upon the map of the United States. These are some of the fruits of our present government." Governor Joseph C. Yates, who had been a justice of the supreme court under the first Constitution, in his first message to the legislature, January 7, 1823, referring to the change of Constitutions, said: "There has been only one period since the declaration of our independence, that the legislature of the state of New York have been called upon to perform such high and responsible duties as at this session will devolve upon you; and when we reflect upon the conduct of those who formed the first Constitution of this state, and organized a government, every well-ordered mind must be led with gratitude to bow before the throne of Grace, returning fervent thanks to the God of heaven and of earth, who raised up for us, in that time of need, men eminently endowed with great intelligence, integrity, and superior, I had almost said inspired, views of the rights and liberties of man. The checks and balances of the old Constitution of this state were admirable, when judged with reference to the time in which it was adopted; just emerging from a state of colonial dependence, and while desperately, and almost convulsively, struggling to break the fetters of trans-Atlantic despotism; almost every man in the community at that time possessing high ideas of the necessity of a strong executive power, and great legislative independence; and although we have amended what we have deemed its errors, and what, in the present state of the community, were really such, yet the candid mind cannot but admire and applaud its great comparative excellence. I could not, gentlemen, withhold at this time, and on this occasion, the expression of my affection and veneration for those men, great in intellect and honesty, several of whom were personally known to many of us, who, having placed and seen their country in prosperity and the enjoyment of liberty, have gone to sleep with their fathers until the great day of retribution. "This government has, by the late amendments, been adapted to the present feelings and views of the community, the only proper standard by which a good government can be formed: and no time for its reorganization could be more auspicious than the present." [pages 483-495; 754-756]
|
|
Page 10
 The Historical Society of the Courts of the State of New York |