USA > New York > Organization of the Revolutionary movement in New York State, 1775-77 > Part 15
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The Committee of Safety governed until December 4 but under a stipu- lation by the Convention could not debate the constitution. Cong .. I. 677.
Jour. Prov.
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who argued for a stay of the proceedings. Since both men were with their army commande, they could not participate in this vital business. Their opponents countered by insisting that those officers had chosen .
voluntarily to take active command, and that they must have expected that the Convention would write the constitution without their partici- patioc. If necessary, the opposition argued, the Convention might request General Israel Putnam to give them leave when the draft was in the final stage. The Livingston-Duane motives paralleled those of the Scott-Clinton adherents. The former disclosed that the Dutchess County members (among them Livingston) would stand for re- election in December and might not win, especially since the county's freeholders were in the army "fighting the battles of the Convention" and could not vote. The exclusion of the Dutchess men, after they had been "steady" and "done great service to the public," would be an in- Justice. "Justice to the freeholders" and those "heroes of the county" in arms demanded that the Convention brook no delay in forming a gov- ernment. The Livingston-Duane leadership triumphed and copies of the 1
resolution went out to the counties.
1. The Journal does not record any of this dispute. Mckesson to Clin- ton, 15 November 1776, Clinton Papers, I, 424-26. The Convention did not meet until December 5 and then only for the day. The Committee of Safety governed with one exception until March 6. The matter of the Dutchess elections is obscure. No evidence of a December election can be found. It is possible that the county com- mittee extended the life of the delegation.
According to Mckesson at least one member opposed delay because "people had not Time to think or Criticize; they woud greedily accept such form of Governm't as might be proposed. That in winter & more Leisure many more difficulties & of course delays might arise." Ibid. .
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In the ensuing weeks the constitutional committee alternated between industrious labor and inaction. At times of inactivity the 1 Committee of Safety had to prod the committee's members once again. Schuyler expressed his apprehension of the evil that would result from further procrastination by the committee. It will be more difficult "to bring the unprincipled and licentious to a proper sense of their
duty, " he warned. 2 While the general was writing this warning, the committee resumed functioning. Shortly thereafter, Chairman Abraham Yates, Jr. gave notice that the committee would submit the long awaited. 3
draft to the Convention on December 20. There followed two postpone- ments in rapid succession on December 20 and 21, and two days later 4 the chairman obtained permission to leave the Convention. Although both Yates and Duane unequivocally stated that the committee had com- 5
pleted the draft, it did not report the draft to the Convention.
1. R.R. Livingston to E. Rutledge, 13 November 1776, Bancroft Transcripts: Livingston Papers, NYPL; Gansevoort to Schuyler, 17 November 1776, Schuyler Papers, NYPL; Jour. Prov. Cong., I, 722.
2. Schuyler to R. Yates, 6 December 1776, Force, op. cit., 5th Ser., III, 1101.
3. He desired Mckesson to transcribe the draft. Jour. Prov. Cong., I. 737, 741, 749; Smith, Memoirs, V, 15 December 1776, NYPL.
4. Charles Z. Lincoln, The Constitutional History of New York, 1, 494 (hereafter cited as Const, Hist.).
5. Robert Yates to Duane, 25 December 1776, Force, op. cit., 5th Ser., III, 1421; Smith, Memoirs, V, 27 December 1776, NYPL. The curious silence suggests further disagreement within the committee. Indirect support for this idea comes from the further revisions which were made in the draft after December. It would seem that the introductory sec- tion on the state's boundaries was one element in this situation. The sharp language in this paragraph was aimed probably at New Hampshire with whom New York had been entangled in a protracted contest for control of the Vermont lands. The territorial description was worked out in February. Lincoln, Const. Hist., I. 501.
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The committee remained silent into February, a silence in which the Committee of Safety seemingly concurred. The Committee of Safety in early February detailed Duane and Robert Yates to collect "sundry maps and materials" to enable the drafting committee to 1 "describe the boundaries" of the state. On February 11 in a one- day session the Convention stated its intention of commencing con- sideration of the constitution on February 19 and voted to inform the county committees of its plan. Explaining this decision, Duane said that unless the government acted, some of the delegates whose terms expired in May would have to face their constituents empty- 2 handed. Notwithstanding its intent, the Convention did not as- semble February 19 and the matter lapsed.
The end of the committee's work, however, was in sight. The members seem to have completed even the determination of the state's boundaries late in February. Copies of the draft constitution began to circulate outside the confines of the committee, some Convention delegates displaying it to friends. 3 As a matter of fact, the ob- structionists could not deny much longer the pressure for action. When the Convention resumed sitting March 6, the house accepted with- out a division Gansevoort's motion ordering the constitutional committee
1. Jour, Prov. Cong., I. 795.
2. Ibid .. I, 782, 802, 803; Smith, Memoirs, V, 15 February 1777, NYPL. The notification to the counties was intended to procure a Convention quorum, since the Committee of Safety could not debate the constitution.
3. John H. to R.R. Livingston, 28 February 1777, R.R. Livingston Collec- tion, NYHS.
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to bring in its report on March 12. £ Thus on March 12 the long awaited 1 draft made its debut.
It will be useful to pause here to ascertain the stages through which the draft progressed. The committee's labors extended in uneven fashion over the months from October to March, but the mem- 2 . bers concentrated most of this effort in the first three months. The committee produced a first draft in two weeks, but then took two months to revise and expand it. It should have presented this re- vised copy to the Convention in December. Although the constitution would go through four more revisions before reaching the house floor, 3
none of these would drastically alter the December draft. Only two members of the committee, Hobart and Townsend, did not participate in its work during these three months. Of the remainder, the Yatesos, Smith, Duane, Livingston, Wisner, Jay, Duer, DeWitt were present most frequently, while Scott, Morris and Broome attended least.
Historians, hitherto, have given Jay principal credit for in-
1. Jour. Prov. Conz., I, 821, 823, 826, 833.
2. The Committee does not seem to have functioned at all in January but spent most of February and two weeks in March on revisions.
3. See below pp. 212-16.
4. Since the constitutional committee sat as part of the Committee of Safety or of the Convention, the attendance recorded in the Journal provides a clue to the committee's operation. However, the secretary did not always record latecomers as present and some committee members did not always check in with the Committee of Safety before joining their committee. The Journal consequently is not an accurate guide, but it does yield the minimum attendance of the committee members. The statement on attendance, therefore, is a minimum estimate based on the Journal. Ibid., I, 661-750.
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diting the constitution, believing that the Convention produced only 1 one copy. Lincoln, however, discovered two drafts and addenda in the State Library which he reprinted, And thereby rendered students 2 an invaluable service. Accepting the verdict on Jay, he concluded that these documents were working copies of the Convention's delibera- tions since one of them, draft B, seemed to be in Mckesson's hand and to be a revised copy of draft A. 3 Fortunately, a third fragment of eighteen pages has survived among the Yates Papers, making possible a 4 more precise identification of each. A careful collation of the three drafts and the debates in the Journal reveals that Lincoln's 5 copies were not working copies, hut were in fact committee drafts.
1. The source for Jay's role has been the biography by William Jay, I, 68, which was written while the father still lived. Pellow, op. cit., p. 68; Monaghan, op. cit., p. 94; Sparks, Korrig, I, 120; Howard. Swingett, The Extraordinary Mr. Morris, p. 32; Spaulding, op. cit., p. 87; Flick, Fist. N.Y., IV, 156; Flick, Am. Rev., pp. 83, 85; DeAlva'S. Alexander, A Political Fistory of the State of New York, I, 14; Lincoln, Congt. Hiet., I, 496; Thomas C. Cochran, New York in the Confederation, p. 14; Wertentaker, op. cit., p. 123; Allan Nevins, The American States During and After the Revolution, p. 1.59.
2. The capitol fire of 1911 destroyed the papers. Lincoln, Const, Fist., 1, 501ff.
3. Ibid., I, 498-99.
4. Evarts B. Greene and Richard B. Morris, A Guide to the Principal Sources for Early American History in the City of New York, p. 110 (1st ed. ); Flick, Fist, N.Y., I, 157; Minutes of the Convention which formed the Constitution of the State of New York, n.d., Abraham Yates, Jr. Papers, NYPL (hereafter cited as Min. of Conv. ). The first ten pages of the latter ms. are missing as are those numbered beyond 29.
5. Since the debates proceeded clause by clause, it is possible to check the changes proposed and adopted against the drafts. For example, the house adopted the first paragraph without change. The final text, how- ever, does not agree with the drafts. The latter had a section on the
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An important clue for establishing the precedence of the various drafts is the preliminary section which delimits the territory of the state. Since the committee did not elaborate this proviso until February, the territorial section must have been one of the addenda to draft A in Duane's hand which grew out of the revision in early Febru- ?
ary of the December copy. Therefore, draft A was probably the com-
2
mittee's December version. Draft E is not the corrected version of
territorial limits of the state which does not appear in the former. The draft under consideration could not have contained this section, otherwise the Journal would have noted its deletion. The same thing is practically true about paragraph two. The word differences between Lincoln's drafts and the final text can be explained only by the conclu- sion that the former were not under debate. An important illustration
The changes proposed by Morris cannot can be found in paragraph five. The subject of this fifth paragraph be fitted into Lincoln's copies. was voting by ballot and in the drafts consisted of a long section of almost five pages. Morris's alterations would have eliminated voting by ballot in favor of the existing voice vote. As given in the Journal
he moved to strike out "by ballot" and substitute "according to," and to strike "shall continue to have their full effect. " A comparison with the pertinent portion in Lincoln, I, 507-08, will make apparent that Morris's substitutions do not pertain to the Lincoln drafts. "And this
Convention doth further ordain that all Elections for representatives in General Assembly shall be made by ballet in every county out of the Free- holders personally residing in each respective county. That the laws in force in the colony of New York for regulating elections shall continue to have their full effect where they shall not be repugnant to the Con- stitution hereby established and until they shall be altered or repealed by a future legislature." Morris desired to delete the underscored
words above. Furthermore, these changes would not have deleted ballot voting since the following sections set ont in detail the method' to be adopted in balloting. Therefore, in order to complete the change, Mor- ris would have had to move to strike out everything after the last line quoted above, but he did not. Jour, Prov. Cong., I, 834, 836. For other differences compare ibid., I, 836, 843, 867, 869, 873, 886 (para- graphe 6, 8, 13, 15, 22) with Lincoln, Const. Fist., I, 514, 515, 523, 524, 531.
1. Jour. Prov. Cong., I, 795.
2. Lincoln, Const, Hist., I, 501 does not specify to which draft this quoted section pertains. Lincoln followed an earlier observer in attrib- uting the addenda to Duane. Ibid., I, 498-99.
,
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1
A, but rather of the fragment in the Yates Papers. The latter work, which we may denote draft C for convenience, incorporated the changes in A and the addenda plus other minor variations. In effect then, C was the third revision and the committee finished it in February. Still not satisfied with their handiwork, the committee revised C, in some instances returning to the terminology of A. 1 . This was B and it reached completion by the end of February.
Although the committee had finished revision B, it chose to refine further the draft. Up to this point it seems clear that the constitution was the product of the joint labors of the committee, tut it is also clear that the committee did not report the B copy to the house for detate. The committee submitted to the Convention a fifth
copy which was very likely Jay's handiwork. Substantiation for the tradition comes from Chancellor Livingston and a pseudonymous writer who consulted the Convention manuscripts then in the possession of John Mckesson's nephew. This unknown author, "Schuyler, " stated that 2 the draft of the constitution among these papers was in Jay's hand.
.
1. John H. Livingston obtained his copy from Altany delegate Abraham Ten Broeck on February 27 or 28. John H. to R.R. Livingston, 28 Febru- ary 1777, R.R. Livingston Collection, NYES.
2. Lincoln, Const. Hist., I, 498-99. This article by "Schuyler" ap- peared in the New York Columbian, June 16, 19, 1821 and is reprinted in part in Nathaniel H. Carter and William I. Stone, reporters, Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New York, p. 692. The Chancellor attributed a version to Jay in uncomplimentary fashion amidst the scurrilous gubernatorial campaign of 1792. In an anonymous piece addressed "To --- M --- , Esq., Representative of ---- County" Livingston referred to "the constitution as first reported by Mr. Jay" as being in Mckesson's possession. £ A later piece sigred "Aristides"
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It is possible that the committee assigned to Jay the task of polish- ing the draft, a task which he accomplished in the first twelve days 1 of March. Jay seems principally to have contributed clarity and economy of language, for Mckesson declared the day after the report that it
omitted the method which proposed for electing by Ballot & sundry other matters by which the report is much shorter than when it was last copied.
A reconstruction of Jay's draft from the Journal furnishes only a general skeleton of his labor, but it does reveal that he adhered closely to draft B, retaining the same topical order.
He eliminated £
completely two sections, that describing the territorial boundaries and that prescribing oaths of office. Undoubtedly the most important alteration was the curtailment of the section on balloting for assen- blymen which set forth in detail the requisite procedure. Jay re- tained that portion enunciating the general principle of voting by
challenged Jay to name that proviso of his draft which would uphold his claim to eminence as a statesman. Internal, evidence suggests "Aris- tidas" is the Chancellor. "To --- M --- , Fsq., " N.Y.J. Extraordinary, 31 March 1792; draft dated 7 March 1792 in R.R. Livingstou Collection, NYHS. "To Timothy Tickler, Esq., C ---- J- --- of the U ----- ---- # by "Aristides, " N.Y. J., 4 April 1792.
1. Morris moved in Committee of Safety on March 1 to direct the drafting committee to meet the following day, but the Committee of Safety ro- Jected the motion. On March 4, however, the Committee did order the constitutional committee to uit. It is likely that on this occasion the latter group discussed Jay's draft. On March 6 the newly assembled Convention set March 12 for the constitutional report. Jour. Prov. Cong., I, 821, 823, 826.
2. Mckesson to Clinton, 13 March 1777, Clinton Papers, 1, 657-58.
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ballot, deleting the several pages of minutise. 1
Other than these instances, there are no substantial differences in content between the two drafts. 2
Although the Convention on August 1, 1776 had resolved urani- mously to direct its committee to prepare simultaneously a constitu- tion and a bill of rights, there is no evidence to indicate that the committee prepared the latter document. 3 Furthermore, no one for- mally challenged the committee for contravening its explicit instruc- tions. The house could not construe anything in the draft as a bill of rights, although separate paragraphs guaranteed voting rights, re- ligious freedom and trial by jury where currently practised. The
1. Taking into consideration the changes proposed on the Convention floor and the phraseology of draft B, this balloting paragraph may have resembled the following reconstruction: "That all elections for repre- sentatives in General Assembly shall te made out of the freeholders per- sonally residing in each respective county by ballot; the laws in force in the colony of New York for regulating elections shall continue to have their full effect where they shall not be repugnant to the Constitu- tion hereby established and until they shall be altered or repealed by. a future legislature. " Lincoln, Const. Hist., I, 507-08; Jour. Prov. Cong .. I. 836.
2. It is possible that Jay's proposed amendments on the floor were the consequence of their rejection in committee. See Alexander, op. cit., I, 14 for a different explanation.
3. Robert Yates, writing in 1788 under the pseudonym "Sydney," threw some light on the fate of the bill of rights. Those who favored the bill based themselves on English precedents, the Petition of Right, 1628, and the Bill of Rights, 1689. Those who opposed denied the analogy, comparing New York to a "state of nature" without any constitution. Therefore, any new constitution would operate as a bill of rights. Moved by these considerations and the provisions for frequent elections and impeachment, the Convention dropped the idea. N. Y. J., 13 June 1788; Paul L. Ford, Essays on the Constitution of the United States, Pub- lished During Its Discussion by the People 1787-88, pp. 297-314 (here- after cited as Essays).
4. Lincoln, Const. Hist., I. 522. 541, 547. Although the old charter
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debates afforded full opportunity for amendments and changes, but no , one introduced anything resembling a rights bill, Gilbert Livingston moved and the Convention adopted a limited guarantee which preserved to the individual all rights and privileges granted by the constitu- tion, unless removed by the "law of the land and the judgment of his 1 peers. " The failure of the more radical delegates to criticize the omission of these vital principles remains unexplained, even though they did strive to democratize other sections of the draft.
Historians frequently have ascribed the eight months' delay in producing a constitution to three factors: the proximity of the British army, the critical military situation which absorbed the energy of the delegates, and the long absences of more radical members who were 2 fighting the war rather than attending the Convention. No doubt on specific occasions any one or combination of these elements caused a postponement, but more than a century ago Sparks put forward a differ- ent explanation:
There was a party, who thought this movement for a consti- tution premature, that it would be safer to wait for a period of more tranquillity, and a fairer prospect of calu reflection and deliberation among the members, and when the people likewise would be in a better condition to under- stand and receive the results of their labors.
of 1683 had granted the right to indictment by grand jury, the revolu- tionaries did not adopt it. Ibid., IV, 69.
1. Ibid., I, 522.
2. Ibid., I, 491-92; Flick, Am. Rev., p. 81; Spaulding, op. cit., pp. 94. 95; Flick, Hist. N.Y., IV, 165; Monaghan, op. cit., p. 97; Pellew, op. cit., pp. 74-75: Jay, op. cit., 1, 68; Nevins, op. cit., p. 160; Becker, op. cit., p. 275; Elisha P. Douglass, Rebels and Democrats, p. 62.
3. Sparks, Morris, I, 120. Spaulding in Flick, Bist. N.Y., IV, 156, thought it likely that political differences delayed the drafting.
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Documentation does exist to support Sparks's interpretation. As he pointed out, Jay was a proponent of this attitude: -
The difficulty of getting any government at all you know has long been an apprehension of little influence on my mind; and always appeared to be founded less in fact, than in a design of quickening the pace of the House ... the birth of the constitution was in my judgment premature 1 The sharp political conflict in Pennsylvania where the radicala had been instrumental in establishing a constitution in 1776 stimulated edifying comments among New Yorkers. Responding to Duer's descrip- tion of the conservative defeat in Pennsylvania, Livingston observed:
You know that nothing but well timed delays, indefatigable industry, and a minute attention to every favourable cir- cumstance could have prevented our being exactly in their situation. 2
The New York conservatives, fearing radical triumph in an immediate debate on a constitution, drew deeply and successfully on their politi- cal experience to avert a reversal.
Writers have cast little light upon the constitutional ideas
prevalent either among the populace or among the Convention members.
1. Jay to Morris and Livingston, 29 April 1777, Sparks, Morris, I, 126- 27; Johnston, op. cit., I, 135. Abraham Yates, Jr., writing under the pseudonym "Rough Hewer" in 1788, said of the drafting committee: "A diversity of opinion soon took place in this Committee; not whether the government should be of the republican form partaking of monarchy, aris- tocracy and democracy; but what proportion of ingredients out of each should make up the compound. " Yates Papers, NYPL. See also Duer to Schuyler, 19 June 1777 and Duane to Schuyler, 19 June 1777, Schuyler Papers, NYPL; Egbert Benson to Livingston, 3 December 1777, R.R. Liv- ingston Collection, NYHS.
2. Duer to Livingston, 28 May 1777, Livingston to Duer, 12 June 1777, ibid. See also Philip Livingston, Duane and Duer to President of Now York Convention, 29 April 1777, Jour, Prov, Cong., II, 428.
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€
Fortunately, the committee drafts are not the sole evidence of con- temporary thought on the subject. While the press furnishes sugges- tive material as indicative of political currents, hints have survived elsewhere as to the attitudes of the delegates.
Some of tho contributors to the newspapers stressed the need to break with tradition, to build "a new form of government. .. without
destroying private property. " 1 "Spartanus" would have dispensed with the colonial legislature in favor of a unicameral assembly, holding up 2 the Roman Republic as the proof of bicameralism's fatal weakness. The legislature would exercise executive power also and during its recess would transfer this authority to a legislative committee. The house would choose provincial officials but the people would elect local officials. In the former category were the provincial secretary, treasurer, attorney-general, judges of the supreme court; in the latter were the county judges, justices of the peace, sheriffs and other of- ficials and all town officials. The people would vote annually for
The county election districts were to assemblymen and magistrates.
Although "Spartanus" give way to small, aqual election districts. 3 did not discuss the suffrage qualifications, "Essex" would broaden the voting base by granting the right to landholders owning realty valued at $40, to 40 leaseholders and renters, to those having personalty of
1. "The Interest of America, " Letter II by "Spartanus, " N. Y.J., 13 June 1776.
2. The conflict between patricians and plebeians destroyed the Roman Republic "Spartanus" asserted. Ibid.
3. Letter III, ibid., 20 June 1776.
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৳40 and to widows paying taxes on property in one of the foregoing classifications. Those unenfranchised by these regulations would not 1
pay taxes for the support of the legislature.
Other commentators adhered to the customary forms of governors council, and lower house. One writer suggested Connecticut's govern- ment as a model for the distribution of powers and for election re- quirements. 2 Another, "Independent Whig, " would have the council
chosen by the house for three-year terms. He expressed uncertainty as to who was to elect the governor, first placing that power in the hands of the legislature, but then offering it to the people at large. Both governor and house were to be selected annually by ballot. His prescription for the suffrage was vague, "sufficient property to con- nect him [i.e., the voter] with the community, " but the ballot was to be a written one. Keeping the British system in mind, he ruled out dual-office holding ("places of profit should be few, and profits of places should be small .... "). Furthermore, the governor and council 3 would not have the authority to suspend laws.
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