In early 1776, Livingston’s relationship with idea of independence was complicated. While he was in favor of it personally he had questions about the legality of Congress’s ability to declare independence. He was also deeply troubled by many of the forms that independence could take in the colonies. He worried, as his father had, about a mob up rising because a mob of lower class people would surely remove the landed gentry and other wealthy people from their comfortable seats of power in thoroughly messy manner.
It was not long, though, before Livingston stood solidly on the side of independence. “No alternative was left but heaven born independence or abject submission.”[i] In June of 1776 Livingston wrote to John Jay on the response of King George to their appeals for help;
“we have recd. an answer of the King to the livery of London, which I hope will be productive of very good affects since it takes away all hopes of accommodation and it shews that nothing less will do them absolute submission. It comes in very happy time for this place, in which people were very unfortunately divided between the advocates for the old & new government.”[ii]
Livingston also worried about an independent New York. The New York delegation to the Second Continental Congress had never received any orders from the New York convention to do anything other than seek favorable reconciliation with England. In Philadelphia the delegates had no way to know if the governing body of the colony would support an independence vote. Robert R. Livingston realized how important New York and especially the Hudson River Valley was to the effort. If New York did not support independence, and, in a worst case scenario, removed itself from all revolutionary activity, the war effort would have collapsed immediately.
It was widely believed that the British army would return to the colonies, having withdrawn from Boston to Halifax, Nova Scotia on March 17, 1776. New York was accepted as their most likely landing point where they would reengage the Americans with the idea of ending the rebellion. That would put the British army within reach of Livingston’s land and his family. All of this, as well as family matters were on Livingston’s mind when he returned to Congress that spring.
Livingston also worried about the movement to separate Vermont from New York. Settlers there including Ethan Allen, in what were commonly known as the New Hampshire Grants, were actively working to invalidate the patents granted by the colony of New York so that they could claim the land for themselves, rent free. He wrote to a Jay with a scheme that would not only invalidate one of the claims of the Vermont separatists but also make up for the losses the state had suffered because of the invasion of Canada, at least in part. Livingston had already out debated them in Congress once but he wanted to further take away their power.
“What I want you particularly to attend to is to endevour to get volunteers for Canada if possible from the Green Mountain boys by offering higher pay than the Continent allows, the expence of which will be very trifling to the Colony. What makes me wish it most is in order to frustrate the schemes of some people here who affect to consider them as no part of our Colony, & to assert that they never did nor ever will act under our convention. They even introduced a motion founded on this supposition; however I treated them so roughly as prevented their proceeding & has silenced them for the present.”[iii]
As he so often did Livingston was trying to kill two birds with one stone here. He hoped to strengthen the army in the north by weakening his opponents in the Grants.
During the spring Livingston felt that while reconciliation was impossible, the time was not yet right for independence, particularly in the middle colonies. None of the delegations to Congress from these colonies had been given the authority to vote for independence. He became aware that despite his best efforts to delay a vote on independence until he could be sure that the people would support Congress in such a move, events were now transpiring to fast to delay any longer. Livingston realized would have to fall in line with the radicals, to some extent, or risk being maneuvered out of the controlling faction of the movement. In 1777 he wrote of swimming with a stream it is impossible to stem, yielding to the torrent to direct its course.[iv]
Livingston was certainly a firm believer in independence by the summer of 1776. In a letter reminiscing about the war, John Adams wrote to Thomas Jefferson on February 3, 1812, after the pair had reconciled, “Gerry, Paine and J. Adams, R.R. Livingston, B. Rush, George Clymer and yourself are all that I can recollect, of the subscribers to Independence who remain.”[v] Livingston’s stance must have been firm for Adams to remember him all those years later.
When Richard Henry Lee proposed independence, Livingston was placed, by Congress, on the Committee of Five to draft the declaration on June 11. The other members were Thomas Jefferson, Benjamin Franklin, Roger Sherman and Livingston’s old nemesis, John Adams. Livingston’s inclusion on the committee has often been dismissed unimportant by historians who believe that he was chosen as a way to sway moderates to the vote for the declaration or that Congress hoped his wealth and vast land holdings would give extra weight to the forthcoming Declaration of Independence.
His authorship of the Address to the People of Great Britain puts his presence in a different light. The document that he produced in 1775 makes many of the same points that the Declaration does. It was particularly well received by Americans. He was, in 1776, one of the few people in Congress experienced in writing this type of document. In addition he was widely respected in Congress, as demonstrated by his inclusion on a wide variety of committees while he was in Philadelphia. He would go on to be considered a formidable speaker and author.
The meetings of the Committee were no doubt tense affairs. Adams dislike of Livingston had grown to encompass all of New York by this point. This was no doubt fueled by Livingston and a large part of New York’s more conservative views on independence as opposed to Adams more radical views. On June 23, 1776 Adams wrote to Cotton Tufts, a Massachusetts physician:
“New York still acts in Character, like a People without Courage or sense, or Spirit, or in short any one Virtue or Ability. There is neither Spunk nor Gumption, in that Province as a Body. Individuals are very clever. But it is the weakest Province in point of Intellect, Valour, public Spirit, or anything else that is great and good upon the Continent. It is incapable of doing Us much good, or much Hurt, but from its local situation. The low Cunning of Individuals, and their Prostitution plagues Us, the Virtues of a few individuals is of some service to Us. But as a Province it will be dead Weight upon a side, ours that of Enemies.”[vi]
Not only does this letter show the loathing Adams had for the people of New York but it also shows his lack of understanding of the tactical reality of the war.
There is no dispute that Thomas Jefferson was the primary author of the Declaration of Independence, but what is up for debate is how much Livingston contributed. After completing his draft Jefferson gave the document to Adams and Franklin for review. It then went to the entire committee for debate and review. In total, sixteen changes were made from Jefferson’s original document to the document that was presented to Congress. Adams and Franklin claimed or have been attributed nine of the changes.[vii] It is very difficult to image that Livingston, the orator and writer put on the committee for his perceived erudition and who was never afraid to voice his opinion, would remain silent during these committee debates. Jefferson, writing years later, noted that the committee had made changes.
Adams, writing in 1779, “forgot” that Livingston was part of the committee or at the very least mixed his committees up. “Who, said the Chevalier, made the Declaration of Independence? – Mr. Jefferson of Virginia, said I, was the Draughtsman. The Committee consisted of Mr. Jefferson, Mr. Franklin, Mr. Harrison, Mr. R. and myself, and We appointed Jefferson a subcommittee to draw it up.”[viii] For Adams this could be yet another example of the faulty memory he frequently exhibited when recollecting the war, particularly in the role he played or it could be yet another example of his dislike for Livingston manifesting itself a deliberate attempt to write him out of history.
Robert R. Livingston did not sign the Declaration of Independence. He was one of only two delegates who were in Congress when the document was adopted that did not sign, the other being John Dickinson of Pennsylvania who stood firmly against independence for much of the debate. Livingston was in Philadelphia for the Declaration’s presentation to Congress on June 28, 1776. He was there for the vote on independence on July 2 and the Declaration’s approval on July 4 but left soon thereafter to convince the New York government to approve a vote for independence. On July 6 he wrote to John Jay that “The Congress have done me the honor to refuse to let me go. I will however apply again to day.”[ix] He left Philadelphia the next day. However, the New York Assembly issued orders for their representatives to support the Declaration on July 9, before Livingston was able to get there to sway them. He did not return to the Continental Congress until late in 1779 and never took the time, or felt the need, to sign the document later as many delegates did.
Livingston immediately threw himself into the creation of a state government and the defense of the new born state. During this period Livingston’s versatility was on full display. Not only was he involved in serious political thinking and debate that would affect the lives of thousands of people but he was also involved in building the strategy of defense for the state. At the same time New York was about to become of the seat of the war. British warships had appeared in New York Harbor in early July.
On August 1, 1776 Livingston was chosen to the committee to draft a constitution for the state of New York. He joined his friends John Jay and Gouverneur Morris on a thirteen man committee charged with creating a government for the state of New York. Livingston, Jay and Morris would be the primary authors of the New York Constitution. The other members of the committee included John Sloss Hobart, William Smith,[x] William Duer, John Broome, John Morin Scott, Henry Wisner, Samuel Townsend, Charles DeWitt and Robert Yates. Abraham Yates Jr. served as the chair of the committee. Yates was a thorn in Livingston’s side during the convention. Prior to the war he had once been a member of the Livingston faction. They had used his influence to get him elected sheriff of Albany County. However Yates soon turned against the Livingston family and soon thereafter lost his post as sheriff.[xi]
Livingston was known to become bored with debates over individual points of contention. He wrote that he was tired of politics and “nor would in my present humor give one scene of Shakespeare for 1,000 Harringtons, Lockes, Sidneys, and Adams to Boot.”[xii] He frequently proposed acceptable compromises that ended the debates, perhaps as much to end his own boredom as to advance the work.[xiii]
As the debates and discussions surrounding the constitution persisted into the spring of 1777 the threat of loyalist assault or of an attack from New York City by the British army as the campaign season renewed became a genuine threat to the members of the convention. The previous fall the threat of the British from the north was put on hold when British General Sir Guy Carleton retreated to Canada following the Battle of Valcour Island. Yet New York’s Hudson Valley, the bulk of its people and its government were still threated by two British armies whose strategy in 1777 included assaults on New York from both flanks as a way to speed the end of the war. Many of the members began to arm themselves. No record exists to indicate if debates became more polite along with the increase in armed politicians.
Determining who could vote was one of the first major debates facing the constitutional committee. Under the British colonial system any freeholder with £40 of property could vote. The constitutional committee lowered the property requirements to £20 of freely held property, which enfranchised a number of small farmers and other land owners who could previously not vote. Livingston proposed an addition to this that made it into the final version of the constitution, all tenants who had paid £2 rent or its equivalent could vote.[xiv]
All voters in the state of New York would have to swear a loyalty oath to the state, except for Quakers, who because their religion were prevented them from swearing oaths, were allowed to have an affirmation of loyalty. This is an early example of how another clause in the constitution which guaranteed religious freedom to all of the citizens of the state was put into effect. When John Jay tried to make it illegal for Catholics to own property in the state, the movement was quickly dismissed, replaced with a line in the oath immigrants had to swear upon becoming citizens that their loyalty to the state exceeded that to foreign kings, including the Pope.[xv]
The new legislature would be bicameral as the British legislature was. The upper house of the legislature was to be the senate. Voting for this body was to be much more in line with Livingston’s way of thinking. Electors for the senate, the governor and the lieutenant governor had to be freeholders with at least £100 of property. The senate, governor and lieutenant governor would all be elected by secret ballot. The assembly would continue to be elected in the traditional method of vote, viva voce as it was known wherein a voter would go to a polling place and announce who he was voting for. These votes would transition to secret ballot votes only after the war was over.[xvi]
There was a tremendous amount of fear and distrust of concentrated power among the people at the time the new constitution was being written. Therefore, the executive branch of the new government, the governor, would have limitations placed on him. Livingston proposed a Council of Revision, as a compromise, which would hold the power to veto new laws. The Council would consist of the governor, the chancellor and the supreme court judges of the state. It could meet and vote on laws with as few members as the governor and any two other members. It required a simple majority vote to approve or disapprove a law. If the Council vetoed a law it was returned to the house where it had originated, where the council’s note were entered into the minutes. If they chose to pursue the law it took a 2/3 majority vote in both houses to overturn the veto.[xvii]
Along the same lines, the constitution also created a Council of Appointment. The Constitution was not creative in its naming system, so the Council did just that, handling the appointment of government positions. Livingston argued against including the Speaker of the Assembly on the Council and the position was removed.[xviii]
After New York’s constitution was adopted on April 20, 1777, Livingston was named chancellor of the state. The new constitution would allow the thirty year old Livingston to keep the position until he was sixty. He would actually hold the title for nearly a quarter of a century, until he resigned it in 1801 to go to France. The Chancellor was the highest judge in the new state, holding both equity and probate authority as far as cases were concerned. What made the Chancellor’s duties truly unique though was the mission of the Chancellery court. When judging a case, the Chancellor was tasked not necessarily with deciding the legal merits of the case, but what was right. It was also up to the Chancellor to decide where the Chancellery court would be held. In the 1790’s Livingston frequently held the court at his home at Clermont.
[i] Robert R. Livingston An Oration Delivered Before the Society of Cincinnatti p 7
[ii] Robert R. Livingston to John Jay, June 4, 1776 LDC Volume 4 p 140.
[iii] Robert R. Livingston to John Jay June 4, 1776 LDC Volume 4 p 140
[iv] Countryman, Edward A People in Revolution p 165, 291.
[v] Cappon, Lester Ed., The Adams-Jefferson Letters” Adams to Jefferson, February 3, 1812 p 296.
[vi] “John Adams to Cotton tufts, 23 June 1776” Founders Online, National Archives, last modified July 12, 2016. Tufts is most famous for refusing to treat 78 year Samuel Whitmore on April 19, 1775. Whitmore had been shot in the face and bayoneted 13 times by British soldiers but recovered without Tufts help and lived another 18 years.
[vii] Ferling, John Independence p 311.
[viii] June 23, 1779 The Adams Paper, Diary and Autobiography of John Adams, vol. 2 1771-1781, pp 390-392.
[ix] Robert R. Livingston to John Jay, July 6, 1776 Morris, Richard B. John Jay p 282-283
[x] William Smith of Suffolk County, not to be confused with the loyalist William Smith lodging with Peter Livingston.
[xi] Humphrey, Land and Liberty p 50.
[xii] Quoted in Dangerfield, George Chancellor Robert R. Livingston of New York 1746-1813 Harcourt, Brace and Company, New York 1960 p 87
[xiii] Polf, William A. 1777: The Political Revolution and New York’s First Constitution New York State Bicentennial Commission, Albany 1977 p 5
[xiv] Clause VI of the 1777 Constitution see Polf, William A. 1777: The Political Revolution and New York’s First Constitution, p 15, 50
[xv] Polf, William A. 1777: The Political Revolution and New York’s First Constitution p35-36, 51.
[xvi] See Clause VI of the 1777 New York State Constitution Polf, William A. 1777: The Political Revolution and New York’s First Constitution, p 50
[xvii] Polf, William A. 1777: The Political Revolution and New York’s First Constitution p 24
[xviii] Polf, William A. 1777: The Political Revolution and New York’s First Constitution p 27