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Robert Smith’s Observations on the Charges Against Arthur St. Clair, 15 June 1802

Robert Smith’s Observations on the Charges Against Arthur St. Clair

Observations upon the charges against Governor St. Clair—

1st. Charge is not established. It was not an usurpation, but an exercise of a legitimate power. The Ordinance of Congress has expressly given to the Governor the power of laying out the Territory into Counties and Townships subject only to this qualification—that the Legislature may thereafter make any alterations therein. The division is first to be made by the Governor. It is afterwards subject to the revision of the Legislature—The Legislature could not act in the first instance. If the Governor had abused this authority, such abuse might have been submitted to the Legislature. If the people had been aggreived by such abuse, they should have applied to the Legislature for redress. It does not appear that an application for such redress was ever made.

2nd. Charge is not established. A mere error of Judgment is not imputable to a Majistrate as a Crime. It must be such gross misconduct as induces a presumption of Corruption. No evidence of such corruption has been adduced. Of the Eleven Acts rejected by the Governor, Six were negatived under the impression that the Legislature had therein exceeded the limits of their authority. And this impression I cannot consider even erroneous. Other Objections, drawn from principles of expediency, as stated by the Governor, it may fairly be presumed had influence upon his mind in rejecting these Six Acts. The Governors Objections to the other five Acts are set forth in his Address to the Legislature. So far as these Objections may appear to have weight, they tend to remove the imputation of Corruption. They have, indeed, in my mind so much weight, that I am inclined to think that the Acts ought to have been negatived. I, however, cannot find any thing that creates even a suspicion of a wanton abuse of power.

3d. Charge, as stated, is not established. There is no evidence that the Governor in any instance refused to perform any of the duties of his Office because a fee was not paid to him—or that he ever demanded a fee of any kind as a Condition to his performing any Official duty. But altho the proof does not establish the charge as exhibited, it shews that the Governor has been in the practice of receiving certain fees for Official services. This practice with respect to Tavern Licences is warranted by an adopted Law page 97—with respect to Commissions to Prothonotaries Sheriffs &c by an adopted Law page 79. but with respect to the Cases of Marriage & Ferry Licenses I cannot find any authority of Law. And if there be not any such Law, the receipt of fees for such licences by the Governor without Law was a1 misdemeanor. My mind is embarressed in ascertaining the degree of this Offence. The sum of money received for such licences is so trifling that I cannot allow myself to attribute the receiving of the fees to corruption. Admit him to be a man of sense, as he has ever been considered, it is difficult to believe that he would risk such disgrace for an Object so trivial.2 But as we have not all the laws of the Territory here, it would be advisable to postpone the final decision on this charge until the whole Code be carefully examined.

4th. Charge is not established. The Act, which gave to the Governor the 500 Dollars, expressly states that that Sum of money was allowed him “for his extraordinary services during the Session of the Legislature” It was passed on the last day of the Session. The motive of the Legislature as set forth and declared in the Act must be considered the true one.

5th. Charge is not established. The Governors letter to the Delegate in Congress Mr Harrison recommends to his attention the petition of the people of St. Vincennes and at the same time expresses his approbation of its Object. He and those people urged the expediency of a Certain division of the Territory for the better government thereof.3 I cannot understand how the petition or the Act of the Legislature4 can affect the provision of the Original Ordinance which stipulates that whenever any of the said States (certain districts of the Territory) shall have 60000 free inhabitants, such state shall be upon the same footing with the Original States—i.e. shall be established one of the U. States. The petition above mentioned of part of the people of the Territory with the accompanying letter from the Governor to Mr Harrison could not indanger the boundaries of those States as described in the Original Ordinance, because Congress without5 the concurrence of the whole Territory and perhaps of Virginia could not change this stipulation in the Original Compact. And his assent to the Act of the Legislature of the Territory proposing and submitting to Congress an alteration of the boundaries of any of those states cannot by the people of the Territory be deemed a Crime of the Governor, as it was only an assent to a legislative act of their Representatives. It cannot be deemed an Offence against the General Government. For as an Attempt to change the boundaries of those states could not be affected without the concurrence of Congress, he cannot reasonably be charged with a design of counteracting the wish of the general Government. It is not to be imagined that an agent has criminally intended to counteract the wish of the principal by an Act, which act could not be done without the formal expressed approbation of the principal.

6th. Charge is established. The explanation of the governor is not satisfactory. And viewing it in connection with the 3d. Charge I consider it sufficiently weighty to justify his removal from Office, provided that such 3d. Charge upon the proposed further examination of the Territorial Code be established and cannot be softened by extenuating circumstances.

7th. Charge is not established. Under an impression, it seems, that there was a defect in the Criminal Jurisprudence of the Territory, it became his duty to call the attention of the Legislature to the subject. The Judges it appears, had adopted the Common Law rule of Evidence, which does not admit the party robbed to be a Competent witness. That, which the Governor did recommend as an amendment, does Obtain in some of the States to a Certain degree. He was only unfortunate in not using the correct technical language of the profession. He called it a Rule of Court instead of a Rule of Evidence. And this appears to have been his only error in this instance. With respect to his effecting the surrender of the Commission of a Justice I have not seen any evidence to this effect.

8th. Charge is not established by any Evidence that I have seen.

9th. Charge is not established. From the explicit declaration in the preamble of the Act passed in Decr. 1800 it appears that the delay is not attributable to the Governor; but to the Legislature.

10th. Charge is not established. The Evidence is ex parte Affidavits. Upon ex parte Affidavits interlocutory proceedings may and often are founded. But they should never be the foundation of an Ultimate decision. Upon such testimony a Sentence of disgrace ought not to be pronounced against any person. And deplorable indeed would be the situation of an Officer of Government, if he were to be deprived of Office and consigned to disgrace upon ex parte Affidavits and especially when made under circumstances which in no small degree affect their Credit. For it is to be remarked that these three Affidavits were taken on the same day and before the same Majistrate and about nine days after the transaction to which they alluded—and before a Majistrate who had on that day received a letter of Reprimand from the Governor for an alledged neglect of duty and who on that same day gave notice to the Governor that he would the next morning resign his Commission and that he would have done it that Evening “but for the Concurrence of Circumstances which prevented him” (meaning probably the taking of these three depositions). This Majistrate, altho he knew that the Governor was in the Town and altho he had that day written & sent two Letters to him, did not give him notice to attend the taking of the aforementioned three affidavits. Such Conduct evidently shews that this Majistrate was hostile to the Administration of the Governor and may throw some suspicion on his proceeding in the Case of the alledged Riots

Rt Smith

MS (DLC); entirely in Smith’s hand; endorsed by TJ: “St. Clair’s case. Secy. of the Navy’s opn.”

For the ELEVEN ACTS REJECTED by St. Clair during the 1799 session of the territorial assembly, see Vol. 36:461–2, 467.

AN ADOPTED LAW: for the state laws adopted by the Northwest Territory, Smith cites Laws of the Territory of the United States North-West of the Ohio: Adopted and Made by the Governour and Judges, in Their Legislative Capacity, at a Session Begun on Friday, the XXIX Day of May, One Thousand, Seven Hundred, and Ninety-Five, and Ending on Tuesday the Twenty-Fifth Day of August Following (Cincinnati, 1796). Page 97 refers to Section 4 of an act adopted from the Pennsylvania code, which granted the governor of the Northwest Territory four dollars for every license granted to sell wine and liquors. Page 79 refers to Section 23 of an act adopted from the New York and Pennsylvania codes, which gave the governor one dollar for commissions issued to the attorney general, treasurer, sheriffs, prothonotaries, and recorders of the territory. The governor also received one-third of the 50 cent fee on commissions issued to justices of the peace.

PETITION OF THE PEOPLE OF ST. VINCENNES: that is, the petition of George Tevebaugh and others from Knox County, dated 1 Jan. 1800, seeking a division of the Northwest Territory (see Notes on Charges Against Arthur St. Clair, at 29 Apr.).

ACT PASSED IN DECR. 1800: for the reorganization and derangement of the militia in the Northwest Territory, see Vol. 36:464–5n.

For the CASE OF THE ALLEDGED RIOTS at St. Clair’s lodgings in Chillicothe on 26 Dec. 1801, see Vol. 36:464n. The correspondence between St. Clair and Justice of the Peace Samuel Finley regarding the event, as well as the affidavits of three witnesses gathered by Finley that denied the accusation of riotous activity, were printed in the 2 Jan. 1802 edition of the Scioto Gazette.

1Smith here canceled “high.”

2Preceding three sentences written on a separate sheet of paper and keyed for insertion here in place of “and for such misconduct he ought to be removed from Office.”

3Smith here canceled “I have not seen the petition nor the Act of the Territory proposing a division […] not.”

4Preceding eight words interlined in place of “they.”

5Remainder of the 5th charge and all of the 6th charge rewritten on a separate sheet for insertion in place of heavily emended text.

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