CHAPTER XXIX.

FROM JANUARY 1, 1823, TO JANUARY 1, 1824.

THE legislature met and organized on the 7th of Janu ary. One hundred and twenty-three members of the assembly were in attendance. Peter R. Livingston, of Dutchess county, received one hundred and seventeen votes for speaker, and, of course, was elected. This strong vote in favor of one of the most violent partisans in the state, exhibits very strikingly the overwhelming strength of the dominant party. It also shows, that among the dominant party those gentlemen who were most distinguished for zeal, I might perhaps say, personal antipathy against Mr. Clinton, and for pursuing a policy the most proscriptive against his friends, were in the ascendancy in that party; for no politician in the state had been more distinguished, both as a member of the last senate, and in the convention of 1821, for bitter and rancorous hostility against Gov. Clinton and his supporters, than Mr. Livingston.*

Immediately after the senate was organized, the lieutenant governor, (Root,) communicated to that body a letter from Jacob Sutherland, stating that "considerations. which, on that occasion, were unnecessary, and perhaps improper for him to state, had determined him not to take a seat in the senate." The consideration which moved Mr. Sutherland to decline taking a seat in the senate, and which he deemed improper to set forth, undoubtedly, was that he had reason to believe he would be appointed one of the judges, either of the supreme or circuit court; and

• I, of course, speak of Mr. Livingston as a politician. In private life, and in social intercourse, he was courteous, kind, and liberal in his sentiments.

as by the amended constitution, if he accepted of his elec tion as senator, he would be rendered ineligible to receive any office which could be conferred on him by the gover nor and senate, or by the legislature, during the term for which he was elected, he preferred himself to declare his seat vacant. Many persons entertained scruples whether, even by this step, he could render himself eligible to an appointment by the legislative or executive authorities of the state. The constitution declared that any person who should be elected, &c., should be ineligible. Mr. S. had been elected, and his election had been duly certified by the canvassing officers. Was he not, therefore, by the letter of the constitution, disqualified? On the other hand, it was alleged, that in order to be brought within the spirit and meaning of the clause in the constitution, he must not only be elected, but, by his own voluntary act, become a member of the legislature. This construction of the clause was, on this occasion, deemed correct by the governor and senate, and has, with great propriety, been acquiesced in ever since. It would be absurd to permit a single county to deprive the state of the services of a citizen in the high office of chancellor, judge of the supreme court, &c., by electing him a member of the assembly against his will.

Upon the meeting of the legislature, all men, but most especially the expectants of office, looked with deep anxiety for the action of the governor and senate, and the excitement became most intense.

The message of Governor Yates did not produce an impression favorable to his talents as a writer or statesman. Its chief, if not only merit, was its brevity.

A comparison between the message of Gov. Yates and the speeches of Mr. Clinton, both as respects style and matter, will result in a conclusion very inauspicious to Mr. Y. But, a written document or dissertation is by no

means decisive of the mental capacity and power of the writer. A person who should decide on the talents of Oliver Cromwell and Oliver Goldsmith, by comparing their writings, (if, indeed, Cromwell left any,) would arrive at a most erroneous conclusion.

It can hardly be said that the governor recommended, specifically, a single measure. He advised great caution in passing laws for new modelling the judiciary system. He urged the propriety of passing such laws early in the session as should be deemed necessary to carry into effect the new constitution. He suggested that improvements ought to be made in our penitentiary system, and he recommended the revision of the statute laws.

In relation to the appointments to be made by the governor and senate, those in which men of all political parties, and indeed the public in general, took the deepest interest, were the selection of judges of the supreme court. Would the governor nominate, and would the senate confirm, the appointment of the old judges? This was the great and absorbing question.

Gov. Yates had been a long time a member of the supreme court, and he had, during nearly the whole of that time, acted politically with Chief Justice Spencer; and, as will be seen by the reports of the decisions of that court, had almost always concurred in his judicial opinions. Independent, therefore, of his desire to promote the public interest, there can be no doubt but that he felt anxious to preserve the high character of that tribunal, and that he entertained a personal regard for some, if not all of its members. Influenced by these considerations, notwithstanding he must have been fully aware that a violent opposition existed among many, perhaps a majority, of his leading political friends, he nominated Ambrose Spencer chief justice, and Jonas Platt and John Woodworth,

judges. The senate, by nearly an unanimous vote, rejected the nomination of these gentlemen.

The general course of policy which, at this time, governed a very large majority of the senate, which was, not to consent to the appointment to office of a political opponent, would perhaps, of itself, furnish a sufficient cause of the action of that body on this occasion. But there were other causes operating more or less upon the minds of members, and it may be that some other causes were necessary, in order to have produced the result. The chief justice, although an ardent politician, was a man in whose talents, impartiality and integrity, as a judge, the bar and the public reposed universal confidence; and I very much doubt whether even that senate would have ventured to alarm the public mind with fearful apprehensions in relation to the stability of our jurisprudence and the correct administration of justice, which they well knew would be the consequence of leaving off the chief justice, had not other than general political considerations affected their minds. The chief justice, although strictly upright and impartial, was somewhat austere in his deportment, and particularly so to the younger class of lawyers who appeared as advocates in the supreme court. He heard with an impatience which he took no pains to conceal, arguments on points which, with his long experience and profound knowledge of the law, were already, in his own mind, decided. His deportment, on these occasions, had, unknown to himself, and without, on his part, any unkind feeling, accumulated among the younger members of the bar a deep and settled prejudice.

An influential and highly intelligent member of the senate, in the winter of 1823, has recently had the kindness to write to me on this subject. After alluding to the violence and fierceness of the contest between the Clintonian and bucktail parties, which had then but just termi

nated, and stating that Mr. Clinton was at that time "an object of deep hostility, and almost of fixed hatred," he adds:

feeling, I am not To a considerable

"Of the justice or injustice of this speaking-it is enough that it existed. extent, it was not merely personal, but the proposition to amend the constitution, and the result of the conflict on that subject, certainly arrayed men on adverse sides of great principles. Mr. Clinton, Chief Justice Spencer and Judge Platt, had acted together upon all matters touching the new constitution, and were, for that reason, exceedingly unpopular with the dominant party. Add to this, that the chief justice, by a harsh course on the bench, towards the young men of the profession, had provoked their hostility, and they were ready, at the first opportunity, to exclaim with Napoleon-the doctrine of reprisals must govern this case.' When the old judges, therefore, were re-nominated by Gov. Yates, the feeling was strong and decided against the confirmation of the chief justice and Judge Platt, and especially so with the younger men of the senate. I speak plainly on this subject, being myself of the profession and the youngest member of the senate, and in what I have stated, my own views, as well as those of others, are expressed."

These undoubtedly were the reasons, and probably the controlling reasons, which produced the rejection of the nomination of the chief justice, and of Judge Platt; but it will be perceived, that none of these objections were applicable to Judge Woodworth. It will be recollected, that, as a member of the council of revision, he voted against the rejection of the convention bill, and from that time, (November, 1820,) he was considered as a member of, and at any rate he acted with, the democratic party. The desire of making more places for political aspirants, and of organizing an entire new court, connected with the