John Jay Papers
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From John Jay to the New York State Chancellor (Robert R. Livingston), Chief Justice (John Lansing Jr.), and Associate Justices of the New York State Supreme Court (Egbert Benson, James Kent, Morgan Lewis, and Jacob Radcliff), 18 March 1801

To the New York State Chancellor (Robert R. Livingston),
Chief Justice (John Lansing Jr.), and Associate Justices of the New York State Supreme Court (Egbert Benson, James Kent,
Morgan Lewis, and Jacob Radcliff)

Albany 18th. March 1801

Gentlemen

To secure the Liberties of the People and the legitimate Rights of their Government, against Encroachment and usurpation, it has from Experience been found necessary to divide the powers of Government into three distinct and independent Departments— aggregately considered, they possess all the power of Government; and are always in Capacity to defend their respective authorities against improper assumptions of Power— As this mutual Security is not less important to the welfare of the State, than to the orderly and proper Discharge of the Trusts reposed in them, there results in my opinion a natural and mutual Reliance on each other, to support their respective Rights; and to do it by such Interpositions, as the nature of the Case, and the Circumstances of the occasion may render adviseable—

These Considerations induce me to call your Attention to a controversy which now exists between the Executive and the Council of Appointment. The former insists on the exclusive Right of naming and proposing to them, for their advice and consent, such Persons as he may select for office—while the latter claim a Right in each Individual member, to select for office and to nominate to themselves, and for their own advice and Consent, such Persons as they severally may think proper. Whether the Claim of the Executive or the claim of the council is the most consonant with the 23d. Article of the Constitution is the Question between them.

my message of the 26th. Ult: on this Subject,1 to the Legislature, and the Proceedings of the two Houses relative to it, are known to You. There appears to be little Reason to expect, that they will at present, cause the Question to be decided, either by a declaratory Statute, or by Judgment of Law.

anxious to discover whether the Claim of the Executive to ^the^ exclusive Right of Selection and Nomination, is as well founded as I think it is; and being strongly impressed with a Sense of the Respect due to the Sentiments of the Judicial Department on Questions arising from the constitution or Laws of our country, I request them on the one I have stated, unless a mode of having it judicially determined, should occur to You, and in that case, that you will be pleased to indicate it—2 I have the Honor to be with great Respect Gentlemen Your most obt. Servt

John Jay

The Hon’ble The Chancellor, and the Hon’ble the Chief Justice and the other Judges of the Supreme Court, of the State of New York—

ALS and C, NHi: John Lansing Jr. (EJ: 00881). ALS, endorsed: “March 18. 1801 / From Govr. Jay / [in different hand] Council of Appointment”. C, endorsed: “Copy / Letter from the Govr. to the Chancellor & Judges / requesting an opinion / on the controversy relative to appointment. / 18 March 1801”. PtD and C, embedded in JJ to the New York State Assembly, 28 Mar. 1801, below. Reprinted: Albany Gazette, 30 Mar.; Albany Centinel (supplement), 31 Mar., DeWitt Clinton Broadside Collection, NAll; American Citizen, Commercial Advertiser, and Mercantile Advertiser (all New York), 2 Apr.; Spectator (New York) 4 Apr.; Philadelphia Gazette, 6 Apr.; Washington Federalist, (Georgetown), 10 Apr.; Hudson Gazette, 14 Apr. 1801; N.Y. Assembly Journal, 28 Mar. 1801, 24th sess. (1800–1801), 247; NYGM, 2: 479–80.

For replies to JJ’s letter, see RRL to JJ, 21 Mar. 1801; John Lansing Jr. to JJ, 26 Mar. 1801; and John Lansing Jr., Egbert Benson, James Kent, and Jacob Radcliff to JJ, 26 Mar. 1801, all below.

2For more on JJ’s longstanding dispute with the Council of Appointment, and his attempts to resolve the issue, see the editorial note “Conflict with the Council of Appointment,” above.

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