Читать книгу Aaron Burr: A Biography - Nathan Schachner - Страница 52

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The election was warmly contested and exceedingly close. When the ballots were all in, the result was still in doubt. By law the votes had to be canvassed by a joint committee of the two branches of the Legislature—six Senators and six Assemblymen. The ballots were required to be delivered to the Sheriffs of the respective counties, who were to place them in boxes, seal and deliver them to the Secretary of State. He in turn delivered them on the second Tuesday in May to the Board of Canvassers, who thereupon broke the seals, counted the votes and announced the results. Their decision, declared the law, was to be binding and conclusive.

Excitement grew more and more tense as the canvassing date approached. There were rumors of irregularities, of a determination to seat George Clinton in the gubernatorial chair by fair means or foul. The majority of the committee were Republican in politics and Clinton’s personal friends and henchmen.

Nor were the rumors entirely false. When the ballots were duly opened, it was discovered that John Jay, if all the ballots were declared valid, had been elected by a majority of almost 400 votes. But at once the Republicans on the Board of Canvassers discovered irregularities in the votes that had been delivered to them from the counties of Otsego, Clinton, and Tioga, all from the upper portions of the State.

The irregularities were of a highly technical nature, not impugning in any way the honesty or probity of the balloting in the three suspect counties, nor the integrity of the officials who had handled the votes. But, claimed the majority of the Board, the exact letter of the law had not been complied with, and therefore the entire votes of the counties must be rejected. Tioga had given a substantial majority to Jay; the votes of the other two counties were approximately even. If all three were rejected, Clinton was elected by a vote of 8,440 to 8,332. If accepted, Jay was the next Governor.

The minority of Federalists, however, raised such a clamor that the dominant faction hesitated to dispose of the matter thus summarily, and it was finally agreed to obtain the opinion of eminent lawyers for their guidance. The lawyers chosen were Aaron Burr and Rufus King, both United States Senators.

The two Senators conferred, and found that they, too, disagreed, each following the bent of his political convictions. Burr thereupon proposed that they should decline to announce any public decision, but King refused and forthwith sent this opinion in writing to the Board. It was to the effect that the ballots of the disputed counties be declared valid. Whereupon Burr promptly forwarded his opinion that the ballots of Tioga and Otsego were void, and concurring with King only insofar as Clinton County was concerned.

Which left the Canvassers pretty much where they had been before. Yet, with a fine disregard of the proprieties, they proceeded to reject the votes of all of the counties, including Clinton, by a strictly partisan vote of 7 to 4, and George Clinton was declared elected.

At once the State was swept by a flame of excitement. The Federalists shouted to the heavens that Jay had been deliberately cheated out of the election, that the Canvassers had been corrupt and partisan; they held public meetings, and denounced Clinton as a usurper. Civil war even threatened. But Jay remained calm and opposed all violent measures, much to the disgruntlement of the hotheads in his party. Instead, an appeal was taken to the Legislature as a whole from the acts of its Committee.

On November 6th, the Legislature met, and on November 21st, it took up the matter of the disputed canvass. The majority of the Board presented their case in a document drawn for them by Burr, actively enlisted in Clinton’s behalf. He now, as a special pleader, even defended the action of the Board in rejecting the vote from Clinton County, though he had before, as an allegedly impartial arbitrator, declared it to be valid.

The Legislature, by a vote of 35 to 22, dividing along familiar lines, found that the majority of the Canvassers had not been “guilty of mal or corrupt conduct in the execution of the trust reposed in them by law,” and that, according to the statute, the judgment of the committee “shall in all cases be binding and conclusive,” and hence not to be set aside by the Legislature.^[198] The controversy was ended, and George Clinton was Governor.

The Legislature had evaded the fundamental issues, but the historian is not permitted to do so, or to overlook Burr’s part in the transaction. These issues must accordingly be examined.

In Otsego County, the commission of Richard R. Smith, the Sheriff, had expired on February 18, 1792. His successor, Benjamin Gilbert, though appointed on March 30th, did not actually qualify into office until May 11th. On May 3rd, however, the ballots of the county had already been delivered to the old Sheriff, Smith, and by him turned over to the Secretary of State. The point at issue was whether such a delivery was within the meaning of the statute, which provided that the “Sheriff of the County” deliver the ballot-boxes. In other words, was Smith still Sheriff, or had he been superseded by Gilbert?

Rufus King maintained that Smith was the Sheriff de facto until the new incumbent qualified; that it was ridiculous to assume that the non-action or delay of the Council of Appointment in filling the vacant office could void the duly deposited ballots of an entire county. Burr took the opposite view in a long and closely woven argument that is a masterpiece of casuistry and technical legal learning. He declared that the law was specific and allowed for no leeway; that in England a statute was required to permit sheriffs to hold over pending the appointment of a successor, and he cited this as proof positive that at common law such a right did not exist. Inasmuch as the common law obtained in New York, and as no such statute was on the books, it followed that Smith was no longer Sheriff at the time he delivered the ballot-boxes. Burr also made much of the fact that the old Sheriff, Smith, had already another public office, and hence would be in the awkward position of holding two incompatible public offices at once.^[199]

His argument limps in several respects. In the first place, he erred in his assumption that the existence of an English statute presupposed that the original common law had been necessarily to the contrary. There were then, and are now, many statutes on the books, both in England and the United States, that are merely reaffirmations of the old common law. Furthermore, the doctrine of hold-overs in office, pending the election or qualification of a successor, was even then thoroughly established by precedents for ministerial duties. The delivery of ballot-boxes is purely ministerial in function. Rufus King’s argument, however, while sound and correct in its assumptions, was inferior to that of Burr in the marshaling of data and precedents, in the skill and plausibility with which they were advanced.

In the case of Tioga, the pivotal county, it appeared that the Sheriff “delivered the box containing the ballots to B. Hovey, his special deputy, who set out, was taken sick on his journey, and delivered the box to H. Thompson, his clerk, who delivered it into the Secretary’s office.”^[200]

King was doubtful about this as a legal delivery, but, taking into consideration that “the election law is intended to render effectual the constitutional right of suffrage ... it may be reasonably doubtful whether the canvassers are obliged to reject the votes of Tioga.” A weak, ineffectual opinion that was bludgeoned down by Burr’s ringing assertion that “the ballots of this county cannot, by any fiction or construction, be said to have been delivered by the sheriff.”^[201]

But there were precedents for such a redelegation of power by a sheriff’s deputy, which, unfortunately, King had failed to discover. The English case of Parker vs Kett, 1 Salkeld 95, had so ruled, and later, in New York, the State Supreme Court was to follow the English decision.^[202]

In Clinton County, the Sheriff entrusted the box to his servant for delivery, making him a deputy by parole for the occasion. Both King and Burr concurred in their original opinions that such a designation was proper.

The outcry continued, and both parties busied themselves in obtaining the opinions of other eminent lawyers to back up the legal arguments of their respective champions. It is hardly necessary to say that both were eminently successful in finding the necessary concurrences. To King’s opinion were added those of Robert Troup, Cornelius J. Bogart, Thomas Cooper and others, chiefly from New York.

Burr bestirred himself actively in his own behalf. His reputation as a lawyer and to some extent his political fortunes were at stake. He spread his net wide over the legal luminaries of the nation.

“This business has become of considerable personal Importance to me,” he wrote his brother-in-law, Tapping Reeve, “& must therefore command a little of your attention.” He had also enlisted the services of another relative, Pierpont Edwards, who had agreed to obtain signatures of approval from a half-dozen leading members of the Connecticut Bar. Reeve was to urge the matter on Trumbull, Bradley and Sedgwick, all likewise of Connecticut.^[203]

He also solicited and obtained the support of Edmund Randolph of Virginia, of Jonathan Sergeant of Philadelphia, who had been Treasurer of Princeton in Burr’s college days. He went as far afield as Paris, where James Monroe, Minister Plenipotentiary, was called upon for assistance. He enclosed the necessary papers and opinions, declaring that “those decisions, and of course my opinion, have been the subject of much animadversion and declamation; they were in short attacked with every thing but reason and law. The discontent of the friends of Mr. Jay or rather of the enemies of Mr. Clinton became clamorous and was expressed by resolutions and addresses of tumultuous meetings.” In order to achieve public approbation of his course, Burr proceeded, “the persuasion must principally be wrought by the authority of great Names (for it cannot be expected that the public will reason on law points).” And if possible, Monroe was, besides rendering his own opinion, to request those of Patrick Henry and others in the South, charging all expenses to Burr.^[204]

In short, Aaron Burr threw himself into the matter with every weapon and every resource that his powerful and agile mind could discover. Though, as he wrote Jacob De Lamater, “it would, indeed, be the extreme of weakness in me to expect friendship from Mr. Clinton. I have too many reasons to believe that he regards me with jealousy and malevolence.”^[205]

This was, in a measure, true. For Clinton could not but view with considerable uneasiness the rising star of Burr. Accordingly, he determined to repeat the tactics that he had employed with Judge Yates. In an access of seeming gratitude for the timely aid of the youthful Senator, he nominated him to the Council of Appointment on October 2, 1792, as a Judge of the State Supreme Court. Burr saw through the scheme and promptly declined the honor. He had no intention of being shelved.