CHAPTER XV.

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.

North America — Volume 1 · 第 15 / 20 章