Meantime the Chief Justice was returning home from Vermont by way of Albany. At Lansingburgh the people met him, and from thence to New York public addresses and public dinners were followed with the roar of artillery and the shouts of the populace. "Though abuse of power may for a time deprive you and the citizens of their right," said one committee, "we trust the sacred flame of liberty is not so far extinguished in the bosoms of Americans as tamely to submit to the shackles of slavery, without at least a struggle to shake them off."[66] Citizens of New York met him eight miles from the city, and upon his arrival, "the friends of liberty" condemned the men who would deprive him of the high office "in contempt of the sacred voice of the people, in defiance of the Const.i.tution, and in violation of the uniform practice and settled principles of law."[67]

[Footnote 66: William Jay, _Life of John Jay_, Vol. 1, p. 290.]

[Footnote 67: _Ibid._, p. 292.]

During these days of excitement, Jay conducted himself with remarkable forbearance and dignity. It was the poise of Washington. "The reflection that the majority of electors were for me is a pleasing one," he wrote his wife; "that injustice has taken place does not surprise me, and I hope will not affect you very sensibly. The intelligence found me perfectly prepared for it. A few years more will put us all in the dust, and it will then be of more importance to me to have governed myself than to have governed the State."[68] This thought influenced his conduct throughout. When armed resistance seemed inevitable, he raised his voice in opposition to all feeling.

"Every consideration of propriety forbids that difference in opinion respecting candidates should suspend or interrupt that natural good humour which harmonises society, and softens the asperities incident to human life and human affairs."[69] At a large dinner on the 4th of July, Jay gave the toast: "May the people always respect themselves, and remember what they owe to posterity;" but after he had retired, the banqueters let loose their tongues, drinking to "John Jay, Governor by voice of the people," and to "the Governor (of right) of the State of New York."

[Footnote 68: _Ibid._, p. 289.]

[Footnote 69: _Ibid._, p. 293.]

Clinton entered upon his sixth term as governor amidst vituperation and obloquy. He was known as the "Usurper," and in order to reduce him to a mere figurehead, the Federalists who controlled the a.s.sembly, led by Josiah Ogden Hoffman, the brilliant New York lawyer, now proposed to choose a new Council of Appointment, although the term of the old Council had not yet expired. The Const.i.tution provided that the Council should hold office one year, and that the Governor, with the advice of the Council, should appoint to office. Up to this time such had been the accepted practice. Nevertheless, the Federalists, having a majority of the a.s.sembly, forced the election of a Council made up entirely of members of their own party, headed by Philip Schuyler, the veteran legislator and soldier, and then proceeded to nominate and confirm Egbert Benson as a judge of the Supreme Court. Clinton, as governor and a member of the Council, refused to nominate Benson, insisting that the exclusive right of nomination was vested in him.

Here the matter should have ended under the Const.i.tution as Jay interpreted it; but Schuyler held otherwise, claiming that the Council had a concurrent right to nominate. He went further, and decided that whenever the law omitted to limit the number of officers, the Council might do it, and whenever an officer must be commissioned annually, another might be put in his place at the expiration of his commission.

This would give the Council power to increase at will the number of officials not otherwise limited by law, and to displace every anti-Federalist at the expiration of his commission.

Clinton argued that the governor, being charged under the Const.i.tution with the execution of the laws, was vested with exclusive discretion as to the number of officers necessary to their execution, whereas, if left to one not responsible for such execution, too many or too few officials might be created. With respect to the continuation of an inc.u.mbent in office at the pleasure of the Council, "the Const.i.tution did not intend," he said, "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 to improper considerations."[70] This was good reasoning and good prophecy; but his protests fell upon ears as deaf to a wise policy as did the protests of Jay's friends when the board of canva.s.sers counted Jay out and Clinton in.

[Footnote 70: Jabez D. Hammond, _Political History of New York_, Vol.

1, p. 84.]

The action of the Council of Appointment was a stunning blow to Clinton. Under Jay's const.i.tution, every officer in city, county, and State, civil and military, save governor, lieutenant-governor, members of the Legislature, and aldermen, could now be appointed by the Council regardless of the Governor; and already these appointments mounted up into hundreds. In 1821 they numbered over fifteen thousand.

Thus, as if by magic, the Council was turned into a political machine.

Under this arrangement, a party only needed a majority of the a.s.sembly to elect a Council which made all appointments, and the control of appointments was sufficient to elect a majority of the a.s.sembly. Thus it was an endless chain the moment the Council became a political machine, and it became a political machine the moment Philip Schuyler headed the Council of 1793.

This arbitrary proceeding led to twenty years of corrupt methods and political scandals. Schuyler's justification was probably the conviction that poetic justice required that Clinton, having become governor without right, should have his powers reduced to their lowest terms; but whatever the motive, his action was indefensible, and his reply that the Governor's practices did not correspond to his precepts fell for want of proof. Clinton had then been in office seventeen years, and, although he took good care to select members of his own party, only one case, and that a doubtful one, could be cited in support of the charge that appointments had been made solely for political purposes.

In a published address, on January 22, 1795, Governor Clinton declined to stand for re-election in the following April because of ill health and neglected private affairs. Included in this letter was the somewhat apocryphal statement that he withdrew from an office never solicited, which he had accepted with diffidence, and from which he should retire with pleasure. The reader who has followed the story of his career through the campaigns of 1789 and 1792 will scarcely believe him serious in this declaration, although he undoubtedly retired with pleasure. At the time of his withdrawal, he had an attack of inflammatory rheumatism, but he was neither a sick man nor an old one, being then in his fifty-fifth year, with twelve years of honourable public life still before him. It is likely the reason in the old rhyme, "He who fights and runs away, lives to fight another day," had more to do with his retirement than shattered health and crippled fortune. Defeat has never been regarded helpful to future political preferment, and this shrewd reader of the signs of the times, his ambition already fixed on higher honours and more exalted place, saw the coming political change in New York as clearly and unmistakably as an approaching storm announced itself in an increase of his rheumatic aches.

CHAPTER VII

RECOGNITION OF EARNEST MEN

1795-1800

With Clinton out of the race for governor in 1795, his party's weakness discovered itself in the selection of Chief Justice Robert Yates, Hamilton's coalition candidate in 1789. It was a makeshift nomination, since none cared to run after Clinton's declination sounded a note of defeat. Yates' pa.s.sion for office led him into strange blunders. He seemed willing to become the candidate of any party, under any conditions, at any time, if only he could step into the official shoes of George Clinton. He was excusable in 1789, perhaps, when the way opened up a fair chance of success, but in 1795 his ambition subjected him to ridicule as well as to humiliation. It was said derisively that he was defeated, although every freeholder in the State had voted for him.

The Federalists were far from unanimous in their choice of John Jay.

He had not yet returned from England, whither Washington had sent him in the preceding year to negotiate a treaty to recover, among other things, compensation for negroes who followed English troops across the Atlantic at the close of the war; to obtain a surrender of the Western military posts not yet evacuated; and to secure an article against impressments. It was believed that a storm of disapproval would greet his work, and the timid ones seriously questioned the expediency of his nomination. The submission of the treaty had already precipitated a crisis in the United States Senate, and while it might not be ratified and officially promulgated before election, grave danger existed of its clandestine publication by the press. Hamilton, however, insisted, and Jay became the nominee. "It had been so decreed from the beginning," wrote Egbert Benson.

The campaign that followed was featureless. Chief Justice Yates aroused no interest, and Chief Justice Jay was in England. From the outset, Jay's election was conceded; and a canva.s.s of the votes showed that he had swept the State by a large majority. In 1789 Clinton received a majority of 489; in 1792 the canva.s.sers gave him 108; but in 1795 Jay had 1589.[71]

[Footnote 71: John Jay, 13,481; Robert Yates, 11,892. _Civil List, State of New York_ (1887), p. 166.]

What would have happened had the treaty been published before election, fills one with interested conjecture. Its disclosure on July 2, the day after Jay's inauguration, turned the applause of that joyous occasion into the most exasperating abuse. Such a sudden and tempestuous change in the popularity of a public official is unprecedented in the history of American politics. In a night the whole State was thrown into a ferment of intense excitement, the storm of vituperation seeming to centre in New York city. Jay was burned in effigy; Hamilton was struck in the face with a stone while defending Jay's work; a copy of the treaty was burned before the house of the British Minister; riot and mob violence held carnival everywhere.

Party spirit never before, and never since, perhaps, ran so high. One effigy represented Jay as saying, while supporting a pair of scales, with the treaty on one side and a bag of gold on the other, "Come up to my price, and I will sell you my country." Chalked in large white letters on one of the princ.i.p.al streets in New York, appeared these words: "d.a.m.n John Jay! d.a.m.n every one that won't d.a.m.n John Jay!! d.a.m.n every one that won't put lights in his windows and sit up all night d.a.m.ning John Jay!!!"[72] This revulsion of public sentiment was not exactly a tempest in a teapot, but it proved a storm of limited duration, the elections in the spring of 1796 showing decided legislative gains for the Federalists.

[Footnote 72: John Jay, _Second Letter on Dawson's Federalist_, N.Y., 1864, p. 19.]

Hamilton divined the cause of the trouble. "There are three persons,"

he wrote,[73] "prominent in the public eye as the successor of the President--Mr. Adams, Mr. Jay, and Mr. Jefferson.... Mr. Jay has been repeatedly the object of attacks with the same view. His friends, as well as his enemies, antic.i.p.ated 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. The peculiar circ.u.mstances which have attended the two last elections for governor of this State have been of a nature to give the utmost keenness to party animosity. It was impossible that Mr. Jay should be forgiven for his double, and, in the last instance, triumphant success; or that any promising opportunity of detaching from him the public confidence, should pa.s.s unimproved.... Trivial facts frequently throw light upon important designs. It is remarkable that in the toasts given on July 4, 1795, whenever there appears a direct or indirect censure of the treaty, it is pretty uniformly coupled with compliments to Mr. Jefferson, and to our late governor, Mr. Clinton, with an evident design to place those gentlemen in contrast to Mr. Jay, and, decrying him, to elevate them. No one can be blind to the finger of party spirit, visible in these and similar transactions. It indicates to us clearly one powerful source of opposition to the treaty."

[Footnote 73: Hamilton's _Camillus_, July 23, 1795, _Works_, Vol. 4, p. 371.]

The treaty was undoubtedly a disappointment to the country, and not greatly pleasing to Washington. Perhaps Jay said the best thing that could be said in its favour: "One more favourable was not attainable."

The thing he was sent especially to do, he failed to accomplish, except the evacuation of the posts, and a concession as to the West Indian trade, which the Senate rejected. Nevertheless the country was greatly and permanently benefited. The treaty acquired extradition for criminals; it secured the collection of debts barred by the Revolution, amounting to ten million dollars; it established the principle that war should not again be a pretext for the confiscation of debts or for the annulment of contracts between individuals; and it avoided a war with England, for which the United States was never more unprepared. "As the first treaty negotiated under the new government,"

says John W. Foster, "it marked a distinct advance in international practice."[74] In a recent biography of Andrew Jackson, Professor Sumner says: "Jay's treaty was a masterpiece of diplomacy, considering the times and the circ.u.mstances of this country." Even the much-criticised commercial clause, "the entering wedge," as Jay called it, proved such a gain to America, that upon the breaking out of war in 1812, Lord Sheffield declared that England had "now a complete opportunity of getting rid of that most impolitic treaty of 1794, when Lord Grenville was so perfectly duped by Jay."[75]

[Footnote 74: _A Century of American Diplomacy_, p. 165.]

[Footnote 75: To Mr. Abbott, November 6, 1812, _Correspondence of Lord Colchester_, Vol. 2, p. 409.]

John Jay's first term as governor was characteristically cautious and conservative. He began with observing the proprieties, gracefully declining the French Consul's invitation to a republican entertainment, and courageously remaining at his post during the yellow fever epidemic of 1795. With equal ease he settled the growing conflict between the severity of the past and the sympathy of the present, by changing the punishment in cases of ordinary felony, from death to imprisonment. Up to that time men might have been executed for stealing a few loaves of high-priced bread to relieve the sufferings of a hungry family. Under Jay's humane plea for mercy the death penalty was limited to treason, murder, and stealing from a church. A quarter of a century pa.s.sed before Sir James Mackintosh succeeded in carrying a similar measure through the British Parliament.

In his first message Jay recommended neither the abolition of slavery, nor the discontinuance of official changes for political reasons, "since the best and most virtuous men," he said, "must, in the distribution of patronage, yield to the influence of party considerations." As the only important questions before him just then involved the freedom of slaves and reform in the civil service, his silence as to the one and his declaration as to the other were certainly sufficient to allay any suspicion that he was to become a radical reformer. He did recommend a legislative interpretation of the Const.i.tution relating to the governor's exclusive right to nominate to office; but in the blandest and most complimentary words, the Legislature invited the Governor to let well enough alone. "The evidence of ability, integrity and patriotism," so the answer ran, "which has been invariably afforded by your conduct in the discharge of the variety of arduous and important trusts, authorise us to antic.i.p.ate an administration conducive to the welfare of your const.i.tuents." This amiable answer betrayed the deft hand of Ambrose Spencer, who, to make it sweeter and more acceptable, moved the insertion of the word "invariably."[76] Thus ended the suggestion of a law that might have undone the mischief of Schuyler, and prevented the scandal and corrupt methods that obtained during the next two decades.

At least, this is the thought of a later century, when civil service reform has sunk a tap-root into American soil, still frosty, perhaps, yet not wholly congealed as it seems to have been one hundred years ago.

[Footnote 76: Jabez D. Hammond, _Political History of New York_, Vol.

1, p. 97.]

Jay's administration might be called the reward days of earnest, able men, whose meritorious service became their pa.s.sport to office. Upon the retirement in 1798 of Robert Yates and John Sloss Hobart from the Supreme bench, he appointed James Kent and Jacob Radcliff. If Jay had never done anything else, the appointment of Kent would immortalise him, just as the selection of John Marshall placed a halo about the head of President Adams. Kent, now thirty-five years old, a great lawyer and a strong partisan, had the conservatism of Jay, and held to the principles of Hamilton. He was making brilliant way in politics, showing himself an administrator, a debater, and a leader of consummate ability; but he steadily refused to withdraw from the professional path along which he was to move with such distinction.

Until Kent's appearance, the administration of the law had been inefficient and unsatisfactory. Men of ability had occupied the bench; but the laborious and business methods which subsequently gave strength and character to the court, had not been applied. The custom of writing opinions in the most important cases did not then obtain, while the principles and foundation of the law were seldom explored.

But Kent began at once, after a most laborious examination of the cases and the law, to bring the written opinions which enrich the reports of Caines and Johnson, to the consultations of the judges, thus setting an example to his a.s.sociates, and opening the way for that admirable and orderly system of jurisprudence that has adorned the judiciary of New York for more than a century. The men of the older school had had their day. The court of Hobart was closed; the age of Kent had opened.

Radcliff, the other judicial appointee, was not a new name in 1798; but it was destined to become dearer to every lover of a chancery lawyer. He had a natural gift for chancery, and no natural inclination whatever for politics or the bench. So, after serving a single term in the a.s.sembly, two years as an a.s.sistant attorney-general, and six years on the Supreme Court, he returned to the practice, to which he devoted the remaining forty years of his life, save when holding the office of mayor of New York in 1810, and again in 1815 during the brief retirement of DeWitt Clinton. Wherever he appeared, Radcliff's erect, dignified bearing and remarkably handsome face, illuminated with large eyes and a highly intellectual expression, marked him as a man of distinction. He set the custom of dictating bills in chancery to an amanuensis, doing it with such accuracy that a word had seldom to be changed. Of the same age as Kent, he must have been of great help to that distinguished jurist, had he continued with the court.

While hovering somewhat uncertain between the bench and the bar, he removed to New York City, where the opportunities for one of his gifts soon settled the question.

Other appointments of Jay were equally satisfactory. The comptrollership of state, recently created, went to Samuel Jones in return for having patiently worked out this more perfect method of controlling and disbursing state funds. Ambrose Spencer became an a.s.sistant attorney-general, and the appointment of Rufus King as minister to England made room for the election of John Lawrence to the United States Senate. Lawrence had little claim, perhaps, to be entered in the cla.s.s with Rufus King, since he was neither leader nor statesman; but he had been the faithful adjutant-general of Washington, and a steady, fearless supporter of Hamilton. Lawrence, an Englishman by birth, had settled in New York at an early period in life, and by his marriage to the daughter of Alexander McDougall, quickly came into conspicuous sympathy with the radical wing of the patriotic party. He will always be remembered in history as judge-advocate of the court that tried Major Andre. He held office almost continuously from 1775 until his death in 1810, serving eight years in the army, one in the State Senate, six in Congress, four as judge of the United States District Court, and four as a United States senator, closing his honourable career as president pro tem. of that body.

As a rebuke to Aaron Burr's snap game so successfully played in 1791, Philip Schuyler succeeded him in the United States Senate in 1797, an event that must have sweetened the closing years of the Revolutionary veteran. But Schuyler was now a sick man, and in January, 1798, he resigned the senatorial toga to others, upon whose shoulders it rested briefly, and possibly with less ease and grace. John Sloss Hobart wore it for three months. After him, for ten months, came William North, followed by James Watson, who, in turn, resigned in March, 1800. Thus, in the short period of thirty-six months, four men tasted the sweets of the exalted position so brilliantly filled by the erratic grandson of Jonathan Edwards. North and Watson were men of certain ability and certain gifts. Both had been soldiers. North had followed Arnold to Quebec, had charged with his regiment at Monmouth, had served with credit upon Baron Steuben's staff,[77] and had acquitted himself with honour at Yorktown. He belonged to that coterie of brilliant young men, noted for bravery and endurance, who quickly found favour with the fighting generals of the Revolution. Watson resigned his captaincy in 1777, and engaged successfully in mercantile pursuits, subsequently entering the a.s.sembly with North, the former becoming speaker in 1794 and the latter in 1795 and 1796. At the time of North's election to the United States Senate, Watson was a member of the State Senate.

Like Lawrence, both were perfervid Federalists, zealous champions of Hamilton, and profound believers in the wisdom of minimising, if not abrogating, the rights of States.

[Footnote 77: At twenty-two years of age, while witnessing the disgraceful rout of General Lee at Monmouth, North attracted the attention of Steuben, whose tactics and discipline the young officer subsequently introduced throughout the Continental army. The cordiality existing between the earnest aide and the brave Prussian, so dear to his friends, so formidable to his enemies, ripened into an affectionate regard that recalls the relation between Washington and Hamilton. After the war, with an annuity of twenty-five hundred dollars and sixteen thousand acres of land in Oneida County, the gift of New York, Steuben built a log house, withdrew from society, and played at farming, until in 1794 his remains were borne to the spot, not far from Trenton Falls, where stands the monument that bears his name. The faithful North visited and cared for him to the end, and under the terms of the will parcelled out the great estate among his tenants and old staff officers.]

Watson's resignation from the United States Senate enabled the Federalists to elect Gouverneur Morris just before the political change in 1800 swept them from power. Morris was a fit successor to Schuyler. His family had belonged to the State for a century and a half. The name stood for tradition and conservatism--an embodiment of the past amid the changes of revolution. His home near Harlaem, an estate of three thousand acres, with a prospect of intermingled islands and water, stretching to the Sound, which had been purchased by a great-grandfather in the middle of the preceding century, reflected the substantial character of its founder, a distinguished officer in Cromwell's army.

Gouverneur was the child of his father's second marriage. The family,[78] especially the older children, of whom Richard, chief justice of the State, was the third and youngest boy, resented the union, making Gouverneur's position resemble that of Joseph among his brethren. Twenty-two years intervened between him and Richard. Before the former left the schoolroom, the latter had succeeded his father as judge of the vice-admiralty; but as for being of any a.s.sistance to the fatherless lad Richard might as well have been vice-admiral of the blue, sailing the seas. There would be something pathetic in this estrangement, if independence and self-reliance had not dominated the youngest son as well as the older heirs of this n.o.ble family. Lewis, the eldest, served in the Continental Congress and became a signer of the Declaration of Independence, while Staats Long, the second son, wandered to England, married the Countess of Gordon, became a general in the British army, and a member of Parliament in the days of Lord North and Charles James Fox. It was a strange coincidence, one brother resisting Parliament in Congress, the other resisting Congress in Parliament.

[Footnote 78: There was a slight vein of eccentricity running through the Morris family, with its occasional outcroppings accentuated in the presence of death. The grandfather, distinguished as chief justice of New York and governor of New Jersey, forbade in his will the payment of any one for preaching his funeral sermon, but if a person volunteered, he said, commending or blaming his conduct in life, his words would be acceptable. Gouverneur's father desired no notice of his dissolution in the newspapers, not even a simple announcement of his death. "My actions," he wrote, "have been so inconsiderable in the world, that the most durable monument will not perpetuate my folly while it lasts." It is evident that Gouverneur did not inherit from him the almost b.u.mptious self-confidence which was to mar more than help him. That inherent defect came from his mother, who gave him, also, a brilliancy and versatility that other members of the family did not share, making him more conspicuously active in high places during the exciting days of the Revolution. Gouverneur Morris was a national character; Richard and Lewis belonged exclusively to New York.]

The influences surrounding Gouverneur's youth were decidedly Tory. His mother warmly adhered to George the Third; his professors at King's taught loyalty to the Crown; his distinguished tutor in the law, William Smith, New York's Tory historian, magnified the work and the strength of Parliament; while his a.s.sociates, always his mother's welcomed guests at Morrisania, were British officers, who talked of Wolfe and his glorious struggles for England. But there never was a moment from the time Gouverneur Morris entered the Provincial Congress of New York on May 22, 1775, at the age of twenty-three, that he was not conspicuously and brilliantly active in the cause of America.

Whenever or wherever a Revolutionary body was organised, or for whatever purpose, Congress, Convention, or Committee of Safety, he became a member of it. Six years younger than Jay, and six years older than Hamilton, he seemed to complete that remarkable New York trio, so fertile in mental resources and so successful in achievement. He did not, like Jay, outline a const.i.tution, but he believed, with Jay, in balancing wealth against numbers, and in contending for the protection of the rights of property against the spirit of democracy. It is interesting to study these young men, so different in temperament, yet thinking alike and acting together for a quarter of a century--Jay, gentle and modest; Hamilton, impetuous and imperious; Morris, self-confident and conceited; but on all essential matters of state, standing together like a tripod, firm and invincible. In his distrust of western influences, however, Morris was more conservative than Jay or Hamilton. He was broad and liberal toward the original thirteen States, but he wanted to subordinate the balance of the country to their control. He regarded the people who might seek homes west of the Alleghanies with something of the suspicion Jay entertained for the propertyless citizens of New York. The day would come, he believed, when those untutored, backwoods settlers would outnumber their brethren on the Atlantic coast, and he desired some provision in the Const.i.tution which would permit the minority to rule such a majority.

If these views shrivelled his statesmanship, it may be said to his credit that they discovered a prophetic gift most uncommon in those days, giving him the power to see a great empire of people in the fertile valley of the Mississippi and its tributaries.[79] Fifteen years later Robert R. Livingston expressed the belief that not in a century would a white man cross the Father of Waters.

[Footnote 79: Gouverneur Morris seemed to find history-making places.