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Subject Area: Political Theory
Topic: The American Revolution and Constitution

1801. - John Jay, The Correspondence and Public Papers of John Jay, vol. 4 (1794-1826) [1893]

Edition used:

The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 4 (1794-1826).

Part of: The Correspondence and Public Papers of John Jay, 4 vols.

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1801.

JAY TO PRESIDENT ADAMS.

Albany, 2d January, 1801.

Dear Sir:

I have been honoured with your letter of the 19th ult. informing me that I had been nominated to fill the office of Chief Justice of the United States, and yesterday I received the commission. This nomination so strongly manifests your esteem, that it affords me particular satisfaction.

Such was the temper of the times, that the Act to establish the Judicial Courts of the United States was in some respects more accommodated to certain prejudices and sensibilities, than to the great and obvious principles of sound policy. Expectations were nevertheless entertained that it would be amended as the public mind became more composed and better informed; but those expectations have not been realized, nor have we hitherto seen convincing indications of a disposition in Congress to realize them. On the contrary, the efforts repeatedly made to place the judicial department on a proper footing have proved fruitless.

I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. Hence I am induced to doubt both the propriety and the expediency of my returning to the bench under the present system; especially as it would give some countenance to the neglect and indifference with which the opinions and remonstrances of the judges on this important subject have been treated.

Altho’ I wish and am prepared to be and remain in retirement, yet I have carefully considered what is my duty, and ought to be my conduct, on this unexpected and interesting occasion. I find that, independent of other considerations, the state of my health removes every doubt, it being clearly and decidedly incompetent to the fatigues incident to the office. Accept my warmest acknowledgments for the honour you have done me, and permit me to assure you of the respect, esteem, and regard with which I am,

Dear sir, etc.,

John Jay.

COMMITTEE OF FEDERAL FREEHOLDERS OF THE CITY OF NEW YORK TO GOVERNOR JAY.

New York, 13th January, 1801.

Sir:

Our feelings too well accord with those that dictated the resolutions of which we have the honor to transmit a copy, not to render the execution of the task committed to us particularly agreeable.

We have been long accustomed to contemplate, with sentiments of exalted satisfaction, the virtues, public and private, which adorn your character, and the distinguished talents and services which place you in the first rank of citizens eminently useful to their Country. To attempt to retrace the variety of arduous and honorable exertions which have marked your public career, would be an office to which we do not feel ourselves equal. Neither does it require our testimony to record, what will ever find an indelible memorial in the minds and hearts of the enlightened and just, that in the great events which accomplished the American Revolution, you were among the most conspicuous, and that your abilities, patriotism and energy, then and since, have been repeatedly displayed with lustre, as well in the councils of this State and of the United States, as in the different diplomatic trusts confided to your charge. The part you acted in forming the constitution of the State, and in promoting the adoption of the National Government, the important treaty which terminated the controversy for independence, and the Convention which lately preserved your Country from being involved in a pernicious war (defeating the predictions of evil, and confirming the anticipations of good), are a few of the many Acts that bear witness to the truths we have mentioned.

Having now declared your intention to resign the cares of public life, envy and ill will can scarcely deny that the most recent scene of it has exhibited all the valuable characteristics proper to the situation—prudence, moderation and rectitude. It will at least be no small consolation to yourself and to your friends, to reflect, that the purity of your administration imposes silence on the tongue of detraction.

To time, the best arbiter of human pretentions, it may safely be left to liquidate the true merit of your actions, and to erect a monument to your fame beyond the reach of jealous or malevolent cavil.

With the most respectful consideration we have the honor to be, Sir,

Your Excellency’s obedient Servants,

Com. Ray,

Rob. Troup,

Arch. Gracie,

Rich. Harison,

William W. Woolsey,

James M. Hughes,

James Watson.

JAY TO THE COMMITTEE OF FEDERAL FREEHOLDERS OF THE CITY OF NEW YORK.

Albany, 27 January, 1801.

Gentlemen:

I have received the letter which you did me the honour to write on the 15th, inclosing a copy of a resolution of the Federal freeholders of the city of New York, of the 13th instant.

Permit me, through you, to assure them of the high sense I entertain of the honour they have done me by the sentiments respecting my public services which are expressed in that resolution; and be pleased, gentlemen, to accept my warmest acknowledgments for the friendship and attachment which your letter evinces. Considering the relations in which I have stood to those of my fellow-citizens who are denominated Federalists, I take the liberty of submitting to their consideration a few remarks.

It is an agreeable circumstance that the prosperity of our country since the institution of the present government justifies the support and confidence we have given to those by whom it has hitherto been administered. But general prosperity does not invariably produce general content, nor will public opinion, perplexed by the different lights and shades in which men and measures are often placed and seen, always remain steady and uniform. These observations are confirmed by events of no inconsiderable importance, which have recently occurred. They place us in a new situation, and render it proper for us to consider what our conduct under it should be. I take the liberty, therefore, of suggesting, whether the patriotic principles on which we profess to act do not call upon us to give (as far as may depend upon us) fair and full effect to the known sense and intention of a majority of the people, in every constitutional exercise of their will, and to support every administration of the government of our country which may prove to be intelligent and upright, of whatever party the persons composing it may be.

With the best wishes for the happiness of your constituents, and with great personal respect and regard for yourselves,

I have the honor to be, Gentlemen,

Your obliged and obedient servant,

John Jay.

JAY’S MESSAGE TO THE LEGISLATURE OF NEW YORK IN THE MATTER OF APPOINTMENTS TO OFFICE,

february 26, 1801.1

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 Article 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 District, which Senators shall form a Council for the appointment of said officers, of which the Governor for the time being, or the Lieutenant Governor, or the 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.

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.

Nevertheless, as respectable members of the 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 this 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 honour 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 definitely settled. Circumstanced as I am in relation to this question, I think it proper to state it, and to submit to your consideration the expediency of determining it by a declaratory act.”

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 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 Council endeavoured to assume it, until the 24th 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. Benjamin Jackson, who on the 17th instant was nominated for sheriff of Orange, was negatived. Certain other nominations were agreed to. Three persons were then successively nominated for the office of Schoharie—to wit, Wardell Green, John Ingold, and Benjamin Miles, and they were negatived. Col. William Falconer was then nominated for sheriff of Orange, and being negatived, I nominated Col. John Nicholson for that office. On this nomination the Council (except Mr. Sanders) explicitly refused to vote; and one of the members of the Council proceeded to nominate John Blake, Jun., 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 surprise to me that the Council should claim concurrent right on 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 power 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 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.

John Jay.

THE MAYOR AND ALDERMEN OF THE CITY OF ALBANY TO JAY, MAY 11, 1801.

To his Excellency, John Jay, Esquire, Governor of the State of New York.

Sir—

We, the Mayor, Aldermen and Commonalty of the City of Albany in Common Council convened, cannot forbear at the moment of your departure from this city to retire voluntarily from an elevated official situation into the shades of private life, to express our unfeigned regret for the loss of so estimable a citizen, and such an eminently valuable public servant, and to offer you our sincere thanks and respectful consideration for the various and important services you have performed for your Country.

In rendering this grateful tribute to your virtues, talents and patriotism the members of the Common Council indulge at once a lively sensibility as Freemen, and a peculiar pride as Citizens of your native State. We leave it with the pen of the faithful historian to delineate the distinguished course of your political life, conscious that it will not be forgotten, so long as the glorious epoch of the American revolution is remembered and admired.

The period of your administration of the government of this State, and the integrity of your example, are too strongly marked to escape the attention of future patriots and statesmen, and exhibit useful patterns for their imitation, while at the same time they have engaged our warmest affections. Under these impressions, and as a farther testimony of the high sense the Common Council entertain of your Excellency’s exalted character, we beg leave to present you with the Freedom of the City.

We fervently pray that the benevolent Author of all our blessings, may sweeten your retirement with the rich reward due your merits, and when your course shall be finished here, receive your immortal spirit among the Saints in everlasting Glory.

By order of Common Council.

[1 ]In regard to this controversy see Jay’s Jay, vol. i., pp. 423-427. It remained unsettled during the remainder of Governor Jay’s term, and for several months no appointments of town and county officers were made. Jay transmitted a second message to the Legislature, containing his correspondence in the case with the judges of the Supreme Court. This was first published in a supplement to the Albany Centinel, March 31, 1801.