whereupon the attachment was issued, and he was compelled to attend the grand jury, and give evidence as a witness in a pending criminal proceeding. This was deemed by the assembly a breach of the privilege of its members, and a select committee was appointed to inquire into the matter,

In its report the committee gave a history of parliamentary privilege, and claimed that the attachment against Mr. Ray was unauthorized and invalid, for the reason that he was exempt from arrest under the provisions of an act passed February 20, 1788, which declared that "every member of the legislature shall be privileged from arrest on civil process during his attendance at the session of the house to which he shall belong, except on process issued on any suit brought against him for any forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by him." The committee asserted that a member of the assembly was not bound to obey a subpoena to attend before the grand jury, that his disobedience was not a contempt, for he had committed no offense. In conclusion the committee say that the arrest of the member was a high breach of privilege, and deserved the censure of the assembly. This result was applied not only to Judge Potter, but also to the district attorney who procured the attachment, and the officer who served it.

On the 16th of February, Judge Potter appeared at the bar of the house, in response to its summons, and presented his defense. He denied the power or authority of the assembly to call him to an account. He said he appeared only by courtesy and out of respect to the assembly, but without waiving any objection to its jurisdiction. He protested against the power of the assembly to inquire into his judicial acts, claiming that the judicial department was vested with an equal portion of the sovereign

power of the state, entirely independent of the legislative power. Continuing, he said: "I protest, and claim that there is no way known to the Constitution or laws of this state by which a judge can be called to account, be tried, degraded, or the dignity of the judicial office impaired, except by the only method known to the Constitution,by way of impeachment for corruption in office." He said he came not as an individual, but as a judge, to defend his judicial action. He denied the power of the assembly "to punish, by censure or otherwise, the individual for acts performed while exercising the functions of a magistrate of the highest court of original jurisdiction of this state." He characterized the act of the assembly as an "aggressive assumption of power," and said that "if one department of this government possess the power to command obedience of another of coextensive and equal power,-if the legislative can usurp the authority to hold in awe or punish the judicial, then indeed have we a despotism, and not a government of freedom. If for an official act, if for a judicial act of a judge, this house possess the power to punish, even for mistaken judgment, where is the boasted protection to an independent judiciary?" He contended that his application of the law had been accurate; that the process against Mr. Ray was valid; and said that notwithstanding any action the assembly might deem it proper to take, he would follow the same course, if called upon in a like case, the next day. He asserted that, in so acting as a judicial officer, he could commit no contempt for which he could be held responsible. He said the proceeding which had been instituted by the assembly was an anomaly in every civilized government, and was an unauthorized assumption of preeminence of the assembly over the judicial department.

Judge Potter denied that Mr. Ray had been arrested on civil process; he had been arrested on process issued out VOL. IV. CONST. HIST.-39.

of the court of oyer and terminer, which was a court of criminal jurisdiction only. Its process, therefore, was not civil process, but criminal process, issued on behalf of the people to enforce the criminal law. He denied that a member of the assembly was privileged from a service of a subpoena to appear before the grand jury.

Judge Potter made a very interesting and instructive argument in defense of the powers and rights of the judiciary as an independent branch of the government, and showed that the privilege of members of the English House of Commons had been limited by statute, and was no broader than that conferred on members of the legislature by the New York act of 1788, which, in many particulars, was manifestly copied from English statutes.

At the close of his argument a resolution was offered declaring that he had been guilty of a high breach of the privileges of the assembly, and was censurable therefor, and that he be reprimanded by the speaker. This was withdrawn. The assembly rejected a resolution requesting the opinion of the attorney general as to the meaning of the term "civil process," and adopted, by a vote of 92 to 15, the following resolution offered by Thomas G. Alvord:

"Resolved, That the Hon. Platt Potter was mistaken as to the privileges of this house, in the action taken by him in the arrest of Hon. Henry Ray, and did commit a breach of its privileges in so doing; but this house do not believe that any intention or desire to interfere with the independence or dignity of the house actuated him in the performance of that which he deemed his official duty."

This closed the incident so far as Judge Potter was concerned. The assembly declined to censure the judge, but expressed the opinion that he was mistaken, and asserted the privilege of its members. It may be inferred from the judge's argument that he continued to be of the

same opinion still. If there was any doubt as to the privilege under earlier statutes, that doubt has been removed by section 2 of the legislative law (Laws 1892, chap. 682), which declares that

"A member of the legislature shall be privileged from arrest in a civil action or proceeding other than for a forfeiture or breach of trust in public office or employment, while attending upon its session, and for fourteen days before and after each session, or while absent for not more than fourteen days during the session, with the leave of the house of which he is a member.

"An officer of either house shall be privileged from arrest in such a civil action or proceeding while in actual attendance upon the house. Either house shall have the power to discharge from arrest any of its members or officers arrested in violation of his privilege from arrest."

Section 4 authorizes each house to punish by imprisonment, not extending beyond the same session of the legislature, as for a contempt, the offense of "arresting a member or officer of either house in violation of his privilege from arrest;" and section 564 of the Code of Civil Procedure provides for the discharge of a person arrested on civil process in violation of his privilege. The section of the legislative law clearly excludes a subpoena to appear before a grand jury. The people must have the right to enforce the criminal law, and for that purpose to compel any person to appear before the proper tribunal.

The assembly took the same action as to the district attorney. This case will be found in 55 Barb. 625.

In the first volume, in the chapter on the first Constitution, I have recounted the proceedings in the legislature relative to the Hadden Case, when Chief Justice John Jay and his associates were summoned to the bar of the assembly, at its first session, in 1777, to show why they had refused to grant a writ of habeas corpus, and it has

there been noted that they refused to act because they had no jurisdiction. They declined to exercise a judicial authority which they believed they did not possess, and they were sustained by the assembly. In the later case, Judge Potter was charged with having exercised too much judicial power, or power which he did not possess. While not fully sustaining the judge, the assembly did not feel sure enough of its position to adopt a resolution of censure. Both instances illustrate the general supervisory power vested in the assembly as the primary representative of the people, with authority to inquire into the conduct of every officer in every department, and, either by the exercise of the power of removal, or of the power of impeachment, to maintain the very highest standards of official character.

The provision defining the extent of punishment in cases of impeachment is "a restriction, not an authority, . . . a mere limitation of a greater power, a power to inflict other punishments, as well as removal and disqualification. Impeachments of public officers, a peculiar species of accusation, made and tried in a peculiar manner, are to extend no farther in their effect than to discharge an officer from his trust, and to render him incapable of holding office; but if the cause for which the officer is thus punished is a public offense, he may also be indicted, tried, and punished according to law; the Constitution leaving the definition of the offense and its particular punishment, in this case as in all others, to the general power of the legislature. This part of the Constitution concerning judgment on impeachments is therefore a limitation of the power of the court for the trial of impeachments, and not a restriction upon the general power of the legislature over crimes." Barker v. People (1824) 3 Cow. 686, 15 Am. Dec. 322.

§ 14. [County courts.]-The existing county courts are continued, and the judges thereof now in office shall hold their offices until the expiration of their respective terms. In the county of Kings there shall be two county