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

Smith, Until The 9Th Day Of May, And That He Was

Sworn To The Execution Of The Office On The 11Th; That, On The 3D Of

May, The Said Richard R. Smith Put Up The Ballots Of The Said County

In The Store Of The Said William Cooper, Esq., In Whose Hands The

Commission Of Benjamin Gilbert Then Was; That The Box Said To Contain

The Votes Of The Said County Was Delivered Into The Secretary'S Office

By Leonard Goes Previous To The Last Tuesday In May, Under A

Deputation From The Said Richard R. Smith;

Chapter XVI Pg 330

Together With The Said Box,

And At The Same Time, The Said Leonard Goes Delivered A Separate

Packet Or Enclosure, Which, By An Endorsement Thereon, Purported To

Contain 'The Ballots Received From The Town Of Cherry Valley, In The

County Of Otsego.'

 

 

"The Manner Of The Delivery Of The Said Box And Enclosure, And The

Authority Of The Said Leonard Goes, Were Reported To The Committee By

The Secretary Of The State.

 

 

"These Votes Were Not Canvassed For The Following Reasons:--

 

 

 

"1. The Committee Found Themselves Bound, By Their Oath And By The

Directions Of The Law Before Mentioned, To Canvass Only The Votes

Contained In The Boxes Which May Have Been Delivered Into The

Secretary'S Office By The _Sheriffs_ Of The Several Counties. It

Appeared To Them Absurd To Suppose This Duty Should Be So Expressly

Enjoined, And That They Should Nevertheless Be Prohibited From

Inquiring Whether The Boxes Were Or Were Not Delivered By Such

Officers; Or That They Should Be Restrained From Ascertaining A Fact,

Without The Knowledge Of Which It Was Impossible That They Could

Discharge The Duty With Certainty To The Public Or With Confidence To

Themselves. They Could Not Persuade Themselves That They Were, Under

_That_ Law And _That_ Oath, Compelled To Canvass And Estimate Votes,

However Fraudulently Obtained, Which Should Be Delivered Into The

Secretary'S Office _By Any Person Styling_ Himself Sheriff, Though It

Should At The Same Time Be Evident To Them That He Was _Not The

Sheriff_. If Such Was To Be Their Conduct, A Provision Intended As A

Security Against Impositions Would Be An Engine To Promote Them. They

Conceived, Therefore, That The Objection To An Inquiry So Important,

And In A Case Where The Question Was Raised And The Inquiry Imposed

Upon Them By The Suggestions Of The Secretary, Must Have Arisen From

Gross Misrepresentation Or Willful Error.

 

 

"Upon Investigating The Right Of The Said Richard R. Smith To Exercise

That Office, The Facts Appeared As Herein-Before Stated.

 

 

"2. The Constitution Requires That Sheriffs Shall Be _Annually

Appointed_; Which, To Our Apprehension, Implies That No Person Shall

Exercise The Office By Virtue Of Any Other Than An _Annual_

Appointment. And Should It Even Be Admitted That The Council May, At

_Their Pleasure_, Remove A Sheriff Within The Year, Yet We Do Not See

On What Ground It Can Be Denied That The Duration Of The Office Is

Limited To One Year, Unless A New Appointment Should Take Place. It

Would Otherwise Be True That The Council Could Indirectly, Or By A

Criminal Omission, Accomplish What Is Not Within Their Direct Or Legal

Authority. It Will Be Readily Admitted That An Appointment And

Commission For Three Years Would Be Void; And Surely The Pretence Of

One Thus Claiming Should Be Preferred To A Usurpation Without Even

Such Appearance Of Right, And Against The Known Right Of Another.

Chapter XVI Pg 331

To

Assert, Therefore, That '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 That, By The Law Of The

Land, He Must Continue Therein Until Another Is Appointed And Has

Taken Upon Himself The Office,' Is An Assertion Accompanied With No

Proof Or Reason, And Is Repugnant To The Letter And Spirit Of The

Constitution, Which Is Eminently _The Law Of The Land_. The Practice

Which Has Prevailed Since The Revolution, As Far As Hath Come To Our

Knowledge, Does Not Warrant The Position; Neither Could Mere Practice,

If Such Had Prevailed, Justify The Adoption Of A Principle Contrary To

The Obvious Meaning Of The Constitution. Upon The Present Occasion We

Have Not Canvassed The Votes Of Any County Which Were Not Returned By

A Sheriff Holding His Office Under An Appointment Unexpired. The

Sheriffs Of Kings, Orange, And Washington Had All Been Reappointed

Within The Present Year, Which Satisfied The Words Of The

Constitution, And Was The _Known_ And Avowed Reason Which Influenced

The Committee To Estimate The Ballots Of Those Counties. The Doctrine

Concerning The Constitutional Pleasure Of The Council In The

Appointment Of The Office Of Sheriffs _Had Not Then Been Invented_.

 

 

"3. But Even Admitting The Visionary Idea That The Office Of Sheriff

(_Whose Duration Is Limited By The Constitution_) Can Nevertheless Be

Holden _During The Pleasure_ Of The Council Of Appointment, Yet That

Appears To Have Been Determined By The Letter Of The Appointment And

Commission, By The Appointment Of Benjamin Gilbert, By The Declaration

Of Richard R. Smith, And By His Acceptance And Exercise Of Another

Office, Which Is, By The Constitution, Declared To Be Incompatible

With The Office Of Sheriff.

 

 

"It Was Evident, Therefore, That Richard R. Smith Had No Authority By

Appointment, By Commission, By The Constitution, Or By Any Law, To

Hold Or Exercise The Office Of Sheriff On The Third Of May.

 

 

"4. As Richard R. Smith Was Not Legally Or Constitutionally Sheriff On

The Third Of May, Neither, Under The Circumstances Of The Case, Can He

Be Said To Have Been Sheriff In Fact, So As To Render His Acts Valid

In Contemplation Of Law: The Assumption Of Power By Mr. Smith Appears

To Have Been Warranted By No Pretence Or Colour Of Right. The Time

Limited For The Duration Of His Office Had Expired By The Express

Tenure Of His Commission And Appointment, And He Had Formally Declared

His Determination Not To Accept A Reappointment. He Had, Two Days

Previous To His Receiving The Ballots, Openly Exercised An Office

Incompatible With That Of Sheriff; Then Declared That He Had Resigned

The Office Of Sheriff, And That Benjamin Gilbert Was Appointed In His

Place; And By An Affidavit Which Was Produced To The Committee, It

Appeared That, Upon The Day Upon Which He Had Put Up The Ballots In

The House Of The Said William Cooper, He, The Said Richard R. Smith,

Declared That He Had Resigned The Office Of Sheriff. The Business

Might With Equal Care And Certainty Have Been Executed By Benjamin

Gilbert. The Single Act Of Receiving Ballots Could Of Itself Continue

_No Man_ A Sheriff--Least Of All _A Man Disavowing That Office, And

Then In The Exercise Of Another_.

Chapter XVI Pg 332

It Was Foreign To The Duty Of The

Committee To Provide Against Evils Which May Possibly Arise From

Casual Vacancies In The Office Of Sheriff By Death And Otherwise.

Vacancies Will Sometimes Unavoidably Happen, Without Further

Legislative Provision.

 

 

"There Is Not, Therefore, In Our Opinion, Any Application To The

Subject, Or Force In The Objection, 'That If Richard R. Smith Was Not

Sheriff, The County Was Without A Sheriff;' Neither Is The Position

True In Fact, For It Appears That The County Was Not Then Without A

Sheriff. At The Time The Ballots Were Received, It Was Well Known That

Benjamin Gilbert Was Appointed Sheriff, And That His Commission Was In

The Hands Of William Cooper, In Whose Store Richard R. Smith Put Up

The Ballots. It Is Also To Be Fairly Inferred That, Had Proper

Measures Been Taken To Give Notice To Mr. Gilbert, He Would Forthwith

Have Qualified And Undertaken The Execution Of The Office. It Cannot,

Therefore, Consistent With Truth Or Candour, Be Asserted That There

Was The Remotest Probability That 'Mischiefs' Could In Any Parallel

Case Ensue From The Principles Adopted By The Committee.

 

 

"It Did Not Seem Possible, Therefore, By Any Principle Of Law, By Any

Latitude Of Construction, To Canvass And Estimate The Ballots

Contained In The Box Thus Circumstanced.

 

 

"But, Had The Question Been Doubtful, It Was Attended By Other

Circumstances, Which Would Have Determined The Committee Against

Canvassing Those Ballots.

 

 

"5. Because The Notice Of The Appointment Of Benjamin Gilbert Was

Received By Richard R. Smith On Or Before The First Of May, And His

Commission Was Received By William Cooper On Or Before The Third Of

May. Mr. Gilbert Might Therefore Have Been Notified, Qualified, And

Executed The Duty. He Did Actually Qualify On The Eleventh, Which Gave

Ample Time To Have Forwarded The Ballots Before The Last Tuesday In

May. These Facts, With Other Suggestions Of Unfair Practices, Rendered

The Conduct Of The Otsego Election Justly Liable To Suspicion; And The

Committee Were Constrained To Conclude That The Usurpation Of

Authority By Richard R. Smith Was Wanton And Unnecessary, And

Proceeded From No Motive Connected With The Preservation Of The Rights

Of The People Or The Freedom And _Purity Of Elections_.

 

 

"6. Because, Having In Several Instances, By _Unanimous Vote_,

Rejected Ballots Of Whole Towns, Free From Any Suspicion Of

Unfairness, By Reason Of A Defect In _Form Only_ Of The Return, The

Committee Conceived Themselves The More Strongly Bound To Reject

Ballots Where The Defect Was Substantial, And The Conduct At Least

Questionable;

Chapter XVI Pg 333

Especially As The Law Regards The Custody Of Enclosures

Containing The Ballots As A Trust Of High Importance, And Contemplates

But Three Persons In Whose Hands They Are To Be Confided Until They

Come To The Possession Of The Canvassers, To Wit, The Inspector, The

Sheriff, And The Secretary; All Officers Of Great Responsibility And

Confidence.

 

 

"7. Because The Return, Upon The Face Of It, Appeared To Be Illegal.

The Law Requires The Sheriff, 'Upon Receiving The Said Enclosure,

Directed To Be Delivered To Him As Aforesaid, Without Opening Or

Inspecting The Same, Or