CHAPTER II
MAKING A STATE CONSTITUTION
1777
It was early spring in 1777 before John Jay, withdrawing to the country, began the work of drafting a constitution. His retirement recalls Cowper's sigh for
"... a lodge in some vast wilderness,
Some boundless contiguity of shade,
Where rumours of oppression and deceit,
Of unsuccessful and successful war,
Might never reach me more."
Too much and too little credit has been given Jay for his part in the work. One writer says he "entered an almost unexplored field." On the other hand, John Adams wrote Jefferson that Jay's "model and foundation" was his own letter to George Wythe of Virginia. Neither is true. The field was not unexplored, nor did John Adams' letter contain a suggestion of anything not already in existence, except the election of a Council of Appointment, with whose consent the governor should appoint all officers. His plan of letting the people elect a governor came later. "We have a government to form, you know," wrote Jay, "and God knows what it will resemble. Our politicians, like some guests at a feast, are perplexed and undetermined which dish to prefer;"[5] but Jay evidently preferred the old home dishes, and it is interesting to note how easily he adapted the laws and customs of the provincial government to the needs of an independent State.
The legislative branch of the government was vested in two separate and distinct bodies, called the Assembly and the Senate. The first consisted of seventy members to be elected each year; the second of twenty-four members, one-fourth to be elected every four years. Members of the Assembly were proportioned to the fourteen counties according to the number of qualified voters. For the election of senators, the State was divided into "four great districts," the eastern being allowed three members, the southern nine, the middle six and the western six. To each house was given the powers and privileges of the Provincial Assembly of the Colony of New York. In creating this Legislature, Jay introduced no new feature. The old Assembly suggested the lower house, and the former Council or upper house of the Province, which exercised legislative powers, made a model for the Senate.[6] In their functions and operations the two bodies were indistinguishable.[7]
The qualifications of those who might vote for members of the Legislature greatly restricted suffrage. Theoretically every patriot believed in the liberties of the people, and the first article of the Constitution declared that "no authority shall, on any pretence whatever, be exercised over the people of the State, but such as shall be derived from and granted by them." This high-sounding exordium promised the rights of popular sovereignty; but in practice the makers of the Constitution, fearing the passions of the multitude as much as the tyranny of kings, deemed it wise to keep power in the hands of a few. A male citizen of full age, possessing a freehold of the value of twenty pounds, or renting a tenement of the yearly value of forty shillings, could vote for an assemblyman, and one possessing a freehold of the value of one hundred pounds, free from all debts, could vote for a senator.
But even these drastic conditions did not satisfy the draftsman of the Constitution. The legislators themselves, although thus carefully selected, might prove inefficient, and so, lest "laws inconsistent with the spirit of this Constitution, or with the public good, may be hastily or unadvisedly passed," a Council of Revision was created, composed of the governor, chancellor, and the three judges of the Supreme Court, or any two of them acting with the governor, who "shall revise all bills about to be passed into laws by the Legislature." If the Council failed to act within ten days after having possession of the bill, or if two-thirds of each house approved it after the Council disapproved it, the bill became law. This Council seems to have been suggested by the veto power possessed by the King's Privy Council.