THE CONSTITUTION OF THE STATE OF NEW YORK.
As New York is the most populous State of the Union, having the
largest representation in Congress,--on which account it has been
called the Empire State,--I propose to mention, as shortly as may be,
the nature of its separate Constitution as a State. Of course it will
be understood that the constitutions of the different States are by
no means the same. They have been arranged according to the judgment
of the different people concerned, and have been altered from time to
time to suit such altered judgment. But as the States together form
one nation, and on such matters as foreign affairs, war, customs,
and post-office regulations, are bound together as much as are the
English counties, it is, of course, necessary that the constitution
of each should in most matters assimilate itself to those of the
others. These constitutions are very much alike. A Governor, with
two houses of legislature, generally called the Senate and the House
of Representatives, exists in each State. In the State of New York
the lower house is called the Assembly. In most States the Governor
is elected annually; but in some States for two years, as in New
York. In Pennsylvania he is elected for three years. The House of
Representatives or the Assembly is, I think, always elected for one
session only; but as, in many of the States, the Legislature only
sits once in two years, the election recurs of course at the same
interval. The franchise in all the States is nearly universal, but
in no State is it perfectly so. The Governor, Lieutenant-Governor,
and other officers are elected by vote of the people as well as the
members of the Legislature. Of course it will be understood that each
State makes laws for itself,--that they are in nowise dependent on
the Congress assembled at Washington for their laws,--unless for laws
which refer to matters between the United States as a nation and
other nations, or between one State and another. Each State declares
with what punishment crimes shall be visited; what taxes shall be
levied for the use of the State; what laws shall be passed as to
education; what shall be the State judiciary. With reference to the
judiciary, however, it must be understood, that the United States
as a nation have separate national law courts before which come all
cases litigated between State and State, and all cases which do not
belong in every respect to any one individual State. In a subsequent
chapter I will endeavour to explain this more fully. In endeavouring
to understand the constitution of the United States it is essentially
necessary that we should remember that we have always to deal with
two different political arrangements,--that which refers to the
nation as a whole, and that which belongs to each State as a separate
governing power in itself. What is law in one State is not law in
another. Nevertheless there is a very great likeness throughout these
various constitutions; and any political student who shall have
thoroughly mastered one, will not have much to learn in mastering the
others.
This State, now called New York, was first settled by the Dutch in
1614, on Manhattan Island. They established a government in 1629,
under the name of the New Netherlands. In 1664 Charles II. granted
the province to his brother, James II., then Duke of York, and
possession was taken of the country on his behalf by one Colonel
Nichols. In 1673 it was recaptured by the Dutch, but they could not
hold it, and the Duke of York again took possession by patent. A
legislative body was first assembled during the reign of Charles II.,
in 1683; from which it will be seen that parliamentary representation
was introduced into the American colonies at a very early date. The
declaration of independence was made by the revolted colonies in
1776, and in 1777 the first constitution was adopted by the State of
New York. In 1822 this was changed for another; and the one of which
I now purport to state some of the details was brought into action
in 1847. In this constitution there is a provision that it shall
be overhauled and remodelled, if needs be, once in twenty years.
Article XIII. Sec. 2.--"At the general election to be held in 1866,
and in each twentieth year thereafter, the question, 'Shall there
be a convention to revise the Constitution and amend the same?'
shall be decided by the electors qualified to vote for members of
the Legislature." So that the New Yorkers cannot be twitted with
the presumption of finality in reference to their legislative
arrangements.
The present constitution begins with declaring the inviolability
of trial by jury and of habeas corpus,--"unless when, in cases of
rebellion or invasion, the public safety may require its suspension."
It does not say by whom it may be suspended, or who is to judge of
the public safety, but, at any rate, it may be presumed that such
suspension was supposed to come from the powers of the State which
enacted the law. At the present moment the habeas corpus is suspended
in New York, and this suspension has proceeded not from the powers of
the State, but from the Federal Government, without the sanction even
of the Federal Congress.
"Every citizen may freely speak, write, and publish his sentiments
on all subjects, being responsible for the abuse of that right; and
no law shall be passed to restrain or abridge the liberty of speech
or of the press." Art. I. Sec. 8. But at the present moment liberty
of speech and of the press is utterly abrogated in the State of New
York, as it is in other States. I mention this not as a reproach
against either the State or the Federal Government, but to show how
vain all laws are for the protection of such rights. If they be not
protected by the feelings of the people,--if the people are at any
time, or from any cause, willing to abandon such privileges, no
written laws will preserve them.
In Art. I. Sec. 14, there is a proviso that no land--land, that is,
used for agricultural purposes--shall be let on lease for a longer
period than twelve years. "No lease or grant of agricultural land for
a longer period than twelve years hereafter made, in which shall be
reserved any rent or service of any kind, shall be valid." I do not
understand the intended virtue of this proviso, but it shows very
clearly how different are the practices with reference to land in
England and America. Farmers in the States almost always are the
owners of the land which they farm, and such tenures as those, by
which the occupiers of land generally hold their farms with us, are
almost unknown. There is no such relation as that of landlord and
tenant as regards agricultural holdings.
Every male citizen of New York may vote who is twenty-one, who has
been a citizen for ten days, who has lived in the State for a year,
and for four months in the county in which he votes. He can vote for
all "officers that now are, or hereafter may be, elective by the
people." Art. II. Sec. 1. "But," the section goes on to say, "no man
of colour, unless he shall have been for three years a citizen of the
State, and for one year next preceding any election shall have been
possessed of a freehold estate of the value of 250 dollars (£50),
and shall have been actually rated, and paid a tax thereon, shall be
entitled to vote at such election." This is the only embargo with
which universal suffrage is laden in the State of New York.
The third article provides for the election of the Senate and the
Assembly. The Senate consists of thirty-two members. And it may here
be remarked that large as is the State of New York, and great as is
its population, its Senate is less numerous than that of many other
States. In Massachusetts, for instance, there are forty senators,
though the population of Massachusetts is barely one third that of
New York. In Virginia there are fifty senators, whereas the free
population is not one third of that of New York. As a consequence the
Senate of New York is said to be filled with men of a higher class
than are generally found in the Senates of other States. Then follows
in the article a list of the districts which are to return the
Senators. These districts consist of one, two, three, or in one case
four counties, according to the population.
The article does not give the number of members of the Lower House,
nor does it even state what amount of population shall be held as
entitled to a member. It merely provides for the division of the
State into districts which shall contain an equal number, not of
population, but of voters. The House of Assembly does consist of 128
members.
It is then stipulated that every member of both houses shall receive
three dollars a day, or twelve shillings, for their services during
the sitting of the legislature; but this sum is never to exceed 300
dollars, or sixty pounds in one year, unless an extra Session be
called. There is also an allowance for the travelling expenses of
members. It is, I presume, generally known that the members of the
Congress at Washington are all paid, and that the same is the case
with reference to the legislatures of all the States.
No member of the New York legislature can also be a member of the
Washington Congress, or hold any civil or military office under the
general States Government.
A majority of each House must be present, or as the article says,
"shall constitute a quorum to do business." Each House is to keep a
journal of its proceedings. The doors are to be open,--except when
the public welfare shall require secresy. A singular proviso this in
a country boasting so much of freedom! For no speech or debate in
either House shall the legislature be called in question in any other
place. The legislature assembles on the first Tuesday in January, and
sits for about three months. Its seat is at Albany.
The executive power, (Art. IV.) is to be vested in a Governor and a
Lieutenant-Governor, both of whom shall be chosen for two years. The
Governor must be a citizen of the United States, must be thirty years
of age, and have lived for the last four years in the State. He is
to be commander-in-chief of the military and naval forces of the
State,--as is the President of those of the Union. I see that this
is also the case in inland States, which one would say can have
no navies. And with reference to some States it is enacted that
the Governor is commander-in-chief of the army, navy, and militia,
showing that some army over and beyond the militia may be kept by the
State. In Tennessee, which is an inland State, it is enacted that the
Governor shall be "commander-in-chief of the army and navy of this
State, and of the militia, except when they shall be called into the
service of the United States." In Ohio the same is the case, except
that there is no mention of militia. In New York there is no proviso
with reference to the service of the United States. I mention this
as it bears with some strength on the question of the right of
secession, and indicates the jealousy of the individual States
with reference to the Federal Government. The Governor can convene
extra Sessions of one House or of both. He makes a message to the
legislature when it meets,--a sort of Queen's speech; and he receives
for his services a compensation, to be established by law. In New
York this amounts to £800 a year. In some States this is as low as
£200 and £300. In Virginia it is £1000. In California £1200.
The Governor can pardon, except in cases of treason. He has also a
veto upon all bills sent up by the legislature. If he exercise this
veto he returns the bill to the legislature with his reasons for so
doing. If the bill on reconsideration by the Houses be again passed
by a majority of two thirds in each House, it becomes law in spite
of the Governor's veto. The veto of the President at Washington is
of the same nature. Such are the powers of the Governor. But though
they are very full, the Governor of each State does not practically
exercise any great political power, nor is he, even politically, a
great man. You might live in a State during the whole term of his
government and hardly hear of him. There is vested in him by the
language of the constitution a much wider power than that intrusted
to the Governors of our colonies. But in our colonies everybody
talks, and thinks, and knows about the Governor. As far as the limits
of the colony the Governor is a great man. But this is not the case
with reference to the Governors in the different States.
The next article provides that the Governor's ministers, viz., the
Secretary of State, the Comptroller, Treasurer, and Attorney-General,
shall be chosen every two years at a general election. In
this respect the State constitution differs from that of the
national constitution. The President at Washington names his own
ministers,--subject to the approbation of the Senate. He makes
many other appointments with the same limitation. As regards these
nominations in general, the Senate, I believe, is not slow to
interfere; but with reference to the ministers it is understood that
the names sent in by the President shall stand. Of the Secretary
of State, Comptroller, &c., belonging to the different States, and
who are elected by the people, in a general way one never hears. No
doubt they attend their offices and take their pay, but they are not
political personages.
The next article, No. VI., refers to the Judiciary, and is very
complicated. After considerable study I have failed to understand it.
The judges are elected by vote, and remain in office for, I believe,
a term of eight years. In Sect. 20 of this article it is provided
that--"No judicial officer, except Justices of the Peace, shall
receive to his own use any fees or perquisites of office." How
pleasantly this enactment must sound in the ears of the justices of
the peace.
Article VII. refers to fiscal matters, and is more especially
interesting as showing how greatly the State of New York has depended
on its canals for its wealth. These canals are the property of the
State; and by this article it seems to be provided that they shall
not only maintain themselves, but maintain to a considerable extent
the State expenditure also, and stand in lieu of taxation. It is
provided, Section 6, that the "legislature shall not sell, lease, or
otherwise dispose of any of the canals of the State; but that they
shall remain the property of the State, and under its management for
ever." But in spite of its canals the State does not seem to be doing
very well, for I see that in 1860, its income was 4,780,000 dollars,
and its expenditure 5,100,000, whereas its debt was 32,500,000
dollars. Of all the States, Pennsylvania is the most indebted,
Virginia is the second on the list, and New York the third. New
Hampshire, Connecticut, Vermont, Delaware, and Texas, owe no State
debts. All the other State ships have taken in ballast.
The militia is supposed to consist of all men capable of bearing
arms, under forty-five years of age. But no one need be enrolled, who
from scruples of conscience is averse to bearing arms. At the present
moment such scruples do not seem to be very general. Then follows,
in Article XI., a detailed enactment as to the choosing of militia
officers. It may be perhaps sufficient to say that the privates
are to choose the captains and the subalterns; the captains and
subalterns are to choose the field officers; and the field officers
the brigadier-generals and inspectors of brigade. The Governor,
however, with the consent of the Senate shall nominate all
major-generals. Now that real soldiers have unfortunately become
necessary the above plan has not been found to work well.
Such is the Constitution of the State of New York, which has been
intended to work and does work quite separately from that of the
United States. It will be seen that the purport has been to make it
as widely democratic as possible,--to provide that all power of all
description shall come directly from the people, and that such power
shall return to the people at short intervals. The Senate and the
Governor each remain for two years, but not for the same two years.
If a new Senate commence its work in 1861, a new Governor will come
in in 1862. But, nevertheless, there is in the form of Government
as thus established an absence of that close and immediate
responsibility which attends our ministers. When a man has been
voted in, it seems that responsibility is over for the period of
the required service. He has been chosen, and the country which has
chosen him is to trust that he will do his best. I do not know that
this matters much with reference to the legislature or governments of
the different States, for their State legislatures and governments
are but puny powers; but in the legislature and government at
Washington it does matter very much. But I shall have another
opportunity of speaking on that subject.
Nothing has struck me so much in America as the fact that these State
legislatures are puny powers. The absence of any tidings whatever
of their doings across the water is a proof of this. Who has heard
of the legislature of New York or of Massachusetts? It is boasted
here that their insignificance is a sign of the well-being of the
people;--that the smallness of the power necessary for carrying on
the machine shows how beautifully the machine is organised, and how
well it works. "It is better to have little governors than great
governors," an American said to me once. "It is our glory that we
know how to live without having great men over us to rule us." That
glory, if ever it were a glory, has come to an end. It seems to me
that all these troubles have come upon the States because they have
not placed high men in high places. The less of laws and the less of
control the better, providing a people can go right with few laws and
little control. One may say that no laws and no control would be best
of all,--provided that none were needed. But this is not exactly the
position of the American people.
The two professions of law-making and of governing have become
unfashionable, low in estimation, and of no repute in the States.
The municipal powers of the cities have not fallen into the hands of
the leading men. The word politician has come to bear the meaning of
political adventurer and almost of political blackleg. If A calls B
a politician A intends to vilify B by so calling him. Whether or no
the best citizens of a State will ever be induced to serve in the
State legislature by a nobler consideration than that of pay, or by a
higher tone of political morals than that now existing, I cannot say.
It seems to me that some great decrease in the numbers of the State
legislators should be a first step towards such a consummation. There
are not many men in each State who can afford to give up two or three
months of the year to the State service for nothing; but it may be
presumed that in each State there are a few. Those who are induced
to devote their time by the payment of £60, can hardly be the men
most fitted for the purpose of legislation. It certainly has seemed
to me that the members of the State legislatures and of the State
governments are not held in that respect and treated with that
confidence to which, in the eyes of an Englishman, such functionaries
should be held as entitled.