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Subject Area: Political Theory
Topic: The American Revolution and Constitution

ROBERT TROUP TO JAY. - John Jay, The Correspondence and Public Papers of John Jay, vol. 3 (1782-1793) [1891]

Edition used:

The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 3 (1782-1793).

Part of: The Correspondence and Public Papers of John Jay, 4 vols.

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ROBERT TROUP TO JAY.

New York, 20th May, 1792.

My Dear Sir:

I have received several letters from you since you left us and sincerely thank you for the sentiments of friendship which they contain.

Clinton and his worthy adherents (the Livingstons) seem now to be driven to despair. All their hopes of success rest upon setting aside votes for you; their particular object at present is the votes of Otsego County which are pretty unanimous for you and which, from the last information, we have will yield a majority of upwards of 600 for you. The efforts made to prevent the canvassing of these votes by forestalling the judgment of the canvassers upon a mere law quibble are really characteristic of these virtuous protecters of the rights of the people, of the enemies of aristocracy, and the declaimers against ministerial influence. The facts respecting the Otsego votes are briefly these:

In February, 1791, A. B. was appointed Sheriff of that County to hold his office for one year. A short time before the expiration of his year he wrote to the Council of appointment declining a reappointment. About thirty days after the end of his year the council appoint C. D. Sheriff of the County, but the commission is never delivered to him neither does he in any one instance take upon himself the execution of the office. It is said, and I believe with truth, that the reason why C. D. did not take upon himself the office is that he could not obtain the security required by law. In this state of things the old Sheriff continued to act as Sheriff and after the election he received the ballots from the different towns, put them into a box as the law directs, and sent them by a deputy to the Secretary’s office. The votes of one of the towns instead of being put into the box were left out of it and sent down under a paper cover. The law requiries that the votes of every town shall be put into the box.

Upon this state of facts the Livingstons contend that A. B. was not Sheriff at the time of putting the ballots into the box or afterwards, and consequently that he had no right to send the box to the Secretary’s office. They also contend that the votes of one town being left out of the box all the other votes of the County must be lost. After there had been a considerable stir in town about the Ostego votes, Ned Livingston, to my very great surprise, waited upon me with a written case in substance as above, and asked me if I had any objections to giving an opinion upon it. At first I was struck with the indelicacy of the application and of my giving an opinion upon a subject in which my feelings were so much concerned. I replied however that he should have my opinion, and my reason for making this reply was a conviction that their views were corrupt and therefore that it would be right in me to counteract them if I could possibly do it. Before Ned left me he had the modesty in almost plain terms to tell me that I should not meet with any difficulty, he was persuaded, in deciding against the votes, upon both the points raised to me. The moment Ned went away I got down and examined the questions with the closest attention and soon satisfied myself from the books that A. B. was Sheriff at the time of putting the ballots into the box and afterwards, and that he was legally entitled to send the box to the Secretary’s office. As to the other question it appeared too absurd to admit of reflection.

I was pressed for my opinion the next morning and I gave it to Ned plumply against him upon both points. The opinion threw the party into consternation. A Cabinet Council of the Governor, the Chancellor, Ned, Brockholst, &c., was immediately called. Soon afterwards Brockholst went about almost like a madman vociferating against the legality of the return of the Otsego votes and roundly asserting that there was not a Lawyer out of this State that would give an opinion that the votes were legally returned.

Since this Brockholst and Ned have been rummaging all the law books in their effects and not a stratagem is to be left unpractised with the canvassers. Hoffman and Brockholst had agreed to state the case and send it to Lewis, of Philadelphia, for his opinion, but when put to the test Brockholst would not agree to a full and fair tale of facts. Hence Hoffman and I have prepared a case to be sent to Lawrence to be laid before Lewis, and I have already transmitted to Lawrence the case as stated by Ned with my opinion and the principles and authorities upon which it is based, with a request that when Lewis is considering the subject he will confer with him. The opinion of an able lawyer in another State, if with us, may be productive of good. Since my opinion has been a subject of conversation, I got King and Benson to come and spend an evening with me that we might examine the Case. We accordingly examined the law together, and they are both clearly with me. So is Mr. Jones, Mr. Harison, and Mr. Hoffman. That the opinion is right I think may be demonstrated as well upon legal grounds as upon principles of public policy. What may finally be the issue of this business it is impossible even to conjecture. Out of the 12 canvassers we have but three friends, Jones, ———, and Roosvelt, and the leaders of the opposite canvassers are prepared for any thing. If a fair canvass takes place we are all very sanguine in our expectations that we shall prevail. Gen. Schuyler was in town a few days ago and was expected again in town last night. He is much elated with our prospects and gives us a much more flattering account of our success in the Western District than I have already communicated to you.

We are all upon deck and keeping a good look out, and if by fraud and violence you should be excluded we are determined to take our stand and make a serious business of it. I wish for your own satisfaction you would look over the election law of this State passed 13 Feb. 1779, in 2 vol. page 27 &c.

The 10th Section declares that the “Sheriff of the respective Counties shall deliver the boxes containing the votes into the office of the Secretary and the 11th Section declares that the canvassers shall “proceed to open the boxes one after the other and the enclosures therein contained respectively and canvass and estimate the votes therein contained.”

From these clauses it appears to me, and I am not singular in the opinion, that the canvassers cannot inquire whether the boxes were sent to the Secretary’s office by a person having competent authority or not.

In reflecting upon the legality of the acts of the old Sheriff of Otsego County it should be remembered that by the words of the Constitution Sheriffs are to be annually appointed and that there are no words limiting the office to one year, only during the four years and neither have we any Statue to this effect.

In haste I am, my dear Sir
Your very affectionate friend,

Robert Troup.