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16. [Common law continued.]-Such parts of the common law, and of the acts of the legislature of the colony of New York as together did form the law of the said colony on the nineteenth day of April, one thousand seven hundred and seventy-five, and the resolutions of the Congress of the said colony, and of the Convention of the state of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.

[Const. 1777, art. 35; 1821, art. 7, § 13; 1846, art. 1, § 17.]

The section continues and asserts a well established rule which was perfectly familiar to the statesmen who framed the first Constitution. In the official report made by Governor Tryon, June 11, 1774, in response to inquiries by the home government concerning colonial affairs, he says, among other things, in his answer to the question "What is the constitution of the government?" that "the Common Law of England is considered as the Fundamental law of the Province and it is the received Doctrine that all the Statutes (not Local in their Nature, and which can be fitly applied to the circumstances of the Colony) enacted before the Province had a Legislature, are binding upon the Colony; but the Statutes passed since do not affect the Colony, unless by being specially named, such appears to be the Intention of the British Legislature."

This authoritative statement, made less than a year

before the battle of Lexington, by one of the ablest of the colonial governors, clearly describes the existing legal system, and amply justifies the wisdom of the men who, even in the excitement and turmoil of a great political revolution, calmly determined to preserve in the Constitution the personal rights and the principles of organized society which are such distinguishing features of the English common law.

A provision on this subject continuing the English common and statute law and the colonial legislation in force on the 19th of April, 1775, was included in the first Constitution. The Convention of 1821 revised the section, omitting several provisions which were deemed important by the framers of the first Constitution. The Convention of 1846 added a provision relating to codification which was omitted by the Convention of 1894.

The declaration in this section continuing the English common and statute law accords with the principle stated in Bogardus v. Trinity Church (1833) 4 Paige, 178, 197, that "it is a natural presumption, and therefore is adopted as a rule of law, that on the settlement of a new territory by a colony from another country, especially where the colonists continue subject to the same government, they carry with them the general laws of the mother country which are applicable to the situation of the colonists in the new territory, which laws thus become the laws of the colony until they are altered by common consent or by legislative enactment. The common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the time of the emigration of the colonists, become in fact the common law rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of New York by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this province."

In the chapter on the colonial period I have referred to the fact that under the colonial legislative policy statutes were deemed to be in force from the time of their approval by the governor, but

were subject to disapproval and repeal by the Crown. This subject was considered in People v. Trinity Church (1860) 22 N. Y. 44, 50, where the court, commenting on the action of Queen Anne in 1708, approving a colonial act of 1699, and disapproving an act passed in 1702, say that "the colonial statutes had the force of laws without the approval of the home government, and until they were annulled or disapproved. According to the uniform tenor of the royal charters and instructions, the power of assenting to or withholding assent from colonial statutes was conferred on the governors. After being enacted by the provincial legislature and approved by the governor they were to be transmitted to the home government for examination, with the proviso, however, that all such laws should be valid and binding until disapproved and rejected by the Crown."

The common law of England was the law of the colony on the 19th of April, 1775, so far as it was applicable to the circumstances of the colonists, "and it has since continued so to be when conformable to our institutions, unless it was established by an English statute which has been abrogated, or was rejected in colonial jurisprudence, or has been abolished by our legislation." Cutting v. Cutting (1881) 86 N. Y. 522, 529; Shayne v. Evening Post Pub. Co. (1901) 168 N. Y. 70, 55 L. R. A. 777, 85 Am. St. Rep. 654, 61 N. E. 115, where an action for libel was continued and revived against the directors of a defunct corporation, contrary to the rule of the common law, which was held inapplicable in this state.

This section was applied in People ex rel. McClelland v. Roberts (1896) 148 N. Y. 360, 31 L. R. A. 399, 42 N. E. 1082, construing the civil service amendment, article 5, § 9, and it was there held that, by operation of this section, the civil service act of 1883, with amendments, was continued, and that new legislation under the civil service amendment was not necessary to provide a scheme of administration.

The statute of 43 Elizabeth, relative to charitable uses, was never in force in the state of New York. Dutch Church v. Mott (1838) 7 Paige, 77; Williams v. Williams (1853) 8 N. Y. 525; but in this 'case the court said that "the law of charitable uses as it existed in England at the time of the Revolution, and the jurisdiction of the court of chancery over the subject, became the law of this state upon the adoption of the Constitution of 1777, and has not been repealed. It does not derive its origin from the statute of 43 Elizabeth, chap. 4, nor depend upon it. It was borrowed from the civil law, as modified by the institutions of Christianity, and at a very early period became part of the common law."

VOL. IV. CONST. HIST.-12.

The subject of charitable uses was considered in Holland v. Alcock (1888) 108 N. Y. 312, 2 Am. St. Rep. 420, 16 N. E. 305.

The common law of England in relation to the easement of light and air was not in force in the colony of New York on the 19th of April, 1775, and therefore was not continued by this section of the Constitution. Myers v. Gemmel (1851) 10 Barb. 537.

"In the absence of proof of the statute law of another state, it will be presumed that the common law prevails therein” (citing Whitford v. Panama R. Co. [1861] 23 N. Y. 465; Waldron v. Ritchings [1870] 3 Daly, 288); also that the common law of a particular state corresponds with our own. Holmes v. Broughton (1833) 10 Wend. 75, 25 Am. Dec. 536; Cahill Iron Works v. Pemberton (1893) 30 Abb. N. C. 450.

It seems that the English statutes of mortmain were not in force in the colony of New York. Phanix v. Columbia College (1903) 87 App. Div. 438, 84 N. Y. Supp. 897.

817. [Royal grants and charters preserved.]-All grants of land within this state, made by the King of Great Britain, or persons acting under his authority, after the fourteenth day of October, one thousand seven hundred and seventy-five, shall be null and void; but nothing contained in this Constitution shall affect any grants of land within this state, made by the authority of the said King or his predecessors, or shall annul any charters to bodies politic and corporate, by him or them made, before that day; or shall affect any such grants or charters since made by this state, or by persons acting under its authority; or shall impair the obligation of any debts contracted by the state, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice.

[Const. 1777, art. 36; 1821, art. 7, § 14; 1846, art. 1, § 18.]

This subject was included in the first Constitution. It was modified in some respects by the Convention of 1821, but, as adopted by that Convention, has not since been changed.

Questions relating to the effect of this provision were considered

in Demarest v. New York (1878) 74 N. Y. 161; People v. Clarke (1853) 9 N. Y. 349.

§ 18. [Damages for injuries causing death.]- The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.

[New.]

A sketch of the origin of this provision has been given in the chapter on the Fourth Constitution, 1894.

This provision does not act retrospectively, and therefore does not affect causes of action which had accrued when it took effect. Isola v. Weber (1895) 147 N. Y. 329, 41 N. W. 704; O'Reilly v. Utah, N. & C. Stage Co. (1895) 87 Hun, 406, 34 N. Y. Supp. 358.

The section did not affect the power of the supreme court to supervise and reduce verdicts for damages. Medinger v. Brooklyn Heights R. Co. (1896) 6 App. Div. 42, 39 N. Y. Supp. 613.

The employer's liability act of 1902, chap. 602, does not violate this section. Gmaehle v. Rosenberg (1903) 83 App. Div. 339, 82 N. Y. Supp. 366.

An interesting discussion of this question will be found in Rosin v. Lidgerwood Mfg. Co. (1903) 89 App. Div. 245, 86 N. Y. Supp. 49, where the court doubts the power of the legislature to require notice as a prerequisite to a common law action to recover damages for injuries resulting in death.

ARTICLE II.

[SUFFRAGE.]

§ 1. [Qualifications of voters.]—Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may of

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