Chapter XVI (1)

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.