USA > New York > Military minutes of the Council of appointment of the state of New York, 1783-1821 > Part 37
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" 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
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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 a former Council, acting under their oaths to support the Constitution, had adopted a dif- ferent 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 dis- agreeable 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.'
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1801.
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"Unfortunately this important question was permitted to con- tinue 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 uni- formly held and exercised the exclusive right of nomination; nor have any of the several councils endeavored 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 IIth 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 per- sons 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 Falconer was then nom- inated 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, junior, 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 sur- prise to me that the Council should claim a concurrent right of nomination with me; but the refusal to vote on one of my nomina- tions, and while it remained undecided to nominate another person for the same office, were measures which, going to the exclusion of
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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."
Having ordered 150 copies of the message to be printed for the use of the members of the House, the discussion of the matter was postponed until the following day, when it was resolved, "That the legislature had 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."
The Governor went further. He requested the opinion of the chancellor and the judges of the Supreme Court and again was dis- appointed, for the judges unanimously refused, because the matter was not within the scope of their official duties but entirely extra- judicial.
On March 17th the three Republican members of the Council, Messrs. Spencer, DeWitt Clinton and Roseboom, sent their version of the dispute to the Assembly. It was conspicuous for the spirit of hositility displayed toward Governor Jay. The members insisted upon their right to nominate with the Governor. One result of the dispute, however, was the constitutional convention of 1801.
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1801.
Governor Jay in his opening address to the legislature had laid particular stress upon the point of difference between the Governor and the Council and the unwieldy proportions the legislature, and especially the Senate, was attaining, owing to the imperfect pro- visions of the first constitution. But the greatest oversight of that instrument lay in its failure to provide for amendments to the exist- ing constitution or arrangements for holding a constitutional con- vention. The legislature, therefore, found itself in an embarrassing situation. It possessed no authority to frame laws, either to amend the old or make a new constitution. It solved the problem, how- ever, by passing "an act " recommending a convention because certain articles of the constitution are of doubtful construction or have been found inconvenient in practice. The election for dele- gates was to begin on the last Tuesday of August and to continue for three days. The delegates so chosen were to meet at the court house in Albany on the second Tuesday of . October to consider " the parts of the Constitution of this State respecting the number
of Senators and Members of Assembly in this State, and with power to reduce and limit the number of them as the said convention may deem proper; and also for the purpose of considering and determin- ing the true construction of the twenty-third article of the Constitu- tion of this State relative to the right of nomination to office, but with no other power or authority whatsoever."
Early in the preceding November John Jay had firmly declined a renomination for a third term. The Federalists consequently nominated Stephen Van Rensselaer for Governor and James Watson for Lieutenant Governor. The Republicans persuaded Governor Clinton to leave his retirement as their standard bearer, and in April, 1801, he was elected by nearly four thousand majority. As Gov- ernor Jay had refused to call a meeting of the Council after February
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24th, and as his term of office expired July Ist, it was not until August Sth that Governor Clinton brought the members together. The appointments which Governor Jay refused to countenance in February were sanctioned in August. This Council of Appoint- ment soon established a record which for summary removals and arbitrary exercise of power had not been equalled. At its first meeting the Secretary of State and State Comptroller were incon- tinently removed from office purely for partisan reasons. A resi- dent of Ulster was appointed surrogate of New York county because of his friendship for DeWitt Clinton, one of the members. A master in chancery and a judge of the Court of Common Pleas of Cayuga were relegated to private life because they were not politically in accord with the men who controlled the Council. This arbitrary course produced a protest from Governor Clinton that was entered on the Council's minutes. In several other instances the Governor refused to sign the minutes of the Council's proceedings. The guillotining process was continued at the next meeting of the Council, especially of New York county office holders; the district attorney, the recorder, clerk of the city and clerk of the circuit all made way for faithful Republicans; the district attorneys of the second and seventh districts suffered a similar fate. Subsequent sessions of this same Council were marked by removals as general, uncalled for and unnecessary. Its interference with the judiciary, however, produced more disquiet in the public mind than all of its other idiosyncrasies. Under the constitutional requirements . that new commissions should be issued to judges of the county courts other than the first judge and to justices of the peace once at least in three years," new commissions were now presented to most of the counties of the State, in which the name of a Republican judge was invariably substituted for that of the Federal incumbent. In this
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manner the Republican party organized a vast and an unscrupulous political machine, extending in its ramifications from the Capitol at Albany to the remotest hamlets in the State.
The constitutional convention executed its work within a brief period. It assembled October 13, 1801, elected Vice President Aaron Burr its president, and adjourned after two weeks' delibera- tion. Regarding the legislative proposition: the number of Sen- ators was fixed at 32, of Members of Assembly at 100, to be increased after each census, at the rate of two yearly until the num- ber 150 was reached. As for the dispute over the right to control the patronage, DeWitt Clinton. the Governor's nephew, and Ambrose Spencer were prominent as the champions of the rights of the Council of Appointment, and John V. Henry, a successful lawyer of Albany, a member of Assembly who had been removed from the office of State Comptroller in August by Messrs. Clinton and Spen- cer, as the champion of the prerogatives of the Governor. The con- vention, however, decided that the Council and the Governor were vested with equal powers in the matter of appointments-or as Daniel D. Tompkins, a delegate to the convention of 1801, expressed it, when president of the constitutional convention of 1821: "The convention of 1801 was assembled to sanction a violent construction of the constitution. Then the maxim was to strip the Governor of as much power as possible." Mr. Tompkins was one of the fourteen delegates who voted to sustain John Jay's interpretation of the sec- tion of the constitution in dispute.
GEORGE CLINTON, GOVERNOR.
DUTCHESS COUNTY.
Theodorus Bailey, brigadier general of a brigade of militia in the county of Dutchess, vice Brigadier General David Van Ness, resigned.
1801. August 11.
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In the regiment whereof Theodorus Bailey was lieutenant colonel commandant: James Sleght, lieutenant colonel commandant, vice Bailey, promoted.
Henry Schoonmaker, first major, vice Sleght, do; Henry Ostrom, second major, vice Schoonmaker, do; Levi McKean, quartermaster, vice B. Knower, removed.
LIGHT INFANTRY-James J. Stoutenburgh, captain, vice Henry Mott, resigned; Obadiah J. Rogers, lieutenant, vice John E. V'n Bunschoten, removed; Tobias L. Stoutenburgh, ensign, vice Samuel Pinckney, junior, transferred to another company.
Eli Angevine, captain, vice Henry Ostrom, promoted; Gerrit Adriance, lieutenant, vice Eli Angevine, do; Adolf Latin, ensign; Samuel Pinckney, junior, ensign; Benjamin Vandewater, lieutenant; Joseph Harris, ensign.
Thomas Casey, junior, captain, vice R. Williams, resigned; John E. De Long, lieutenant, vice Casey, promoted; John Ryan, ensign, vice John E. Pinckney, removed; Jacobus Frear, junior, ensign, vice Mat. Caldwell, promoted; Thomas Landon, junior, ensign, vice John L. Stoutenburgh, resigned.
Koert Dubois, captain, vice Jonathan Owen, declined; Henry Bentley, lieutenant; Justus Marshall, ensign, vice the late subalterns, removed from the beat.
In Brigadier General Theodorus Bailey's brigade:
Samuel Hawkins, captain, vice R. H. Livingston; Nathan Myers, first lieutenant; John T. Schryver, second lieutenant, of artillery.
Lieutenant Colonel Commandant Andries Heermanse having (irregularly) resigned, his resignation is accepted.
Cornelius J. Elmendorph, lieutenant colonel commandant, vice Heermanse, resigned.
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1801.
Cornelius C. Elmendorph, first major, vice Elmendorph, pro- moted; Martin Heermanse, second major, vice C. C. Elmen- dorph, do.
ONONDAGA COUNTY.
A new company of light infantry in Lieutenant Colonel Moses Hopkins' regiment:
1801. August 17.
Ebenezer Beebe, captain; Philemon Andrews, lieutenant; Benja- min Andrews, ensign.
WESTCHESTER COUNTY.
In Lieutenant Colonel Commandant John Odell's regiment: 1501. August 18.
Samuel Lawrence, second major, vice William Leggett, resigned.
William Warner, captain, vice Samuel Lawrence, promoted; Elijah Valentine, lieutenant, vice William Warner, promoted; Lewis Rich, ensign, vice Israel Post, removed.
Robert Read, captain, vice (John) Honeywill, dead; Isaac Ver- milye, lieutenant, vice Robert Read, promoted; Samuel Lyon, ensign in the company whereof Robert Read is captain; Augustus Bartow, ensign in Captain David Ferris' company, vice the ensign removed; Benjamin Drake, junior, lieutenant in Captain Jeremiah Schureman's company; Frederick Schureman, junior, ensign in do; Hezekiah Ward, lieutenant in Captain (Samuel) Berrian's company; Moses Hunt, ensign, vice Hezekiah Ward, promoted in do.
In Lieutenant Colonel Commandant Thomas Carpenter's regi- ment:
Gilbert Brown, second major.
Christopher Eisenhart, captain, vice G. Brown, promoted; Peter Hains, lieutenant in Captain Eisenhart's company; Isaac Worden, ensign in do; Benjamin Oakley, lieutenant in Captain (Jonathan) Purdy's company.
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Stephen Hunt, captain, vice Thomas Ferris, removed to New York; John Carpenter, ensign in Stephen Hart's company.
Charles F. Thomas, captain, vice John Haviland, refused to qualify; Jeremiah Horton, lieutenant.
Rivers Morrel, captain, vice Samuel Pine, removed; Nehemiah Brown (son of Samuel), lieutenant in Rivers Morrel's company; David Lyon, ensign, vice Rivers Morrel, promoted in do.
1801. August 19.
John McLean, of the city of New York, commissary of military stores, vice Ebenezer Stevens, superseded.
John Liswell, deputy commissary of military stores, to take charge of the arsenal near the city of Albany, vice Jacob H. Wendell, superseded.
SARATOGA COUNTY.
1801. August 20.
In Lieutenant Colonel Commandant Samuel Clark's regiment:
William Marvin, captain, vice Captain (John) Dunning, pro- moted; Noah Gates, lieutenant. vice William Marvin, promoted; Marmaduke Hawkins, ensign. vice (Jeremiah) Beats (Betts), moved away.
John Cady, captain, vice Jotham Bemus, do; John Bemis, lieu- tenant, vice Ellis, resigned; George Peck, ensign, vice the former ensign, moved away.
Reuben Woodworth, captain, vice (Joseph) Dickenson, moved away; Jacob Rogers, lieutenant. vice Reuben Woodworth, pro- moted; Goodridge Kellar, ensign.
Joseph Stephens, captain, vice (Thomas) Patterson, resigned; Edmond Johnson, junior, lieutenant, vice Joseph Stephens, pro- moted; James Black, ensign; David Bidwell, lieutenant, vice (Josiah) Richardson, moved away; Abraham Vollentine, ensign, vice Bid- well, promoted.
Richard Dunning, adjutant.
STATE HISTORIAN.
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1801.
ONONDAGA COUNTY.
Thaddeus M. Wood, inspector of the brigade whereof Elihu Lewis 1801. August 25.
is brigadier general.
COLUMBIA COUNTY.
In Lieutenant Colonel Commandant Samuel Ten Brouk's regi- ment :
Peter Weaver, an ensign in Captain (Asa) Holmes' company, to take rank from the 9th day of April, 1796, having been appointed by the name of Peter Wheeler through mistake.
In Captain Ten Eyck's company: Peter N. Hermance, lieuten- ant, vice John B. Ten Eyck, promoted; John Dunspugh, ensign, vice Peter Ham, resigned.
Barent Van Deusen, captain, vice Joseph Laurence, deceased; John Dederick Groot, lieutenant, vice Van Deusen, promoted; Nicholas Robinson, ensign, vice John D. Groot, promoted.
Isaac B. Smith, captain, vice John Wigram, resigned; John S. Wigram, lieutenant, vice Cornelius Miller, removed; Tobias Miller, junior, ensign, vice John T. Miller, removed.
RENSSELAER COUNTY.
Resolved, that Nicholas Staats be and is hereby appointed lieu- tenant colonel commandant in the brigade in the county of Rensse- laer, whereof Henry K. Van Rensselaer is brigadier general, in the place of Nicholas Van Rensselaer, whose appointment as lieuten- ant colonel commandant in the said brigade is hereby revoked,- and that the said Nicholas Van Rensselaer be and he hereby is appointed first major and Philip Staats second major in the said regiment, the said Nicholas Van Rensselaer in the place of Philip Staats and the said Philip Staats in the place of James McKown, whose appointments and commissions are hereby revoked.
1801.
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ANNUAL REPORT OF THE
COLUMBIA COUNTY.
In Lieutenant Colonel Commandant Samuel Ten Brouk's regi- ment:
In Captain M. Livingston's company: Andries J. Haver, ensign, vice James G. Gardner, resigned.
In Captain (Tiel) Rockefeller's company: George Amigh, lieu- tenant, vice Thomas G. Van Steenbergh, removed.
In Captain Peter Sharp's company: Garrit Cock, captain, vice Peter Sharp, resigned; Wilhelmus Philip, lieutenant, vice William Snyder, do; Philip D. Lasher, ensign, vice Henry Dick, do.
John Kortz, quartermaster, vice Martin J. Cooper, deceased; Ben- jamin Row; surgeon's mate.
SOUTHERN DIVISION.
1801. October 29.
Matthew Clarkson having by his letter of the 7th of February last resigned his appointment of major general of the southern district, Resolved, that his resignation be accepted and that Thomas Thomas be and is hereby appointed major general of the militia of the south- ern division in his place.
WESTCHESTER COUNTY.
Lieutenant Colonel Commandant Benjamin Green having resigned by permission of the brigadier general, Thomas Thomas, his resignation is accepted.
Pierre Van Cortlandt, junior, lieutenant colonel commandant, in place of Benjamin Green.
John Paulding, first major; Jacob Montross, second major.
1801. December 31.
DUTCHESS COUNTY.
In Lieutenant Colonel Commandant Cornelius J. Elmendorph's regiment :
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1801.
STATE HISTORIAN.
Zacharias Smith, lieutenant, vice Henry Walter, removed; Peter Kypenbergh, ensign, vice Zacharias Smith, promoted.
Anthony Delamatre, captain, vice Martin Hermanse, do; Peter Brown, junior, lieutenant, vice Anthony Delamatre, do; John G. Ring, ensign, vice Peter Brown, junior, do; Abraham A. Kip, lieu- tenant, vice Jacob J. B. Kip, removed; Rufus Spalding, ensign, vice Abraham A. Kip, promoted.
Henry G. Martin, captain, vice Jacob P. Coles, resigned; Jacob C. Elmendorph, lieutenant, vice Henry G. Martin, promoted; Jacob L. Hendricks, ensign, vice Jacob C. Elmendorph, do; John Knicker- backer, junior, lieutenant, vice (Edmund) Reynolds, removed; Peter Knickerbacker, junior, ensign, vice John Knickerbacker, junior, promoted.
Lewis Freligh, captain, vice Jacob Hogadorn, removed; Seth B. Randel, lieutenant, vice Lewis Freligh, promoted; John F. Shultz, ensign, vice Seth B. Randel, do.
William Canfield, captain, vice James Turner, resigned; John Thorn, lieutenant, vice Samuel Mulford, do.
Henry W. Stewart, captain, vice Isaac Sherwood, do; James R. Wilie, lieutenant, vice Zacharias Seimon, resigned; Elijah Roe, junior, ensign, vice Gerrit Hermanse, removed; Peter Lewis, lieu- tenant, vice Henry Benner, resigned; William Hendrickson, ensign, vice Gerrit B. V: Ness, removed.
John G. Martin, adjutant, vice Samuel Elmondorph, resigned; Simon Wilson, quartermaster, vice John J. Kip, do; Andrew H. Hermanse, paymaster, vice Jacob J. Elmondorph, removed; Wil- helmus P. Hoghtailing, surgeon, vice William Wheeler, resigned; Peter Snyder, surgeon's mate, vice Philip H. Hermanse, removed. In Lieutenant Colonel Commandant Edmund Parlee's regiment: Benjamin Herrick, first major, vice David Hamlin, resigned; Nathan Conklin, second major, vice Platt Smith, deceased.
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ANNUAL REPORT OF THE
1802.
Isaac Smith, captain, vice Benjamin Herrick, promoted.
Daniel Lewis, captain, vice John Thompson, resigned; Seth Thompson, lieutenant, vice Daniel Lewis, promoted; Asa Thomp- son, ensign, vice Seth Thompson, 'do.
Anthony Wheeler, captain, vice Ephraim Smith, resigned; Alex- ander Neely, lieutenant, vice Anthony . Wheeler, promoted; Thomas N. Wheeler, ensign, vice Alexander Neely, do.
Joel Benton, quartermaster, vice John Brush, removed; James Myers, ensign in Captain (Martin .E.) Winchell's company; Jacob Dakin, ensign, vice Abraham Hartwell, removed; Humphrey Rich- ardson, ensign, vice Joel Benton, quartermaster; Peter W. Smith, lieutenant, vice Lieutenant (Joseph) Mygatte, removed; Douglass Clark, ensign, vice Ensign (William) Gager, resigned.
Alexander Spencer, captain, vice Ephraim Hamlin, to take rank from May 8, 1798, instead of from August 28, 1798.
NEW YORK COUNTY.
Lieutenant Colonel Commandant Walter W. Heyer having regu- larly resigned, his resignation is accepted.
Jacob Bradford, first major, and Isaac Heyer, third major, of Lieutenant Colonel Commandant Jacob Morton's regiment, having regularly resigned, their resignations are accepted.
Archibald McCollum, captain in Lieutenant Colonel Commandant Anthony Post's regiment, and David S. Jones, lieutenant in Lieu- tenant Colonel Commandant Walter Becker's regiment, having regularly resigned, their resignations are accepted.
ONEIDA COUNTY.
Ebenezer Wright, junior, John White and Henry Donnelly, cap- tains, and Wolcott Beckwith, lieutenant, in Lieutenant Colonel Commandant Daniel W. Knight's regiment, having regularly resigned, their resignations are accepted.
1802. January 4.
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STATE HISTORIAN.
MONTGOMERY COUNTY.
Joseph House, second major, Jacob A. Young and Cornelius Van Camp, captains, Jolin Roth and Nicholas Van Eversa, lieutenants, and John A. Lipe, ensign, in Lieutenant Colonel Commandant Rob- ert McFarlan's regiment, having regularly resigned, their resigna- tions are accepted.
ALBANY COUNTY.
Aaron H. Bradt, first lieutenant of a company of artillery in the city of Schenectady, having regularly resigned, his resignation is accepted.
Dowe Clute, lieutenant in Lieutenant Colonel Commandant Jellis A. Fonda's regiment in the city of Schenectady, having regularly resigned. his resignation is accepted.
TIOGA COUNTY.
David Jones, inspector of Brigadier General Orring Stoddard's brigade, having (irregularly) resigned. his resignation is accepted.
SARATOGA COUNTY.
Captain Grover Buel, of Lieutenant Colonel Thomas Rogers' regiment, having regularly resigned, his resignation is accepted.
ALBANY COUNTY.
Isaac Van Wie, captain in Lieutenant Colonel Commandant (Ste- phen) Van Resselaer's regiment, having regularly resigned, his resignation is accepted.
RENSSELAER COUNTY.
Lieutenant Colonel Commandant Dirck Lane having (irregularly) resigned, his resignation is accepted.
RICHMOND COUNTY.
Peter Perine, captain of a company of light horse, having irregu- larly resigned-Resolved, that the consideration thereof be postponed.
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ANNUAL REPORT OF THE
1802.
MONTGOMERY COUNTY.
Brigadier General Volkert Veeder having (irregularly) resigned, his resignation is accepted.
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