The History of New York State
Book XII, Chapter 2, Part 1

Editor, Dr. James Sullivan

Online Edition by Holice, Deb & Pam



From the Declaration of Independence to the Ratification of the Federal Constitution.

Upon the adoption of the Declaration of Independence, on July 9, 1776, the province of New York passed away. Thereafter, no crown official unless within the British Zone, could hope to continue in office--not even the venerable crown judges, who had clung to their authority longest of all. The Declaration sounded the death knell of all crown courts and of all crown institutions in the thirteen united colonies. Like the riding sun, it dispelled the chilly mists of the uncertain might and, by its warmth and brightness, brought to the faces of halting republicans the glow of buoyant American life. Of course, clouds were to gather later; long-standing jealousies between the States, and the uneasiness all felt in the thought that power given to a central government might deprive each of some of the precious independence for which they were risking their lives, would recur with increasing force in the coming years. For the moment, however, political chaos seemed to have given way to governmental order, with the issues clear instead of ambiguous. More than all else, the Declaration had made the way back to pre-war status so hard that republicans preferred to look back no longer. The last page of Colonial history had been written; and, in the Declaration, Americans possessed an inspiring dignified frontispiece with which to grace the republic history that thirteen independent but cooperating States were to write.

The delegates of the people to New York needed all the inspiration that the Declaration of independence could give them when, on July 10, at white Plains, they resolved that they would function no longer as a provincial body. Their legislative Congress was, in fact, "The Convention of the Representatives of the State of New York." So, it was resolved that the official records should read, notwithstanding that at that very moment a British fleet was in the offing--only a few miles away, at Tarrytown, and that raiding parties, which had just landed from it were placing White Plains itself in imminent danger of capture.

That the delegates, this emergency, resolved to transfer all colonial records to a safer place was an indication of caution, not fear. As a matter of fact, the delegates held their ground at White Plains until July 27, reassembling two days later on Manhattan Island. Sessions were held in a church at Harlem for about a month, adjournment being taken on August 29, two days after the battle of Long Island had rendered it advisable to remove to a safer place. The Dutch church at Fishkill was the venue of brief sessions of the convention during the next four month, the delegates meeting together there on September 5-7, September 14 to October 5. October 15, December 5-6, and February 11, 1777. Before adjournment was taken on the last date, it was resolved to remove the seat of government to Kingston, to which place the colonial records had been sent. The members reassembled at Kingston on March 6, 1777, and before adjournment on May 13 gave to the State its first constitution.

This important document had been in course of preparation for many months. having taken a great step, and begun to think as a State, the convention had, July 10, 1776, taken immediate steps to function as such. A resolution was adopted, declaring that the sovereign and independent State of New York had begun its existence on April 20, 1775, the date on which the first provincial Convention, independent of the British Governor, had convened in New York City. The government chaos of the next fourteen months having been ended by the adoption of the Declaration of Independence, the State Convention on July 10, 1776, further resolved that a tentative system of jurisprudence be provided for the State, by recognizing that, until further notice, the common law and statues of England as in force in the province on April 19, 1775, should continue to be the law of the State. The convention decided to confine itself mainly to its constitutional purpose, and the actual reins of government for the next nine months--until March 5, 1777--were entrusted to a Committee of Safety. On August 1, 1776, the convention appointed a special committee to draft a constitution.

To this constitutional committee were named John Jay, Robert R. Livingston, Gouverneur Morris, James Duane, William Duer, Abraham Yates, Robert Yates, John Morin Scott, Colonel John Broome, John Sloss Hobart, Colonel Charles DeWitt, Samuel Townsend, William Smith and Henry Wisner. The important work of this committee is referred to at length in the Bench and Bar chapter, and need not be retold here, more than to point out that John Jay ably guided the body and eventually reported to the convention a fundamental law which, though not perfect, was destined to serve the State for almost fifty years.

The constitutional committee did not at once take up the work for which it had been organized. A more imperative duty than constitution-making demanded the attention of the leaders of the State. Most of the members of the constitutional committee were also members of a committee that had been formed "for inquiring into, detecting and defeating conspiracies against the liberties of America." In certain parts of the State, especially in Westchester and Rockland counties, unrest was extreme. Lawless bands, known as "Cowboys" and "Skinners" the former "avowedly Tories, and the latter indifferent to any principle other than plunder," had been taking advantage of the lack of courts and police. Life and property were thus jeopardized not only by the proximity of the military forces, but by a more uncontrollable element. Above all, however, the committee had to search for and defeat the Tory New Yorkers who were in league with the British. In this important work the members of the committee were chiefly engaged until the end of February 1777, when another commission was formed, the constitutional committee members freed from vigilance duties.

John Jay, the chairman of the committee, immediately retired to his county seat to begin the work of drafting the constitution. It does not seem that, as constitution-maker, he "entered an almost unexplored field," as one writer asserts; neither does it seem that Jay followed, except in the election of a council of appointment, the plan sketched by John Adams of Massachusetts. John Jay, then thirty-one years old, a shrewd lawyer of aristocratic family, was averse to radical changes in the system of government. He believed that, in general, he provincial scheme of government could be made to fit the State better perhaps than it had suited the Crown. Of course, Jay was not the State. He could not follow his own inclinations without heeding the opinions of other State leaders. This he admitted in one of his letters. "We have a government to form, you know," he wrote, "and God knows what it will resemble. Our politicians, like some guests at a feast, are perplexed and undetermined which dish to prefer"; nevertheless, the constitution shows how readily Jay adapted the laws and customs of provincial New York to the needs of the State.

The Plan of State Government--The State plan of government introduced no novel feature. The government was to consist of three coordinate departments, the Executive, the Legislative and the Judicial. The provincial Assembly and Council became the model for the State Assembly and Senate. The Governor, it is true, was to be elected, but the Judicial Department followed the provincial appointive system.

The legislative branch was vested in Assembly and Senate. The former was to consist of seventy members, to be elected each year; the latter, of twenty-four members, were to be elected for four yeas, but the initial election to be so arranged that one-fourth of the Senate would stand for re-election or change each year. There were to be four senatorial districts in the State, the eastern having three members, the southern nine, the middle six, and the western six. The Assembly districts corresponded, in general, with county divisions. Each house was to enjoy powers and privileges similar to those accorded to the provincial Assembly and Council.

Suffrage was however restricted. While the democratic spirit of the time led patriots to believe that the people were supreme, and that each man was to have a share in the government which was to preserve their liberties, the constitution actually placed the power in the hands of a few. Some citizens of full age possessed no voting right, and others only a partial right. Notwithstanding that the Constitution, in its first article, declared that "no authority shall, on any pretense whatever, be exercised over the people of the State but such as shall be derived from and granted by them," the legislative franchise was, in the main, granted only to freeholders. "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 of all debts, could vote for a senator," or a governor.

In thus restricting the franchise, New York was not alone. Indeed, the common thought among conservative students of government, in American at that time, was that only responsible men should be accorded the right to vote, the surest proof of responsibility being the ownership of realty. Except in the metropolitan area, however, this restrictive franchise was not so inconsistent with the theories of popular sovereignty as one would suppose; a large percentage of the people outside the centers of population were landowners, e. g., farmers.

Jay was careful also to guard the interest of the tax-paying citizens against ill-advised legislation. Lest "laws inconsistent with the spirit of this constitution, or with the public good, may be hastily or unadvisedly passed," the constitution-makers proposed that a Council of Revision be created, and given power to "revise all bills about to be passed into laws by the Legislature." The Council was to be composed of the Governor, the Chancellor, and the three judges of the Supreme Court. They could veto any bill before passage, but "if two-thirds of each house approved it after the Council disapproved it, the original bill would become law."

The executive department of the State was to be headed by a Governor, who must be a freeholder and chosen by the ballots of freeholders. His term of office was to be three years, and his powers were to be somewhat like those of the Crown Governors of provincial days. He was to be the nominal head of both army and navy;" have power to convene the legislature in extraordinary session; to prorogue it, not be exceed sixty days in any one year; and to grant pardons and reprieves to persons convicted of crimes other than treason and murder. He was to have a Lieutenant-Governor, elected in the same manner as himself, the lieutenant-Governor becoming the presiding officer of the Senate. He would also succeed the Governor in case of death or disability of the latter.

Inasmuch as the people were to be supreme and that the constitution declared that no authority should be exercised save such as came from the people, the constitution-makers had no alternative to the election of the governor. Jay, it seems, would have preferred to make the governor-ship conservative leaders. They compromised by providing for a Council of Appointment, which would, or could, curb the authority of even the most radical elected Governor. With the histories of provincial Governors well before him, Jay was determined to protect the State against a repetition of such arbitrary conduct. No State official, however exalted his office might be, should be given absolute power in the new order of government. Gouverneur Morris, a member of the constitutional committee, wished to vest in the Governor both the right of veto and the power of appointment; but Jay was as much opposed to this plan as he was to the proposal that the Legislature be given the right to confirm officers nominated by the Governor. As compromise 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 said officers, of which the Governor shall be president and have a casting vote, but no other vote; and with the advise of the said Council shall appoint all of the said officers.

This brought into the governmental plan the Council of Appointment which was destined to exercise such a potent influence in the political history of the State. The article was not clearly constructed, and was later misconstrued. Jay had intended that the Governor should nominate, the Council confirm and the appointment then be made by the Governor, but ultimately the Council of Appointment claimed that the right to nominate was vested concurrently in the Governor, and in each of the four council Senators. In this way the chief executive was practically stripped of power. How potent a factor the Council of Appointment became may be understood when it is stated that, with the exception of the Govern, Lieutenant-Governor, Senators and Assemblymen, every State functionary of any consequence came into office by appointment. Virtually the whole power of appointment in the State was thus lodged in three men--a quorum of the Council. Even mayors of cities were to take office at the will of the Council, which of course also had power of removal.

In the third department of State--the Judicial--Jay followed the provincial plan even more closely, as is shown in the next chapter.

On March 12, 1777, the proposed constitution, which was in Jay's handwriting, was reported to the convention of the representative of the State of New York, then in session at Kingston. Next day, the first section was accepted. Inasmuch as a majority of the sixty-six members of the convention were ultra-democratic, Jay and his supports were probably not much elated at this prompt action. They probably feared that some of the more conservative sections of the proposed organic law would develop protracted debate. The prompt acceptance of the first section, they knew, was not criterion of the attitude of the convention; it merely dealt with general platitudes such as all could endorse. As consideration of succeeding sections continued, debate became more and more intense, the radical section, led by John Morin Scott, vehemently resisting "a conservatism that seemed disposed simply to change the name of their masters." Jay had many uneasy moments. To some of the radical patriots, all provincial institutions were hateful, and anything in the new order of government that would suggest the old would stir them to protest. Jay, in his fearless adoption of those phases of the provincial system that he deemed could function well in the State government, must at times have felt that he had gone too far. He admitted as much to his son, William. "It is probable that the convention was ultra-democratic," writes William Jay, in his biography of his father, "for I have heard him observe that another turn of the winch would have cracked the cord." #1

He had indeed acted wisely in the original drafting, for many of the provisions that seemed to him important he had prudently omitted, hoping that discussion would develop their need. As they arose, he shrewdly introduced them as amendments. He was well supported by the Livingstons, Morrises and Yateses. Gouverneur Morris, in some instances; did not follow Jay absolutely, but all were of the same conservative order, and all convincing in debate. There was long discussion upon one question, liberty of conscience. While intolerance had flared occasionally in provincial times, and , while like all Protestant countries, New York had, in the past, been apprehensive of popish influences, she had been far more tolerant than some other American colonies. The State constitution breathed this spirit of religious freedom, one section providing that "the free exercise and enjoyment of religious profession and worship without diminution or preference shall forever hereafter be allowed within this State to all mankind." Jay, however, could not forget his Huguenot descent. 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." He proposed, and was able to secure, a restriction that "the liberty of conscience hereby granted shall not be construed as to excuse acts of licentiousness or justify practices inconsistent with the safety of the State." Again, in the matter of naturalization, jay contrived to insert a restriction. All persons, before naturalization, were required to "abjure and renounce all allegiances to all and every foreign King, prince, potentate and state, in all matter ecclesiastical as well as civil."

Had Jay not been called away suddenly, on April 17, to the bedside of his dying mother, he would have reported an amendment abolishing slavery, thereby offering New York the distinction of being the first State to emancipate slaves. Indeed, such a recommendation was introduced by Gouverneur Morris and passed, but subsequently omitted. #1

The Convention had been considering the Constitution for a month when Jay was called away. He was destined to have no further part in the deliberations. Whether the opposition took political advantage of his absence, dreading further amendments, or whether his own supporters felt that no more than Jay had recommended could be added to the instrument, is not known beyond conjecture, but on Sunday, April 20, 1777, the Constitution was adopted, a whole, practically as Jay had left it.

There was little else to do, save to appoint a committee to report a plan for establishing a government under it, and to make the organic law publicly known.

The latter requirement might have caused some of the constitution-makers some misgivings, for undoubtedly the new plan of government for the Democratic State of New York showed a dearth of democratic innovations. It appears that popular dissatisfaction did become evident, "in earnest prayers and ugly protests." Nevertheless, the instrument publicly proclaimed on April 22, 1777, from a point of vantage--the top of an upturned barrel--in the front of the Kingston Courthouse, was destined to remain the organic law of the State for forty-four years. It had many flaws. It did not even provide for its own amendment. It was, withal, "an exceptionally wise and worthy instrument." Generally, throughout the country, "it was cordially approved as the most excellent and liberal of the American constitutions." It was favored "even in New England," where New York productions were apt to be belittled.

The First State Governor--Before adjournment, on May 8, 1777, the Convention temporarily filled the judicial offices, and named a Council of Safety of fifteen delegates, under the chairmanship of John Morin Scott. The latter body was invested with all powers for the administration of the State until a regular government could be elected.

Acting upon the authority vested in it, the Council of Safety ordered elections to be held throughout the State. The people had had many previous opportunities of electing legislators, but never before had they been able to choose their Governor, by ballot. They were also interested in the fact that this exalted personage was to be a native New Yorker, not an aristocratic stranger from across the sea. This satisfaction, therefore, may have moderated the disappointment many felt that the legislative franchise was so restrictive.

For the governorship the favorites were John Jay, Philip Schuyler, John Morin Scott, and George Clinton. Jay probably stood highest in public esteem and, had he been disposed to take office, might have been the first Governor, instead of the first chief-justice of New York. As a member of the Council of Safety, he was even then taking executive part in the provincial State government, and was also chief-justice pro-tempore. But he does not seem to have been eager to become Governor. Indeed, he actively furthers the candidacy of Philip Schuyler.

Schuyler, the "Great Eye" of the New York military forces, was well worthy of preferment. Daniel Webster declared him to be "second only to Washington in the services he rendered to the country." Schuyler was at that moment in the northern part of the State, more concerned in providing to meet the invasion of the Mohawk Valley than in political matters. Since 1768, when he was first elected to the Provincial Assembly, Schuyler had enlisted in the people's cause with fearless earnestness. Then some of the excellent qualities, which later made Chancellor Kent think so highly of him, were publicly manifested. 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." While most people esteemed him, and were glad to have his services both in the field and in the Continental Congress, there were many who thought that he would not make an ideal Governor. His aristocratic lineage and military authority tended to develop in him a somewhat imperious attitude, which to those who did not known him well seemed to be arrogance.

The average citizen felt drawn more confidently to John Morin Scott who, though of aristocratic, even titled ancestry, and possessed of much wealth, was undoubtedly in spirit a man of the people. He had never been classed with the Tories. Indeed, he had for many years been aligned with the most radial Republicans. At a time when it was still inconceivable to nine-tenths of the American colonies, he has suggested independence, and, after the war had come, he stood forth as one of the ablest leaders of the radical element. He had not yet passed the prime of vigorous manhood, but republic principle had been gathering intensity in him for very many years., possibly since his undergraduate days at Yale. He breathed the air of independence, would not tolerate British rule or misrule, and had no place in the American system for British sovereignty or suzerainty, or for any other British curb of American government. John Morin Scott was undoubtedly all-American, and most citizens knew it. Yet his very assertiveness probably cost him the governership. A man who is tolerant in one respect might be so in others, A man of adamant mind was not the one to whom the diverse interests of a large State could with the utmost confidence be entrusted.

George Clinton's characteristics were more acceptable. "A patriot never lived who was more bitter in his hostility to English misrule, or more uncompromising in his opposition to Toryism." #3 Yet there was in Clinton that distinctly human quality--that Irish uncertainty of temperament--which is apt to change a hastily voiced intention into an action that is governed more by the heart then the head. Clinton possessed a magnetic personality., Often arrogant and intolerant, at time petulant and sensitive, impetuous, quick to take offense, his hasty temper finding abusive words quickly, Clinton was nevertheless of generous heart. His actions often manifested a human interest that belied his words. Despite, perhaps, because of this failing, George Clinton was popular. He was able to get nearer, in fellow felling, to the people than nay other political leader, although politicians did not think so until the election returns proved it. Clinton was evidently the kind of man the people wanted for Governor.

Clinton was of the aristocracy, or at least his family had been of the gentility. His royalist great-grandfather had followed the fortunes of the Stuart House, to his own misfortune. During the Cromwellian period, the Clinton family estate had dwindled to nothing. Clinton's father, of Puritan mind, crossed to America from Ireland and settled in Ulster County, New York. There, George was born on July 26, 1739. Along the banks of the Hudson he grew to adolescence, independent, self-reliant, venturesome. At fifteen he commanded a privateer. At sixteen, as a lieutenant, he helped to capture Fort Frontenac. A decade or so later, he and Schuyler headed a troublesome patriotic minority in the Tory Provincial Assembly. In 1776, at the age of thirty-six years, Clinton was a brigadier-general of New York militia, and, as a representative from New York to the Second Continental Congress, he voted for the Declaration of Independence.

These, then, were the four chief candidates for the highest office of State. There was no electioneering campaign; for principals at that time had more vital campaigning imperatively before them--physical opposition of the military forces of Britain. Jay did send out one electioneering letter, favoring Schuyler for Governor and Clinton for Lieutenant-governor, but all were disinclined to further their own candidacy by personal solicitation. All, of course, were very much interested in the election. Jay followed the returns keenly, as they came in to the Council of Safety, of which he was a member. The early returns pleased Jay. On June 20, he wrote to Schuyler: "The elections in the middle district have taken such a turn as that, if a tolerate degree of unanimity should prevail in the upper counties, there will be little doubt of having, ere long, the honor of addressing a letter to your excellency. Clinton, being pushed for both offices, may have neither; he had 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." But when the returns from the southern counties came in Jay realized that Schuyler had been defeated, that Clinton had been elected to both offices by a considerable majority.

The aristocrats were surprised. Indeed, the great landowners were humiliated. Schuyler was especially perturbed. His first opinion was that Clinton "had played his cards better than was expected." A few days later, when the rumor that Clinton had been elected was confirmed, he expressed his opinion more pointedly. "Clinton's family and connections do not entitle him to so distinguished a preeminence," he wrote. Still, Schuyler was a patriot before all else, and his next words were: "He is virtuous and loves his country, he has ability and is brave, and I hope he will experience from every patriot support, countenance, and comfort."

The election returns were finally announced on July 9th. Clinton stood out from the others, but large votes were cast for Schuyler, Scott and jay. Some ballots favored Philip Livingston, and some votes were cast for Robert R. Livingston.

Choosing the higher of the two offices to which he had been elected, Clinton was inaugurated as Governor on July 30, 1777. The ceremony was memorable, though not ostentatious. Standing on the same barrel from which the Constitution had been read, Clinton, in the uniform of a brigadier-General of militia, took the oath of office as the first Governor of the State of New York. The unsheathed sword he held in his upraised hand was perhaps mute token that the governor was also determined to be faithful and efficient in his other vital responsibility--that of commander-in-chief of the military forces of the State. On the same day, the Council of Safety proclaimed Clinton as "Governor-General and Commander-in-Chief of all the militia, and Admiral of the Navy of the State, to whom all good people of the State are to pay due obedience, according to the laws and constitution there of."

There was, in fact, more imperative call for the guiding hand of Clinton in military matters than in political. Within three months of the governor's inauguration, the British commander of same patronymic, Sir Henry Clinton, had stormed the Highland forts, defeated the New York Militia under Governor Clinton, had entered and burned Kingston, and dispersed the Legislature. Governor Clinton himself had only narrowly escaped by crossing the river, under cover of night, in a small rowboat. "Where is my friend George?" asked Sir Henry Clinton, addressing Colonel McCaughry, a prisoner. "Thank God, he is safe and beyond the reach of your friendship," replied the colonel. Nevertheless, it seemed at the moment that Governor Clinton had been rudely shut out of both offices--Governor and commander-in-chief. Indeed, it seemed quite possible that the State would be smothered while still in its swaddling clothes. Not many knew that a few days earlier Burgoyne's triumphal march southward from Canada had been finally stopped.

The legislative history during these exciting early months of the State should be briefly stated before passing on. The Council of Safety, on July 16, had issued a summons convening the Legislature at Kingston on August 1. Owing to the critical state of military affairs on this date, the Governor deemed it advisable to prorogue the meeting until August 20.

For a like reason, further postponement until September 1 was decided upon. On September 1, some legislators fathered, but not enough to form a quorum. Until September 9 meetings of the State Assembly were held daily, but merely to adjourn, because of the lack of a quorum. On September 9 a quorum appeared in the Senate and on the next day sufficient assemblymen also were in attendance. On the afternoon of September 10, therefore, in the Kingston Courthouse, the House of Assembly of the State of New York began its initial session. Following the British custom, the two houses, Senate and Assembly, held joint session to listen to the address from the Governor. The latter pointed to the British invasions as the cause of the delay in organizing the State government. In his address, Clinton recommended speedy revision of the militia laws to meet the exigencies of the time; revision of the fiscal system to meet the extraordinary demands of wartime; and called for the enactment of an election law. Finally, the governor urged scrupulous observance of the distinction between executive, legislative and judicial department of the State. The address was generally approved. On September 18, Governor Clinton informed the Senate that two days earlier the Assembly had appointed Senators John Morin Scott and Jesse Woodhull, Abraham Yates and Alexander Webster to compose, with himself, a Council of Appointment. On September 22 the Governor met the Senate, by appointment, "at the house of Christopher Tappan," to receive its reply to his address. All this time the military situation was becoming more and more precarious. General Israel Putman had been unable to check the advance of the British up the Hudson. Soon, the last defenses before Kingston were invested. Governor Clinton himself directed the defense of Fort Montgomery, and his brother commanded Fort Clinton. On October 6, however, both forts were in the hands of the enemy. Then followed a stubborn rearguard action, the American forces striving to hinder the British advance upon Kingston until the government archives had been removed to a safer placed. This was accomplished, the records being hidden among the Ulster hills at Rochester.

On the morning of October 7, the Legislature, knowing that their session would soon be interrupted, appointed a Council of Safety, of thirteen men, #4 any seven of whom could carry on the government until the Legislature could again convene in orderly session. At noon the Assembly recessed until four o'clock and the Senate until next morning. Whoever, militia duty prevented a quorum of Assemblymen at four o'clock, and as next morning the position was the same, the Senate adjourned until such time as the Governor should call them into session. On October 16, the British overran Kingston, and put it to the torch, Governor Clinton remaining until almost the end.

Clinton rejoined his family near Poughkeepsie, but soon crossed the river, proceeding to Hurley to reorganize his scattered military forces. The Council of Safety met on October 19 at Marbletown, but repaired soon to Hurley, which temporarily became the governmental headquarters.


The History of New York State, Lewis Historical Publishing Company, Inc., 1927

This book is owned by Pam Rietsch and is a part of the Mardos Memorial Library

Transcribed by Holice B. Young

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