USA > New York > Military minutes of the Council of appointment of the state of New York, 1783-1821 > Part 4
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The constitutional history of New York dates from the adoption of the Declaration of Independence. May 15, 1776, Congress adopted the following resolution:
" Whereas his Britannic Majesty in conjunction with the lords and commons of Great Britain has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the pro- tection of the crown; and whereas no answer whatever to the hum-
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ble petitions of the colonies for redress of grievances and reconcilia- tion with Great Britain has been or is likely to be given, but the whole force of that kingdom aided by foreign mercenaries is to be exerted for the destruction of the good people of these colonies; and whereas it appears absolutely irreconcileable to reason and good conscience for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exer- cise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies, for the preservation of internal peace, virtue and good order, as well as for the defence of their lives, liberties and properties against the hostile invasions and cruel depredations of their enemies."
The day before Congress adopted this resolution, the Provincial Congress of New York, which had been elected in April, met in the city of New York. The Congressional resolution came up for con- sideration ten days later. There was more or less debate on the proposition, whether this Congress had the power to go beyond the authority that had been delegated to it by the people, and whether it should not at once proceed and draft a state constitution. Gouverneur Morris, the member from Westchester, and one of the youngest members of the Congress, after a lengthy speech, moved for the appointment of a committee " to draw up a recommendation to the people of this colony for the choosing of persons to frame a government for the said colony."
John Morin Scott opposed the proposition in a lengthy address, and declared his opinion that this Congress has power to form a gov- ernment "or at least that it is doubtful whether they have not that power and that therefore that point ought to be reserved." He
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favored the appointment of a committee that should consider this proposition.
Mr. Sands of New York moved an amendment to Mr. Morris' motion for the appointment of a committee " to take into considera- tion the resolutions of the Continental Congress of the 15th May inst. and report thereon with all convenient speed." This proposi- tion was adopted and the following committee was appointed: John Morin Scott, John Haring, Henry Remsen, Chairman, Francis Lewis, John Jay, Abraham Cuyler, and John Broome.
May 27th, this committee brought in a report which in the opinion of Benjamin F. Butler, at one time Attorney-General of New York, " is worthy of special notice as one of the earliest and most explicit expositions of the doctrine of the popular sovereignty put forth in this State." The report stated, " that the right of framing, creating or new-modelling civil government is, and ought to be, in the people; that as the present form of government, by Congress and committees in this colony originated from, so depends on, the free and uncontrolled choice of the inhabitants thereof; that the form of government was instituted while the old form of government still subsisted," and is necessarily subject to defects which could not be remedied by new institutions; " that by the voluntary abdication of the late Governor Tryon, the dissolution of our Assembly for want of due prorogation, and the open and unwarrantable hostilities committed against " the colonies by British fleets and armies, the old form of government has become dissolved; that doubts having arisen " whether this Congress are invested with sufficient authority to frame and institute such new form " of government; "that those doubts can and of right ought to be removed by the good people of this colony only." In conclusion the report suggested that it was left for the people themselves to determine whether the Con-
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gress "in conjunction with the representatives of the other counties respectively " shall be competent to create a new form of govern- ment by " adding to their number if they so think proper or by electing others in the stead of the present members or any or either of them and increasing (if they should deem it necessary) the num- ber of deputies from each county with the like powers as are now vested in this Congress."
The report was accepted and referred to a committee consisting of Mr. Scott, Mr. Jay and Mr. Haring, who whipped the subject matter into appropriate resolutions. That committee submitted the result of its labors on the 31st. The report was drawn by Mr. Jay, and, among other propositions, requested the people of the county to elect " their present deputies or others in the stead of their pres- ent deputies or either of them, to take in consideration the neces- sity and propriety of instituting such new government as in and by the said resolution of the Continental Congress is described and recommended." The report was adopted without opposition.
Up to the adoption of the Declaration of Independence, Jay had acted strictly in accordance with the sentiment of the people of his State and under the instructions of the Provincial Congress of New York. On December 14, 1775, the Provincial Congress had " resolved unanimously that it is the opinion of this Congress that none of the good people of this colony have withdrawn their alle- giance from his Majesty." June 11, 1776, the subject of independ- ence was again under consideration, and this resolution was unani- mously adopted, "That the good people of this colony have not, in the opinion of this Congress, authorized this Congress or the delegates of this colony in the Continental Congress to declare this colony to be and continue independent of the crown of Great Britain."
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Outside of New York, however, events were occurring that con- verged with unerring certainty upon independence. From the moment the King's speech from the throne, in the preceding Octo- ber, was known in this country, a decided change in public senti- timent occurred. On January 5, 1776, the House of Representatives of New Hampshire formally adjourned, having adopted a constitu- tion for the State, and made a public declaration of inde- pendence, the royal governor fleeing the colony. April 15, 1776, the Georgia Provincial Congress adopted a temporary con- stitution, and ratified the permanent constitution in convention, February 5, 1777. Rhode Island formally renewed its state consti- tution May 1, 1776, having under its charter simply dropped its allegiance to England.
In Virginia, the State convention was now in session, the dele- gates having been required to pledge themselves for independence before they were elected. Conspicuous among the representatives were men who were destined to fill large places in the history of their country-Patrick Henry, James Madison, George Wythe, George Mason, Edmund Randolph, Edmund Pendleton, Richard Henry Lee, Thomas Nelson, Thomas Ludwell Lee, Richard Bland, Archibald Cary and Bartholomew Dandridge.
On May 14th arose the question of independence, which was under consideration for two days, the debate finally closing by the adoption of a series of resolutions which instructed the Virginia delegates to propose to the general Congress " to declare the united colonies free and independent states, absolved from all allegiance to or dependence upon the crown or Parliament of Great Britain."
The resolutions also suggested that the colonies form " foreign alliances and a confederation of the colonies at such time and in such manner as to them shall seem best."
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That same day, by a singular coincidence, the Continental Con- gress recommended that each colony should establish its own form of government.
July 9, 1776, the newly elected convention of New York, a rebel congress, pure and simple, met at White Plains. The old régime had ceased to exist; royalty was supplanted by republicanism; the New York Congress became the " Convention of the Representa- tives of the State of New York." From the representatives in the Continental Congress a copy of the Declaration of Independence had been received. It encountered neither delay in its presenta- tion, nor opposition in its consideration. A committee was
appointed at the morning session and submitted its report at the afternoon session, through its chairman, John Jay,-in the shape of a series of resolutions which approved the course of Congress in adopting the Declaration of Independence; "while we lament the cruel necessity which has rendered that measure unavoidable " " and will at the risk of our lives and fortunes join with the other colonies in supporting it; " which directed that the Declaration and the resolution be published "with beat of drum at this place on Thursday next; " gave instructions for its dissemination through- out the State and for the publication of five hundred copies in hand- bills to be sent to all the county committees in this State, and finally. " that the delegates of this State in Continental Congress, be and they are hereby authorized to consent to and adopt all such measures as they may deem conducive to the happiness and welfare of the United States of America."
John Jay, the chairman of this committee, of all men in the State at the time, was most competent, by heredity, by environment, and by ability, to fill the important trust that had been reposed in him. Descended from an old Huguenot family, impressed with the perse-
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cutions that had driven his ancestors from the shelter of their homes, he had attained his thirtieth year, on the twelfth of the preceding December. Up to the final break between the colonies and England, Jay was known more as a reserved and sedate student than as a man of affairs. But from his entrance into public life, his transcendent abilities soon forced him into the front rank of the little patriotic band of New Yorkers and his advancement became rapid. No man in the northern states performed more varied work in the preparation of addresses or more effective work on the numer- ous committees on which he was placed.
The convention resolved to begin the formation of a State gov- ernment on July 16th, but the enemy seriously interfered with their plans. Washington had practically determined to abandon New York. British men-of-war patrolled the Hudson within seven miles of the place where the convention was deliberating. The time of the representatives was monopolized in providing for the troops in the field and for the public defence. The courts of law had been abolished, but the convention ordained that all magistrates and civil officers, well affected toward independence, should continue to exercise their duties, except that processes hereafter must issue in the name of the people of the State of New York; it was furthermore declared to be treason, and punishable by death, for any person living within the State, and enjoying the protection of its laws, to adhere to the cause of England or to levy war against the State.
July 27th, the convention was forced to retreat to Harlem, and there, on August Ist, was appointed the committee to draft the con- stitution-an able committee, composed of the most distinguished lawyers in the State --- John Jay, Gouverneur Morris, Peter R. Liv- ingston, William Duer, John Morin Scott, John Sloss Hobart, Rob- ert and Abraham Yates, John Broome, Henry Wisner, William
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Smith, Charles DeWitt and Samuel Townsend. The brunt of the work fell upon a subcommittee of three: namely, Messrs. Jay, Mor- ris, and Speaker Livingston. The most industrious of the three was Jay.
Never was an instrument of momentous consequence drawn amid such turbulent surroundings, under such disquieting circumstances and with such 'distracting accompaniments as the first constitution of New York .* Admiral Howe had arrived in lower New York bay with his fleet; his younger brother, Sir William Howe, the general, had landed at Staten Island with his army from Boston. The northern and western frontiers were in an excited state over rumors and the fear of an Indian uprising under Sir John and Guy Johnson. New York city trembled in the throes of a panic. Her militia was hastily thrown together and earthworks were hurriedly
* In his speech condemning the abuses perpetrated under the Council of Revision, Peter R. Livingston of Dutchess uttered the following sentiments concerning the first constitution, before the Constitutional Convention of 1821:
" It would be necessary to draw the attention of this body to that period of time, when our constitution was formed, We all know it was adopted in an hour of extreme peril, amidst the noise of musketry and the thunder of cannon ; and is it to be won- dered at, that their deliberations, under such circumstances, were in some measure erroneous ? And is it not a matter of wonder under such circumstances, that you have a constitution, containing so much merit and so much wisdom, as the one under which we now live? At that time it was necessary to give that negative power, which is found in the third article of the constitution [the Council of Revision]. At that time the southern district of your state, which contained its greatest weight of population, was possessed by the enemy. Your northern frontier was literally laid waste by the savage. You then gave a power to the convention, which you never would give under the present circumstances. What they did at that period was binding on the people- what you do now the people are to pass upon. There was in this state more disaffec- tion than in any other part of the Union. Every thing depended on your executive ; and you then had a patriot to direct the destinies of the commonwealth. You imposed the most implicit confidence in his integrity, his courage, and his patriotism. The framers of the constitution were afraid that the legislature might be destitute of patriot- ism, and encroach upon the liberties of the people. This state of things no longer exists. Then you had nothing to apprehend from the man who was the governor of the state. He was fighting with a rope round his neck. Had the revolution termi- nated differently from what it did, he would have been made one of the first examples."
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constructed at advantageous positions that commanded the land and water approaches to the town. The fortifications in the high- lands of the Hudson, which were regarded as the key of the mili- tary position in the North, were pushed along as vigorously as the slender means and the limited resources of the colonies would per- mit, while the commanders called for reinforcements that could not be procured and for armament that could not be supplied. The colonists were handicapped as to fighting material and restricted as to war implements, and fully realized their shortcomings. But they proceeded in spite of the depressing influences to the manu- facture of brass field pieces, iron siege guns, and small arms, at the same time scouring the country for saltpetre for the manufacture of powder, and lead for the manufacture of bullets. Never in the history of the world had a civilized country with an extended sea- coast deliberately gone to war without the semblance of a navy. The United States in this respect occupied an anomalous, unprece- dented and isolated position. But the ingenuity, energy and practical adaptability of her people supplied the defects from which she most suffered. One resourceful patriot promptly suggested " fire ships" to combat the English men-of-war; another "pri- vateers " with which to prey upon and destroy English merchant- men. Before six months had elapsed, New York ship builders had begun the construction of men-of-war. In the meantime the Con- stitutional Convention had been hunted from place to place as if the delegates were outlaws; its members invariably went armed; its sessions were held with the warning cry " the enemy are coming " impending. From the promulgation of the Declaration of Inde- pendence, the British had placed to their record an unbroken line of victories. The unvarying reverses received by the Ameri- cans would have discouraged and disheartened a people less sturdy
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and plucky. The committee to frame the constitution pursued its duties in spite of the multitudinous obstacles that confronted it. Jay retired from the convention, so his son informs us, to a secluded place in the country, the better to carry out the work he had in hand. He was ploughing in an untrodden, uncultivated field. He had no constitutional compass to guide him. His months of intimacy with the studious, intelligent and scholarly men of the colonies had broadened his views, and emphasized those great gen- eral principles of government on which all agreed, and magnified those lesser problems on which there was a natural and honest divergence of opinion. The question of a written or an unwritten constitution opened as wide an area of discussion as that other, equally important, whether each state should create its own consti- tution or whether Congress should draw a general and a uniform one for the government of all. It was pointed out that England had been ruled for centuries by an unwritten constitution, composed of traditions, customs and precedents, it is true; and in spite of the notoriously corrupt conditions that then existed, England was admitted to be the best governed country in the world. Should the new constitution contain the essential features of a despotism, or of an absolute or of a limited monarchy or of a pure democracy? Many of the strongest and most prominent men in the colonies, whose distrust of the Crown was pronounced and insuperable, regarded with suspicion the critical problem of placing in the hands of the people the untried power of regulating and managing the executive functions of a new and an independent commonwealth.
With the exception of a few general principles and the constitu- tions of the five states which had adopted their autonomous form of government before the Declaration of Independence-New
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Hampshire, South Carolina, Georgia, Virginia and New Jersey- the material which Jay and his colleagues found to work from was not at all appropriate for their purpose. Even the Virginia consti- tution, masterly though it was, offered only slight advantages, for a constitution acceptable to the people of Virginia was not suitable for the people of New York. Both states contained a large pro- portion of Aristocrats and Democrats, Tories and Whigs, Patricians and Mechanics, as they were variously denominated; but in Vir- ginia the Democrats or Whigs preponderated, in New York the Aristocrats or Patricians. Jay and his fellow members on the sub- committee were classed as Aristocrats, however Whiggish they may have been in their inclinations.
The percentage of college-bred men was exceedingly small. Education lay within the reach of a favored few. As late as 1755 complaints are heard that education is neglected. "The instructors want instruction " was a common saying. Ordinary speech had been corrupted; the habit of reading thrust aside for sports and gambling. In mitigation of the loose and careless pre- dilections of the people, however, the scarcity and costliness of books, were important factors. The majority of publications in the public libraries consisted of theological works. Private libraries in the province were rare-the two best known before the Revolu- tion were owned by Governor Montgomerie, who possessed 1,341 volumes, and the Historian Smith, one thousand works, including pamphlets. All things considered, the constitution builders of New York were compelled by force of necessity to depend upon inspiration more than upon substantial material. It is true that for a bill of right they had as a model Coke's Petition of Right of 1628 a classic in its way, and Lord Somers' Bill of Right, which was proclaimed in 1689, which restrained William and Mary from
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mounting the throne until they had subscribed to it, and which has been regarded as the most comprehensive declaration of the form of government ever written. From Tacitus on the " Manners of the Germans," Locke's "Treatise upon Civil Government," Mr. Justice Blackstone's " Commentaries," which appeared in 1765, and Montes- quieu on the " Spirit of Laws " with the Constitution of England as his model, they could extract suggestions and ideas on general forms of government, more applicable, however, to a monarchy than to a republic. Franklin's plan of confederation was susceptible of sev- eral suggestions.
With characteristic modesty, John Adams claimed in his old age, in a letter to Mercy Warren, that the constitution of New York was taken from his "Thoughts on Government " in a communication he had made early in the year 1776, to George Wythe of Virginia, a copy of which Richard Henry Lee had transmitted to Patrick Henry during the formative period of the Virginia constitution. In forwarding his " Thoughts on Government " to Patrick Henry later on, Adams wrote: "It has ever appeared to me that the natural course and order of things was this: for every colony to institute a government; for all the colonies to confederate and define the limits of the continental constitution; then to declare the colonies a sovereign state or a number of confederated States; and, last of all, to form treaties with foreign powers."
As a matter of fact, there is but a very slight resemblance between Adams' scheme and the constitution that eventually was adopted by the state of New York. Adams' plan contemplated a bicameral form of government, comprising an assembly and a council, the latter to consist of twenty or thirty members, chosen by the assem- bly by ballot, with power to exercise a negative voice in the legis- lature. These two bodies, constituting integral parts of the legisla-
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ture, in joint ballot, to select annually "a governor who after being stripped of most of those badges of domination called prerogatives should have a free and independent exercise of his judgment, and be made also an integral part of the legislature; " to have a privy council, to exercise the veto and pardoning power, and to be com- mander-in-chief of the forces; judges, justices and all other officers, civil and military, to be nominated and appointed by the Governor, with the advice and consent of Council, "unless you choose to have a government more popular; if you do, the officers, civil and military, may be chosen by joint ballot of both houses; or, in order to preserve the independence and importance of each house, by bal- lot of one house concurred in by the other."
Public sentiment throughout the colonies resisted any plan that would bestow upon the governors of the new states absolute power. There was a decided disposition to curb the executive authority by a council or some other restraining influence. On the other hand, unlimited confidence was universally expressed in the judiciary. Thomas Jefferson, in a letter to George Wythe, written presumably in June, 1776, or while the Virginia convention was in session, expressed himself as follows: "The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislature and executive, and independent of both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should always be men of learn- ing and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in
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their offices, or, in other words, their commissions should be during good behaviour and their salaries ascertained and established by law."
It is a matter of deep regret that the members of the committee who framed our Constitution could not have left something more substantial than fragmentary evidence to show how it was drafted and the members of the convention more detailed records to show how it was adopted. Jay and Morris, who were its foremost expo- nents in committee and convention, were young men, the former Morris' senior by five years; both were enthusiastic and systematic. It is true Morris suffered under a ban. His loyalty had been more than once questioned in spite of his unswerving devotion to inde- pendence; his eldest brother, Staats Morris, held a commission as general in the British army; many of his relatives were Tories, and the malevolent spirit of the times was only too willing to charge unworthy motives and traitorous sentiments and affiliations to a conscientious patriot. Morris himself is on record in these words: " In the year 1776 I left all for the sake of those principles which have justified and supported the revolution. This sacrifice was made without hesitation or regret. I have thought much, labored much, suffered much. In return I have been censured, reproached, slandered, goaded by abuse, blackened by calumny and oppressed by public opinion."
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