On 10 May 1776, the Continental Congress passed a resolution calling for the “respective assemblies and conventions of the United Colonies” to form new governments that would “best conduce to the happiness and safety of their constituents in particular, and America in general.”1 The provincial congress of New York responded to this call on 24 May, appointing a committee to report a plan for a new form of government. However, the congress doubted that it had the power to do so without the explicit consent of the people.2 Although the Fourth New York Congress was elected with an implied mandate to create a new state government, no constitution was approved for more than nine months after the congress declared itself a “Convention” in July 1776. On 1 August 1776 the convention named John Jay to a committee to draft a plan of government, but members of the committee served simultaneously on such convention bodies as the secret committee on fortification of the Hudson, whose operations were given priority over that of drafting a constitution.3 Several times the committee was ordered to report, but other, more pressing business of defense occupied the convention’s time. The events leading up to and following the battle of Long Island (27–29 August), for example, pushed aside the business of the new government. On 28 September the convention ordered the committee to present a draft on or before 12 October and to sit, if necessary, every afternoon till they were ready to report.4 Work had sufficiently progressed by 18 October for John McKesson to circulate a draft within the committee, but further work continued to go slowly.5 James Duane insisted to William Smith that the plan of government was complete in December 1776.6 On 12 December, Abraham Yates Jr., chairman of the committee, announced that the committee would be able to make its report in eight days’ time. However, this event was postponed twice, and on 23 December, Yates left the convention due to ill health.7 The draft constitution was not reported to the convention until 12 March.8 Five weeks of debate, usually occurring in the afternoon, ensued before final approval of the constitution on 20 April 1777.9
Traditionally, Jay has received credit for having “written” the version of the constitution laid before the convention in March 1777. His son William asserted that the plan reported by the committee “is in Mr. Jay’s handwriting.”10 This claim was supported by Robert R. Livingston and by the pseudonymous writer “Schuyler,” who stated in 1821 that the final draft was “chiefly or wholly drawn up by Mr. Jay, and is in his handwriting.” “There were annexed to it,” “Schuyler” continued, “‘Addenda.’ . . . These amendments and alterations were mostly introduced and supported by Mr. Jay, Mr. Duane, Mr. G. Morris, Mr. R. R. Livingston, and a few others; but the most considerable part of the constitution now stands as it came from the hands of Mr. Jay.” It is clear too, that the constitution, as adopted, represented a compromise between the more conservative members of the committee and more radical Whigs like Robert Yates of Albany and Henry Wisner and Charles De Witt of Ulster.11
But if it is agreed that Jay’s role in drafting the constitution was a significant one, the precise nature of his contribution is elusive. Much of the evidence pertaining to the preparation of the draft of March 1777 is confused or missing. The actual draft report considered by the convention in March and April 1777 was not printed in JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends and has never been located by later scholars. Charles Z. Lincoln published two preliminary drafts, designated “A” (prepared in December 1776) and “B” (apparently dating from February 1777), in his Constitutional History of New York .12 In addition, an intermediate draft, in fragmentary form, survives in the Abraham Yates Jr. Papers of the New York Public Library ( EJ : 11373).
Bernard Mason, a student of the convention’s proceedings, concluded that until the completion of draft “B” in February 1777 “it seems clear that the constitution was the product of the joint labors of the committee,” but that this was not the version submitted to the convention in March. Instead, another version, “very likely Jay’s handiwork,” formed the basis for convention debates. Mason infers, from a reconstruction of that final report, as revealed in motions and amendments recorded in JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , that Jay followed draft “B” closely and retained the topical order of its paragraphs, although he appears to have eliminated two sections, one describing territorial boundaries and another prescribing oaths of office. As well, Jay seems to have cut much extraneous detail from the section in draft “B” on assembly elections. On the whole, Mason concludes: “Jay seems principally to have contributed clarity and economy of language” to the constitution in his final revision of the committee’s drafts.13
All political thinkers draw on one another for ideas, and evidence exists that Jay’s contribution to the New York Constitution was consciously influenced by the theories of John Adams. When Jay left Philadelphia to take his place in the New York Provincial Congress, he carried with him a copy of Thoughts on Government , a pamphlet published in January 1776, in which Adams described the type of government he recommended for adoption by the several states. James Duane reported this fact to Adams, who recalled it in a letter written to Thomas Jefferson nearly half a century later.14 The brochure became, according to Duane, Jay’s “Model and foundation,” and there are in fact many similarities between what Adams advised and what Jay incorporated into his draft. If Jay did adopt some of these ideas, it has also to be said that Adams in turn owed debts to other political theorists. In Thoughts on Government he acknowledged the influence on his thinking of such seventeenth-century English aficionados of republicanism as James Harrington, John Locke, and John Milton.15 From them he gained respect for the British constitution and faith in popular government responsible to the will of the people. He also shared their conviction that good administration depended on fixed, impartial laws and that only a careful separation and balance of powers could ensure order and stability.
If Robert R. Livingston was thoroughly fatigued by theoretical speculations and declared that he would not “give one scene in Shakespeare for 1000 Harringtons, Lockes and [John] Adams,”16 Jay was temperamentally less inclined to ignore authorities supporting his side. As Abraham Yates Jr., pointed out retrospectively, the “diversity of opinion” that existed was not over whether the republican form of government should embody mixed elements of “monarchy, aristocracy, and democracy.” Rather, the issue was “what proportion of the ingredients out of each should make up the components.”17
The plan submitted to the convention in March 1777 provided for a balanced state government, both innovative and relatively conservative. The assembly and senate composed the bicameral legislature, with assemblymen chosen from counties and senators from “four great Districts” in the state. Assemblymen, drawn from freeholders, were to be chosen annually by taxpaying freeholders in their respective counties, while senators, also subject to freehold qualifications, were to be elected for four-year terms by £100 freeholders in their districts. The governor, with limited executive powers, was to be a freeholder chosen by senatorial electors. The provincial judicial system, with a supreme court and court of chancery, was to be retained.
By the time the constitution was approved on 20 April 1777, this plan had been modified considerably. The senate, the lieutenant governor, and the governor were to be popularly elected. Voters had to be taxpayers and have resided in their county for six months. The colonial property requirement for voting of a £40 freehold was lowered to £20 to vote for the assembly and raised to £100 to vote for the senate, lieutenant governor, and governor. However, in keeping with colonial practice, tenants who rented land for 40 shillings a year retained their right to vote. Those made “freemen” of New York City and Albany before 1775 also retained the right to vote, no matter their property holdings. Potential senators, lieutenant governors, and governors had to have a £20 freehold, while there was no property requirement for the assembly.18 Thus the state electorate was somewhat larger than the provincial, but only half the voters could vote for the higher offices.19 As a gesture to more responsive government, assembly elections were made annual, the number of representatives in the assembly increased from 31 to 70, the three manor seats abolished, and both the executive and legislative powers curbed. The executive structure was altered by the creation of two councils, one of revision, the other of appointment. The Council of Revision, in which the governor was joined by the chancellor and justices of the supreme court, could disallow bills passed by the legislature; the council’s veto, in turn, could be overridden by a two-thirds vote of the senate and assembly. The Council of Appointment, consisting of the governor and four senators chosen by the assembly, was to pass on nominees for state offices not otherwise provided for in the constitution.
The pages of JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends show that Jay was as active as any member of the convention in revising the draft constitution he had prepared. It is clear that the plan of government reported to the convention in March 1777 did not represent Jay’s ideal for state government but was merely intended as a practical base for debate. On the floor of the convention, Jay was quite ready to propose several items that it had seemed inadvisable to include in the committee draft.
There was, for example, his proposal for voting by ballot, as contrasted to viva voce methods. Abraham Yates Jr. was a strong advocate for voting by ballot, whereas Gouverneur Morris opposed it absolutely. On 6 April, Jay proposed and won the adoption of an amendment that provided that “a fair experiment be made” of ballots in senate and assembly elections “as soon as may be after the termination of the present war.” This amendment provided that if the “experiment” proved unsuccessful, the legislature might reinstitute viva voce voting.20
Despite the central role he had played, Jay was unable to remain at the convention until debates on the constitution were completed. On 17 April he was called away to attend his dying mother at Fishkill. Paradoxically, it was that very absence of Jay during the last three days of consideration of the new state government that gave him a subsequent opportunity to spell out his views on the New York Constitution. After approving the final version of the constitution on 20 April, the convention named a committee to prepare a “plan for organizing and establishing the government agreed to by this Convention.” Jay, Robert R. Livingston, John Morin Scott, Gouverneur Morris, Abraham Yates, and John Sloss Hobart were named to this panel. At the same time the convention ordered one of its secretaries to travel to Fishkill to arrange for the printing of three thousand copies of the new constitution.21
John McKesson (c. 1735–98), the secretary designated to supervise the printing, and John Sloss Hobart, of the committee on the plan for organizing the government, arrived in Fishkill shortly after completion of work on the constitution, and both conferred with Jay. Jay’s reactions to the final version of the constitution were quickly reported to the convention in letters from McKesson and Robert Benson (1739–1823). Jay’s criticisms centered on important details in the organization of the state court system and on the method of electing senators. On 19 April, Abraham Yates Jr., Robert R. Livingston, and Gouverneur Morris had joined in moving and seconding a series of motions that altered the judiciary plan as it had stood when Jay left Kingston. After their amendments had been adopted, the right of designating the clerks of state courts was removed from the Council of Appointment and placed in the hands of the judges of the respective courts. Further, attorneys were required to “be appointed by the court and licensed by the first judge of the court in which they shall respectively plead or practise, and be regulated by the rules and orders of the said courts.”22
John Sloss Hobart reported Jay’s objections to the twenty-seventh article on the appointment of clerks in a letter from Fishkill dated 24 April 1777:
Mr. Jay is Exceedingly unhappy about the 27th paragraph of the form of Government which puts the appointment of the Clerks of Courts in the power of the respective Judges. I do not recollect to have seen [him] so much dissatisfied about any other part of it. He alledges that ’tis puting in the power of the respective Judges to provide for Sons, Brothers, creatures, Dependants, &ca. That it will prevent obtaining Evidence against the most wicked Judge should such be appointed. Corrupt Bargains may be made for appointments to those offices. If the Tenor of the office should render it too precarious to be purchased yet the grantee may appoint upon conditions to receive part of the profits. By the second sentence of the paragraph every attorney & councellor must be licensed in every court in the state in which he may incline to practice. . . . As Mr. Jay from the state of the Family cannot go to convention immediately & says he will give notice and move for the reconsideration of the 27th paragraph as soon as he shall arive at Kingston that the Records may at least bear his Testimony against it. Would it not be best to reconsider the paragraph immediately & if any amendment should be made it might arrive here on Saturday. . . .23
Jay’s objections to the rules for licensing attorneys and his displeasure with the constitution’s provisions for the election of senators were apparently outlined in a letter from John McKesson to Robert Benson that has not been located but which is described in detail below.
The first letter printed below is the response of Jay’s friends and colleagues, Robert R. Livingston and Gouverneur Morris, to reports from Hobart and McKesson of Jay’s criticisms of the convention’s handiwork. Here and in Jay’s reply, readers have an unusual opportunity to glimpse the workings of New York’s convention of 1777 and to sense the conflicts that arose among even such close friends and allies as Jay, Morris, and Livingston. Jay’s letter also reveals what he wished had been included in the new constitution: an oath of allegiance to be sworn by all persons holding offices of government, a clause against the continuance of domestic slavery, and a clause in support of the encouragement of literature.
Privately Jay, recognizing how delicately balanced the constitution was, retrospectively observed that “another turn of the winch would have cracked the cord.”24 Despite any reservations he had, Jay was particularly concerned that the new government be recognized as the legitimate government of the state of New York and that all informal mechanisms of government cease. On 17 July, he successfully moved that George Clinton, the newly elected governor, be requested to appear before the Council of Safety to take his oath of office and that the “executive powers of the State should be surrendered to the Governor.”25 Another issue that concerned Jay was the appointment of certain offices under the old form of government. The offices of chancellor, attorney general, and chief justice and judges of the supreme court were elected by the convention on 3 May. Jay was elected chief justice of the New York State Supreme Court of Judicature, defeating his old antagonist John Morin Scott by four votes. Robert R. Livingston defeated Scott in the race for chancellor by six votes. On 9 May, the council decreed that these appointments be approved by the Council of Appointment at their first session.26
Jay was particularly concerned that an informally established Council of Safety was allowed to continue to function as the government following the flight of the legislature after the burning of Kingston in 15–17 October 1777. Jay, in a letter to Philip Schuyler, noted that “Our wise ones however for certain Reasons have suffered the Constitution to lay dormant, and Efforts have been made to postpone its organization.”27 The legislature did not meet again until January 1778. In May 1778, much to Jay’s dismay, the legislature merely reaffirmed the actions of the Council of Safety. On 21 October 1778, he wrote to Gouverneur Morris with palpable disgust that “one of the last bills passed by the legislature last spring was for confirming all the proceedings of the pretended and self-constituted Council of safety, and that too in the gross, without even having read them.”28
Despite his reservations about details, Jay’s public position was one of enthusiastic endorsement of the constitution. Sitting as chief justice, he informed the grand jury of Ulster County on 9 September 1777, when the first court under the new constitution convened, of the solid merits of that document and the new governmental structure that it established. He singled out its respect for “those great and equal rights of human nature, which should forever remain inviolate in every society,” and for the “adequate security” given “to the rights of conscience and private judgment,” but described as wise the provision that would not construe liberty of conscience “to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State.”29
1 . JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, D.C., 1904–37) description ends , 4: 342, 357–58.
2 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 460, 462–63.
3 . JJ ’s colleagues on the committee on the constitution were: Abraham Yates Jr., the chairman, Gouverneur Morris, Robert R. Livingston, William Duer, John Sloss Hobart, John Morin Scott, Robert Yates, Henry Wisner, William Smith of Suffolk County, John Broome, Charles De Witt, and Samuel Townsend. James Duane was added to the committee on 28 Sept. On 12 Aug., JJ and Livingston were asked to turn to work on the plan of government, unless “your presence is absolutely necessary in the secret committee.” JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 552, 568, 651.
4 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 594, 625, 649, 651.
5 . PPGC description begins Public Papers of George Clinton, First Governor of New York (10 vols.; Albany, N.Y., 1899–1914) description ends , 1: 384.
6 . William Smith, Memoirs description begins William H. W. Sabine, ed., Historical Memoirs, of William Smith, Historian of the Province of New York, Member of the Governor’s Council and Last Chief Justice of That Province Under the Crown, Chief Justice of Quebec (2 vols.; New York, 1956–58) description ends , 1: 58.
7 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 749; Lincoln, Constitutional Hist. of N.Y. description begins Charles Z. Lincoln, The Constitutional History of New York (5 vols.; Rochester, N.Y., 1906) description ends , 1: 494.
8 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 833.
9 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 834–98.
10 . WJ description begins William Jay, ed., The Life of John Jay: With Selections from His Correspondence and Miscellaneous Papers (2 vols.; New York, 1833) description ends , 1: 69.
11 . Nathaniel Carter and William Stone, eds., Reports of the Proceedings and Debates of the Convention of 1821 (Albany, 1821), 692. See also Young, Democratic Republicans description begins Alfred F. Young, The Democratic Republicans of New York (Chapel Hill, N.C., 1967) description ends , 17, 18.
12 . Lincoln, Constitutional Hist. of N.Y. description begins Charles Z. Lincoln, The Constitutional History of New York (5 vols.; Rochester, N.Y., 1906) description ends , 1: 501ff.
13 . Mason, Road to Independence description begins Bernard Mason, The Road to Independence (Lexington, Ky., 1967) description ends , 227–28.
14 . Lester J. Cappon, ed., The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams (2 vols.; Chapel Hill, N.C., 1959), 2: 596–99; Charles Francis Adams, ed., The Works of John Adams, Second President of the United States (10 vols.; Freeport, N.Y., 1969), 4: 191.
15 . The genesis of Adams’s ideas about state governments is described in Adams, Diary description begins Lyman H. Butterfield et al., eds., Diary and Autobiography of John Adams (4 vols.; Cambridge, Mass., 1961) description ends , 3: 351–59.
16 . Livingston to Philip Schuyler, 2 Oct. 1776, NN : Schuyler.
17 . Abraham Yates Jr., 23 Feb. 1789, NN : “Rough Hewers.”
18 . New York State Constitution, 1777, articles 7, 10, 17, and 20; Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill, N.C., 2005), 174–76.
19 . Young, Democratic Republicans description begins Alfred F. Young, The Democratic Republicans of New York (Chapel Hill, N.C., 1967) description ends , 19.
20 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 866–67.
21 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 892–98.
22 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 889–90.
23 . Misdated 24 “March,” Cal. of Hist. Mss. description begins Calendar of Historical Manuscripts, Relating to the War of the Revolution, in the Office of the Secretary of State, Albany, N.Y. (2 vols.; Albany, N.Y., 1868) description ends , 1: 678–79.
24 . Cited by George Pellew, John Jay (Boston and New York, 1894), quoting William Jay.
25 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 1007.
26 . JPC description begins Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York (2 vols.; Albany, N.Y., 1842) description ends , 1: 910, 917; see also, below, Richard Morris to JJ, 12 July 1777.