The correspondence in the last chapter between Mr. and Mrs. Burr has
been selected and published that the world may judge him as husband
and parent, so far as his letters afford a criterion. As literary
productions they cannot fail to interest and amuse.
On the 8th day of March, 1790, the legislature passed an act
appointing Gerard Bancker, treasurer, Peter Curtenius, auditor, and
Aaron Burr, attorney-general, a board of commissioners to report on
the subject of the various claims against the state for services
rendered, or injuries sustained, during the war of the revolution. The
task was one of great delicacy, and surrounded with difficulties. On
Colonel Burr devolved the duty of making that report. It was performed
in a masterly manner. When presented to the house, notwithstanding its
magnitude, involving claims of every description to an immense amount,
it met with no opposition from any quarter. On the 5th of April, 1792,
the report was ordered to be entered at length on the journals of the
assembly, and formed the basis of all future settlements with public
creditors on account of the war. In it the various claimants are
classified; legal and equitable principles are established, and
applied to each particular class. The report occupies eighteen folio
pages of the journals of the assembly. An extract from it is made, as
justly meriting a place in this work.
The said report is in the words and figures following:----"The
treasurer, the auditor, and the attorney-general, pursuant to the act
entitled _An act to receive and state accounts against this state_,
did forthwith, after the passing of the said act, give such notice of
their appointment and duties, and of the times and places for the
execution thereof, and of the period by the said act limited for
receiving and auditing claims, as is directed by the said act. And do
herewith transmit to the legislature their report upon the accounts
and claims against the state, which have been thereupon exhibited.
"The anxiety of the commissioners to render the execution of this
trust useful and acceptable has occasioned a delay of some weeks; if
their success in this attempt has been in any degree proportioned to
their attention to the subject, it will furnish their excuse; indeed,
when the legislature shall have seen the number, the variety, and
intricacy of the matters which have been submitted to the
consideration of the commissioners, it is hoped that a further apology
will be thought unnecessary.
"The commissioners have endeavoured to reduce these various demands
into classes, in such manner as to present to the legislature, in one
view, all which have appeared to depend on similar principles.
Notwithstanding their utmost attention to this object, they have found
it necessary to report on a considerable number of single cases. As
the authority under which they have acted required of them a state of
facts, together with their opinion thereupon, whenever there was a
want of uniformity either in the facts submitted or in the principles
to be applied in the determination, they have thought that strict
justice could not be done to the merit of the claim without a separate
discussion, though this has tended to lengthen the report beyond what
could have been wished, and to a degree which perhaps may in some
instances be thought prolix, yet the commissioners supposed it of
moment that their investigation should be not only satisfactory to
themselves, but that it should be apparent to the citizens upon whose
claims they have pronounced, that each hath received a distinct
attention, and that demands substantially different from each other
have not been inconsiderately blended. If the perusal of the
proceedings now submitted shall give an impression of this kind, it
will, in the opinion of the commissioners, tend to produce a more
cheerful acquiescence in the determination of the legislature, when
that determination shall reject the demand, and prevent a revival of
claims which shall now be extinguished. The commissioners have thought
that these were desirable objects, and have therefore been cautious of
generalizing, so as to destroy real distinctions, or suppress a fact
even of the lightest importance.
"In order to preserve uniformity in their opinions, the commissioners
have adopted certain principles, from which the hardship of any
particular case hath not induced them to depart. The most general and
important of these are,
"_First_. Where any species of claims is barred by an act of the
legislature, they have considered the act as a bar to their
investigation, farther than to ascertain it to be unquestionably
within the meaning of the law. This principle will be found to extend
to all claims for pay and rations alleged to be due for militia
service; to most of the demands against forfeited estates; to all
claims for property sequestered, when the sequestration was warranted
by the resolutions of the convention and the authority of the
commissioners; to all claims of payment of state agents' notes, and to
some other particular cases, which will appear in the report. In
support of this principle the commissioners have considered, that to
sanction by their opinion the admission of claims against the spirit
and letter of the statute would be an impeachment of the wisdom of
those laws; would be arrogating an authority not exercised by, or
permitted to, any court of law or equity, and would open a door to the
importunate and perhaps least deserving class of citizens, while
others, having similar demands, had withdrawn them from a spirit of
submission to the laws, by which these demands were precluded. The
commissioners have been confirmed in the propriety of their ideas by a
reflection that, if it shall for any reasons seem expedient to the
legislature to repeal or suspend the limitation of these or any of
those statutes, the avenues to redress will at once be open through
the ordinary officers of the state, without farther legislative
interposition; and that the opportunities of recompense would then be
notorious and equal; but that the redress, if any should be obtained
through the medium of the commissioners, would be partial in its
operation, and to the exclusion of those who with equal merits had
acquiesced in the known laws.
"_Second._ In the cases of claims for services done and supplies
furnished during the war, when the demand, though originating under
the authority of this state, is properly against the United States,
the opinion of the commissioners is against the allowance of any
recompense, because those claims should more properly be preferred to
Congress; and for that this state can have no credit with the United
States for payment or assumptions after the 1st day of October, 1788.
"And that, therefore, the claimants having neglected to exhibit their
demands within the period during which this state could without loss
have assumed them, cannot complain if they are now referred to the
proper tribunal. Payments by the state were in such cases, at all
times, of favour, and not of right.
"_Third._ All claims for the subsistence and services of the levies
and militia, or other troops, composing a part of the continental
army, or destined to join the army, and moving to such places of
destination, or under the command or orders of a continental officer,
and all claims for supplies and services beforehand for such troops,
are considered as proper against the United States only, and are
classed accordingly; the commissioners have been led to a more strict
attention to this distinction by the reasons just before mentioned,
and are warranted by the practice of the continental commissioners for
settling accounts, in declaring that such accounts and demands were
proper against the United States.
"Principles of more limited operation, and other remarks, will appear
in those parts of the report to which they apply.
"Explanatory of particular parts, and of the general form of the
report, it may be proper to observe,
"That where the claim or account appears, upon the face of it, to be
evidently against the United States only, or for other reasons
palpably inadmissible, the commissioners have thought it would have
been superfluous to state the proof, and have therefore, in those
cases only, given such abstracts of the claim or account as suffice to
render the exception apparent.
"In giving their opinion, the commissioners have not detailed all the
reasons which led to it, but have given a summary of such as appeared
to them most conclusive; and, as well in this as in stating the facts,
have aimed at as much brevity as appeared to them to consist with
perspicuity. If they shall be found in any instances obscure, a
reference to the claim and proofs will probably elucidate them. When
the claim is provided for by existing laws, the opinion of the
commissioners refers the claimant to the mode pointed out by such law.
"Demands of different natures by the same person are placed under the
head which comprises the greater demand. The claim and vouchers being
in such cases usually contained in the same paper or annexed together,
it was necessary so to place them in the report that there might be no
confusion in the references.
"To produce facility in the review of these proceedings, the documents
referred to are all herewith delivered, and are in bundles, marked
agreeably to the heads under which they are classed.
"_Claims for Militia Pay._
[In the report a number of cases are here inserted.]
"By an act passed the 27th of April, 1784, entitled _An act for the
settlement of the pay of the levies and militia for their services in
the late war, and for other purposes therein mentioned_, the mode in
which the rolls and abstracts for pay and subsistence are to be made
out and settled is particularly pointed out, and competent powers and
directions for the liquidation of those accounts are thereby given to
the treasurer and auditor."
"By the 14th section of an act passed the 21st of April, 1787,
entitled _An act for the relief of persons who paid money into the
treasury, &c_., the aforesaid act of the 27th of April, 1784, is
repealed. The commissioners consider this repeal as an exclusion of
all further claims for pay and subsistence of the militia and levies.
They are constrained to adopt this opinion, not only from the obvious
intention of the act, but because, by the absolute repeal of the act
of the 27th of April, 1784, there remains no prescribed mode of
authenticating these demands; that any rules which the discretion of
the commissioners should lead them to adopt would have been unknown to
the claimants, who could therefore have had no opportunity of adapting
their demands to such rules; and because, if the legislature shall be
disposed to direct compensations for such services, it will, in the
opinion of the commissioners, be most properly effected by a revival
of the said act of the 27th of April, 1784, with such further
provisions and checks as may be thought necessary; or by some other
general statute, to be passed for those purposes, and which may give
equal opportunities to the claimants, and place the liquidation and
settlement of such demands in the hands of the ordinary officers of
the state.
"_Claims for services, supplies, and losses, which, if admissible, can
be made against the United States only._
[In the report details follow, and the commissioners remark]--
"The foregoing claims and accounts the commissioners conceive to be
proper against the United States only. This is, in their opinion,
sufficiently evident in most of the cases from a bare statement of the
demands. Some few appear to require a more special report. The
resolutions of Congress of the 7th of May, 1787, and 24th of June,
1788, relative to the settlement of accounts between the United States
and individual states, will show the extent of the powers of the
Continental Commissioners, and will serve to explain the opinions in
such of the preceding cases as may appear to require farther
illustration."
"_Claims for payment of State Agents' Certificates_.
"By the 25th section of the act passed the 5th of May, 1786, entitled
_An act for the payment of certain sums of money, and for other
purposes therein mentioned_, all persons holding or possessing
certificates of Udny Hay or any of his assistants, or of Jacob Cuyler,
Morgan Lewis, or Andrew Bostwick, were required to present them, in
the manner therein prescribed, to the treasurer, before the 1st of
September, 1786; and those who failed therein are thereby declared _to
be barred and for ever precluded_ from any compensation, of which the
treasurer was directed to give public notice by advertisement, which
was accordingly done.
"By another act, passed the 31st of March, 1787, the time for
presenting the certificates of Udny Hay and his assistants was
extended until the first of May then next, which time has not been
further extended by any law of this state: so that all certificates of
those denominations which were not presented within the times and in
the manner specified in those laws, are expressly barred and for ever
precluded from compensation.
"The commissioners have therefore, for the reasons contained in the
observations prefixed to this report, conceived that a reference to
the aforesaid acts was the most proper discharge of their duty with
respect to all claims of compensation for such certificates.
"_Claims for grain impressed for the use of the army by virtue of
warrants issued by his excellency the governor, pursuant to an act
passed 23d June, 1780_.
"The law authorizing these impresses declares the articles impressed
to be for the _use and service of the army_, and that the owner shall
be entitled to receive from the public officer authorized to pay the
same the current price for the articles impressed, but does not say by
whom that public officer is to be appointed. The commissioners have,
however, no doubt but these were proper claims against the United
States, and would have been allowed by the Continental Commissioner if
exhibited in proper season; therefore, and for the reasons contained
in the second preliminary observation, the commissioners are of the
opinion that these claimants cannot of right demand payment of this
state.
"The claims of Van Rensselaer and Dumond, the commissioners are of
opinion are reasonable; that, having been employed under the governor,
the claimants could have no demand against the United States, and that
the charges are proper against this state.
"_Claims for services in assisting H.I. Van Rensselaer and Egbert
Dumond in making the said impresses_.
"The commissioners consider the reasons just before stated in favour
of the claims of Van Rensselaer and Dumond to apply to the eleven
preceding, and that they are therefore proper charges against this
state.
"_Claims for payment of debts due from persons whose property hath
been forfeited or sequestered_.
"The several foregoing demands against forfeited estates arose after
the 9th day of July, 1776, and are expressly precluded by the 42d
section of an act passed the 12th of May, 1784, entitled _An act for
the speedy sale of the confiscated and forfeited estates within this
state, and for other purposes therein mentioned_.
"The next twenty-five claims are for satisfaction of debts out of the
proceeds of property sequestered. The estates of the several debtors
have become forfeited, but in some instances no property hath come to
the hands of the commissioners of forfeitures; and in others, the
property which has come to their hands hath been insufficient for the
discharge of debts which have been certified.
"The succeeding twenty-six claims are to have debts satisfied out of
the proceeds of property sequestered, though there had been no
conviction of adherence or other forfeiture of the estate of the
debtors.
"The commissioners are of opinion that a law should be passed
authorizing the treasurer to pay demands against forfeited estates, in
all cases where there still remains in his hands a surplus from the
proceeds of such estates, notwithstanding the limitation contained in
the act of 12th May, 1784. But the commissioners would recommend that
some mode different from that prescribed in the said act be directed
for the ascertaining the amount of those demands. The several
claimants and such others as have neglected to avail themselves of the
benefit of the said act, may, in the opinion of the commissioners, be
with propriety holden to strict legal proof of their respective
demands, in due course of law, in some court of record, where the
interest of the state may be defended by some officer to be for that
purpose appointed.
"The commissioners are further of opinion, that where there has been a
sequestration of any part of the property of a person _whose estate
hath become forfeited_, the avails of the property so sequestered, as
far as the same _can be distinguished_, should be subject to the
payment of his debts, in like manner as may be provided with respect
to other demands against forfeited estates; but it would not, in the
opinion of the commissioners, be at this time advisable to assume the
payment of the debts of persons whose property hath been sequestered,
and where there hath been no other forfeiture or confiscation.
"_Claims relative to sequestration, and property taken by orders of
the Convention_.
"These persons were voluntarily within the British lines, and their
property was therefore liable to sequestration under the acts of the
Convention. They produce a certificate of their attachment to the
American cause, signed by some respectable characters. But being
within the resolutions of the Convention, the commissioners cannot
advise a recompense.
"GERARD BANCKER, _Treasurer_.
"PETER T. CURTENIUS, _State Auditor_.
"AARON BURR, _Attorney-general_."
On the 19th of January, 1791, Colonel Burr was appointed a senator of
the United States, in the place of General Schuyler, whose term of
service would expire on the 4th of March following. Until about this
period he was but little known as a partisan politician. After the
organization of the federal government under the new constitution, he
appears to have felt a great interest in its operations. In the French
revolution also, his feelings were embarked; and he was among the
number of those who condemned the cold and repulsive neutrality which
characterized the administration of that day. That he was now about to
launch into the troubled ocean of politics was evident to Mrs. Burr,
and therefore, in a letter to him under date of the 23d of July, 1791,
she says, "It is of serious consequence to you to establish your
health _before you commence politician_," &c.
In the autumn of 1791 Congress convened at Philadelphia, and Colonel
Burr took his seat in the Senate of the United States. It has often
been remarked of him, and truly, that no man was ever more cautious or
more guarded in his correspondence. A disposition, from the earliest
period of his life, to write in cipher, has already been noticed. To
this may be added an unwillingness, on all important questions, to
commit himself in writing. As soon as he entered the political arena,
this characteristic was visible even in his letters to Mrs. Burr. On
the 14th of November, 1791, he writes her--"To the subject of politics
I can at present make no reply. The _mode of communication would not
permit_, did no other reason oppose." And again, December 21st, he
says--"You will perhaps admire that I cannot leave Congress as well as
others. This, if a problem, _can only be solved at a personal
interview_."
At the commencement of the revolutionary war, the State of New-York
held an extensive tract of wild and unimproved lands. Sundry laws were
passed in the years 1779, 1780, 1784, 1785, and 1786, providing for
their sale and settlement. A board was created, entitled "the
Commissioners of the Land Office." It was composed of the governor,
the secretary of state, the attorney-general, the treasurer, and the
auditor. The powers conferred by the several acts above referred to
having been found inadequate to the proposed object, the legislature,
on the 22d of March, 1791, gave unlimited powers to the commissioners,
authorizing them to "dispose of any of the waste and unappropriated
lands in the state, in such parcels, and on such terms, and in such
manner as they shall judge most conducive to the interests of the
state." In pursuance of this authority, the commissioners sold during
the year 1791, by estimate, five millions five hundred and forty-two
thousand one hundred and seventy acres of waste land, for the sum of
one million and thirty thousand four hundred and thirty-three dollars;
leaving in the possession of the state, yet to be disposed of, about
two millions of acres. Among the sales was one to Alexander Macomb,
for three millions six hundred and thirty-five thousand two hundred
acres. The magnitude of this sale, and the price at which it was sold,
created a great excitement throughout the state, and at the session of
the legislature which commenced on the 4th of January, 1792, the
subject was brought before the assembly.
The price at which Mr. Macomb made his purchase was eight pence per
acre, payable in five annual instalments, without interest, with
permission to discount for prompt payment at six per cent. per annum,
which made the price about equal to seven cents per acre cash. Colonel
Burr, as attorney-general, was a member of the board. On the 9th of
April, 1792, the report of the commissioners being the order of the
day, the subject was taken up in the house. Mr. Talbot, from
Montgomery county, moved sundry resolutions. They were intended as the
foundation for an impeachment of a part of the commissioners of the
land office. They assumed to contain a statement of facts, evidencing
on the part of the commissioners great indiscretion and want of
judgment, if not corruption, in the sale of the public lands, and they
charged the commissioners with a willful violation of the law. These
resolutions, however, excepted Colonel Burr from any participation in
the maleconduct complained of, inasmuch as the minutes of the board
proved that he was not present at the meetings (being absent on
official duty as attorney-general) when these contracts, so ruinous,
as they alleged, to the interests of the state, were made: nor did it
appear that he (Colonel Burr) was ever consulted in relation to them.
These resolutions elicited a heated debate; in the progress of which
all the commissioners, except the attorney-general, were assailed with
great bitterness; and charges of corruption by innuendo were
unceremoniously made. At a late hour the house adjourned without
decision until the next day.
On the 10th of April, 1792, Mr. Melancton Smith moved the following
resolution, with a preamble as a substitute:--
"Resolved, That this house do highly approve of the conduct of the
commissioners of the land office in the judicious sales by them, as
aforesaid, which have been productive of the before mentioned
beneficial effects."
This resolution was adopted by a vote of ays 35--noes 20.
Of Melancton Smith it is proper to remark here that he was a plain,
unsophisticated man. A purer patriot never lived. Of the powers of his
mind some opinion may be formed by the following anecdote. Dr.
Ledyard, who was afterwards health officer of the port of New-York,
was a warm federalist. He was at Poughkeepsie while the federal
constitution was under discussion in the state convention. Smith was
an anti-federal member of that body. Some time after the adoption of
the constitution, Ledyard stated to a friend of his, that to Colonel
Alexander Hamilton had been assigned, in a special manner, the duty of
defending that portion of the constitution which related to the
judiciary of the United States. That an outdoor conversation between
Colonel Hamilton and Mr. Smith took place in relation to the
judiciary, in the course of which Smith urged some of his objections
to the proposed system. In the evening a federal caucus was held; at
that caucus Mr. Hamilton referred to the conversation, and requested
that some gentleman might be designated to aid in the discussion of
this question. Robert R. Livingston, chancellor of the state, was
accordingly named. Mr. Livingston was at that time a distinguished
leader in the ranks of the federal party. Whoever will take the
trouble to read the debates in the Convention, in which will be found
the reply of Smith to Livingston, will perceive in that reply the
efforts of a mighty mind. It was a high but merited compliment to the
talents of Melancton Smith, that such a man as Colonel Hamilton should
have wished aid in opposing him.
During the winter of 1791-92, being Colonel Burr's first session in
the Senate of the United States, he spent much of his leisure time in
the state department. For several sessions after the organization of
the federal government, all the business of the Senate was transacted
with closed doors. At that period the correspondence of existing
ministers was kept secret, even from the senators. With every thing
connected with the foreign affairs of the country, Colonel Burr was
exceedingly anxious to make himself intimately acquainted. He
considered it necessary to the faithful and useful performance of his
duty as a senator. He obtained permission from Mr. Jefferson, then
secretary of state, to have access to the records of the department
before the hour for opening the office arrived. He employed one of the
messengers to make a fire at five o'clock in the morning, and
occasionally an intelligent and confidential clerk to assist him in
searching for papers. Here he was engaged until near ten o'clock every
day. It was his constant practice to have his breakfast sent to him.
He continued this employment the greater part of the session, making
notes on, or extracts from, the records of the department, until he
was interrupted by a peremptory order from the president (Washington)
prohibiting his farther examination.
Wishing some information that he had not obtained in relation to a
surrender of the western posts by the British, he addressed a note to
the secretary of state, asking permission to make that particular
examination; to which he received the following answer:----
"Thomas Jefferson presents his respectful compliments to Colonel Burr,
and is sorry to inform him it has been concluded to be improper to
communicate the correspondence of existing ministers. He hopes this
will, with Colonel Burr, be his sufficient apology."
In April, 1792, there was an election for governor of the State of
New-York. By some it was supposed that Governor Clinton would decline
being again considered a candidate. It was known that John Jay would
be the candidate of the federal party. At that period Colonel Burr had
warm personal friends in both parties, who were urging his
pretensions. Among the most ardent was Judge Yates. In the latter part
of February, 1792, he authorized his friends to state that he declined
a nomination. He was placed, however, in an unpleasant dilemma. The
connexions, and many of the personal friends of Governor Clinton, were
jealous of Colonel Burr's talents and growing influence. Between the
governor and himself there was very little intercourse. On the other
hand, the kindest feelings towards him were evinced by Chief-justice
Jay, who was a most amiable man. It was his wish, therefore, as far as
practicable, consistent with his principles, to remain neuter. He had
never been an electioneering character, and with the people he wished
to leave the pending question, without the exercise of any influence
he might be supposed to possess.
By the then existing laws of New-York, the ballots that were taken in
the several counties were, immediately after the election, transmitted
to the office of the secretary of state, and there kept until the
second Tuesday in May, when the board of canvassers were, by law, to
convene and canvass them. The election for governor was warmly
contested; the federal party supporting Judge Jay, the anti-federal
party George Clinton. When the canvassers met, difficulties arose as
to the legality of the returns from certain counties, particularly of
Otsego, Tioga, and Clinton. The canvassers differing in opinion on the
question whether the ballots should be counted or destroyed, they
agreed to ask the advice of Rufus King and Colonel Burr. These
gentlemen conferred, and, like the canvassers, differed: whereupon Mr.
Burr proposed that they should decline giving advice. To this Mr. King
objected, and expressed a determination to give his own opinion
separate. This rendered it necessary for Colonel Burr to adopt a like
procedure. He thus became a partisan, and a most efficient partisan,
in that controversy.
_Seven_ of the canvassers determined to reject and destroy the ballots
alleged to have been illegally returned. To this decision _four_
objected. The ballots were accordingly destroyed, and George Clinton
declared to be duly elected governor. The excitement produced was
without a parallel in the state. The friends of Judge Jay contended
that he had been chosen by the people, but was cheated out of his
election by the corruption of the canvassers. Great asperity and
virulence were exhibited by both political parties on the occasion.
From the moment that Colonel Burr was driven to interfere in the
controversy, he took upon himself, almost exclusively, the management
of the whole case on the side of the anti-federal party. His
accustomed acumen, vigilance, and zeal, were promptly put in
requisition. Full scope was allowed for the display of those great
legal talents for which he was so pre-eminently distinguished. It has
been known to only a very few individuals that on Colonel Burr rested
nearly the whole labour; and that nothing was done, even by the
canvassers, but under his advice and direction. It has therefore been
deemed proper to insert here some of the official details of the case.
They are worthy record, as an interesting part of the political
history of the State of New-York.
"_Statement of the case by the Canvassers, for the advice of Rufus
King and Aaron Burr_.
"OTSEGO.--By the 26th section of the constitution of the State of
New-York, it is ordained that sheriffs and coroners be annually
appointed, and that no person shall be capable of holding either of
the said offices for more than four years successively, nor the
sheriff of holding any other office at the same time. By the ninth
section of the act for regulating elections, it is enacted that one of
the inspectors shall deliver the ballots and poll-lists, scaled up, to
the sheriff of the county; and, by the tenth section of the said act,
it is further enacted, that each and every sheriff of the respective
counties in this state shall, upon receiving the said enclosures,
directed to be delivered to him as aforesaid, without opening or
inspecting the same, or any or either of them, put the said
enclosures, and every one of them, into one box, which shall be well
closed and sealed up by him, under his hand and seal, with the name of
his county written on the box, and be delivered by him into the office
of the secretary of this state, where the same shall be safely kept by
the secretary, or his deputy. By the eleventh section of the said act,
all questions arising on the canvass and estimate of the votes, or on
any of the proceedings therein, shall be determined by a majority of
the members of the joint committee attending; and their judgment shall
be final, and the oath of the canvassers requires them faithfully,
honestly, and impartially to canvass and estimate the votes contained
in the boxes delivered into the office of the secretary of this state
by the sheriffs of the several counties.
"On the 17th of February, 1791, Richard R. Smith was appointed sheriff
of the county of Otsego, and his commission gives him the custody of
that county until the 18th of February, 1792. On the 13th of January,
1792, he writes a letter to the Council of Appointment, informing them
that, as the year for which he was appointed had nearly elapsed, he
should decline a reappointment.
"On the 30th of March, 1792, the Council of Appointment appointed
Benjamin Gilbert to the office of sheriff of the said county, with a
commission, in the usual form, to keep the county until the 17th of
February next. His commission was delivered to Stephen Van Rensselaer,
Esq., on the 13th of April last, to be forwarded by him to the said
Benjamin Gilbert. By the affidavit of the said Benjamin Gilbert,
herewith delivered, it appears that he qualified into the office of
sheriff on the 11th day of May, 1792. On the first Tuesday in April,
1792, Richard R. Smith was elected supervisor of the town of Otsego,
in said county, and on the first Tuesday in May took his seat at the
board of supervisors, and assisted in the appointment of loan officers
for the county of Otsego. By the affidavit of Richard R. Smith,
herewith delivered, it appears that the ballots taken in the county of
Otsego were delivered to him as sheriff, and by him enclosed in a
sufficient box, on or about the 3d of May, which box he then delivered
into the hands of Leonard Goes, a person specially deputed by him for
the purpose of delivering the said box into the hands of the secretary
of this state, which was accordingly done, as appears by information
from the secretary.
"A small bundle of papers, enclosed and sealed, was delivered to the
secretary with the box, on which is written, 'The votes of the town of
Cherry Valley, in the county of Otsego. Richard R. Smith, Sheriff.'
Several affidavits, herewith delivered, state certain facts respecting
this separate bundle, said to be the votes of Cherry Valley.
"On this case arise the following questions:--
"1. Was Richard R. Smith the sheriff of the county of Otsego when he
received and forwarded the ballots by his special deputy?
"2. If he was not sheriff, can the votes sent by him be legally
canvassed?
"3. Can the joint committee canvass the votes when sent to them in two
parcels, the one contained in a box, and the other contained in a
paper, or separate bundle? Or,
"4. Ought they to canvass those sealed in the box, and reject the
others?
"TIOGA.--It appears that the sheriff of Tioga delivered the box
containing the ballots to B. Hovey, his special deputy, who set out,
was taken sick on his journey, and delivered the box to H. Thompson,
his clerk, who delivered it into the secretary's office.
"_Question_. Ought the votes of Tioga to be canvassed?
"CLINTON.--It appears that the sheriff of Clinton delivered the box
containing the ballots to Theodorus Platt, Esq., who had no
deputation, but who delivered them into the secretary's office, as
appears by his affidavit.
"_Question._ Ought the votes of Clinton to be canvassed?"
_Mr. King's opinion to the Canvassers_.
"OTSEGO.--It may be inferred, from the constitution and laws of the
state, that the office of sheriff is held during the pleasure of the
Council of Appointment, subject to the limitation contained in the
26th section of the constitution. The sheriff may therefore hold his
office for four years, unless within that period a successor shall
have been appointed, and shall have entered upon the execution of the
office. The term of four years from the appointment of R. R. Smith not
having expired, and B. Gilbert not having entered upon the execution
of the office before the receipt and delivery of the votes by R. R.
Smith to his deputy, I am of opinion that R. R. Smith was then lawful
sheriff of Otsego.
"This opinion is strengthened by what is understood to be practice,
namely, that the office of sheriff is frequently held for more than a
year under one appointment.
"R. R. Smith's giving notice to the Council of Appointment of his
disinclination to be reappointed, or his acting as supervisor, cannot,
in my opinion, be deemed a resignation or surrender of his office.
"Should doubts, however, be entertained whether R. R. Smith was
_lawfully_ sheriff when he received and delivered the votes to his
deputy, the case contains facts which in another view of the subject
are important. It appears that R. R. Smith was appointed sheriff of
Otsego on the 17th of February, 1791, and afterwards entered upon the
execution of his office: that no other person was in the execution of
or claimed the office after the date of his appointment, and before
the time when he received and delivered the votes of the county to his
deputy; that during that interval R. R. Smith was sheriff, or the
county was without a sheriff; that R. R. Smith, during the election,
and when he received and delivered the votes to his deputy, continued
in the actual exercise of the shrievalty, and that under colour of a
regular appointment. From this statement it may be inferred, that if
R. R. Smith, when he received and delivered the votes to his deputy,
was not _de jure_, he was _de facto_, sheriff of Otsego.
"Though all the acts of an officer _de facto_ may not be valid, and
such of them as are merely voluntary and exclusively beneficial to
himself are void; yet such acts as tend to the public utility, and
such as be would be compellable to perform, such as are essential to
preserve the rights of third persons, and without which they might be
lost or destroyed, when done by an officer _de facto_, are valid.
"I am therefore of opinion, that admitting R. R. Smith, when he
received and delivered the votes to his deputy, was not _de jure_
sheriff, yet that he was _de facto_ sheriff; and that his receiving
and delivering the votes being acts done under colour of authority,
tending to the public utility, and necessary to the carrying into
effect the rights of suffrage of the citizens of that county, they are
and ought to be deemed valid; and consequently the votes of that
county may lawfully be canvassed.
"2d Question. The preceding answer to the first question renders an
answer to the second unnecessary.
"3d and 4th Questions. The sheriff is required to put into one box
every enclosure delivered to him by an inspector appointed for that
purpose by the inspectors of any town or district; and for omitting to
put any such enclosure into the box, he is liable to prosecution; but
in case of such omission, the votes put into the box, and seasonably
delivered into the secretary's office, may, notwithstanding such
omission, be lawfully canvassed; and equally so whether the omitted
enclosure be kept back or sent forward with the box to the secretary's
office. I am therefore of opinion that the votes contained in the box
may lawfully be canvassed; that those contained in a separate packet,
from considerations explained in the depositions, and distinct from
the objection of not being included within the box, cannot be lawfully
canvassed.
"CLINTON.--The deputy having no interest in the office of sheriff, but
being merely the sheriff's servant, it does not seem to be necessary
that the evidence of his being employed or made a deputy should be a
deed or an instrument in writing, though the latter would be proper;
yet a deputy may be made by _parole_: I am therefore inclined to the
opinion that the votes of Clinton may be canvassed.
"TIOGA.--The sheriff is one who executes an office in person or by
deputy, so far at least as the office is ministerial; when a deputy is
required of the sheriff conomine, he may execute it in person or by
deputy; but if the deputy appoints a deputy, it may be doubtful
whether ordinarily the acts of the last deputy are the acts of the
sheriff. The present instance is an extreme case; had the duty been
capable of being performed within the county, the sheriff or another
deputy could have performed. Here the deputy, being in the execution
of his duty, and without the county, is prevented by the act of God
from completing it; the sheriff could not appoint, and the deputy
undertakes to appoint a deputy to finish his duty, who accordingly
does so. The election law is intended to render effectual the
constitutional right of suffrage; it should therefore be construed
liberally, and the means should be in subordination to the end.
"In this case it may be reasonably doubted whether the canvassers are
obliged to reject the votes of Tioga.
"RUFUS KING."
_Mr. Burr's opinion to the Canvassers._
"OTSEGO.--The duration of the office of sheriff in England having been
limited by statute to one year, great inconveniences were experienced,
as well by suiters as by the public. To remove which it was thought
necessary to pass an act of parliament. The statute of 12 Ed. IV., ch.
1, recites at large these inconveniences, and authorizes the sheriff
to execute and return writs in the term of St. Michael, before the
delivery of a writ of discharge, notwithstanding the expiration of the
year. The authority given by this statute being to execute only
certain specified duties, the remedy was not complete, and another
statute [1] was soon after passed, permitting sheriffs to do every act
pertaining to the office, during the term of St. Michael and St.
Hilary, after the expiration of the year, if not sooner discharged.
The practice in England appears to have been conformable to these
statutes, [2] though the king did pretend to dispense with them by
force of the royal prerogative; and this claim and exercise of a power
in the crown to dispense with and control the operation of statutes,
has been long and universally condemned as odious and
unconstitutional; yet the form of the commission is said still to be
during pleasure.
"These considerations tend to show the principles of several opinions
and adjudications, which are found in English law-books, relative to
the holding over of the office of sheriff.
"None of the statutes of England or Great Britain continued to be laws
of this state after the first of May, 1778. So that at present there
remains no pretence for adopting any other than the obvious meaning of
the constitution, which limits the duration of the office to one year,
beyond which the authority to hold cannot be derived from the
constitution, the appointment, or the commission. If inconveniences
arise, remedies can be provided by _law only_, as has in similar cases
been done in England, deciding on legal principles; therefore, the
appointment and commission, and with them the authority of Mr. Smith,
must be deemed to have expired on the 18th of February.
"Yet there are instances of offices being exercised by persons holding
under an authority apparently good, but which, on strict legal
examination, proves defective; whose acts, nevertheless, are, with
_some limitations_, considered as valid. This authority is called
_colourable_, and the officer in such cases is said to be an officer
_de facto_; which intends an intermediate state between an exercise
strictly lawful and one without such colour of right. Mr. Smith does
not appear to me to have holden the office of sheriff on the 3d of May
under such colour or pretence of right. The term of his office had
expired, and he had formally expressed his determination not to accept
a reappointment; after the expiration of the year he accepted, and
even two days before the receipt of the ballots, openly exercised an
office incompatible with that of sheriff; and it is to be inferred,
from the tenour of the affidavits, that he then knew of the
appointment of Mr. Gilbert. The assumption of this authority by Mr.
Smith does not even appear to have been produced by any urgent public
necessity or imminent public inconvenience. Mr. Gilbert was qualified
in season to have discharged the duty, and, for aught that is shown,
his attendance, if really desired, might have been procured still
earlier.
"Upon all the circumstances of this case, I am of opinion,
"1. That Mr. Smith was not sheriff of Otsego when he received and
forwarded the ballots.
"2d. That the ballots delivered by the deputy of Mr. Smith cannot be
legally canvassed.
"The direction of the law is positive, that the sheriff shall put all
the enclosures into one box. How far his inattention or misconduct in
this particular shall be deemed to vitiate the ballots of a county,
appears to be left to the judgment of the canvassers. Were the ballots
of this county subject to no other exception than that stated in the
third and fourth questions, I should incline to think it one of those
cases in which the discretion of the canvassers might be safely
exercised, and that the ballots contained in the boxes might be
legally canvassed; those in the separate package do not appear to be
subject to such discretionary power; the law does not _permit_ them to
be estimated. But the extent to which this power might be exercised in
cases similar in kind, but varying in degree, cannot be precisely
defined. Instances may doubtless be supposed, in which sound
discretion would require that the whole should be rejected.
"Clinton.----To the question relative to the ballots of this county,
it may suffice to say, that verbal and written deputation by a sheriff
are, in law, considered as of equal validity, particularly when it is
to perform a single ministerial act.
"Tioga.----it is said that a deputy may make a deputy to discharge
certain duties merely ministerial; but, considering the importance of
the trust in regard of the care of the ballots, and the extreme
circumspection which is indicated in the law relative to elections, I
think that the ballots of this county cannot, by any fiction or
construction, be said to have been delivered _by the sheriff_; and am
of opinion that they ought not to be canvassed.
"AARON BURR."
The opinion of Rufus King in this case was concurred in by Stephen
Lush, T. V. W. Graham, and Abraham Van Vechten, of Albany; Richard
Harrison, John Lawrence, John Cozine, Cornelius J. Bogart, Robert
Troup, James M. Hughes, and Thomas Cooper, of New-York.
The opinion of Colonel Burr was sustained by Pierpont Edwards of
Connecticut, Jonathan D. Sergeant, of Philadelphia, Edmund Randolph,
of Virginia, United States attorney-general, Zephaniah Swift, Moses
Cleaveland, Asher Miller, David Daggett, Nathaniel Smith, and Dudley
Baldwin. These opinions were procured by Colonel Burr, as appears from
the private correspondence on the subject.
FROM JONATHAN D. SERGEANT.
Philadelphia, 4th May, 1792.
DEAR SIR,
You will perceive by the date of the enclosed that it has been ready
some time, but I have waited in hopes that I should have the pleasure
of sending forward Mr. Randolph's opinion in company with mine. As he
is not yet quite ready, and I am going out of town, I send forward my
own singly. He is very solicitous to collect all possible information
on the subject before he gives his opinion, and would willingly excuse
himself from the task, were it not, as he says, that it would look
like a want of that independence and firmness which dispose a man to
meet any question, however important or strongly contended.
His opinion hitherto has been conformable to yours, and I expect will
continue so. When it is ready I will forward it without the delay of
sending it round to Dr. Edwards's in the country. The doctor had
spoken to me some time before your letter came to me, so that I was
nearly prepared when I received yours.
Your obedient servant,
JONATHAN D. SERGEANT.
On the 6th of November, 1792, the legislature met. On the 13th,
petitions, memorials, &c. were presented to the House of Assembly,
demanding an inquiry into the conduct of the board appointed to
canvass the votes given for governor, &c. at the preceding election,
held in the month of April. On the 21st the house, in committee of the
whole, took up the subject. Witnesses were examined at the bar;
various resolutions and modifications were offered and rejected. The
debate was continued at intervals from the 21st of November, 1792,
until the 18th of July, 1793. The minority of the canvassers entered a
protest against the proceedings of the majority, which it is due to
them to insert here.
"_The Protest of Messrs. Jones, Roosevelt, and Gansevoort_.
"We, the subscribers, members of the joint committee appointed to
canvass and estimate the votes taken at the last election in this
state for governor, lieutenant-governor, and senators, do dissent
from, and protest against, the determination of the major part of said
committee respecting the votes taken at the said election in the
county of Otsego.
"I. Because these votes having been given by the freeholders of
Otsego, and the packages containing the same having been received and
transmitted in season to the secretary's office by the person acting
as sheriff of the county, the committee have no right to reject them
under the pretence of judging of the legality, validity, operation, or
extent of the sheriff's authority or commission; these commissions
being foreign to the duty of their appointment, and capable of a
decision only in the ordinary courts of law.
"II. Because, if the committee were by law authorized to examine and
determine the legality and extent of the sheriff's authority and
commission, we are of opinion that Richard R. Smith, at the time he
received and transmitted the ballots, was the lawful sheriff of
Otsego. By the constitution, the sheriff, whatever may be the form of
his commission, must hold his office during the pleasure of the
Council of Appointment; and, by the law of the land, he must continue
therein until another is appointed and takes upon himself the office.
Richard R. Smith, having been appointed on the 27th of February, 1791,
and Benjamin Gilbert having been appointed on the 30th of March, 1792,
but not having qualified or taken upon himself the office until
Richard R. Smith had received and forwarded the same, must be deemed
the lawful sheriff of the county. The uniform practice which has
prevailed since the establishment of the constitution, precludes all
doubt respecting its true construction on this point. For although the
commissions of the sheriffs are for one year, they have nevertheless
continued to exercise the office until others were appointed and
entered upon the execution thereof, which has often been long after
the expiration of the year, and sometimes after the same person has
remained in office more than four years successively. And such
sheriffs, sometimes after the expiration of their year, at others
after having held the office for four successive years, have received
and transmitted ballots for governor, lieutenant-governor, and
senators, which ballots have on former elections been received and
canvassed; and even upon the present canvass, the committee have
canvassed the ballots taken in the counties of Kings, Orange, and
Washington, notwithstanding the year had expired for which the
sheriffs of these counties were commissioned, and no new commissions
had been issued. Hence the sheriffs of those counties, in receiving
and transmitting the ballots, must have acted under their former
commissions, since a mere appointment without a commission, and a
compliance with the requisites prescribed by law, could not, in our
opinion, give any authority as sheriff to the person so appointed.
"III. Because, if Richard R. Smith, at the time he received and
forwarded the ballots, was not sheriff, the county was without a
sheriff, a position too mischievous to be established by a doubtful
construction of law.
"IV. Because, if Richard R. Smith was not of right sheriff of the
county at the time he received and forwarded the ballots, he was then
sheriff in fact of that county; and all the acts of such an officer
which tend to the public utility, or to preserve and render effectual
the rights of third persons, are valid in law.
"V. Because, in all doubtful cases, the committee ought, in our
opinion, to decide in favour of the votes given by the citizens, lest
by too nice and critical an exposition of the law the rights of
suffrage be rendered nugatory.
"We also dissent from, and protest against, the determination of the
major part of the said committee respecting the votes taken at the
said election in the county of Clinton;
"Because it appears that the sheriff of the said county deputed a
person by parole to deliver the box containing the ballots of the said
county into the secretary's office. Such deputation we deem to be
sufficient; and as there is satisfactory evidence that the box was
delivered in the same state in which it was received from the sheriff,
the votes, in our opinion, ought to be canvassed.
"We also dissent from, and protest against, the determination of the
major part of the said committee, by which they declare that George
Clinton was, by the greatest number of votes taken at the last
election for governor, lieutenant-governor, and senators, chosen
governor of this state; and that Pierre Van Courtlandt was, by the
greatest number of votes at the said election, chosen
lieutenant-governor; and that John Livingston was, by the greatest
number of votes at the said election, in the eastern district of this
state, chosen a senator in the said eastern district.
"Because it cannot be ascertained whether George Clinton was chosen
governor, or Pierre Van Courtlandt lieutenant-governor of this state,
by the greatest number of votes at the last election, without
examining the ballots contained in the boxes delivered into the
secretary's office by the sheriffs of the counties of Otsego and
Clinton--there being a sufficient number of freeholders in these
counties, with the votes given in the other parts of the state for
John Jay as governor and Stephen Van Rensselaer as
lieutenant-governor, to give them a majority of votes for those
offices. Nor can it be ascertained whether John Livingston was chosen
a senator in the eastern district by the greatest number of votes in
that district, without examining the votes taken in the county of
Clinton--there being a sufficient number of freeholders in that
county, with the votes given in other parts of the district for Thomas
Jenkins as a senator, to give him a greater number of votes for a
senator than the number given for the said John Livingston.
"SAMUEL JONES,
"ISAAC ROOSEVELT,
"LEONARD GANSEVOORT."
Joshua Sands, another member of the board of canvassers, entered
separately a protest, but substantially the same as the preceding.
The majority of the canvassers presented a document to the
legislature, in which they assigned their reasons for the course they
had pursued. That document was drawn by Colonel Burr. The original
draught, with his emendations, has been preserved among his papers. On
the motion of a member, it was read in the house the 28th day of
December, 1792, and is entered at large on their journals as
follows:--
"_The reasons assigned by the majority of the Canvassers in
vindication of their conduct_.
"The joint committee appointed to canvass and estimate the votes for
governor, lieutenant-governor, and senators at the last election,
having been constrained, by a sense of their duty in the discharge of
the trust reposed in them, to reject the ballots returned from the
counties of Clinton, Otsego, and Tioga; and perceiving that attempts
are made to misrepresent as well the principles of their determination
as the facts on which they are founded, feel it incumbent on them to
state the grounds of their decision.
"CLINTON AND TIOGA.--A box, said to contain the ballots of the county
of Clinton, was deposited in the secretary's office by a Theodore
Platt, without any deputation or other authority, accompanied only by
his own affidavit, that he had received the said box from the sheriff
of Clinton.
Another box, said to contain the ballots of the county of Tioga, was
delivered by the sheriff of the county of Tioga to his deputy,
Benjamin Hovey, who, being detained by illness on the road, delivered
the said box to one James H. Thompson, by whom it was deposited in the
secretary's office.
"The joint committee, pursuant to the law, are sworn to canvass the
votes 'contained in the boxes delivered into the office of the
secretary of the state by the sheriffs of the several counties.' Hence
arose a question, whether this was not a _personal trust_, which could
not be legally performed by deputy? Upon this point we entertained
different opinions; but agreed that, if the discretion of the
committee was to be in any degree controlled by the directions of the
law, there appeared no room to doubt of the illegality of canvassing
boxes which were not delivered by a sheriff or the deputy of a
sheriff. The ballots contained in these boxes were therefore rejected;
not, however, without sensible regret, as no suspicion was entertained
of the fairness of those elections.
"OTSEGO.---It appears that Richard R. Smith, on the 17th of February,
1791, was appointed sheriff of the county of Otsego, to hold that
office until the 18th of February, 1792; that a commission was issued
agreeably to that appointment; that on the 13th of January, 1792, he
wrote to the governor and council that he should decline a
reappointment; that on the 30th of March, 1792, Benjamin Gilbert was
appointed sheriff of the said county; that the commission to the said
Benjamin Gilbert was, on the 13th of April, 1792, delivered to Stephen
Van Rensselaer, one of the Council of Appointment, to be by him
forwarded; that the said commission was in the hands of William
Cooper, Esq., first judge of the said county, on or before the 3d of
May; that the said Richard R. Smith, on the first Tuesday in April,
was elected supervisor of the town of Otsego, accepted that office,
and on the 1st day of May took his seat at the board of supervisors,
assisted in the appointment of loan officers, and _then_ declared that
he was no longer sheriff of the county, but that Benjamin Gilbert was
appointed in his place. It also appeared that Benjamin Gilbert had no
notice of his said appointment, or of the receiving of the ballots by
the said Richard R. Smith, until the 9th day of May, and that he was
sworn to the execution of the office on the 11th; that, on the 3d of
May, the said Richard R. Smith put up the ballots of the said county
in the store of the said William Cooper, Esq., in whose hands the
commission of Benjamin Gilbert then was; that the box said to contain
the votes of the said county was delivered into the secretary's office
by Leonard Goes previous to the last Tuesday in May, under a
deputation from the said Richard R. Smith; together with the said box,
and at the same time, the said Leonard Goes delivered a separate
packet or enclosure, which, by an endorsement thereon, purported to
contain 'the ballots received from the town of Cherry Valley, in the
county of Otsego.'
"The manner of the delivery of the said box and enclosure, and the
authority of the said Leonard Goes, were reported to the committee by
the secretary of the state.
"These votes were not canvassed for the following reasons:--
"1. The committee found themselves bound, by their oath and by the
directions of the law before mentioned, to canvass only the votes
contained in the boxes which may have been delivered into the
secretary's office by the _sheriffs_ of the several counties. It
appeared to them absurd to suppose this duty should be so expressly
enjoined, and that they should nevertheless be prohibited from
inquiring whether the boxes were or were not delivered by such
officers; or that they should be restrained from ascertaining a fact,
without the knowledge of which it was impossible that they could
discharge the duty with certainty to the public or with confidence to
themselves. They could not persuade themselves that they were, under
_that_ law and _that_ oath, compelled to canvass and estimate votes,
however fraudulently obtained, which should be delivered into the
secretary's office _by any person styling_ himself sheriff, though it
should at the same time be evident to them that he was _not the
sheriff_. If such was to be their conduct, a provision intended as a
security against impositions would be an engine to promote them. They
conceived, therefore, that the objection to an inquiry so important,
and in a case where the question was raised and the inquiry imposed
upon them by the suggestions of the secretary, must have arisen from
gross misrepresentation or willful error.
"Upon investigating the right of the said Richard R. Smith to exercise
that office, the facts appeared as herein-before stated.
"2. The constitution requires that sheriffs shall be _annually
appointed_; which, to our apprehension, implies that no person shall
exercise the office by virtue of any other than an _annual_
appointment. And should it even be admitted that the council may, at
_their pleasure_, remove a sheriff within the year, yet we do not see
on what ground it can be denied that the duration of the office is
limited to one year, unless a new appointment should take place. It
would otherwise be true that the council could indirectly, or by a
criminal omission, accomplish what is not within their direct or legal
authority. It will be readily admitted that an appointment and
commission for three years would be void; and surely the pretence of
one thus claiming should be preferred to a usurpation without even
such appearance of right, and against the known right of another. To
assert, therefore, that 'by the constitution the sheriff, whatever may
be the form of his commission, must hold his office during the
pleasure of the Council of Appointment; and that, by the law of the
land, he must continue therein until another is appointed and has
taken upon himself the office,' is an assertion accompanied with no
proof or reason, and is repugnant to the letter and spirit of the
constitution, which is eminently _the law of the land_. The practice
which has prevailed since the revolution, as far as hath come to our
knowledge, does not warrant the position; neither could mere practice,
if such had prevailed, justify the adoption of a principle contrary to
the obvious meaning of the constitution. Upon the present occasion we
have not canvassed the votes of any county which were not returned by
a sheriff holding his office under an appointment unexpired. The
sheriffs of Kings, Orange, and Washington had all been reappointed
within the present year, which satisfied the words of the
constitution, and was the _known_ and avowed reason which influenced
the committee to estimate the ballots of those counties. The doctrine
concerning the constitutional pleasure of the council in the
appointment of the office of sheriffs _had not then been invented_.
"3. But even admitting the visionary idea that the office of sheriff
(_whose duration is limited by the constitution_) can nevertheless be
holden _during the pleasure_ of the Council of Appointment, yet that
appears to have been determined by the letter of the appointment and
commission, by the appointment of Benjamin Gilbert, by the declaration
of Richard R. Smith, and by his acceptance and exercise of another
office, which is, by the constitution, declared to be incompatible
with the office of sheriff.
"It was evident, therefore, that Richard R. Smith had no authority by
appointment, by commission, by the constitution, or by any law, to
hold or exercise the office of sheriff on the third of May.
"4. As Richard R. Smith was not legally or constitutionally sheriff on
the third of May, neither, under the circumstances of the case, can he
be said to have been sheriff in fact, so as to render his acts valid
in contemplation of law: the assumption of power by Mr. Smith appears
to have been warranted by no pretence or colour of right. The time
limited for the duration of his office had expired by the express
tenure of his commission and appointment, and he had formally declared
his determination not to accept a reappointment. He had, two days
previous to his receiving the ballots, openly exercised an office
incompatible with that of sheriff; then declared that he had resigned
the office of sheriff, and that Benjamin Gilbert was appointed in his
place; and by an affidavit which was produced to the committee, it
appeared that, upon the day upon which he had put up the ballots in
the house of the said William Cooper, he, the said Richard R. Smith,
declared that he had resigned the office of sheriff. The business
might with equal care and certainty have been executed by Benjamin
Gilbert. The single act of receiving ballots could of itself continue
_no man_ a sheriff--least of all _a man disavowing that office, and
then in the exercise of another_. It was foreign to the duty of the
committee to provide against evils which may possibly arise from
casual vacancies in the office of sheriff by death and otherwise.
Vacancies will sometimes unavoidably happen, without further
legislative provision.
"There is not, therefore, in our opinion, any application to the
subject, or force in the objection, 'that if Richard R. Smith was not
sheriff, the county was without a sheriff;' neither is the position
true in fact, for it appears that the county was not then without a
sheriff. At the time the ballots were received, it was well known that
Benjamin Gilbert was appointed sheriff, and that his commission was in
the hands of William Cooper, in whose store Richard R. Smith put up
the ballots. It is also to be fairly inferred that, had proper
measures been taken to give notice to Mr. Gilbert, he would forthwith
have qualified and undertaken the execution of the office. It cannot,
therefore, consistent with truth or candour, be asserted that there
was the remotest probability that 'mischiefs' could in any parallel
case ensue from the principles adopted by the committee.
"It did not seem possible, therefore, by any principle of law, by any
latitude of construction, to canvass and estimate the ballots
contained in the box thus circumstanced.
"But, had the question been doubtful, it was attended by other
circumstances, which would have determined the committee against
canvassing those ballots.
"5. Because the notice of the appointment of Benjamin Gilbert was
received by Richard R. Smith on or before the first of May, and his
commission was received by William Cooper on or before the third of
May. Mr. Gilbert might therefore have been notified, qualified, and
executed the duty. He did actually qualify on the eleventh, which gave
ample time to have forwarded the ballots before the last Tuesday in
May. These facts, with other suggestions of unfair practices, rendered
the conduct of the Otsego election justly liable to suspicion; and the
committee were constrained to conclude that the usurpation of
authority by Richard R. Smith was wanton and unnecessary, and
proceeded from no motive connected with the preservation of the rights
of the people or the freedom and _purity of elections_.
"6. Because, having in several instances, by _unanimous vote_,
rejected ballots of whole towns, free from any suspicion of
unfairness, by reason of a defect in _form only_ of the return, the
committee conceived themselves the more strongly bound to reject
ballots where the defect was substantial, and the conduct at least
questionable; especially as the law regards the custody of enclosures
containing the ballots as a trust of high importance, and contemplates
but three persons in whose hands they are to be confided until they
come to the possession of the canvassers, to wit, the inspector, the
sheriff, and the secretary; all officers of great responsibility and
confidence.
"7. Because the return, upon the face of it, appeared to be illegal.
The law requires the sheriff, 'upon receiving the said enclosure,
directed to be delivered to him as aforesaid, without opening or
inspecting the same, or any or either of them, to put the said
enclosures, and _every one of them, into one box_, which shall be well
closed, &c., and be delivered by him, without opening the same, or the
enclosures therein contained, into the office of the secretary of this
state before the last Tuesday in May in every year.'
"By recurring to the preceding state of facts it will be evident that
this direction of the law had been disregarded. If irregularities of
this kind should be permitted and countenanced, it would be in the
power of the sheriff, by excluding a part of the votes, to confer a
majority on any candidate, in counties where there were divisions of
interests. Affidavits were indeed produced tending to show that there
had been, in that town, disputes respecting the election of town
officers; that two enclosures, purporting to contain the votes of the
town, were delivered to Mr. Smith, and that he had put into the box
that enclosure which contained the votes taken by the persons whom _he
judged_ to be the legal inspectors: a matter proper to have been
submitted to the opinion of the committee.
"The committee have considered this subject with deliberate attention,
and in every light in which it could be placed; and whether they
regarded the channels of conveyance, the mode of the return, or the
general principles which ought to govern their decisions touching the
freedom of elections and security against frauds, they found
undeniable reasons which compelled them to reject the votes.
"DAVID GELSTON,
"THOMAS TILLOTSON,
"DANIEL GRAHAM,
"MELANCTON SMITH,
"DAVID M'CARTY,
"P.V. COURTLANDT, jun.,
"JONATHAN N. HAVENS."
On the 18th of January, 1793, the House of Assembly passed the
following resolutions on the subject. "Thereupon, _Resolved_, That the
mode of prosecuting any joint committee of the Senate and Assembly,
appointed for the purpose of canvassing and estimating the votes taken
in this state for governor, lieutenant-governor, and senators, and the
penalties to be inflicted on such committee, or any of them, for any
improper conduct in the execution of the trust reposed in them by law,
are clearly pointed out in the twentieth and twenty-first sections of
the act for regulating elections, passed the 13th day of February, one
thousand seven hundred and eighty-seven; and that, therefore, any
person or persons who may suppose that any such joint committee, or
any of them have conducted themselves improperly in the execution of
the trust reposed in them, may prosecute the same to effect in the
ordinary course of law.
"_Resolved_, That notwithstanding this provision in the act for
regulating elections, this house hath gone into an inquiry with
respect to the conduct of the late committee appointed to canvass and
estimate the votes for governor, lieutenant-governor, and senators,
taken at the last general election held in this state, _to the intent_
that satisfaction may be given those citizens of the state who have
been dissatisfied with the decision of the major part of the said
committee, with respect to the votes taken in the counties of Otsego,
Tioga, and Clinton.
"_Resolved_, That after a full and fair examination into the conduct
of the major part of the said canvassing committee, it does not appear
to this house that the said major part of the committee, to wit: David
Gelston, Thomas Tillotson, Daniel Graham, Melancton Smith, David
M'Carty, Pierre Van Courtlandt, junior, and Jonathan N. Havens, have
been guilty of any mal or corrupt conduct in the execution of the
trust reposed in them by law.
"And whereas, by the eleventh section of the act for regulating
elections, it is enacted that all questions which shall arise upon any
canvass and estimate, or upon any of the proceedings therein, shall be
determined according to the opinion of the major part of the said
canvassing committee, and that their judgment and determination shall
in all cases be binding and conclusive; therefore,
"_Resolved_, As the sense of this house, that the legislature cannot
annul or make void any of the determinations of the said committee."
The question was taken on the preceding resolutions together, by yeas
and nays, and passed in the affirmative. Ays 35. Nays 22.
Among the individuals for whom Colonel Burr entertained a high degree
of respect, was Jacob De Lamater, Esq., of Marbletown. Between these
gentlemen, for several years, a friendly, and, in some instances, a
confidential correspondence existed. Mr. De Lamater was a federalist,
but personally attached to Colonel Burr. In 1792 he was among those
who wished him to become a candidate for the office of governor. After
the death of De Lamater, the letters addressed to him by Colonel Burr
were returned. They were written under the sacred seal of friendship;
but they contain not a sentence, not a word, that is not alike
honourable to his head and his heart. One is selected and here
published as explanatory of his _feelings_ and his _conduct_ in the
contested election (which so much agitated the State of New-York)
between George Clinton and John Jay. It requires no comment.
TO MR. DE LAMATER
New-York, 15th June, 1792.
MY DEAR SIR,
You will, before this can reach you, have heard of the event of the
late election. Some questions having arisen among the canvassers
respecting the returns from Clinton, Otsego, and Tioga, they requested
the advice of Mr. King and myself. We conferred, and, unfortunately,
differed; particularly as to the questions upon the Otsego return. I
therefore proposed that we should decline giving any opinion, being
for my own part much averse to interfere in the business. Mr. King,
however, determined to give his separate opinion, from what motives
you may judge. This laid me under the necessity of giving mine also,
which I did. If I can procure copies of both opinions, and of the
protest of the minority, and the reasons assigned by the majority of
the canvassers, I will send them herewith. They will enable you to
form a competent judgment of the law question, and of the fairness of
the Otsego return.
I do not see how any unbiased man can doubt, but still I do not
pretend to control the opinion of others, much less to take offence at
any man for differing from me. The reasons contained in my opinion,
and assigned by the majority of the canvassers, have never been
answered except by abuse. I can, in a personal interview, inform you
of some circumstances relative to the opinions which have been
procured in favour of the Otsego votes.
I have heard with much pride and pleasure of the warm and
disinterested manner in which I was espoused by some respectable
characters in your county. I shall never fail to recollect it with
sensibility and gratitude. It would therefore give me real pain to
believe that any part of my conduct had tended to thwart their wishes.
If it has had any such effect, it should at least be remembered that I
did not seek to gratify any wish or interest of my own. I took no part
in the election. I never gave to any person the most distant
intimation that I supposed you engaged to support Mr. Clinton, or to
take any other part than that which your inclinations and judgment
should direct. I felt no disposition to influence your conduct on that
occasion. Had I been so inclined, I have no doubt but I could, in
various parts of the state, have essentially injured Mr. Jay's
interest; but I made no attempt of the kind. Yet I shall never yield
up the right of expressing my opinions. I have never exacted that
tribute from another.
Upon the late occasion, indeed, I earnestly wished and sought to be
relieved from the necessity of giving any opinion, particularly from a
knowledge that it would be disagreeable to you and a few others whom I
respect and wish always to gratify. But the conduct of Mr. King left
me no alternative. I was obliged to give an opinion, and I have not
yet learned to give any other than which my judgment directs.
It would, indeed, be the extreme of weakness in me to expect
friendship from Mr. Clinton. I have too many reasons to believe that
he regards me with jealousy and malevolence. Still, this alone ought
not to have induced me to refuse my advice to the canvassers. Some
pretend, indeed, but none can believe, that I am prejudiced in his
favour. I have not even seen or spoken to him since January last. I
wish to merit the flattering things you say of my talents; but your
expressions of esteem and regard are still more flattering, and these,
I am sure, I shall never fail to merit, if the warmest friendship and
unalterable attachment can give me a claim.
Will you be abroad any, and what part of the summer? I ask, because I
propose to make you a visit on my way to, or return from, Albany, and
wish to be certain of finding you at home. No political changes can
ever diminish the pleasure with which I subscribe myself
Your affectionate friend,
A. BURR.
The following letter is evidence of Colonel Burr's propensity to
correspond in cipher with his most intimate friends, even on
unimportant topics. Hundreds of the same character might be given.
TO JACOB DE LAMATER.
New-York, October 30th, 1792
DEAR SIR,
Your letter by Mr. Addison was particularly kind, after my long
_supposed_ silence. We may make use of _both keys or ciphers_, and if
some of the persons or things are designated by different characters,
no inconvenience will arise; if there should, we will correct it.
_V_ is to be the candidate, as my former letter will have told you: He
has the wishes of 9 for his success, for reasons which will be obvious
to you. Do you think that 8 would be induced from any motive to vote
for him?
Yours affectionately,
A. BURR.
Footnotes:
1. 17 Ed., ch. 7, more general.
2. 2 Hawks., 5, 51, Irish oct. edit., 2 mod. 261 statute 1 Wm. and
Mary, sess. 2, ch. 2. See also sec. 12 of the same statute.