The third Provincial Congress, which came together in May, and before the close of its sessions was obliged to adjourn to White Plains, had to act on the Declaration of Independence, and provide for the foundation of a new state government.

Morris now put himself at the head of the patriotic party, and opened the proceedings by a long and very able speech in favor of adopting the recommendation of the Continental Congress that the colonies should form new governments. In his argument he went at length into the history and growth of the dispute with Great Britain, spoke of the efforts made in the past for reconciliation, and then showed clearly how such efforts were now not only hopeless, but also no longer compatible with the dignity and manhood of Americans. He sneered at those who argued that we ought to submit to Great Britain for the sake of the protection we got from her. "Great Britain will not fail to bring us into a war with some of her neighbors, and then protect us as a lawyer defends a suit: the client paying for it. This is quite in form, but a wise man would, I think, get rid of the suit and the lawyer together. Again, how are we to be protected? If a descent is made upon our coasts and the British navy and army are three thousand miles off, we cannot receive very great benefit from them on that occasion. If, to obviate this inconvenience, we have an army and navy constantly among us, who can say that we shall not need a little protection against them?" He went on to point out the hopelessness of expecting Great Britain to keep to any terms which would deprive Parliament of its supremacy over America: for no succeeding Parliament could be held bound by the legislation of its predecessor, and the very acknowledgment of British supremacy on the part of the Americans would bind them as subjects, and make the supremacy of Parliament legitimate. He bade his hearers remember the maxim "that no faith is to be kept with rebels;" and said: "In this case, or in any other case, if we fancy ourselves hardly dealt with, I maintain there is no redress but by arms. For it never yet was known that, when men assume power, they will part with it again, unless by compulsion." He then took up the subject of independence, showed, for the benefit of the good but timid men who were frightened at the mere title, that, in all but name, it already existed in New York, and proved that its maintenance was essential to our well-being. "My argument, therefore, stands thus: As a connection with Great Britain cannot again exist without enslaving America, an independence is absolutely necessary. I cannot balance between the two. We run a hazard in one path, I confess; but then we are infallibly ruined if we pursue the other.... We find the characteristic marks and insignia of independence in this society, considered in itself and compared with other societies. The enumeration is conviction. Coining moneys, raising armies, regulating commerce, peace, war: all these things you are not only adepts in, but masters of. Treaties alone remain, and even those you have dabbled at. Georgia you put under the ban of empire, and received her upon repentance as a member of the flock. Canada you are now treating with. France and Spain you ought to treat with, and the rest is but a name. I believe, sir, the Romans were as much governed, or rather oppressed, by their emperors, as ever any people were by their king. But emperor was more agreeable to their ears than king. [So] some, nay, many, persons in America dislike the word independence."

He then went on to show how independence would work well alike for our peace, liberty, and security. Considering the first, he laughed at the apprehensions expressed by some that the moment America was independent all the powers of Europe would pounce down on her, to parcel out the country among themselves; and showed clearly that to a European power any war of conquest in America would be "tedious, expensive, uncertain, and ruinous," and that none of the country could be kept even if it should come to pass that some little portion of it were conquered. "But I cannot think it will ever come to this. For when I turn my eyes to the means of defense, I find them amply sufficient. We have all heard that in the last war America was conquered in Germany. I hold the converse of this to be true, namely, that in and by America his Majesty's German dominions were secured.... I expect a full and lasting defense against any and every part of the earth." After thus treating of the advantages to be hoped for on the score of peace, he turns attention "to a question of infinitely greater importance, namely, the liberty of this country;" and afterwards passes to the matter of security, which, "so long as the system of laws by which we are now governed shall prevail, is amply provided for in every separate colony. There may indeed arise an objection because some gentlemen suppose that the different colonies will carry on a sort of land piracy against one another. But how this can possibly happen when the idea of separate colonies no longer exists I cannot for my soul comprehend. That something very like this has already been done I shall not deny, but the reason is as evident as the fact. We never yet had a government in this country of sufficient energy to restrain the lawless and indigent. Whenever a form of government is established which deserves the name, these insurrections must cease. But who is the man so hardy as to affirm that they will not grow with our growth, while on every occasion we must resort to an English judicature to terminate differences which the maxims of policy will teach them to leave undetermined? By degrees we are getting beyond the utmost pale of English government. Settlements are forming to the westward of us, whose inhabitants acknowledge no authority but their own." In one sentence he showed rather a change of heart, as regarded his former aristocratic leanings; for he reproached those who were "apprehensive of losing a little consequence and importance by living in a country where all are on an equal footing," and predicted that we should "cause all nations to resort hither as an asylum from oppression."

The speech was remarkable for its incisive directness and boldness, for the exact clearness with which it portrayed things as they were, for the broad sense of American nationality that it displayed, and for the accurate forecasts that it contained as to our future course in certain particulars,—such as freedom from European wars and entanglements, a strong but purely defensive foreign policy, the encouragement of the growth of the West, while keeping it united to us, and the throwing open our doors to the oppressed from abroad.

Soon after the delivery of this speech news came that the Declaration of Independence had been adopted by the Continental Congress; and Jay, one of the New York delegates to this body, and also a member of the Provincial Congress, drew up for the latter a resolution emphatically indorsing the declaration, which was at once adopted without a dissenting voice. At the same time the Provincial Congress changed its name to that of "The Convention of the Representatives of the State of New York."

These last acts were done by a body that had been elected, with increased power, to succeed the third Provincial Congress and provide for a new constitution. Just before this, Morris had been sent to the Continental Congress in Philadelphia to complain that the troops from New England were paid more largely than those from the other colonies; a wrong which was at once redressed, the wages of the latter being raised, and Morris returned to New York in triumph after only a week's absence.

The Constitutional Convention of New York led a most checkered life; for the victorious British chevied it up and down the State, hunting it in turn from every small town in which it thought to have found a peaceful haven of refuge. At last it rested in Fiskhill, such an out-of-the-way place as to be free from danger. The members were obliged to go armed, so as to protect themselves from stray marauding parties; and the number of delegates in attendance alternately dwindled and swelled in a wonderful manner, now resolving themselves into a committee of safety, and again resuming their functions as members of the convention.

The most important duties of the convention were intrusted to two committees. Of the first, which was to draft a plan for the Constitution, Morris, Jay, and Livingston were the three leading members, upon whom all the work fell; of the second, which was to devise means for the establishment of a state fund, Morris was the chairman and moving spirit. He was also chairman of a committee which was appointed to look after the Tories, and prevent them from joining together and rising; and so numerous were they that the jails were soon choked with those of their number who, on account of their prominence or bitterness, were most obnoxious to the patriots. Also a partial system of confiscation of Tory estates was begun. So greatly were the Tories feared and hated, and so determined were the attempts to deprive them of even the shadow of a chance to do harm, by so much as a word, that the convention sent a memorial, drafted by Morris, to the Continental Congress, in which they made the very futile suggestion that it should take "some measures for expunging from the Book of Common Prayer such parts, and discontinuing in the congregations of all other denominations all such prayers, as interfere with the interests of the American cause." The resolution was not acted on; but another part of the memorial shows how the Church of England men were standing by the mother country, for it goes on to recite that "the enemies of America have taken great pains to insinuate into the minds of the Episcopalians that the church is in danger. We could wish the Congress would pass some resolve to quiet their fears, and we are confident that it would do essential service to the cause of America, at least in this State."

Morris's position in regard to the Tories was a peculiarly hard one, because among their number were many of his own relatives, including his elder brother. The family house, where his mother resided, was within the British lines; and not only did he feel the disapproval of such of his people as were loyalists, on the one side, but, on the other, his letters to his family caused him to be regarded with suspicion by the baser spirits in the American party. About this time one of his sisters died; the letter he then wrote to his mother is in the usual formal style of the time, yet it shows marks of deep feeling, and he takes occasion, while admitting that the result of the war was uncertain, to avow, with a sternness unusual to him, his intention to face all things rather than abandon the patriot cause. "The worst that can happen is to fall on the last bleak mountain of America; and he who dies there in defense of the injured rights of mankind is happier than his conqueror, more beloved by mankind, more applauded by his own heart." The letter closes by a characteristic touch, when he sends his love to "such as deserve it. The number is not great."

The committee on the constitution was not ready to report until March, 1777. Then the convention devoted itself solely to the consideration of the report, which, after several weeks' discussion, was adopted with very little change. Jay and Morris led the debate before the convention, as they had done previously in committee. There was perfect agreement upon the general principles. Freehold suffrage was adopted, and a majority of the freeholders of the State were thus the ultimate governing power. The executive, judicial, and legislative powers were separated sharply, as was done in the other States, and later on in the Federal Constitution as well. The legislative body was divided into two chambers.

It was over the executive branch that the main contest arose. It was conceded that this should be nominally single headed; that is, that there should be a governor. But the members generally could not realize how different was a governor elected by the people and responsible to them, from one appointed by an alien and higher power to rule over them, as in the colonial days. The remembrance of the contests with the royal governors was still fresh; and the mere name of governor frightened them. They had the same illogical fear of the executive that the demagogues of to-day (and some honest but stupid people, as well) profess to feel for a standing army. Men often let the dread of the shadow of a dead wrong frighten them into courting a living evil.

Morris himself was wonderfully clear-sighted and cool-headed. He did not let the memory of the wrong-doing of the royal governors blind him; he saw that the trouble with them lay, not in the power that they held, but in the source from which that power came. Once the source was changed, the power was an advantage, not a harm, to the State. Yet few or none of his companions could see this; and they nervously strove to save their new State from the danger of executive usurpation by trying to make the executive practically a board of men instead of one man, and by crippling it so as to make it ineffective for good, while at the same time dividing the responsibility, so that no one need be afraid to do evil. Above all, they were anxious to take away from the governor the appointment of the military and civil servants of the State.

Morris had persuaded the committee to leave the appointment of these officials to the governor, the legislature retaining the power of confirmation or rejection; but the convention, under the lead of Jay, rejected this proposition, and after some discussion adopted in its place the cumbrous and foolish plan of a "council of appointment," to consist of the governor and several senators. As might have been expected, this artificial body worked nothing but harm, and became simply a peculiarly odious political machine.

Again, Morris advocated giving the governor a qualified veto over the acts passed by the legislature; but instead of such a simple and straightforward method of legislative revision, the convention saw fit to adopt a companion piece of foolishness to the council of appointment, in the shape of the equally complicated and anomalous council of revision, consisting of the governor, chancellor, and judges of the supreme court, by whom all the acts of the legislature had to be revised before they could become laws. It is marvelous that these two bodies should have lived on so long as they did—over forty years.

The convention did one most praiseworthy thing in deciding in favor of complete religious toleration. This seems natural enough now; but at that time there was hardly a European state that practiced it. Great Britain harassed her Catholic subjects in a hundred different ways, while in France Protestants were treated far worse, and, in fact, could scarcely be regarded as having any legal standing whatever. On no other one point do the statesmen of the Revolution show to more marked advantage when compared with their European compeers than in this of complete religious toleration. Their position was taken, too, simply because they deemed it to be the right and proper one; they had nothing to fear or hope from Catholics, and their own interests were in no wise advanced by what they did in the matter.

But in the New York convention toleration was not obtained without a fight. There always rankled in Jay's mind the memory of the terrible cruelty wrought by Catholics on his Huguenot forefathers; and he introduced into the article on toleration an appendix, which discriminated against the adherents of the Church of Rome, denying them the rights of citizenship until they should solemnly swear before the supreme court, first, "that they verily believe in their conscience, that no pope, priest, or foreign authority on earth has power to absolve the subjects of this State from their allegiance to the same;" and, second, "that they renounce ... the dangerous and damnable doctrine that the Pope or any other earthly authority has power to absolve men from sins described in and prohibited by the Holy Gospel." This second point, however important, was of purely theological interest, and had absolutely nothing to do with the state constitution; as to the first proposition, it might have been proper enough had there been the least chance of a conflict between the Pope, either in his temporal or his ecclesiastical capacity, and the United States; but as there was no possibility of such a conflict arising, and as, if it did arise, there would not be the slightest danger of the United States receiving any damage, to put the sentence in would have been not only useless, but exceedingly foolish and harmful, on account of the intense irritation it would have excited.

The whole clause was rejected by a two to one vote, and then all the good that it aimed at was accomplished by the adoption, on the motion of Morris, of a proviso that the toleration granted should not be held to "justify practices inconsistent with the peace and safety of this State." This proviso of Morris remains in the Constitution to this day; and thus, while absolute religious liberty is guaranteed, the State reserves to itself full right of protection, if necessary, against the adherents of any religious body, foreign or domestic, if they menace the public safety.

On a question even more important than religious toleration, namely, the abolition of domestic slavery, Jay and Morris fought side by side; but though the more enlightened of their fellow-members went with them, they were a little too much in advance of the age, and failed. They made every effort to have a clause introduced into the constitution recommending to the future legislature of New York to abolish slavery as soon as it could be done consistently with the public safety and the rights of property; "so that in future ages every human being who breathes the air of this State shall enjoy the privileges of a free man." Although they failed in their immediate purpose, yet they had much hearty support, and by the bold stand they took and the high ground they occupied they undoubtedly brought nearer the period when the abolition of slavery in New York became practicable.

The Constitution was finally adopted by the convention almost unanimously, and went into effect forthwith, as there was no ratification by the people at large.

As soon as it was adopted a committee, which included Morris, Jay, and Livingston, was appointed to start and organize the new government. The courts of justice were speedily put in running order, and thus one of the most crying evils that affected the State was remedied. A council of safety of fifteen members—again including Morris—was established to act as the provincial government, until the regular legislature should convene. An election for governor was also held almost immediately, and Clinton was chosen. He was then serving in the field, where he had done good work, and, together with his brother James, had fought with the stubborn valor that seems to go with Anglo-Irish blood. He did not give up his command until several months after he was elected, although meanwhile keeping up constant communication with the council of safety, through whom he acted in matters of state.

Meanwhile Burgoyne, with his eight or nine thousand troops, excellently drilled British and Hessians, assisted by Tories, Canadians, and Indians, had crossed the northern frontier, and was moving down towards the heart of the already disorganized State, exciting the wildest panic and confusion. The council of safety hardly knew how to act, and finally sent a committee of two, Morris being one, to the headquarters of General Schuyler, who had the supreme command over all the troops in the northern part of New York.

On Morris's arrival he found affairs at a very low ebb, and at once wrote to describe this condition to the president of the council of safety. Burgoyne's army had come steadily on. He first destroyed Arnold's flotilla on Lake Champlain. Then he captured the forts along the Lakes, and utterly wrecked the division of the American army that had been told off to defend them, under the very unfortunate General St. Clair. He was now advancing through the great reaches of wooded wilderness towards the head of the Hudson. Schuyler, a general of fair capacity, was doing what he could to hold the enemy back; but his one efficient supporter was the wilderness itself, through which the British army stumbled painfully along. Schuyler had in all less than five thousand men, half of them short service continental troops, the other half militia. The farmers would not turn out until after harvest home; all the bodies of militia, especially those from New England, were very insubordinate and of most fickle temper, and could not be depended on for any sustained contest; as an example, Stark, under whose nominal command the northern New Engenders won the battle of Bennington, actually marched off his whole force the day before the battle of Stillwater, alleging the expiration of the term of service of his soldiers as an excuse for what looked like gross treachery or cowardice, but was probably merely sheer selfish wrong-headedness and mean jealousy. Along the Mohawk valley the dismay was extreme, and the militia could not be got out at all. Jay was so angered by the abject terror in this quarter that he advised leaving the inhabitants to shift for themselves; sound advice, too, for when the pinch came and they were absolutely forced to take arms, they did very fairly at Oriskany. It was even feared that the settlers of the region which afterwards became Vermont would go over to the enemy; still, time and space were in our favor, and Morris was quite right when he said in his first letter (dated July 16, 1777): "Upon the whole I think we shall do very well, but this opinion is founded merely upon the barriers which nature has raised against all access from the northward." As he said of himself, he was "a good guesser."

He outlined the plan which he thought the Americans should follow. This was to harass the British in every way, without risking a stand-up fight, while laying waste the country through which they were to pass so as to render it impossible for an army to subsist on it. For the militia he had the most hearty contempt, writing: "Three hundred of the militia of Massachusetts Bay went off this morning, in spite of the opposition—we should have said, entreaties—of their officers. All the militia on the ground are so heartily tired, and so extremely desirous of getting home, that it is more than probable that none of them will remain here ten days longer. One half was discharged two days ago, to silence, if possible, their clamor; and the remainder, officers excepted, will soon discharge themselves."

The council of safety grew so nervous over the outlook that their letters became fairly querulous; and they not unnaturally asked Morris to include in his letters some paragraphs that could be given to the public. To this that rather quick-tempered gentleman took exceptions, and replied caustically in his next letter, the opening paragraph being: "We have received yours of the 19th, which has afforded us great pleasure, since we are enabled in some measure to collect from it our errand to the northward, one of the most important objects of our journey being, in the opinion of your honorable body, to write the news," and he closes by stating that he shall come back to wait upon them, and learn their pleasure, at once.

Meanwhile the repeated disasters in the north had occasioned much clamor against Schuyler, who, if not a brilliant general, had still done what he could in very trying circumstances, and was in no wise responsible for the various mishaps that had occurred. The New England members of Congress, always jealous of New York, took advantage of this to begin intriguing against him, under the lead of Roger Sherman and others, and finally brought about his replacement by Gates, a much inferior man, with no capacity whatever for command. Morris and Jay both took up Schuyler's cause very warmly, seeing clearly, in the first place, that the disasters were far from ruinous, and that a favorable outcome was probable; and, in the second place, that it was the people themselves who were to blame and not Schuyler. They went on to Philadelphia to speak for him, but they arrived just a day too late, Gates having been appointed twenty-four hours previous to their coming.

When Gates reached his army the luck had already begun to turn. Burgoyne's outlying parties had been destroyed, his Indians and Canadians had left him, he had been disappointed in his hopes of a Tory uprising in his favor, and, hampered by his baggage-train, he had been brought almost to a stand-still in the tangled wilds through which he had slowly ploughed his way. Schuyler had done what he could to hinder the foe's progress, and had kept his own army together as a rallying point for the militia, who, having gathered in their harvests, and being inspirited by the outcome of the fights at Oriskany and Bennington, flocked in by hundreds to the American standard. Gates himself did literally nothing; he rather hindered his men than otherwise; and the latter were turbulent and prone to disobey orders. But they were now in fine feather for fighting, and there were plenty of them. So Gates merely sat still, and the levy of backwoods farmers, all good individual fighters, and with some excellent brigade and regimental commanders, such as Arnold and Morgan, fairly mobbed to death the smaller number of dispirited and poorly led regulars against whom they were pitted. When the latter were at last fought out and forced to give in, Gates allowed them much better terms than he should have done; and the Continental Congress, to its shame, snatched at a technicality, under cover of which to break the faith plighted through its general, and to avoid fulfilling the conditions to which he had so foolishly agreed.

Morris and Jay, though unable to secure the retention of Schuyler, had, nevertheless, by their representations while at Philadelphia, prevailed on the authorities largely to reinforce the army which was about to be put under Gates. Morris was very angry at the intrigue by which the latter had been given the command; but what he was especially aiming at was the success of the cause, not the advancement of his friends. Once Gates was appointed he did all in his power to strengthen him, and, with his usual clear-sightedness, he predicted his ultimate success. Schuyler was a man of high character and public spirit, and he behaved really nobly in the midst of his disappointment; his conduct throughout affording a very striking contrast to that of McClellan, under somewhat similar circumstances in the Civil War. Morris wrote him, sympathizing with him, and asking him to sink all personal feeling and devote his energies to the common weal of the country while out of power just as strenuously as he had done when in command. Schuyler responded that he should continue to serve his country as zealously as before, and he made his words good; but Gates was jealous of the better man whose downfall he had been the instrument of accomplishing, and declined to profit by his help.

In a later letter to Schuyler, written September 18, 1777, Morris praised the latter very warmly for the way he had behaved, and commented roughly on Gates' littleness of spirit. He considered that with such a commander there was nothing to be hoped for from skillful management, and that Burgoyne would have to be simply tired out. Alluding to a rumor that the Indians were about to take up the hatchet for us, he wrote, in the humorous vein he adopted so often in dealing even with the most pressing matters: "If this be true, it would be infinitely better to wear away the enemy's army by a scrupulous and polite attention, than to violate the rules of decorum and the laws of hospitality by making an attack upon strangers in our own country!" He gave Schuyler the news of Washington's defeat at the battle of Brandywine, and foretold the probable loss of Philadelphia and a consequent winter campaign.

In ending he gave a thoroughly characteristic sketch of the occupations of himself and his colleagues. "The chief justice (Jay) is gone to fetch his wife. The chancellor (Livingston) is solacing himself with his wife, his farm, and his imagination. Our senate is doing, I know not what. In assembly we wrangle long to little purpose.... We have some principles of fermentation which must, if it be possible, evaporate before business is entered upon."