A Political History of the State of New York Volume I Part 2

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 Const.i.tution 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 repet.i.tion of such arbitrary conduct, Jay sought to restrict the governor's power in making appointments to civil office.

The new Const.i.tution 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 Const.i.tution, are directed to be otherwise appointed, shall be appointed in the manner following, to wit: The a.s.sembly 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 inst.i.tution 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 a.s.sembly 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 const.i.tuted 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 Const.i.tution, 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 pa.s.sed, but subsequently omitted."--_Ibid._, p. 136, _note_.]

Although the Const.i.tution 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 Const.i.tution 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 Const.i.tution of Ma.s.sachusetts, 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 pa.s.sage, 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 const.i.tutions. "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 Const.i.tution'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 ent.i.tle 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 a.s.sembly. 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.

CHAPTER III

GEORGE CLINTON ELECTED GOVERNOR

1777

After the const.i.tutional convention adjourned in May, 1777, the Council of Safety immediately ordered the election of a governor, lieutenant-governor, and members of the Legislature. The selection of a governor by ballot interested the people. Although freeholders who could vote represented only a small part of the male population, patriots of every cla.s.s rejoiced in the subst.i.tution of a neighbour for a lord across the sea. And all had a decided choice. Of those suggested as fittest as well as most experienced Philip Schuyler, John Morin Scott, John Jay and George Clinton were the favourites. Just then Schuyler was in the northern part of the province, watching Burgoyne and making provision to meet the invasion of the Mohawk Valley; George Clinton, in command on the Hudson, was equally watchful of the movements of Sir Henry Clinton, whose junction with Burgoyne meant the destruction of Forts Clinton and Montgomery at the lower entrance to the Highlands; while Scott and Jay, as members of the Council of Safety, were directing the government of the new State.

Schuyler's public career began in the Provincial a.s.sembly of New York in 1768. He represented the people's interests with great boldness, and when the a.s.sembly refused to thank the delegates of the first Continental Congress, or to appoint others to a second Congress, he aided in the organisation of the Provincial Congress which usurped the a.s.sembly's functions and put all power into the hands of the people.

Chancellor Kent thought that "in acuteness of intellect, profound thought, indefatigable activity, exhaustless energy, pure patriotism, and persevering and intrepid public efforts, Schuyler had no superior;" and Daniel Webster declared him "second only to Washington in the services he rendered the country."[14] But there was in Schuyler's make-up a touch of arrogance that displayed itself in letters as well as in manners. The soldierly qualities that made him a commander did not qualify him for public place dependent upon the suffrage of men. People respected but did not love him. If they were indignant that Gates succeeded him, they did not want him to govern them, however much it may have been in his heart to serve them faithfully.

[Footnote 14: While in command of the northern department, embracing the province of New York, Schuyler was known as "Great Eye," so watchful did he become of the enemy's movements; and although subsequently, through slander and intrigue, superseded by Horatio Gates, history has credited Burgoyne's surrender largely to his wisdom and patriotism, and has branded Gates with incompetency, in spite of the latter's gold medal and the thanks of Congress.]

John Morin Scott represented the radical element among the patriots.

By profession he was an able and wealthy lawyer; by occupation a patriotic agitator. John Adams, who breakfasted with him, speaks of his country residence three miles out of town as "an elegant seat, with the Hudson just behind the house, and a rural prospect all around him." But the table seems to have made a deeper impression upon the Yankee patriot than the picturesque scenery of the river. "A more elegant breakfast I never saw--rich plate, a very large silver coffee-pot, a very large silver teapot, napkins of the very finest materials, toast and bread and b.u.t.ter in great perfection. Afterwards a plate of beautiful peaches, another of pears, another of plums, and a musk melon." As a parting salute, this lover of good things spoke of his host as "a sensible man, one of the readiest speakers upon the continent, but not very polite."[15] This is what the Tories thought.

According to Jones, the Tory historian, Scott had the misfortune to graduate at Yale--"a college remarkable for its republican principles and religious intolerance," he says, and to belong to a triumvirate whose purpose was "to pull down church and state, and to raise their own government upon the ruins."[16]

[Footnote 15: John Adams, _Life and Works_, Vol. 2, p. 349 (Diary).]

[Footnote 16: Thomas Jones, _History of New York_, Vol. 1, p. 3.]

Scott, no doubt, was sometimes mistaken in the proper course to pursue, but he was always right from his point of view, and his point of view was bitter hostility to English misrule. Whatever he did he did with all the resistless energy of a man still in his forties. He was of distinguished ancestry. His great-great-grandfather, Sir John Scott, baronet, of Ancrum, Scotland, had been a stalwart Whig before the revolution of 1688, and his grandfather, John Scott, coming to New York in 1702, had commanded Fort Hunter, a stronghold on the Mohawk.

Both were remarkable men. Tory blood was foreign to their veins. Young John, breathing the air of independence, scorned to let his life and property depend upon the pleasure of British lords and a British ministry, or to be excluded from the right of trial by a jury of his neighbours, or of taxation by his own representatives. In 1775 he went to the Continental Congress; in 1776, to the Provincial Congress of New York; and later he partic.i.p.ated in the battle of Long Island as a brigadier-general. After the adoption of the State Const.i.tution he became secretary of state, and from 1780 to 1783 served in the Continental Congress. He lived long enough to see his country free, although his strenuous life ended at fifty-four.

George Clinton possessed more popular manners than either Schuyler or Scott. Indeed, it has been given to few men in New York to inspire more pa.s.sionate personal attachment than George Clinton. A patriot never lived who was more bitter in his hostility to English misrule, or more uncompromising in his opposition to toryism. He was a typical Irishman--intolerant, often domineering, sometimes petulant, and occasionally too quick to take offence, but he was magnetic and generous, easily putting himself in touch with those about him, and ready, without hesitation, to help the poorest and carry the weakest.

This was the kind of man the people wanted for governor.

Clinton came of a good family. His great-grandfather, a too devoted adherent of Charles I., found it healthful to wander about Europe, and finally to settle in the north of Ireland, out of reach of Cromwell's soldiers, and out of sight of his ancestral patrimony. By the time Charles II. came to the throne, the estate was lost, and this friend of the Stuarts lived on in the quiet of his secluded home, and after him, his son; but the grandson, stirred by the blood of a Puritan mother, exchanged the North Sea sh.o.r.e for the banks of the Hudson, where his son breathed the air that made him a leading spirit in the war for American independence. Clinton's youth is one record of precocity. Before the war began he pa.s.sed through a long, a varied, even a brilliant career, climbing to the highest position in the State before he had reached the age when most men begin to fill responsible places. At fifteen he manned an American privateer; at sixteen, as a lieutenant, he accompanied his father in a successful a.s.sault upon Fort Frontenac; at twenty-six, in the colonial legislature, he became the rival of Philip Schuyler in the leadership and influence that enabled a patriotic minority to resist the aggressions of Great Britain; at thirty-six, holding a seat in the Second Continental Congress, he voted for the Declaration of Independence, and commanded a brigade of Ulster County militia.

The election which occurred in June was not preceded by a campaign of speaking. People were too busy fighting to supplement a campaign of bullets with one of words. But Jay sent out an electioneering letter recommending Philip Schuyler for governor and George Clinton for lieutenant-governor. This was sufficient to secure for these candidates the conservative vote. It showed, too, Jay's unconcern for high place. He was modest even to diffidence, an infirmity that seems to have depressed him at times as much as it did Nathaniel Hawthorne in a later day.

The returns were made to the Council of Safety, and Jay carefully scanned them as they came in. On June 20 he wrote Schuyler: "The elections in the middle district have taken such a turn as that, if a tolerable degree of unanimity should prevail in the upper counties, there will be little doubt of having, ere long, the honour of addressing a letter to your excellency. Clinton, being pushed for both offices, may have neither; he has many votes for the first and not a few for the second. Scott, however, has carried a number from him, and you are by no means without a share. You may rely on receiving by express the earliest notice of the event alluded to."[17] When the voters from Orange and other southern counties came in, however, Jay discovered that the result did not follow the line either of his wishes or of his suggestions. On the contrary, Clinton was elected to both offices by a considerable plurality.[18]

[Footnote 17: John Jay, _Correspondence and Public Papers_, Vol. 1, p.

142.]

[Footnote 18: "A fragment of the canva.s.s of 1777 shows the returns from Albany, c.u.mberland, Dutchess, Tryon, and Westchester, as follows: Clinton, 865; Scott, 386; Schuyler, 1012; Jay, 367; Philip Livingston, 5; Robert R. Livingston, 7. The votes from Orange and other southern counties gave the election to Clinton."--_Civil List, State of New York_ (1886), p. 164. Subsequently, when the Legislature met at Kingston on September 1, Pierre Van Cortlandt as president of the Senate performed the duties of lieutenant-governor.]

The result of the election proved a great surprise and something of a humiliation to the ruling cla.s.ses. "Gen. Clinton, I am informed, has a majority of votes for the Chair," Schuyler wrote to Jay, on June 30.

"If so he has played his cards better than was expected."[19] A few days later, after confirmation of the rumour, he betrayed considerable feeling. "Clinton's family and connections do not ent.i.tle him to so distinguished a pre-eminence," he wrote, showing that Revolutionary heroes were already divided into more democratic and less democratic whigs, and more aristocratic and less aristocratic patriots; but the division was still in the mind rather than in any settled policy. "He is virtuous and loves his country," added Schuyler, in the next line; "he has ability and is brave, and I hope he will experience from every patriot support, countenance and comfort."[20] Washington understood his merits. "His character will make him peculiarly useful at the head of your State," he wrote the Committee of Safety.

[Footnote 19: John Jay, _Correspondence and Public Papers_, Vol. 1, p.

144.]

[Footnote 20: John Jay, _Correspondence and Public Papers_, Vol. 1, p.

146.]

Clinton's inauguration occurred on July 30, 1777. He stood in front of the courthouse at Kingston on top of the barrel from which the Const.i.tution had been published in the preceding April, and in the uniform of his country, with sword in hand, he took the oath of office. Within sixty days thereafter Sir Henry Clinton had carried the Highland forts, scattered the Governor's troops, dispersed the first Legislature of the State, burned Kingston to the ground, and very nearly captured the Governor himself, the latter, under cover of night, having made his escape by crossing the river in a small rowboat. Among the captured patriots was Colonel McClaughry, the Governor's brother-in-law. "Where is my friend George?" asked Sir Henry. "Thank G.o.d," replied the Colonel, "he is safe and beyond the reach of your friendship."