As if to accentuate the great change which public sentiment had undergone in the preceding twenty years these provisions were generally concurred in by large majorities and without political bias. The proposition that a governor need not be either a freeholder or a native citizen was sustained by a vote of sixty-one to forty-nine; the proposal to overcome the governor's veto by a majority instead of a two-thirds vote was carried by sixty-one to thirty-six; the term of senators was reduced from four to two years by a vote of eighty to twenty-three; and their selection confined to single districts by a majority of seventy-nine to thirty-one. An equally large majority favoured the provision that no member of the Legislature should receive from the governor or Legislature any civil appointment within the State, or to the United States Senate. Charles O'Conor antagonised the inhibition of an election to the United States Senate with much learning and eloquence. He thought the power of the State to qualify or restrict the choice of senators was inconsistent with the Federal Constitution; but the great majority of the convention held otherwise. Indeed, so popular did this section become that, in 1874, members of the Legislature were prohibited from taking office under a city government.
The period when property measured a man's capacity and influence also seems to have passed away with the adoption of the Constitution of 1846. For the first time in the State's history, the great landholders lost control, and provisions as to the land law became clear and wholesome. Feudal tenures were abolished, lands declared allodial, fines and quarter sales made void, and leases of agricultural lands for longer than twelve years pronounced illegal. Although vested rights could not be affected, the policy of the new constitutional conditions, aided by the accessibility of better and cheaper lands along lines of improved transportation, compelled landlords in the older parts of the State to seek compromises and to offer greater inducements. The only persons required to own property in order to enjoy suffrage and the right to hold office were negroes, who continued to rest under the ban until the adoption of the fifteenth amendment to the Federal Constitution. The people of New York felt profound interest in the great conflict between slavery and freedom, but, for more than a quarter of a century after the Wilmot Proviso became the shibboleth of the Barnburners, a majority of voters denied the coloured man equality of suffrage. Among the thirty-two delegates in the convention of 1846 who refused to allow the people to pass upon the question of equality of suffrage, appear the names of Charles O'Conor and Samuel J. Tilden.
The great purpose of the convention was the reform of the laws relating to debt and to the creation of a new judicial establishment. Michael Hoffman headed the committee charged with the solution of financial problems. He saw the importance of devoting the resources of the State to the reduction of its debt. It was important to the character of the people, he thought, that they should be restless and impatient under the obligation of debt; and the strong ground taken by him against an enlargement of the Erie and its lateral canals had resulted in the passage of the famous act of 1842, the substance of which he now desired incorporated into the Constitution. He would neither tolerate compromises with debtors of the State, nor allow its credit to be loaned. He favoured sinking funds, he advocated direct taxation, he insisted upon the strictest observance of appropriation laws, and he opposed the sale of the canals. In his speeches he probably exaggerated the canal debt, just as he minimised the canal income and brushed aside salt and auction duties as of little importance; yet everybody recognised him as the schoolmaster of the convention on financial subjects. His blackboard shone in the sunlight. He was courteous, but without much deference. There was neither yielding nor timidity. If his flint struck a spark by collision with another, it made little difference to him. Yet years afterward, Thurlow Weed, who backed Seward in his appeal for more extensive internal improvements, admitted that to Hoffman's enlightened statesmanship, New York was indebted for the financial article in the Constitution of 1846, which had preserved the public credit and the public faith through every financial crisis.[74]
Hoffman placed the state debt, with interest which must be paid up to the time of its extinguishment, at thirty-eight million dollars. Out of the canal revenues he wanted $1,500,000 paid yearly upon the canal debt; $672,000 set apart for the use of the State; and the balance applied to the improvement of the Erie canal, whenever the surplus amounted to $2,500,000. Further to conserve the interests of the Commonwealth, he insisted that its credit should not be loaned; that its borrowed money should not exceed one million dollars, except to repel invasion or suppress insurrection; and that no debt should be created without laying a direct annual tax sufficient to pay principal and interest in eighteen years. The result showed that, in spite of vigorous opposition, he got all he demanded. Some of the amounts were reduced; others slightly diverted; and the remaining surplus of the canal revenues, instead of accumulating until it aggregated $2,500,000, was applied each year to the enlargement of the Erie canal and the completion of the Genesee Valley and Black River canals; but his plan was practically adopted and time has amply justified the wisdom of his limitations. In concluding his last speech, the distinguished Radical declared "that this legislation would not only preserve the credit of New York by keeping its debts paid, but it would cause every State in the Union, as soon as such States were able to do so, to sponge out its debts by payment and thus remove from representative government the reproaches cast upon us on the other side of the water."[75]
But Hoffman, while exciting the admiration of all men for his persistence, dexterity, and ability, did not lead the most important contest. In 1846, the popular desire for radical changes in the judiciary was not less peremptory than the expression in 1821. Up to this time, the courts of the State, in part, antedated the War of Independence. Now, in place of the ancient appointive system, the people demanded an elective judiciary which should be responsible to them and bring the courts to them. To make these changes, the president of the convention appointed a committee of thirteen, headed by Charles H. Ruggles of Dutchess, which embraced the lawyers of most eminence among the delegates. After the chairman came Charles O'Conor of New York, Charles P. Kirkland of Utica, Ambrose L. Jordan of Columbia, Arphaxed Loomis of Herkimer, Alvah Worden of Saratoga, George W. Patterson of Livingston, and several others of lesser note. At the end of the committee appeared a merchant and a farmer, possibly for the reason that condiments make a dish more savoury. Ruggles was a simple-hearted and wise man. He had been on the Supreme bench for fifteen years, becoming one of the distinguished jurists of the State. In the fierce conflicts between Clintonians and Bucktails he acted with the former, and then, in 1828, followed DeWitt Clinton to the support of Andrew Jackson. But Ruggles never offended anybody. His wise and moderate counsel had drawn the fire from many a wild and dangerous scheme, but it left no scars. Prudence and modesty had characterised his life, and his selection as chairman of the judiciary committee disarmed envy and jealousy. He was understood to favour an elective judiciary and moderation in all doubtful reforms. Arphaxed Loomis possessed unusual abilities as a public speaker, and, during a brief career in the Assembly, had become known as an advocate of legal reform. He was afterward, in April, 1847, appointed a commissioner on practice and pleadings for the purpose of providing a uniform course of proceedings in all cases; and, to him, perhaps, more than to any one else, is due the credit of establishing one form of action for the protection of private rights and the redress of private wrongs. Worden had been a merchant, who, losing his entire possessions by failure, began the study of law at the age of thirty-four and quickly took a prominent place among the lawyers of the State. Ambrose L. Jordan, although somewhat younger than Benjamin F. Butler, Thomas Oakley, Henry R. Storrs, and other former leaders of the bar, was their successful opponent, and had gained the distinction of winning the first breach of promise suit in which a woman figured as defendant. Patterson had rare and exquisite gifts which made him many friends and kept him for half a century prominent in political affairs. Though of undoubted intellectual power, clear-sighted, and positive, he rarely answered other men's arguments, and never with warmth or heat. But he had, however, read and mastered the law, and his voice was helpful in conferring upon the people a system which broke the yoke of the former colonial subordination.
The majority report of the judiciary committee provided for a new court of last resort, to be called the Court of Appeals, which was to consist of eight members, four of whom were to be elected from the State at large for a term of eight years, and four to be chosen from the justices of the Supreme Court. A new Supreme Court of thirty-two members, having general and original jurisdiction in law and equity, was established in place of the old Supreme Court and Court of Chancery, the State being divided into eight districts, in each of which four judges were to be elected. In addition to these great courts, inferior local tribunals of civil and criminal jurisdiction were provided for cities. The report thus favoured three radical changes. Judges became elective, courts of law and equity were united, and county courts were abolished. The inclusion of senators in the old Court of Errors—which existed from the foundation of the State—had made the elective system somewhat familiar to the people, to whom it had proved more satisfactory than the method of appointment; but the union of courts of law and equity was an untried experiment in New York. It had the sanction of other States, and, in part, of the judicial system of the United States, where procedure at law and in equity had become assimilated, if not entirely blended, thus abolishing the inconvenience of so many tribunals and affording greater facility for the trial of equity causes involving questions of fact.
But delegates were slow to profit by the experience of other Commonwealths. From the moment the report was submitted attacks upon it became bitter and continuous. Charles O'Conor opposed the elective system, the union of the two courts, and the abolition of the county court. Charles P. Kirkland proposed that only three members of the Court of Appeals be elected, the others to be appointed by the governor, with the consent of the Senate. Alvah Worden wanted two Courts of Appeals, one of law and one of chancery, neither of which should be elective. Simmons desired a different organisation of the Supreme Court, and Bascom objected to the insufficient number of sessions of the court provided for the whole State. Others of the minority submitted reports and opinions, until the subject seemed hopelessly befogged and the work of the majority a failure. O'Conor was especially impatient and restless in his opposition. In skill and ability no one could vie with him in making the old ways seem better. He was now forty-two years old. He had a powerful and vigorous frame, and a powerful and vigorous understanding. It was the wonder of his colleagues how, in addition to the faithful work performed in committee, he could get time for the research that was needed to equip him for the great speeches with which he adorned the debates. He never held office, save, during a portion of President Pierce's administration, that of United States attorney for the southern district of New York; but his rapid, almost instinctive judgment, his tact, his ability to crush sophistries with a single sentence, and his vigorous rhetoric must have greatly distinguished his administration of any office which he might have occupied. Yet the conservatism which finally separated him from the cordial supporters of the government during the Civil War usually kept him in the minority. His spirit was not the spirit that governed; and, in spite of his brilliant and determined opposition, the convention of 1846 accepted the elective system, approved the union of equity and law courts, prohibited the election of a member of the Legislature to the United States Senate, and submitted to the decision of the people the right of coloured men to equal suffrage. Only in the retention of the county court were O'Conor's views sustained; and this came largely through the influence of Arphaxed Loomis, the material part of whose amendment was ultimately adopted. When, finally, the Constitution in its entirety was submitted to the convention for its approval, O'Conor was one of six to vote against it.
The Constitution of 1846 was the people's Constitution. It reserved to them the right to act more frequently upon a large class of questions, introducing the referendum which characterises popular government, and making it a more perfect expression of the popular will. That the people appreciated the greater power reserved to them was shown on the third of November, by a vote of 221,528 to 92,436. With few modifications, the Constitution of 1846 still remains in force,—ample proof that wisdom, unalloyed with partisan politics or blind conservatism, guided the convention which framed it.