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Subject Area: Political Theory
Topic: The American Revolution and Constitution

JAY TO LIVINGSTON AND MORRIS. 1 - John Jay, The Correspondence and Public Papers of John Jay, vol. 1 (1763-1781) [1890]

Edition used:

The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 1 (1763-1781).

Part of: The Correspondence and Public Papers of John Jay, 4 vols.

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JAY TO LIVINGSTON AND MORRIS.1

Fishkill, 29 April, 1777.

Gentlemen:

Your letter of the 26th instant was this evening delivered to me. When I was called east from Convention, a clause in the report of the form of Government had been by a very great majority agreed to instituting a council for the appointment of military and many civil officers, including clerks of courts; and though I publicly advocated and voted for that clause, you express much surprize at my disapproving a material alteration of it.

Had you retained the most distant idea of the part I took relative to the various modes proposed for the appointment of officers, I am confident you would not have asserted “that I was fully of opinion to appoint by judges of the Supreme Court, not only clerks, but all other civil officers in the Government.” Had such a representation of my opinion relative to the best mode of appointing those officers, fallen from some persons whom I could name, I should have called it very disingenuous and uncandid.

The fact was thus—The clause directing the Governor to nominate officers to the Legislature for their approbation being read and debated, was generally disapproved. Many other methods were devised by different members, and mentioned to the House merely for consideration. I mentioned several myself, and told the Convention at the time, that however I might then incline to adopt them, I was not certain but that after considering them, I should vote for their rejection. While the minds of the members were thus fluctuating between various opinions, Capt. Platt moved for the only amendment which was proposed to the House for introducing the judges. I told the House I preferred the amendment to the original clause in the report, but that I thought a better mode might be devised. I finally opposed the adoption of Capt. Platt’s amendment, and well remember that I spent the evening of that day with Mr. Morris at your lodgings, in the course of which I proposed the plan for the institution of the Council as it now stands, and after conversing on the subject, we agreed to bring it into the House the next day. It was moved and debated and carried with the only amendment that the Speaker of the General Assembly for the time being was then (to avoid the Governor’s having frequent opportunities of a casting vote) added to the Council.

As to the alteration in question, vizt., transferring the appointment of clerks, etc., of courts from the Council to the respective judges, I dislike it for many reasons which the limits of a letter will not admit of being fully enumerated and discussed.

You say that “great inconveniencies must arise from suffering clerks to be independent of such courts, and of consequence frequently ignorant, always inattentive.” If ignorance and inattention would by some necessary consequence unknown to me, characterize all such clerks as the Council (of which the Governor is President, and consisting of the Speaker of the General Assembly and four senators elected in that House) should appoint, I grant that the appointment ought to be in other hands. But I am at a loss and unable to conjecture by what subtle refinement or new improvement in the science of politics it should be discovered that a council acknowledged to be competent to the choice and appointment of the first judges of the land, was insufficient to the nomination of clerks of courts; or from whence it is to be inferred that they, by whose will and pleasure the duration of many other offices is limited by the Constitution, would either appoint or continue in office ignorant or inattentive clerks, more than ignorant or inattentive judges, sheriffs or justices of the peace. Nor can I perceive why the clerks in chancery appointed by the Council, should be more ignorant and inattentive than the examiners, who you are content should still be appointed by that body; unless ignorance and inattention be supposed less dangerous and important in the one than the other.

That clerks should be dependent is agreed on all hands. On whom? is the only question. I think not on the judges.1

Because,

The chancellor, and the judges of the Supreme Court holding permanent commissions, will be tempted not only to give those appointments to their children, brothers, relations, and favourites, but to continue them in office against the public good. You, I dare say, know men of too little probity, abilities, and industry to fill an office well, and yet of sufficient art and attention to avoid such gross misbehaviour as might justify loud clamours against them.

Besides, men who appoint others to offices, generally have a partiality for them, and are often disposed, on principles of pride as well as interest, to support them.

By the clerks of court being dependent on the judges collusion becomes more easy to be practised, and more difficult to be detected, and instead of publishing and punishing each other’s transgressions, will combine in concealing, palliating, or excusing these mutual defects or misdemeanours.

From the clerks, etc., being appointed by the Council, these advantages would result—

The Council might avail themselves of the advice of the judges without being bound by their prejudices, or interested in their designs.

Should the Council promote their favourites at the expense of the public, that body, having a new set of members every year, a bad officer thus appointed would lose his office on his patrons’ being removed from the Council.

It would avoid that odium to which that part of the Constitution will now be exposed, viz., that it was framed by lawyers, and done with design to favour the profession.

The new claims respecting the licensing of attorneys, to speak plain, is in my opinion the most whimsical, crude and indigested thing I have met with.

There will be now between thirty and forty courts in this State, and, as that clause now stands, an attorney (however well qualified and licensed by the Supreme Court) must, before he can issue a writ in a little borough or mayor’s court, obtain their license also. The reasons assigned for this seem to be: that it would be improper for one court to do this drudgery for the rest; that it would be difficult to distinguish which court it would be most proper to impose it upon; that the judges of the inferior courts might be offended at being relieved from this drudgery, thinking themselves as capable of judging of the merits of an attorney as of a cause, and that they had equal right with others to say who shall and who shall not be entitled to practise.

To say that it would be improper for one to do this drudgery for the rest, is begging the question. Other courts than the Supreme Court never had this drudgery to do; and I believe never will have in any part of the world, except in the State and by the Constitution of New York. Why the examination and licensing of attorneys should with more propriety be styled a drudgery than striking a jury, or any other business incident to the office of judge, I know not. If it be, I should think it ought not to be multiplied by thirty or forty, and then imposed on all in the State, compelling them to solicit and pay fees for admission to thirty or forty courts when one would have sufficed.

How it should be difficult to distinguish the proper court for the purpose, is to me mysterious.

The Supreme Court controls all the courts in the State which proceed according to the course of the common law, and its jurisdiction is bounded only by the limits of the State. An attorney is an officer of a common-law court. That court, therefore, which, by the Constitution, is made superior to the others, must be supposed most competent, not only to the determination of causes, but of the qualification of the attorneys who manage them.

The lesser courts cannot be deemed equally qualified for either; and, being dependent and inferior in every other respect, ought not to have concurrent, independent, or equal authority in this. Justice as well as decency forbids that a mayor and four aldermen should constitutionally have a right to refuse admission to attorneys licensed by the Supreme Court.

Whence is it to be inferred that the judges of the inferior courts, unless gratified with this novel, unprecedented power, would complain? It is not to be found among the rights enjoyed by them prior to the Revolution; and I must doubt whether, unless within this fortnight or three weeks, there was a single man in the State who ever thought of such a thing.

It would be arrogance in them to expect to be indulged in a right to examine, question, and reject the judgment of the Supreme Court respecting the qualifications of attorneys, when that very court is appointed, among other things, to correct their errors in all other cases. Nay, in this case the mere will of these little courts is to be the law; and an attorney of reputation and eminence in the Supreme Court is without remedy in case an inferior court should unjustly refuse to admit him.

According to the present system an attorney must, if he chooses to have general license, obtain admission into the Supreme Court, three mayors’ courts, thirteen inferior courts of common pleas for counties, fourteen courts of sessions for the peace, and the Lord knows how often or in how many courts of oyer and terminer and gaol delivery.

Remember that I now predict that this same clause which thus gives inferior courts uncontrolled and unlimited authority to admit as many attorneys as they please, will fill every county in the State with a swarm of designing, cheating, litigious pettifoggers, who, like leeches and spiders, will fatten on the spoils of the poor, the ignorant, the feeble, and the unwary.

The division of the State into districts for the purposes of facilitating elections, I well remember, was agreed to be referred to the Legislature; and I well remember, too, several members as well as myself were of the opinion that a short clause should be inserted in the Constitution which would give the people a claim on the Legislature for it.

The Connecticut plan of nominating or holding up senators I ever warmly espoused. I thought it bore strong marks of wisdom and sound policy; nor have I forgot that others opposed it, or that I undertook, with the leave of the House, to reduce it to writing and offer it to their consideration. The opinion that the rotatory mode of electing renders it entirely useless, I have neither heard nor can I perceive any reason for.

The difficulty of getting any governor at all, you know, has long been an apprehension of little influence on my mind, and always appeared to be founded less in fact than in a design of quickening the pace of the House.

What the secretary may have written to Mr. Benson I know not. I expressed the same sentiments to him that were inserted in my letter to Mr. Hobart, and no others.

The other parts of the Constitution I approve, and only regret that, like a harvest cut before it was all ripe, some of the grains have shrunk.

Exclusive of the clauses which I have mentioned, and which I wish had been added, another material one has been omitted, viz., a direction that all persons holding offices under the government should swear allegiance to it, and renounce all allegiance and subjection to foreign kings, princes, and states in all matters, ecclesiastical as well as civil.

I should also have been for a clause against the continuation of domestic slavery,1 and the support and encouragement of literature, as well as some other matters, though perhaps of less consequence.

Though the birth of the Constitution is, in my opinion, premature, I shall nevertheless do all in my power to nurse and keep it alive, being far from approving the Spartan law which encouraged parents to destroy such of their children as perhaps by some cross accident might come into the world misshapen.

I am, etc.,

John Jay.

To Robt. R. Livingston and Gouverneur Morris, Esqrs.

[1 ]See note to preceding letter.

[1 ]A letter in the “Calendar of New York Historical MSS.,” vol. i., pp. 678, 679, March 24, 1777, contains this reference:

“Mr. Jay is exceedingly unhappy about the 27th paragraph of the form of Government which puts the appointmt. of the clerks of courts in the power of the respective Judges. . . . He alleges that ’t is putting in their power to provide for Sons, Brothers, creatures, Dependants, &c—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,” etc.

[1 ]Such a recommendation was introduced by Gouverneur Morris and passed, but subsequently omitted. It was in the form of a call upon “the future Legislatures of the State to take the most effectual measures, consistent with the public safety and private property of individuals, for abolishing domestic slavery within the same, so that in future ages every human being who breathes the air of this State shall enjoy the privileges of a freeman.” Jay, who, on account of his mother’s illness, was absent from the Legislature during the last days of the debate, does not appear to have been aware of the clause offered by Morris. It was during Jay’s term as governor, however, that slavery was finally abolished in New York.