Chapter XVI (2)

"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.