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."