THE CONSTITUTION

OF THE STATE OF NEW YORK,

As revised in 1894, and including the amendments of 1899, 1901, and 1905.

The amendments appear in the following pages in connection with the sections or articles to which they relate. The original form of the Constitution of 1894 will be found in the Introduction. The text given in this volume states the Constitution as in force at the end of the year 1906.

PREAMBLE.

We, the people of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.

The first Constitution had no preamble in the sense in which that term is applied in subsequent Constitutions, but it had a long introduction. The makers of that Constitution were establishing a new order of things, and,

like the men who gave to the world the Declaration of Independence, they seemed to think that a "decent respect to the opinions of mankind" justified, if it did not require, a statement of the reasons which impelled the momentous action they were about to take in organizing a new and independent government in the face of an enemy who held possession of a large part of the colony, including its chief city. They therefore prefaced the Constitution they were about to adopt with a recital of the action taken by representative bodies of patriots, leading up to the independence of the colonies. This recital included the recommendation of the Continental Congress that governments be organized in the various colonies, the action of the Third Provincial Congress of New York, recommending the election of delegates, with full power to act upon that recommendation, the election of the Fourth Provincial Congress, which became the First Constitutional Convention, and its ratification of the Declaration of Independence on the 9th of July, which instrument declared, among other things, that "these united colonies are, and of right ought to be, free and independent states." The Declaration of Independence was then quoted at length as a part of the introduction, being thus reaffirmed nine months after its original ratification, and the Convention declared that, by reason of the action already taken by the several congresses, and the dissolution of the ties that bound the colonies to the British government, all power had reverted to the people, who had clothed the Convention with full authority to institute a new government, and this new possession and assertion of popular rights was expressed in the first section of the Constitution, which declared that "no authority shall, on any pretense whatever, be exercised over the people or members of this state, but such as shall be derived from and granted by them."

After forty-four years of experience and development under this Constitution it was obviously unnecessary, if not inappropriate, to continue this form of preamble in preparing a new constitution. The Convention of 1821, therefore, omitted any reference to the original struggle for independence, and adopted a brief preamble, including only an acknowledgment of Divine grace and benevolence in permitting the people to make choice of their form of government. The Convention of 1846 enlarged the idea of the preamble, and not only expressed gratitude to Almighty God for freedom, but declared that the Constitution was established "in order to insure its blessings." This preamble was continued in the Constitution of 1894.

The preamble is usually considered as an abstract statement, not needing judicial interpretation, and it has therefore received little attention from the courts. This re

mark does not apply with equal force to the preamble to the Federal Constitution, which contains a more formal statement of the purposes of the instrument, incorporating and continuing several phrases previously used in colonial history, and which preamble has received express judicial interpretation in several cases. An exception to the general omission of the preamble to our Constitution as a subject of judicial consideration appears in Lindenmuller v. People (1861) 33 Barb. 548, where Justice Allen, discussing the validity of the act of 1860, chap. 501, prohibiting certain amusements on Sunday in the city of New York, after citing the action of the Convention of 1777 in ratifying the Declaration of Independence, which contained a direct and solemn appeal "to the Supreme Judge of the world," and expressed a "firm reliance on the protection of Divine Providence" for the support of the Declaration, refers to the preambles of 1821 and 1846, and says that they "recognize some of the fundamental principles of the Christian religion, and are cer

tainly very far from ignoring God as the supreme ruler and judge of the universe, and the Christian religion as the religion of the people, embodying the common faith of the community, with its ministers and ordinances, existing without the aid of, or political connection with, the state, but as intimately connected with a good government, and the only sure basis of sound morals.' This case will be noticed again under the section relating to religious toleration; but it may be observed that the principles enunciated in it were approved by the court of appeals, in 1877, in Neuendorff v. Duryea, 69 N. Y. 557, in which the same statute was construed and its validity sustained.

While there are few cases in which the preamble has received direct attention, there are numerous judicial decisions relating to the Constitution generally which do not construe specific provisions, and which therefore cannot be appropriately considered under particular sections. These decisions relate not only to general principles of construction and other questions of constitutional interpretation, but also to questions arising under the Federal Constitution which have frequently been considered by state courts. I have therefore collected in this note several cases of a general character, and for convenience of reference have, so far as practicable, arranged them according to topics. Other decisions involving questions under the Federal Constitution are considered in a note on "Legislative Power," at the beginning of article 3.

WHAT IS A CONSTITUTION?

Many pages might be filled with a dissertation on the origin and evolution of the term "constitution" as an expression of the principles of government, but the subject has already been amply treated by political writers whose

works are easily accessible, and the scope of this work will permit only a few general suggestions with particular reference to our own history, some parts of which have not been considered in general articles on this subject. The student of history has not failed to notice the change in the use of the term "constitution" as applied to forms and powers of government, and the practical restriction of its use in modern times to the primary fundamental law of political society or of subordinate corporate or voluntary organizations. An illustration of the present use of the term by a nation which, coming out of a remote antiquity, has recently adopted a most progressive modern policy, is found in the constitution of Japan, which went into operation in 1889. The following preamble shows a curious mingling of inherited absolute power and popular rights:

"Having, by virtue of the glories of our ancestors, ascended the throne of a lineal succession unbroken for ages eternal, desiring to promote the welfare of, and to give development to the moral and intellectual faculties of, our beloved subjects, the very same that have been favored with the benevolent care and affectionate vigilance of our ancestors, and hoping to maintain the prosperity of the State, in concert with our people, and with their support, we hereby promulgate, in pursuance of our imperial rescript of the 12th day of the 10th month of the 14th year of Meiji, a fundamental law of the State, to exhibit the principles by which we are to be guided in our conduct, and to point out what our descendants and our subjects and their descendants are forever to conform.

"The rights of sovereignty of the State we have inherited from our ancestors, and we shall bequeath them to our descendants. Neither we nor they shall in future fail to wield them in accordance with the provisions of the Constitution hereby granted. We now declare to respect