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cd [See No 2.] His practice, and his
only,sustains Mr. Gil •tier** doctrine.
Even the General required an actrp
tan e before a certificate or confirms
aion under ttio great sea! was given.
Mr. Gilmer considers the pro’ la
(nation (indefensible, if it is not found
ed upon his failure to produce pronfj
of his -residence for Cliree years in the
giate and of the payment of his tax s,
he believing himself entitled to a ccr-i
tificato under the great Seal of tin
State, before he was (idled upon to
notify Ids acceptance. The IVocla
mation is n*t so founded, as an in
spoction of it might have convinces
him. The construction put upon the
act, an extract from which is publish
ed herewith [No. 3.] is this. Aftn
the expiration of 20 days from the e
fiction, the Proclamation declaring
the result must issue in five days—the
persons elected, if in tho State, rausi
accept in 20 clays—if out of the State
in 40 clays after the Proclamation is
-sues —The proofs of eligibility re
quired can be produced at any time
prior to the granting of the certili
cate. If they do not accept, anew e
le- tion is a matter of necessity ; th
words of the act are peremptory, the
governor shall order anew election to
be held , &c. The correctness of this
construction depends upon tho rela
tion of the words *notified thereof in
manner herein directed .* They are
believed to relate to the Proclama
tion declaring the-result, it being the
oidy notice required to be given.
This c onstruction lias been uniformly
given to tho act. No other notice has
b <-n ever given by tho Executive, or
expected by the persons elected.
Tho annexed letter [No. 4] of Mr. Gil-,
iner’s on his first election as a meim
bor of Congress shews that such
was the view he then took of this
part of-the art.
The opinion now advanced by him
i a novelty; it supposes rhe Legisla
ture committed the absurdity of ex
pecting a person to exhibit his proofs
that he wia entitled to a com tiisslo n
under the gr**at *al before any offi ial
cjiW was >n de upon him for them, or
••dice given that they would be ne
cessary, and the further absurdity of
making a provision to defeat the pup.
pse they wished to accomplish. If
the notice contemplated is the certifi
cate under seal and that is forbidden
to be given, until proofs are exhibit
ed by tle party, it is the party elect
ed. and not the Stute, who will regu
late the time of acceptance. When lie
chooses to exhibit his proofs, and not
before, can the governor give notice,
according to Mr. G*s new version,
and* then the 20 or 40 days are to be
gin to run.
The lettci (No. 5) of Col. Troup
and Ur. Bibb written in 1806, shews
tint the same opinion was entertain
ed by these gentlemen on this point
with that apparent in Mr. Gilmer’s
letter of 18£0.
The last allegation I think it neces
sary to notice, is that the election law
is rigidly adhered to when it vacates
Mr. G‘s. seat in congress, and disre
girded when it operates upon others.
The proof of this is that the election
law requires that the names or the
several candidates be kept on separate
papers; the number and names of the
voters shall be sealed up, together
with an accurate statement of the poll,
under the hands of the presiding ma
gistrates and transmitted by express
to the governor. This law, Mr. G.
says ‘it is believed, was not complied
with in any county in the State and
the election of the other members are
also void according to a strict inter
pretation of the law’—Better infor
mation is in the possession oT the Ex
ecutive on this point than he can pos
sibly have, who firms a grave argn
snent upon a loose •it is believed’
This information has been already
informally given to the public— At
the last election the name of tach
dul&te was not returned on a separate
piece of paper from any county; and
some of the returns were transmitted,
oot by express, but by mail—the re.
turns by rtiad Were received ami
counted, and the returns with the
names of the candidates kept separate
on the same sheets of paper were re
ceived, in conformity to tluj practice
which bus prevailed in the department
since 1799—0f the correctness of this
practice I had some doubt, but follow
ed it from a belief that the law was
substantially if not literally complied
with. In ail things else the returns
counted were in strict conformity to
the -letter of the law of 1799—And
this decision was beneficial to Mr.
Gilmer as well as to the other persons
who were highest on the poll. Be
sieving as he professes to believe, that
tins part of the law is constitutional
and lias been violated in his favor by
die Executive, he should not resist
anew election, altho’ declared on an
otliur ground applicable only to him
self when the result may be to give
•im according to bis own and to the
Executive opinion a clear right in
place of a disputable claim, to a seat
in the next Congress.
There are other things in the circu
lar that 1 should he excused for re
marking upon, hut to do so, would be
inconsistent with my purpose, which
is merely to place before the people
the materials for forming a correct
judgment of the conduct of the chief
magistrate. Altho’ I have deemed if
necessary to show what the former
practice, has been, 4t must not be con
sidered that any reliance 1 is placed up
on them to justify my own course, lu
all cases where the law of the State is
explicit and clear I make no enquiries
about tho opinions or practice of for
mer administrations. In cases of
doubt the usagos in times past are re
sorted to, for the purpose us enlight
ening my own judgmeut, and submit
ted to, if reconcilable to the existing,
law. In the case of Mr. Gilmer, i
made no enquiry, as I had no doubt:
the facts now presented from the hies
of the Department arc tho fruit of re
cent investigation. Having fully ex
pressed my private opinions of the act
of 1799 it is proper that .1 should state
that in the execution of that act I do
not consider the Executive response
blc in any degree for the constitution
ality, wisdom or convenience of any
of.its provisions—for these the Gene
ral Assembly of 1799 and their suc
cessors who have left it in force are
accountable—the Executive is respon
siblr only , for the faithful eaeccution of
the law as it is. The Executive Pro
clamation is founded upon simple facts,
admitted to have occurred and was
under the law, as construed, the ine
vitable consequence of those facts—
It was not (issued under a conviction
that arty disrepect to the laws or to
the officers ol the State was intended
—the omission was supposed to have
been the result of accident or forget
fulness which would bo satisfactorily
explained prior to the distant day
‘purposely fixed upon for the new flec
tion—Mr. G. it was believed would be
the candidate, probably without any,
certainly without formidable opposi
tion. fie lias an undoubted right to
rely upon his own construction of the
State law—to question the validity of
any or of all its provisions and to in- j
sist upon taking his seat in Congress
contrary to its provisions as under-I
stood by the Executive. The ques
tion presented is within the jurisdic
tion of the House of Representatives
and nothing which is provided by the
statute or done by the Executive im
paired, if Mr. G. is right, in the small
est degree his claim. Whoever is e
tected by the people will derive no be
nefit trmn it, il the House of Represen
tatives shall decide that the people
by their Legislature (no act of Con
gress being in existence) have not
power to prescribe, that a Represe,,-
tativo elected shall within a limited
time notify his determination to exe
cute the duties r< quired of him. or if
l icy shall decide that the certificate
ot the Governor under the great seal
ot the State is within the statute, the
notn e to be given to the person elect,
on the receipt of which he is to signify
his acceptance or refusal of the honor
conferred upon him.
JOHN FORSYTH.
Milledgevillc , January 22d is 29.
j ‘
Madrid. Angus!;! 1822.
Hi- Excellency the Governor ot G.-org a.
Sir—The law regulating ilr: election
:of Members of Congress from the late
of Georgia requires, after (lie vote-have
been counted, a proclamation to be issu
ed, calling upou the persons elected by
’the people, to signify within a limited
time, their acceptance or refusal. My
name has been placed upon the hst of the
candidates for the next Congress
| If the people of the State of Georgia
should, by choosing iue, give me another
‘ proof of their confidence, it will
sible for me, after the proclamation is is
jsued, to answer it in the time specified.
, 1 know of no better mode of complying
I substantially with the law, than that of
|addressing this letter to your Excellency,
|to be delivered after the proclamation is
! issued, to give you the assurance that I
; accept with gratitude the trust conferred
Jupon me, ami that 1 shall leave this place
(before the fourth of March next, to re
turn to the United Slates to peifortn its
! duties. If your Excellency should deem
! this not a sufficient compliance with the
! terms of the election law, l hove to re
quest that this letter may be !. id before
i the Legislature, under the hope that a
ispecial act may be passed to give me fur
ther tinie to answer the call made by the
Executive Proclamation. If my memory
does not deceive me, such an act was
passed for that distinguished statesman
land virtuous citizen, the late Abraham
! Baldwin.
! I am, with great respect, your obedient
i humble servant, Jj*e.
.(Signed) JOHN FORSYTH.
Executive Department, Geo. ?
Milledgeville, Wd Jan. 18-9. 5
I certify the above to be a true copy
from the original letter on file in this De
partment.
ARTHUR SHAAFF, Sec. E.B.
Executive Department, )
January 22, 1829. $
Sir—l have carefully examined t tie
books and files of this Department, sin 06
the passage of the Act of Uth February,
1799, entitled ‘An Act to regulate the
General Flections in this State, and to
appoint the time of the meeting of the
General Assembly,’ & find m no instance
that a commission issued to a Representa
tive from this State in the Congress of the
United States, unless a nolilieatioo of the
acceptance ot the appointment was re
ceived by the Governor within the time
prescribed in the act aforesaid, save in
the years 1820 and 1822, and in
these instances the omissions were ex
plained before tiie commissions were or
dered.
With high consideration and regard,
your obedient servtnt.
EVERErr H PIERCE, Secretary.
His Excellency .John Forstvii.
Extract from the Election Law of 1799
•-See -Prince's Digest, p. 130.
‘That the n;nes of the several candi ‘
dates be kept on separate papers, and the j
number and the names of the voters shall |
be sealed up together with an accurate!
state of the poll under the hands of the I
presiding magistrates, and transmitted by i
express to Ins excellency the governor, j
within twenty days after -closing the poll ;
at such election, who is empowered tot
draw on the treasury for the payment of j
!suoh express, not exceeding two dollars i
{ per day. That the governor or conv.nan
tder in chief, for the ‘time being shall,;
! within live days after the expiration i- ilie ‘
;said twenty days hereinbefore allowed
for making returns, count up the votes •
from the several counties, or such ofj
; them as may have made returns for each
person, and immediately thereafter issue !
| his proclamation declaring the persons
J having the highest number of voles ami
qualified as aforesaid, to be duly elected
.to represent this stab; in the hou-e of re
presentatives of the Uni led Staes, and to ;
grant a certificate thereof under the ijieat
seal of the state to each ol them: Provided
no certificate or commission shall <u
or lor any such person so elected, until 1
satisfactory proof is produced that the tax
ot such person has been regularly paid as
above mentioned, and that he has actually
hul the re-idence herein prescribed.
1 bat where any two or more persons
have an equal and the highest number of
voles, other than those duly elected in
:thc general poll; then, and in that ca-e
; (lie governor shall issue his proclamation
directing anew election. That in case
aiiy pen-on duly elected, being in this
state and notified thereof in manner herein
dt ected shali not within 20 days, and if
nut of this state within *lO days alter su< h
notification, signify his acceptance or
glialt depart ton life, the governor or
commander in chief, shall order a uev. c
iection to b held in like manner as here
inbefore puninted out. That all writs of
elections to till vacancies that may hap
pen lor members of the general ass- rn Jy
of this state, or hou.-e of representatives
of the Uniied States shall he directed to
the justices of the inferior coarts of die
respective counties, who are hereby re
quired to give public notice thereof, and
cause the lame to be held in manner and
fi rm as hereinbefore pointed out agreea
bly to such writ.’
Lf.xinOton, November 11, 1820.
His Excellency John Clark
It appearing from your proclamation,
that l have been elected a Representa
tive of the State of Georgia in the House
of Representatives of the Congress of
the United States lor the next ensuin'”
term, you are hereby notified of mv .->
ceptauce of said appointment. The ne
cesbary certificate of my qualifications
have been forwarded. Stepnen Upson,
Esq. will apply at the Executive Oflice
and receive my certili cate.
Yours cYc,
[Signed] GEORGE R. GILMER.
Louisville, November 13, 1800.
Sin:—Notified by your proclamation,
that we are elected to represent this
State in the -Congress of the United
States, we now signify oar acceptance
of the appointment.
With sentiment* of respect, xxs are
your obedient servants.
(Signed) GEORGE M. TRODp
WILLIAM W. BiRIL
Bis Excellency Jared Irwin
Gov r or of Georgia.
Executive Department,
January 22, 1823 (
I certify the above letters to be t;ue
copies from the originals on file in ibis.
Department.
ASU ULRSHAAFF, Sec. K.D f
Executive Department Ga, >
Janary 23, 1829. £
Sir—Since mv letter of the 22d was
prepared, I have found on the records
ami files of the oflice, a correspondence
between Governor Jackson and the At
torney General, and one of the Solicitors
in 1800
eral Jackson took the opinion of those
officers before he commissioned 0)1 Tal
iaferro, whose letter of acceptance of a
seat in Congress, although dated within
forty da<9 from the issuing .the of gover
nor's proclamation, was received at the
Executive Department a Tew days after
they expired.
With high consideration and regard,
yours <£'e.
L\ LRRI 1 H. PIERCE, Secretary
His Lxceliency John I oi^vth, governor
£c.
Exkcvtive Department, Ga. ‘i
Louisville , l)cc. Ukh 1800. J
Sm—At the General Election held
on t he 61.1i day of October last, Benja
uiin J'alliaiVro was elected by & large
majority one ol the
<d this State in the Congress of the
l nited States.
I'he law under which the election
w-is. in Id, de< lares—l hat no person
shall be elected a Representative in
Congress, wlm has not been an inha
bitant of this State three years next
proceeding his election, and paid his
tax W'K’d.irly during that time, nor
shall ho hold, tVc.
‘l’lie next succeeding clause, after
directing tlie mode of keeping the
names, \oles, cVr. directs the poll to
be transmitted by express to the go
vernor, within twenty clays after clos
i g fbe same, and theti that the gover
nor shall, within five, chcys after the
expiration of the said twenty days,
fount iij> the votes from the different
(imnties w hi> h have made returns, for
each person, and immediately after
Lssue l*‘ s proclamation, declaring the
pet sous having the; highest number of
‘files am! qualifird as aforesaid', to be
ni.i\ elected to r present this State in
the House of Representatives of the
United States arid to grant a certifi
cate thereof under the Great Seal of