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when we find the Constitution providing for an enumeration of the inhabitants, for the purpose of determining, adjusting, and maintaining the equal political powers of the various subdivisions of the state, we are justified in concluding that it was the purpose of the provision to enumerate the political population or the people, using these words in their constitutional sense. As showing how words of comprehensive scope may be limited by circumstances, the court in the Dred Scott Case, 19 How. 410, 15 L. Ed. 691, in speaking of that clause of the Declaration of Independence which declares, "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights," etc.-say:

"The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted," etc. "They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection."

When the people, the custodians of the political power of the state, as distinguished from negroes and other aliens present within the territory, met, and in the name of the "good people of the state" enacted a Constitution for the government of themselves through legislative, judicial, and executive departments, they provided, among other things, for the creation of a legislative power, consisting of two houses, the representatives in which were apportioned to the then existing counties; and it was also provided (article 5) "that as soon after the expiration of seven years (subsequent to the termination of the present war) as may be a census of the electors and inhabitants in this state shall be taken, under the direction of the Legislature. And if, on such census, it shall appear that the number of representatives in assembly from the said counties is not justly proportioned to the number of electors in the said counties respectively, that the Legislature do adjust and apportion the same by that rule. And further, that once in every seven years, after the taking of the said first census, a just account of the electors resident in each county shall be taken, and if it shall thereupon appear that the number of electors in any county shall have increased or diminished one or more seventieth parts of the whole number of the electors, which, on the said first census, shall be found in this state, the number of representatives for such county shall be increased or diminished. accordingly, that is to say, one representative for every seventieth part, as aforesaid." The electors, who will be seen to have constituted the basis of representation in the assembly, were to consist of "every male inhabitant of full age, who shall have personally resided within one of the counties of this state, for six months immediately

preceding the day of election, if during the time aforesaid, he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to this state," with a special provision for the freemen of the cities of Albany and New York. Article 7, original Constitution. It was also provided (article 8) "that every elector, before he is admitted to vote, shall, if required by the returning officer or either of the inspectors, take an oath, or if of the people called Quakers, an affirmation, of allegiance to the state." Very similar provisions were made for the Senate. It thus appears that in the original Constitution the electors, who were inhabitants who could take an oath of allegiance to the state, thus becoming citizens, constituted the basis of representation. It was a purely political regulation, and the provision for a census of "the electors and inhabitants of this state" was understood to be a census of the electors and citizens of the state, and it is to be observed that the subsequent censuses at periods of seven years were confined to the electors who were citizens. The whole scope and purpose of the census provided in the original Constitution was to determine, adjust, and maintain the political equilibrium of the citizenship, in whom rested the sovereign powers and authority of the state. Article 1, original Constitution. Construing a provision of the Constitution of New Hampshire, that "every male inhabitant of each town" should have the right to vote, the Opinion of the Judges, 8 N. H. 574, lays down the opinion of the court that "the term 'inhabitant,' as used in this relation, was not intended to include all residents, and reasons of public policy seem to show conclusively that it must be confined to such inhabitants as are citizens of the state." Cooley in his Constitutional Limitations (6th Ed.) p. 754, says: "The words 'inhabitant,' 'citizen,' and 'resident,' as employed in different constitutions to define the qualifications of electors, mean substantially the same thing, and one is an inhabitant, resident, or citizen at the place where he has his domicile or home." See Shaw v. Quincy Mining Co., 145 U. S. 444, 451, 12 Sup. Ct. 935, 36 L. Ed. 768. That this constitutional provision for a census of the inhabitants was not intended to be an enumeration of all of the persons who inhabited the state for the purpose of determining its population is evidenced by the universal practice of taking a separate enumeration of the Indians upon the various state reservations, and never including their number in the returns of population for the counties in which such reservations are located. See Exhibit D, Senate Document No. 60, for the year 1892; see, also, chapter 5, p. 5, of the Laws of that year. It is also important to note that for some purposes corporations created under the laws of New York are inhabitants of the state (Shaw v. Quincy Mining Co., 145 U. S. 444, 451, 12 Sup. Ct. 935, 36 L. Ed. 768; Galveston, etc., Railway v. Gonzales, 151 U. S. 496, 503, 14 Sup. Ct. 401, 38 L. Ed. 248), although never appearing in the enumeration of inhabitants; and an act which imposed the burden of making and repairing bridges upon the inhabitants in at town or county has been held by that term to include all holders

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of houses and lands in the locality, whether resident or not, but as excluding actual dwellers who had no ratable property in the place, such as servants, etc. (Union Hotel Co. v. Hersee, 79 N.. Y. 454, 461, 35 Am. Rep. 536, and authorities there cited). These and many other authorities might be cited to show that the word "inhabitants" has no exact definition, and that it comes, therefore, within the rule cited above from Bacon's Maxims of the Law, and must "be restrained unto the fitness of the matter." That is, in the use made of it in reference to an enumeration of the inhabitants for the purpose of fixing the political equilibrium of the state, it should be confined to those who are the actual or potential custodians of the political power of the state-to the citizens of the State; and if, for statistical or other purposes, it is desirable that the number of aliens should be shown, this has no relation to the political population of the state, the determination of which was the sole object of the constitutional provision. This was the view of the Constitution which went into effect on the 1st day of January, 1823, for it was provided (article 1, § 6):

"An enumeration of the inhabitants of the state shall be taken, under the direction of the Legislature, in the year one thousand eight hundred and twenty-five, and at the end of every ten years thereafter; and the said districts shall be so altered by the Legislature, at the first session after the return of every enumeration, that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens, paupers, and persons of color not taxed; and shall remain unaltered until the return of another enumeration, and shall at all times consist of contiguous territory," etc.

Similar provisions were made in reference to the Assembly, and it is clear that the enumeration contemplated merely taking into consideration the political citizenship of the state, as a foundation for the adjustment of the representation of the persons who constituted the sovereignty of the state, without any reference to aliens or those who were excluded from the elective franchise. There being no other purpose to be served than to determine the number of citizens who were entitled to representation in the political affairs of the state, it follows that the enumeration of inhabitants required by the Constitution was of the citizen inhabitants, and the further provisions, that aliens and paupers and persons of color not taxed should be excluded in calculating the basis of representation, was merely for greater certainty, and indicated the policy of the state to exclude from the political or governmental powers all such persons as could not be relied upon to sustain and support the government. This was further evidenced by a change in the language of the qualifications for voters, and requiring male citizens "of the age of twenty-one years, who shall have been an inhabitant of this state one year preceding any election." By inference the elector must have been a citizen before, but now it was made necessary by a positive requirement, and the word "inhabitant" is used in the sense of a resident of the state, but likewise in connection with his citizenship. The Constitution of 1846 practically re-enacted the enumeration provisions of the previous Constitution, and the growing population of the state for the first time demanded a radical reorganization of

the judicial department, and it was provided by section 4 of article 6 that the state should be divided into eight judicial districts, of which the city of New York should be one, and the others were to be bounded by county lines, and to "be compact and equal in population as nearly as may be"; and while the question was never raised, so far as we are able to discover, it is hardly to be doubted that the same rule of determining the apportionment of these judicial districts, and the justices who were to hold the court, prevailed which was prescribed for the Legislature. The population and apportionment were determined by the enumeration provided for by the Constitution, leaving out of the calculation all other than citizens of the state, and the Constitution of 1894 makes this clear in section I of article 6 by providing that the successors of the justices shall be elected by the electors of their respective districts, and that the "Legislature may alter the judicial districts once after every enumeration under the Constitution of the inhabitants of the state, and thereupon reapportion the justices to be thereafter elected in the districts so altered." The essential error in the reasoning of the learned presiding justice, as I view this question, is that he seeks to give a popular general meaning to words which are used in a limited sense, failing to construe them in the connection in which they are used. He says:

"The words 'inhabitants excluding aliens' are used in article 3 in reference to the exercise of political powers, while in article 6, § 20, the word 'population' is used with reference to judicial functions. In the exercise of political powers aliens are not entitled to consideration, as they have no participation therein, but the rights are to be regarded in respect of judicial functions which may come to have jurisdiction over their property."

What right or interest has an alien in the mere machinery through which the laws are administered, more than in the making of the laws themselves? "We, the people of the state of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do ordain this Constitution." Preamble to state Const. It is not, "We, the people in the state of New York," but "We, the people of the state of New York"; we who have interests and citizenship; we who are "grateful to Almighty God for our freedom"-for that freedom and liberty which is ours by virtue of our birth and citizenship within the state-who ordained this Constitution. When we reflect that "We, the people of the state of New York," who have ordained this Constitution; we who have formulated and adopted its provisions, without any aid or assistance from any of the Indians, disfranchised persons, or aliens-do not constitute all of the inhabitants or population, using those words in their broadest sense, but merely those in whom is vested the sovereignty of the state, it seems absurd to say that the word "population," used in the same instrument, and with reference merely to a matter of policy, can be enlarged to cover all of those who may happen to be within a political division, so as to enable aliens to encroach upon the franchises of a citizen of this state. The creation of judicial tribunals, the limitations which shall be imposed upon those who are called upon to discharge judicial functions, and all of the details of administration, are merely matters of a political nature, with which aliens have no

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concern; and to give the word "population" the scope contended for, and thus negatively empower the aliens who may be present in a political division of a state to determine its public policy, is to extend the scope of the Constitution to enfranchise those who have no part or interest in our political institutions, and to give to the word "population" a broader meaning than "the people." All the interest that an alien can have in our institutions and laws is that he shall be protected under them, and this is abundantly guarantied under those comprehensive provisions found in sections 1 and 6 of article I of the state Constitution, the fourteenth amendment to the federal Constitution, and that general comity which regards the rights of citizens of friendly states. Where the Constitution intends. to include within its provisions aliens as well as citizens, it adopts appropriate language for that purpose. In the first section, which is intended to guard alike the rights of citizens and aliens, it is provided that "no member of this state shall be disfranchised or deprived of any of the rights or privileges," etc. In the sixth section, where the purpose is the same, it is provided that "no person" shall be "deprived of life, liberty or property without due process of law,” and the same comprehensive language is found in the fourteenth amendment, while in all matters which relate to the political institutions of the country more general language is used; but it is always to be understood as limited to "We, the people of the state of New York," or "We, the people of the United States," who are desirous of securing "the blessings of liberty to ourselves and our posterity"; for these are the people who make the Constitution and the laws, and it is a maxim of our institutions that these governments derive their just powers "from the consent of the governed," and not from those who are temporarily within our jurisdiction, or those who are not amenable to our laws. Aliens, therefore, not constituting a part of "We, the people of the state of New York," or of the United States, cannot properly be contemplated in any provision which relates to the political powers or limitations of the state. They are to be treated as though they had no existence, in so far as the political functions of the state are concerned. But when the state has acted, when it has formulated constitutions and laws, the alien who is present within our boundaries has a natural and constitutional right to demand that he be given the equal protection of those laws. Yick Wo v. Hopkins, 118 U. S. 356, 367, 369, 6 Sup. Ct. 1064, 30 L. Ed. 220. As the Constitution derives no force or power from Indians or other aliens, it cannot, in the absence of express language, be supposed to have been enacted with reference to them; and when it makes a political right, or the limitation of a political or civil right, to depend upon the population of the state, or of any subdivision of the state, it follows logically that it contemplates the population which constitutes "We, the people," and has no reference to Indians or other aliens, who are no part of the people of the state, although they may be within the state. The people of the state are those who constitute the state, while aliens are, in contemplation of law, merely temporarily sojourners, here by our cour tesy, and owing no other duty to the state than obedience to its laws.