A Political History of the State of New York, Volumes 1-3

by De Alva Stanwood Alexander

Preliminary to the great debate, a lively skirmish occurred over the limitation of suffrage to the white voter. Strangely enough, this proposition was sustained by Erastus Root, the ardent champion of universal suffrage and the abolition of slavery; and it was opposed with equal warmth by Peter A. Jay and the Federalists, who advocated a freehold qualification. Van Buren did not speak, but he voted for the resolution, to eliminate the word "white," which was carried by a close vote—sixty-three to fifty-nine. Then it was proposed that coloured voters should be freeholders. Again the advocates of universal suffrage favoured the proposition, and the friends of a freehold qualification opposed it; but this time the convention decided against the negro, thirty-three to seventy-one. New York was slow to give equal suffrage to the blacks. Nearly three-fourths of the voters of the State withheld it in 1846; and, six years after President Lincoln's emancipation proclamation, when the black soldier had served his country throughout the Civil War with a fidelity and courage that awoke the strongest emotions of a patriotic people, it was again refused.

The debate, however, which aroused the greatest interest, and in which members of the convention most generally participated, sprang from Ambrose Spencer's proposition limiting to freeholders the right to vote for senators. It must have occurred to the Chief Justice that the convention was against him, because its committee had unanimously agreed to abolish the freehold qualification; and, further, because the convention, by its action on the negro question, had demonstrated its purpose to wipe out all property distinctions among white voters; yet Spencer, at this eleventh hour, proposed to re-establish a freehold difference between senators and assemblymen. The Chief Justice, with all his faults, and they were many and grave, had in him the capacity of a statesman; but it was a statesman of fifty years before. He had learned little by experience. The prejudices of Jay and other patriots of the Revolution, still lingered in his mind, arousing painful apprehensions of what would happen if the exclusive privileges of landowners should disappear, and robbing him of that faith in the people which made Erastus Root the forerunner of the broad suffrage that obtains to-day. Chancellor Kent backed Spencer's proposition in an abler speech than that made by the Chief Justice himself. Kent was an honourable, upright statesman, who, unlike Spencer, had never wavered in his fealty to that federalism which had been learned at the feet of John Jay and Alexander Hamilton; but, like Spencer, he had failed to discover that the people, jealous of their rights and liberties, could be trusted regardless of property holdings. "By the report before us," he said, "we propose to annihilate, at one stroke, all property distinctions, and to bow before the idol of universal suffrage. That extreme democratic principle has been regarded with terror by the wise men of every age, because in every European republic, ancient and modern, in which it has been tried, it has terminated disastrously, and been productive of corruption, injustice, violence, and tyranny. And dare we flatter ourselves that we are a peculiar people, who can run the career of history exempted from the passions which have disturbed and corrupted the rest of mankind? If we are like other races of men, with similar follies and vices, then I greatly fear that our posterity will have reason to deplore in sackcloth and ashes the delusion of the day."[219]

Though Erastus Root and Samuel Young employed all their eloquence and all their energy against Spencer's proposition, it was Martin Van Buren's speech which made the deepest impression. It cannot be said that the latter's remarks defeated the amendment, because the vote of nineteen to one hundred, showed no one behind the Chief Justice's proposal save himself and a few Federalists. But Van Buren greatly strengthened the report of the committee, which gave a vote to every male citizen twenty-one years old, who had resided six months in the State and who had within one year paid taxes or a road assessment, or had been enrolled and served in the militia. Although, said Van Buren, this report is on the verge of universal suffrage, it did not cheapen the invaluable right, by conferring it indiscriminately upon every one, black or white, who would condescend to accept it. He was opposed, he said, to a precipitate and unexpected prostration of all qualifications, and looked with dread upon the great increase of voters in New York City, believing that such an increase would render elections a curse rather than a blessing. But he maintained that the events of the past forty years had discredited the speculative fears of Franklin, Hamilton, and Madison; that venality in voting, in spite of property qualifications, already existed in grossest forms in parliamentary elections in England, and that property had been as safe in those American communities which had given universal suffrage as in the few which retained a freehold qualification. Then, with great earnestness, his eye resting upon the distinguished Chancellor, he declared that whenever the principles of order and good government should yield to principles of anarchy and violence, all constitutional provisions would be idle and unavailing.

It was a captivating speech. There was little rhetoric and less feeling. Van Buren took good care to show his thorough knowledge of the subject, and, without the use of exclamations or interrogations, he pointed out the unwisdom of following the constitution-makers of 1777, and the danger of accepting the dogma of universal suffrage. The impression we get from the declaration of some of those who heard it, is that Van Buren surpassed himself in this effort. He seems to have made a large majority of the convention happy because he said just what they wanted to know, and said it in just the way they wanted to hear it. It must be admitted, too, that the evils which he prophesied, if universal suffrage were given to New York City, have been too unhappily verified. With the defeat of Spencer's proposition, the suffrage question quickly settled itself along the lines of the committee's report.

The judiciary article excited less debate but more feeling. Delegates brooded over the well known fact that judges had become political partisans, opposed to increasing their number to meet the growing demands of business, and anxious to retain the extraordinary power given them under the Constitution of 1777. Whenever a suggestion was made to retain these judges, therefore, it provoked bitter opposition and denunciation. A few men in the convention had very fierce opinions, seasoned with a kind of wit, and of these, the restless energy of Erastus Root soon earned for him considerable notoriety. Indeed, it passed into a sort of proverb that there were three parties in the convention—the Republicans, the Federalists, and Erastus Root. It is not so clear that he had as much influence as his long prominence in public life would seem to entitle him; but when he did happen to stand with the majority, he pleased it with his witty vehemence more than Peter R. Livingston did with his coarse vituperation. In the debate on the judiciary, however, abuse and invective were not confined to Root and Livingston. Abraham Van Vechten and some of those who acted with him, employed every means in their power to defeat the opponents of the judges, although they scarcely equalled the extra-tribunal methods of their adversaries.

The contest opened as soon as the chairman of the judiciary committee reported in favour of a vice chancellor, from whom appeals should be taken to the chancellor; and of a superior court of common pleas, having practically the jurisdiction of the Supreme Court, which should form a part of the Court for the Correction of Errors. This meant the continuation of the old judges. Immediately, Erastus Root offered a substitute, abolishing the existing courts, and creating a new Supreme Court, with a corps of nisi prius district judges. Root's plan also provided for the transfer of the equitable powers of the Court of Chancery to the courts of common law. This was the extreme view. Although the convention, or at least a majority of it, might wish to get rid of the old Supreme Court judges, it was plainly unwilling to let go the Court of Chancery. So it rejected the Root substitute by a vote of seventy-three to thirty-six, and the report of the judiciary committee by seventy-nine ayes to thirty-three noes. But the attack thus daringly begun by Root, was steadily maintained. Martin Van Buren, who figured as a sort of peacemaker, proposed the retention of the Chancery and Supreme Courts, and the creation of circuit judges. This proposition went to a special committee, which presented two reports—one for the preservation of the Court of Chancery and the Supreme Court, the other for the creation of a Court of Chancery, a Supreme Court, and courts of common pleas. It was plain that the second of these was Root's former substitute, with the Court of Chancery continued, and, in support of it, he now arraigned the political conduct of the judges with a severity that was speedily rebuked. Root was radical or nothing. He hated Spencer, he despised Van Ness, and he disliked James Kent and Jonas Platt; and with an exuberance of apparent anger he demanded the abolition of their courts and the creation of others in no wise different.

In replying to Root, Van Buren again discovered his kindliness of heart. The only question, he said, was whether the convention would insert an article in the Constitution for the sole purpose of vacating the offices of the present chancellor, and Supreme Court judges, and thus apply a rule which had not yet been applied in a single instance. There could be no public reason for the measure and personal feeling should not control. Referring to William W. Van Ness, he declared that he could with truth say that, throughout his whole life, he had been assailed by him with hostility—political, professional and personal—hostility which had been keen, active, and unyielding. "But, sir, am I on that account to indulge my individual resentment in the prostration of my private and political adversary? If I could be capable of such conduct I should forever despise myself." In conclusion, he expressed the hope that the convention would not ruin its character and credit by proceeding to such extremities. Van Buren struck hard, and for the time had routed the judges' opponents by a vote of sixty-four to forty-four. But if the delegates hesitated to back Root, they did not propose to follow Van Buren, and they crushed the first report under the unexpected vote of eighty-six to twenty-five.

The convention had now been in session over two months, and this most troublesome question seemed no nearer settlement than on the opening day. As in the suffrage debate, there were three factions—one determined to get rid of Chancellor Kent and the five Supreme Court judges; another, less numerous, desirous of continuing them all in office, and a third, probably composed of a majority of the convention, who wished to save the chancellor and lose the others. Finally, on the first day of November, ten days before adjournment, a proposition appeared to create a Supreme Court to consist of a chief justice and two justices, and to divide the State into not less than four or more than eight districts, as the Legislature should decide, in each of which a district judge should be appointed, with the tenure and powers of Supreme Court judges. It was also provided that such equity powers should be vested in the district judges, in courts of common pleas, or in other subordinate courts, as the Legislature might direct, subject to the appellate jurisdiction of the chancellor. This was practically Root's old proposition in another form, and its reappearance made it the more certain that a majority of the convention had determined to destroy the present judges.

Up to this time, the members of the court, all of whom were delegates, either from motives of modesty, or with the hope that the many plans might result in no action, had taken no part in the debates on the judiciary. Now, however, Ambrose Spencer, with doubtful propriety, broke the silence. His friends feared the assaults of Root and Peter R. Livingston might drive him into a fierce retort, and that he would antagonise the convention if he did not also weary it. But he did nothing of the kind. He spoke with calmness and excellent taste, saying that he favoured the appointment of circuit judges who should aid the Supreme Court in the trial of issues of fact, and who should also be members, ex-officio, of the Court of Errors; that he had little or no personal interest in the question since he should very soon be constitutionally ineligible to the office; that for eighteen years he had tried to discharge his duties with fidelity and integrity, and that he should leave the bench conscious of having done no wrong if he had not always had the approval of others. He seemed to capture the convention for a moment. His tones were mellow, his manner gentle, and when he suggested leaving Albany on the morrow to resume his labours on the bench, his remarks took the form of a farewell speech, which added a touch of pathos. Indeed, the Chief Justice had proved so wise and discreet that Henry Wheaton thought it an opportune time to propose an amendment to the proposition before the convention, providing that the present justices hold office until their number be reduced to three, by death, resignation, removal, or by age limitation. This brought the convention face to face with the question of retaining the old judges, stripped of all other provisions, and the result was awaited with great interest. It was Van Buren's idea. It had the support, too, of Nathan Sanford, of Peter B. Sharpe, the speaker of the Assembly, and of half a score of prominent Bucktails who hoped, with Van Buren, that the convention would not ruin its character by extreme measures based upon personal dislikes; but a majority of the delegates was in no mood for such a suggestion. It had listened respectfully to the Chief Justice, and would doubtless have cheerfully heard from the Chancellor and other members of the court, but it could not surrender the principle over which sixty days had been spent in contention. When, therefore, the roll was called, Wheaton's amendment was rejected by a vote of sixty-six to thirty-nine. Then came the call on the original proposition, to have Supreme and District Courts, which disclosed sixty-two ayes and fifty-three noes. If the weakness of the noes on the first vote was a disappointment, the strength of the noes on the second vote was a surprise. A change of only five votes was needed to defeat the proposition, and these might have been reduced to three had Daniel D. Tompkins, who favoured Van Buren's idea, and the four judges who refrained from voting, felt at liberty to put themselves upon record. It is a notable fact that the conspicuous, able men of the convention, with the exception of Erastus Root and Samuel Young, voted to continue the judges in office.

Martin Van Buren, as chairman of the committee to consider the question of filling offices, reported in favour of abolishing the Council of Appointment, and of electing state officers by the Legislature, justices of the peace by the people, and military officers, except generals, by the rank and file of the militia. Judicial officers, with surrogates and sheriffs, were to be appointed by the governor and confirmed by the Senate, while courts were authorised to select county clerks and district attorneys. To the common councils of cities was committed the duty of choosing mayors and clerks. In his statement, Van Buren said that of the eight thousand two hundred and eighty-seven military officers in the State, all would be elected by the rank and file, except seventy-eight generals; and of the six thousand six hundred and sixty-three civil officers, all would be elected by the people or designated as the Legislature should direct, except four hundred and fifty-three. To provide for these five hundred and thirty-one military and civil officers, the committee thought it wise to have the governor appoint and the Senate confirm them. The constitutions recently formed in Kentucky, Louisiana, Indiana, Illinois, and Missouri, he said, had such a provision—similar, in fact, to that in the Federal Constitution—and, although this method was open to objection, the committee was unable to devise a better system.