Memoirs Of Aaron Burr, Volume 1, Matthew L. Davis [book club suggestions .txt] 📗

On The 6Th Of November, 1792, The Legislature Met. On The 13Th,

Petitions, Memorials, &C. Were Presented To The House Of Assembly,

Demanding An Inquiry Into The Conduct Of The Board Appointed To

Canvass The Votes Given For Governor, &C. At The Preceding Election,

Held In The Month Of April. On The 21St The House, In Committee Of The

Whole, Took Up The Subject. Witnesses Were Examined At The Bar;

Various Resolutions And Modifications Were Offered And Rejected. The

Debate Was Continued At Intervals From The 21St Of November, 1792,

Until The 18Th Of July, 1793. The Minority Of The Canvassers Entered A

Protest Against The Proceedings Of The Majority, Which It Is Due To

Them To Insert Here.

 

 

 

"_The Protest Of Messrs. Jones, Roosevelt, And Gansevoort_.

 

 

"We, The Subscribers, Members Of The Joint Committee Appointed To

Canvass And Estimate The Votes Taken At The Last Election In This

State For Governor, Lieutenant-Governor, And Senators, Do Dissent

From, And Protest Against, The Determination Of The Major Part Of Said

Committee Respecting The Votes Taken At The Said Election In The

County Of Otsego.

 

 

"I. Because These Votes Having Been Given By The Freeholders Of

Otsego, And The Packages Containing The Same Having Been Received And

Transmitted In Season To The Secretary'S Office By The Person Acting

As Sheriff Of The County, The Committee Have No Right To Reject Them

Under The Pretence Of Judging Of The Legality, Validity, Operation, Or

Extent Of The Sheriff'S Authority Or Commission; These Commissions

Being Foreign To The Duty Of Their Appointment, And Capable Of A

Decision Only In The Ordinary Courts Of Law.

 

 

"Ii. Because, If The Committee Were By Law Authorized To Examine And

Determine The Legality And Extent Of The Sheriff'S Authority And

Commission, We Are Of Opinion That Richard R. Smith, At The Time He

Received And Transmitted The Ballots, Was The Lawful Sheriff Of

Otsego. By The Constitution, The Sheriff, Whatever May Be The Form Of

His Commission, Must Hold His Office During The Pleasure Of The

Council Of Appointment; And, By The Law Of The Land, He Must Continue

Therein Until Another Is Appointed And Takes Upon Himself The Office.

Richard R. Smith, Having Been Appointed On The 27Th Of February, 1791,

And Benjamin Gilbert Having Been Appointed On The 30Th Of March, 1792,

But Not Having Qualified Or Taken Upon Himself The Office Until

Richard R. Smith Had Received And Forwarded The Same, Must Be Deemed

The Lawful Sheriff Of The County. The Uniform Practice Which Has

Prevailed Since The Establishment Of The Constitution, Precludes All

Doubt Respecting Its True Construction On This Point. For Although The

Commissions Of The Sheriffs Are For One Year, They Have Nevertheless

Continued To Exercise The Office Until Others Were Appointed And

Entered Upon The Execution Thereof, Which Has Often Been Long After

The Expiration Of The Year, And Sometimes After The Same Person Has

Remained In Office More Than Four Years Successively. And Such

Sheriffs, Sometimes After The Expiration Of Their Year, At Others

After Having Held The Office For Four Successive Years, Have Received

And Transmitted Ballots For Governor, Lieutenant-Governor, And

Senators, Which Ballots Have On Former Elections Been Received And

Canvassed;

Chapter XVI Pg 327

And Even Upon The Present Canvass, The Committee Have

Canvassed The Ballots Taken In The Counties Of Kings, Orange, And

Washington, Notwithstanding The Year Had Expired For Which The

Sheriffs Of These Counties Were Commissioned, And No New Commissions

Had Been Issued. Hence The Sheriffs Of Those Counties, In Receiving

And Transmitting The Ballots, Must Have Acted Under Their Former

Commissions, Since A Mere Appointment Without A Commission, And A

Compliance With The Requisites Prescribed By Law, Could Not, In Our

Opinion, Give Any Authority As Sheriff To The Person So Appointed.

 

 

"Iii. Because, If Richard R. Smith, At The Time He Received And

Forwarded The Ballots, Was Not Sheriff, The County Was Without A

Sheriff, A Position Too Mischievous To Be Established By A Doubtful

Construction Of Law.

 

 

"Iv. Because, If Richard R. Smith Was Not Of Right Sheriff Of The

County At The Time He Received And Forwarded The Ballots, He Was Then

Sheriff In Fact Of That County; And All The Acts Of Such An Officer

Which Tend To The Public Utility, Or To Preserve And Render Effectual

The Rights Of Third Persons, Are Valid In Law.

 

 

"V. Because, In All Doubtful Cases, The Committee Ought, In Our

Opinion, To Decide In Favour Of The Votes Given By The Citizens, Lest

By Too Nice And Critical An Exposition Of The Law The Rights Of

Suffrage Be Rendered Nugatory.

 

 

"We Also Dissent From, And Protest Against, The Determination Of The

Major Part Of The Said Committee Respecting The Votes Taken At The

Said Election In The County Of Clinton;

 

 

"Because It Appears That The Sheriff Of The Said County Deputed A

Person By Parole To Deliver The Box Containing The Ballots Of The Said

County Into The Secretary'S Office. Such Deputation We Deem To Be

Sufficient; And As There Is Satisfactory Evidence That The Box Was

Delivered In The Same State In Which It Was Received From The Sheriff,

The Votes, In Our Opinion, Ought To Be Canvassed.

 

 

"We Also Dissent From, And Protest Against, The Determination Of The

Major Part Of The Said Committee, By Which They Declare That George

Clinton Was, By The Greatest Number Of Votes Taken At The Last

Election For Governor, Lieutenant-Governor, And Senators, Chosen

Governor Of This State; And That Pierre Van Courtlandt Was, By The

Greatest Number Of Votes At The Said Election, Chosen

Lieutenant-Governor; And That John Livingston Was, By The Greatest

Number Of Votes At The Said Election, In The Eastern District Of This

State, Chosen A Senator In The Said Eastern District.

Chapter XVI Pg 328

"Because It Cannot Be Ascertained Whether George Clinton Was Chosen

Governor, Or Pierre Van Courtlandt Lieutenant-Governor Of This State,

By The Greatest Number Of Votes At The Last Election, Without

Examining The Ballots Contained In The Boxes Delivered Into The

Secretary'S Office By The Sheriffs Of The Counties Of Otsego And

Clinton--There Being A Sufficient Number Of Freeholders In These

Counties, With The Votes Given In The Other Parts Of The State For

John Jay As Governor And Stephen Van Rensselaer As

Lieutenant-Governor, To Give Them A Majority Of Votes For Those

Offices. Nor Can It Be Ascertained Whether John Livingston Was Chosen

A Senator In The Eastern District By The Greatest Number Of Votes In

That District, Without Examining The Votes Taken In The County Of

Clinton--There Being A Sufficient Number Of Freeholders In That

County, With The Votes Given In Other Parts Of The District For Thomas

Jenkins As A Senator, To Give Him A Greater Number Of Votes For A

Senator Than The Number Given For The Said John Livingston.

 

 

"Samuel Jones,

 

 

"Isaac Roosevelt,

 

 

"Leonard Gansevoort."

 

 

Joshua Sands, Another Member Of The Board Of Canvassers, Entered

Separately A Protest, But Substantially The Same As The Preceding.

 

 

The Majority Of The Canvassers Presented A Document To The

Legislature, In Which They Assigned Their Reasons For The Course They

Had Pursued. That Document Was Drawn By Colonel Burr. The Original

Draught, With His Emendations, Has Been Preserved Among His Papers. On

The Motion Of A Member, It Was Read In The House The 28Th Day Of

December, 1792, And Is Entered At Large On Their Journals As

Follows:--

 

 

"_The Reasons Assigned By The Majority Of The Canvassers In

Vindication Of Their Conduct_.

 

 

"The Joint Committee Appointed To Canvass And Estimate The Votes For

Governor, Lieutenant-Governor, And Senators At The Last Election,

Having Been Constrained, By A Sense Of Their Duty In The Discharge Of

The Trust Reposed In Them, To Reject The Ballots Returned From The

Counties Of Clinton, Otsego, And Tioga; And Perceiving That Attempts

Are Made To Misrepresent As Well The Principles Of Their Determination

As The Facts On Which They Are Founded, Feel It Incumbent On Them To

State The Grounds Of Their Decision.

Chapter XVI Pg 329

"Clinton And Tioga.--A Box, Said To Contain The Ballots Of The County

Of Clinton, Was Deposited In The Secretary'S Office By A Theodore

Platt, Without Any Deputation Or Other Authority, Accompanied Only By

His Own Affidavit, That He Had Received The Said Box From The Sheriff

Of Clinton.

 

 

Another Box, Said To Contain The Ballots Of The County Of Tioga, Was

Delivered By The Sheriff Of The County Of Tioga To His Deputy,

Benjamin Hovey, Who, Being Detained By Illness On The Road, Delivered

The Said Box To One James H. Thompson, By Whom It Was Deposited In The

Secretary'S Office.

 

 

 

"The Joint Committee, Pursuant To The Law, Are Sworn To Canvass The

Votes 'Contained In The Boxes Delivered Into The Office Of The

Secretary Of The State By The Sheriffs Of The Several Counties.' Hence

Arose A Question, Whether This Was Not A _Personal Trust_, Which Could

Not Be Legally Performed By Deputy? Upon This Point We Entertained

Different Opinions; But Agreed That, If The Discretion Of The

Committee Was To Be In Any Degree Controlled By The Directions Of The

Law, There Appeared No Room To Doubt Of The Illegality Of Canvassing

Boxes Which Were Not Delivered By A Sheriff Or The Deputy Of A

Sheriff. The Ballots Contained In These Boxes Were Therefore Rejected;

Not, However, Without Sensible Regret, As No Suspicion Was Entertained

Of The Fairness Of Those Elections.

 

 

"Otsego.---It Appears That Richard R. Smith, On The 17Th Of February,

1791, Was Appointed Sheriff Of The County Of Otsego, To Hold That

Office Until The 18Th Of February, 1792; That A Commission Was Issued

Agreeably To That Appointment; That On The 13Th Of January, 1792, He

Wrote To The Governor And Council That He Should Decline A

Reappointment; That On The 30Th Of March, 1792, Benjamin Gilbert Was

Appointed Sheriff Of The Said County; That The Commission To The Said

Benjamin Gilbert Was, On The 13Th Of April, 1792, Delivered To Stephen

Van Rensselaer, One Of The Council Of Appointment, To Be By Him

Forwarded; That The Said Commission Was In The Hands Of William

Cooper, Esq., First Judge Of The Said County, On Or Before The 3D Of

May; That The Said Richard R. Smith, On The First Tuesday In April,

Was Elected Supervisor Of The Town Of Otsego, Accepted That Office,

And On The 1St Day Of May Took His Seat At The Board Of Supervisors,

Assisted In The Appointment Of Loan Officers, And _Then_ Declared That

He Was No Longer Sheriff Of The County, But That Benjamin Gilbert Was

Appointed In His Place. It Also Appeared That Benjamin Gilbert Had No

Notice Of His Said Appointment, Or Of The Receiving Of The Ballots By

The Said Richard R.