Memoirs Of Aaron Burr, Volume 1, Matthew L. Davis [book club suggestions .txt] 📗

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_.

Chapter XVI Pg 318

"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.

Chapter XVI Pg 319

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.

Chapter XVI Pg 320

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.

Chapter XVI Pg 321

"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;