Chapter 3

MAKING A STATE CONSTITUTION

1777

It was early spring in 1777 before John Jay, withdrawing to the country, began the work of drafting a constitution. His retirement recalls Cowper's sigh for

"... a lodge in some vast wilderness, Some boundless contiguity of shade, Where rumours of oppression and deceit, Of unsuccessful and successful war, Might never reach me more."

Too much and too little credit has been given Jay for his part in the work. One writer says he "entered an almost unexplored field." On the other hand, John Adams wrote Jefferson that Jay's "model and foundation" was his own letter to George Wythe of Virginia. Neither is true. The field was not unexplored, nor did John Adams' letter contain a suggestion of anything not already in existence, except the election of a Council of Appointment, with whose consent the governor should appoint all officers. His plan of letting the people elect a governor came later. "We have a government to form, you know," wrote Jay, "and God knows what it will resemble. Our politicians, like some guests at a feast, are perplexed and undetermined which dish to prefer;"[5] but Jay evidently preferred the old home dishes, and it is interesting to note how easily he adapted the laws and customs of the provincial government to the needs of an independent State.

[Footnote 5: John Jay, _Correspondence and Public Papers_, Vol. 1, p. 68.]

The legislative branch of the government was vested in two separate and distinct bodies, called the Assembly and the Senate. The first consisted of seventy members to be elected each year; the second of twenty-four members, one-fourth to be elected every four years. Members of the Assembly were proportioned to the fourteen counties according to the number of qualified voters. For the election of senators, the State was divided into "four great districts," the eastern being allowed three members, the southern nine, the middle six and the western six. To each house was given the powers and privileges of the Provincial Assembly of the Colony of New York. In creating this Legislature, Jay introduced no new feature. The old Assembly suggested the lower house, and the former Council or upper house of the Province, which exercised legislative powers, made a model for the Senate.[6] In their functions and operations the two bodies were indistinguishable.[7]

[Footnote 6: _Memorial History of the City of New York_, Vol. 2, p. 610.]

[Footnote 7: _Ibid._, Vol. 2, p. 610.]

The qualifications of those who might vote for members of the Legislature greatly restricted suffrage. Theoretically every patriot believed in the liberties of the people, and the first article of the Constitution declared that "no authority shall, on any pretence whatever, be exercised over the people of the State, but such as shall be derived from and granted by them." This high-sounding exordium promised the rights of popular sovereignty; but in practice the makers of the Constitution, fearing the passions of the multitude as much as the tyranny of kings, deemed it wise to keep power in the hands of a few. A male citizen of full age, possessing a freehold of the value of twenty pounds, or renting a tenement of the yearly value of forty shillings, could vote for an assemblyman, and one possessing a freehold of the value of one hundred pounds, free from all debts, could vote for a senator.

But even these drastic conditions did not satisfy the draftsman of the Constitution. The legislators themselves, although thus carefully selected, might prove inefficient, and so, lest "laws inconsistent with the spirit of this Constitution, or with the public good, may be hastily or unadvisedly passed," a Council of Revision was created, composed of the governor, chancellor, and the three judges of the Supreme Court, or any two of them acting with the governor, who "shall revise all bills about to be passed into laws by the Legislature." If the Council failed to act within ten days after having possession of the bill, or if two-thirds of each house approved it after the Council disapproved it, the bill became law. This Council seems to have been suggested by the veto power possessed by the King's Privy Council.

The supreme executive power and authority of the State were vested in a governor, who must be a freeholder and chosen by the ballots of freeholders possessed of one hundred pounds above all debts. His term of office was three years, and his powers similar to those of preceding Crown governors. He was commander-in-chief of the army, and admiral of the navy. He had power to convene the Legislature in extraordinary session; to prorogue it not to exceed sixty days in any one year; and to grant pardons and reprieves to persons convicted of crimes other than treason and murder, in which cases he might suspend sentence until the Legislature acted. In accordance with the custom of his predecessors, he was also expected to deliver a message to the Legislature whenever it convened. To aid him in his duties, the Constitution provided for the election of a lieutenant-governor, who was made the presiding officer of the Senate.

The proposition that no authority should be exercised over the people except such as came from the people necessarily opened the door to an election of the governor by the people; but how to restrict his power seems to have taxed Jay's ingenuity. He had reduced the number of voters to its lowest terms, and put a curb on the Legislature, as well as the governor, by the creation of the Council of Revision; but how to curtail the chief executive's power in making appointments, presented a problem which gave Jay himself, when governor, good reason to regret the manner of its solution.

The only governors with whom Jay had had any experience were British governors, and the story of their rule was a story of astonishing mistakes and vexing stupidities. To go no farther back than Lord Cornbury, the dissolute cousin of Queen Anne, not one in the long list, covering nearly a century, exhibited gifts fitting him for the government of a spirited and intelligent people, or made the slightest impression for good either for the Crown or the Colony. Their disposition was to be despotic, and to prevent a repetition of such arbitrary conduct, Jay sought to restrict the governor's power in making appointments to civil office.

The new Constitution provided for the appointment of sheriffs, mayors of cities, district attorneys, coroners, county treasurers, and all other officers in the State save governor, lieutenant-governor, state treasurer and town officers. Some members of the convention wished the governor to make these appointments; others wanted his power limited by the Legislature's right to confirm. Jay saw objections to both methods. The first would give the governor too much power; the latter would transfer too much to the Legislature. To reconcile these differences, therefore, he proposed "Article XXIII. That all officers, other than those who, by this Constitution, are directed to be otherwise appointed, shall be appointed in the manner following, to wit: The Assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a Council for the appointment of the said officers, of which the governor shall be president and have a casting vote, but no other vote; and with the advice and consent of the said Council shall appoint all of the said officers."[8]

[Footnote 8: "The clause directing the governor to _nominate_ officers to the Legislature for their approbation being read and debated, was generally disapproved. Many other methods were devised by different members, and mentioned to the house merely for consideration. I mentioned several myself, and told the convention at the time, that, however I might then incline to adopt them, I was not certain, but that after considering them, I should vote for their rejection. While the minds of the members were thus fluctuating between various opinions, I spent the evening of that day with Mr. Morris at your lodgings, in the course of which I proposed the plan for the institution of the Council as it now stands, and after conversing on the subject we agreed to bring it into the house the next day. It was moved and debated and carried."--John Jay, _Correspondence and Public Papers_, Vol. 1, p. 128. Letter of Jay to Robert R. Livingston and Gouverneur Morris, April 29, 1777.]

This provision was simply, as the sequel showed, a bungling compromise. Jay intended that the governor should nominate and the Council confirm, and in the event of a tie the governor should have the casting vote. But in practice it subordinated the governor to the Council whenever a majority of the Assembly was politically opposed to him, and the annual election of the Council greatly increased the chances of such opposition. When, finally, the Council of Appointment set up the claim that the right to nominate was vested concurrently in the governor and in each of the four senators, it practically stripped the chief executive of power.

The anomaly of the Constitution was the absence of provision for the judicature, the third co-ordinate branch of the government. One court was created for the trial of impeachments and the correction of errors, but the great courts of original jurisdiction, the Supreme Court and the Court of Chancery, as well as the probate court, the county court, and the court of admiralty, were not mentioned except incidentally in sections limiting the ages of the judges, the offices each might hold, and the appointment of clerks. Instead of recreating these courts, the Constitution simply recognised them as existing. The new court established, known as the Court of Errors and Impeachment, consisted of the president of the Senate, the senators, the chancellor, and the three judges of the Supreme Court, or a major part of them. The conception of vesting supreme appellate jurisdiction in the upper legislative house was derived from the former practice of appeals to the Council of the Province,[9] which possessed judicial as well as legislative power. The Constitution further followed the practice of the old Council by providing that judges could not vote on appeals from their own judgments, although they might deliver arguments in support of the same--a custom which had obtained in New York from the earliest times.[10]

[Footnote 9: _Memorial History of the City of New York_, Vol. 2, p. 612.]

[Footnote 10: _Duke's Laws_, Vol. 1, Chap. 14.]

In like manner provincial laws, grants of lands and charters, legal customs, and popular rights, most of which had been in existence for a century, were carried over. The Constitution simply provided, in a general way, for the continuance of such parts of the common law of England, the statute law of England and Great Britain, and the acts of the legislature of the Colony of New York, as did not yield obedience to the government exercised by Great Britain, or establish any particular denomination of Christians, or their priests or ministers, who were debarred from holding any civil or military office under the new State; but acts of attainder for crimes committed after the close of the war were abrogated, with the declaration that such acts should not work a corruption of the blood.

The draft of the Constitution in Jay's handwriting was reported to the convention on March 12, 1777, and on the following day the first section was accepted. Then the debate began. Sixty-six members constituted the convention, a majority of whom, led by John Morin Scott, believed in the reign of the people. The spirit that nerved a handful of men to embargo vessels and seize munitions of war covered by British guns never wanted courage, and this historic band now prepared to resist a conservatism that seemed disposed simply to change the name of their masters. Jay understood this feeling. "It is probable that the convention was ultra-democratic," says William Jay, in the biography of his father, "for I have heard him observe that another turn of the winch would have cracked the cord."[11]

[Footnote 11: William Jay, _Life of John Jay; Jay MSS._, Vol. 1, p. 72.]

Jay was not without supporters. Conservatives like the Livingstons, the Morrises, and the Yateses never acted with the recklessness of despair. They had well-formed notions of a popular government, and their replies to proposed changes broke the force of the opposition. But Jay, relying more upon his own policy, prudently omitted several provisions that seemed to him important, and when discussion developed their need, he shrewdly introduced them as amendments. Upon one question, however, a prolonged and spirited debate occurred. This centred upon the freedom of conscience. The Dutch of New Netherland, almost alone among the Colonies, had never indulged in fanaticism, and the Constitution, breathing the spirit of their toleration, declared that "the free exercise and enjoyment of religious profession and worship without diminution or preference shall forever hereafter be allowed within the State to all mankind." Jay did not dissent from this sentiment; but, as a descendant of the persecuted Huguenots, he wished to except Roman Catholics until they should deny the Pope's authority to absolve citizens from their allegiance and to grant spiritual absolution, and he forcefully insisted upon and secured the restriction that "the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the safety of the State." The question of the naturalisation of foreigners renewed the contention. Jay's Huguenot blood was still hot, and again he exacted the limitation that all persons, before naturalisation, shall "abjure and renounce all allegiance to all and every foreign king, prince, potentate, and state, in all matters ecclesiastical as well as civil."

Jay intended reporting other amendments--one requiring a similar renunciation on the part of all persons holding office, and one abolishing domestic slavery. But before the convention adjourned he was, unfortunately, summoned to the bedside of his dying mother. Otherwise, New York would probably have had the distinction of being first to set the example of freedom. "I should have been for a clause against the continuance of domestic slavery," he said, in a letter objecting to what occurred after his forced retirement.[12]

[Footnote 12: John Jay, _Correspondence and Public Papers_, Vol. 1, p. 126. "Such a recommendation was introduced by Gouverneur Morris and passed, but subsequently omitted."--_Ibid._, p. 136, _note_.]

Although the Constitution was under consideration for more than a month, haste characterised the close of the convention's deliberations. As soon as Jay left, every one seemed eager to get away, and on Sunday, April 20, 1777, the Constitution was adopted as a whole practically as he left it, and a committee appointed to report a plan for establishing a government under it. Unlike the Constitution of Massachusetts, it was not submitted to the voters for ratification. The fact that the delegates themselves had been elected by the people seemed sufficient, and two days after its passage, the secretary of the convention, standing upon a barrel in front of the courthouse at Kingston, published it to the world by reading it aloud to those who happened to be present. As it became known to the country, it was cordially approved as the most excellent and liberal of the American constitutions. "It is approved even in New England," wrote Jay, "where few New York productions have credit."[13]

[Footnote 13: _Ibid._, p. 140.]

The absence of violent democratic innovations was the Constitution's remarkable feature. Although a product of the Revolution, framed to meet the necessities growing out of that great event, its general provisions were decidedly conservative. The right of suffrage was so restricted that as late as 1790 only 1303 of the 13,330 male residents of New York City possessed sufficient property to entitle them to vote for governor. Even the Court of Chancery remained undisturbed, notwithstanding royal governors had created it in opposition to the wishes of the popular assembly. But despite popular dissatisfaction, which evidenced itself in earnest prayers and ugly protests, the instrument, so rudely and hastily published on April 22, 1777, remained the supreme law of the State for forty-four years.

Before adjournment the convention, adopting the report of its committee for the organisation of a state government, appointed Robert R. Livingston, chancellor; John Jay, chief justice of the Supreme Court; Robert Yates, Jr., and John Sloss Hobart, justices of the Supreme Court, and Egbert Benson, attorney-general. To a Council of Safety, composed of fifteen delegates, with John Morin Scott, chairman, were confided all the powers of the State until superseded by a regularly elected governor.