Pelham, 27th July, 1791.
I have lost some of your letters, and I make no doubt some of mine have met the same fate; for this reason I am discouraged trusting any more to the stage. I am obliged to wait with all the patience I can command till the boat returns from town. I have no prospect at present of forwarding this. I write to repeat my thanks for yours of the 17th. It is the last I have received. I read it frequently, and always with new pleasure. I was disappointed at not having a line from you by the Saturday's mail. It is not fair to stand on punctilio, when you know the disadvantages attending my situation here. You ought to be doubly attentivepour me soulager. It is not so practicable to send some miles from home twice a week as you imagine.
Poor Dr. Wright had his house two days ago burnt to the ground, and all the furniture, with every article of clothing both of themselves and the children. She is very disconsolate, and much to be pitied. We certainly see the old proverb very often verified. "That misfortunes never come singly," that poor little woman is a proof. They talk of a general war in Europe; in that casele moulinwill be an object. We wait your return to determine all things. The Emperess of Russia is as successful as I wish her. What a glorious figure will she make on the historical page! Can you form an idea of a more happy mortal than she will be when seated on the throne of Constantinople? How her ambition will be gratified; the opposition and threats of Great Britain, &c. will increase her triumph. I wish I had wit and importance enough to write her a congratulatory letter. The ladies should deify her, and consecrate a temple to her praise. It is a diverting thought, that the mighty Emperor of the Turks should be subdued by a woman. How enviable that she alone should be the avenger of her sex's wrongs for so many ages past. She seems to have awakened Justice, who appears to be a sleepy dame in the cause of injured innocence.
Am I dreaming, or do you leave home again before you go to Philadelphia? Tell all your intentions; I love to plan and arrange. Our blind state here is one of our most vexatious evils; that state of uncertainty damps every view, and converts our most pleasing hopes into the most disappointing reflections.
Hy! ho! for the major. [1] I am tired to death of living in a nursery. It is very well to be amused with children at an idle hour; but their interruption at all times is insupportable to a person of common reflection. My nerves will not admit of it. You judge right as to the roads on the Neck.
Theodosia is quite recovered, and makes great progress at ciphering. I cannot say so much in favour of her writing. I really think she lost the last month she went to Shepherd. She has not improved since last spring. She is sensible of it, is the reason she is not very desirous to give you a specimen. We now keep her chiefly at figures, which she finds very difficult, particularly to proportion them, and place them straight under each other.
I will conclude my scrawl in the hope that Frederick will be able to forward it for me. Adieu. Remember to answer all my questions, and to take all my prayers in serious consideration. Be attentive to your health, and you will add to the happiness of your
Albany, 31st July, 1791.
At length expectation is gratified, and my hopes—even my wishes, fulfilled. Your letters of the 16th and 23d came both by the last post. Their ease, their elegance, and, above all, the affection they contain, are truly engaging and amiable. Be assured that petitions so clothed and attended areirresistible.
I anticipate with increasing impatience the hour of leaving this place, and am making every possible exertion to advance it. The delay of two days at Red Hook is indispensable, but will cost me much regret.
I finished on Monday last, tolerably to my own satisfaction, and I believe entirely to that of my employers, the business so often mentioned to you. I received in reward for my labour many thanks, twenty half joes, and promises of more of both of these articles.
The last post is the only one I have missed since I left Esopus. I was in court upon a trial which gave me not a moment's intermission till ten o'clock that evening. Though I do not pay you in quality and manner (for yours are, without flattery, inimitable), I believe I am nothing in arrear in number or quantity. The present is indeed a poor return for your two last; but though you miss of the recompense in this sheet, you will find it in the heart of your
Philadelphia, 27th October, 1791.
I have this day received your letter dated Sunday morning. It came, not by Mr. Sedgwick, but by the post, and was not put into the postoffice until Tuesday. It was therefore wicked of you not to add a line of that date. I am surprised to find that you had not received my letter from Brunswick. The illness I then wrote you of increased the next day, so that I did not arrive in town until Sunday. I am still at Miss Roberts's, and unsettled, but hope to be to-morrow in tolerable winter-quarters. I have had some trouble on that head, as well because I am difficult to please, as because good accommodations are difficult to find.
I receive many attentions and civilities. Many invitations to dine, &c. All of which I have declined, and have not eaten a meal except at my own quarters. You see, therefore, how little amusement you are to expect. I called at Mrs. L.'s (the elder), but have not seen either her, or as yet called to see her daughter. I have no news of Brooks, and am distressed by his delay, having scarcely decent clothes. I prudently brought a coat, but nothing to wear with it, and the expectation of Brooks has prevented me from getting any thing here. Send me a waistcoat, white and brown, such as you designed. You know I am never pleased except with your taste.
I wrote you the day after my arrival here, but it being past the post hour, kept it till Tuesday; made a small addition, and gave it to Mat. to carry to the office. He put it into his coat-pocket (I suppose with his pocket-handkerchief, which you know be has occasion to flourish along the street). On the day following, with a face of woe, he told me he had lost the letter, but had concealed it from me in hopes to have found it. I hope it may fall into good-natured hands, and so got eventually into the postoffice. It was short and stupid; unusually so, which perhaps vexed me the more for the loss. Be assured you have nothing to regret.
This letter can have nothing to recommend it but good-will and length, though the latter, without some other merit, ought to condemn it; and it would, I am sure, with any but you, who will give the best construction to any thing from your
Philadelphia, 30th October, 1791.
I am at length settled in winter-quarters. The house stands about twenty yards back from the street, and is inhabited by two widows. The mother about seventy, and the daughter about fifty. The latter, however, has her home in the country, and comes to town occasionally. The old lady is deaf, and upon my first coming to take possession of my lodgings, she with great civility requested that I would never attempt to speak to her, for fear of injuring my lungs without being able to make her hear. I shall faithfully obey this injunction. The house is remarkably quiet, orderly, and is well furnished. They have never before taken a person to board, and will take no other.
The honour which I have always done to your taste, and which indeed it merits, ought to have assured you that your advice requires no apology. I shall adopt your ideas about the wheels. If at the same time you had caused the commission to be executed, you would have added civility to good intentions.
Theodosia must not attempt music in the way she was taught last spring. For the present, let it be wholly omitted. Neither would I have her renew her dancing till the family are arranged. She can proceed in her French, and get some teacher to attend her in the house for writing and arithmetic. She has made no progress in the latter, and is even ignorant of the rudiments. She was hurried through different rules without having been able to do a single sum with accuracy. I would wish her to be also taught geography if a proper master can be found; but suspend this till the arrival of the major.
It is remarkable I that you should find yourself so soon discouraged from writing, because you had written one letter before you had received one. I had written you two before the receipt of your first. But I shall in future expect two or three for one, as the labour of business will prevent my writing frequently.
Remember the note to be put in the bank on Wednesday. If Bartow should not arrive, send Strong for Willet. Adieu.
Yours,
A. Burr.
Philadelphia, 14th November, 1791.
I recollect nothing of the letter I wrote to you, and which is referred to in yours of the 9th. You have no forgiveness to ask or to receive of me. If it was necessary, you had it even at the moment I read your letter. You mistake the nature of my emotions. They had nothing of asperity; but it is useless to explain them. I did it partially in a letter I wrote soon after that which I sent you in answer to yours. It was not such a letter as I ought to have written, or you would have wished to receive; I therefore retained it. In what way, or to what degree, I am affected by your letter of the 9th, will not be told until we meet. Be assured, however, that I look forward to that time with impatience and anticipate it with pleasure. It rests wholly with you, and your conduct on this occasion will be a better index to your heart than any thing you can write.
I enclose you a newspaper of this evening, containing a report by Mr. Jefferson about vacant lands. When you have perused it, send it to Melancton Smith. Take care, however, to get it back and preserve it, as it is one of Freneau's. I send you also three of Freneau's papers, which, with that sent this morning, are all he has published. I wish them to be preserved. If you find them amusing, you may command them regularly. Adieu.
Philadelphia, 14th November, 1791.
I am to-day in much better heart than at any time since I left New-York. John Watts took me yesterday a long walk, and, though fatigued, I was not exhausted. He takes every occasion to show me friendship and attention. I see no reason for your delaying to make a visit here. The roads are good and the season fine. If you do not choose to come directly to my lodgings, which are commodious and retired, I will meet you either at Dr. Edwards's, two miles from the Red Lion, or at the Red Lion, which is twelve miles from this city. Your first stage will be to Brunswick, your second Trenton, and your third here.
I expressed myself ill if I led you to believe that I wished any evidence or criterion of Theodosia's understanding. I desire only to promote its growth by its application and exercise. Her present employments have no such tendency, unless arithmetic engages a part of her attention. Than this, nothing can be more useful, or better advance the object I have in view. Other studies, promising similar advantages, must, perhaps, for the reasons you mention, be for the present postponed.
I hope this weather will relieve you from the most depressing of all diseases, the influenza. Exercise will not cure, but will prevent the return of it. I prescribe, however, what I do not practice. You have often wished for opportunities to read; you now have, and, I hope, improve them. I should be glad to know how your attention is directed. Of the success I have no doubt.
To the subject of politics, which composes a part of your letter, I can at present make no reply. Themodeof communication would not permit, did no other reasons oppose it.
I have no voice, but could undoubtedly have some influence in the appointment you speak of. For the man, you know I have always entertained much esteem; but it is here said that he drinks. The effect of the belief, even of the suspicion of this, could not be controverted by any exertion or influence of his friends. I had not, before the receipt of your letter, heard of his wishes on the subject you mention. The slander, if slander it be, I had heard often and with pain.
Sincerely yours,
Philadelphia, 1st December, 1791.
Enclosed in Bartow's last letter came one which, from the handwriting, I supposed to be from that great fat fellow, Colonel Troup. Judge of my pleasure and surprise when I opened and found it was from my dear little girl. You improve much in your writing. Let your next be in small hand.
Why do you neither acknowledge nor answer my last letter? That is not kind—it is scarcely civil. I beg you will not take a fortnight to answer this, as you did the other, and did not answer it at last; for I love to hear from you, and still more to receive your letters. Read my last letter again, and answer it particularly.
Your affectionate
Philadelphia, 4th December, 1791.
I fear I have for the present deprived you of the pleasure of reading Gibbon. If you cannot procure the loan of a London edition, I will send you that which I have here. In truth, I bought it for you, which is almost confessing a robbery. Edward Livingston and Richard Harrison have each a good set, and either would cheerfully oblige you.
To render any reading really amusing or in any degree instructive, you should never pass a word you do not understand, or the name of a person or place of which you have not some knowledge. You will say that attention to such matters is too great an interruption. If so, do but note them down on paper, and devote an hour particularly to them when you have finished a chapter or come to a proper pause. After an experiment of this mode, you will never abandon it. Lempriere's Dictionary is that of which I spoke to you. Purchase also Macbeau's; this last is appropriated to ancient theocracy, fiction, and geography; both of them will be useful in reading Gibbon, and still more so in reading ancient authors, or of any period of ancient history.
If you have never read Plutarch's Lives (or even if you have), you will read them with much pleasure. They are in the City Library, and probably in many private ones. Beloe's Herodotus will amuse you. Bartow has it. You had better read the text without the notes; they are diffuse, and tend to distract the attention. Now and then they contain some useful explanation. After you have read the author, you will, I think, with more pleasure read the notes and remarks in course by themselves.
You expressed a curiosity to peruse Paley's Philosophy of Natural History. Judge Hobart has it. If you read it, be sure to make yourself mistress of all the terms. But, if you continue your Gibbon, it will find you in employment for some days. When you are weary of soaring with him, and wish to descend into common life, read the Comedies of Plautus. There is a tolerable translation in the City Library. Such books give the most lively and amusing, perhaps much the most just picture, of the manners and degree of refinement of the age in which they were written. I have agreed with Popham for his share in the City Library.
The reading of one book will invite you to another. I cannot, I fear, at this distance, advise you successfully; much less can I hope to assist you in your reading. You bid me be silent as to my expectations; for the present I obey. Your complaint of your memory, even if founded in fact, contains nothing discouraging or alarming. I would not wish you to possess that kind of memory which retains with accuracy and certainty all names and dates. I never knew it to accompany much invention or fancy. It is almost the exclusive blessing of dullness. The mind which perceives clearly adopts and appropriates an idea, and is thus enlarged and invigorated. It is of little moment whether the book, the time, or the occasion be recollected.
I am inclined to dilate on these topics, and upon the effects, of reading and study on the mind; but this would require an essay, and I have not time to write a letter. I am also much prompted to convince you, by undeniable proof, that the ground of your complaint does not exist except in your own apprehensions, but this I reserve for an interview. When I am informed of your progress, and of the direction of your taste, I may have something further to recommend.
There is no probability of an adjournment of Congress during the holydays, or for any longer time than one day. The possibility of my being able to leave the business of Congress, and make a visit to New-York, diminishes daily. I wish much to see you, and, if you are equally sincere, we can accomplish it by meeting at Trenton. I can be there on Friday night, but with much greater convenience on Saturday noon or forenoon, and stay till Monday morning at least. Congress adjourns every week from three o'clock on Friday until eleven o'clock on Monday following. If, therefore, you write me that you will be at Trenton at the times above mentioned, you may rely on seeing me there: I mean at Mrs. Hooper's. This, though very practicable at present, will not long be so, by reason of the roads, which at present are good. If you make this trip, your footman must be on horseback; the burden will be otherwise too great, and I must have timely notice by letter. Mr. and Mrs. Paterson have invited you to make their house your home at Brunswick.
Mat. laughs at your compliments, as you know he does at every thing. I expect Theodosia's messages to be written by herself. I inquire about your health, but you do not answer me.
Yours affectionately,
Philadelphia, December 13th, 1791.
I regret the disappointment of the Trenton visit, but still more the occasion of it. Are you afflicted with any of your old, or with what new complaint?
Tell Bartow that I have this evening received his letter by Vining, who arrived in town last Monday. Beg him never again to write by a private hand about business when there is a post. After the lapse of five or six days without an answer, he should have sent a duplicate. You have herewith the note for 4500 dollars.
I was charmed with your reflections on the books of two of our eminent characters. You have, in a few words, given a lively portrait of the men and their works. I could not repress the vanity of showing it to a friend ofoneof the authors.
The melancholy news of the disasters of our western army has engrossed my thoughts for some days past. No public event since the war has given me equal anxiety. Official accounts were received from General Sinclair on Sunday. The reports which preceded, and which have doubtless reached you before this time, had not exaggerated the loss or the disgrace. No authentic estimate of the number of the killed has yet been received; I fear it will not be less than eight or nine hundred. The retreat was marked with precipitation and terror. The men disencumbered themselves even of their arms and accoutrements. It is some small consolation to have learned that the troops which fled to Fort Jefferson have received a supply of provisions, and are secure from any attack of the savages.
I approve, and hope at some time to execute, your plan of literary repose. Tell Bartow to send a deed for me to execute to Carpenter, pursuant to our contract. Pray attend to this; you will see that it may be a little interesting to me.
Yours truly,
Philadelphia, 15th December, 1791
The post which arrived this afternoon (Thursday) brought the mail which left New-York on Tuesday, and with it your sprightly and engaging letter of the 12th. I thank you for your attention to my friend, and still more for the pleasure you express at his visit. Your "nonsense" about Voltaire contains more good sense than all the strictures I have seen upon his works put together.
Next to your own ideas, those you gave me from Mr. J. were most acceptable. I wish you would continue to give me any fugitive ideas or remarks which may occur to you in the course of your reading; and what you call your rattling way is that of all others which pleases me the most.
In short, let the way be your own, and it cannot fail to be acceptable, to please, and to amuse.
I enclose this evening's paper. It containsStrictures on Publicola, which you, perhaps, may find worth reading.
From an attentive perusal of the French Constitution, and a careful examination of their proceedings, I am a warm admirer of the essential parts of the plan of government which they have instituted, and of the talents and disinterestedness of the members of the National Assembly. Adieu.
Philadelphia, 18th December, 1791.
Mr. Learned arrived yesterday with your letter of the 15th. He appeared pleased with your attentions, which you know gratified me.
I cannot recollect what hint I gave to Major P. which could have intimated an expectation of seeing you in New-York during thecurrent year; unless, indeed, some of those wishes which I too often cherish should have escaped me. We shall have no intermission of business during the holy-days. If I should find it at any time practicable to absent myself for a few days, it will most probably be about the middle of next month. You have indeed, in your last letter, placed yourself before me in the most amiable light; and, without soliciting, have much more strongly enticed me to a visit. But for the present I must resist. Will it not be possible for you to meet me at Trenton, that we may travel together to New-York? If you assent to this, I will name a day. Yet do not expose your health. On this subject you leave me still to apprehension and conjecture.
Your account of Madame Genlis surprises me, and is a new evidence of the necessity of reading books before we put them into the hands of children. Reputation is indeed a precarious test. I can think at present of nothing better than what you have chosen.
I am much in want of my maps of the different parts of North America. It will, I believe, be best to send them all, carefully put up in a box which must be made for the purpose. You may omit the map of New-Jersey. The packing will require much care, as many are in sheets. Ask Major P. for the survey he gave me of the St. Lawrence, of different parts of Canada, and of other provinces, and send them also forward. They may be sent by the Amboy stage, taking a receipt, which transmit to me.
You would excuse the slovenliness, and admire the length of this scrawl, if you could look into my study, and see the file of unanswered, and even _un_perused letters; bundles of papers on public and on private business; all soliciting that preference of attention which Theodosia knows how to command from her
Philadelphia, 27th December, 1791.
What can have exhausted or disturbed you so much? You might surely have given some hint of the cause. It is an additional reason for wishing you here. If I had, before I left New-York, sufficiently reflected on the subject, I would never have consented to this absurd and irrational mode of life. If you will come with Mr. Monroe, I will see you to New-York again; and if you have a particular aversion to the city of Philadelphia, you shall stay a day or two at Dr. Edwards's, ten miles from town, where I can spend the greater part of every day.
You will perhaps admire that I cannot leave Congress as well as others. This, if a problem, can only be solved at a personal interview.
You perceive that I have received your letter of the 18th. It was truly acceptable, and needed no apology. I do not always expect letters of wit or science; and I beg you will write wholly without restraint, both as to quantity and manner. If you write little, I shall be glad to receive it; and if you write more, I shall be still more glad; but when you find it a troublesome or laborious occupation, which I have the vanity to hope will never happen, omit it. I take, and shall continue to use, this freedom on my part; but I am for ever obliged to put some restraint on myself, for I often sacrifice the calls of business to the pleasure of writing to you.
27th December, at night.
This evening I am suffering under a severe paroxysm of the headache. Your letters, received to-night, have tended to beguile the time, and were at least a temporary relief. I am now sitting with my feet in warm water, my head wrapped in vinegar, and drinking chamomile tea, and all hitherto to little purpose. I have no doubt, however, but I shall be well to-morrow. As I shall not probably sleep till morning, and shall not rise in season to acknowledge your kind letters, I have attempted this line. I am charmed with your account of Theodosia. Kiss her a hundred times for me.
The reports of my style of life are, I should have thought, too improbable to be related, and much too absurd to gain belief, or even attention.
I have been these three weeks procuring two trifles to send you; but am at length out of all patience with the stupidity and procrastination of those employed; especially as the principal article is a piece of furniture, a personal convenience, which, when done, will not cost five dollars. The other is something between a map and a picture. Though they will not arrive at the season I wished, they will at any season be tokens of the affection of
Philadelphia, 2d January, 1792.
My Dear Theodosia,
Mr. Trumbull is good enough to engage to deliver this. You have long known and admired the brilliancy of his genius and wit; I wish you also to know the amiable qualities of his heart.
Philadelphia, 19th February, 1792.
Yesterday I received your truly affectionate letters; one datedThursday evening, the other without date.
You may expect a host of such falsehoods as that about the Indian war. I have not been offered any command. When the part I take in the bill on that subject shall be fully known, I am sure it will give entire satisfaction to my friends.
It will not do for me at present to leave this place. I shall therefore expect you here; and if you cannot spare the time to come here, I will meet you either at Princeton or Trenton (preferring the latter) any evening you shall name. Saturdays and Sundays, you know, are our holydays. I can with ease be at Trenton at breakfast on Saturday morning, or even on Friday evening, if thought more eligible. But I expect this letter will pass you on your way here. My rooms at No. 130 South Second-street are ready to receive you and Mrs. A., if she chooses to be of the party. But the tenour of your last induces me to think that you intend a very short visit, or rather, that you will come express. Arrange it as you please, provided I see you somewhere and soon.
I have a letter from Witbeck of a later date than that by Strong, and of much more satisfactory tenour. I believe he will not disappoint the expectations of my friends. He requests that some persons in New-York may write to him and others in and about Albany, giving an account of the expectations in Ulster, Dutchess, and the Southern District, and naming persons who may be corresponded with.
My lodgings are on the right hand as you come. Drive directly up a white gate between two lamps, and take possession. If I should be out, the servant will know where, and will find me in a few minutes. Do not travel with any election partisan (unless an opponent).
Yours,
Albany, 5th August, 1792.
I have received your letter, which is very short, and says not one word of your mamma's health. You talk of going to Westchester, but do not say when or how.
Mr. and Mrs. Witbeck and their daughter talk very much about you, and would be very glad to see you.
See what a letter I have got from little Burr, [3] and all his own work too. Before I left home I wrote him a letter requesting him to tell me what I should bring him; and in answer, he begs me to bring mamma and you. A pretty present, indeed, that would be!
Your father,
Philadelphia, 24th September, 1792.
This letter will be handed to you by Mr. Beckley. He possesses a fund of information about men and things. The republican ferment continues to work in our state; and the time, I think, is approaching very fast when we shall universally reprobate the maxim of sacrificing public justice and national gratitude to the interested ideas of stock-jobbers and brokers, whether in or out of the legislature of the United States.
Your friends everywhere look to you to take an active part in removing the monarchical rubbish of our government. It is time to speak out, or we are undone. The association in Boston augurs well. Do feed it by a letter to Mr. Samuel Adams. My letter will serve to introduce you to him, if enclosed in one from yourself. Mrs. Rush joins me in best compliments to Mrs. Burr, with
Yours sincerely,
Westchester, 8th October, 1792.
—I rose up suddenly from the sofa, and rubbing my head—"What book shall I buy for her?" said I to myself. "She reads so much and so rapidly that it is not easy to find proper and amusing French books for her; and yet I am so flattered with her progress in that language, that I am resolved that she shall, at all events, be gratified. Indeed, I owe it to her." So, after walking once or twice briskly across the floor, I took my hat and sallied out, determined not to return till I had purchased something. It was not my first attempt. I went into one bookseller's shop after another. I found plenty of fairy tales and such nonsense, fit for the generality of children of nine or ten years old. "These," said I, "will never do. Her understanding begins to be above such things;" but I could see nothing that I would offer with pleasure toan intelligent, well-informed girl of nine years old. I began to be discouraged. The hour of dining was come. "But I will search a little longer." I persevered. At last I found it. I found the very thing I sought. It is contained in two volumes octavo, handsomely bound, and with prints and registers. It is a work of fancy, but replete with instruction and amusement. I must present it with my own hand.
Your affectionate
Footnotes:
1. Major Prevost, who was a widower, and whose children were left in the care of Mrs. Burr while he made a voyage to England.
2. In the ninth year of her age.
3. Nephew of Colonel Burr
The correspondence in the last chapter between Mr. and Mrs. Burr has been selected and published that the world may judge him as husband and parent, so far as his letters afford a criterion. As literary productions they cannot fail to interest and amuse.
On the 8th day of March, 1790, the legislature passed an act appointing Gerard Bancker, treasurer, Peter Curtenius, auditor, and Aaron Burr, attorney-general, a board of commissioners to report on the subject of the various claims against the state for services rendered, or injuries sustained, during the war of the revolution. The task was one of great delicacy, and surrounded with difficulties. On Colonel Burr devolved the duty of making that report. It was performed in a masterly manner. When presented to the house, notwithstanding its magnitude, involving claims of every description to an immense amount, it met with no opposition from any quarter. On the 5th of April, 1792, the report was ordered to be entered at length on the journals of the assembly, and formed the basis of all future settlements with public creditors on account of the war. In it the various claimants are classified; legal and equitable principles are established, and applied to each particular class. The report occupies eighteen folio pages of the journals of the assembly. An extract from it is made, as justly meriting a place in this work.
The said report is in the words and figures following:——"The treasurer, the auditor, and the attorney-general, pursuant to the act entitledAn act to receive and state accounts against this state, did forthwith, after the passing of the said act, give such notice of their appointment and duties, and of the times and places for the execution thereof, and of the period by the said act limited for receiving and auditing claims, as is directed by the said act. And do herewith transmit to the legislature their report upon the accounts and claims against the state, which have been thereupon exhibited.
"The anxiety of the commissioners to render the execution of this trust useful and acceptable has occasioned a delay of some weeks; if their success in this attempt has been in any degree proportioned to their attention to the subject, it will furnish their excuse; indeed, when the legislature shall have seen the number, the variety, and intricacy of the matters which have been submitted to the consideration of the commissioners, it is hoped that a further apology will be thought unnecessary.
"The commissioners have endeavoured to reduce these various demands into classes, in such manner as to present to the legislature, in one view, all which have appeared to depend on similar principles. Notwithstanding their utmost attention to this object, they have found it necessary to report on a considerable number of single cases. As the authority under which they have acted required of them a state of facts, together with their opinion thereupon, whenever there was a want of uniformity either in the facts submitted or in the principles to be applied in the determination, they have thought that strict justice could not be done to the merit of the claim without a separate discussion, though this has tended to lengthen the report beyond what could have been wished, and to a degree which perhaps may in some instances be thought prolix, yet the commissioners supposed it of moment that their investigation should be not only satisfactory to themselves, but that it should be apparent to the citizens upon whose claims they have pronounced, that each hath received a distinct attention, and that demands substantially different from each other have not been inconsiderately blended. If the perusal of the proceedings now submitted shall give an impression of this kind, it will, in the opinion of the commissioners, tend to produce a more cheerful acquiescence in the determination of the legislature, when that determination shall reject the demand, and prevent a revival of claims which shall now be extinguished. The commissioners have thought that these were desirable objects, and have therefore been cautious of generalizing, so as to destroy real distinctions, or suppress a fact even of the lightest importance.
"In order to preserve uniformity in their opinions, the commissioners have adopted certain principles, from which the hardship of any particular case hath not induced them to depart. The most general and important of these are,
"First. Where any species of claims is barred by an act of the legislature, they have considered the act as a bar to their investigation, farther than to ascertain it to be unquestionably within the meaning of the law. This principle will be found to extend to all claims for pay and rations alleged to be due for militia service; to most of the demands against forfeited estates; to all claims for property sequestered, when the sequestration was warranted by the resolutions of the convention and the authority of the commissioners; to all claims of payment of state agents' notes, and to some other particular cases, which will appear in the report. In support of this principle the commissioners have considered, that to sanction by their opinion the admission of claims against the spirit and letter of the statute would be an impeachment of the wisdom of those laws; would be arrogating an authority not exercised by, or permitted to, any court of law or equity, and would open a door to the importunate and perhaps least deserving class of citizens, while others, having similar demands, had withdrawn them from a spirit of submission to the laws, by which these demands were precluded. The commissioners have been confirmed in the propriety of their ideas by a reflection that, if it shall for any reasons seem expedient to the legislature to repeal or suspend the limitation of these or any of those statutes, the avenues to redress will at once be open through the ordinary officers of the state, without farther legislative interposition; and that the opportunities of recompense would then be notorious and equal; but that the redress, if any should be obtained through the medium of the commissioners, would be partial in its operation, and to the exclusion of those who with equal merits had acquiesced in the known laws.
"Second.In the cases of claims for services done and supplies furnished during the war, when the demand, though originating under the authority of this state, is properly against the United States, the opinion of the commissioners is against the allowance of any recompense, because those claims should more properly be preferred to Congress; and for that this state can have no credit with the United States for payment or assumptions after the 1st day of October, 1788.
"And that, therefore, the claimants having neglected to exhibit their demands within the period during which this state could without loss have assumed them, cannot complain if they are now referred to the proper tribunal. Payments by the state were in such cases, at all times, of favour, and not of right.
"Third.All claims for the subsistence and services of the levies and militia, or other troops, composing a part of the continental army, or destined to join the army, and moving to such places of destination, or under the command or orders of a continental officer, and all claims for supplies and services beforehand for such troops, are considered as proper against the United States only, and are classed accordingly; the commissioners have been led to a more strict attention to this distinction by the reasons just before mentioned, and are warranted by the practice of the continental commissioners for settling accounts, in declaring that such accounts and demands were proper against the United States.
"Principles of more limited operation, and other remarks, will appear in those parts of the report to which they apply.
"Explanatory of particular parts, and of the general form of the report, it may be proper to observe,
"That where the claim or account appears, upon the face of it, to be evidently against the United States only, or for other reasons palpably inadmissible, the commissioners have thought it would have been superfluous to state the proof, and have therefore, in those cases only, given such abstracts of the claim or account as suffice to render the exception apparent.
"In giving their opinion, the commissioners have not detailed all the reasons which led to it, but have given a summary of such as appeared to them most conclusive; and, as well in this as in stating the facts, have aimed at as much brevity as appeared to them to consist with perspicuity. If they shall be found in any instances obscure, a reference to the claim and proofs will probably elucidate them. When the claim is provided for by existing laws, the opinion of the commissioners refers the claimant to the mode pointed out by such law.
"Demands of different natures by the same person are placed under the head which comprises the greater demand. The claim and vouchers being in such cases usually contained in the same paper or annexed together, it was necessary so to place them in the report that there might be no confusion in the references.
"To produce facility in the review of these proceedings, the documents referred to are all herewith delivered, and are in bundles, marked agreeably to the heads under which they are classed.
"Claims for Militia Pay.
[In the report a number of cases are here inserted.]
"By an act passed the 27th of April, 1784, entitledAn act for the settlement of the pay of the levies and militia for their services in the late war, and for other purposes therein mentioned, the mode in which the rolls and abstracts for pay and subsistence are to be made out and settled is particularly pointed out, and competent powers and directions for the liquidation of those accounts are thereby given to the treasurer and auditor."
"By the 14th section of an act passed the 21st of April, 1787, entitledAn act for the relief of persons who paid money into the treasury, &c., the aforesaid act of the 27th of April, 1784, is repealed. The commissioners consider this repeal as an exclusion of all further claims for pay and subsistence of the militia and levies. They are constrained to adopt this opinion, not only from the obvious intention of the act, but because, by the absolute repeal of the act of the 27th of April, 1784, there remains no prescribed mode of authenticating these demands; that any rules which the discretion of the commissioners should lead them to adopt would have been unknown to the claimants, who could therefore have had no opportunity of adapting their demands to such rules; and because, if the legislature shall be disposed to direct compensations for such services, it will, in the opinion of the commissioners, be most properly effected by a revival of the said act of the 27th of April, 1784, with such further provisions and checks as may be thought necessary; or by some other general statute, to be passed for those purposes, and which may give equal opportunities to the claimants, and place the liquidation and settlement of such demands in the hands of the ordinary officers of the state.
"Claims for services, supplies, and losses, which, if admissible, can be made against the United States only.
[In the report details follow, and the commissioners remark]—
"The foregoing claims and accounts the commissioners conceive to be proper against the United States only. This is, in their opinion, sufficiently evident in most of the cases from a bare statement of the demands. Some few appear to require a more special report. The resolutions of Congress of the 7th of May, 1787, and 24th of June, 1788, relative to the settlement of accounts between the United States and individual states, will show the extent of the powers of the Continental Commissioners, and will serve to explain the opinions in such of the preceding cases as may appear to require farther illustration."
"Claims for payment of State Agents' Certificates.
"By the 25th section of the act passed the 5th of May, 1786, entitledAn act for the payment of certain sums of money, and for other purposes therein mentioned, all persons holding or possessing certificates of Udny Hay or any of his assistants, or of Jacob Cuyler, Morgan Lewis, or Andrew Bostwick, were required to present them, in the manner therein prescribed, to the treasurer, before the 1st of September, 1786; and those who failed therein are thereby declaredto be barred and for ever precludedfrom any compensation, of which the treasurer was directed to give public notice by advertisement, which was accordingly done.
"By another act, passed the 31st of March, 1787, the time for presenting the certificates of Udny Hay and his assistants was extended until the first of May then next, which time has not been further extended by any law of this state: so that all certificates of those denominations which were not presented within the times and in the manner specified in those laws, are expressly barred and for ever precluded from compensation.
"The commissioners have therefore, for the reasons contained in the observations prefixed to this report, conceived that a reference to the aforesaid acts was the most proper discharge of their duty with respect to all claims of compensation for such certificates.
"Claims for grain impressed for the use of the army by virtue of warrants issued by his excellency the governor, pursuant to an act passed 23d June, 1780.
"The law authorizing these impresses declares the articles impressed to be for theuse and service of the army, and that the owner shall be entitled to receive from the public officer authorized to pay the same the current price for the articles impressed, but does not say by whom that public officer is to be appointed. The commissioners have, however, no doubt but these were proper claims against the United States, and would have been allowed by the Continental Commissioner if exhibited in proper season; therefore, and for the reasons contained in the second preliminary observation, the commissioners are of the opinion that these claimants cannot of right demand payment of this state.
"The claims of Van Rensselaer and Dumond, the commissioners are of opinion are reasonable; that, having been employed under the governor, the claimants could have no demand against the United States, and that the charges are proper against this state.
"Claims for services in assisting H.I. Van Rensselaer and Egbert Dumond in making the said impresses.
"The commissioners consider the reasons just before stated in favour of the claims of Van Rensselaer and Dumond to apply to the eleven preceding, and that they are therefore proper charges against this state.
"Claims for payment of debts due from persons whose property hath been forfeited or sequestered.
"The several foregoing demands against forfeited estates arose after the 9th day of July, 1776, and are expressly precluded by the 42d section of an act passed the 12th of May, 1784, entitledAn act for the speedy sale of the confiscated and forfeited estates within this state, and for other purposes therein mentioned.
"The next twenty-five claims are for satisfaction of debts out of the proceeds of property sequestered. The estates of the several debtors have become forfeited, but in some instances no property hath come to the hands of the commissioners of forfeitures; and in others, the property which has come to their hands hath been insufficient for the discharge of debts which have been certified.
"The succeeding twenty-six claims are to have debts satisfied out of the proceeds of property sequestered, though there had been no conviction of adherence or other forfeiture of the estate of the debtors.
"The commissioners are of opinion that a law should be passed authorizing the treasurer to pay demands against forfeited estates, in all cases where there still remains in his hands a surplus from the proceeds of such estates, notwithstanding the limitation contained in the act of 12th May, 1784. But the commissioners would recommend that some mode different from that prescribed in the said act be directed for the ascertaining the amount of those demands. The several claimants and such others as have neglected to avail themselves of the benefit of the said act, may, in the opinion of the commissioners, be with propriety holden to strict legal proof of their respective demands, in due course of law, in some court of record, where the interest of the state may be defended by some officer to be for that purpose appointed.
"The commissioners are further of opinion, that where there has been a sequestration of any part of the property of a personwhose estate hath become forfeited, the avails of the property so sequestered, as far as the samecan be distinguished, should be subject to the payment of his debts, in like manner as may be provided with respect to other demands against forfeited estates; but it would not, in the opinion of the commissioners, be at this time advisable to assume the payment of the debts of persons whose property hath been sequestered, and where there hath been no other forfeiture or confiscation.
"Claims relative to sequestration, and property taken by orders of the Convention.
"These persons were voluntarily within the British lines, and their property was therefore liable to sequestration under the acts of the Convention. They produce a certificate of their attachment to the American cause, signed by some respectable characters. But being within the resolutions of the Convention, the commissioners cannot advise a recompense.
"GERARD BANCKER,Treasurer."PETER T. CURTENIUS,State Auditor."AARON BURR,Attorney-general."
On the 19th of January, 1791, Colonel Burr was appointed a senator of the United States, in the place of General Schuyler, whose term of service would expire on the 4th of March following. Until about this period he was but little known as a partisan politician. After the organization of the federal government under the new constitution, he appears to have felt a great interest in its operations. In the French revolution also, his feelings were embarked; and he was among the number of those who condemned the cold and repulsive neutrality which characterized the administration of that day. That he was now about to launch into the troubled ocean of politics was evident to Mrs. Burr, and therefore, in a letter to him under date of the 23d of July, 1791, she says, "It is of serious consequence to you to establish your healthbefore you commence politician," &c.
In the autumn of 1791 Congress convened at Philadelphia, and Colonel Burr took his seat in the Senate of the United States. It has often been remarked of him, and truly, that no man was ever more cautious or more guarded in his correspondence. A disposition, from the earliest period of his life, to write in cipher, has already been noticed. To this may be added an unwillingness, on all important questions, to commit himself in writing. As soon as he entered the political arena, this characteristic was visible even in his letters to Mrs. Burr. On the 14th of November, 1791, he writes her—"To the subject of politics I can at present make no reply. Themode of communication would not permit, did no other reason oppose." And again, December 21st, he says—"You will perhaps admire that I cannot leave Congress as well as others. This, if a problem,can only be solved at a personal interview."
At the commencement of the revolutionary war, the State of New-York held an extensive tract of wild and unimproved lands. Sundry laws were passed in the years 1779, 1780, 1784, 1785, and 1786, providing for their sale and settlement. A board was created, entitled "the Commissioners of the Land Office." It was composed of the governor, the secretary of state, the attorney-general, the treasurer, and the auditor. The powers conferred by the several acts above referred to having been found inadequate to the proposed object, the legislature, on the 22d of March, 1791, gave unlimited powers to the commissioners, authorizing them to "dispose of any of the waste and unappropriated lands in the state, in such parcels, and on such terms, and in such manner as they shall judge most conducive to the interests of the state." In pursuance of this authority, the commissioners sold during the year 1791, by estimate, five millions five hundred and forty-two thousand one hundred and seventy acres of waste land, for the sum of one million and thirty thousand four hundred and thirty-three dollars; leaving in the possession of the state, yet to be disposed of, about two millions of acres. Among the sales was one to Alexander Macomb, for three millions six hundred and thirty-five thousand two hundred acres. The magnitude of this sale, and the price at which it was sold, created a great excitement throughout the state, and at the session of the legislature which commenced on the 4th of January, 1792, the subject was brought before the assembly.
The price at which Mr. Macomb made his purchase was eight pence per acre, payable in five annual instalments, without interest, with permission to discount for prompt payment at six per cent. per annum, which made the price about equal to seven cents per acre cash. Colonel Burr, as attorney-general, was a member of the board. On the 9th of April, 1792, the report of the commissioners being the order of the day, the subject was taken up in the house. Mr. Talbot, from Montgomery county, moved sundry resolutions. They were intended as the foundation for an impeachment of a part of the commissioners of the land office. They assumed to contain a statement of facts, evidencing on the part of the commissioners great indiscretion and want of judgment, if not corruption, in the sale of the public lands, and they charged the commissioners with a willful violation of the law. These resolutions, however, excepted Colonel Burr from any participation in the maleconduct complained of, inasmuch as the minutes of the board proved that he was not present at the meetings (being absent on official duty as attorney-general) when these contracts, so ruinous, as they alleged, to the interests of the state, were made: nor did it appear that he (Colonel Burr) was ever consulted in relation to them. These resolutions elicited a heated debate; in the progress of which all the commissioners, except the attorney-general, were assailed with great bitterness; and charges of corruption by innuendo were unceremoniously made. At a late hour the house adjourned without decision until the next day.
On the 10th of April, 1792, Mr. Melancton Smith moved the following resolution, with a preamble as a substitute:—
"Resolved, That this house do highly approve of the conduct of the commissioners of the land office in the judicious sales by them, as aforesaid, which have been productive of the before mentioned beneficial effects."
This resolution was adopted by a vote of ays 35—noes 20.
Of Melancton Smith it is proper to remark here that he was a plain, unsophisticated man. A purer patriot never lived. Of the powers of his mind some opinion may be formed by the following anecdote. Dr. Ledyard, who was afterwards health officer of the port of New-York, was a warm federalist. He was at Poughkeepsie while the federal constitution was under discussion in the state convention. Smith was an anti-federal member of that body. Some time after the adoption of the constitution, Ledyard stated to a friend of his, that to Colonel Alexander Hamilton had been assigned, in a special manner, the duty of defending that portion of the constitution which related to the judiciary of the United States. That an outdoor conversation between Colonel Hamilton and Mr. Smith took place in relation to the judiciary, in the course of which Smith urged some of his objections to the proposed system. In the evening a federal caucus was held; at that caucus Mr. Hamilton referred to the conversation, and requested that some gentleman might be designated to aid in the discussion of this question. Robert R. Livingston, chancellor of the state, was accordingly named. Mr. Livingston was at that time a distinguished leader in the ranks of the federal party. Whoever will take the trouble to read the debates in the Convention, in which will be found the reply of Smith to Livingston, will perceive in that reply the efforts of a mighty mind. It was a high but merited compliment to the talents of Melancton Smith, that such a man as Colonel Hamilton should have wished aid in opposing him.
During the winter of 1791-92, being Colonel Burr's first session in the Senate of the United States, he spent much of his leisure time in the state department. For several sessions after the organization of the federal government, all the business of the Senate was transacted with closed doors. At that period the correspondence of existing ministers was kept secret, even from the senators. With every thing connected with the foreign affairs of the country, Colonel Burr was exceedingly anxious to make himself intimately acquainted. He considered it necessary to the faithful and useful performance of his duty as a senator. He obtained permission from Mr. Jefferson, then secretary of state, to have access to the records of the department before the hour for opening the office arrived. He employed one of the messengers to make a fire at five o'clock in the morning, and occasionally an intelligent and confidential clerk to assist him in searching for papers. Here he was engaged until near ten o'clock every day. It was his constant practice to have his breakfast sent to him. He continued this employment the greater part of the session, making notes on, or extracts from, the records of the department, until he was interrupted by a peremptory order from the president (Washington) prohibiting his farther examination.
Wishing some information that he had not obtained in relation to a surrender of the western posts by the British, he addressed a note to the secretary of state, asking permission to make that particular examination; to which he received the following answer:——
"Thomas Jefferson presents his respectful compliments to Colonel Burr, and is sorry to inform him it has been concluded to be improper to communicate the correspondence of existing ministers. He hopes this will, with Colonel Burr, be his sufficient apology."
In April, 1792, there was an election for governor of the State of New-York. By some it was supposed that Governor Clinton would decline being again considered a candidate. It was known that John Jay would be the candidate of the federal party. At that period Colonel Burr had warm personal friends in both parties, who were urging his pretensions. Among the most ardent was Judge Yates. In the latter part of February, 1792, he authorized his friends to state that he declined a nomination. He was placed, however, in an unpleasant dilemma. The connexions, and many of the personal friends of Governor Clinton, were jealous of Colonel Burr's talents and growing influence. Between the governor and himself there was very little intercourse. On the other hand, the kindest feelings towards him were evinced by Chief-justice Jay, who was a most amiable man. It was his wish, therefore, as far as practicable, consistent with his principles, to remain neuter. He had never been an electioneering character, and with the people he wished to leave the pending question, without the exercise of any influence he might be supposed to possess.
By the then existing laws of New-York, the ballots that were taken in the several counties were, immediately after the election, transmitted to the office of the secretary of state, and there kept until the second Tuesday in May, when the board of canvassers were, by law, to convene and canvass them. The election for governor was warmly contested; the federal party supporting Judge Jay, the anti-federal party George Clinton. When the canvassers met, difficulties arose as to the legality of the returns from certain counties, particularly of Otsego, Tioga, and Clinton. The canvassers differing in opinion on the question whether the ballots should be counted or destroyed, they agreed to ask the advice of Rufus King and Colonel Burr. These gentlemen conferred, and, like the canvassers, differed: whereupon Mr. Burr proposed that they should decline giving advice. To this Mr. King objected, and expressed a determination to give his own opinion separate. This rendered it necessary for Colonel Burr to adopt a like procedure. He thus became a partisan, and a most efficient partisan, in that controversy.
Sevenof the canvassers determined to reject and destroy the ballots alleged to have been illegally returned. To this decisionfourobjected. The ballots were accordingly destroyed, and George Clinton declared to be duly elected governor. The excitement produced was without a parallel in the state. The friends of Judge Jay contended that he had been chosen by the people, but was cheated out of his election by the corruption of the canvassers. Great asperity and virulence were exhibited by both political parties on the occasion.
From the moment that Colonel Burr was driven to interfere in the controversy, he took upon himself, almost exclusively, the management of the whole case on the side of the anti-federal party. His accustomed acumen, vigilance, and zeal, were promptly put in requisition. Full scope was allowed for the display of those great legal talents for which he was so pre-eminently distinguished. It has been known to only a very few individuals that on Colonel Burr rested nearly the whole labour; and that nothing was done, even by the canvassers, but under his advice and direction. It has therefore been deemed proper to insert here some of the official details of the case. They are worthy record, as an interesting part of the political history of the State of New-York.
"Statement of the case by the Canvassers, for the advice of Rufus King and Aaron Burr.
"OTSEGO.—By the 26th section of the constitution of the State of New-York, it is ordained that sheriffs and coroners be annually appointed, and that no person shall be capable of holding either of the said offices for more than four years successively, nor the sheriff of holding any other office at the same time. By the ninth section of the act for regulating elections, it is enacted that one of the inspectors shall deliver the ballots and poll-lists, scaled up, to the sheriff of the county; and, by the tenth section of the said act, it is further enacted, that each and every sheriff of the respective counties in this state shall, upon receiving the said enclosures, directed to be delivered to him as aforesaid, without opening or inspecting the same, or any or either of them, put the said enclosures, and every one of them, into one box, which shall be well closed and sealed up by him, under his hand and seal, with the name of his county written on the box, and be delivered by him into the office of the secretary of this state, where the same shall be safely kept by the secretary, or his deputy. By the eleventh section of the said act, all questions arising on the canvass and estimate of the votes, or on any of the proceedings therein, shall be determined by a majority of the members of the joint committee attending; and their judgment shall be final, and the oath of the canvassers requires them faithfully, honestly, and impartially to canvass and estimate the votes contained in the boxes delivered into the office of the secretary of this state by the sheriffs of the several counties.
"On the 17th of February, 1791, Richard R. Smith was appointed sheriff of the county of Otsego, and his commission gives him the custody of that county until the 18th of February, 1792. On the 13th of January, 1792, he writes a letter to the Council of Appointment, informing them that, as the year for which he was appointed had nearly elapsed, he should decline a reappointment.
"On the 30th of March, 1792, the Council of Appointment appointed Benjamin Gilbert to the office of sheriff of the said county, with a commission, in the usual form, to keep the county until the 17th of February next. His commission was delivered to Stephen Van Rensselaer, Esq., on the 13th of April last, to be forwarded by him to the said Benjamin Gilbert. By the affidavit of the said Benjamin Gilbert, herewith delivered, it appears that he qualified into the office of sheriff on the 11th day of May, 1792. On the first Tuesday in April, 1792, Richard R. Smith was elected supervisor of the town of Otsego, in said county, and on the first Tuesday in May took his seat at the board of supervisors, and assisted in the appointment of loan officers for the county of Otsego. By the affidavit of Richard R. Smith, herewith delivered, it appears that the ballots taken in the county of Otsego were delivered to him as sheriff, and by him enclosed in a sufficient box, on or about the 3d of May, which box he then delivered into the hands of Leonard Goes, a person specially deputed by him for the purpose of delivering the said box into the hands of the secretary of this state, which was accordingly done, as appears by information from the secretary.
"A small bundle of papers, enclosed and sealed, was delivered to the secretary with the box, on which is written, 'The votes of the town of Cherry Valley, in the county of Otsego. Richard R. Smith, Sheriff.' Several affidavits, herewith delivered, state certain facts respecting this separate bundle, said to be the votes of Cherry Valley.
"On this case arise the following questions:—
"1. Was Richard R. Smith the sheriff of the county of Otsego when he received and forwarded the ballots by his special deputy?
"2. If he was not sheriff, can the votes sent by him be legally canvassed?
"3. 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,
"4. Ought they to canvass those sealed in the box, and reject the others?
"TIOGA.—It appears that the sheriff of Tioga 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.
"Question. Ought the votes of Tioga to be canvassed?
"CLINTON.—It appears that the sheriff of Clinton delivered the box containing the ballots to Theodorus Platt, Esq., who had no deputation, but who delivered them into the secretary's office, as appears by his affidavit.
"Question.Ought the votes of Clinton to be canvassed?"
Mr. King's opinion to the Canvassers.
"OTSEGO.—It may be inferred, from the constitution and 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 successor shall have been appointed, and shall have entered upon the execution of the office. The term of four years from the appointment of R. 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. R. Smith to his deputy, I am of opinion that R. R. Smith was then lawful 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. R. Smith's giving notice to the Council of Appointment of his disinclination to be reappointed, 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. R. Smith waslawfullysheriff 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. R. Smith was appointed sheriff of Otsego on the 17th of February, 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. R. Smith was sheriff, or the county was without a sheriff; that R. 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 colour of a regular appointment. From this statement it may be inferred, that if R. R. Smith, when he received and delivered the votes to his deputy, was notde jure, he wasde facto, sheriff of Otsego.
"Though all the acts of an officerde factomay 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 be 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 officerde facto, are valid.
"I am therefore of opinion, that admitting R. R. Smith, when he received and delivered the votes to his deputy, was notde juresheriff, yet that he wasde factosheriff; and that his receiving and delivering the votes being acts done under colour 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.