The History of New York State
Book XII, Chapter 3, Part 3

Editor, Dr. James Sullivan

Online Edition by Holice, Deb & Pam


With this in mind, the Federalists, who controlled the Assembly, now proposed to choose a new Council of Appointment, notwithstanding that the term of the old council had not expired. Of course, this was an inexcusable a use of power as any for which Clinton had been condemned. Abuse seems to be the natural sequence of possession. So the Federalist legislators, having the power, persisted in their plan, and soon the old Council of Appointment was ousted, and a new council, made up almost entirely of Federalists, was elected. So constituted, the all-important appointing body could have nullified any plans the governor might have of using state patronage to strengthen the anti-federalists. The new council went even further. Formerly, it had been the practice of the Governor to nominate and the council to confirm; but the new council claimed the right to nominate also. Clinton insisted that nomination was a constitutional right vested exclusively in the Governor. He refused to nominate Egbert Benson, whom the council, however, had already both nominated and confirmed, as a judge of the Supreme Court. The council held their ground, contenting that it had a concurrent right to nominate. They even went further in their scheme to cripple Clinton. Headed by Philip Schuyler, an inveterate foe of the governor, the council decided that whenever the organic law omitted to limit the number of officers, the council might do it. Furthermore, officers commissioned for one year might be displaced by others at the expiration of the commission. In other words, a Federalist Council of Appointment, almost at its pleasure, might displace every short-term Anti-Federalist officer. Clinton protested, claiming that it was the privilege of the Governor to decide upon the number of officials that were necessary for the proper administration of any State department. As to the suggestion that to the victor should go the spoils, he said: "The constitution did not intend a capricious arbitrary pleasure, but a sound discretion to be exercised for the promotion of the public good; that a contrary practice would deprive men of their offices because they have too much independence of spirit to support measures they suppose injurious to the community, and might induce others from undue attachment to office to sacrifice their integrity in improper considerations." This was convincing argument; but the federalist Council of Appointment was not open to conviction at that moment. They were bent upon a certain purpose, and, having the power, they carried their purpose on to consummation. A political machine was soon exhibited.

Clinton was nonplused. That the hundreds, nay thousands, of military officers and civil servants--men who served the State, county or city, indifferently or well--should, for continuance in office, have to curry favor with a mere political machine, and that he, the Governor, should have no power to operate it, seemed to him to be inconceivable, preposterous. Nevertheless, such was to be the case. In that year, 1793, the machine fashioned by Schuyler and sensitive only to party interests, began to function, with surprisingly smooth motion. In subsequent years, resistance and friction were often evident, but there was generally abundant lubrication at hand. It cannot be said that the lubricant was always high grade, and there is no doubt that the engineers got grimy at times. Still, those who work about machinery are apt to soil their ands, and there were compensating advantages, also at most times an effective cleanser. However, all work men are not careful, and at time the lubricant would cake, threatening to clog the vital parts of the machine. The unsightly mass, in time, brought such discredit upon the council that eventually--although not until after many years--the system was scrapped, and the council abolished. Still, the discredit should not be heaped upon Schuyler. He and the council of 1793 may not have fully realized the harmful uses to which the power they controlled would be put. In devising the machine, they may have had in mind only the need of the moment; they may have seen only the need that existed of devising a mechanism capable of tearing away from Clinton, the "Usurper," certain political advantages which he hopped to derive from possession of the office which, by right, was Jay's. But the means they devised of righting, or at least of avenging, the wrong brought into use a political instrument most harmful to the State. Clinton, during his eighteen years as Governor, was undoubtedly partial' his supporters received most of the appointments. Nevertheless, to his credit be it said, in only one or two instanced did ht make questionable appointments. As much cannot be said of the Council of Appointment.

Still, with the State patronage in other hands, Clinton was no longer the potential factor in State politics. With this salve denied him his wounds became unsightly. The odium that came upon him by his use of the questionable means of election in 1792 could not be shaken off. His former henchmen manifested a desire to veer off, glad perhaps that the odium clung to the governor rather than to the party. Undoubtedly, the party would have to choose another leader, or lose the governorship in 1795. The reality could not be evaded. The overwhelming majority given to the Federalists in both houses in 1793 was the unmistakable voice of the people. Clinton must go. This was reiterated in 1794, Federalists again being victorious at the polls. That the veteran governor recognized the command may be inferred from his action of January, 1795. In a published address he then declined to stand for reelection. As his reasons, he gave physical disabilities and "neglected private affairs." He further stated that "he withdrew from an office never solicited," one "which he had accepted with diffidence and from which he should retire with pleasure." He may have been sincere and truthful in these statements, but there were many who attributed other reasons for his retirement. Certainly, he had entered into all his political campaigns with keenness, and had not worn himself into decrepit old age by his long period of public service. Rheumatism troubled him somewhat, but he was not yet an old man, being only fifty-five. Moreover, he was mentally vigorous, and his extensive knowledge of public affairs was still a valuable asset. Some of Clifton's subsequent political activities seem to give credence to the suggestion that he retired from the strife of 1795 not only because he foresaw sure defeat, but because, thus benighted, he might have to retire permanently from political life, whereas, with an undefeated record in State politics, he might more effectively, at an opportune moment in the future, rise to higher honor in the national sphere. So, for the present, Clinton was disposed to pass on to others the problems of anti-federalism in New York. Pierre van Cortlandt, who had been Lieutenant-Governor since 1777, also decided to g out with the old Governor.

John Jay as Treaty-Maker--Anti-Federalism was very weak in 1795. New infusions had had little effect. The new blood was of poor quality. Even the party's espousal of the cause of the French republic had brought little stimulation. The people were more inclined to support Federalism and Washington's policy of strict neutrality. Anti-Federalists known as "Republicans" endeavored to sit anti-British feeling among New Yorkers by calling Federalists "Anglicans." The latter responded by tacking the name "Gallicans" onto the anti-Federalists, but these had little effect upon the people. Only one thing mattered--the vindication of John Jay. He must be elected to the office that had been his, by right, since 1792.

It must be confessed that there were some shrewd Federalist leaders who were not as enthusiastic as the people in this clamor for John Jay. Several doubtful elements had entered into the situation, and these, any moment, might take public form and change public opinion in the night as to Jay. Jay, in the past year, had been jeopardizing his personal interests, his political career, by earnestly endeavoring t settle matters between Britain and the Untied States arising our of the Revolution--difficulties which had been permitted to drift on, from year to year, unsolved. To drift much further might bring the nations into angry belligerent collision. Jay had gone to England in 1794 imagining that he must fence, in diplomacy, with some of the greatest European masters of the intricate science, and equally cognizant of the fact that, if unsuccessful, execration would be his lot among his people. He had met the British diplomatists and had, it seemed, not emerged as victor. At least, the Jay Treaty, which had been already submitted tot he United States Senate, had caused much perturbation therein. Little more than this was publicly known, but rumor was busy and at any moment before election, some anti-Federalist might get hold of the document and clandestinely publish it. Naturally, the storm-center would be in New York.

These were grave possibilities, which cautious Federalist leaders believed should not be ignored, even though they esteemed Jay. Ordinarily, Jay would have been the choice of all, but these were extraordinary conditions that might cause a tidal wave of anti-Federalism. He had no doubt of Jay, of his work, nor of his right to be the nominee. He would recognize no other candidate. So the absent jurist was nominated, and all Federalists rallied to his standard, hoping that no national bombshells would be dropped before the day of election.

Opposing Jay was a good man, Robert Yates, but he had been coalition candidate against Clinton in 1789, so Federalists were not disinclined to point to Yates as a man of no party. For the same reason, Burr had not been considered by the Republicans. Still, there was little hope that either would succeed against Jay.

The result proved such to be the case. The campaign was colorless, and the election of Jay was conceded long before it was officially announced. Federalists dominated both Assembly and Senate, therefore, the State Board of canvassers would hardly now be inclined to "count out" the jurist-diplomat. It was not until May 26 that it was officially announced that Jay had been elected by a majority of 1,589 votes. (Jay, 13,481 votes, Yates, 11,892). This was a notable triumph, for Clinton had never reached four figures in majority.

Tough the electioneering campaign had been colorless, new York was soon to see everywhere the most flaring colors. The ferment that some Federalists had feared came with greater intensity and suddenness than even the most apprehensive had thought possible. Jay arrived in New York, from England, on May 28. He was joyfully received. The public joy was gratifying to one who knew that soon frowns and scowls would confront him everywhere. The inauguration of the new Governor took place on July 1. The rejoicing was general and the congratulations apparently sincere; yet next day pandemonium raged in New York. The Jay Treaty had been published. Jay was no longer the idol of the people, no longer the great American whose service to State and nation had marked him out as the logical successor to Washington. He was not a spy, a turncoat, a traitor who would sell his country for English gold, #14, Jay was "either a knave or a fool," angrily shouted the venerable John Rutledge, who was expecting to succeed Jay as chief-justice. Gray-haired soldiers of the Revolution, who had admired Jay, and who had found no anti-British feelings stirring in their patriotic hearts when anti-Federalists, during the recent electioneering campaign, had suggested that Jay was "Anglican," now view with impetuous youngsters in cursing Jay. Never had public favor been so fickle. Never, in the history of American politics, had such a sudden tempestuous change of popularity come to a public official. In a night the whole State had turned, raging against Jay. He was burned in effigy; Hamilton, who defended him, was stoned, Livingston seizing the opportunity of passing, at that meeting after Hamilton's exit, a resolution condemning the federalist party, which, by ratifying this treaty before making it known to the people, had been conniving with the English to ruin the Nation. On Broadway some indignant new Yorker had chalked in big letters: "Damn John Jay! Damn every one that won't damn John Jay! Damn every one that won't put lights in his windows and sit up all night damning John Jay!"

The truth was that nobody was satisfied with the treaty--not even Jay. He had hoped for better fortune in his negotiation, but had had to face grim realities. War was in the offing, and the black tornado might leave a trail of devastation far worse than that from which, mainly through Hamilton's genius, the Nation was just beginning to recover. Half a loaf is better than none. Jay could not forget the poverty and hunger that had marked the trail of the Revolution. He was fully cognizant of the blessings of peace. with peace, he saw that his nation might become great, prosperous, that, although, now but a fractious child, it had the whole of a vast new country in which to grow to lusty, clean, inspiring manhood. He would preserve for his people the blessings of peace. Firebrands at home and in England--some heedlessly, some for political advantage--were ever ready to light the torch of war. They should have none, at least none that could be used by one nation against the other. There would be strife at home, he knew, but it would be a war of words, not the blight that saps a nation of all its vitality while bloody passions rage. Because of his work, some political loss might come to his party. Indeed, this had long since been anticipated. But it would pass. The rain of today would be forgotten in the sunshine of tomorrow. As for himself--politically--it mattered not, even though he could see only rainy days. The goal of most of the great political leaders was the presidency; but what change had a wet bedraggled figure of inspiring the Nation? Popular favor alone could take him to the presidency but he saw that his lot was to be popular resentment. On the crest of the wave of resentment which would submerge him another leader less deserving would ride to the presidency. What mattered it? He would have been true to his better self; he would have placed his country's interests before his own. He might not survive the flood of condemnation, but time would show his work at its real worth. The Federalist knew well, when Jay was appointed to negotiate this treaty, that he must cast aside all presidential aspirations; and Jay well knew that his rivals would strain every nerve to keep him benighted. As Hamilton pointed out, in a letter on July 22, 1795, under his nom de plume of Camillus: "There are three persons prominent in the public eye as the successor to the President--Mr. Adams, Mr. Jay, and Mr. Jefferson . . . . .Mr. Jay as been repeatedly the object of attacks with the same view. His fiends, as well as his enemies, anticipated that he could make no treaty which would not furnish weapons against him; and it were to have been ignorant of the indefatigable malice of his adversaries to have doubted that they would be seized with eagerness and wielded with dexterity. It was impossible. . . .that any promising opportunity of detaching from him the public confidence, should pass unimproved." Hamilton was not mistaken; these opportunities were improved to the uttermost by Jay's enemies.

In the matter of publication of this treaty there had been some regrettable suspicious circumstances which aggravated the situation sorely, and explain the sudden anger of the people. Jay concluded the treaty in November, 1794, and kept its terms secret. He had intended returning home at once, but for some reason the voyage has been delayed. There was considerable delay also in the transmittal of the treaty to his home ministers. The document did not reach the Secretary of State until March 7, four days after the close of Congress. Undoubtedly the president was disappointed with the treaty; but he saw that the international situation was delicate, and he resolved to keep its terms absolutely secret for the moment. He dreaded war, just as much as Jay did. It seems that he did not even show the paper to his cabinet advisers, save perhaps to Randolph, before he convened the Senate in special session. In submitting the treaty to the Senate for their consideration, he enjoined absolute secrecy upon them. The Senate was dominantly Federalist, and would, by correspondence with the English ministers, be rectified before the treaty terms were made now to the public. The Senate did not like the treaty, but conditionally ratified it, hoping that the future would bring some amendment. However, a few far-seeing statesmen who gave the document closer scrutiny, began to see that, after all, the Jay paper might not prove so disastrous to the United States as first impression had indicated. Maybe the President was of that opinion. At all events, he had just reached a decision to publish the paper in full when his ministers were staggered one morning to see the whole treaty spread upon the pages of an opposition journal. The government had been forestalled. It appears that Senator Mason, of Virginia, one of the ten who had voted not to ratify, had furnished a true copy of the document to a Republican newspaper. Its publication in this way was calamitous to the Federalist party. If the information had emanated from the government, the document might, in some quarters, have been looked upon as merely an official paper; but published as it was, in an indirect way, the information at once became a disclosure--a disclosure of grave, nay shameful, import. The inference was that Federalists were plotting with a foreign nation against their own. The news, as we have seen, took the country by storm, the hurricane passing through all States but reaching most alarming intensity in New York

When the storm died down, all emerged from the debris except Governor Jay. His political party was only temporarily embarrassed, and the nation, in time, distinctly benefited by the treaty. But Jay could not recover. Gone forever was his chance of becoming President. Fate, and his enemies, had carried far beyond his reach the priceless gem that should have been his--to complete his crown of worthy public service. Time rights all wrong is the thought that sometimes brings cheer and hope to the unrewarded; but in Jays case time was tardy; his physical vigor was spent before his full worth was generally known. Of course, the acts, good and bad, of a public servant eventually speak for themselves; they cannot be obliterated; they are incorporated in the public record, and merit in time brings it own reward. So, in judging Jay's work by the National developments of more than a century, we may now revere his memory all the more; but it does seem strange that none of his friends should be become aware of one significant fact which testified to Jay's worth as a treaty-maker. Among a certain class, there was as much dissatisfaction in England as in America over the treaty. And, as the years passed, the dissatisfaction of the British became more and more apparent. Jay's "entering wedge" proved, indeed, to be such a gain to the Untied States, and so disadvantageous to Britain that, when war came again in 1812, Lord Sheffield welcomed the strife, as "a complete opportunity of getting rid of that most impolitic treaty of 1794, when Lord Grenville was so perfectly duped by Jay." Not one of Jay's contemporaries was so astute, and none surpassed him in unselfish public service.

Jay as Governor--In moments of trial and disappointment, it was this innate unselfishness that enabled Jay to preserve such admirable poise, such a calm exterior, such an unruffled presence. While fury raged around him in 1795, Governor Jay calmly pursued the responsibilities of State that were vested in him. To him came patriotism at its purest; and from him it radiated just as pure. Jay personified the highest type of American manhood, a type fit to stand alongside the noblest of any country.

His efforts, as Governor of a State that was now well established, were directed more towards humanitarianism than politics. He endeavored to bring uppermost in men's hearts the bond of human sympathy, instead of the callousness that is generated by party or class strife or the sternness that is the aftermath of war. His plea for mercy for felons, who hitherto had risked the gallows for such petty crimes as circulating a counterfeit shilling or stealing a few loaves of bread for a starving family, resulted in legislation which redounds to the credit of New York. In this respect she heeded the dictates of humanity a quarter of a century before the British acted. Chapter 30 of the Laws of 1796 of New York abolished capital punishment, except in cases of murder and treason #15 and stealing from a church. Twenty-five years were to pass before a similar act was passed by the British Parliament. According to Blackstone, no less than 160 crimes were by the English code of his time punishable with death. There was a time in New York when the county sheriff would set a day for the public hanging of "all persons under sentence of death," and think so casually of such a common occurrence as to advertise "asking any person who was willing to undertake the execution to apply to him." Gibbets were often found at the crossroads, or at some point of vantage which assured the holiday-making populace good view. If, thought some respite, a wholesale hanging should be delayed, the audience thus deprived of an entertainment might depart grumbling at "the great injustice" which had been done to "so large an audience." #16

Such a callous, inhuman psychology would horrify the people of today; but in those times, when capital punishment for minor felonies was the law throughout the world, it did not cause much comment. Only men of Jay's type would see the inhumanity of it. the average citizen was wont to don his brightest homespun on "court-day" and, in gala spirit, heightened by spirits the busy-tavern-keepers were ever willing to dispense, he could enjoy the discomfort of the poor pilloried offenders. By gibe and gesture at their expense as he passed by, he would add to the hilarity of the occasion. Sometimes, an added attraction would come to the whipping-post. At the end of the great day, the merry-making citizens would take to his couch with confused spirits, but still merry. Next day he would resume his prosaic routine of life, and if he thought at all of the events of yesterday, it would probably prompt in him merely the ejaculation: "Great day!" the inhumanity of it all would not strike one in a hundred, notwithstanding that our forefathers of that stern day possessed in other respects as brave, sound and generous hearts as are to be found today. We cannot hold them culpable fro such "court-day" hilarity. Mass psychology explains and exonerates them. Mass psychology, in fact, is not thought at all. It prompts one "to follow the crowd" thoughtlessly. Only the few are strong enough to hold their individual reasoning clear.

Jay attempted to undo the work of Schuyler, as to the Council of appointment. In one respect, at least, Jay and Clinton thought alike. Both saw that the "political machine" for the good of the state, should have an absolutely reliable brake. Both saw that the Governor of the State should have power to curb party abuse of State patronage. At the same time, Jay condoned some official changes made for political reason, "since the best and most virtuous men must, in the distribution of patronage, yield to the influence of party considerations." Perhaps he may be pardoned for feeling surer of his own intentions that of those of others. However, the legislature could be quite as adamant with Jay as with Clinton. Gently, but positively, the Senate declined to give him the exclusive right to nominate. Still, there us little doubt that Jay had strong influence with the Council, and that thus it became possible to bring into the State departments some especially capable men. For instance, through Jay, James Kent was appointed to the Supreme Court bend in 1798--an especially wise preferment. As is shown in the next chapter, Kent was the first jurist to write judicial opinions, the first to set records from which American precedents of law could be established. Kent was then thirty-five years old, a profound student, a successful lawyer, the only one then holding a professorship of law. For thirty years after being appointed by Jay to the bench, Kent pursued his studies, eventually giving us the commentaries which rank with Blackstone's. Jacob Radcliff was elevated to the bench in the same year. His subsequent distinguished career, which paralleled Kent's in length, proved that Jay, in appointing the two, was influenced by merit rather than by party. His discernment brought other very capable men into office. Samuel Jones became the first State Comptroller, and Ambrose Spencer became Assistant Attorney-General. When Rufus King became minister to England, John Lawrence took his place as United States Senator. Lawrence is commonly remembered as the judge-advocate of the court that tried Major Andre, but his record of public service extending over thirty-five years, in military, legislative and judicial office, was notable, in other respects also. At one time, he was president pro tem of the U. S. Senate.

General Schuyler, in his old age, turned the tables on the crafty Burr, who had defeated him for the Senate seat in 1791. Schuyler, therefore, was again a Senator, in 1797. His physical infirmities, however, soon became such that he had to pass the Senatorial toga on to others. In January, 1798, he resigned, and the toga was destined to be worn by many others during the term for which Schuyler had been elected. John Sloss Hobart wore it for four months, William North for ten months, and James Watson until March, 1800. Watson's resignation led to the election of Gouverneur Morris, just before the general election of 1800 swept the Federalists from power.

The census returns to the State legislature in January, 1796, showed 36,338 freeholders out of a total of 60,017 voters in the State. The Constitution, therefore, called for the election of the twenty additional State Senators, seventeen of whom should be chosen from the western district of the State. Albany and Saratoga counties were now transferred to the eastern district, by the way. There was some apprehension as to the outcome of the general State elections of that year, but the recent furor against jay had apparently died down, for the Federalists were again victorious at the polls. Indeed, the party much more positively dominated the Legislature. So Jay's path, as Governor, was even smoother. His address in November was, chiefly, an "eloquent commentary upon Washington's farewell." Because of the happenings of the previous year this address by Jay had peculiar significance, and probably his hearers sympathized as much with him, who by a cruel, unavoidable stroke of fate had lost so much, as they did with the President who had spent the best of his life in the service of his country. There were many Federalist, indeed, who would still rally to jay as the Presidential candidate had he not eliminated himself in favor of John Adams. Again Jay showed both his good sense and his unselfishness. He would not make Jefferson's election sure by permitting himself to stand for Federalism. New York State sent twelve Presidential electors into convention; all were Federalists and all voted solidly for Adams and Pinckney. Jay might have had these for himself, he might have had the votes of some other States--he actually did get four votes from Connecticut; but he knew that the storms of yesteryear would probably return, to sweep away his chance and defeat his party. I t did not so much matter in his own State, where he was better known, but in National politics, his nomination would have been futile.

However, the Federalists of his own State resolved to make amends by re-electing him as Governor. It was not sympathy alone that influenced Federalists in again putting his name forward. His administration had been "notably pure, industrious, and useful." There had been much constructive legislation and the standard of public serve was much higher. Jay, whose integrity and sincerity were apparent, inspired others to nobler efforts. "Never did any governor more richly deserve undisputed re-election, and never was such a course more clearly prescribed by the public welfare."

Chancellor Livingston--Jay's road was apparently to become rocky; the opposition was to be especially strong. The Anti-Federalist party, the Republicans or the Democratic-Republics, or the Party of the Democracy, as they were otherwise known, was now to have its head one whose qualifications were almost as outstanding as Jay's. A former law partner and co-worker in many of the more important public responsibilities of early State days was now to oppose Jay. Chancellor Robert R. Livingston, who had been Jay's senior in the State Judiciary, his colleague in the Continental Congress, his predecessor in cabinet office under the Confederation, could not forget that Jay had been preferred, in 1789, for the National honor he himself had especially coveted--the Chief Justiceship of the United States Supreme Court. No New Yorkers had been so bitter in their criticism of Jay's treaty as the two cousins, Robert R. Livingston and Brockholst Livingston. The chancellor had seen that a copy of the treaty was publicly destroyed at Bowling Green; Brockholst had witnessed the burning of its author, in effigy, "in the Fields." The wives of John Jay and Robert R. Livingston were cousins, but relationship mattered not. When Jay became Chief Justice, Robert R. Livingston became an Anti-Federalist. Now his personal animosity was carrying him to unbelievable length in political strife.


Chancellor Livingston, now scarcely out of the 'forties, was a gentleman of striking presence, his handsome features and aristocratic bearing lending to his tall and graceful figure "a dignity that made him appear as great in private life as he was when gowned and throned in his important office." He was one of the most gifted men of his time in New York, a man of profound thought, quick perception, remarkable eloquence, qualities which were made more appealing by his vivacity and wit in conversation. Benjamin Franklin called him "the Cicero of American." Livingston probably knew more of law than Jay, was better versed in the sciences, was better grounded in classics, in government, in history, and inmost studies that wealth and a cultured environment could bring to an alert favorite son. In debate, Chancellor Livingston was especially able, "a master of sarcasm, of trenchant wit, and of felicitous rhetoric."


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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