[Footnote 8: "The clause directing the governor to _nominate_ officers to the Legislature for their approbation being read and debated, was generally disapproved. Many other methods were devised by different members, and mentioned to the house merely for consideration. I mentioned several myself, and told the convention at the time, that, however I might then incline to adopt them, I was not certain, but that after considering them, I should vote for their rejection. While the minds of the members were thus fluctuating between various opinions, I spent the evening of that day with Mr. Morris at your lodgings, in the course of which I proposed the plan for the institution of the Council as it now stands, and after conversing on the subject we agreed to bring it into the house the next day. It was moved and debated and carried."--John Jay, _Correspondence and Public Papers_, Vol. 1, p. 128. Letter of Jay to Robert R. Livingston and Gouverneur Morris, April 29, 1777.] This provision was simply, as the sequel showed, a bungling compromise. Jay intended that the governor should nominate and the Council confirm, and in the event of a tie the governor should have the casting vote. But in practice it subordinated the governor to the Council whenever a majority of the Assembly was politically opposed to him, and the annual election of the Council greatly increased the chances of such opposition. When, finally, the Council of Appointment set up the claim that the right to nominate was vested concurrently in the governor and in each of the four senators, it practically stripped the chief executive of power. The anomaly of the Constitution was the absence of provision for the judicature, the third co-ordinate branch of the government. One court was created for the trial of impeachments and the correction of errors, but the great courts of original jurisdiction, the Supreme Court and the Court of Chancery, as well as the probate court, the county court, and the court of admiralty, were not mentioned except incidentally in sections limiting the ages of the judges, the offices each might hold, and the appointment of clerks. Instead of recreating these courts, the Constitution simply recognised them as existing. The new court established, known as the Court of Errors and Impeachment, consisted of the president of the Senate, the senators, the chancellor, and the three judges of the Supreme Court, or a major part of them. The conception of vesting supreme appellate jurisdiction in the upper legislative house was derived from the former practice of appeals to the Council of the Province,[9] which possessed judicial as well as legislative power. The Constitution further followed the practice of the old Council by providing that judges could not vote on appeals from their own judgments, although they might deliver arguments in support of the same--a custom which had obtained in New York from the earliest times.[10]