Constitution of the Province of New York

The Constitution of the Province of New York is the instrument settled at Albany in 1783 after the Charter of Union, together with two older strata that it did not repeal and does not name.

This article sets the instrument out article by article in the language in which each was written, with commentary, in the numbering of the Province’s official edition.

Status

What is in force

Three strata are in force and none has repealed the others.

The Albany Settlement of 1783 is the operative instrument and supplies the articles set out below. The Duke’s Laws of 1665, compiled for the proprietor and imposed on the conquered Dutch colony without an assembly, were never repealed; most of their substance has been superseded and portions remain operative because nothing has replaced them. The Charter of Liberties of 1683, granted by the Province’s first assembly, disallowed by the Crown in 1685, and restored by the Settlement, supplies the liberties.

Beneath all three sits the received law of New Netherland, which is not a stratum of the constitution and is in force in particular fields by the operation of Article the First.

Citation

The Province cites its constitution by article and clause, as Art. I, cl. 2, in the numbering of an official edition which the Province publishes and which has itself acquired a quiet authority: the edition’s decisions about what to print, what to summarise and what to annotate have never been challenged, and its marginal notes are quoted in argument as though they were part of the text.

The text

The instrument is set out below in the language of 1783, in the numbering of the official edition. Clauses altered since are given as they stood and the alteration is described in the commentary. The Schedule of boundaries, described by metes and bounds, is summarised rather than set out.

Of the Province

The article has never been amended, and the Province makes a point of it that is more than vanity: an instrument whose first article has stood unaltered for two hundred and forty-five years has a fixed point, and a great deal of the Province’s constitutional argument consists of reasoning outward from clause 1 because clause 1 cannot have moved.

The three verbs

Clause 1 contains the whole of the two theories in three words, and it does so because the drafters could not agree.

Declare asserts that the liberties already existed and are being recognised. Restore asserts that they existed, were taken away, and are being returned. Establish asserts that they are being made, now, by the Representatives of the People. The three are not synonyms and they cannot all be true at once, and a drafter who could not carry the room put down all three.

The consequence is that both readings of the instrument have a textual hook and neither can dislodge the other. The historical school reads declare and says the liberties are older than any instrument and cannot be given or withdrawn by anybody. The living school reads establish and says the Province made its constitution in 1783 by its own act and may make it again. Both quote clause 1. Both are quoting it correctly.

The Register notes what the sentence does not do. It does not say of Our especiall Grace, which is what the Crown said to Massachusetts Bay ninety-two years earlier and which settled the question there in the Crown’s favour. New York’s first article is the same argument left open on purpose, and the openness is the Province’s most valuable constitutional possession because it has never had to lose it.

The Conquest, named once

Clause 2 contains the only appearance of the word Conquest in the entire instrument.

The Settlement recites no history. It does not narrate the taking of New Amsterdam, the imposition of the Duke’s Laws, the Charter of 1683 or its disallowance, and it names no King and no proprietor. It begins in 1783 and declines to discuss what preceded it, which is the opposite of the Bay’s charter and was a deliberate choice.

And it cannot avoid the Conquest, because it has to preserve what came before one. A clause continuing the rights, usages and customs of the inhabitants as the same stood before the Conquest must say which conquest and when, and in saying so it admits in a subordinate clause the thing the instrument otherwise refuses to discuss. The word appears once, is not explained, and is doing a great deal of work.

What it preserves is the received law of New Netherland, and it is the clause on which the Province’s commercial law rests. The law of general average, of marine insurance and of the limited partnership, and a body of water and riparian right, descend from Dutch practice and are pleaded under clause 2. It is the most consequential sentence in the article and it looks like a saving provision.

Property before government

Clause 3 confirms every title in the Province before the instrument has constituted a single organ of government, and the order is not accidental.

The Settlement dealt with the land first because it had to. The franchise was a freeholder’s franchise, the identity of the freeholders was in dispute, and nothing about the government could be settled until the titles were. Clause 3 is the resolution: existing titles are confirmed to those who hold them, and are not to be impeached by reason of the Authority under which they were first granted.

That last phrase is the operative one. It makes a Dutch patent as good as a royal grant, a proprietary grant as good as a colonial one, and a title from the assembly as good as a title from a governor. Four legal regimes are levelled in a single subordinate clause, and the whole property law of the Hudson valley rests on it.

It is also the clause that did the injustice. Confirming existing titles confirmed the titles that existed, and the ground had been taken. Clause 3 is the machinery by which dispossession became lawful and unreviewable, and the instrument does not mention the people it was taken from.

Residence and sitting

Clause 4 fixes the two cities and never uses the word capital.

It says where the Representative of the Crown shall reside and where the Assembly shall sit, the Ministry keep its offices and the courts hold their principal terms. The word capital appears nowhere in the constitution of New York.

The arrangement it describes is the Dutch one, in which the sovereign’s city and the governing city are different places as Amsterdam and The Hague are, and the Province inherited the form along with the commercial law. In ordinary usage New York City is the capital and Albany is the seat of government, and the constitution supports the usage without stating it: it puts the Crown in one city and the government in the other and leaves the vocabulary to everybody else.

Neither city can be moved without amendment, which is why the recurring proposal to bring the vice-regal residence to Albany has never gone anywhere. It would require reopening Article the First.

The Schedule

Clause 5 does its work by reference, and the Schedule describes the bounds by metes and bounds in the manner of the period.

The official edition summarises it. What matters constitutionally is that the boundary with the Lower Counties on the Delaware and the boundary with New Jersey were both contested when the Schedule was drawn, that the Schedule settled them, and that it has been amended only where a boundary was later adjusted by agreement with the polity concerned. The article itself has not been touched.

Of Liberties

Clauses 1 to 5 are the Charter of 1683 in its own language. Clause 6 was added in 1897 and clause 7 in 1934, and those two amendments are the only two occasions on which the near-unamendable procedure has been carried through in two hundred and forty-five years.

A document restored as an article

Article the Second is not a summary of the Charter of Liberties. It is the Charter, renumbered.

The Settlement did not paraphrase the 1683 text, did not modernise it and did not enact a new statement of rights in 1783 language. It took an instrument that the Crown had declared void ninety-eight years earlier and set it down as the second article of the new arrangement, in the words in which the Province’s first assembly had passed it.

That is the Province’s answer to the disallowance and it is made entirely by drafting. A Charter reproduced verbatim as an article of a living constitution is a Charter that was never void, and the Settlement makes the argument without ever stating it, which is consistent with an instrument that declines to recite its own history.

The silent edit

Clause 1 as restored is not quite clause 1 as granted, and the difference is the only alteration the Settlement made to the 1683 text.

The Charter required the consent of “the Governour, Councell and Representatives of the People.” The restored clause requires the consent of the Representatives of the People alone. The Settlement had abolished neither office by name and simply left them out, because a royal Governor with a negative voice and a nominated Council had no place in a self-governing province and the drafters were not going to restore them by accident in the course of restoring the liberties.

The edit is silent. There is no marginal note against it, the official edition prints the restored words without comment, and the Province’s constitutional literature treats it as a correction rather than an amendment. It is nonetheless an 1783 hand inside an 1683 sentence, and it is the clearest single instance of what the layering does to the reader: two centuries are present in one clause and only one of them is signalled.

Taxation, intact and spent

The clause stands unamended and does very little.

Federal taxation reaches the inhabitants of New York regardless of what the Province’s Assembly consents to, because the Realm’s revenue power does not depend on provincial consent and never has. Clause 1 binds the Province and constrains nobody else, and the great constitutional principle for which the colony fought through the 1680s now governs the provincial rate and no more.

The Province cites it anyway, with some regularity, in arguments about federal conditions attached to federal money. The citation has never succeeded, and its persistence is a good illustration of how an instrument’s oldest and proudest clause can survive intact while the thing it was for goes elsewhere.

The conscience clause, and a hundred and seventy-nine years

Clause 2 is printed as granted, with the qualification standing in the text and a marginal note recording that it has no effect.

The device is the Bay’s and was borrowed deliberately: a constitution that deletes its own worst words has deleted the evidence, so the words remain and the record sits beside them. The Province adopted the practice from Massachusetts Bay and the comparison does not flatter it.

The Bay’s clause grants liberty of conscience to all Christians except Papists and has been of no effect since 1783. New York’s grants it to those professing faith in God by Jesus Christ and was of no effect only from 1962, when the American Rights Act was extended to the polities and made a religious qualification on conscience unmaintainable anywhere in the Realm.

New York’s qualification therefore outlived the Bay’s by a hundred and seventy-nine years. The Province’s account of itself is that its liberties are older and broader than anybody’s, and on this clause it was slower than its neighbour by some six generations, because the Bay dealt with its own bad words in the recasting and New York waited for a federal statute to do it.

Venue as a right

Clause 3 is two rights in one sentence and the second is easily missed.

The first is trial by twelve men, which is unremarkable. The second is that the trial shall be had in the County where the matter in question did arise, which is a guarantee of venue and is the older grievance: a colonist tried at the capital before a jury drawn from the capital, over a matter arising two hundred miles upriver, was tried by strangers with the governor’s interests.

The venue guarantee has done substantially more work than the jury guarantee in the Province’s modern law, and it is the clause on which the upstate counties rely when the argument is about where a thing is to be decided rather than by whom.

Peers and the law of this Province

Clause 4 is the Charter’s version of the ancient formula, and its last four words are the ones that matter.

Judgment is to be by the lawful judgment of peers and by the Law of this Province, which in 1683 meant the law of a colony that had received Dutch law, been given a conquest code, and acquired an assembly within the year. The phrase carries the whole layering into the due process clause, and a modern court applying it is applying whichever stratum answers the question.

Quartering, and its second limb

The clause forbids quartering without consent, and then forbids it in time of Peace upon any pretence whatsoever, which is an absolute prohibition rather than a consent requirement.

It has not been litigated in two centuries. The Province prints it because it is there.

The two amendments

Clauses 6 and 7 are the only two completions of the amending procedure in the article’s history, and both added rights rather than removing any.

Clause 6, of 1897, is the right of entry and settlement, and it belongs to the decade in which the harbour was receiving the world. It binds the Province and every authority within it in entering, residing and labouring, it does not bind the federation, and that limitation is the whole of its modern significance: it has been used repeatedly against provincial and municipal measures and has never been available against a federal one.

Clause 7, of 1934, is the schools clause, and it carries something much larger than schools. Its closing words provide that this Article binds the Province and every authority within it alike, and that is the general binding rule for the entire article.

Before 1934 it was arguable that Article the Second bound the Province and not the City, the counties or the towns, and the argument was made. After 1934 it was not. The rule that makes the Province’s liberties enforceable against every authority within it entered the constitution attached to a provision about public instruction, in an amendment carried in the middle of the Depression for reasons that had nothing to do with it, and the Province’s constitutional writers have been slightly embarrassed by this ever since.

The article and the federal Act

Where Article the Second and the American Rights Act overlap, the federal Act prevails as the higher law. Where the article goes further and the Act is silent, the article operates.

The second half is litigated constantly and the first half is not as settled in New York as it is elsewhere. The Province has never fully accepted that a federal instrument of 1866 can displace a provincial one of 1683 on a point where the two genuinely conflict, and its argument, made more often in the law reviews than in the courts, is that clause 1 of Article the First declares liberties that predate both instruments and that neither can therefore be the source of.

It is the two theories again, arriving from underneath. The Province has never had to press the point to judgment, and its more candid writers acknowledge that it would probably lose.

Of the Crown in the Province

What was not taken away

Clause 2 is the most dangerous sentence in the constitution and it is drafted as housekeeping.

It continues to the Lieutenant-Governor the powers “heretofore belonging to the Governor of this Province,” saving those since abridged. It does not say what those powers are. It does not list them, describe them or limit them by subject, and it defines the office by subtraction from an unstated total.

The powers of a governor of a seventeenth-century royal province were extensive and are not fully known. They included authority over land grants, over the appointment of local officers, over the calling and proroguing of the assembly, and over the admiralty jurisdiction of the port, and they included whatever else a governor had been doing that nobody wrote down. The Settlement continued all of it and then spent two centuries taking away only what somebody specifically objected to.

What remains is therefore unknowable in principle. A modern Lieutenant-Governor holds every power a colonial governor held that no statute has since removed, and neither the Province nor its courts can produce the list. The Register does not describe this as charming. The powers are not used. They have not been repealed. Those are two different facts and only the first is reassuring, and the Province’s constitutional writers have said so periodically for a hundred and fifty years without persuading any Assembly to enumerate the office.

The rule about advice

Clause 4 is the provincial statement of the rule that holds the whole personal union together, written into a provincial instrument in 1783.

No minister of another realm, and no federal minister, may advise the Lieutenant-Governor in the affairs of New York. The Province wrote the rule down before the Realm did, which it mentions, and the clause has been cited in interrealm argument well beyond its own jurisdiction because it is one of the earliest express statements of the doctrine anywhere in the union.

The clause that was not there

Clause 5 was added in 2007 because on 1 May 2006 the constitution had no provision for a dead Lieutenant-Governor.

There was machinery for an officer absent, ill or resigned, and none for one who had been killed, and nobody had noticed because no vice-regal officer of any polity of the Realm had died in office in two hundred and twenty-three years. The gap was found on the afternoon of the attacks by officials looking for a provision that was not there.

The amendment is deliberately narrow. It confers the functions on the senior judge, withholds the three powers that could change a government, and states in its second sentence a principle that everybody had assumed and nobody had written: the Crown does not lapse. It was drafted in the year after the worst morning in the Province’s history, when a great deal more could have been carried on the same feeling, and the constitutional committee confined it to the hole that had actually been found.

It is the only substantial amendment to the instrument in a century, and it is in modern language, and the language is the point. Article the Third now changes register halfway down, from an eighteenth-century hand continuing seventeenth-century powers to a twenty-first-century one closing a gap those powers had left, and the seam is visible on the page.

Of the General Assembly

The proviso, and two hundred and forty-five years of quarrel

Clause 4 is the Province’s oldest quarrel and it is a proviso attached to a delegation.

The clause does not apportion the Senate. It gives the apportionment to the General Assembly to settle from time to time, and then attaches a floor: no apportionment may deprive the counties outside the City of a voice.

Everything follows from the vagueness of the floor. A voice is not a number, and two hundred and forty-five years of argument have been conducted over what the proviso requires: whether it guarantees the upstate counties merely a presence, or a presence proportionate to something, or a presence sufficient to matter. Three apportionments have been made under it, in 1846, 1894 and 1968, each has been challenged, and each challenge has failed on the ground that the proviso commits the question to the Assembly and the Assembly has answered it.

The City’s case is that a chamber weighted against population is weighted against people. The upstate case is that a Province governed entirely from one harbour is not a Province. Both are correct. The proviso was drafted by people who could not settle it either, and who put a floor under the losing side and left the rest to politics, which is what has happened ever since.

Confidence and supply

Clauses 2, 3 and 5 reproduce at provincial scale the arrangement the Realm uses federally: confidence in the lower chamber, supply on ministerial motion only, and an upper chamber that may revise and delay and may not withhold supply or remove a government.

The provisions are unremarkable and the date is not. They were written in 1783, which is before the federal arrangement had settled into the form it now has, and the Province’s writers claim with some justice that Albany was operating responsible government on paper while New Westminster was still working out what it was.

The Ministry appears in this article only as a thing that holds office and moves supply. It is nowhere constituted, the Premier is nowhere named, and the office exists by convention exactly as the federal premiership does. The Settlement declined to create it and every subsequent proposal to write it down has been refused for the federal reason: an office defined in law can be redefined in law.

Of the City of New York

The oldest thing in the instrument

The City’s privileges are older than the Province’s constitution, older than the Charter of Liberties, and older than English rule, and Article the Fifth confirms them rather than granting them.

New Amsterdam had a city government before New York had a province. The conquest of 1664 preserved the city’s existing privileges as it preserved everything else commercial, and the Settlement of 1783 confirmed what the conquest had preserved. The chain runs unbroken from a Dutch municipal charter to a clause of a modern constitution, and it is the reason the largest city in the Realm holds its powers against its own legislature rather than at its pleasure.

The Province’s courts have twice held that an Act of the General Assembly purporting to reach a confirmed privilege is of no effect. Both cases are short and neither was close.

What the entrenchment produces

The City has never attempted to leave the Province, and Article the Fifth is the whole explanation.

Secession is a remedy for a city that cannot govern itself because its polity will not let it. New York can govern itself in the fields the article confirms, its legislature cannot reach them, and a collision between the City and Albany is therefore a legal question with an answer rather than a political question without one. A city that already holds what secession would win has no reason to seek it, and the running battle that defines the relationship between other great cities and their polities does not occur here.

The upstate counties describe the arrangement, not unfairly, as a permanent structural advantage that the Senate exists to offset. The article and the proviso of Article the Fourth are the two halves of one bargain, and neither can be read without the other.

Of Lands and Tenures

The end of the manors

Clause 2 abolished the manorial system in a single sentence and turned the whole of it into money.

The patroonships and the great Hudson grants had reserved services, incidents and perpetual rents upon their tenancies, and the reservations were the substance of the manorial economy. Clause 2 extinguished the services and the incidents outright, preserved the rents, and reduced them to ordinary debts recoverable in the ordinary courts.

That is a smaller reform than it sounds and a larger one than it looks. The tenant still owed the rent. What he no longer owed was everything that was not money, and the landlord who had held a jurisdiction over his tenants now held a claim against them. The Province’s anti-rent conflicts of the following century were fought over the rents that clause 2 preserved, and they were fought in courts rather than in manorial jurisdictions because clause 2 had abolished those.

Clause 4 is the settlement of those conflicts, added in 1889, and it is in the language of its own date. It provides that no tenant may be put out and no distress levied except by judgment of a court, which is what the anti-renters had been demanding for fifty years, and it was granted only after the manorial economy had substantially ceased to exist.

The rights before the Conquest

Clause 3 is the second appearance of the Conquest in the instrument and the only other one.

It preserves rights of water, of passage and of common as they stood before 1664, and it is the clause under which the Province’s water law is argued. A riparian question in the Hudson valley may turn on Dutch practice, and the specialist bar that argues such questions is one of the few places in the English-speaking world where Roman-Dutch authority is cited in a working court.

Of the Courts

The court that will not choose

Clause 3 gives the Supreme Court the last word on the instrument, and the Court has used it principally to decline.

Asked repeatedly to hold that the Settlement superseded the Duke’s Laws, or that the restored Charter superseded both, the Court has refused every time. Its stated reason is that the instruments were not drafted as replacements and it will not convert them into replacements retrospectively. Its practical reason, given more candidly in the law reviews than from the bench, is that declaring which stratum governs would unsettle a very large number of questions that are currently settled.

The layering is therefore judicially entrenched as well as historically accidental. It survives because the only body with authority to end it has decided, consistently and for two centuries, that ending it would cost more than carrying it.

Habeas, and the thing New York wrote down first

Clause 4 forbids any court to refuse the writ and forbids its suspension, without exception and without a war clause.

The federal position took another eighty-three years to arrive. The Realm’s non-derogable core dates from the American Rights Act of 1866 and was written after a civil war in which the writ survived only because the Commons would not pass a suspension. New York had forbidden the suspension in 1783 and did not suspend it in the 1860s, and the Province mentions this whenever the subject arises.

Of Amendment

The two speeds

Article the Eighth governs the Settlement and does not govern everything the Province calls constitutional.

The articles set out above may be altered only by the procedure in clause 1, which has been completed twice in two hundred and forty-five years. The constitutional Acts that have accumulated around them are Acts, and are passed and repealed as Acts, and a great deal of what an outsider would call constitutional change happens in New York without anybody calling it that.

Litigating which side of that line a provision falls on is a recognised specialism at the provincial bar, and the Supreme Court has drawn the line by asking a question that is characteristic of the Province: not what the provision does, but which stratum it belongs to.

The proviso that cannot be amended

The second clause is a one-way ratchet on the liberties, and it is the reason Article the Second has only ever grown.

Nothing in Article the Second may be abridged or taken away by any amendment whatsoever. It may be added to and not diminished. The Province may therefore give itself more rights and may not, by any procedure available to it, give itself fewer.

The clause is unusual and its consequences are real. The Christian qualification in the conscience clause could not have been struck by amendment even if the Province had wanted to strike it, because striking words from Article the Second is diminishing it, and the article may only be added to. That is why the qualification stands in the text with a marginal note against it rather than having been removed: the instrument forbids its own tidying.

The Province’s habit of printing dead words is therefore not a choice about candour. It is a consequence of clause 2 of Article the Eighth, and the Province has been given credit for a scruple that its own constitution imposes on it.

What the constitution does not contain

No Ministry. The Premier appears in no article. The office exists by convention and every proposal to write it down has been refused.

No enumeration of the vice-regal powers. Article the Third continues them and does not list them, and neither the Province nor its courts can produce the list.

No mention of the Duke’s Laws. The Settlement neither repeals nor names the code of 1665. It survives by the silence of Article the First, clause 2, which continues rights and usages without saying under what authority they were first had.

No mention of the disallowance. The instrument recites no history at all and does not acknowledge that the Charter it sets down as Article the Second was ever void.

And no mention of the Haudenosaunee. Article the Sixth declares every tenure in the Province to be held of the Crown and confirms every title in it, and the ground was taken. Their treaties are federal rather than provincial, which is the constitutionally correct position and the whole of the Province’s answer when the point is put.

It is not an adequate answer. An instrument that settles the land question at length in two separate articles and does not name the people the land was taken from has made a choice, and the choice is legible. The Register states the silence as a failing rather than as a jurisdictional fact.

Two theories

Living, or historical

The Province argues about its instrument in two registers and clause 1 of Article the First gives each of them a word.

The historical school reads declare. The liberties are older than any instrument, were recognised rather than created, and cannot be given or withdrawn by anybody. On this reading the constitution is a record of something that already existed, its age is its authority, and a court that updates a clause has amended it without the procedure.

The living school reads establish. The Representatives of the People made a constitution in 1783 by their own act and may make it again, the instrument means what a court now needs it to mean, and the age of a provision is a fact about its origin rather than about its content.

Both quote the same sentence. Both quote it correctly. The drafters wrote all three verbs because they could not agree, and the disagreement has therefore been carried forward in the text itself rather than settled by it.

Why neither can win

Nobody holds either theory consistently across the whole instrument, and the reason is that the two readings change sides depending on the article.

A living reading of Article the Second is expansive and welcome. A living reading of Article the Third, which continues unenumerated seventeenth-century powers, is alarming. A historical reading protects the liberties of 1683 exactly as written and preserves a conquest code exactly as written.

Advocates therefore hold both and choose by the case, which the Supreme Court has complained about from the bench for a hundred and fifty years and has never had a remedy for, since the Court does the same thing.

The replacement question

Replacing the whole instrument with a single modern constitution has been proposed about once a generation and a convention has never been convened.

The objections are always the same three. Article the Second would have to be re-enacted, and a re-enacted rights article would be a fresh grant rather than an ancient recognition, which is the distinction the Province has spent three centuries defending. Article the Fifth would be reopened, and a City that currently holds entrenched privileges has everything to lose from a convention and nothing to gain. And the survivals would be swept, including the commercial law that rests on Article the First clause 2 and that nobody has ever codified.

Behind all three sits the argument that defeats every proposal: a convention would have to decide which stratum governs. The Province has never decided that, its Supreme Court has consistently refused to decide it, and the moment it is decided a very large number of currently settled questions become unsettled.

The Province is stuck with an instrument it cannot state and will not replace, and knows it.

The constitution in ordinary life

The edition

What a New York lawyer actually uses is the official edition, which prints the eight articles, the marginal notes, the Schedule in summary, and an apparatus of amendment dates, and which has acquired an authority nobody granted it.

Its decisions about what to print, what to summarise and what to annotate have never been challenged. Its marginal notes are quoted in argument as though they formed part of the text, and the note against Article the Second clause 2 is quoted more often than the clause.

What a citizen meets

Very little of it, directly.

The provisions an inhabitant of the Province is likely to encounter are the venue guarantee of Article the Second clause 3, which decides where a case is heard, the tenant protection of Article the Sixth clause 4, and the schools clause of 1934. The rest is professional territory, and the Province’s habit of describing its own constitution as a living inheritance sits awkwardly beside the fact that almost nobody outside the bar can state what is in it.

The Tabloid Constitution

The Province’s informal accountability mechanism, in which the City’s tabloid press, its broadcasters and the national outlets collectively check provincial government, is treated in the Province’s own article and belongs here for one point only.

A polity whose written instrument is unreadable has developed an unwritten one that everybody can read. Nobody in Albany can state the constitution of New York. Everybody in Albany can state what will be on the front page if they do a particular thing, and they legislate accordingly.

Comparison

Three charters, twenty-eight years, and a narrowing liberty

New York’s conscience clause is the middle term of a sequence that runs across three colonies in one generation, and the sequence goes the wrong way.

Rhode Island, 1663. Liberty of conscience to all and everye person, without qualification: not for Protestants, not for Christians, not subject to conformity in anything. The colony asked for it, drafted it, and the Crown granted it.

New York, 1683. Liberty of conscience to those which professe faith in God by Jesus Christ. Broader than Rhode Island’s in the conduct it protects and narrower in the persons, and the narrowing is the point.

Massachusetts Bay, 1691. Liberty of conscience to all Christians except Papists, narrower again, and printed unrepealed to this day with a note recording that it is of no effect.

Twenty-eight years separate the first from the last, the three colonies are within a few hundred miles of one another, and the grants came from the same Crown. Each successive charter protected fewer people than the one before it.

What each province does with its clause

Rhode Island’s is a boast and is quoted constantly. Massachusetts Bay’s is a record of shame the Bay refuses to delete, on the reasoning that a constitution which erases its own bad clauses has erased the evidence. New York’s is neither, and the Province’s habit is not to quote the second half of the sentence.

And New York’s excuse is better than the Bay’s and worse for it. The Bay chose to keep its words. New York cannot remove hers, because Article the Eighth forbids any amendment that diminishes Article the Second, and striking a limitation is diminishing an article. The Province has been given credit for candour that its own constitution imposes on it.

The dates do not flatter it either. The Bay’s clause has been spent since 1783. New York’s stood until 1962 and was ended by a federal statute rather than by the Province.

Failings

Article the Third continues powers nobody can enumerate. A working vice-regal office holds every authority a colonial governor held that no statute has since removed, the list cannot be produced, and the Province has known this for a hundred and fifty years. The powers are not used and they have not been repealed, and only the first of those is reassuring.

Article the Sixth is the machinery of a dispossession the instrument does not mention. It declares every tenure in the Province to be held of the Crown and confirms every title, and the ground was taken from people the constitution does not name.

The Duke’s Laws survive by silence. Provisions of a code imposed on a conquered population without consent are operative today, on the authority of a seventeenth-century conquest, because the Settlement neither repealed nor named them.

The instrument had no answer on 1 May 2006. A constitution three hundred and forty years old had no provision for a head of state killed in office, and what filled the gap was worked out in an afternoon by people who had not slept. It was lawful and it worked because of who was in the room, which is not a property of a constitution.

And it cannot be stated. Nobody can say what the constitution of New York is without a bibliography, which is a sentence from the Province’s own Supreme Court. A constitution known only to a professional class belongs to that class, and the Province’s habit of finding its own opacity delightful is the least attractive thing about its constitutional culture.

Assessment

The constitution of New York is an instrument of eight articles which repealed nothing, sits on two older strata it does not name, and was drafted by people who could not agree what they were doing and wrote all three possibilities into its first sentence.

The refusal to write a single constitution was the point rather than the failure. The Province could have produced a clean document in 1783 and declined, because a new instrument would have had to be granted by somebody, and a Province that had spent a century insisting its liberties were recognised rather than conferred could not accept them as a fresh gift. The layering is what that position looks like when it is built instead of argued, and every proposal for a convention since has foundered on the same point.

What the arrangement has bought is real and is mostly in the second and fifth articles. A rights article older than the federal one, which may be added to and never diminished. A city whose privileges run back to a Dutch municipal charter and which its own legislature cannot reach, and which has therefore never wanted to leave. A commercial law with three centuries of continuous development resting on a saving clause. And a first article that has not moved in two hundred and forty-five years, which gives a famously illegible constitution one fixed point to reason outward from.

What it has cost is legibility, and the cost falls on the people least able to bear it. The Province’s liberties are broad, ancient, entrenched against diminution, and effectively unavailable to anybody who cannot afford counsel.

The Province is not going to fix it. The objections to a convention are good ones and they will keep prevailing. What New York does instead is what it did in 2007, which is to improvise correctly under pressure and then legislate the narrowest repair that will close the hole. That has been necessary twice in three hundred and forty years. The Province regards the record as vindication and might reasonably regard it as a sample size.

Chronology

1624 onward. New Netherland is settled under Roman-Dutch law. New Amsterdam receives a city government.

1664. An English fleet takes New Amsterdam without a fight. Existing private rights, commercial usages and the city’s privileges are preserved.

1665. The Duke’s Laws are imposed on the conquered colony without an assembly. Never repealed.

1683. The Province’s first assembly passes the Charter of Liberties and Privileges.

1685. The Crown disallows the Charter. The assembly is dissolved.

1770s. The disallowance is argued at length, on the ground that liberties recognised cannot be withdrawn.

1783. The Charter of Union. The Albany Settlement settles the land, restores the Charter as Article the Second, continues the Governor’s powers without enumerating them, confirms the City’s privileges, extinguishes the manorial incidents, and recites no history whatever.

1846. First apportionment of the Senate under the proviso.

1847. Article the Seventh, clause 3 amended.

1889. Article the Sixth, clause 4 added: no tenant put out but by judgment of a court.

1894. Second apportionment.

1897. First completion of the amending procedure: Article the Second, clause 6, entry and settlement.

1934. Second completion: Article the Second, clause 7, free instruction, carrying the words that bind every authority in the Province.

1962. The American Rights Act is extended to the polities. The Christian qualification in Article the Second becomes of no effect, and cannot be removed.

1968. Third apportionment.

1 May 2006. Peg Halloran, Lieutenant-Governor, is confirmed dead at 2:19 p.m. The instrument has no provision for it. The gap is found and filled the same afternoon.

2007. The continuity amendment, Article the Third, clause 5.

2028. Eight articles, two strata beneath them, no convention convened, and Article the First unaltered since it was written.

Trivia

See also

• The Province of New York, the polity this instrument governs
• The Constitution of Massachusetts Bay, the Realm’s other charter constitution, and the source of the marginal-note practice
• The Constitution of Rhode Island, whose conscience clause of 1663 is the unqualified one
• The Charter of Union of the American Colonies, after which the Albany Settlement was made
• The American Rights Act, which ended the qualification the Province cannot remove
• The May Day Bombings, in which the Lieutenant-Governor was killed and the gap was found
• The Governor-General, who commissions the Lieutenant-Governor in the King’s name
• Daily life in New York

Categories

Laws · Polity Constitutions · The Province of New York · Institutions · The Crown