We have now seen how various and important had been Mr. Jay's services in the New York Congress and Convention. We have yet to describe the part he performed in framing the constitution and organizing the government of that State. Constitution-making, in our day, is not regarded as a very serious business. Frequent experiments have made all the steps of the process familiar, and the modern politician goes to this task with an assured confidence in his skill as an architect, and the fitness of his materials for the governmental edifice. But at the era of the Revolution, the construction of a government was considered as a very solemn concern; it was a novel enterprise, and the architect had to rely upon his invention rather than upon his memory. In New York there was great diversity of opinion as to the leading principles which should be incorporated into the framework of the Constitution. We have a government, you know, to form,' wrote Jay to Rutledge, and God only knows what it will resemble. Our politicians, like some guests at a feast, are perplexed and undetermined which dish to prefer.' In the next chapter we shall see what success attended the labors of Mr. Jay to temper their various tastes.

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'Life of John Jay, vol. i., p. 62.

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CHAPTER VIII.

1776-1777.

FORMATION OF THE NEW YORK CONSTITUTION.

THE great writer or painter, it has been observed, represents man in situations possible to the individual, but not common to mankind. The great lawgiver, on the contrary, regards slightly, or not at all, exceptional cases, and adapts his legislation to the actual circumstances of his time and country. He contemplates the community in the whole body of its solidity and compound mass,' and on a just apprehension of its collective condition depends all the efficacy of his measures. The merit of the framers of the several American constitutions consists in this; that they comprehended the actual necessities of the time, and the actual sentiments of the people. They saw clearly, that along with the change in the political condition of the country, other changes, not less radical, had taken place. The revolution was both political and moral. It severed the bond that united the colonies to England, and, at the same time, disinthralled the minds of the people. The superstitious reverence that 'doth hedge' and support ancient institutions, was dissipated. The unpopularity of the monarch had equally involved monarchy, and rendered any scheme of government founded on that basis wholly impracticable. Aristocracy, created by law, sustained by privilege, and made hereditary, was out of the question. The proposition would not for a moment have been entertained. The time and occasion had arrived when republican institutions were again to be inaugu

rated, and under more favorable circumstances than had hitherto attended the existence of that description of government.

But while there was a very general concurrence of opinion among the leading minds of the country as to the fundamental principles that should distinguish their future governments, there was no little diversity as to the precise forms in which those principles should be embodied. The important considerations were, as to the constitution of the several departments of statewhether the executive should be clothed with more or less power; whether the legislature should consist of a single assembly, or of two houses, whose concurrence should be necessary to the passage of any law, and whether the tenure of office should be limited to a definite period, or be held quam diu se bene gesserit.

The views of Mr. Jay upon these interesting topics will appear as we proceed to state the part he took in framing the Constitution of New York. He and his coadjutors, happily succeeded in satisfying the demands of the time, and reconciling the discordant sentiments of individuals. Mr. Adams pronounced it the best constitution that had yet been adopted. It was conformable to his ideas, as set forth in his celebrated letter to Mr. Wythe, which was published in the spring of 1776. He had apprehended, however, from the supposed politics of Mr. Jay, a different result. In a letter to Hugh Hughes, who had recently been appointed General Schuyler's Assistant Quarter-Master-General, and dated at Philadelphia, June 4th, 1776, he thus refers to Mr. Jay's presence at New York: 'I am very glad that Mr. J. is with you, and hope he will be of great service there; but will he not be for making your Governor and Counsellors for life, or during good behavior? I should dread

'Life and Works, vol. iii., p. 59.

such a Constitution in these perilous times, because however wise and brave and virtuous these rulers may be at their first appointment, their tempers and designs will be very apt to change, and then they may have it in their power to betray the people, who will have no means of redress. The people ought to have frequently the opportunity, especially in these dangerous times, of considering the conduct of their leaders, and of approving or disapproving. You will have no safety without it.'1

It may not be amiss to notice, in this place, the suggestions of another distinguished gentleman of that period, as to the future government of New York. Edward Rutledge wrote to Mr. Jay on the 24th day of November, 1776, and after recommending certain plans for the defence of the State, he makes the following observations: 'If these things be done, and that soon, your country, I think, will be safe; provided you establish a good government, with a strong executive. A pure democracy may possibly do, when patriotism is the ruling passion; but when the State abounds with rascals, as is the case with too many at this day, you must suppress a little of that popular spirit. Vest the executive powers of government in an individual, that they may have vigor, and let them be as ample as is consistent with the great outlines of freedom.' 2

We have seen in the preceding chapter that the Convention postponed the consideration of their future form of government until the 1st day of August. When that time arrived, the whole energy of the representative body was needed to provide for the common defence. A committee, however, was appointed to frame a constitution and bill of rights. It consisted of Mr. Jay, John Sloss Hobart, William Smith, William Duer, Gouverneur Mor

ris, Robert R. Livingston, John Broome, John Morin Scott, Abraham Yates, Henry Wisner, Sen., Samuel Townshend, Charles De Witt, and Robert Yates. quently Mr. Duane was added to the committee.

Subse

Mr. Jay was opposed to hastening deliberations upon so grave a subject. He thought, in the present arduous circumstances of the State, it would prove injurious; and that so serious an undertaking should await a more tranquil period. He thought they should first secure a State to govern, before they proceeded to organize a government. "He adopted the poet's motto, festinare nocet,' and considered caution as the garland of wisdom, in a movement of so high a bearing on the destinies of the republic

But different views prevailed in the Convention. It was thought that a regularly-organized government would command more respect and act with more efficiency than authority as at present constituted. Accordingly, the committee were directed to make their report on the 26th day of August; a time surely too short for digesting a system of government, unless indeed it was supposed that a constitution would burst forth, Minerva-like, from the happy conceptions of the gentleman charged with that important duty. Mr. Jay, at this time, was absent on business connected with the Secret Committee. On the 12th day of August the Convention addressed a letter to him and R. R. Livingston, directing their attendance upon the committee to form a new government, if their present engagements would permit. In the meantime, however, the Convention were informed by General Clinton of the nature of their service elsewhere, and they resolved that it would be improper to call them from it.

'Sparks. Life of Morris, vol. i., p. 120.