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The annotations in this book close with the cases reported in the following:

217 New York
170 Appellate Division

93 Miscellaneous
157 New York Supplement

The Supplements will cover decisions from these points.


Scope of the Law The proposed “ Civil Rights Law” embraces those principles of organized society commonly expressed in documents known as “ Bill of Rights,” and such other related principles as have not found expression in any of the other consolidated laws. Such of these principles as now exist in the State Constitution and also in the statutes have been omitted from this chapter, as the State Constitution is the highest and best repository for them, and others are so numerous and so scattered through the body of our laws that it is impracticable and inexpedient to disturb them. Those that are contained in the proposed compilation are (1) such of the historic principles as found their last statutory expression in this State in the Revised Statutes, except those contained in the State Constitution, and (2) such related matter as seems appropriate to the “ Civil Rights Law.”

Historical Statement The development of the “ Bill of Rights," now represented in this State by the provisions in the Constitution, supplemented by the fundamental principles contained in the Revised Statutes, may be summarized as follows:

1. Magna Charta (1215), the 39th and 40th articles of which contain, among others, the following provisions, which have come down to the present date:

“No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.”

“ To none will we sell, to none will we deny, to none will we delay, right or justice.”

2. Statute of Edward (Edward III, 1354), which reasserts the 39th article of the Magna Charta:

“No man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law."

Consolidators' Note

3. Petition of Rights (1628) arising out of the Darnel case which, notwithstanding former declarations, held that a British subject could be imprisoned at the mere pleasure of the King. It included the following provisions:

“No man hereafter be compelled to make, or yield, any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament.”

“No freeman, in any such manner as is before mentioned, be imprisoned or detained.”

4. Habeas Corpus Act (31 Car. II, Ch. 2, 1679).

5. Charter of Liberties and Privileges. (1st N. Y. Colonial Assembly, 1683), containing, among others, the following interesting provisions:

“THAT Every freeholder within this provice, and freemen in any Corporation, Shall have his free choise and Vote in the Electing of the Representatives without any manner of constraint or Imposicion. And that in all Eleccons the Majority of Voices shall carry itt and by freeholders is understood every one who is Soe understood according to the Lawes of England."

" THAT Noe freeman shall be taken and imprisoned or be disseized of his ffreehold or Libertye or ffree Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon adjudged or condemned But by the Lawfull Judgment of his peers and by the Law of this province.

"Justice nor Right shall be neither sold denyed or deferred to any man within this province.”

“THAT Noe aid Tax, Tallage, Assessment, Custome, Loane, Benevolence or Imposicon whatsoever shall be layed assessed imposed or levyed on any of his Majestyes Subjects within this province or Their Estates upon any Manner of Colour or pretence but by the act and Consent of the Governour Councell and Representatives of the people in Generall Assembly mett and Assembled."

“THAT Noe man of what Estate of Condicon soever shall be putt out of his lands or Tenements, nor taken, nor imprisoned, nor disherited, nor banished nor any wayes destroyed without being brought to Answere by due Course of Law.”

“THAT A Ffreeman Shall not be amerced for a small fault, but after the manner of his fault and for a great fault after the


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Consolidators' Note

Greatnesse thereof Saveing to him his freehold. And a husbandman saveing to him his Wainage and a merchant likewise saveing to him his merchandize. And none of the said Amerciaments shall be assessed but by the oath of twelve honest and Lawfull men of the Vicinage provided the faults and misdemannors be not in Contempt of Courts of Judicature.”

“ALL Tryalls shall be by the verdict of twelve men, and as near as may be peers or Equalls And of the neighborhood and in the County Shire or Division where the fact Shall arise or grow Whether the Same be by Indictment Infermacon Declaracon or otherwise against the person Offender or Defendant.”

THAT In all Cases Capitall or Criminall there shall be a grand Inquest who shall first present the offence and then twelve men of the neighborhood to try the offender who after his plea to the Indictment shall be allowed his reasonable Challenges.

THAT In all cases whatsoever Bayle by sufficient Suretyes Shall be allowed and taken unlesse for treason or felony plainly and specially Expressed and menconed in the Warrant of Committment provided Alwayes that nothing herein contained shall Extend to discharge out of prison upon bayle any person taken in Execucon for debts or otherwise legally sentenced by the Judment of any of the Courts of Record within the province.”

“ THAT Noe person or persons which professe ffaith in God by Jesus Christ Shall at any time be any wayes molested punished disquieted or called in Question for any Difference in opinion or Matter of Religious Concernment, who doe not actually disturb the Civill peace of the province, But that all and Every such person or persons may from time to time and at all times freely have and fully enjoy his or their Judgments or Consciencyes in matters of Religion throughout all the province, they behaveing themselves peaceably and quietly and not useing this Liberty to Lycentiousnesse nor to the Civill Injury or outward disturbance of others.”

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6. Declaration of Rights (William & Mary, Ch. 2, 1689), which became the English Bill of Rights, was enacted as chapter 2, passed at the second session of Parliament, 1689, and contained the following provisions:

“ That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.”

Consolidators' Note

“That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law.

“ That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of parliament.”

“ That excessive bail ought not to be required, nor. excessive fines imposed, nor cruel and unusual punishments inflicted.”

“That jurors ought to be duly impaneled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders."

7. Act of Settlement (12 & 13 Wm. III, Ch. 2, 1700), which closes with the following paragraph:

“And whereas the Laws of England are the birthright of the people thereof, and all the Kings and Queens, who shall ascend the Throne of this realm, ought to administer the Government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same: The said Lords Spiritual and Temporal, and Commons, do therefore further humbly pray, That all the Laws and Statutes of this realm for securing the established religion, and the rights and liberties of the people thereof, and all other Laws and Statutes of the same now in force, may be ratified and confirmed, and the same are by his Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, and by the authority of the same, ratified and confirmed accordingly."

8. New York Constitution of 1777, of which Mr. Lincoln says:

“ The resolution of the Provincial Convention adopted on the 1st of August, 1776, providing for a committee to 'report a plan for instituting and framing a form of government,' also directed the committee to prepare a Bill of Rights, ascertaining and declaring the essential rights and privileges of the good people of this state, as a foundation for such form of government. A Bill of Rights was not reported by the committee as a part of the Constitution, nor was such a declaration of principles adopted by the convention. The committee did, however, include in the proposed Constitution a few propositions which fairly belong in a Bill of Rights; namely, the provision that the people are the source of all authority; the provision against disfranchisement, or depriving any citizen of his rights or privileges, “unless by the

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