Enclosure: From Levi Lincoln
Washington May 25th 1802
In examining the charges against Govr. St. Clair and his defence, it is perceived, that an improper exercise of a confidence, or of a discretion, which had been placed in him, constitute an important part of them. This discretion can be rightfully exercised only when it aims at the ends for which it was intrusted. It is not directed by any special provisions, either in the ordinance, or in any statute—General principles, accommodated to the situation of the territory, promotive of its interest, are the laws binding on the Govr., within his sphere of action, & must direct, & limit his power, where it is not otherwise done—A violation of these principles, from party, sinister, or improper, views; or forsaking them, in multiplied instances, innocently, from imperfect, or mistaken, views, as really finds an imputation on the character of the Govr., to the purposes of deciding on his removal, as if he had violated the provisions of positive statutes. The enquiry is not, of a criminal nature, for the purposes of punishment. In such a case, the trial would be on different principles, and proof of the breach of actually existing laws, with an express, or an implied criminal intent, would be necessary—
The questions are, as to the qualifications for the office and the utility, & policy, of continuing him; and the charges are—
1st. That “He has usurped legislative powers by the erection of Counties, and location of seats of Justice, by proclamation on his own sole authority—
Obs. The Govr’s. defence admits the fact. the question is, was it an usurpation of power? not, was power discretely exercised? A strict construction of the ordinance, in my opinion, gives to the Govr. the power of erecting the Counties, and of appointing the County officers—A very liberal construction of the power for erecting Counties, might imply a power of fixing the place for holding the Court: But as this, is usually considered as belonging to legislative power, and as it is not necessarily connected with the erecting of a County, or with the administration of justice in it—I am inclined to think, the ordinance gave the Govr. no authority, to locate the seats of justice. The court may be held in one County, for that, & for its neighbouring County—The Govr. is to lay out the County. The powers & duties of the majestrate, when, and where to meet, and the business to be transacted, are matters to be defined, and regulated by the legislature. However, as this is a matter of some perplexity of construction, I think a different one might very innocently be adopted.
2d. That “He has misused the power of negativing legislative acts, by putting his negative on laws useful and necessary for the territory—
Obs. In the exercise of these discretionary powers, he by the ordinance, is made the judge, of the utility, and the necessity of the laws, which the assembly may enact. It would be difficult to say without more knowledge than is furnished by the papers, that this power was used either wantonly or injuriously.
3 That he has refused to perform the duties of his office, but on the payment of arbitrary fees, not established by any lawfull authority.
Obs. The taking of the fees alluded to, are admitted by the defence, which denies that it was done, arbitrarily. This is a question of fact, resting on the evidence. If the charge is supported, the conduct of the Govr. must be highly censurable. It can never be excused in one placed at the head of the Govt to inforce the execution & to guard against the violation, of law. There is nothing in the papers which shows that the fees admitted to have been taken, were authorised by law. The argument in the defence seems to be, this: That a thing, which has not been previously forbidden by law, or not censured in the first instance of its existance, is to be considered as legally authorised—I see neither justification, or apology for the Govr. in this part of his conduct—
4. He has negatived acts of the legislature abolishing those fees, and passed the act giving him $500 as a compensation for that abolition, & thereby holding both the fees and the compensation—
Obs This charge by recognizing the propriety of a law for the abolishing of those fees, & a compensation of $500 therefor to the Govr. seems to involve a justification of the preceeding charge—However, if the abolishing law, and the giving law, were understood by the parties, to be but the parts of a measure having in view a certain object, there was unfairness, in assenting to the one, & negativing the other, and the unfairness, was the greater on account of those complementory terms, used in the giving act, from which the Govr. in part, derives his defence. This understanding can be known only to the Govr. & to the makers of these laws. I have seen only the Govrs explanations. They are plausible—But it is difficult to beleive, that the legislators would have given the $500 on the idea of the fees being retained—
5 He has attempted to effect the dismemberment of the territory and to destroy the constitutional boundaries in order to prevent its advancement to the rights of Self Government, to which its numbers would intitlle it.
Obs There are, and can be, no proofs of the motives which influenced to this measure, but from, the nature of the thing, and the avowal of the accused—It is not easy to find in the subject matter, those which will satisfactorily account for an attempt, in the Governor of a territory to abridge the extent of his own jurisdiction, and of course his own emoluments & importance, and thereby for a time, deprive the people of rights & priviledges which they would otherwise be intitled to—It is not in nature that this attempt should have nothing in view, but the interest & happiness of the Governed—It is more like bartering the priviledges of the people for the continuence of his own power—
6 He has granted Commissions generally during pleasure but that to the Atty Genl. to his own son during good behaviour.
Obs: This, in every view of the matter, must be considered as improper & highly censurable. Other officers, holding during pleasure, it formed an inviduous distinction. The more so, on account of the difficulty that some judicial officers had made, respecting the tenure of their commissions, and the reasoning of the Govr on that occasion against their being during good beheavour—
During pleasure, is the only proper tenure, for a ministerial officer, dependent, for his appointment on a Governor, who is made, and continues, at the will of the President, and in a temporary Govt, where changes may often become useful, some times necessary—A new Govr. ought to have the same power of selecting the officers of his Govt which his predecessor had—In a Country, where there is a general deficiency of legal information, in which are but few law characters, It must be of importance that the Atty Genl. should possess the confidence of the people, and the friendship & esteem of the Govr.—The defence contains no justification. At best, it admits the doing an actual wrong to the public1 to secure an improper and a possible advantage, to an individual connected with himself. This conduct, & his motives, are highly censurable & as justified by himself, involving this reproach, either that the President would appoint an improper person to succeed him, or that his successor would act improperly in his office. In short, it is apparent that the Govr. meant, to make that provision for a son, which he would have thought not proper, to have made for a stranger, and to abridge the Gubernatorial power in his successor, which he had, and would have thought necessary to have, had the exercise of himself on the supposition of his continuing in his office—The proof of this, is, in the circumstances he states, & his actually removing from office justices, who differed from him in opinion on a question of law—as appears by the next charge—
7 He has endeavoured arbitrarily to influence and contravene the judicial proceedings of the judiciary and has revoked & effected the surrender of commissions of those, who refused to bend to his will—
Obs. The Govr’s legal ideas respecting the competency of the excluded witnesses, were undoubtedly correct. But, that he should think it right to remove judges from their offices, because they mistook the law, is strange; And especially, in reference to a point, which, formed an exception to a general principle, and about which, altho the law is now clearly settled, the books contain various opinions—The Govr’s right to remove from office is not to be exercised capriciously, his discretion should be governed by reason, & propriety. Justices may innocently imbrace, & after able investigations, erronious opinions, but if the abandonment of these opinions, at the instance of another, is the condition of their continuing in office, dependent, & degraded indeed is their situation. It seems impossible that this should be the only motive for the act complained of—
8 He has appointed persons residing out of a county to offices, the duties of which were habitually performed in them—
Obs: The instance, excused in the defence, is, the Govr’s. son in law, who being a justice of the peace and of the Common Pleas in the County of Hamilton, was on the erecting of the County of Bomont, appointed recorder of deeds there, which he has discharged by deputy—The excuse is, that no person residing in the County town qualified for the office could be found to give the necessary security, nor a suitable house obtained for the purpose. It is to be remembered that the Govr. erected Counties at his own descretion. Why did he erect a new one, before population, could furnish, from within itself, men, and the accommodations, necessary for its support. The idea, of discharging the duties of such an office altogether by a deputy, and of a non resident County officer, is new, & justifiable on no principle whatsoever—
9th That he has neglected and thereby obstructed the organization of the militia for the defence of the territory by withholding the appointments of officers twelve months after a law had passed establishing the same.
Obs: This business, has generally been attended with difficulties & delay; Perhaps not greater in the territory than in many other places, where no particular blame attaches to the Commander in Chief. The reasons assigned in the defence are plausible, and if supported to me satisfactory—
10 That he avowed his hostility to the form, and the substance of a republican Govt. & his contempt of our malitia regulations.
Obs:—Judging, as I have of the other charges, from the defence, I doubt if this ought to be considered of much consequence. So much depends on the parties to the conversation, the matter, the manner, the occasion, and the design—so often imperfectly heard, or misconceived, that it is difficult to place much2 confidence on it—
The foregoing are my impressions on examining the charges & the Govr’s. defence. I have no doubt but that there has been, that departure from duty, and abuse of power, which will justify the President in a removal—There are other reasons. As a measure of justice and of right, it appears to me to be clear, the Govr., nor his friends, would have any reasonable grounds for Complaint—As a question of policy there may be some doubt. In reference to the territory abstractedly considered, I am inclined to think it would be useful, and also in its immediate effects on them, in their connection with the United States—How it would impress the public mind, is uncertain. It would be improved by the opposition, to create new, & to strengthen its old prejudices. But these I would risque,3 rather than the republicanism of the territory, if that is the alternative—
Most respectfully yours
RC (DLC); at head of text: “President of the United States.”
1. Lincoln here interlined the preceding three words in place of “to prevent a possible.”
2. Lincoln here canceled “intire.”
3. MS: “rique.”