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favor of the persons named, notwithstanding the United States Naval Academy of Annapolis. The gift to her was in see. Such are the cases of Wace letter was addressed to the defendant as an officer v. Mallard, 21 L. J. Ch. 355; Gully v. Cregoe, 24 in the United States Navy, and then in command Beav. 185, and Shovelton v. Shovelton, 32 id. 143.” and authority over the Naval Academy, to be by In Bland v. Bland, 2 Cox's Ch. Cas. 349, the devise him transmitted to the secretary of the navy. The was in fee, with the request “as to the said prem- officiul regulations of the navy required the defendises, or so much thereof as le (the devisee) shall ant to “state his opinion in writing, by indorsement stand seized of at the time of his death." Lord or otherwise in relation to" the resignation. The Hardwicke decided that the previous devise in fee plaintiff argued that the indorsement was conseimported a power in the devisce to diminish the quently absolutely privileged, and the court below property. He said: “It was the same as if the tes- so held, but this was reversed on appeal. The court tator had said: I leave it to you to dispose of it as adopted Starkie's enumeration of communications you think fit, but I will be glad if you will give so absolutely privileged, although false, malicious, and much as you can spare, so and so." In Wynne v. without reasonable or proper cause, as follows: Haukins, 1 Bro. Ch. 179m, the will provided : “And “ Communications made in the course of judicial as I shall leave behind me, over and above the said proceedings, whether civil or criminal, and whether legacies, only sufficient for a decent maintenance by a suitor, prosecutor, witness, counsel, or juror; for my loving wife, Mary Wynne, by whose pru- or by judge, magistrate or person presiding in a dence and economy I have saved the greatest part judicial capacity of any court or other tribunal, of the fortune I shall die possessed of, not doubting judicial or military, recognized by and constituted but that she will dispose of what shall be left at her according to law; and so also communications made death to our two grandchildren; all the rest and in the course of parliamentary proceedings, whether residue," etc., “I give and bequeath to my loving by a member of either House of Parliament, or by wife, Mary, hereby constituting and appointing her petition of individuals who are not members, presole executrix." The lord chancellor said: “If the sented to either House or to a committee thereof." intention is clear what was to be given, and to Folkhard's Starkie, $ 688, and authorities there whom, I should think the word not doubting' cited. The court said: "Beyond this enumeration would be strong enough. But where in point of we are not prepared to go. The doctrine of absocontext it is uncertain what property was to be lute privilege is so inconsistent with the rule that a given, and to whom, the words are not sufficient, remedy should exist for every wrong, that we are because it is doubtful what is the confidence which not disposed to extend it beyond the strict line the testator has 'reposed, and where that does not established by a concurrence of decisions.” Citing appear the scale leans to the presumption that he Cook v. Hill, 3 Sandf. 349, and disapproving the demeant to give the whole to the first taker.” In cision in Darckins v. Lord Paulett, L. R., 5 Q. B. 94, Pushman v. Filliter, 3 Ves. 7, the testator gave the but approving the dissenting opinion of Cockburn, residue, etc., of personal estate to his wife, “desir-C. J. The court declined to consider the question ing her to provide for my daughter, Anne, out of whether the government could have been compelled the same, as long as she, my said wife, shall live, to produce the paper in question, because it was voland at her decease, to dispose of what shall be left untarily produced. They held, however, that the among my children, in such manner as she shall indorsement had a qualified privilege, because made judge most proper.” It was decided that no trust in the line of duty, and that there could be no rewas created by the will in favor of the children; covery without proof of malice or want of probathat it was an absolute gift of the property to the

ble cause. Citing Garrett v. Dickerson, 19 Md. 450; wife, to be disposed of to any use she might think White v. Nicholls, 3 How. 267; and Dickson v. Earl fit, subject only to a trust in favor of the testator's of Wilton, 1 F. & F. 419, which is quite in point. daughter Anne. In Wilson v. Major, 11 Ves. 204, See leading article, 21 Alb. L. J. 325; and id. 103. there was an absolute gift to the wife,“ upon full On a new trial a few days ago a verdict was directed trust and confidence that she would make proper for defendant. distribution of what effects may be left in money,

In State ex rel. Soares v. Hebrew Congregation, Disgoods, or otherwise, to his (testator's) children." It was held that the wife took the absolute estate, persed of Judah,” 30 La. Ann. 205, it was held that

a mandamus will not lie to compel a religious society unfettered by a trust. See, also, Cowman v. Harri

to restore to membership one who had been expelled son, 17 L. & Eq. 290, the language of Lord Eldon

by a decree of the legally constituted church judiin Tibbits v. Tibbits, 19 Ves. 656; and Anderson v.

catory, on account of an alleged violation of some Flammond, 2 Lea, 281; S. C., 31 Am. Rep. 612.

law of the society; and the ground that such restora

tion is necessary to enable him to enjoy the right of An interesting discussion of the question of privi- sepulture acquired by him as a member is premaleged communication arose in the Maryland Court of ture. The court remarked: “The entire separation Appeals, at April term, 1880, in Maurice v. Worden. of Church and State is not the least of the eviThe action was for a libel alleged to have been con- dences of the wisdom and forethought of those who tained in an indorsement written by the defendant made our National Constitution. It was more than upon a letter of the plaintiff tendering his resigna- a happy thought — it was an inspiration. But altion of the position of teacher of French in the I though the State has renounced all authority to con


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trol the internal management of any church, and speed v. East Iladdam Bank, 22 Conn. 530, holding refuses to prescribe any form of church government, the doctrine of the principal cases. Church, C. J., it is nevertheless true that the law recognizes the delivered the prevailing opinion, in which Waite, existence of churches, and protects and assures J., concurred; Ellsworth and Hinman, JJ., distheir right to exist, and to possess and enjoy their sented; Storrs, J., having tried the cause below, powers and privileges. Of course wherever riglits did not sit. Church, C. J., said: “These instituof property are invaded, the law must interposetions have so multiplied and extended within a few equally in those instances, where the dispute is as years, that they are connected with, and in a great to church property as in those where it is not, and degree influence, all the business transactions of it also takes note of, but does not itself enforce, the this country, and give tone and character, to some discipline of the church, and the maintenance of extent, to society itself. We do not complain of church order and internal regulation. The law this; but we say, that as new relations from this does not assume, and will not declare, that a par- cause are formed and new interests created, legal ticular religious association is more truly the church principles, of a practical rather than of a technical than another, but each and all of them are permitted or theoretical character, must be applied.” “The to make their own regulations, and to enforce them views of the old lawyers, regarding the real nature, in the manner each has provided for itself.” In power, and responsibilities of corporations, to a Watson v. Jones, 13 Wall. 679, the court say: “The great extent, are exploded in modern times, and it law knows no heresy, and is committed to the sup- is believed that now these bodies are brought to the port of no dogma, the establishment of no sect. same civil liabilities as natural persons, so far as The right to organize voluntary religious associa- this can be done practically, and consistently with tions to assist in the expression and dissemination their respective charters. And no good reason is of any religious doctrine, and to create tribunals discovered why this should not be so; nor why it for the decision of controverted questions of faith cannot be done, in a case like this, without violatwithin the association, and for the ecclesiastical | ing any sensible or useful principle.” “But after government of all the individual members, congre- all, the objection to the remedy of this plaintiff gations, and officers within the general associations, against the bank in its corporate capacity, is not so is unquestioned. All who unite themselves to such much that as a corporation it cannot be made rea body do so with an implied consent to this gov- sponsible for torts committed by its directors, as ernment, and are bound to submit to it. But it that it cannot be subjected for that species of tort would be a vain consent and would lead to the total which essentially consists in motive and intention. subversion of such religious bodies, if any one ag- The claim is, that as a corporation is ideal only, it grieved by one of their decisions could appeal to cannot act from malice, and therefore cannot comthe secular courts and have them reversed. It is of mence or prosecute a malicious or vexatious suit. the essence of these religious unions, and of their This syllogism or reasoning might bave been very right to establish tribunals for the decision of ques- satisfactory to the schoolmen of former days; more tions arising among themselves, that those decisions so, we think, than to the jurist who seeks to disshould be binding in all cases of ecclesiastical cog- cover a reasonable and appropriate remedy for every nizance, subject only to such appeals as the organism wrong. To say that a corporation cannot have moitself provides for." On the point of the right of tives and act from motives, is to deny the evidence sepulture, in the principal case, the case of Guibord of our senses, when we see them tlius acting, and was cited; upon which the court remarked: “It is effecting thereby results of the greatest importance, sufficient to say, in disposing of this part of the every day. And if they can have any motive, they complaint, that Guibord was dead, and the object can have a bad one; they can intend to do evil as of the proceeding in his case was to procure the in- well as to do good. If the act done is a corporate terment of his body in that part of the Montreal one, so must the motive and intention be.

In the cemetery which was consecrated, whereas the re- present case, to say that the vexatious suit, as it is lator has happily no present need of enforcing his called, was instituted, prosecuted, and subsequently claim to burial anywhere, and non constat but that sanctioned, by the bank, in the usual modes of its before he does need it, he will have his ban of ex- action; and still to claim that although the acts communication remov

noved, and be restored to full were those of the bank, the intention was only that fellowship in the congregation."

of the individual directors, is a distinction too re

fined, we think, for practical application." LIABILITY OF CORPORATIONS FOR The contrary view was taken in Owsley v. MontACTIONS INVOLVING MALICE. gomery & West Point Railroad Co., 37 Ala. (N. S.)

560. The court there said: “It was supposed at T has been held in two recent cases that a corpoI

one time that an action for a tort would not lie ration is liable to an action for a malicious against a corporation. But this idea has been long prosecution conducted by its agents. Williams v. since exploded, and the tendency of the law in our PlantersIns. Co., 57 Miss. 759; Carter v. lIowe Ma- day is to extend the application of all legal remechine Co., 51 Md. 290.

The same

was held in dies to corporations, and to assimilate them, as far Wheeless v. Second Nat. Bunk, 1 Baxt. 469; S. C., as possible, in their legal duties and responsibilities, 25 Am. Rep. 783.

to individuals." “But it seems to be the law, that The leading case on this precise question is Good- I inasmuch as a malicious motive and a criminal in

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tent cannot be attributed to a corporation, in its ciples.” The action “involves nothing more than corporate capacity, it is not indictable for those

a wrongful act intentionally done." crimes, of which malice or some specific criminal The same was held in Fenton v. Wilson Sering intent is an essential ingredient.” “The distinc- Machine Co., 9 Phila. 189, where the authorities are tion scems to be between acts injurious in their exhaustively reviewed. So in Copley v. Grocer & effects, and for which the actor is liable without re- Baker Sewing Machine Co., 2 Woods, 494 (Alabama gard to the motive which prompted them, and con- Federal Circuit), where the Owsley case was disapduct, the character of which depends upon the mo- proved. The court said: “It is not true that a cortive, and which apart from such motive cannot be poration has no mind. Its mind is the joint promade the ground of a legal responsibility. If this duct of the minds of its officers and directory in a distinction is well taken, it would follow that since united organization, and in point of fact corporaa corporation, as such, is incapable of malice, it is tions bring into their seryice the highest order of not liable to be sued for a malicious prosecution.” ability and the best executive talent in the country.” “And such appears to us to be the better opinion, | This is rested chiefly on Railroad Co. v. Quiyley, 21 although we are aware that there are authorities How. 202. which seem to sustain the idea that an action for a In Sterens v. Midland County Ry. Co., 10 Exch. malicious prosecution may be maintained against a 352, Alderson, B., obiter expressed an opinion that corporation.” This is founded on Childs v. Bank, the action would not lie, but the decision was put 17 Mo. 213, and on dicta in Stephens v. Midland on another ground. In Whitfield v. Ry. Co., E. B. Counties Co., 10 Exch. 352, and McLellan v. Cum- & E. 115, Lord Campbell overruled a demurrer in berland Bank, 24 Me. 566.

such an action, observing “there may be great The case of Gillett v. Mo. Valley R. Co., 55 Mo. difficulty in saying that under certain circumstances 315; S. C., 17 Am. Rep. 653, limits Childs v. Bank express malice may not be imputed to and proved of State of Missouri, 17 Mo. 213, which had denied against a corporation." the liability of corporations for assault and battery, A corporation is civilly liable for vexatiously obmalicious prosecution, or slander; and admits that structing one's trade, Green v. London Omnibus Co., corporations may be liable in such actions, if the 7 C. B. (N. S.) 290; for assault, East Counties Ry. act comes within the purview of their charter pow- Co. v. Broom, 6 Exch, 314; Moore v. Filchburgh ers and is within the scope of the agent's authority, Railroad, 4 Gray, 465; Hanson v. European & N. A. or is ratified. But the alleged malicious prosecution Ry. Co., 62 Me. 84; S. C., 16 Am. Rep. 404; Mcthere being a criminal prosecution for embezzle-k'inley v. Chicago, etc., R. Co., 44 Iowa, 314; S. C., ment, it was held that this was not within the scope 24 Am. Rep. 748; Passenger R. Co. v. Young, 21 of the corporation's general or special powers, and Ohio St. 518; S. C., 8 Am. Rep. 78; for false imtherefore the action would not lie.

prisonment, Owsley v. R. Co., supra; for libel, On the authority of the Gillett case, the case of Phila., etc., R. Co. v. Quigley, 21 How. 202; for nuiIron Mountain Bank v. Mercantile Bank, 4 Mo. App. sance, First Baptist Church v. R. Co., 5 Barb. 79; 505, holds that a corporation may be liable for a and may be indicted for obstructing a highway, malicious prosecution, and says "there has been a Reg. v. Gt. North of Eng. Ry. Co., 9 Q. B. 315; for complete change in the rulings in this respect since libel, State v. Atchison, 3 Lea, 729; S. C., 31 Am. Chills v. Bank of Missouri was determined.” The Rep. 663; for Sabbatlı breaking, State v. Balt. & C. case of Carter v. Howe Machine Co., supra, was ex- R. Co., 15 W. Vn. 362, post; and may be punished actly like the Gillett case in circumstances, and it for contempt, People v. Albany & 17. R. Co., 12 was held that although a corporation is liable to an Abb. Pr. 171; J. C., 20 Ilow. Pr. 358. action for malicious prosecution, yet in such a case the agent must be shown to have express authority OBSERVATIONS ON THE PARTICULAR for his act, or it must have been ratified.

JURISPRUDENCE OF NEW YORK. The doctrine of the principal cases was held in

VI. Vance v. Erie Ry. Co., 32 N. J. L. 334. The court rested upon English cases, hereinafter cited, and The nere volution between England and her trans

HE governmental at said: “If actions for malicious libel, for vexatious

Atlantic colonies were very different from what they suits, for vexatiously and maliciously obstructing

had been in the preceding century. The English Conanother in his business, for willful trespasses, and stitution, the product of purely local conditions and for assault and battery, in each of which the mo- agencies, had not originally contemplated colonization, tives and intent of the mind are directly involved,

for it was built up with the feudal system which decan be maintained against a corporation aggregate,

manded a certain contiguity between the lord para

mount and his feudataries. no reasons, founded on principle, can be suggested

The vast intervening distance of America rendered why an action for malicious prosecution should not

such a contiguous relation impossible, except in theory ; also be sustainable against a corporation."

here the king was compelled either to delegato some the nature of the action is considered, it comes portions of his prerogatives by written mandates, or strictly within the principles by which the actions

authorizations, to resident goveruors and agents, or above enumerated are maintainable." " To hold a

else to parcel out these distant dominions by formal

grants, after the established precedents, such as councorporation amenable to this particular action is

ties palatine or the remnant of the duchy of Norstrictly in accordance with well-settled legal prin- mandy. Those written delegations, or grants, as they

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narrowed the powers of the governing classes and de- tion was read in the Provincial Congress, then sitting fined the rights of the colonists, came finally to be at the City Hall in New York, on the 24th day of May, considered colonial Constitutions, and it is easy to 1776, and a committee was appointed to consider the discern that they gave a vast impetus to the Anglo- matter (Jour. Prov. Cong.); they reported, “that the American conceptions of constitutional government, right of framing, creating and new modeling civil and perhaps even suggested the formal constitutions governments is and ought to be in the people." Doubtof the Revolutionary period. By the beginning of the ing their power to form a government, the Provincial eighteenth century, the colonial governments, judi- | Congress recommended the election of new deputies, catories and jurisprudence had become somewhat set- who should be constituted specially for such a purpose. tled, and the early pretensions of the crown corre- The new Congress having been accordingly elected, spondingly restricted.

met at the Court-House in White Plains, Westchester The original motive of the American Revolution - a county, on the 9th day of July, 1776, and on the wext motive not difficult to discern, but in a juristic sense, day changed the title of the Congress of the Colony most importaut to remember – was the vindication of to that of the “ Convention of the representatires of the the paramount rights conferred by the colonial Con- State of New York." stitutions. The Revolution, at last, became a neces- On the 16th of July, New York being closely beset by sary protest against the violations of what had come the British forces, the convention postponed tho formato be considered as the fundamental law. A careful tion of a State government until August following. regard to the motive of the Revolution, is observable Meanwhile, all magistrates and officers of justice were in the frame of the first State government erected by requested to exercise their respective offices, provided the Constitution of 1777, on the ancient law of the that all processes and proceedings were under the auland. This Constitution imposed no violent changes; thority and in the name of the State of New York. This, it preserved much that was old, and that which was it will be perceived, was a formal substitution of the new harmonized well with that which was old. It is State, that rague nomen generalissimum, * for the king, not necessary to this conclusion to maintain that the who had ceased to be here the fountain of justice, the mere externals of the former government remained offended prosecutor of crimes and the general conservaafter the Revolution, for externals of government are tor of the peace. When the convention, pursuant to secondary; there may be, under liberal guises, most its adjournment, met in August, a committee was apviolent tyrannies and e converso. It may be said that pointed to take into consideration a plan for institutthe new form of government was founded in pursu- ing and framing a State government. (Journ. Prov. ance of the origiual motive of the Revolution, because Cong., Aug. 1, 1776.) On the 13th of March, 1777, the it was founded on those institutions of the common first section of the Constitution was agreed to; but law which have unquestionably been the progressive the debates on the various sections continued at adforces of the Anglican type of law and liberty, and journed meetings until Sunday, the 20th of April, 1777, for which the colonists always distinctly contended. when the entire instrument was finally adopted and This consummation of the origiual motive of the Rero)- promulgated as the supremo law of tho State. lutionists may be termed the jurisprudential lesson of Were the particular reasons which occasioned the the Revolution.

adoption of the various sections of the first Constitu. Prior to the outbreak of the Revolution, the king | tion better known than they now are, it would, in a was here, as elsewhere in his dominions, parens desultory sketch like the present, be impossible to dispatriæ, a constituent part of the provincial legisla- cuss them in detail. But, owing to circumstances, ture, the general conservator of the peace, the foun- much of the necessary material for such a discussion tain of justice, the generalissimo of the provincial is wholly wanting; it is supposed by some antiquariarmed forces, and the fountain of all honors, offices ans that a considerable portion of the minutes and and privileges. All this he was, not in a purely theo- memoranda of the first committee on goverument are retic sense, but in a juridical sense and in the sense of yet extant, though but one fragment is either printed the colonial Constitutions. He was the prosecutor for or attainable. (Col. of N. Y. Hist. MSS., Revolutionall crimes and offenses of a certain grade, because it ary Papers, Vol. I, p. 552.) It is more easy to credit was he who was injured, and it was his peaco and dig- this when we reflect that as late as 1818, orer forty nity which were offended. These notions, feudal years after its adoption, tho State did not possess tho though they were, entered largely into the practical original Constitution; it was in the hands of a private conceptions of the colonial jurisprudence, and it is gentleman. (Assembly Journ., Feb. 11, 1818, p. 156.) impossible to account for certain features of our pres- Even the principal authorship of the State Constituent jurisprudence without a reference to them. Tho tion — though generally attributed to Mr. Jay - is practical deposition of the king was an overt act of uncertain. There is specific proof that Mr. Jay obthe Revolution, and for a time all his functions, powersjected to some of its provisions (N. Y. Col. Rer. Paand dignities essential to government were vested in pers, 678); and it is asserted in the late history revolutionary and temporary governments by commit- published from the manuscript of the Tory Judge tees, delegates and congresses; but on the establish- Jones, that the historian William Smith, who later on ment of the State government, they were, in this deserted the popular cause, was its main author. (1 jurisdiction, distributed under the State Constitution. Jones' Hist'y N. Y., p. 143.) However this may be, It is this historical fact which has caused so many all must concede tho inspiration of its text. It is unfeudal notions aud abstractious to survive side by sido necessary to pursue the historical aspect of the Conwith an opposed democracy. Our jurisprudence is a stitution farther; the late Centennial has added much mosaic of many textures, one of which is the feudal to the literature of the subject. (See Stevens' Birth conception of law in certain of its relations.

of the Empire State, 3 Mag. Am. Hist'y, 1; O'Conor's Actual hostilities between the king and Parliament Centennial Address before tho N. Y. Hist. So., 1977; on the one side, and the united colonies on the other, Centennial Celebration of the State of N. Y., Weed, began with the battle of Lexington and Concord on Parsons & Co.; see, also, Butler's Outline of the Const. the 19th of April, 1775. At the commencement of the Hist'y of N. Y.; Address of Chan. Kent before N. Y. struggle temporary governments by committees and Hist. So., December 6, 1828; Sparks' Life of Morris; congresses were formed in New York. (Butler's Const. Life of John Jay, by his son.) Hist’y N. Y. 48.) On the 10th of May, 1776, the Con- The first Constitution of this State was a statute tinental Congress recommended that those colonies which were without a sufficient form of government

* Used formerly in England to designate the government should adopt some suitable goverument. This resolu- under Cromwell.

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enacted by the suffragists of the old province, acting after the establishment of the new government by the through a convention delegated for the express pur- freeholders of the province. Mr. O'Conor, in the adpose. It is not difficult to discern that this instrument dress already referred to, bas termed the constituwas the product of the common law, for the termin- tional declaration that the people were the only source ology and the peculiar institutes, the ear-marks of of power, the new political institute. Yet theoretithe common law, are visible in its every line. Such cally this institute was not new. The eighteenth cenchanges as it imposed were the inevitable results of tury had been the very elysium of political theorists, historical forces applied to colonial conditions. There- and many writers of different nations had advanced fore its construction and its development must be the proposition that the existence of all States was read, as its framers intended, by the light of the accu- based on the will of the persons composing them, or mulated experience and bistory of the common law in upon the social compact. The Constitution of New this country and in England; or else, sophists, Consti- | Jersey, adopted in the year prior to 1777, had contained tution-menders and empiricists will ultimately subvert the recital, “ that all the constitutional authority ever what remains of it, possibly to substitute something possessed by the kings of Great Britain over these better, but probably something worse.

colonies, or their other dominions, was by compact Few of the features of the first Constitution were derived from the people and held of them for the comnovel. There is perhaps no better illustration of this mon interest of the whole society;" thus, it is evident fact than Sparks' accidental commentary, contained that the doctrine embodied in the Constitution was in the “Life of Gouverneur Morris" (1 Vol., p. 121): new rather as an institution than as an institute. Speaking of the formation of the State government, To what class of governments the new State governthis author says: “The greatest difficulty was experi- ment created by the Constitution may most properly "enced in determining where to lodge the power of be determined, it is not proposed to consider; it may “appointing officers both civil and military, and by be generally described as of the parliamentarian type. "what mode this power should be exercised. No won- There is reason to suppose that if any violent or radi“der that this should prove a perplexing topic to new cal changes had been made in the pre-existing legisla"beginners in the art of government-making, and tive or judicial institutions they would have alienated "especially when a plan embracing many original and the conservative portion of the continental party. For "uvtried features was to be contrived. It was easy to a like reason, the former freeholders of the province "form a practical system for regulating the powers were retained as the basis of the future government; "and proceedings of the executive, Legislature and and thus all reasons for dissatisfaction were allayed. “judiciary, as far as the specific duties of each were The sections of the Constitution which are of paritconcerned, and also the electoral franchise — because mount importance to the discussion of our subject are "there were very good models in several of the old those which relate to an institutional Legislature on “colonial governments, and experience afforded all the Anglican plan, the new and old limitations of “ necessary light." This is a startling commentary on the legislative power, the judicatories and the juristhe novel features of the new Constitution, for it prudence of the new State. A very slight reference would seem that the judicature, the Legislature and to the executive and to the other distributaries of the the executive, the three great branches of government, administrative functions of government will suffice. were left substantially to the old model, while the The entire legislative power was vested in two sepamain attention of the founders of the new government rate and distinct bodies; the lowerof which retained its were directed to the method of appointing the place- provincial name, the Assembly, and the upper of which men. But, yet, this was not an oversight; it was the received that dignified title, the Senate. Their resemresult of design. The Revolutionary statesmen were blauce to the former legislative chambers was so marked not doctrinaires; they were wise and patriotic. It as to cause them to be functionally indistinguisbable. would have been as easy a task to have overthrown the Referring to the upper branch of the State legislature, old institutions as it was to preserve them; for the Mr. O'Conor says: "The only State organism that bore new Constitution was not submitted to the people and any shadow of resemblance to the English House of it was enacted in a time of great public excitement. Peers was the Senate; and there, in the closest imitaThe reason why so many of the former features of tion of our parent state, the Constitution enthroned government were retained, is explained by the reply the supreme judicial power, with final appellate jurisof John Adams to Mr. Turgot's strictures on the re- diction in law and equity. Grace and majesty shone semblance of the American Constitutions to the Eng- forth in the copy as the original.” The resemblance lish model. He says, in substance, that the colonial which the Senate bore to the House of Lords was, inplans of government were retaiued after the Revolu- deed, slight, for it was modeled on the provincial tion because they were founded in nature and reason, council, which also had appellate jurisdiction in law and the people were attached to their familiar features. and equity. The framers of the State government, (Adams' Am. Const., 1 Vol., p. 5.) The Revolution intimately acquainted with the organization of tho was not waged against these things; it was waged legislative council, naturally cbose for a model that against the king and the Parliament, not against the body with which they were most familiar, and which common law, nor the familiar institutions including by reason of inherent differences, other than the mere the legislative plan, the juridical structure and the titular dignity and tenure of the members — was a general administrative features of government. Hence much more desirable model than the House of Lords. it was that the Revolutionary statesmen were not What these differences were, we shall have occasion to doctrinaires.

consider in connection with the extraordinary powers The first great statute of this State, termed the Con- ultimately assumed by the judicial branch of the new stitution, begins with an important preamble in justi-government. The leading authorities seem to indicato fication of the change of government which it inaugu- that the council of the province was unquestionably rated; it recites the several steps taken toward this the model of the State Senate. (Int'd to Journ. of new establishment and concludes, that by virtue Leg. Council of N. Y., p. xxvi; Col. Doc. III, 624, 628; thereof all powers of government had reverted to the Journ. Leg. Council; 1 Smith's Hist'y N. Y. 305; Butpeople. This conclusion, in connection with the first ler's Const. Hist'y N. Y., p. 42.) section of the enacting part of the Constitution, was a Unaccustomed to unlimited legislation, and fearful most explicit enunciation of the doctrine of popular of the misuse of such vast powers, the Revolutionary sovereignty - but of popular sovereignty in a more Statesmen devised a very remarkable check upon hasty restricted sense than we now understand the term. The legislation. The third section of the Constitution enlightened theory of manhood suffrage came long' provided for a revision of all bills by a council cousisto

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