CHAPTER III.

INDEPENDENCE: FORMING THE STATE CONSTITUTION.

The third Provincial Congress, which came together in May, and before

the close of its sessions was obliged to adjourn to White Plains, had to

act on the Declaration of Independence, and provide for the foundation

of a new state government.

Morris now put himself at the head of the patriotic party, and opened

the proceedings by a long and very able speech in favor of adopting the

recommendation of the Continental Congress that the colonies should form

new governments. In his argument he went at length into the history and

growth of the dispute with Great Britain, spoke of the efforts made in

the past for reconciliation, and then showed clearly how such efforts

were now not only hopeless, but also no longer compatible with the

dignity and manhood of Americans. He sneered at those who argued that we

ought to submit to Great Britain for the sake of the protection we got

from her. "Great Britain will not fail to bring us into a war with some

of her neighbors, and then protect us as a lawyer defends a suit: the

client paying for it. This is quite in form, but a wise man would, I

think, get rid of the suit and the lawyer together. Again, how are we to

be protected? If a descent is made upon our coasts and the British navy

and army are three thousand miles off, we cannot receive very great

benefit from them on that occasion. If, to obviate this inconvenience,

we have an army and navy constantly among us, who can say that we shall

not need a little protection against _them_?" He went on to point out

the hopelessness of expecting Great Britain to keep to any terms which

would deprive Parliament of its supremacy over America: for no

succeeding Parliament could be held bound by the legislation of its

predecessor, and the very acknowledgment of British supremacy on the

part of the Americans would bind them as subjects, and make the

supremacy of Parliament legitimate. He bade his hearers remember the

maxim "that no faith is to be kept with rebels;" and said: "In this

case, or in any other case, if we fancy ourselves hardly dealt with, I

maintain there is no redress but by arms. For it never yet was known

that, when men assume power, they will part with it again, unless by

compulsion."

He then took up the subject of independence, showed, for the benefit of

the good but timid men who were frightened at the mere title, that, in

all but name, it already existed in New York, and proved that its

maintenance was essential to our well-being. "My argument, therefore,

stands thus: As a connection with Great Britain cannot again exist

without enslaving America, an independence is absolutely necessary. I

cannot balance between the two. We run a hazard in one path, I confess;

but then we are infallibly ruined if we pursue the other.... We find the

characteristic marks and insignia of independence in this society,

considered in itself and compared with other societies. The enumeration

is conviction. Coining moneys, raising armies, regulating commerce,

peace, war: all these things you are not only adepts in, but masters of.

Treaties alone remain, and even those you have dabbled at. Georgia you

put under the ban of empire, and received her upon repentance as a

member of the flock. Canada you are now treating with. France and Spain

you ought to treat with, and the rest is but a name. I believe, sir, the

Romans were as much governed, or rather oppressed, by their emperors, as

ever any people were by their king. But emperor was more agreeable to

their ears than king. [So] some, nay, many, persons in America dislike

the word independence."

He then went on to show how independence would work well alike for our

peace, liberty, and security. Considering the first, he laughed at the

apprehensions expressed by some that the moment America was independent

all the powers of Europe would pounce down on her, to parcel out the

country among themselves; and showed clearly that to a European power

any war of conquest in America would be "tedious, expensive, uncertain,

and ruinous," and that none of the country could be kept even if it

should come to pass that some little portion of it were conquered. "But

I cannot think it will ever come to this. For when I turn my eyes to the

means of defense, I find them amply sufficient. We have all heard that

in the last war America was conquered in Germany. I hold the converse of

this to be true, namely, that in and by America his Majesty's German

dominions were secured.... I expect a full and lasting defense against

any and every part of the earth." After thus treating of the advantages

to be hoped for on the score of peace, he turns attention "to a question

of infinitely greater importance, namely, the liberty of this country;"

and afterwards passes to the matter of security, which, "so long as the

system of laws by which we are now governed shall prevail, is amply

provided for in every separate colony. There may indeed arise an

objection because some gentlemen suppose that the different colonies

will carry on a sort of land piracy against one another. But how this

can possibly happen when the idea of separate colonies no longer exists

I cannot for my soul comprehend. That something very like this has

already been done I shall not deny, but the reason is as evident as the

fact. We never yet had a government in this country of sufficient energy

to restrain the lawless and indigent. Whenever a form of government is

established which deserves the name, these insurrections must cease. But

who is the man so hardy as to affirm that they will not grow with our

growth, while on every occasion we must resort to an English judicature

to terminate differences which the maxims of policy will teach them to

leave undetermined? By degrees we are getting beyond the utmost pale of

English government. Settlements are forming to the westward of us, whose

inhabitants acknowledge no authority but their own." In one sentence he

showed rather a change of heart, as regarded his former aristocratic

leanings; for he reproached those who were "apprehensive of losing a

little consequence and importance by living in a country where all are

on an equal footing," and predicted that we should "cause all nations to

resort hither as an asylum from oppression."

The speech was remarkable for its incisive directness and boldness, for

the exact clearness with which it portrayed things as they were, for the

broad sense of American nationality that it displayed, and for the

accurate forecasts that it contained as to our future course in certain

particulars,--such as freedom from European wars and entanglements, a

strong but purely defensive foreign policy, the encouragement of the

growth of the West, while keeping it united to us, and the throwing open

our doors to the oppressed from abroad.

Soon after the delivery of this speech news came that the Declaration of

Independence had been adopted by the Continental Congress; and Jay, one

of the New York delegates to this body, and also a member of the

Provincial Congress, drew up for the latter a resolution emphatically

indorsing the declaration, which was at once adopted without a

dissenting voice. At the same time the Provincial Congress changed its

name to that of "The Convention of the Representatives of the State of

New York."

These last acts were done by a body that had been elected, with

increased power, to succeed the third Provincial Congress and provide

for a new constitution. Just before this, Morris had been sent to the

Continental Congress in Philadelphia to complain that the troops from

New England were paid more largely than those from the other colonies; a

wrong which was at once redressed, the wages of the latter being raised,

and Morris returned to New York in triumph after only a week's absence.

The Constitutional Convention of New York led a most checkered life; for

the victorious British chevied it up and down the State, hunting it in

turn from every small town in which it thought to have found a peaceful

haven of refuge. At last it rested in Fiskhill, such an out-of-the-way

place as to be free from danger. The members were obliged to go armed,

so as to protect themselves from stray marauding parties; and the number

of delegates in attendance alternately dwindled and swelled in a

wonderful manner, now resolving themselves into a committee of safety,

and again resuming their functions as members of the convention.

The most important duties of the convention were intrusted to two

committees. Of the first, which was to draft a plan for the

Constitution, Morris, Jay, and Livingston were the three leading

members, upon whom all the work fell; of the second, which was to devise

means for the establishment of a state fund, Morris was the chairman and

moving spirit.

He was also chairman of a committee which was appointed to look after

the Tories, and prevent them from joining together and rising; and so

numerous were they that the jails were soon choked with those of their

number who, on account of their prominence or bitterness, were most

obnoxious to the patriots. Also a partial system of confiscation of Tory

estates was begun. So greatly were the Tories feared and hated, and so

determined were the attempts to deprive them of even the shadow of a

chance to do harm, by so much as a word, that the convention sent a

memorial, drafted by Morris, to the Continental Congress, in which they

made the very futile suggestion that it should take "some measures for

expunging from the Book of Common Prayer such parts, and discontinuing

in the congregations of all other denominations all such prayers, as

interfere with the interests of the American cause." The resolution was

not acted on; but another part of the memorial shows how the Church of

England men were standing by the mother country, for it goes on to

recite that "the enemies of America have taken great pains to insinuate

into the minds of the Episcopalians that the church is in danger. We

could wish the Congress would pass some resolve to quiet their fears,

and we are confident that it would do essential service to the cause of

America, at least in this State."

Morris's position in regard to the Tories was a peculiarly hard one,

because among their number were many of his own relatives, including his

elder brother. The family house, where his mother resided, was within

the British lines; and not only did he feel the disapproval of such of

his people as were loyalists, on the one side, but, on the other, his

letters to his family caused him to be regarded with suspicion by the

baser spirits in the American party. About this time one of his sisters

died; the letter he then wrote to his mother is in the usual formal

style of the time, yet it shows marks of deep feeling, and he takes

occasion, while admitting that the result of the war was uncertain, to

avow, with a sternness unusual to him, his intention to face all things

rather than abandon the patriot cause. "The worst that can happen is to

fall on the last bleak mountain of America; and he who dies there in

defense of the injured rights of mankind is happier than his conqueror,

more beloved by mankind, more applauded by his own heart." The letter

closes by a characteristic touch, when he sends his love to "such as

deserve it. The number is not great."

The committee on the constitution was not ready to report until March,

1777. Then the convention devoted itself solely to the consideration of

the report, which, after several weeks' discussion, was adopted with

very little change. Jay and Morris led the debate before the convention,

as they had done previously in committee. There was perfect agreement

upon the general principles. Freehold suffrage was adopted, and a

majority of the freeholders of the State were thus the ultimate

governing power. The executive, judicial, and legislative powers were

separated sharply, as was done in the other States, and later on in the

Federal Constitution as well. The legislative body was divided into two

chambers.

It was over the executive branch that the main contest arose. It was

conceded that this should be nominally single headed; that is, that

there should be a governor. But the members generally could not realize

how different was a governor elected by the people and responsible to

them, from one appointed by an alien and higher power to rule over them,

as in the colonial days. The remembrance of the contests with the royal

governors was still fresh; and the mere name of governor frightened

them. They had the same illogical fear of the executive that the

demagogues of to-day (and some honest but stupid people, as well)

profess to feel for a standing army. Men often let the dread of the

shadow of a dead wrong frighten them into courting a living evil.

Morris himself was wonderfully clear-sighted and cool-headed. He did not

let the memory of the wrong-doing of the royal governors blind him; he

saw that the trouble with them lay, not in the power that they held, but

in the source from which that power came. Once the source was changed,

the power was an advantage, not a harm, to the State. Yet few or none of

his companions could see this; and they nervously strove to save their

new State from the danger of executive usurpation by trying to make the

executive practically a board of men instead of one man, and by

crippling it so as to make it ineffective for good, while at the same

time dividing the responsibility, so that no one need be afraid to do

evil. Above all, they were anxious to take away from the governor the

appointment of the military and civil servants of the State.

Morris had persuaded the committee to leave the appointment of these

officials to the governor, the legislature retaining the power of

confirmation or rejection; but the convention, under the lead of Jay,

rejected this proposition, and after some discussion adopted in its

place the cumbrous and foolish plan of a "council of appointment," to

consist of the governor and several senators. As might have been

expected, this artificial body worked nothing but harm, and became

simply a peculiarly odious political machine.

Again, Morris advocated giving the governor a qualified veto over the

acts passed by the legislature; but instead of such a simple and

straightforward method of legislative revision, the convention saw fit

to adopt a companion piece of foolishness to the council of appointment,

in the shape of the equally complicated and anomalous council of

revision, consisting of the governor, chancellor, and judges of the

supreme court, by whom all the acts of the legislature had to be revised

before they could become laws. It is marvelous that these two bodies

should have lived on so long as they did--over forty years.

The convention did one most praiseworthy thing in deciding in favor of

complete religious toleration. This seems natural enough now; but at

that time there was hardly a European state that practiced it. Great

Britain harassed her Catholic subjects in a hundred different ways,

while in France Protestants were treated far worse, and, in fact, could

scarcely be regarded as having any legal standing whatever. On no other

one point do the statesmen of the Revolution show to more marked

advantage when compared with their European compeers than in this of

complete religious toleration. Their position was taken, too, simply

because they deemed it to be the right and proper one; they had nothing

to fear or hope from Catholics, and their own interests were in no wise

advanced by what they did in the matter.

But in the New York convention toleration was not obtained without a

fight. There always rankled in Jay's mind the memory of the terrible

cruelty wrought by Catholics on his Huguenot forefathers; and he

introduced into the article on toleration an appendix, which

discriminated against the adherents of the Church of Rome, denying them

the rights of citizenship until they should solemnly swear before the

supreme court, first, "that they verily believe in their conscience,

that no pope, priest, or foreign authority on earth has power to absolve

the subjects of this State from their allegiance to the same;" and,

second, "that they renounce ... the dangerous and damnable doctrine that

the Pope or any other earthly authority has power to absolve men from

sins described in and prohibited by the Holy Gospel." This second point,

however important, was of purely theological interest, and had

absolutely nothing to do with the state constitution; as to the first

proposition, it might have been proper enough had there been the least

chance of a conflict between the Pope, either in his temporal or his

ecclesiastical capacity, and the United States; but as there was no

possibility of such a conflict arising, and as, if it did arise, there

would not be the slightest danger of the United States receiving any

damage, to put the sentence in would have been not only useless, but

exceedingly foolish and harmful, on account of the intense irritation it

would have excited.

The whole clause was rejected by a two to one vote, and then all the

good that it aimed at was accomplished by the adoption, on the motion of

Morris, of a proviso that the toleration granted should not be held to

"justify practices inconsistent with the peace and safety of this

State." This proviso of Morris remains in the Constitution to this day;

and thus, while absolute religious liberty is guaranteed, the State

reserves to itself full right of protection, if necessary, against the

adherents of any religious body, foreign or domestic, if they menace the

public safety.

On a question even more important than religious toleration, namely, the

abolition of domestic slavery, Jay and Morris fought side by side; but

though the more enlightened of their fellow-members went with them,

they were a little too much in advance of the age, and failed. They

made every effort to have a clause introduced into the constitution

recommending to the future legislature of New York to abolish slavery as

soon as it could be done consistently with the public safety and the

rights of property; "so that in future ages every human being who

breathes the air of this State shall enjoy the privileges of a free

man." Although they failed in their immediate purpose, yet they had much

hearty support, and by the bold stand they took and the high ground they

occupied they undoubtedly brought nearer the period when the abolition

of slavery in New York became practicable.

The Constitution was finally adopted by the convention almost

unanimously, and went into effect forthwith, as there was no

ratification by the people at large.

As soon as it was adopted a committee, which included Morris, Jay, and

Livingston, was appointed to start and organize the new government. The

courts of justice were speedily put in running order, and thus one of

the most crying evils that affected the State was remedied. A council of

safety of fifteen members--again including Morris--was established to

act as the provincial government, until the regular legislature should

convene. An election for governor was also held almost immediately, and

Clinton was chosen. He was then serving in the field, where he had done

good work, and, together with his brother James, had fought with the

stubborn valor that seems to go with Anglo-Irish blood. He did not give

up his command until several months after he was elected, although

meanwhile keeping up constant communication with the council of safety,

through whom he acted in matters of state.

Meanwhile Burgoyne, with his eight or nine thousand troops, excellently

drilled British and Hessians, assisted by Tories, Canadians, and

Indians, had crossed the northern frontier, and was moving down towards

the heart of the already disorganized State, exciting the wildest panic

and confusion. The council of safety hardly knew how to act, and finally

sent a committee of two, Morris being one, to the headquarters of

General Schuyler, who had the supreme command over all the troops in the

northern part of New York.

On Morris's arrival he found affairs at a very low ebb, and at once

wrote to describe this condition to the president of the council of

safety. Burgoyne's army had come steadily on. He first destroyed

Arnold's flotilla on Lake Champlain. Then he captured the forts along

the Lakes, and utterly wrecked the division of the American army that

had been told off to defend them, under the very unfortunate General St.

Clair. He was now advancing through the great reaches of wooded

wilderness towards the head of the Hudson. Schuyler, a general of fair

capacity, was doing what he could to hold the enemy back; but his one

efficient supporter was the wilderness itself, through which the British

army stumbled painfully along. Schuyler had in all less than five

thousand men, half of them short service continental troops, the other

half militia. The farmers would not turn out until after harvest home;

all the bodies of militia, especially those from New England, were very

insubordinate and of most fickle temper, and could not be depended on

for any sustained contest; as an example, Stark, under whose nominal

command the northern New Engenders won the battle of Bennington,

actually marched off his whole force the day before the battle of

Stillwater, alleging the expiration of the term of service of his

soldiers as an excuse for what looked like gross treachery or cowardice,

but was probably merely sheer selfish wrong-headedness and mean

jealousy. Along the Mohawk valley the dismay was extreme, and the

militia could not be got out at all. Jay was so angered by the abject

terror in this quarter that he advised leaving the inhabitants to shift

for themselves; sound advice, too, for when the pinch came and they

were absolutely forced to take arms, they did very fairly at Oriskany.

It was even feared that the settlers of the region which afterwards

became Vermont would go over to the enemy; still, time and space were in

our favor, and Morris was quite right when he said in his first letter

(dated July 16, 1777): "Upon the whole I think we shall do very well,

but this opinion is founded merely upon the barriers which nature has

raised against all access from the northward." As he said of himself, he

was "a good guesser."

He outlined the plan which he thought the Americans should follow. This

was to harass the British in every way, without risking a stand-up

fight, while laying waste the country through which they were to pass so

as to render it impossible for an army to subsist on it. For the militia

he had the most hearty contempt, writing: "Three hundred of the militia

of Massachusetts Bay went off this morning, in spite of the

opposition--we should have said, entreaties--of their officers. All the

militia on the ground are so heartily tired, and so extremely desirous

of getting home, that it is more than probable that none of them will

remain here ten days longer. One half was discharged two days ago, to

silence, if possible, their clamor; and the remainder, officers

excepted, will soon discharge themselves."

The council of safety grew so nervous over the outlook that their

letters became fairly querulous; and they not unnaturally asked Morris

to include in his letters some paragraphs that could be given to the

public. To this that rather quick-tempered gentleman took exceptions,

and replied caustically in his next letter, the opening paragraph being:

"We have received yours of the 19th, which has afforded us great

pleasure, since we are enabled in some measure to collect from it our

errand to the northward, one of the most important objects of our

journey being, in the opinion of your honorable body, to write the

news," and he closes by stating that he shall come back to wait upon

them, and learn their pleasure, at once.

Meanwhile the repeated disasters in the north had occasioned much clamor

against Schuyler, who, if not a brilliant general, had still done what

he could in very trying circumstances, and was in no wise responsible

for the various mishaps that had occurred. The New England members of

Congress, always jealous of New York, took advantage of this to begin

intriguing against him, under the lead of Roger Sherman and others, and

finally brought about his replacement by Gates, a much inferior man,

with no capacity whatever for command. Morris and Jay both took up

Schuyler's cause very warmly, seeing clearly, in the first place, that

the disasters were far from ruinous, and that a favorable outcome was

probable; and, in the second place, that it was the people themselves

who were to blame and not Schuyler. They went on to Philadelphia to

speak for him, but they arrived just a day too late, Gates having been

appointed twenty-four hours previous to their coming.

When Gates reached his army the luck had already begun to turn.

Burgoyne's outlying parties had been destroyed, his Indians and

Canadians had left him, he had been disappointed in his hopes of a Tory

uprising in his favor, and, hampered by his baggage-train, he had been

brought almost to a stand-still in the tangled wilds through which he

had slowly ploughed his way. Schuyler had done what he could to hinder

the foe's progress, and had kept his own army together as a rallying

point for the militia, who, having gathered in their harvests, and being

inspirited by the outcome of the fights at Oriskany and Bennington,

flocked in by hundreds to the American standard. Gates himself did

literally nothing; he rather hindered his men than otherwise; and the

latter were turbulent and prone to disobey orders. But they were now in

fine feather for fighting, and there were plenty of them. So Gates

merely sat still, and the levy of backwoods farmers, all good individual

fighters, and with some excellent brigade and regimental commanders,

such as Arnold and Morgan, fairly mobbed to death the smaller number of

dispirited and poorly led regulars against whom they were pitted. When

the latter were at last fought out and forced to give in, Gates allowed

them much better terms than he should have done; and the Continental

Congress, to its shame, snatched at a technicality, under cover of which

to break the faith plighted through its general, and to avoid fulfilling

the conditions to which he had so foolishly agreed.

Morris and Jay, though unable to secure the retention of Schuyler, had,

nevertheless, by their representations while at Philadelphia, prevailed

on the authorities largely to reinforce the army which was about to be

put under Gates. Morris was very angry at the intrigue by which the

latter had been given the command; but what he was especially aiming at

was the success of the cause, not the advancement of his friends. Once

Gates was appointed he did all in his power to strengthen him, and, with

his usual clear-sightedness, he predicted his ultimate success.

Schuyler was a man of high character and public spirit, and he behaved

really nobly in the midst of his disappointment; his conduct throughout

affording a very striking contrast to that of McClellan, under somewhat

similar circumstances in the Civil War. Morris wrote him, sympathizing

with him, and asking him to sink all personal feeling and devote his

energies to the common weal of the country while out of power just as

strenuously as he had done when in command. Schuyler responded that he

should continue to serve his country as zealously as before, and he made

his words good; but Gates was jealous of the better man whose downfall

he had been the instrument of accomplishing, and declined to profit by

his help.

In a later letter to Schuyler, written September 18, 1777, Morris

praised the latter very warmly for the way he had behaved, and commented

roughly on Gates' littleness of spirit. He considered that with such a

commander there was nothing to be hoped for from skillful management,

and that Burgoyne would have to be simply tired out. Alluding to a rumor

that the Indians were about to take up the hatchet for us, he wrote, in

the humorous vein he adopted so often in dealing even with the most

pressing matters: "If this be true, it would be infinitely better to

wear away the enemy's army by a scrupulous and polite attention, than

to violate the rules of decorum and the laws of hospitality by making an

attack upon strangers in our own country!" He gave Schuyler the news of

Washington's defeat at the battle of Brandywine, and foretold the

probable loss of Philadelphia and a consequent winter campaign.

In ending he gave a thoroughly characteristic sketch of the occupations

of himself and his colleagues. "The chief justice (Jay) is gone to fetch

his wife. The chancellor (Livingston) is solacing himself with his wife,

his farm, and his imagination. Our senate is doing, I know not what. In

assembly we wrangle long to little purpose.... We have some principles

of fermentation which must, if it be possible, evaporate before business

is entered upon."

Gouverneur Morris · 第 3 / 13 章