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

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

[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.