USA > New York > Organization of the Revolutionary movement in New York State, 1775-77 > Part 14
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A long-standing contest among New York, New Hampshire and Massa- chusetts over adjoining lands disturbed Continental-state relations in 1777. Some of the inhabitants of these counties (variously denominated the Grants, New Connecticut or Vermont) memorialized the Continental Congress to admit their representatives as delegates from an independent
1. Ibid ., I, 336, 343, 354, 355, II, 148.
2. Ibid., 1. 379.
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state. The New York Convention, having intelligence of this maneuver, prepared in April, 1777 a forceful letter of instructions to their delegates in Philadelphia. £ If Congress should vote to seat the Vermonters over the opposition of the Yorkers, ran the letter, the Yorkers should protest in the state's name and "forthwith return to this state." The Convention added:
You are from time to time to oppose, ... all such resolu- tions of Congress, as may impliedly or expressly in- fringe the rights or jurisdiction of this State.
Lastly, the Convention threatened to withhold approval of any plan for confederation unless the Continental Congress upheld it on the Vermont question. Perhaps the threat of withdrawal from Philadelphia had its effect, for in June Congress vindicated New York, refusing to recognize 1
Vermont as a state.
The First Provincial Congress discussed Indian affairs early in its proceedings because Sir Guy Johnson, the Indian Superintendent, exerted his influence among the Indians to arouse hostility to the Whigs. After hearing disquieting reports from the Albany County Committee on Johnson's maneuvers, the congressmen in June, 1775 discussed the feasi- bility of suggesting that the Continental Congress establish an Indian superintendency . They outlined their idea to the Yorkers in Philadelphia, giving them discretionary power to introduce the matter in Congress. Ultimately, the Continental Congress appointed a number of Commissioners of Indian Affairs, three of whom came from New York. The Provincial Congress relied on ity committee system to meet such Indian problems as
1. Ibid., I, 778-79, 820-21, 854-55, 869. 998-99; II, 418.
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came before it, although it frequently had recourse to the services of the Albany County Committee to hold conferences with the Six 1 Nations.
In 1777 the Committee of Safety moved tentatively to revise Indian policy. A complaint from some of the Six Nations in Tryon County alleging a land swindle by George Croghan of Pennsylvania im- pelled the Committee of Safety in February to touch briefly on the general subject of Indian relations. Besides enjoining Duane and Gouverneur Morris to investigate the complaint, the Committee ordered them to draw up a proposal for regulating Indian affairs. Duane and Morris did not report back to the Committee, nor did they make any presentation to the Convention which reconvened in March. When the
Convention dissolved itself in May, 1777, it "resolved and ordered" that the two men report to the succeeding Council of Safety. The committee did work out recommendations, but the Council never formally received them. The suggestions would have deposited authority to regulate Indian affairs in the hands of special commissioners who would 2 "superintend, manage and direct all Fublick Business" of this kind.
Although the Provincial Congress combined legislative and ex- ecutive functions, it did not assume responsibility for the normal administration of justice. After the Declaration of Independence the Convention ordered all Whig judges to proceed as before, provided that "all processes and other their proceedings, be under the authority and
1. Ibid., 1, 24, 30, 32-33, 39, 82, 95; 11, 47-48, 56-59, 419. .
2. Ibid., I, 801, 802-03, 930; Cal, Hist. Mas., II, 645.
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in the name of the State of New-York." The Convention, however, did Intervene on two occasions to appoint Judges. In July, 1776 the Con- vention instituted a court of admiralty and offered the seat to Richard Morris. When he declined, the legislature commissioned Lewis Graham
to fill the post.
The second essay into judicial affairs originated
in military necessity.
Recruiting for the Continental regiments in
Westchester centered around Peekskill, a supply base. Duer complained that the lack of a justice of the peace in the vicinity to administer an oath hampered enlistments. The Convention responded by appointing William Paulding "with the like powers, privileges and authority now or heretofore enjoyed and exercised by a justice of the peace in this State." 1
The committee system was the mainstay of governmental procedure. The house did not grant its committees autonomy, but maintained a close check on their operations. No doubt duplication of effort did occur. Possibly a more serious handicap for the government lay in the shortage of manpower, since most members divided their time and energies among a number of committees. Notwithstanding its inefficiencies and mis- takes, government by committee did see the state through a most critical period and did prevent a breakdown of the war effort. Equally important, the Convention wrote the first state constitution in the midst of great difficulties.
1. Jour, Prov, Cong., 1, 527, 550, 554, 556, 566, 765.
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CHAPTER VI
THE VIRTUES OF MAKING HASTE SLOWLY, OR FRAMING THE CONSTITUTION
. When the Fourth Provincial Congress opened its proceedings on July 9, the primary business of the day was not a constitution, but the Declaration of Independence. Congress promptly adopted a set of resolutions heartily endorsing the Declaration which made Nev York the thirteenth colony to vote approval. The next day the legis- lators converted themselves from an illegal, revolutionary body into the Convention of Representatives of the State of New York; the Fourth Provincial Congress had but a fleeting life.
If the people expected the Convention to plunge into the task of constructing new political foundations, they were disappointed. When the matter was first discussed on July 10, the house agreed to defer consideration until July 16. 1
On the appointed day an influ- ential group blocked debate by pleading that "the present dangerous situation ... demands the unremitted attention of every member .... " This sentiment prevailed and the members consented to set aside debate until August 1. 2 It is quite likely that the difference over this
1. Jay described the fluidity of the situation: "We have a government, you know, to form; and God only knows what it will resemble. Our poli- ticians, like some guests at a feast, are perplexed and undetermined which dish to prefer." Jay to Rutledge, 6 July 1776, quoted in William Jay, Life of John Jay, I, 62; Force, op. cit., 5th Ser., I, 40.
2. Jour. Prov. Cong., 1, 519, 527.
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point concealed more profound disagreement, indicating the marshalling of the hostile elements for the grand contest over the Constitution. A Connecticut observer put the delay on this basis:
the Toryfied in the House prevailed to have it postponed, the Whigs say they were willing to have it so, as they [ Jt that by & by they shall have better grounds to build their new Constitution upon.
On August 1 Morris opened the business with a motion to select a committee to draft a constitution. Duer seconded it and the propo- sition passed unanimously. But here the unanimity quickly dissolved as Adgate of Albany proposed that the house direct the committee to draw up first a bill of rights "as the foundation of such form of government. " Morris sought to kill the measure by moving the pre- vious question (i.e., the nominations to the committee), but the house voted him down. An amendment by Duer to direct the committee to re- port both drafts simultaneously carried by a "great majority" and, 2 thus amended, Adgate's proposal received unanimous approval.
Turning to the selection of the committee's personnel, the Convention embroiled itself in controversy over General John Morin Scott's right to hold a seat in the house. The dispute had sprung up the previous day after some remarks by Scott on a matter of West- chester patronage. 3 The patronage involved command of the drafted
1. Jedidiah Huntington to Jabez Huntington, 20 July 1776, Connecticut Historical Society Collections, XX, 312 (hereafter cited as CHS Coll.).
2. Jour. Prov. Conz., I, 552.
3. The rush for political plums in the power of the Provincial Congress had begun early in the conflict. An onlooker distastefully commented:
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militia who had mobilized for the defense of New York City. The Convention, by Morris's advice, by-passed the senior colonel of the Westchester militia, Joseph Drake, who normally would have received the post, in favor of a junior colonel, Thomas Thenas. The latter !: family, locally prominent, had allied itself with the Morrises. Drake's protest and resignation might have gone unheeded, but the officers and men of his regiment refused to serve under Thomas which necessitated the Convention's intervention. Scott, as commander of this detachment of 3,000 militia, opposed Thomas's selection "lest it might injure the service by placing officers in service out of their proper tour of duty or rank. " This comment gave webrage to Morris 1 who resented this interference in his own bailiwick.
Counter-attacking from an unexpected quarter, Morris questioned Scott's right to his seat in the Convention. Morris demanded that Scott not be "permitted to speak or interfere in the debates of this Convention. " He buttressed his challenge with a congressional resolu- tion of June 15 which stated that no officer in the pay of the Conti- nental Congress or of the colony ought to have a seat in the Provincial Congress. In rebuttal Scott "slaimed his seat on behalf of his con-
"In the disposal of offices, particularly in the military department the most shameful partiality prevails, all or most of the inferior com- missioned officers being selected from the creatures and absolute do- pendents of the governing party. £ Indeed the conduct of our gentry & principal people has rendered this vile arrangement almost inevitable. " Dr. John Jones to Duane, 13 July 1775, "The Duane Letters," Southern History Association, Publications, VII, 249.
1. Dawson, op. cit., p. 30; Jour. Prov. Cong., I, 551; Force, op. cit., 5th Ser., I, 790, 1428, 1431-32, 1461, 1475.
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stituanta. " Leaving aside these broad grounds of defense, Scott might have countered with some pertinent observations on generals in the Convention. When the Convention officially accepted the New York · County delegation's credentials on July 10, Morris offered no objec-
tion to General Scott. The latter did not take his seat until July 31, but Morris did not object to Scott until after the latter had partici- pated in the Westchester imbroglio. Furthermore, two other generals had won election to the house without undergoing any scrutiny of their rights. In fact the Convention had chosen General Nathaniel Woodhull, commander of the Suffolk militia, as its president. Secondly, West- chester had returned to the house General Lewis Morris, commander of that county's militia and Gouverneur's own kinsman. It is possible that when he challenged Scott on July 31, Gouverneur Morris was think- 1 ing of the next day's debate on a constitution.
The Convention never resolved the issue raised by Morris. After a lengthy exchange of views the members voted to examine the merits of the challenge August 6. Not until the seventh did the Con- vention revert to the subject, but then it postponed it again to August 14. Despite the fixed day, the Convention did not discuss the matter
again.
Perhaps informal discussion convinced Morris that he could
not muster a majority for his contention. In the interim the City Committee sent the Convention an irate letter which condemned this at- tempt to deprive the people of their right "to say who shall represent them" in Convention. Pleading the "forlorn and deserted" condition
1. Jour, Prov. Cong. , I, 551.
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of the city ag the reason for not having collected signatures to pro- test petitions, it asked that Morris's motion be erased and "buried 1
in eternal oblivion. "
The Convention did select its constitutional committee on August 1 and did place Scott on it. Although Scott did not attend that day, Morris must have expected that his own constitutional viawe would differ basically from those of Scott. Consequently, he opposed Scott's nomination to the constitutional committee on the ground that the Convention had not yet determined his status. When the polling on Scott's nomination ended, the general narrowly prevailed through the 2 support of the New York, Albany, Ulster and Tryon delegations. In addition to Scott the committee comprised Jay, G. Morris, R.R. livingston, Duer, John Sloss Hobart, Abraham Yates, Jr., Robert Yates, Henry Wisner, William Smith (of Suffolk), John Proome, Samuel Townsend, and Charles DeWitt. The Convention ordered the committee to bring in a report
Angust 26.
Since three of the committee (Jay, Livingston and R. Yates) were serving on a secret committee to obstruct the Eudson to the British, the Convention sent a letter which informed them of their additional duties and directed them "to meet upon this important business as early as possible. " 3 Although Livingston hurried to the Convention in re-
1. Ibid., I, 551, 557.
2. The vote was 21-20. Westchester, Dutchess, Cumberland, Suffolk, Gloucester and Queens supported Morris. Presumably Kings, Orange and Charlotte lacked quorums and could not vote. £ Ibid., I, 552.
3. The Convention had chosen Jay, Livingston, R. Yates, Christopher Tappen, Gilbert Livingston and William Paulding to be a committee for
sponse to this news, so far as is known, ro committee meetings occurred.
Livingston's presence had some connection with the desire of certain members to have the Convention immediately elect a governor. Neither the precise details nor the persons involved are ascertainable, 1 but Livingston's agency in the business is definite. He tendered the nomination, if not the office, to Philip Livingston then in Phila- delphia. Declaring his "unfitness" for the office, the latter ad-
vised the Convention not to select him.
Nevertheless, Livingston
added, if the Convention should pick him, he would not refuse the post. If this statement seems like the credo of the modern politician, it is
an unhappy coincidence. His explanation has an honest ring to it. Fe feared a refusal might "be construed by some as [a] desert[ion] of the righteous causes ... at a most dangerous crisis .... At so critical a moment it might have a bad effect to have it even supposed that any one who has had an early part to act in this contest shd. not remain 2 ready to step forward when called upon by the Public."
It would appear that word of either these negotiations or inten- tions reached the ears of William Smith. Furthermore, Smith harbored
that purpose in July. Ibid., I, 526-27, 555. John Mckesson urged George Clinton to be present August 26 at all cost. Clinton Papers, I, 297.
1. Given the importance of the mattor, it seems unlikely that R.R. Livingston would have acted without the foreknowledge of Morris and Jay.
2. Philip Livingston to R.R. Livingston, 15 August 1776., Miscellaneous Mms: Philip Livingston, NISL.
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the suspicion that a visitor, Peter R. Livingston, had come to offer him the candidacy:
I suspect that Mr. I, came to sound me on the Design of tendring the Governor's Place to me & that he was silent upon discovering by my conversation, that I was opposed to the Disunion of the Empire."
For whatever reasons, the plan, being stillborn, never reached the Convention floor.
The constitutional committee did not meet during the month of August, probably due to the absence of Jay, Livingston and Yates who were exerting themselves on the secret committee. Livingston, bow- ever, did spend a week early in August in attendance at the Convention and expended some energy in persuading his colleagues that the work of. the secret committee was more important than that of the governmental committee. In fact this was the ground advanced to justify their 2 non-attendance and the Convention acquiesced in it.
1. William Smith, Memoirs, V, 11, 17 August 1776, NYPL. It was perhaps with this interview fresh in his mind that Smith that same day scrawled an abrupt, incomplete note to Schuyler: "I have ten Thousand Things to say to you, but must suppress at present, except that as a great Land- holder, I think your Interest, at this tremendous moment of forming new Government, calls you rather to the Cabinet than the Field ..
.. * 17 August 1776, Schuyler Papere, NYPL.
2. With Livingston present, the Convention drafted this letter to Jay and Yates: "As you are both of the committee for the framing a nev gor- ernment, the Convention think it highly proper that you should attend upon that business immediately, unless your presence is absolutely neces- sary in the secret committee [underscoring mine] .. N The following day the Convention formally resolved that it would be "improper" to re- call Jay and Yates and gave livingston leave to join them. Notwith-
standing the official explanation, private correspondence indicates that other motives were responsible. Livingston informed Clinten: "I wrote likewise to you on our political state & the necessity we are under of having your assistance, of which you would be fully convinced if you could attend to the manoevers of some persons for one week. Let me hear
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The Convention stressed the secret committee's priority over the constitutional committee and the necessity of attendance by Jay, Livingston and Yates to ensure a quorum on the secret committee, but the explanation lacks conviction. Three months later when Washington was retreating in New Jersey, the secret committee received an impor- tant letter and survey from General George Clinton relative to block- ing the Hudson. This was the committee's reaction:
Mr. Wisner put the survey in his pockett, Mr. Gil Livingston took the letter with him immediately on a visit to his wife & is not returned. There the obstruction slept till this afternoon [1.e., November 26, three days after]. 1
Although the secret committee flatly stated that without a quorum "nothing further can be done, " its letters belle it. On three occa- sions in July, August, and September it did not have quorums, but that 2 did not impede its labors. The conclusion seems inescapable that a powerful group, which included the Livingstons, Morris, Jay and Duer,
from you on these subjects as soon as possible. " Jour. Prov. Cong .. I, 568; Livingston to Clinton, 18 August 1776, Clinton Papers, I, 312-13.
1. Clinton to Convention, 23 [1] November, Mckesson to Clinton, 26 November 1776, ibid., I, 430-31, 432-33. In view of the urgency ex- plicitly expressed by Clinton, Gilbert Livingston's action was odd. Yet this is the same Livingston who complained to the Convention in an oft-quoted letter: "notwithstanding the sense of the House appeared to be at the time we left it, first to endeavor to secure a State to govern, before we established a form to govern it by; yet that a day is fixed to take this important business when a part of its body is absent by the command of the House. " Jour. Prov. Cong., II, 280.
2. Secret Committee to Convention, 13 August 1776, Tappen and G. Living- ston to Convention, 26 August 1776, G. Livingston to Convention, 14 September 1776, ibid., 1, 575-76, II, 219, 293; P .. Yates to Paulding, 22 July 1776, Cal, Hist. Mas., I, 426. -
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were striving to delay the drafting of the constitution.
The governmental committee successfully evaded several dead-
lines. When the day for the committee's report, August 27. arrived, the Convention voted it a reprieve until September 4. Distracted by American military losses at the end of August, the Convention adjourned and journeyed up the Hudson to Fishkill. For the second time the deadline lapsed and not until September 14 did the subject arise in the house. Then a complaisant Convention ordered its committee to 1 report "with all convenient speed."
The representatives' failure to produce even a draft two months after the Declaration of Independence gave rise to uneasiness in cer- tain circles. In a debate in the Albany County Committee Jeremiah Van Rensselaer led the way in criticising the delay. "The public are impatient in the highest degree, " he said, and contrary to carlier promises, some months have elapsed without visible progress. conclusion depicted an alarming situation:
Suspicions are daily increasing, the usual harmony is in a great measure rent in pieces, their [i.e., the people's] faith in the Representatives tottering.2
Van Rensselaer moved that the county committee inform their deputies that any further procrastination "will be attended with alarming Circun-
1. Jour, Prov. Cong., 1, 594, 625. The Convention stood adjourned for much of this period, its power being in the hands of a committee of safety.
2. 20 September 1776, Min. Albany Com., I, 557-58. Van Rensselaer's motion to appoint a committee to draft formal resolutions carried, the committee consisting of himself, Joseph Young, George Palmer, Leonard Gansevoort and John Tayler. The minutes, however, do not indicate that the committee ever reported.
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stances. # Since county deputies Leonard Gansevoort and John Tayler attended this meeting of the county committee, there can be little doubt that these rumblings of impatience reached the ears of the Con- vention.
The delay in drafting the constitution continued into October. Perhaps coincidentally the day Gansevoort returned to his Convention duties, September 28, that body directed its committee to report a draft "on or before" October 12 and ordered it to "sit every afternoon 1 till they shall be ready to report. " Although the conservatives had 2 suffered a setback, they did not abandon the field, and Wisner com- plained a week after: "the formation of government goes on very slow 3
indeed; we have done Little or nothing about it. " Some time after this the committee did commence its business, although, insofar as the Journal records, the Convention did not adhere to its resolution of September 28. So rapidly did the committee's labors proceed that by October 18 Secretary John Mckesson proudly declared:
The plan of government and justice (a child of Heaven) is so far come to maturity that I had the honor yesterday to make a copy of it for some other members of the committee on government, and has not yet been further exposed to view." 4
1. Jour. Prov. Cong., I, 549, 651. The Journal records no formal divi- sion. Convention added Duane to the committee and reduced the quorum to five, which made it easier to have meetings.
It is instructive to note that the members deemed two weeks sufficient time for the committee to hammer out a draft.
2. R.R. Livingston indicated the defeat to Schuyler: "The Convention have determined to take up the matter of government peremptorily on the 12th inst. You promised to write to me on that subject, let me hear from you As soon as possible [Livingston's underscoring]. " Livingston to Schuyler, 2 October 1776, Schuyler Papers, VYPL.
3. Wisner to Clinton, 4 October 1776, Clinton Papers, I, 368.
4. Mckesson to Clinton, ibid., I, 384. Other deputies informally dis-
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Since Mckesson seems to have transcribed a preliminary draft which contained incomplete or unsatisfactory sections, the drafting committee returned to its labors in November. Fragments of the com- mittee's meetings, dated November 5 and 6, reveal the members were de- bating problems relating to the election of senators and the governor. A conservative proviso for the indirect election of the senators pre- vailed by a 4-2 vote, but there was unanimous agreement to have the 1 governor elected by the freeholders casting secret ballots. The
committee's rate of progress encouraged the Committee of Safety to adopt a resolution November 12 which notified the county committees that the Convention was at work on the constitution and bade them to 2
ensure their county's prompt attendance.
At this juncture constitutional principles became entangled in political maneuvering. The next day, November 13, a move to postpone execution of the resolution provoked lengthy exchanges, but this pro- posal did not owe its inception to the desires of the more conservative delegates. On the contrary, it was the adherents of Scott and Clinton
cussed the committee's efforts. William Smith, Memoirs, V, 18 October 1776, Smith Papers, NYPL.
1. Voting for the measure were Livingston, Scott, Duane and Smith; op- posed were R. Yates and Wisner. Cal, Hist. Msa., I, 552. 553.
2. Jour. Prov. Cong., I, 710. Duane indicated that most of the work had been completed, but that one of the remaining major problems was the constitution of a court of appeals in error. Smith, Memoirs, V, 6 No- vember 1776, Smith Papers, NYPL. See also Ebenezer Hazard to Pierre Van Cortlandt, 6 November 1776, Force, op. cit., 5th Ser., III, 548.
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