F 27 .K2M4 LIBRARY OF CONGRESS |!I|!I!||M|JMI DOOOSllbaVE ^^ • "^ov^ :.^^'« -^^0^ f^'^M: "^ov* ^^^'^ffl^-' '-^ He V-^^ ^vrv^^ "- /.v^z^'X >°/^^;U:>o /.-^%%_ 'oK 'bV •A( "p^.. ^^..^ -o^_ ..w^. ^ ^^^ - ^ov^ :iM^n:. '-n..^^ oV-^^^aw- v^c-^- V-O^ 'oK ^^ <> /^V/k^ \»c,'^'^ •ffifei'- ^^ A^ /^Va^ -^^^ c-?^^ ^-o^^^' f ... ^^ "••'' aT -^ *"^* ^^ .. '-.p. ►.To' ^ .^'\ 0* °«^^*. •'ol-'' i\*««^» )% V\5i,^-xs.'lr^?^j COMMUNICATION OF HIS EXCELLENCY THE GOVERNOUR TO THE HONOURABLE COUNCIL, RELATIVE TO THE REMOVAL OF SHERIFF LITHGOW; AND THE REPORT AND ADVICE OF COUNCIL THEREON. \ ■ ' rJtIJVTED BY ORDER OF THE GE^XRJL COURT. 1808. '-i.'^\ ^-^ h'\^ COMMUNICATION, &c. COMMONWEALTH OF MASSACHUSETTS. Council Chamber, February 15th, 1808. THE Governour makes the following communication to the Council, und requests their advice thereon, to be given, and entered in the Register of their proceedings, and signed bij them individually, according to the provision of the fifth artKle^ of the third section ^ of the second chapter of the Constitution. X HERE have been lately in the County of Kennebeck, cer- tain acts of opposition to the regulai' administration of the La\\'s. Those are alluded to, in a proclamation issued on the first day of February current, by the Governour, by and with the advice of this honourable Boai'd, a copy of which procla- mation is now before the Board, marked No. 1, to which the Goxernour refers the Council. He also refers the Board to the printed Division orders of Major General Se^vall, Major General of the 8th division of the Militia, now before the Board, marked No. 2. To General Sewall's letter to the Go- \-crnour dated the 21st of January last, now before the Boaj-d marked No. 3. To the letter of Aithur Lithgow, Esq. to tlie Go'V'ernour, dated the 7th of January, 1808, and received some time after, and laid before the Council on the 25th of that i month, marked No. 4. To the said Lithgo^v's letter to the ■ Go\ernour, of the 23d of the same m.onth, avo^ving the appli- cation to General Sewall, &c. marked No. 5. Tho letter of , Pitt Dillingham to the baid Arthur Lithgow, dated the 25th of I January, 1808, enclosed by him to the Governour, and mark- ' ^cd No. 6. A letter of the said Sheriff to the Governour, da- ted the 25th Januan-, marked No. 7. A letter from him to the Governour, dated the 27th January, marked Nr 8. The dc- [ 4 ] position of Henry Johnson, sworn to the 14th of December, 1807, and received by the Governour from said Lithj^ow, on or about the 25th of Janiuuy, 1808, marked No. 9. The Gene- ral Orders of the Commander in Chief, for disbanding- the mi- litia detached at said Lithgow's request, by Major General Sewall, marked No. 10. The letter of said Lithgow to the Go- vernour, dated the 5th of February instant, marked No. 11. Tlie deposition of George Bender, who was employed as an express to convey the proclamation and general orders to the County of Kennebeck, marked No. 12. Upon these papers and documents, the Governour finds himself obliged to call on the Council for their advice, to be given, registered, and sub- scribed, as the Constitution provides, upon this Question. " Whetlier it is, or is not necessary, in order to restore peacrs and tranquillity," to the County of Kennebeck, to maintain the authority of the La\\% and support the honour of the Govern- inent there, to remove the said Arthur Lithgow, from the of- fice of Sheriff of that County, by the appointment of a more competent person in his place, JAMES SULLIVAN. The Committee to whom was referred the communication of his Excellency, respecting the removal from office, the Sheriff of the County of Kennebeck, with documents accom- panying the same^ as also a rcpre^^entation, respecting the Sheriff of the County of Kennebeck, beg leave respectfully to repoit their opinion of the particular case submitted, and the .'ipplication in reference to the Sheriff of the County of Han- cock, as principally cm.braced, in the expression of their gene- ral sentiments on the subject at large, matured by serious re- flection, confirmed and urged, by the opinions of the most re- spectable friends oi the National and State Governments, botli in and out of the Legislature, from all parts of the Common- wealth. The objects of civil institutions, are the comfort, se- curity-, and happiness of those who have established and placed themselves under them. Those on whom those institutions immediately act, and who feel their effects can best tell, when these ends are rtccomplished. Government is only vaiious ar- rangen^ents of delegated powers, for collectinp- and carrying into execution the will of the people. Their agency, as it ^vas in fixing the forni of the social compact, so it v/i\\ be in watch- ing the applications of its power, paramount to all others. The complexion of the government is alona seen in the measures, [ 5 ] ciiid the characters oi the individual agents who administer it. It is reserved to the people to decide on the political cast, which shall be given to their government, and on the merit and politicks of the publick servants, which the Constitution has placed at their disposal. And has not this decision been made? in this State and throughout the United ^States, notori- ous differences of opinion have marked political parties, pub- lick men and publick measures, and formed the test of politi- cal rectitude, and political claims to confidence in tlie rninds of all our citizens. The principles of all parties have been known, marked, defined, and appropriately directed, and urged on the consideration of the commimity, for its decision on their comparative worth. The numerous remonstrances and protests of Senators and Legislators, against the principles and measures of the friends of the National and State Govern- ments which have been journalized, published, and in the shape of pamphlets, circulated by their friends, are recorded proofs of a total w;ant of confidence and esteem on one aide. Filled with solemn warnings and conjuring calls, for e-\ery ex- ertion to countervail the ruinous tendencies of the existing- measures, these text books, from which to argue, are on the table, and under Ihe pillows of thousands and thousands of cur unfriendly fellow citizens. With such principles in the heads and heiu-ts of ministerial olncers and their friends, is it in nature that their opposers should place confidence in them ? The people's principles and the grounds of their confidence have been constitutionally col- lected, and unequivocally announced l)y tlie recent choice of their Governour, Lieutenant Governour, Council, Senate and House of Representatives. These expressions and the futui-e objects to which they pointed, cannot, and liave not been mis- talvcn. They constitutionally evinced a strong predilection for a change in the political complexion of the Government, as formed and to be exhibited by the principles and actions of the A-arious publick lunetionarics which compose it. Tlius has the will of the people been understood, respected and faithiiil- ly and wisely executed, by both Mouses of the Legislature, Thus has il been complied with, as with an imperious re(;;uisition for tlie publick good. To have disregarded this indication of the publick will, would have been injustice in the Lep.islaturc . a disappointment, if not an act of pcrjur}/ towards their consti- tuents. Among o:hcr thing's the Legislature iirae chi-,ngcd the political character of tlic Secretary's, Treasurer'"-, and Xo- [ Q ] tary Ptibllck offices. On these principles did our predecessors yield to successors, who, by accepting the trust, stand here pledged to their observance. These ari'angements can only be in good faith, but a partial, not a complete execution of the publick will. Could it appear important to change the Trea- surer, a Notary whose duties are confined to a single room, in a particular town, whose business is to count, keep, and pay out money, and whose patronage is the appointment of two or three Clerks ; and unimportant to change an oiiice of the first emo- lument and greatest influence in a County, whose duties are over the whole County, with ail the courts and all the people, whose indulgencies or severities may be felt by thousands, whose patronage is the appointment of scores of Deputies, Ap- praisers, Keepers of goods, and Jailors of citizens ; whose di- rection may be scrupulous on the acceptance of bail, and ava- rice, greedy of augmented sums ; Vv'hose cruelty or political re- venge may be gratified by the return of a talisman ; Avhose wan- tonness may call out and arm the posse, dependant on his nod, or put in motion the militia for the purposes of carnage imd of blood, placed ?.t his back. Surely if there is an officer in the Commonwealth who ougiit to possess the confidence of the people, and harmionize in feeling and in political principle with the government and administration, it is the one possessing such an extent of patronage, such variety of duties, such tre- mendous powers. The state sovereignty and the nation's also, are now by all parties, and by all descriptions of politicians, acknowledged to be in the people. This the people knew when they adopted tlie State Constitution, and recently were exercising under it their highest act of reserved power, in the choice of their Repre- scntati'\'es, and the first officers of the state. They were at- tached to the national go^'ernment, had confidence in its mea- sures, in its integrity, in its v.isdom, and in its patriotism, hi tlie rectitude and worth of its officers, and they wished their ov/n government and its officers to harmonize ivith it in princi- j -les of policy and economy, in national sentiments, and in common efibrts for the common good. Numberless publica- tions, addressed to the justice, tlie interests and the patriotism ai the people, stated the necessity and utility of this unison of seritiments between the officers of the State and the General Government, and of their accordance, v.ith the ]:opuIar feeling and confideiice. This was stated as an attainable desideratuiii .V. oithy a last exertion and tlie gl-eatest sacrifices, whicli was L 7 ] to accomplish every wish, take from the enemy his commis- sion at will, and despoil enmity of its power of annoyance. For these purposes the struggle wds continued, a change was willed, and a change was made. The administration, on new principles, was committed to new liands and in confidence of a faithful execution of the system in its remote and detailed di- visions. The people had, and have a confidence in the cor, rectness, the practicability and the utility of their ovn princi- ples, and they wish for a fair experiment of them made by their friends. This alone will satisfy them. They distrust their opponents as political enemies. The interest, the repu- tation, the comfort and happiness of the friends of the experi-, ment, depend on its success. It can ne^-^er be aided by the calumniators of the system. The contents of pamphlets, pro- tests, and communications recently addressed to the people and scattered thick like the locusts are yet remembered, they are in the hands and hearts of their readers. The cruel lacerations of private character, of friends and of families, of goodness and of greatness; the injurious and per- \-ei'se denunciations of the principles of our state and national governments, of their highest, intermediate and more su- bordixiate offices, cannot be so far forgotten by the people, as to admit the idea of safety but from their friends. As the ad- vocates of the new order of things are peculiarly responsible for its success, they ought principally to direct its operations. If it fails, the failure and the disgrace will be tlieirs. Those who have seen in it nothing^ but weakness and wickedness, v/ho have denounced and opposed, who have interdicted its rise ana predicted its fall, who calumniated its measures, hate and de- spise, reproach and ridicule their authors, who feel no interest in its character, or in supporting the reputation of those who administer it, but in sinking both, can triumph only in the em- barrassments and ruin of the objects of their dislike. Onlcea of emolument, of patronage and of out-door influence at the disposal of the Executive, continued from choice in such hands, in contempt of the expression of the publick will, can only chill the ardours of action at their source, extinguish the vit:il principle of confidence, and soon change the character of our government. Not more certain than this deprecated event, would be the results of the most efficient causes in their nearest effects, if credit can be given to history, to observation, experience, and to the reasonings and propensities of the hu- man he^LTt or moral causes. Good faith, justice, dignity and [81 dut)^ deraand a difTercnt arrangement. The governnment now needs, and more sensibly may need hereafter, the intelligence, experience, Iriendsliip, countenance, council, confidence and support, of all those officers wliich the Constitution has placed at the will of the Executive. Such are doubly pledged for decency and respect for the government, and for a discharge of all the ci'\il duties. Where all these have been violated (jy Hidividuals, there can exist not a possible reason for further forbearance or lor fuither confidence. Persons in ofHce, at the v/ill of the Executi\"e, whose charac- ters have been notoriously marked with every feature of hatred,- of contempt and opposition to the system of the existing state and national government, and to the characters who administer them, can never possess the esteem and confidence of the friends to those administrations, nor perform usefully and satis- factorily, the duties of active officers among them. The publick sentiment and the publick safety require a change. — These ideas of danger and precaution have been awakened, not only by personal observation, by communications with every section of the Commonwealth, and with numerous individuals, of both branches of the Les^islaturc, and from the countrv, but by evciy day's experience and occurrence, and even by his Excellency's communications totlietwo Houses, and their an- swers touching these topicks. The important and principled communication of last June, under all the solemnities of the oc- casion, matured by deep reflections, affirms that — " A respect to the civil authorit}', a correct rcgai'd to the rights of others, and a ready obedience to the laws, confer on a peo- ])le a dignity of character, which is intimately blended with the social virtues ; and habitually becomes the strength of a civil community. "• Should any one be daring enough to suggest the idea, that the peo]:)lc of Massachusetts are not, in the enlightened situation God has bestowed upon them, under the advantages they are favoured with, and the habits acquired from the man- ner of their education, competent to the support of a free gov- ernment, by their suffi-ages, frequently exercised, such person ougiit to be restrained, as a dangerous incendiary ; because it is as essentially wrong to speak, as to act treason. Every citizen has an unalienable right to express his opinion upon the administration of the government, and the conduct of his rulers : But there are certain primary principles, which con- stitute the leadine, essential, distinguishing ff:;atures of an clec- C 5 ] tive rcpublick : These arc to be treated with a solemn rever- ence, and supported by a rchgioiis respect." The more recent communication of the Sth of July, in the same spirit of solicitude, and distrust of the opposers and ca- lumniators of the officers of our national government proceeds thus — " As our security, and even our existence, as a nation, depends on our union ; and as a union cannot be preserved, without an efficient vigorous government, it is very extraordi- nary, that men, under any party designation, or political appel- lation, should, assume the character of friends to their country, while they are endeavouring to destroy the national union, and to overtlirow the principles on which the federal government is founded. " To furnish powers, with whom we are engaged in contro- versy, with arguments against us— to expose to them our weakness — to originate and dress up new claims, which those powers have never conceived of — to gratify our enemies by treating our own government with contempt, and its constitu- tion with ridicule, must be a strange kind of patriotism. If tliis is the business of men owing allegiance to their country, it is highly criminal." Still more pointed, speciFick and apjpropriate is this paragraph in the communication of June, viz. " The chief magistrate of the nation, being an elective offi- cer, the voice of the m.sjority, taken according to the forms of the constitution, must be decisive in the, choice : it is the voice of all. To treat the election with disrespect, is to treat the constitution with contempt. Nothing can tend more to dero- gate from the respect due to us as a nation, than an appearance of uneasiness, and dissatisfaction at the forms and principles of our own constitutions." The above extracted sentiments were examined by the res- pccti\ e branches of the Legislature, and most of them substan- tially reciprocated in their answers. \Vc are not to question the correctnesa of these sentiments or their practicability, nor in this jjlacc stop to decide on their applicacion to any individual, but we cannot forbear to say on every occasion, and without the fear of serious contradiction by a single honest, enlightened man of either party, that there are citizens who on account of their political practices, aie net entitled to governmental confidence. B L 10 ] Those wlio without the ability or the disposition of reason- in?: on" the incompetency of the people to support a free gov- ernment" or en ''the primary principles, ^v^iich constitute the leading, essential, distinguishing features of an elective repub- lick," who, incapable of originating measures for " destroying the national union" or '' overthrowing the principles on which tlie federal government is founded" who, incapable of " fur- nishing arguments to our enemies," of writing books, ad- dresses, numbers, or paragraphs by which to expose our weak- ness, enforce '^ new claims" and " to gratify our enemies" by treating our own government with contempt and its constitu- tion with ridicule, of collecting and systematising the materials •for opposing ajid discrediting "the voiceof the majority in the election of our chief magistrate" and the other elective officers. That tliose, who, capable of none of these " strange acts of patriotism" yet, as the instruments of others, have with an in- dustry and a seal, more fcr-sent than their devotion, received^ retailed, and dissem.inated, in every direction, these poisonous seeds of " destruction to our government and constitution" form a description of characters which aiiinot be confided in, and ought never to be trusted with the exercise of those few important mfluential ofiic^cs, which are held at the will of the Executive, especiall)^ when most of the other important offices in the goA ernmcnt are in the hands of their political friends. If the foregoing diiTu5,e reflections and statements are but a compilation of tlie sentiments of the most experienced, intelli- gent, and active friends to our g'overnment in this and in the United States ; if they are correct in theoi }■, and would be use- ful in practice, and if they are not, there must have been a .p;reat delusion in the expression of the publick feeling and opin- ion, can t'lcre exist in nature, in justice, in principle or in jiatriotism a reason o<:ainst ch^npins: to a verv limited degree, by the constitutionally contemplated forms, official arrange- ments wliich are unpropitious to the execution of the existing systems of our state and national go\^ernments ? Let the oppo- ■sition itself answer ; fairly answer this question. Sheriffs, Coimty Attorneys, and Registers of Probate, are tjie only considerable description of olficeis placed bA^the eon- slitution at the Mill of tlie Executive. These for wise pur- poses are changeable at ]:)leasure, while otiiers for a term of years or during .good beha^•iour, are rcmoveable, for crime, misdemeanor, v^eakncbs, by impeachment or on address of both ilou'-es of the Legislature ; the former, because in the opinion [ 11 J ©fthe Executive thepublick good and a Avant of conndcncc re quire the change ; the latter because eririic, mi^sdemcanoi' or inabihty has rendered the in unlit for the diseliarge of their of- ficial duties. The constitution has thus kept discinei the na- ture and the tenure of those gfiices, and the ciiaractcr of tliosc who fill them, as well as the principles and provisions hywhieli they iu-e to be changed. Pi-actice can never usefully conlonacl a difference so distinctly and solemnly marked by the supreme and fundamental lav/ of the State. Judicial and military officers, requiring for the discharge of their duties, appropriate information, technical science, and, skill acquired by expense and experience, require andhava by the con- stitution a tenure or an estate in their office during a Verm of years or of good behaviom", or at least useful belu!\iour intfie judg- ment of both Houses of the Legislature. These officers tlius independent of the arbitrary will or the wish of eacli depart- ment of government; thus secured and depciident on their capacity and rectitude for their continuance in office, a renio^'- al would be an implication of both. The constitution has thei'efore imposed both the necessary cautions, and- the duties to be exercised in the attainment of such an object ; it has provided both the modes and the publick prosecutors or agents tor the questioning of these qualifications. The militaiy offi- cer is to be removed by fair trial in Court Martial or by " the. address of both Houses, to the Governour." The judicial officers, and others, by impeachment or address, for nonper- formance, for misconduct and maladministration in their office : die processes here pointed out, addresses or impeachments, the objects, officers holding theii" offices by a tenure vrhich gi^'cs permanency to them, but in case of fault or misfortune.. The publick prosecutors or authorized agents to institute or sup- port an inquiry into these disqualiji cations, are the Grand In- quest of the Commonwealth, some legally designated officer or the Judge Advocate. These modes of investigation have at- tached to them the power iind the pecuniary means necessary for their execution. Those who are to act in such procedures, posses the pov.er of summoning or convening parties and witnesses, collecting evidence, appointing prosecutors and of defraying the expense. l^';u' otherwise is it with respect to ministerial officers hold- ing lucrati\e offices at the will of the J'Lxecutix e and rcnio\u- ble at its pleasure. No mode provided b}' tlie constitution, or, law lor an itiquiry into the specified items of tlick conduf.t L 12 ] no designated characters or agents to prosecute such officers before the Governour and Council, or power to appoint any ; no authority to convene the party, collect evidence, summon witnesses, compel their attendance, force their testimony or disburse their expense. If the constitution had contemplated a trial of such an officer holding at the pleasure of the Execiitive, for the purpose of his removal, would it not, or the law have furnished the necessary provisions. Or are the Governour and Council to receive •such evidence as may be handed to them from abroad, or by the accused, or as Judges decide on the truth and properties of alledged facts or acts, on such evidence ; or shall they lose in the character of prosecutor that of the Judge, until they themselves shall have prepared for the trial from abroad, and then decide on the evidence which they may have chosen to collect. If specifick charges, are to be decided, they must be either of crime, misconduct or incapacity, and they must be proved or disapproved by testimony or other evidence. In such a procedure, it would be consonant to the most obvious princi- ples €f common justice and the spirit of the declaration of rights to permit the accused " to produce all proofs that may be favourable to him, to meet the witnesses against him face to face, and to be fully heard in his defence, by himself -or his council." From the extreme danger of determining on specifick charges implicating individuals without a trial, anel from the extreme difficulty and uselessness of proceeding in one by the Governour and Council, against. officers holding at their pleasure, it is evident in such cases, none was constitu- tionally intended ; but that, that pleasure was to be indulged, to be directed by official discretion for the publick good and the support of the government, and not for continuing the emoluments of office to those who would contribute to neither. Most obviously did the constitution contemplate the im- portance, the utility and advantage of union, harmony and united efforts to give energy, reputation and strength to the administration by all the branches of the Executive. Sheriffs form a very important part of the executive part of go\'erii- ment. In this department union, vigour, secrecy and despatch are sometimes necessary ; confidence ahvays. In cases of in- surrection, treason ar^d other dark and associated crimes, or plots against the state or national government, such as has ijcen i^-pc^iWy acted in our day, the ]>ov/ers and the duties of the [ 13 ] Sheriffs become very important indeed. The civil energies of the Executive are felt through them. They execute the Gov- ernour's precepts or measures, are entrusted with his secrets, and of course ought to be united to him in principle, in object and in reputation. Hence it is, that he has the po'>vcr of re- moving such an officer at pleasure, and suppl3'-ing his place as merit or demerit shall furnish claims to confidence and expec- tation ; hence the duty of investigating the political prineijDles, attachments, the sympathies and antipathies, as weW as the talents and other qualifications of those to whom he in- trusts the powers of government, and calls about him to aid m its administration. From placing inferiour executive oaicea at the will of the supreme, it is evident the constitution meant they should have but one political will, meant not to place its con- fidence in an Executive divided against itself, in the subordinate officers, differing in measures, and opposed in principle to their chief. Where the constitution thus distrusts, can it be safe to confide ? These are other reasons why this pov/er of remo^ ing offi- cers, at pleasure, was placed in the Supreme Executive, and for the direction of its exercise. In all popuku* elective go- vernments, there will be parties. The struggles, aspc-.ities and exertions if they are nearly balanced ones, are unfavourable to society. The dangers and the evib of such a state of things are numerous. These are preserved, increased or diminished, more by tlie influence of the officers of government than by any other de- scription of men in society. ' As from necessity the viajorify must govern^ it is for the publick good, that it should be a strong majority. The executing these discretionary provi- sions of the Constitution, in favour of the friends to th.is ma- jority is calculated to strengthen and to increase it, and what is very desireable, it will also, in some degree neutraiize the action of counter influence, exercised by the immoveable in- cumbents of the Judicial and other offices, and produce a state of things, better accommodated and proportioned to the state of parties, and the division of sentiments, among the people, and of coiu-se of more imiversal influence and satislliction in the government and in its administrations. The attainment of such objects it is conceived, are not unwortliy the pursuiLs of the firm and enlightened Statesman. The objections to this system are recollected, that the peo- ple do not Vv'ish it, that it will produce injurious vibrations yi the country ; an unv^ilUngncss X.i accept offices, iuQrci.sed as^ [ 14 ] pel ity against piiblick men and measures ; that it will keep alive a party spirit ; that it will be injustice, oppression, intol- erance, illiberal, and a proof of what was predicted of the ex- istiiij:^ majority by their opponents ; a measure impolitick, without a parallel, and severe beyond a precedent,^c. &c. The answer to these objections will be in substance a repeti- tion of what has been already said. To adhere to the distinc- tions of the constitution is to give stability and certainty to the government under it. It is a solecism to suppose tliat act of changing in every instance in the people's power, did not im- ply a volition for the change ; and while this is their theory, that thev will not murmur in seeincr those with whom thev have conflicted for the support of the government and for which they have been abused, holding offices at the pleasure of the Executive in contempt of their wishes and in derision of their exertions ; this would be to destroy by the ramifica- tions of power its radical parts, or to tear by its members, from the body politick its very vitals. Admitting then that re- movals will produce excitement, bitterness and noise, so will the refusal. But who, and for Avhat, can any one complain ? It is immaterial to government, as it respects the mere acts of office, fi'om what motives or by what citizens they are per- formed. As it respects the mere discharge of official duties, if as good a man should be appointed as the one removed, the publick cannot be losers, if a better one, they will be gainers. Will the removed and his friends complain, and for what? Have they rights to private advantages against the claims of the publick good ? Who then is to complain ? Not the peo- ple ; they are satisfied ; not the government, it is beneficial ; not the friends to the administration, they are gratified. Is the removed injured ? He received the office for no consideration, he was prepared for its duties, without study and without ex- pense, discharged them without sacrifices ; was appointed to them without official claims to preference, and has none for their continuance ; has been made rich by their emoluments, or at least been benefited in his standing and improved in his circumstances. Others, his equals^ perhaps his superiours in merits and capacities, have not been noticed. Equality of privileges would plead for these, a principle of rotation exclude him; from whence then are deduced the causes of complaint, and by whom is it made ? Is it from the remoN^d as an officer ? He accepted on the express condition of being removed at pleasure. Is it by his friends, as citizens, C 15 ] or by his connections as friends to the government ? Certainly not. His friends are partisans, his political connexions the political denouncers and calumniators of the decisions and measures of his government — and as such, they only will •complain. Complaints there Avill he if there are removals, or if there arc none. Either the clamours of the enemy, or the cries of friends; the one groundless, the other unfounded. As citizens, civil officers are bound to support the administration of the governments ; as officers they arc doubly bound to aid its reputation and to aid its measures : If in principle they are opposed to both, there can be no security, they will assist either. The publick can ha^e no coniidence in them, indi\'i- duals none. The one party will see in such cliaracters its ene- mies, the other its friends, and the government its defamers and opposers. Can it then be impolitick, intolerant, oppres- sive or unjust, to transfer such offices to other hands? To those Avho will perform the civil and patriotick duties as well as the mere abstract duties of their offices ; who can tolerate the administration of their government, the decision of the majority in the elections of its publick ser^ ants, who are just enough to respect the first principles of the social compact, and to perform on their part, that solemn contract that the}^ themselves wore party to. Are these principles new, and would a compliance with them be arbitrary and injurious acts of power, without precedents and without their parallels? In Vermont, New York, Pennsylvania, and the United States, the experiment has been fairly and successfully tried. The constitutions of their governments are almost copies of our own, excepting Pennsylvania and theirs greatly resembles ours- Under these state governments the experiment has been tried both ways, of continuing these ministerials in office, after the government was changed and of removing them. The fruits of the experiments one way have been further conflict, diseon tents, intrigues, retrograde movements, want of union, wantoi vigour, and fluctuating dangers some times from one source and sometimes from another to the gOAcrnment itself; the re- sults the other way have been steadiness, strength, confi- dence and finally general acquiescence. In the one way as \\'hen the hands of the prophet were lifted up, the people pre- vailed against their opposers ; in the other as A\hen they were down they failed. The experience of the United States, which Ins adopted and sanctioned tlic principles contend', d, for is still more de^ C IG ] '■Kied. Oa the cljangc of tlie poetical chaiacter of the national go- vernment, it was the opinion of the greatest and best men amongus, that its offices, their emoluments and their influences ought not to rersiain exciusively in hands unfriendly to the change which had l;eea made ; that justice, policy and safety, required that they shoald be equalized and that the friends of the admirwstration should hold their proportion of them. This sentiment of policy and necessity and principle of equaliza- tion removed from their offices most of the Marshals, AttornieSj Agents, and many of the Revenue officers of the Union. Nothing short of this system would have secured confidence and been an exe- cution of the system on which the great elections had been made. Tliis measure has been ratified by the publick tribunal as proved by second elections. The results have been favourable indeed. Union, vigour, confidence and satisfaction have increased !)eyond a parallel, and the nation has been prosperous beyond a precedent. With such experience and such illustrious examples before our eyes, we can- not doubt of tlifc correctness of the principle nor of the utility of the practice. But have not wc ourselves already decided on both principle and practice, in the appointment of Attornies and Justices of the Court of Sessions for Our Counties ? If it is improper and would be injuri- ous to appoint a person of political sentiments unfriendly to the principles on which our state and national governments are admin- istered, it is because it is deemed to be improper and injurious that such characters should hold these offices. Tiie mere appointment being but a form or ceremony, it neither adects this proprietv, changes the properties of the character or the personal qualifications ni the person. , if it vvould be improper that such characters should he appointed to the Sheriii's office, because it would be niore proper and useful to the government that it should be held by different characters, then it would be equally proper and useful that those vvhicli have been appointed in whom the government and the peo- ple cannot contide should be removed. The Council can conceive no principle by which to distinguish between the case of a Sheriff and an Attorney by which to decide tiiat a person opposed to the .administration of our n;itional and state governments may not hold the office of an Attorney and yet may hold tnat of a Sheriif. Nor can we see any reason in policy or in justice for adopting the principle that ministerial officers holding offices at the pleas\u-e of, the Executive are not to be removed on account of their political principles and practices, or that it is to be dcine only on the allega- tion and proof of some specifick charges against them. Such a sys- tem woulil be a contradiction to what the friends to the measures of the national administration have said and written on the subject for years past. It would be arraigning the wisdom and justice of that government ; a censure and a reproach of its most deliberate acts. But in one instance did it assign r^aasonsfor the removal of an officer [ 17 ] at will, although it has always acted with information, coolness, and on the best of reasons, the advancentient of the national welfare. In no instances on general principles, have they deemed it neces- sary or proper to institute inquiries into specifick charges and to predicate removals on the proof of their correctness. To have done this would have required the use of moans which were not possessed, iind if they were and had been applied to the officers removed in the first years of the present administration, inchiding Post Masters, would have produced destiuctive quarrels, delays, and an expense nearly equal to that of supporting the government. The removals from office, and the principles by which we con- ceive they otight to be regulated, being a subject which may otten occur and of a very interesting nature to the Commonwealth ; and one more than any other, excepting that of our elections, jwoducing excitement in discussion rather than in execution, the Council have been induced to take a general view of a subject in part iri- trusted to their discretion by the constitution of then- country. And as it would be difficult to express verbally the individual sentiments which may have been severally expressed in the examination of the subject and in which they agree, they have availed themselves of au opportunity which duty has imposed, to consider particular cases, to communicate their sentiments at large, and what they believe to be the opinions of experienced and enlightened men who have thought most on the subject. This they have been bduced to out.of respect to sentiments expressed by His Excellency on the same topick, and to opinions held and advocated by characters, who have arraigned and condemned the removals made by the general government. — We have thought it proper to prevent misconceptions and the idea of having formed hasty opinions, to state our perception of facts and of the meaning of the provisions of the constitution ; of the political state of society, its dangers and its securities; and our principles and our reasonings and deductions ffom them. This we have done with frankness, with publick views, sincerity and candour, and in confidence, it will be so considered. • On the assumed principles, from a knowledge of the political state of the county of Hancock, from communications entitled to confi- dence, and the inquiries that have been m:idc, we are satisfied that the publick good avouUI be promoted by an appointment of some other person as sheriff of th.at county. We have carefully examined the evidence communicated witli hi^j Excellency's report respecting the sherillof the county of Kennebcck. The other communications which have been very numerous and con- tradictory have also been deliberately consideired and compared. From evidence of this kind and collected in this way, it would be difficult, " perhaps dangerous to say, that a specifick fact did, or did not ex- ist. Although in the opinion of the Council, the sherilf miscrvn- strued the law ^nd might mistake the. facts, respecting the late dis- turbances in his county, they arc not prepared to say that he acted iVom bad or unwarrantable motiTes, or that he is destitute of the ca- c [ 18 ] pacity usually possessed by persons holding similar offices, and from the coninaunicatioDs \\liich have been made, and the infi rmni;on they have as vet obtained, under existing circuinstantes, thev ;'n^ un- able to decide on the expediency or inexpedienc\' of the removal. All which with deference is very respectfully submitted, LKVI LINCOLN, SAMUKL FOWLFR, WILIJAM WIDGI^RV, MARSHALL .SPRING, DAM! I. KI' HAM, BENJ vMIN J PORTER, THOMAS HAZARD, Jun. The above and foregoing being read and considered was accept- ed as by signatures affixed and ordered to be filed. Commonwealth of Massachusetts. .In Senate Nov. 15, 1808. ORDERED, That the Communication from His Excellen- cy the Governour to the Honourable Council of the 15th day of February last^ and the Report of the Committee of Council thereon be printed in pamphlets, and that one thousand copies of the same be struck off for the use of the members of the General Court Sent down for concurrence. H. G. OTIS, President, In the House of Representatives, Nov. 16, 1808. Read and concurred. TIMOTHY BIGELOW, Speaker. W92 W9S : «5.^>. V <55<^ "^ rjv . o "» • - ' ^..^^ /Jlfe'v '^^..^^ :Mm^ \.<=>^ 0^ « " • # ^O *<^^ . t • • - ^^ n"^ . o - . ♦ P « o ' .^ <*'"' . *•-«>' ^^ V.'b'^ ^j^^- /V •^-•% V ••* 'b. .-J^^ .. ^^•n^. i