THE FIRST INSTITUTION created by the 1777 Constitution to cause difficulty was the Council of Appointment. 1 Article XXIII provided for a council composed of the governor and four senators selected annually by the assembly.
The originator of the council, John Jay, assumed that the governor would possess sole power to nominate candidates, who would then be accepted or rejected by the council; however, Article XXIII failed to say so explicitly. 2 The convention which adopted the constitution also seemed to believe that the power resided with the governor. In May 1777, a month following the adoption of the constitution, in an ordinance providing for new appointments and instituting the new government, the convention declared "the appointment of officers in this state is, by the Constitution thereof, vested in the governor, by and with the advice and consent of the Council of Appointment." 3
The unity created by the Revolutionary War and the absence of party lines explains why so little conflict developed in the first fifteen years of the council's existence. During this period Governor George Clinton apparently exercised the sole power to nominate. 4 The rise of more or less clearly defined party lines between Federalists and Republicans, the latter sometimes referred to as Democratic Republicans, in the last decade of the eighteenth century ended that unity. The election of 1793 resulted in Federalist majorities in both houses of the legislature. Flushed with victory and with a desire to end Republican dominance on the council, the legislature enacted a provision which removed sitting members of the council even though the constitution specified their terms at one year. The first act of the newly constituted council was to appoint Egbert Benson to the Supreme Court. Governor Clinton had refused to nominate Benson. Philip Schuyler, a member of the council, proposed the nomination, which the council then voted to accept. This was the first time the council asserted a concurrent right to nominate candidates. Insisting that the right to nominate rested with the governor, Governor Clinton objected, but to no avail. 5 The