To John Jay from Richard Morris, 12 July 1777
From Richard Morris
Claverack, July 12th 1777
Good Sir
Three days ago going through the constitution and makeing Marginal notes for my own convenience I was greatly Surprized when I came to the 23d Secn. to find that the Judges and the Chancellor did not make a part of the Councill for the Appointt. of Officers which I always thought they did and I must Confess I neither see the propriety or Necessity for their Appt. by the Convention unless they had been by Office named of that Councill—with Submission to your Better Judgt: I much Doubt the Validity of the Appointments by the 24th. Secn., the Govr. is to Commission, The Commission will declare the Tenure. Will the Governor Commission Contrary to the Constitution, if he will not, is it not Necessary that the Appointment of the Judges Should be Conformable to the 23d. Section, it may be Answered the Necessity of the times Called for Judges, Admitt it, but will they not be Considered as Judges pro tempore, and will not the Councill for Appt. appoint de Novo. I make no doubt the Appointment will amount to an Approbation of the present Appointment.1
Since I last saw you by Conversation with some of my friends and yours, I find they are Averse to putting the Secretary and Clerk into one Hand.2 I also find that the tenure of the Secretarys Office will depend upon the Councill of Appointment. (And as it is not to be presumed they would Lessen their Own importance) I am Inclined to think it will be Annual at most Triennual, in the Present state of things I can by no Means think of Embarrassing myself with the care of the publick Records I find my Budgets with the Necessarys for myself and family Quite Unweildy Enough.— From these Several Considerations I am Come to the Determination of Adhereing to my first Resolution of Holding no Office Whatever which I informed the Congress of the Last year at Harlem with my Reasons.—3 I am much Obliged to you for your particular Attention to me and my family in this instance and Shall Remember it with pleasure and Gratitude. I am Afraid our Affairs to the North have been very Ill Conducted and I much fear I shall be Obliged to move again my son is up at fort Edward with our Militia which makes my Attendance at Home Absolutely Necessary Otherways I should have seen you at Esopus and have talked this Matter Over— My best Respects to Mrs. Jay and all friends that with you I sincerely wish you and them Health and Success and am Sir with Real Esteem Your Most Obedient Huml. Servt.
Rid. Morris
John Jay Esqr.
ALS, NNC (EJ: 12958). Endorsed.
1. The chancellor and judges of the supreme court, along with the governor, made up the Council of Revision under article 3 of the state constitution but were not members of the Council of Appointment. Under article 23, the Council of Appointment consisted of the governor and four senators elected annually by the assembly for appointing officers not otherwise provided for in the constitution. Section 24 states that the governor “commissioned officers,” both civil and military. Control of appointments to office, as well as duration in office, if not specified, was therefore lodged with the Council of Appointment, wherein the governor could vote only in the event of a tie. When JJ was governor, he found that the council handcuffed him considerably. , 1: 167, 178, 180; see also “John Jay and the New York State Constitution of 1777” (editorial note) on pp. 402–3.
JJ and the other judges agreed with Morris that their appointments in May 1777 were merely temporary until such time as the Council of Appointment could meet. When the council met in September and failed to approve or disapprove the judicial appointments, the judges declined to act on a petition of habeas corpus, stating they had no authority to do so. The assembly thereupon adopted a resolution proposed by Gouverneur Morris that the council approve officers previously chosen or appoint others in their stead. On 17 Oct. the council reappointed Robert R. Livingston chancellor, JJ chief justice, and Robert Yates and John Sloss Hobart associate justices. , 1: 577–81.
2. In May, JJ had offered Morris the positions of clerk to the state’s supreme and circuit courts. Morris may also have been under consideration for the post of secretary to the Council of Safety or clerk of one of the houses of the state legislature. The provincial convention adjourned on 13 May 1777, leaving government temporarily in the hands of the Council of Safety, with Pierre Van Cortlandt as its president and Robert Benson and John McKesson continuing as secretaries, the same posts they held in the convention. When the new legislature convened in September, they were elected clerks of the senate and assembly, respectively. McKesson later became clerk of the supreme court, and Robert Benson became secretary to Governor Clinton. See JJ to Morris, 10 May 1777, above; George Clinton to JJ, 29 Apr. 1778, below; , 1: 571–72, 574–75, 582.
3. The provincial convention resolved unanimously on 31 July 1776 that Morris be appointed judge of the high court of admiralty of New York State. Morris appeared before the convention, meeting in Harlem, on 2 Aug. 1776 and declined, stating that “from the situation of his family and property, the remainder of his life was necessary for attention to his own affairs.” , 1: 550, 553, 554. Lewis Graham was then chosen. Richard Morris did not accept any post until he succeeded JJ as chief justice in 1779.