Message to the New York State Assembly, 26 February 1801
Message to the New York State Assembly
[Albany, 26th February, 1801.]
Gentlemen,
IT has generally and justly been considered as highly important to the security and duration of free States, that the different Departments and Officers of Government should exercise those powers only, which are constitutionally vested in them; and that all controversies between them, respecting the limits of their respective jurisdictions and authorities, be circumspectly and speedily settled. There are few Constitutions or other instruments, however carefully framed, which are entirely free from ambiguity, and do not contain paragraphs liable to different constructions. Defects and obscurities have been observed in the constitution of this State, and on certain occasions they have produced inconveniences.
The 23d Art. of it, ordains “That all Officers, other than those who by this Constitution are directed to be otherwise appointed, shall be appointed in the manner following, to wit: The Assembly shall, once in every year, openly nominate and appoint one of the Senators from each great district, which Senators shall form a Council for the appointment of the said Officers, of which the Governor, for the time being, or the Lieutenant-Governor, or President of the Senate, when they shall respectively administer the Government, shall be President, and have a casting voice, but no other vote, and with the advice and consent of the said Council, shall appoint all the said Officers.”
Doubts have long existed, whether by this article, the right of nomination was exclusively vested in the Governor, or whether it was vested concurrently in him and the Council. Questions arose on this article during the administration of my predecessor, and in the month of March, 1794, gave occasion to animated discussions between him and the then Council.1
When I came to the Government, my official duty made it proper for me to form as correct a judgment on the subject as I possibly could. After having deliberately considered this article, I became fixed in the opinion, that it vested the right of nomination exclusively in the Governor, and for this, among other reasons, that the right to appoint, necessarily included the right to select and nominate; and it gave me pleasure to find, on conferring with my predecessor, that this opinion was strengthened by his informing me that he had always claimed this right, and never yielded or conceded it to be in the council.2
Nevertheless, as respectable members of a former Council, acting under their oaths to support the constitution, had adopted a different construction of this article, and had actually assumed and exercised this right; it was evident that it was a question on which upright and judicious men might differ in opinion. Being therefore apprehensive that it might, and probably would again produce disagreeable disputes, I thought it advisable to insert the following paragraph in the first speech which I had the honor to make to both Houses of the Legislature, viz.
“There is an article in the Constitution, which, by admitting of two different constructions, has given rise to opposite opinions; and may give occasion to disagreeable contests and embarrassments. The article I allude to, is the one which ordains that the person administering the Government, for the time being, shall be President of the Council of Appointment, and have a casting voice, but no other vote, and with the advice and consent of the said Council, shall appoint all the Officers which the constitution directs to be appointed. Whether this does, by just construction, assign to him the exclusive right of nomination, is a question, which, though not of recent date, still remains to be definitively settled. Circumstanced as I am, in relation to this question, I think it proper merely to state it; and to submit to your consideration the expediency of determining it by a declaratory act.”3
Unfortunately this important question was permitted to continue undecided; and, consequently, I could adopt no other rule for my official conduct, than that construction of the article which appeared to me to be the best founded; and which had been adopted as the true construction by my predecessor. I have therefore uniformly held and exercised the exclusive right of nomination; nor have any of the several councils endeavored to assume it, until the twenty-fourth day of this month, when the following occurrences took place, viz.
The present sheriffs of New-York and Queens, who had been nominated on the 11th instant, were negatived.4 Benjamin Jackson, who, on the 17th inst. was nominated for sheriff of Orange, was negatived.5 Certain other nominations were agreed to. Three persons were then successively nominated for the office of sheriff of Schoharie, to wit, Wardell Green, John Ingold and Benjamin Miles, and they were negatived. Col. William Falconer6 was then nominated for sheriff of Orange, and being negatived, I nominated Col. John Nicholson7 for that office. On this nomination the council (except Mr. Sanders)8 explicitly refused to vote; and one of the members of the council proceeded to nominate John Blake, jun.9 for sheriff of that county. Judging it prudent to consider maturely what ought to be my conduct under such circumstances, the council was adjourned.
After having well considered the subject, it appears to me proper to state these facts to you. While I think and believe, as I most sincerely do, that the right to nominate is vested exclusively in the Governor by the constitution, it ought not, and I am persuaded it will not be expected that I should, by conceding this right or power to any member of the council, violate my oath to administer the government to the best of my knowledge, in conformity with the powers delegated to me by the constitution.
From what had formerly happened it was not a matter of surprize to me that the Council should claim a concurrent right of nomination with me; but the refusal to vote on one of my nominations, and while it remained undecided, to nominate another person for the same office, were measures which, going to the exclusion of even a concurrent right in the Governor, appeared to me not a little extraordinary.
Many appointments exceedingly interesting to the public, ought soon to be made; but while those gentlemen persist in the course of proceeding which they have adopted, that business must necessarily remain subjected to impediments not in my powers to obviate or remove. I therefore submit to your consideration, whether it has not become indispensable, that the merits of these opposite and interfering claims to the right of nomination, should be ascertained and decided without delay.
In whatever constitutional way, whether by a declaratory statute, or by a judgment of law, a decision may be made; and whether it should or should not correspond with the opinion I have expressed, I shall certainly acquiesce in and regulate my conduct by it.10
JOHN JAY.
PtD, Albany Gazette (supplement), 28 Feb. 1801. Reprinted: Albany Centinel, 3 Mar.; Commercial Advertiser (New York), 3 Mar.; Daily Advertiser, and Spectator (both New York), 4 Mar.; New-York Gazette, 5 Mar.; Philadelphia Gazette, 5 Mar.; Poulson’s American Daily Advertiser (Philadelphia), 6 Mar.; Hudson Gazette, 10 Mar.; Boston Commercial Gazette, 12 Mar.; National Intelligencer, (Washington, D. C.), 13 Mar. 1801; N.Y. Assembly Journal, 26 Feb. 1801, 24th sess. (1800–1801), 122–24; N.Y. Senate Journal 28 Feb. 1801, 24th sess. (1800–1801), 53–54; NYGM 2: 472–76; HPJ, 4: 289–94.
The piece in the Albany Gazette contained the following introduction: “Albany, February 28. On Thursday last, the following Message from his Excellency the Governor, was read in the house of Assembly, committed to a Committee of the Whole House, and ordered to be printed for the use of the Members.”
1. For the disagreement with the Council of Appointment during Clinton’s governorship, see Flick, “Council of Appointment,” 263–64.
2. Correspondence between JJ and Clinton, not found. For Clinton’s comments on right of nomination, see PAJ to JJ, 21 Feb. 1801, above.
4. James Morris served as sheriff for the City and County of New York, and John B. Hicks held this post for Queens County.
5. Benjamin Jackson had previously served as sheriff for Orange County from 1793 to 1797.
6. William Falconer (Faulkner, Faulkener) (c. 1748–1831), of Walkill, New York.
7. John Nicholson (c. 1740–1811) of Montgomery, commanded the 3rd New York Regiment during the war of independence, and took part in the assault on Quebec led by General Richard Montgomery.
8. John Sanders of Schenectady County, the sole Federalist senator on the Council of Appointment.
9. DeWitt Clinton nominated John Blake Jr. at the Council meeting held on 24 Feb. Blake eventually served as sheriff of Orange County from 1803 to 1805.
10. The day following Jay’s address, the Assembly passed the following resolution proposed by John Swarthout by a vote of 61 to 35:
WHEREAS his Excellency the Governor, by his message of the 26th instant, has suggested some impediments to the further proceedings of the Council of Appointment, and has submitted to the consideration of the Legislature, whether it is not become indispensable that the merits of the opposite and interfering claims to the right of nomination, should be ascertained and decided without delay:
Therefore, Resolved, as the sense of this House, That the Legislature have no authority to interpose between the Executive and the members of the Council of Appointment, touching the right of nomination, or to pass a declaratory act, defining the powers of the said Council, or prescribing the manner in which the same shall be exercised.
PtD, Albany Gazette, 28 Feb. 1801. Reprinted: Albany Centinel, 3 Mar.; Hudson Gazette, 10 Mar.; Boston Commercial Gazette, 12 Mar. 1801; N.Y. Assembly Journal, 24th sess. (1800–1801), 130; NYGM, 2: 489–90.
The Senate also replied to JJ on 7 Mar., recommending that a joint legislative committee take up the question of nomination in the Council of Appointment:
Whereas doubts are entertained whether the President of the Council of Appointment has, by the constitution, the sole and exclusive right of nomination to office, or whether such right is equally and in common vested in the said President and the members of the Council respectively, or vested in the said Council exclusively: Therefore,
Resolved, (if the Hon. the Assembly concur herein) That a joint committee of the Senate and Assembly be appointed to enquire what has been the practice relative to nomination to office in the Council of Appointment; that such joint committee have power to send for papers and records, and report a state of facts to the Legislature, with their opinion of a fit and proper mode of determining the said constitutional question; and in such occurrence, that Mr. Lush, Mr. Graham and Mr. Hitchcock be the said committee on the part of the Senate.
PtD, Albany Gazette, 9 Apr. 1801; Reprinted: Philadelphia Gazette, (extract), 9 Mar. 1801; N.Y. Senate Journal, 24th sess. (1800–1801), 63–64; NYGM, 2: 490.
For more on JJ’s efforts to resolve his dispute with the Council, see the editorial note “Conflict with the Council of Appointment,” above; and NYGM, 2: 480–505.