North America, by Anthony Trollope

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 state, 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 endeavor to explain this more fully. In endeavoring 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 remodeled, if needs be, once in twenty years. Article XIII. Sec. 2. “At the general election to be held in 1806, 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 Article 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 color, 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, (50l.,) 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 traveling 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 secrecy. A singular proviso this in a country boasting so much of freedom! For no speech or debate in either House, shall the legislator 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, Article 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-inchief 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-inchief 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-inchief 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 800l. a year. In some States this is as low as 200l. and 300l. In Virginia it is 1000l. In California, 1200l.

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 governor 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 Controller, 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, and 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, Controller, etc., 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. As I cannot understand it, I will not attempt to explain it. Moreover, it is not within the scope of my ambition to convey here all the details of the State constitution. In Sec. 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 forever.” 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 the second, 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 organized, 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 toward 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 60l. 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.

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Last updated Tuesday, March 4, 2014 at 18:43