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

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.

Chapter XVI Pg 322

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.

Chapter XVI Pg 323

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.

Chapter XVI Pg 324

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.

Chapter XVI Pg 325

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.

Chapter XVI Pg 326