To Rufus King
June 28. 1792
My Dear King
I have not, as you will imagine, been inattentive to your political squabble.1 I believe you are right2 (though I have not accurately examined) but I am not without apprehension that a ferment may be raised which may not be allayed when you wish it. Tis not to be forgotten that the opposers of Clinton are the real friends to order & good Government; and that it will ill become them to give an example of the contrary.
Some folks are talking of Conventions and the Bayonet.3 But the case will justify neither a resort to first principles nor to violence. Some amendments of your election law and possibly the impeachment of some of the Canvassers who have given proofs of premeditated partiality will be very well4—and it will answer good purposes to keep alive within proper bounds the public indignation. But beware of extremes!
Rufus King Esq
ALS, New-York Historical Society, New York City.
1. H is referring to the controversy in New York over the decision of the board of canvassers in the contested 1792 gubernatorial election. See Philip Schuyler to H, May 9, 1792, note 4.; H to John Adams, June 25, 1792, note 2.
Before the committee of canvassers made its report on June 12, 1792, it had requested the opinions of King and Aaron Burr, United States Senators from New York, on the legality of canvassing the votes of Otsego, Clinton, and Tioga counties. King’s opinion supported the eligibility of the votes of all three counties, while Burr opposed the admission of the Otsego County ballots. Both opinions are printed in The [New York] Daily Advertiser of June 18, 1792, together with the opinions of the majority and minority of the canvassers. The same issue carried a notice of a meeting of the “Friends of Liberty” who opposed the rejection of the Otsego and Clinton votes. The meeting adopted several resolutions condemning the decision of the majority of canvassers and approved a committee of correspondence to communicate with similar committees in other counties “and to devise such measures as may be best calculated to support the rights of the people” (The [New York] Daily Advertiser, June 18, 1792).
2. H is referring to King’s answers to the questions submitted to him and to Burr by the committee of canvassers. The questions that were submitted read as follows:
“1st. Was Richard R. Smith the sheriff of the county of Otsego when he received and forwarded the ballots by his especial deputy?
“2d. If he was not sheriff, can the votes sent by him be legally canvassed?
“3d. 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
“4th. Ought they to canvass those sealed in the box and reject the others? …
“Ought the votes of Tioga to be canvassed? …
“Ought the votes of Clinton to be canvassed?” (The [New York] Daily Advertiser, June 18, 1792.)
In reply to these questions King gave the following opinion:
“It may be inferred from the constitution and the 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 succession shall have been appointed, and shall have entered upon the execution of the office. The term of four years from the appointment of 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. Smith to his deputy—I am of opinion that R. Smith was then lawfully 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. Smith’s giving notice to the council of appointment, of his disinclination to be re-appointed, 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. 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. Smith was apointed sheriff of Otsego on the 17th Feb. 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. Smith was sheriff or the county was without a sheriff; that 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 color of a regular appointment. From this statement, it may be inferred, that if R. Smith, when he received and delivered the votes to his deputy was not dejure, he was defacto 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 he 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. 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 he receiving and delivering of the votes, being acts done under color 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 preceeding 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 inclosure 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; but that those contained in a separate packet, from considerations explained in the depositions, and distinct from the objection of not being included with the box, cannot be lawfully canvassed.
“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 deputy should be a deed or an instrument in writing, though the latter would be proper, yet a deputy may be made by parol—I am therefore inclined to the opinion, that the votes of Clinton may be canvassed.
“The sheriff is one who executes an office in person or by deputy so far at least as the office is ministerial when a duty is required of the sheriff eo nomine, he may execute it in person or by deputy; but if the deputy appoints a deputy, it may be doubted whether ordinary 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 held in subordination to the end.
“In this case it may reasonably be doubted, whether the canvassers are obliged to reject the votes of Tioga.”
(The [New York] Daily Advertiser, June 18, 1792.)
3. In the June 15, 1792, issue of The Daily Advertiser a letter signed “Gracchus” proposed that meetings of electors in all the counties and committees of correspondence should be arranged. “Gracchus” concluded: “Such measures, adopted with ardour, and prosecuted with firmness, will, I trust, have the desired effect; if not, and the ordinary powers of legislation, should prove an incompetent remedy for rescuing the people from an usurped authority; the same powers which established the constitution, must in the last resort convene for its preservation.” In the following issue another writer stated: “To remedy the abuse I sincerely hope violent measures will not become necessary” (The [New York] Daily Advertiser, June 15, 16, 1792).
4. William Willcocks, a constant and outspoken opponent of the “governor of Mr. Burr and the canvassers,” suggested in a letter of June 13, 1792: “… although trifles will not rouse large bodies to a Sion, or even reflection, an attack upon a privilege which is the basis of political security, will be soon severely felt, and long remembered, and a wise community will pursue with ardor, every mode of relief, consistent with the peace and good order of society.… The prevailing sentiment is, that … [the canvassers] ought to be impeached—I hope and believe they will” (The [New York] Daily Advertiser, June 14, 1792).
5. The heated, but indefinite, character of the opposition to the canvassers’ decision is suggested by the resolutions approved by the meeting of the “Friends of Liberty” on June 18, 1792. The resolutions concluded that electors from each county in the state should unite “in an application to the legislature at their next meeting, for a redress of the injury which has been done to the rights of the people” and that committees of correspondence should “devise such measures as may be best calculated to support the rights of the people” (The [New York] Daily Advertiser, June 19, 1792).
6. On a page attached to this letter King wrote: “I have had no agency in promoting the measures adopted respecting the decision of the Canvassers. I have however felt the utmost indignation.”