The Republican ascendancy of 1800 posed a critical challenge to Jay in his administrative capacities as governor.1 Following the elections held in the spring of that year, the Republicans held a majority of twenty-eight seats in the State Assembly, thereby wresting control of this body from their Federalist opponents. This shift in the lower house further empowered Republicans to a dominant position—three of the four senatorial seats—on the Council of Appointment. Ensuing disagreements over how the Council of Appointment should conduct its business led to an impasse pitting Jay against his Republican colleagues serving on the Council. The inability and unwillingness of the New York government to find a satisfactory outcome and thereby resolve this conflict resulted in the shutting down of the Council during Jay’s final months in office.

As the primary architect of New York’s Constitution of 1777, Jay devised the Council of Appointment under Article 23 so that the governor and four state senators shared the authority of filling many of the state’s official positions.2 The senators serving on the Council were elected annually by the Assembly with each member representing one of New York’s four districts. Whereas each senator had one vote, the governor, who served as the Council’s president, was granted the right of a casting vote only and also seemingly had the sole power to nominate officers with the “advice and consent” of other council members.3

The authority vested in the Council of Appointment proved considerable, as its members were responsible for commissioning an array of state officers, including the secretary of state, comptroller, attorney-general, surveyor-general, commissary-general, judicial officials, district attorneys, mayors and recorders, county clerks, sheriffs, auctioneers, masters and examiners in chancery, inspectors of turnpike roads, commercial and mercantile inspectors, public notaries, and militia personnel. By the time of Jay’s governorship, the number of state positions filled each year by the Council of Appointment ranged from several hundred to up to one thousand.4

The imprecise wording of Article 23, however, led to a struggle within the Council of Appointment as the senators serving on this body also claimed the right of nomination. Governor George Clinton feuded with the Council’s Federalist senators in 1793 when they attempted to nominate Egbert Benson to the state supreme court. Although Clinton maintained that he alone had the exclusive authority to introduce Benson for selection, the other Council members, newly elected by the Assembly, ignored his protests, claiming the concurrent power of nomination, and proceeded to nominate and appoint Benson to the bench in January 1794.5

When Jay assumed the governorship, he sought to reassert executive prerogative over the nomination of officials and thereby avoid a similar conflict that had bedeviled his predecessor. In his inaugural address before the state legislature in January 1796, Jay urged that lawmakers investigate the process of nomination on the Council of Appointment and resolve the issue through a declaratory act.6 The following month, Jacob Morris, the Federalist assemblyman representing Otsego County, introduced a bill “An act declaratory of the right of the President of the Council of appointment” in the state’s lower house. The bill was read twice before the Assembly, but no further action was taken, and it died in committee.7

For much of Jay’s two terms in office, he presided over Councils of Appointment that were either predominantly or unanimously Federalist in composition. Jay’s activities in the Council during this period, however, show that while he nominated far more Federalists than Republicans, he nonetheless defined merit and efficiency, rather than partisanship and patronage, as the key criteria for nomination to public office.8 The Republican victory in the spring of 1800, however, upended this situation, and brought about a critical political struggle during the final months of Jay’s administration.

The Republican-led Assembly wasted little time in flexing its political power. When the state legislature convened in early November 1800, Assemblyman Adam Comstock of Saratoga County proposed a resolution calling for the formation of a new Council of Appointment to replace the existing body whose members were all Federalist. The Assembly voted along party lines, and Comstock’s measure passed successfully over the protests of his opponents.9 The newly elected members consisted of three Republicans—DeWitt Clinton of Queens County representing the Southern District, Ambrose Spencer of Columbia County representing the Middle District, and Robert Roseboom of Otsego County representing the Northern District—and one Federalist—John Sanders of Schenectady County representing the Eastern District.10

Under the leadership of DeWitt Clinton, the Republicans effectively transformed the Council into a spoils system, granting appointments to party loyalists. Clinton’s policy met with the approval of state Republicans like Marinus Willett, who agreed that public office was a just reward for loyal party service. Willett advised DeWitt Clinton to use the Council as a source of patronage, claiming “I think it would justly merit the appellation of Dastardly weakness if the republicans when they have it in their power should not remove the gentlemen called federalists from offices of honor and profit and endeavour to fill them with honest virtuous republicans.”11 Such sentiments were bound to heighten partisan discord and the expectation that the Council of Appointment would serve as a flashpoint in this conflict. Richard Varick, the mayor of New York city, reported the claim of Brockholst Livingston that the governor “has probably already or will very soon be involved in a Dispute with the Council, as in his Language ‘an Explosion was expected’ on the subject of the Nominations for Appointments in this City.”12

The political conflict pitting Jay against DeWitt Clinton and his Republican colleagues commenced at the first Council meeting held on 11 February 1801. After successfully reappointing the sheriffs who served Greene, Kings, Suffolk, and Washington counties, the councilors engaged in a lengthy dispute over filling this post for Dutchess county. Clinton, Spencer, and Roseboom rejected Jay’s first nomination—Jesse Thompson—and proceeded to reject his subsequent seven candidates.13 The friction existing within the Council drew the scrutiny and speculation of public observers. While in Poughkeepsie, Peter Augustus Jay learned of a rumor claiming that the dispute had persuaded Assembly Republicans to launch impeachment proceedings against his father.14 Seeking to cultivate future cooperation within the Council, Jay ended this stalemate the following week when he agreed to nominate Robert Williams,15 a Republican stalwart, as the sheriff for Dutchess County. The councilors at this meeting successfully filled thirty appointments, suggesting that Jay’s concession strategy had worked.16

Any remaining semblance of civility faded, however, when the Council of Appointment reconvened on February 24. Jay again clashed with DeWitt Clinton and the other Republican councilors over selecting appointees, specifically the posts of sheriff in Schoharie and Orange counties. Jay forwarded three different candidates for each post, but all were rejected. Clinton then attempted to name John Blake Jr.17 as sheriff for Orange county, but Jay blocked the nomination. A deadlock ensued as the parties now debated whether the governor as Council president had the exclusive right of nominating candidates, or whether he shared this power with other councilors. As neither side would yield, Jay adjourned the proceedings and opted not to hold another Council meeting. Consequently, dozens of appointments went unfilled for the remainder of Jay’s governorship.18

Shortly after this disastrous meeting, Jay informed the state legislature of the conflict that had paralyzed the Council of Appointment. Jay requested that this constitutional crisis be resolved by either “declaratory statute” or “judgment of law.” Although he insisted on the gubernatorial prerogative of nomination, Jay assured lawmakers that he would abide by their decision regardless of whether the outcome “should or should not correspond with the opinion” that he had presented to them.19

Jay was bound for disappointment, however, for legislators in both houses refused to enact either of his suggestions. The day after Jay submitted his message, the Democratic-led Assembly formed itself into a committee of the whole and passed a resolution stating that the legislature lacked “the authority to interpose between the Executive and the Members of the Council of Appointment, touching the right of nomination.” The Senate, containing a Federalist majority, likewise did not take up Jay’s suggestion, but did devise a compromise course of action. Sitting as a committee of the whole, the senators called for the formation of a joint-legislative committee that would both investigate the records and proceedings of the Council of Appointment and issue an advisory report for resolving this constitutional quandry.20 This senate proposal, however, required the approval of the assembly before it could be carried out, and such cooperation was not forthcoming. The lower house took a vote on the plan and rejected it by a wide margin of 62–25.21

Since the legislature refused to deliberate on the Council of Appointment and the right of nomination, Jay sought assistance from the leading members of the state judiciary. He sent off letters to Robert R. Livingston, the state chancellor; John Lansing Jr., the chief justice of the supreme court of judicature; and Egbert Benson, James Kent, Morgan Lewis, and Jacob Radcliff, the associate justices, requesting that they evaluate the respective arguments, and if possible, offer proposals for a resolution.22 Citing legal and partisan constraints, the judges all refused to weigh in on the issue. The Chancellor explained, for instance, that getting involved in executive-legislative disputes such as this one “would by degrees lead them into political controversies, incompatible with the duties of their offices.”23

The day preceding Jay’s letter to the judiciary, the Republican members of the Council—Clinton, Roseboom, and Spencer—publicly laid out their case regarding the controversy. In a message sent to Samuel Osgood (1748–1813), the speaker of the state assembly, they observed that the governor’s refusal to reconvene the Council hindered the ability of state and local administrators to carry out the necessary functions of government. Their letter enclosed a lengthy communication that outlined the recent events and summarized several arguments and precedents in support of granting the right of nomination to all Council members.24

Jay believed that he had yet to exhaust all options for reaching a settlement on the question of nomination in the Council of Appointment. On 28 March, he again turned to the state legislature for assistance, submitting his correspondence with the judiciary to the Assembly, along with the suggestion that that the assemblymen pass an act “to authorize and direct the Supreme Court to try and determine the question, on a proper issue, to be devised by them; and that their judgement be immediately removed to the Court of Errors, and there receive an ultimate and final decision.”25

State lawmakers, however, demurred from following the governor’s advice and spent the final days of the legislative session engaged in acrimonious and partisan debate. Elisha Williams, a Federalist assemblyman, did introduce a bill that called for the justices of the Supreme Court to organize a special court which would decide the issue of nomination in the Council of Appointment.26 Williams’s Republican colleagues, however, defeated his proposal, by a vote of 53–34.27 The Federalist majority in the senate demonstrated its sympathy to Jay’s position by passing a conciliatory resolution, over the virulent opposition of DeWitt Clinton, that called for the Council members to waive the right of nomination and proceed with relevant business until a legal decision could be made on the matter.28 Not surprisingly, the Republican-led Assembly suppressed this measure and adopted their own resolution on their last day of sitting, reiterating the claim “the Legislature have no authority to interpose between the Executive and the members of the Council of Appointment.29

Before the legislative session ended, however, New York’s lawmakers managed to lay the foundation for resolving the quandary that had paralyzed the Council of Appointment and vexed Jay during his final months in office. On 6 April, legislators approved an act calling for a constitutional convention to be held that would include among its tasks, “considering and determining the true construction of the twenty-third article of the constitution of this State relative to the right of nomination to office but with no other power or authority whatsoever.”30 On 22 October, the convention delegates meeting at Albany adopted a resolution by a vote of 86–14, granting the right of nomination to the members of the Council of Appointment and the governor concurrently.31