From William Lewis1
July 21st 1792
The Answers given by me to the several Questions2 proposed for my opinion relative to the late Election of Governor of the State of New York were as follow:
|1||“That RS3 was on the last Tuesday of April 1792 and at the time he Sealed and Signed the Box Sheriff of the County of Otsego.”|
|2||“That if he was not Sheriff, yet the Canvassers can, According to the terms of the Law & their Oath canvass the votes sent by him” on its being made appear that they are those that were given in at the Election, nor do I perceive the least ground for supposing that the validity of the Election at all depends on the question of his being Sheriff or not.|
|3||“That the receipt of the votes by the Secretary is not conclusive as to their being returned by the proper officer.”|
|4||“That RS neglecting to put the votes of the Town of Cherry Vally into the Box containing the other ballots & rendering them in a paper Bundle as is above Set forth will not prevent the Exa⟨mination of the⟩ votes of the sd. County.”4|
|5th||“That RS neglecting as Stated to put the votes of the Town of Cherry Vally into the Box &c can at most only destroy those votes;” and if no fraud appears, and it can be Satisfactorily proved that the paper Bundle contains the votes as they were actually given in with out addition or diminution I can perceive no good reason agt. their being received & Canvassed.|
I have not a Copy of the Case which was sent to me but so much of the Answers as are within inverted Comma’s, are (with the addition of an affirmative or negative) in the very words of the Question proposed.
My opinion in Answer to the first question was principally founded on the following Cases—4th Bac: ab. 434 & 444.5.5 16th. Vin ⟨ab.⟩ 114.6 19 Vin ab: 451.7 Moore reps. 186. 364.8 Dyer 355.9 2 Com: Dig: 581.10 3 B. Par Cases 167.11 1 Stra 625.12 10 Mod 147.13 To form a Judgt. of the applicability of such of these Cases as relate to Sheriffs the Stats. of 14th Edw. 3d. Stat. 1 C 7 and 23rd Hen 6th Cap 7th. must be Compared with the Constitution & Laws of New york—also vide Dougl 382.14
On the third Question there seems to be no room for Doubt, but that Mr. Clintons friends were right.
My opinion on the 2nd 4th. & 5th. Questions was founded on this Principle, that the important right of Suffrage being Secured to the People by the Laws and Constitution, and not depending on the Conduct of others, they cannot be deprived of it but by their own fault. That the manner of taking, & more espectially of transmitting the votes, being merely directory, an Error or wilful neglect or disobedience in the officer in either of these particulars, will Subject him to punishment for a misdemeanor in office, but will not affect the Election or destroy the rights of the people, where no fraud or unfairness appears in the Conducting of the Election, and it is made Satisfactorily appear that the votes are the same that were given in witht. alteration Diminution or addition. That this principle applies with great force, where (as in the present Case) the Sheriff was not an Election Officer, nor a Person having anything to do with holding the Election, and where the Election itself is the Substance and the transmitting of the votes is only form. If this were not the Case any Sheriff might at pleasure deprive a whole County of the right of Suffrage! I know of no Case expressly in point, but there are many in the books the Principles of which I think are fully applicable. I am obliged to set off to Court but if you wish to have a note of them I can very soon furnish you with it. A resignation by Mr. Smith without an acceptance thereof & notice being given, or the appointm’t of a nothing being made known, I consider as amounting to nothing, since he had once accepted & a resignation did not therefore depend on himself alone. If the Law or Constitution of New york disqualifies a Sheriff from holding any other office, its operation is to create an ineligibility to such other office, but not ⟨—⟩ that of Sheriff.
I am My dear Sir very truly yours
Ps when I return from Court I will send you the answers by the Judgs. of the Sup: Court of Penna. to some Questions sent to them by the Legislature touching a Contested Election.15
Hon’ble Mr. Hamilton
ALS, Hamilton Papers, Library of Congress.
1. On July 21, 1791, Lewis, a Pennsylvania attorney, was appointed judge of the Federal District Court for the Eastern District of Pennsylvania In April, 1792, he resigned as judge to return to private practice.
2. Lewis is recapitulating the opinion which he had submitted to the committee of canvassers on May 25, 1792, regarding the legality of canvassing the votes of Otsego, Clinton, and Tioga counties in the disputed 1792 New York gubernatorial election. Lewis is answering only those questions concerning Otsego County, which were similar to those submitted to Rufus King and Aaron Burr. For these questions, see H to King, June 28, 1792, note 2. The committee’s decision was made public on June 12, 1792. Other legal opinions both supporting and criticizing the committee’s decision continued to be collected and published during the summer and fall of 1792. The questions submitted to Lewis and Lewis’s opinion were printed in a pamphlet published in the late fall of 1792 (An Appendix to the Impartial Statement of the Controversy Respecting the Decision of the Late Committee of Canvassers [NewYork: Printed by Childs and Swaine, 1792]).
4. Dissatisfied with the officers elected to conduct the registration of voters, a minority of the voters of Cherry Valley prepared a second registration list and handed their votes to the sheriff of Otsego County after the earlier votes had been received. The sheriff sent the second package of votes in a separate package “to the end that the canvasser or other persons might determine whether they were ballots legally taken or not” (The [New York] Daily Advertiser, June 2, 18, 1792).
5. A New Abridgment of the Law. By Matthew Bacon, Of the Middle Temple, Esq; The Fifth Edition, Corrected; with Many Additional Notes and References of and to Modern Determinations (Dublin, 1786), IV, 434, 444–45.
6. A General Abridgment of Law and Equity Alphabetically digested under proper Titles with Notes and References to the Whole. By Charles Viner, Esq. (London, 1742), XVI, 114.
7. A General Abridgment of Law and Equity, Alphabetically digested under proper Titles; with Notes and References to the Whole. By Charles Viner, Esq. (London, 1744), REP-STE [Vol. 19], 451.
8. Cases Collect & Report Per Sir Fra. Moore Chevalier, Serjeant del ley. Imprimé & Publié per l’Original jadis remainent en les maines de Sir Gefrey Palmer Chevalier & Bar. Attoney-Général à son Très-Excellent Majesty le Roy Charles Le Second. Le Second Edition (London, 1688), 186, 364.
9. Cy ensuont ascun nouel Cases, Collectes per le iades tresreuerend Iudge, Mounsieur lasques Dyer, chiefe Iustice del Common Banke. Ore nouelment publies & imprimies (London, 1601), 354.
10. A Digest of the Laws of England. By the Right Honourable Sir John Comyns, Knight; Late Lord Chief Baron of His Majesty’s Court of Exchequer. Continued down to the present Time, By a Gentleman of the Inner Temple (London, 1780), II, 581
11. Reports of Cases upon Appeals and Writs of Error, in the High Court of Parliament; From the Year 1701, to the Year 1779. With Tables, Notes, and References, By Josiah Brown, Esq. Barrister at Law (Dublin, 1784), III, 167.
12. Reports of Adjudged Cases in the Courts of Chancery, King’s Bench, Common Pleas and Exchequer, From Trinity Term in the Second Year of King George I. To Trinity Term in the Twenty-first Year of King George II. Taken and Collected by the Right Honourable Sir John Strange, Knt. Late Master of the Rolls. in Two Volumes. Published by his Son John Strange, of the Middle Temple, Esq. (London, 1781), I, 625.
13. Modern Reports: or, Cases in Law and Equity, Chiefly During the Time the late Earl of Macclesfield presided in the Courts of King’s Bench and Chancery, viz. from the Eighth of Queen Anne, to the Eleventh of King George the First inclusive. By Robert Lucas of the Inner Temple, Esq. (London, 1769), X, 147.
14. Reports of Cases Argued and Determined in the Court of King’s Bench; in the Nineteenth, Twentieth, and Twenty-first Years of the Reign of George III. By Sylvester Douglas, Esq. of Lincoln’s Inn (London, 1783), 382.
15. Lewis is referring to the 1781 election in Philadelphia County of John Bayard to the supreme executive council of the Pennsylvania legislature. Like the New York gubernatorial election of 1792, this election was contested on a technicality. The council requested the opinion of the Pennsylvania Supreme Court, and on March 12, 1782, Justices Thomas McKean and George Bryan, on grounds similar to those held by Lewis in 1792, contended that, while the law stated the hour the polls were to open, it was “only directory.… An officer may be punishable for a neglect of duty. The people are not to be deprived of Representatives on account of this omission.…
“The election ought not to be declared void because some of the Inspectors left their stations before the election was ended. They indeed were offenders, and may be punished for not performing their duty, unless they quit their stations through indisposition or some other good cause.
“If elections were to be set aside for irregularities which do not effect, obviously and materially, the truth of the poll, the craft of the Judges or Inspectors might lead them to contrive such departure from duty, or to commit some irregularity, in order to overturn an election, in case they should dislike the event of it. The rights of the people do not depend upon so precarious a foundation.…
“Upon the whole, fraud, force, or undue influence, may in some instances be sufficient reasons for declaring an election void, but no irregularity, excepting such an one as would render it uncertain whether the candidate returned had a majority of the votes of qualified electors, (that being the substantial point,) ought in our opinion, to affect the rights of the representative or represented, especially where they had no share in it; but in such case, the person committing the offence should be duly punished, according to the nature of it. The true distinction is between the public and private wrong, the generality and particularity of the injury.” (“Minutes of the Supreme Executive Council of Pennsylvania,” Pennsylvania Colonial Records [Harrisburg, 1853], XIII, 229–31.)