EIGHTH CONGRESS.—FIRST SESSION. (continued 2)

The gentleman from Connecticut (Mr. Tracy) muse consider the grant of power to the Legislature as a limitation of the treaty-making power, for he says, “that the power to admit new States and to make citizens is given to Congress, and not to the treaty-making power;” therefore an engagement in a treaty to do either of these things is unconstitutional. I cannot help expressing my surprise at that gentleman’s giving that opinion, and I think myself justifiable in saying, that if it is now his opinion, it was not always so. The contrary opinion is the only justification of that gentleman’s approbation of the British treaty, and of his vote for carrying it into effect. By that treaty a great number of persons had a right to become American citizens immediately; not only without a law, but contrary to an existing law. And by that treaty many of the powers specially given to Congress were exercised by the treaty-making power. It is for gentlemen who supported that treaty, to reconcile the construction given by them to the constitution in its application to that instrument, with their exposition of it at this time.

If the third article of the treaty is an engagement to incorporate the Territory of Louisiana into the Union of the United States, and to make it a State, it cannot be considered as an unconstitutional exercise of the treaty-making power; for it will not be asserted by any rational man that the territory is incorporated as a State by the treaty itself, when it is expressly declared that “the inhabitants shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution.” Evidently referring the question of incorporation, in whatever character it was to take place, to the competent authority; and leaving to that authority to do it, at such time, and in such manner, as they may think proper. If, as some gentlemen suppose, Congress possess this power, they are free to exercise it in the manner that they may think most conducive to the public good. If it can only be done by an amendment to the constitution, it is a matter of discretion with the States whether they will do it or not; for it cannot be done “according to the principles of the Federal Constitution,” if the Congress or the States are deprived of that discretion, which is given to the first, and secured to the last, by the constitution. In the third section of the fourth article of the constitution it is said, “New States may be admitted by the Congress into this Union.” If Congress have the power, it is derived from this source; for there are no other words in the constitution that can, by any construction that can be given to them, be considered as conveying this power. If Congress have not this power, the constitutional mode would be by an amendment to the constitution. If it should be conceded then that the admission of this territory into the Union, as a State, was in the contemplation of the contracting parties, it must be understood with a reservation of the right of this Congress or of the States to do it, or not; the words “admitted as soon as possible,” must refer to the voluntary admission in one of the two modes that I have mentioned; for in no other way can a State be admitted into this Union.

The question was then taken on the passage of the bill, and carried in the affirmative—yeas 26, nays 5, as follows:

Yeas—Messrs. Adams, Anderson, Bailey, Baldwin, Bradley, Breckenridge, Brown, Butler, Cocke, Condit, Dayton, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Olcott, Plumer, Potter, Israel Smith, John Smith, Stone, Taylor, Worthington, and Wright.

Nays—Messrs. Hillhouse, Pickering, Tracy, Wells, and White.

Friday, November 4.

The following Message was received from the President of the United States:

To the Senate and House of Representatives of the United States:

By the copy now communicated of a letter from Captain Bainbridge, of the Philadelphia frigate, to our Consul at Gibraltar, you will learn that an act of hostility has been committed on a merchant vessel of the United States, by an armed ship of the Emperor of Morocco. This conduct on the part of that power is without cause and without explanation. It is fortunate that Captain Bainbridge fell in with and took the capturing vessel and her prize; and I have the satisfaction to inform you that about the date of this transaction, such a force would be arriving in the neighborhood of Gibraltar, both from the east and from the west, as leaves less to be feared for our commerce, from the suddenness of the aggression.

On the 4th of September, the Constitution frigate, Captain Preble, with Mr. Lear on board, was within two days’ sail of Gibraltar, where the Philadelphia would then be arrived with her prize; and such explanations would probably be instituted as the state of things required, and as might perhaps arrest the progress of hostilities.

In the mean while, it is for Congress to consider the provisional authorities which may be necessary to restrain the depredations of this power, should they be continued.

TH. JEFFERSON.

Nov. 4, 1803.

The Message and papers therein referred to were read and ordered to lie for consideration.

Thursday, November 10.

The credentials of John Condit, appointed a Senator by the Legislature of the State of New Jersey, for the time limited in the Constitution of the United States, were presented and read.

Ordered, That they lie on file.

Friday, November 11.

The President communicated a letter from De Witt Clinton, late a Senator from the State of New York, stating that he had resigned his seat in the Senate.

Monday, November 14.

The President administered the oath required by law to Mr. Condit, a Senator from the State of New Jersey.

Tuesday, November 15.

Mr. Worthington presented the petition of a number of the inhabitants of the Indiana Territory, praying to be set off into a separate district, for reasons therein stated.

Ordered, That it be referred to Mr. Bradley and others, the committee to whom were referred on the 7th instant, petitions on the same subject, to consider and report thereon to the Senate.

Wednesday, November 23.

Amendment to the Constitution.

The Senate resumed the consideration of the report of the committee to whom was referred the motion for an amendment to the constitution in the mode of electing the President and the Vice President of the United States; whereupon, the President pro tem. (Mr. Brown) submitted to the consideration of the Senate the following question of order:

“When an amendment to be proposed to the constitution is under consideration, shall the concurrence of two-thirds of the members present be requisite to decide any question for amendments, or extending to the merits, being short of the final question?”

[A debate took place on this proposition, tedious, intricate, and desultory, which it was very difficult to follow, and often to comprehend.]

The proposition offered by the President was then called up for decision, whether two-thirds were necessary—ayes 13, noes 18.

Mr. Butler desired to know from the President if the question now decided did not require a majority of two-thirds?

The President said, according to the rule of the House, the question required only a principal majority to decide.

Mr. Dayton’s motion for striking out what related to the Vice President was called for, and the question taken on striking out—ayes 12, noes 19.

The report of the committee at large being then under consideration,

Mr. Nicholas moved to strike out all following the seventh line of the report, to the end, for the purpose of inserting the following:

“In all future elections of President and Vice President, the Electors shall name in their ballots the person voted for as President, and, in distinct ballots, the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same State with themselves. The person voted for as President, having a majority of the votes of all the Electors appointed, shall be the President; and if no person have such majority, then from the three highest on the list of those voted for as President, the House of Representatives shall choose the President in the manner directed by the constitution. The person having the greatest number of votes as Vice President, shall be the Vice President; and in case of an equal number of votes for two or more persons for Vice President, they being the highest on the list, the Senate shall choose the Vice President from those having such equal number, in the manner directed by the constitution; but no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States.”

Mr. Adams objected to the number “three” instead of five, and wished five to be restored, as the House of Representatives had already agreed to it. He asked for a division of the question; which was not agreed to.

Upon the question for striking out being put, it was carried without a dissenting voice, and the amendment of Mr. Nicholas adopted in the report, leaving the number blank.

Mr. Dayton moved to fill up the blank with the number five; upon the question being put, it was lost—only eleven rose in the affirmative.

Mr. Anderson moved to strike out the word “two” in the nineteenth line—ayes 6. Lost.

Mr. S. Smith then moved to fill the blank with the word “three;” which was carried—ayes 18, noes 13.

Mr. Adams suggested an objection to the amendment as it stood, which appeared to arise out of the treaty of cession of Louisiana. His original idea was adverse to the limitation to natural-born citizens, as superfluous; but, as it stood, the terms upon which Louisiana was acquired had rendered a change necessary, for it appeared to him that there was no alternative, but to admit those born in Louisiana as well as those born in the United States to the right of being chosen for President and Vice President.

Mr. Butler said that, if there was a numerous portion of those who were already citizens of the United States who can never aspire to, nor be eligible for, those situations under the constitution, he did not see how this supposed alternative could be upheld. The people of Louisiana, under the treaty and under the constitution, will clearly come under the description of naturalized citizens. While he was up, he would take the opportunity of speaking to the question at large, and to examine the motives which produced this amendment; the principal cause of solicitude, on this subject, he understood to be the base intrigues which were said to have been carried on at the Presidential election.

Mr. Wright called to order; and a short altercation on the point of order took place.

Mr. Butler proceeded. He had on a former day asked if he might, in this stage of the discussion, take a view of the whole subject; the House had decided in the affirmative. When the proposition was first laid before the House, he had felt a disposition in favor of it; his mind had been shocked by those base intrigues, which had taken place at the late Presidential election, and he was hurried by indignation into a temper which a little cool reflection and some observation on a particular mode of action in that House, had checked and corrected, and finally convinced him that much caution was required in a proceeding of that nature, and that, in all human probability, such a scene of intrigue may never occur again; that it became questionable whether any steps whatever were necessary. Upon a careful review of the subject, it appeared to him that an alteration might make matters worse; for though at present there has been afforded, by a course of accidents and oversights, room for intrigue, it would be preferable to leave it to the care and discretion of the States at large to prevent the recurrence of the danger, than put into the hands of four of the large States the perpetual choice of President, to the exclusion of the other thirteen States. It was a reasonable principle that every State should, in turn, have the choice of the Chief Magistrate made from among its citizens. The jealousy of the small States was natural; and he would not tire the House by bringing to their ears arguments from the history of Greece, because the subject must be familiar to every member of that House, and, indeed, to every school-boy. He would not weary them with the painful history of the conflicts of Athens and Sparta, for the supremacy of Greece, and the fatal effects of their quarrels and ambition on the smaller States of that inveterate confederacy of Republics. Their history is that of all nations in similar circumstances; for man is man in every clime, and passion mingles in all his actions. If the smaller States were to agree to this amendment, it would fix for ever the combination of the larger States, and they would not only choose the President but the Vice President also in spite of the smaller States. It would ill become him who had been a member of that convention which had the honor of forming the present constitution to let a measure such as the present pass without the most deliberate investigation of its effects. Before the present constitution was adopted all the States held an equal vote on all national questions; by the constitution their sovereignty was guarantied, and the instrument of guarantee and right, he had subscribed his name to as a Representative from South Carolina, and had used all the zeal and influence of which he was possessed to promote its adoption. To give his assent to any violation of it, or any unnecessary innovation on its principles, would be a deviation from morality.

The question was immediately taken on the report and carried—yeas 20, nays 11.

Mr. Adams said, that though he had voted for the amendment, he disapproved of the alteration from five to three. He felt, however, though a representative of a large State, a deep interest in this question. Was there no champion of the small States to stand up in that House and vindicate their rights?

Mr. Dayton was not here as champion of the small States; but, as the representative of one of them, he was ready to enter his protest against being delivered over bound hand and foot to four or five of the large States. The gentleman from South Carolina had offered arguments on the subject irrefutable. The little portion of influence left us he has demonstrated to be now about to be taken away, and the gentleman from Massachusetts, (Mr. Adams,) after aiding the effort with his vote, has taken mercy upon us, and after he has helped to knock us down, asks us why we do not stand up for ourselves.

Mr. S. Smith was not surprised to find those who were members of the old Congress, in which the subject of large and small States was frequently agitated, familiar with the subject of those days. Under the present constitution he had been ten years in Congress and had never heard the subject agitated, nor the least ground given for any apprehension on this subject; he had seen the small States possess all the advantages secured to them without even a moment’s jealousy. The State he represented was once considered a large State; the increase of others in population, however, had rendered it properly belonging to neither class; it was an intermediate State; but from the natural progression of the Union it must be ranked among the small States. In this view then he could speak dispassionately, and the small States could not with reason be apprehensive that a State, which must speedily take rank among them, could be indifferent to their rights if there were the least cause for apprehension.

He had moved for the insertion of three instead of five, with this precise and special intention, that the people themselves should have the power of electing the President and Vice President; and that intrigues should be thereby for ever frustrated. The intention of the convention was that the election of the chief officers of the Government should come as immediately from the people as was practicable, and that the Legislature should possess the power only in such an exigency as accident might give birth to, but which they had considered as likely to occur. Had it not been for these considerations, the large States never would have given up the advantages which they held in point of numbers. If the number five were to be continued, and the House of Representatives made the last resort, he would undertake to say, that four times out of five the choice would devolve upon them.

Mr. Hillhouse.—In avoiding rocks he feared we were steering for quicksands. The evils that are past we know; those that may arrive we know not. The object proposed is to provide against a storm, a phenomenon not rare or unfrequent in republics. You are called upon to act upon a calculation that all the States in the Union will vote for the same persons, or that each of two parties opposed in politics will have an individual candidate. Suppose the two candidates who had the highest votes on the late election had been the champions of two opposite parties, and that neither would recede, what then would be the consequence; according to the gentleman from Maryland, a civil war! When men are bent on a favorite pursuit, they are too apt to shut out all consequences which do not bear out their object. Thus gentlemen can very well discover the danger they have escaped, but they do not perceive that the opposition of two powerful candidates gives, besides the hazard of civil war, the hazard of placing one of them on a permanent throne. The First Magistracy of this nation is an object capable of exciting ambition; and no doubt it would one day or other be sought after by dangerous and enterprising men. It was to place a check upon this ambition that the constitution provided a competitor for the Chief Magistrate, and declared that both should not be chosen from the same State. Here also was a guard against State pride, and this guard you wish to take away; and what will be the consequence? Instead of two or three or five, you will have as many candidates as there are States in the Union. By voting for two persons without designation, the States stood a double chance of a majority, besides the chance of a majority of all the States in the House of Representatives. For once or twice there may be such an organization of party as will secure for a conspicuous character the majority of votes. But that character cannot live always. The evil of the last election will recur, and be greater, because the whole field will be to range in.

He hoped this amendment would not be hastily adopted. The subsisting mode was the result of much deliberation and solemn compromise, after having long agitated the convention. It is now attacked by party, whatever gentlemen may say to the contrary; the gentleman from South Carolina has confessed it. If gentlemen will suffer themselves to look forward without passion, great good may come from the present mode; men of each of the parties may hold the two principal offices of the Government; they will be checks upon each other; our Government is composed of checks; and let us preserve it from party spirit, which has been tyrannical in all ages. These checks take off the fiery edge of persecution. Would not one of a different party placed in that chair tend to check and preserve in temper the overheated zeal of party? he would conduct himself with firmness because of the minor party; he would take care that the majority should have justice, but he would also guard the minority from oppression. If we cannot destroy party we ought to place every check upon it. If the present amendment pass, nine out of ten times the election will go to the other House, and then the only difference will be that you had a comedy the last time, and you’ll have a tragedy the next. Though it was impossible to prevent party altogether, much more when population and luxury increase, and corruption and vice with them, it was prudent to preserve as many checks against it as was practicable. He had been long in Congress and saw the conflicting interests of large and small States operate; the time may not be remote when party will adopt new designations; federal and republican parties have had their day, their designations will not last long, and the ground of difference between parties will not be the same that it has been; new names and new views will be taken; it has been the course in all nations. There has not yet been a rotation of offices in which the small States could look for their share, but the time may, it will come when the small will wrestle with the large States for their rights. Each State has felt that though its limits were not so extensive as others, its rights were not disregarded. Suffer this confidence to be done away, and you may bid adieu to it; three or four large States will take upon them in rotation to nominate the Executive, and the second officer also. This will be felt. A fanciful difference in politics is the bugbear of party now, because no other, no real cause of difference has subsisted. But remedy will create a real disease. States like individuals may say we will be of no party, and whenever this shall happen blood will follow.

Mr. Bradley moved an adjournment. The motion was agreed to.

Thursday, November 24.

Amendment to the Constitution.

The consideration of the report on the amendment to the constitution being taken up, the amendment as directed to be printed on the preceding day, was taken up, and read, as follows:

Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring, That the following amendment be proposed to the Legislatures of the several States as an amendment to the constitution of the United States, which, when ratified by three-fourths of the said Legislatures, shall be valid to all intents and purposes, as a part of the said constitution, viz:

In all future elections of President and Vice President, the Electors shall name in their ballots the person voted for as President, and, in distinct ballots, the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same State with themselves. The person voted for as President having a majority of the votes of all the Electors appointed, shall be the President, and if no person have such majority, then from the three highest on the list of those voted for as President, the House of Representatives shall choose the President in the manner directed by the constitution. The person having the greatest number of votes as Vice President, shall be Vice President; and in case of an equal number of votes for two or more persons for the Vice President, they being the highest on the list, the Senate shall choose the Vice President from those having such equal number, in the manner directed by the constitution; but no person constitutionally ineligible to the office of President, shall be eligible to that of the President of the United States.

Mr. Bradley did not approve of the amendment as it now stood; he could not see why the Vice President should not be chosen by a majority, as well as the President. He considered the possibility of the Vice President becoming President by any casualty, as a good reason for both being chosen by the same ratio of numbers. If it should be carried as the amendment now stands, the office of Vice President would be hawked about at market, and given as change for votes for the Presidency. And what would be the effect?—that it might so happen that a citizen chosen only for the office of Vice President, might by the death of the President, though chosen only by a plurality, become President, and hold the office for three years eleven months and thirty days. He did not approve of many arguments which he had heard on the preceding day, and however disposed to concur in the principle of designation for the two offices, he could not give it his vote in the present shape. He would, in order to render the report more congenial with his wishes, move to strike out the following words beginning with the words shall, in the thirteenth line, to constitution, in the eighteenth. The motion was seconded.

Mr. Tracy opposed the striking out, as not in order, it being an amendment to an amendment already received by the House. He thought, however, it would be in order to reconcile the whole, and then any part might be amended.

The President said that the motion for amending the amendment was not in order; but if the member from Vermont, or any other gentleman of the majority on the question yesterday chose to move for a recommittal, or even to refer the report to a select committee, it would be in order.

Mr. Bradley then renewed his motion as before, for striking out and inserting after the 13th line; this amendment he thought of great importance, as under the constitution as it now stands the Vice President must be a person of the highest respectability, well known, and of established reputation throughout the United States; but if the discriminating principle prevails without some precautions such as the amendment proposed, that assurance would be lost; and he should not be surprised to hear of as many candidates for Vice President as there are States, as the votes for President would be offered in truck for votes for Vice President, and an enterprising character might employ his emissaries through all the States to purchase them, and your amendment lays the foundation for intrigues. He was desirous that he who is to be set up as candidate for the Vice President should as at present be equally respectable, or that there should be none—that at least he should be the second man in the nation; adopt the designating principle, without the most guarded precautions, and you lose that assurance.

Mr. Hillhouse accorded with the gentleman’s amendment, as it naturally grows out of the principles of the report. There was not a word in the constitution about voting for the Vice President, no vote in fact is given for such an office; the alteration to designation alters the whole thing; and as the gentleman has expressed, will send the Vice President’s office into market to be handed about as change for the candidate supported by larger States; he would prefer leaving the choice of President and Vice President at once to the larger States than take it in this way. In calm times any government may work well, but he wished in calm times to provide against storm. If we designate any, then designate both and on equal terms.

Mr. Jackson said, that though coming from a small State he had not been instructed, and was therefore at perfect liberty to act according to the best of his judgment; though his State was now, in regard to population, small, and though it were to remain so, he could have but one opinion on this subject. He saw abundance of reason for preferring three to five. The constitution under the present form has directed the choice to be made from five. But the reason of this was consistent with the result to be produced; the electors were to vote for two persons indiscriminately, but with the restriction of voting for one only belonging to the State where the vote was given. The voting for two would necessarily bring forward four candidates, and a fifth possibly, for we saw in the two elections before the last that there was one more than the four, though in each case the fifth had but one vote; he alluded to the vote for Mr. Jay. In the amendment proposed you are called upon to designate for each office, and there can be little apprehension of having more than two or three principal candidates; and for twenty years to come he had no apprehension of a greater number of candidates if this amendment prevails.

Mr. Wright.—We need not be told in this house, that the constitution was the result of a compromise, or that care was taken to guard the rights of each State; these things we must be very ignorant, indeed, not to know. But does it therefore follow that it is not susceptible of amendment or correction under experience? Does it follow, because, for mutual interest and security, this compromise was made, that we are precluded from effecting any greater good? No man would accuse him of a wish to see the interest of any State impaired. But we can preserve the spirit and intention of the constitution in full vigor, without impairing any interests. And this is to be done, by the discriminating principle; it fulfills the intention, and it forefends the recurrence of that danger from which you have once escaped. By this principle, each elector may name his man for each office, and this can be done whether the number be three or five. For the latter number he was disposed; because already adopted by the other House, and he did not wish to delay its progress. If we were to form a constitution, he would provide that there should be only two candidates presented to the House. But he did not rely on any number so much as on the discriminating principle.

Mr. Nicholas.—Several gentlemen profess much reluctance to make any change in the constitution; he would make no such profession; and though he should be as jealous of improper alterations, or the introduction of principles incompatible with Republican Government, he would not hesitate to make any alteration calculated to promote, or secure the public liberty upon a firmer basis; nay, if it could be made better he would expunge the whole book. Gentlemen who are for adhering so closely to the constitution, appear not to consider that a choice of President from the number three, is more in the spirit of the constitution than from five; and preserves the relation that the election of two persons, under the present form, holds to the number five. A reason equally forcible with him was, that, by taking the number three instead of five, you place the choice with more certainty in the people at large, and render the choice more consonant to their wishes. With him, also, it was a most powerful reason for preferring three, that it would render the Chief Magistrate dependent only on the people at large, and independent of any party or any State interest. The people held the sovereign power, and it was intended by the constitution that they should have the election of the Chief Magistrate. It was never contemplated as a case likely to occur, but in an extreme case, that the election should go to the House of Representatives. What, he asked, would have been the effect, had Mr. Jay been elected when he had only one vote? What, he would ask, would be the impression made upon our own people, and upon foreign nations, had Mr. Aaron Burr been chosen at the last election, when the universal sentiment was to place the present Chief Magistrate in that station? He did not mean any thing disrespectful or invidious towards the Vice President, he barely stated the fact, so well known, and asked, what would be the effect? Where would be the bond of attachment to that constitution which could admit of an investiture in a case so important, in known opposition to the wishes of the people? The effect would be fatal to the constitution itself; it would weaken public attachment to it, and the affectation, if alone for the small States, would not have been heard of in the deep murmur of discontent.

An adjournment was now called for and carried.

Tuesday, November 29.

Amendment to the Constitution.

The order of the day being called up on the amendments to the constitution, a considerable time elapsed, when

Mr. Dayton rose and said, that since no other gentleman thought proper to address the Chair, although laboring himself under a very severe cold, which rendered speaking painful, he could not suffer the question to pass without an effort to arrest it in its progress; and should consider his last breath well expended in endeavoring to prevent the degradation which the State he represented would suffer if the amendment were to prevail.

As to the question immediately before the Senate for filling the blank with five, he felt himself indebted to the member from Tennessee for renewing the subject. He was grateful, also, to the member from Maryland (Mr. Wright) for declaring he would support it, as well as for giving the assurance that he was disposed to consider and spare the interests of the small States as far as possible, consistently with the great object of discrimination.

Every member who had spoken on this subject seemed to have admitted, by the very course and pointing of their arguments, even though they may have denied it in words, that this was really a question between great and small States, and disguise it as they would, the question would be so considered out of doors. The privilege given by the constitution extended to five, out of which the choice of President should be made; and why should the smaller, for whose benefit and security that number was given, now wantonly throw it away without an equivalent? As to the Vice President, his election had no influence upon the number, because the choice of President in the House of Representatives was as free and unqualified as if that subordinate office did not exist. Nay, he said, he would venture to assert that, even if the number five were continued, and the Vice Presidency entirely abolished, there would not be as great a latitude of choice as under the present mode, because those five out of whom the choice must eventually be made, were much more likely hereafter to be nominated by the great States, inasmuch as their electors would no longer be compelled to vote for a man of a different State. The honorable gentleman from Maryland (Mr. Smith) has said, he was not surprised that those who had seats in the old Congress, should perplex themselves with the distinctions; but he could tell that gentleman, that it was not in the old Congress he had learnt them, for there he had seen all the votes of the States equal, and had known the comparatively little State of Maryland controlling the will of the Ancient Dominion. It was in the Federal Convention that distinction was made and acknowledged; and he defied that member to do, what had been before requested of the honorable gentleman of Virginia, viz: to open the constitution, and point out a single article, if he could, that had not evidently been framed upon a presumption of diversity (he had almost said, adversity) of interest between the great and small States.

Mr. Adams in a former debate had stated that he had not a wish to avoid or seek for the yeas and nays on any question; on the present occasion, however, he would, when the question was taken, call for the yeas and nays. But his own vote on the final question would be governed by the decision of the number five, and he wished to have some record of his vote, that he might be hereafter able to defend himself against any charge of inconsistency. On the principle of the amendment he had formed his opinion, and he was free to confess, that notwithstanding the many able productions which he had seen against it, he thought it calculated to produce more good than evil. He was not, however, influenced in this opinion by the instructions which had been read in a preceding debate from a former Legislature of Massachusetts to their Senators; he presumed these were not read by way of intimidation. To the instructions of those to whom he owed his seat in that House he would pay every respect that was due, but he did not think that the resolutions of a Legislature passed in March 1799 or 1800 ought to have the same weight. Since that time four total and complete changes had taken place, and probably not one third of those who gave those instructions now remained. He held a seat in the Legislature himself three years since, but did not perceive any particular anxiety on the subject, and he did not think that the present Legislature would be extremely offended if he were to give a direct vote against what was recommended four years ago.

The constitution was a combination of federative and popular principles. When you argue upon, or wish to change any of its federative principles, you must use analogies as arguments; popular arguments will not apply to federative principles. The House of Representatives was founded on popular principles; in this House the representation is federative, and not popular; it is in its nature aristocratic. The foundation of all popular representation is equality of votes; but even the ratio of representation is different in different States; the numbers in Massachusetts and Virginia, in Vermont and Delaware, are different in their proportions; but still an equality of representation is preserved, and the only difference is in the details. But if you argue upon the principles of the Senate, this equality of popular representation, or by an equal or relatively equal number, will not apply; you must discuss it upon another species of equality, of sovereignties, and the independence of several States federatively connected. Applying principles then to the election of President, if you reduce the number from which the House of Representatives is authorized to choose, do you not attack the principles of the federal compact, rather than the rights of the small States? The Executive, it had been said, is the man of the people; true, and he is also, as was said, though upon different grounds, the man of the Legislature—it was here a combined principle, federative and popular. Virginia had in that House twenty-two popular representatives, in this she has two federative; Delaware has one popular and two federative representatives. And even in the operation of election in the popular branch of Congress, the federative principle is pursued, and the State which has only one popular representative has an equal voice in that instance with the State that has twenty-two popular representatives. It was therefore evident that the attempt to alter the number from five to three, is an attack upon the federative principle, and not upon the small States.

Mr. S. Smith, when he made the motion for filling up the blank with three, did it after the most deliberate consideration of the theory and the principles of the constitution; which, if he understood it right, intended that the election of the Executive should be in the people, or as nearly as was possible, consistent with public order and security to the right of suffrage. The provision admitting the choice by the House of Representatives, was itself intended only for an extreme case, where great inconvenience might result from sending a defective election back to the people, as is customary in Massachusetts, where, if the majority is deficient, a new election is required. Our object in the amendment is or should be to make the election more certain by the people. This was to be done most effectually by leaving it to them to designate the persons whom they preferred for each office. As under the present form there was an extreme case, so there might be when the change of number should take place; for, although even with the number three, there was a possibility of the choice devolving on the House of Representatives, yet the adoption of the designating principle and the number three, would render the case less probable. It never was the intention of the framers of the constitution that the election should go to the House of Representatives but in the extreme case; nor was it ever contemplated that about one-fifth of the people should choose a President for the rest, which certainly would be the case if what some gentlemen contended for were to take place. When gentlemen contend for such a power as would transfer the choice from the people, and place it in the hands of a minority so small, how happens it that gentlemen will not bear to hear of the efforts which such arguments or such measures would produce on the larger States? It was not the interest of the small States to combine against the large. Suppose it were possible that the four large States should combine—and a combination of the small States alone could produce such an effect—nine States in the Union have but thirty-two votes out of one hundred and forty-two, yet nine States, with one vote each, make a majority of seventeen, though in relation to population they contain only about one-fifth of the whole; and by such a proceeding the one-fifth might choose a President and Vice President in defiance of the other four-fifths. What would be the consequence of such an election? At a subsequent election the large States would combine, and by the use of their votes they would frustrate every object which the small States might use their efforts to accomplish.

Notwithstanding what had been said concerning the jealousy of States, he could see nothing in it but the leaven of the old Congress, thrown in to work up feelings that had been long still. It was the forlorn hope, the last stratagem of party; and he was the more disposed to think so, when he saw gentlemen from the large States coming forward as the champions of the small—this might, to be sure, be magnanimity; but if his discernment did not deceive him, it was a stratagem to divide the friends of the amendment. Why was not the same jealousy entertained of the power of thirteen out of seventeen combining and giving absolute law to the other four? Why have gentlemen paid no regard to the experience which they have had from the last election, when less than one third of the members harassed the public mind, kept the Union in agitation, and Congress engrossed to the exclusion of nearly all other business for two weeks? Suppose that the House had been as accessible to corruption as the diets of other nations have been, and that three men, having in their power the votes of three States, had been seized upon, and the election made contrary to the wishes of the people. What would be the effect—on the minds of the people—on the administration of the Government—and on the attachment which the people feel for the constitution itself? He need not attempt to describe the effects. But it is our duty to prevent the return of such dangers, by keeping the election out of that House. And the most effectual mode is to fix the selection from the number three.

Mr. Pickering had not intended to have spoken on this question so far as it concerned the numbers; but as he should probably vote differently from his colleague, he conceived it proper to give his motives for his vote. His wishes for the entire preservation of the constitution were so strong, that he regretted any change was contemplated to be made in it, and he wished if an alteration was made to keep as near as possible to the spirit of the constitution as it now is, and it appeared to him that the number three conformed more to that spirit than the number five. He believed it to be the intention of the constitution, that the people should elect. As to what gentlemen said concerning the will of the people, he paid but little regard to it. The will of the people! he did not know how the will of the people could be known—how gentlemen came by it; it would not be asserted that it was to be found in the newspapers, or in private society; in truth he believed it never had been fairly expressed on the subject. We have seen an amendment brought forward from New York, but was that an expression of the public opinion? if it was, it was a very remarkable one, for it contained an absurdity—visible to every one. He wished to avoid innovations on the constitution, and to preserve the combined operation of federative and popular principles upon which it rested unimpaired.

Mr. Worthington hoped the number three would be adopted in preference to five. Nevertheless he approved so much of the principle of designation in the election of the President and Vice President, that rather than lose it he would vote for it with either number.

The yeas and nays being called for on filling up the blank with the largest number according to order; the votes were—yeas 12, nays 19, as follows:

Yeas.—Messrs. Adams, Bailey, Butler, Condit, Dayton, Hillhouse, Olcott, Plumer, Tracy, Wells, White, and Wright.

Nays.—Messrs. Baldwin, Bradley, Breckenridge, Brown, Cocke, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Pickering, Potter, Israel Smith, John Smith, Samuel Smith, Stone, Taylor, and Worthington.

The question on the number three being inserted was then put, and the yeas and nays being demanded by one fifth of the members present; they were, yeas 21, nays 10, as follows:

Yeas.—Messrs. Bailey, Baldwin, Bradley, Breckenridge, Brown, Cocke, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Pickering, Potter, Israel Smith, John Smith, Samuel Smith, Stone, Taylor, Worthington, and Wright.

Nays.—Messrs. Adams, Butler, Condit, Dayton, Hillhouse, Olcott, Plumer, Tracy, Wells, and White.

The House then adjourned.

Friday, December 2.

Mr. White, of Delaware, rose and addressed the chair as follows:

Mr. President: It may be expected that we, who oppose the present measure, and especially those of us who belong to the smaller States, and who think the interests of those States will be most injuriously affected by its adoption, shall assign some reasons for our opinion, and for the resistance we give it: I will for myself endeavor to do so. I know well the prejudices of many in favor of this proposed amendment to the constitution; I know too, and acknowledge with pleasure, the weight of abilities on the other side of the House by which those prejudices, if I may so be permitted to call them, will be sustained; this might perhaps be sufficient to create embarrassment or even silence on my part, but for the consciousness I feel in the rectitude of my views, and my full reliance on the talents of those with whom I have the honor generally to think and act. Upon a subject of the nature and importance of the one before us a great diversity of sentiment must be expected, and is perhaps necessary to the due and proper investigation of it. Without detaining the Senate with further preliminary remarks, presuming upon that patience and polite indulgence that are at all times extended by this honorable body to gentlemen who claim their attention, I will proceed immediately to the subject of the resolution; barely premising that notwithstanding the opinions of the gentleman from Virginia (Mr. Taylor) and the gentleman from Georgia, (Mr. Jackson,) whose opinions I highly respect, I must yet think with my honorable friend from New Jersey (Mr. Dayton) that the Constitution of the United States bears upon the face of it the strongest marks of its having been made under the influence of State classifications. It was a work of compromise, though not formed, as stated by the gentleman from Virginia, by the large States yielding most, but by the smaller States yielding much more to the general good.

It will be recollected that, previous to the adoption of the constitution, on all legislative subjects, in fact, on every measure of the constitution, each State had an equal voice; but very different is the case now, when, in the popular branch of your Government, you see one State represented by twenty-two members, and another by but one, voting according to numbers. So that, notwithstanding the ideas of those gentlemen, and the declaration of an honorable member from Maryland, on my right, (Mr. Smith,) that, during his ten years’ service in Congress, he had never seen anything like State jealousies, State divisions, or State classification, I must be permitted to predicate part of my argument upon this business. Should any gentleman be able to show that the foundation is unsound, the superstructure of course will be easily demolished. Admitting, then, sir, for the sake of argument, that there were no very great objections to this proposed alteration in the mode of electing a President and Vice President, and that it were now part of the constitution, it might be unwise to strike it out, unless much stronger arguments had been urged against than I have heard in favor of it; yet I would not now vote for its adoption.

The United States are now divided, and will probably continue so, into two great political parties; whenever, under this amendment, a Presidential election shall come round, and the four rival candidates be proposed, two of them only will be voted for as President—one of these two must be the man; the chances in favor of each will be equal. Will not this increased probability of success afford more than double the inducement to those candidates, and their friends, to tamper with the Electors, to exercise intrigue, bribery, and corruption, as in an election upon the present plan, where the whole four would be voted for alike, where the chances against each are as three to one, and it is totally uncertain which of the gentlemen may succeed to the high office? And there must, indeed, be a great scarcity of character in the United States, when, in so extensive and populous a country, four citizens cannot be found, either of them worthy even of the Chief Magistracy of the nation. But, Mr. President, I have never yet seen the great inconvenience that has been so much clamored about, and that will be provided against in future by substituting this amendment. There was, indeed, a time when it became necessary for the House of Representatives to elect, by ballot, a President of the United States from the two highest in vote, and they were engaged here some days, as I have been told, in a very good-humored way, in the exercise of that constitutional right. They at length decided; and what was the consequence? The people were satisfied, and here the thing ended. What does this prove? that the constitution is defective? No, sir, but rather the wisdom and efficiency of the very provision intended to be stricken out, and that the people are acquainted with the nature of their Government; and give me leave to say, if fortune had smiled upon another man, and that election had eventuated in another way, the consequence would have been precisely the same; the great mass of the people would have been content and quiet; and those factious, restless disorganizers, that are the eternal disturbers of all well administered Governments, and who then talked of resistance, would have had too much prudence to hazard their necks in so dangerous an enterprise. I will not undertake to say that there was no danger apprehended on that occasion. I know many of the friends of the constitution had their fears; the experiment however proved them groundless; but what was the danger apprehended pending the election in the House of Representatives? Was it that they might choose Colonel Burr or Mr. Jefferson President? Not at all; they had, notwithstanding what had been said on this subject by the gentleman from Maryland, (Mr. Wright,) a clear constitutional right to choose either of them, as much so as the Electors in the several States had to vote for them in the first instance; the particular man was a consideration of but secondary importance to the country; the only ground of alarm was, lest the House should separate without making any choice, and the Government be without a head, the consequences of which no man could well calculate.

It has of late, Mr. President, become fashionable to attach very little importance to the office of Vice President, to consider it a matter but of small consequence who the man may be; to view his post merely as an idle post of honor, and the incumbent as a cipher in the Government; or according to the idea expressed by an honorable member from Georgia, (Mr. Jackson,) quoting, I believe, the language of some Eastern politician, as a fifth wheel to a coach; but in my humble opinion this doctrine is both incorrect and dangerous. The Vice President is not only the second officer of Government in point of rank, but of importance, and should be a man possessing and worthy of the confidence of the nation. I grant, sir, should this designating mode of election succeed, it will go very far to destroy, not the certain or contingent duties of the office, for the latter by this resolution are considerably extended, but what may be much more dangerous, the personal consequence and worth of the officer; by rendering the Electors more indifferent about the reputation and qualification of the candidate, seeing they vote for him but as a secondary character; and which may occasion this high and important trust to be deposited in very unsafe hands. By a provision in the first section of the second article of the constitution, “in case of the removal of the President from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President”—and he is constitutionally the President, not until another can be made only, but of the residue of the term, which may be nearly four years; and this is not to be supposed a remote or improbable case. In the State to which I have the honor to belong, within a few years past, two instances have happened of the place of Governor becoming vacant, and the duties of the office, according to the constitution of that State, devolving upon the Speaker of the Senate. We know well too, generally speaking, that before any man can acquire a sufficient share of the public confidence to be elected President, the people must have long been acquainted with his character and his merit; he must have proved himself a good and faithful servant, and will of course be far advanced in years, when the chances of life will be much against him. It may indeed, owing to popular infatuation, or some other extraordinary causes, be the ill fate of our country, that an unworthy designing man, grown old and gray in the ways of vice and hypocrisy, shall for a time dishonor the Presidential chair, or it may be the fortune of some young man to be elected, but those will rarely happen. The convention in constructing this part of the constitution, in settling the first and second offices of the Government, and pointing out the mode of filling, aware of the probability of the Vice President succeeding to the office of President, endeavored to attach as much importance and respectability to his office as possible, by making it uncertain at the time of voting, which of the persons voted for should be President, and which Vice President; so as to secure the election of the best men in the country, or at least those in whom the people reposed the highest confidence, to the two offices—thus filling the office of Vice President with one of our most distinguished citizens, who would give respectability to the Government, and in case of the Presidency becoming vacant, having at his post a man constitutionally entitled to succeed, who had been honored with the second largest number of the suffrages of the people for the same office, and who of consequence would be probably worthy of the place, and competent to its duties. Let us now, Mr. President, examine for a moment the certain effect of the change about to be made, or what must be the operation of this designating principle, if you introduce it into the constitution. Now the Elector cannot designate, but must vote for two persons as President, leaving it to circumstances not within his power to control which shall be the man: of course he will select two characters, each suitable for that office, and the second highest in vote must be the Vice President; but upon this designating plan the public attention will be entirely engrossed in the election of the President, in making one great man. The eyes of each contending party will be fixed exclusively upon their candidate for this first and highest office; no surrounding object can be viewed at the same time, they will be lost in his disc. The office of President is, in point of honor, profit, trust, and influential patronage, so infinitely superior to any other place attainable in this Government, that, in the pursuit and disposal of it, all minor considerations will be forgotten, every thing will be made to bend, in order to subserve the ambitious views of the candidates and their friends. In this angry conflict of parties, amidst the heat and anxiety of this political warfare, the Vice Presidency will either be left to chance, or what will be much worse, prostituted to the basest purposes; character, talents, virtue, and merit, will not be sought after in the candidate. The question will not be asked, is he capable? is he honest? But can he by his name, by his connections, by his wealth, by his local situation, by his influence or his intrigues, best promote the election of a President? He will be made a mere stepping-stone of ambition. Thus, by the death or other constitutional inability of the President to do the duties of the office, you may find at the head of your Government, as First Magistrate of the nation, a man who has either smuggled or bought himself into office; who, not having the confidence of the people, or feeling the constitutional responsibility of his place, but attributing his elevation merely to accident, and conscious of the superior claims of others, will be without restraint upon his conduct, without that strong inducement to consult the wishes of the people, and to pursue the true interests of the nation, that the hope of popular applause, and the prospect of re-election, would offer. Such a state of things might be productive of incalculable evils; for it is, as I fear time will show, in the power of a President of the United States to bring this Government into contempt, and this country to disgrace, if not to ruin.

Mr. Plumer said that he had generally contented himself with expressing his opinion by a silent vote, but on a question which affected the rights of the smaller States, (one of which he had the honor to represent,) he requested the indulgence of the Senate to a few observations.

He said the constitution had provided only two methods for obtaining amendments, and both are granted with great caution. If two-thirds of the several State Legislatures apply, Congress shall call a convention who are to propose amendments, which, when ratified by the conventions of three-fourths of the States, will be valid. If this mode is adopted, Congress have nothing to do but to ascertain the fact, whether the necessary number of States require a convention. If they do, a convention must be called. The State Legislatures are only to apply for a convention. They can neither propose nor decide the amendments.

The other mode is, if two-thirds of both Houses of Congress deem it necessary to propose amendments, and three-fourths of the State Legislatures ratify them, they are valid. This is the present mode. The State Legislatures have nothing to do till after Congress has proposed the amendments, and then it is their exclusive province either to ratify or reject them. But they have no authority to direct or even request Congress to propose particular amendments for themselves to ratify. Instructions on this subject are therefore improper. It is an assumption of power, not the exercise of a right. It is an attempt to create an undue influence over Congress. It is prejudging the question before it is proposed by the only authority that has the constitutional right to move it. If these instructions are obligatory, our votes must be governed, not by the convictions of our own judgments, or the propriety and fitness of the measure, but by the mandates of other Legislatures. This would destroy one of the checks that the constitution has provided against innovation. State Legislatures may, on some subjects, instruct their Senators; but on this, their instructions ought not to influence, much less bind us, to propose amendments, unless we ourselves deem them necessary.

The Senate consists of two members from each State; and in this case, the concurrence of two-thirds of all the Senate are necessary. A majority of the Senate constitutes a quorum to do business, but that quorum is a majority of all the Senators that all the States are entitled to elect. This applies with equal force to the term “two-thirds of the Senate.” But in cases where from necessity a speedy decision is requisite, and where the concurrence of two-thirds is required, the constitution is explicit in confining that two-thirds to the members present, as in cases of treaties and impeachments; and also a fifth of the members present requesting the yeas and nays. If amendments can be constitutionally proposed by two-thirds of the Senate present, it will follow that twelve Senators, when only a quorum is present, may propose them against the will of twenty-two Senators.

This amendment affects the relative interest and importance of the smaller States. The constitution requires the Electors of each State to vote for two men, one of whom to be President of the United States. This affords a degree of security to the small States against the views and ambition of the large States. It gives them weight and influence in the choice. By destroying this complex mode of choice, and introducing the simple principle of designation, the large States can with more ease elect their candidate. This amendment will enable the Electors from four States and a half to choose a President, against the will of the remaining twelve States and a half. Can such a change tend to conciliate and strengthen the Union?

This amendment has a tendency to render the Vice President less respectable. He will be voted for not as President of the United States, but as President of the Senate, elected to preside over forms in this House. In electing a subordinate officer the Electors will not require those qualifications requisite for supreme command. The office of Vice President will be a sinecure. It will be brought to market and exposed to sale to procure votes for the President. Will the ambitious, aspiring candidate for the Presidency, will his friends and favorites promote the election of a man of talents, probity, and popularity for Vice President, and who may prove his rival? No! They will seek a man of moderate talents, whose ambition is bounded by that office, and whose influence will aid them in electing the President. This mode of election is calculated to increase corruption, promote intrigue, and aid inordinate ambition. The Vice President will be selected from some of the large States; he will have a casting vote in this House; and feeble indeed must his talents be, if his influence will not be equal to that of a member. This will, in fact, be giving to that State a third Senator.

In the Southern States the blacks are considered as property, and the States in which they live are thereby entitled to eighteen additional Electors and Representatives—a number equal to all the Electors and Representatives that four States and a half are entitled to elect. Will you, by this amendment, lessen the weight and influence of the Eastern States in the election of your first officers, and still retain this unequal article in your constitution? Shall property in one part of the Union give an increase of Electors, and be wholly excluded in other States? Can this be right? Will it strengthen the Union?

Mr. Tracy.—I shall attempt to prove, sir, that the resolution before us contains principles which have a manifest tendency to deprive the small States of an important right, secured to them by a solemn and constitutional compact, and to vest an overwhelming power in the great States. And, further, I shall attempt to show that, in many other points, the resolution is objectionable, and, for a variety of causes, ought not to be adopted.

As I shall be obliged, in delineating the main features of this resolution, to mention the great States in the Union as objects of jealousy, I wish it to be understood that no special stigma is intended. “Man is man,” was the maxim expressed in an early part of this debate, by the gentleman from South Carolina, (Mr. Butler,) and in application to the subject of government, the maxim is worthy to be written in letters of gold. Yes, sir, “man is man,” and the melancholy truth that he is always imperfect and frequently wicked, induces us to fear his power, and guard against his rapacity, by the establishment and preservation of laws, and well-regulated constitutions of government. Man, when connected with very many of his fellow-men, in a great State, derives power from the circumstance of this numerous combination; and from every circumstance which clothes him with additional power, he will generally derive some additional force to his passions.

Having premised this, I shall not deem it requisite to make any apology, when I attempt to excite the attention, the vigilance, and even the jealousy of the small, in reference to the conduct of the great States. The caution is meant to apply against the imperfections and passions of man, generally, and not against any State, or description of men, particularly.

It may be proper, in this place, to explain my meaning, when I make use of the words “small” and “great,” as applicable to States.

Massachusetts has been usually called a great State; but, in respect to all the operations of this resolution, she must, I think, be ranked among the small States. The district of Maine is increasing rapidly, and must, in the nature of things, soon become a State. To which event, its location, being divided from what was the ancient Colony of Massachusetts, by the intervention of New Hampshire, will very much contribute. I believe there is a legislative provision of some years’ standing, authorizing a division at the option of Maine. When this event shall occur, Massachusetts, although, in comparison with Connecticut and Rhode Island, she will not be a small State, yet, in comparison with many others, must be so considered. I think myself justifiable, then, for my present purposes, in calling Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New Jersey, Delaware, Maryland, and South Carolina, small States. They are limited in point of territory, and cannot reasonably expect any great increase of population for many years, not, indeed, until the other States shall become so populous as to discourage emigration, with agricultural views; which may retain the population of the small States as seamen or manufacturers. This event, if it ever arrives, must be distant. A possible exception only may exist in favor of Maine; but, when we consider its climate, and a variety of other circumstances, it is believed to form no solid exception to this statement.

By the same rule of deciding, the residue of the States must be called great; for although Georgia and several others are not sufficiently populous, at this time, to be considered relatively great States, yet their prospect of increase, with other circumstances, fairly bring them within the description, in respect to the operation of the measure now under consideration.

It will be recollected that, in the various turns which the debate has taken, gentlemen have repeatedly said that the constitution was formed for the people; that the good of the whole was its object; that nothing was discernible in it like a contest of States, nothing like jealousy of small States against the great; and although such distinctions and jealousies might have existed under the first confederation, yet they could have no existence under the last. And one gentleman (Mr. Smith, of Maryland) has said that he has been a member of this Government ten years, and has heard nothing of great and small States, as in the least affecting the operations of Government, or the feelings of those who administer it.

Propriety, therefore, requires that we attentively examine the constitution itself, not only to obtain correct ideas upon these observations, so repeatedly urged, but to place in the proper light the operations and effects of the resolution in debate. If we attend to the constitution, we shall immediately find evident marks of concession and compromise, and that the parties to these concessions were the great and small States. And the members of the convention who formed the instrument have, in private information and public communications, united in the declaration, that the constitution was the result of concession and compromise between the great and small States. In this examination of the constitution it will be impossible to keep out of view our political relations under the first confederation. We primarily united upon the footing of complete State equality—each State had one, and no State had more than one vote in the Federal Council or Congress. With such a confederation we successfully waged war, and became an independent nation. When we were relieved from the pressure of war, that confederation, both in structure and power, was found inadequate to the purposes for which it was established. Under these circumstances, the States, by their convention, entered into a new agreement, upon principles better adapted to promote their mutual security and happiness. But this last agreement, or constitution, under which we are now united, was manifestly carved out of the first confederation. The small States adhered tenaciously to the principles of State equality; and gave up only a part of that federative principle, complete State equality, and that with evident caution and reluctance. To this federative principle they were attached by habit; and their attachment was sanctioned and corroborated by the example of most if not all the ancient and the modern confederacies. And when the great States claimed a weight in the councils of the nation proportionate to their numbers and wealth, the novelty of the claim, as well as its obvious tendency to reduce the sovereignty of the small States, must have produced serious obstacles to its admission. Hence it is, that we find in the constitution but one entire departure from the federal principle. The House of Representatives is established upon the popular principle, and given to numbers and wealth, or to the great States, which, in this view of the subject, are synonymous. It was thought, by the convention, that a consolidation of the States into one simple Republic would be improper. And the local feelings and jealousies of all, but more especially of the small States, rendered a consolidation impracticable.

The Senate, who have the power of a legislative check upon the House of Representatives, and many other extensive and important powers, is preserved as an entire federative feature of Government as it was enjoyed by the small States, under the first confederacy.

In the article which obliges the Electors of President to vote for one person not an inhabitant of the same State with themselves, is discovered State jealousy. In the majorities required for many purposes by the constitution, although there were other motives for the regulations, yet the jealousy of the small States is clearly discernible. Indeed, sir, if we peruse the constitution with attention, we shall find the small States are perpetually guarding the federative principle, that is, State equality. And this, in every part of it, except in the choice of the House of Representatives, and in their ordinary legislative proceedings. They go so far as to prohibit any amendment which may affect the equality of States in the Senate.

This is guarding against almost an impossibility, because the Senators of small States must be criminally remiss in their attendance, and the Legislatures extremely off their guard, if they permit such alterations, which aim at their own existence. But lest some accident, some unaccountable blindness or perfidy should put in jeopardy the federative principle in the Senate, they totally and for ever prohibit all attempts at such a measure. In the choice of President, the mutual caution and concession of the great and small States is, if possible, more conspicuous than in any other part of the constitution.

He is to be chosen by Electors appointed as the State Legislatures shall direct, not according to numbers entirely, but adding two Electors in each State as representatives of State sovereignty. Thus Delaware obtains three votes for President, whereas she could have but one in right of numbers. Yet, mixed as this mode of choice is, with both popular and federative principles, we see the small States watching its motions and circumscribing it to one attempt only, and, on failure of an Electoral choice, they instantly seize upon the right of a federal election, and select from the candidates a President by States and not by numbers. In confirmation of my assertion, that this part of the constitution was peculiarly the effect of compromise between the great and small States, permit me to quote an authority which will certainly have great weight, not only in the Senate, but through the Union, I mean that of the present Secretary of State, (Mr. Madison,) who was a leading member of the Federal Convention who formed, and of the Virginia Convention who adopted the constitution.

In the Debates of the Virginia Convention, volume 3, page 77, Mr. Madison says, speaking of the mode of electing the President:

“As to the eventual voting by States, it has my approbation. The lesser States and some larger States will be generally pleased by that mode. The Deputies from the small States argued, and there is some force in their reasoning, that, when the people voted, the large States evidently had the advantage over the rest, and, without varying the mode, the interests of the little States might be neglected or sacrificed. Here is a compromise. For in the eventual election, the small States will have the advantage.”

After this view of the constitution, let us inquire, what is the direct object of the proposed alteration in the choice of President?

To render more practicable and certain the choice by Electors—and for this reason: that the people at large, or in other words, that the great States, ought to have more weight and influence in the choice. That it should be brought nearer to the popular and carried further from the federative principle. This claim we find was made at the formation of the constitution. The great States naturally wished for a popular choice of First Magistrate. This mode was sanctioned by the example of many of the States in the choice of Governor. The small States claimed a choice on the federative principle, by the Legislatures, and to vote by States; analogies and examples were not wanting to sanction this mode of election. A consideration of the weight and influence of a President of this Union, must have multiplied the difficulties of agreeing upon the mode of choice. But as I have before said, by mutual concession, they agreed upon the present mode, combining both principles and dividing between the two parties, thus mutually jealous, as they could, this important privilege of electing a Chief Magistrate.

This mode then became established, and the right of the small States to elect upon the federative principle, or by States, in case of the contingency of electoral failure of choice, cannot with reason and fairness be taken from them, without their consent, and on a full understanding of its operation; since it was meant to be secured to them by the constitution, and was one of the terms upon which they became members of the present confederacy; and for which privilege they gave an equivalent to the great States in sacrificing so much of the federative principle, or State equality.

The constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretences they may be presented, should be watched with a jealous eye. Perhaps a fair definition of the constitutional powers of amending is, that you may upon experiment so modify the constitution in its practice and operation, as to give it, upon its own principles, a more complete effect. But this is an attack upon a fundamental principle established after a long deliberation, and by mutual concession, a principle of essential importance to the instrument itself, and an attempt to wrest from the small States a vested right, and by it, to increase the power and influence of the large States. I shall not pretend, sir, that the parties to this constitutional compact cannot alter its original essential principles, and that such alterations may not be effected under the name of amendment; but, let a proposal of that kind come forward in its own proper and undisguised shape; let it be fairly stated to Congress, to the State Legislatures, to the people at large, that the intention is to change an important federative feature in the constitution, which change in itself and all its consequences, will tend to a consolidation of this Union into a simple republic; let it be fairly stated, that the small States have too much agency in the important article of electing a Chief Magistrate, and that the great States claim the choice; and we shall then have a fair decision. If the Senators of the small States, and if their State Legislatures, will then quietly part with the right they have, no person can reasonably complain.

Nothing can be more obvious, than the intention of the plan adopted by our constitution for choosing a President. The Electors are to nominate two persons, of whom they cannot know which will be President; this circumstance not only induces them to select both from the best men; but gives a direct advantage into the hands of the small States even in the electoral choice. For they can always select from the two candidates set up by the Electors of large States, by throwing their votes upon their favorite, and of course giving him a majority; or, if the Electors of the large States should, to prevent this effect, scatter their votes for one candidate, then the Electors of the small States would have it in their power to elect a Vice President. So that, in any event, the small States will have a considerable agency in the election. But if the discriminating or designating principle is carried, as contained in this resolution, the whole, or nearly the whole right and agency of the small States, in the electoral choice of Chief Magistrate, is destroyed, and their chance of obtaining a federative choice by States, if not destroyed, is very much diminished.

The whole power of election is now vested in the two parties; numbers and States, or, great and small States; and it is demonstration itself, if you increase the power of the one, in just such proportion you diminish that of the other. Do the gentlemen suppose that the public will, when constitutionally expressed by a majority of States, in pursuance of the federative principle of our Government, is of less validity, or less binding upon the community at large, than the public will expressed by a popular majority? The framers of your constitution, the people who adopted it, meant, that the public will, in the choice of a President, should be expressed by Electors, if they could agree, and if not, the public will should be expressed by a majority of the States, acting in their federative capacity, and that in both cases the expression of the public will should be equally binding.

It is pretended that the public will can never properly or constitutionally be expressed by a majority of numbers of the people, or of the House of Representatives. This may be a pleasing doctrine enough to great States; but it is certainly incorrect. Our constitution has given the expression of the public will, in a variety of instances, other than that of the choice of President, into very different hands from either House of Representatives or the people at large. The President and Senate, and in many cases the President alone, can express the public will, in appointments of high trust and responsibility, and it cannot be forgotten that the President sometimes expresses the public will by removals. Treaties, highly important expressions of the public will, are made by the President and Senate; and they are the supreme law of the land. In the several States, many great offices are filled, and even the Chief Magistracy, by various modes of election. The public will is sometimes expressed by pluralities instead of majorities, sometimes by both branches of the Legislatures, and sometimes by one, and in certain contingencies, elections are settled by lot. The people have adopted constitutions containing such regulations, and experience has proved that they are well calculated to preserve their liberties and promote their happiness. From what good or even pardonable motive, then, can it be urged that the present mode of electing our President has a tendency to counteract the public will? Do gentlemen intend to destroy every federal feature in this constitution? And is this resolution a precursor to a complete consolidation of the Union, and to the establishment of a simple republic?—Or will it suffice to break down every federative feature which secures to one portion of the Union, to the small States, their rights?

Mr. Taylor.—The opposition to this discriminating amendment to the constitution is condensed into a single stratagem, namely: an effort to excite the passion of jealousy in various forms. Endeavors have been made to excite geographical jealousies—a jealousy of the smaller against the larger States—a jealousy in the people against the idea of amending the constitution; and even a jealousy against individual members of this House. Sir, is this passion a good medium through which to discern truth, or is it a mirror calculated to reflect error? Will it enlighten or deceive? Is it planted in good or in evil—in moral or in vicious principles? Wherefore, then, do gentlemen endeavor to blow it up? Is it because they distrust the strength of their arguments, that they resort to this furious and erring passion? Is it because they know that

So far as these efforts have been directed towards a geographical demarcation of the interests of the Union into North and South, in order to excite a jealousy of one division against another; and, so far as they have been used to create suspicions of individuals, they have been either so feeble, inapplicable, or frivolous, as to bear but lightly upon the question, and to merit but little attention. But the attempts to array States against States because they differ in size, and to prejudice the people against the idea of amending their constitution, bear a more formidable aspect, and ought to be repelled, because they are founded on principles the most mischievous and inimical to the constitution, and, could they be successful, are replete with great mischiefs.

Towards exciting this jealousy of smaller States against larger States, the gentleman from Connecticut (Mr. Tracy) had labored to prove that the federal principle of the constitution of the United States was founded in the idea of minority invested with operative power. That, in pursuance of this principle, it was contemplated and intended that the election of a President should frequently come into the House of Representatives, and to divert it from thence by this amendment would trench upon the federal principle of our constitution, and diminish the rights of the smaller States, bestowed by this principle upon them. This was the scope of his argument to excite their jealousy, and is the amount also of several other arguments delivered by gentlemen on the same side of the question. He did not question the words, but the ideas of gentlemen. Words, selected from their comrades, are easily asserted to misrepresent opinions, as he had himself experienced during the discussion on the subject.

This idea of federalism ought to be well discussed by the smaller States, before they will suffer it to produce the intended effect—that of exciting their jealousy against the larger. To him it appeared to be evidently incorrect. Two principles sustain our constitution: one a majority of the people, the other a majority of the States; the first was necessary to preserve the liberty or sovereignty of the people; the last, to preserve the liberty or sovereignty of the States. But both are founded in the principle of majority; and the effort of the constitution is to preserve this principle in relation both to the people and the States, so that neither species of sovereignty or independence should be able to destroy the other. Many illustrations might be adduced. That of amending the constitution will suffice. Three-fourths of the States must concur in this object, because a less number or a majority of States might not contain a majority of people; therefore, the constitution is not amendable by a majority of States, lest a species of State sovereignty might, under color of amending the constitution, infringe the right of the people. On the other hand, a majority of the people residing in the large States cannot amend the constitution, lest they should diminish or destroy the sovereignty of the small States, the federal Union, or federalism itself. Hence a concurrence of the States to amend the constitution became necessary, not because federalism was founded in the idea of minority, but for a reason the very reverse of that idea—that is, to cover the will both of a majority of the people and a majority of States, so as to preserve the great element of self-government, as it regarded State sovereignty, and also as it regarded the sovereignty of the people.

For this great purpose certain political functions are assigned to be performed, under the auspices of the State or federal principle, and certain others under the popular principle. It was the intention of the constitution that these functions should be performed in conformity to its principle. If that principle is in fact a government of a minority, then these functions ought to be performed by a minority. When the federal principle is performing a function, according to this idea, a majority of the States ought to decide. And, by the same mode of reasoning, when the popular principle is performing a function, then a minority of the people ought to decide. This brings us precisely to the question of the amendment. It is the intention of the constitution that the popular principle shall operate in the election of a President and Vice President. It is also the intention of the constitution that the popular principle, in discharging the functions committed to it by the constitution, should operate by a majority and not by a minority. That the majority of the people should be driven, by an unforeseen state of parties, to the necessity of relinquishing their will in the election of one or the other of these officers, or that the principle of majority, in a function confided to the popular will, should be deprived of half its rights, and be laid under a necessity of violating its duty to preserve the other half, is not the intention of the constitution.

But the gentleman from Connecticut has leaped over all this ground, and gotten into the House of Representatives, without considering the principles of the constitution, as applicable to the election of President and Vice President by Electors, and distinguishing them from an election by the House of Representatives. And by mingling and interweaving the two modes of electing together, a considerable degree of complexity has been produced. If, however, it is admitted that in an election of a President and Vice President by Electors, the will of the electing majority ought fairly to operate, and that an election by the will of a minority would be an abuse or corruption of the principles of the constitution, then it follows that an amendment, to avoid this abuse, accords with, and is necessary to save these principles. In like manner, had an abuse crept into the same election, whenever it was to be made under the federal principle by the House of Representatives, enabling a minority of States to carry the election, it would not have violated the intention of the constitution to have corrected this abuse, also, by an amendment. For, sir, I must suppose it to have been the intention of the constitution that both the federal principle and the popular principle should operate in those functions respectively assigned to them, perfectly and not imperfectly—that is, the former by a majority of States, and the latter by a majority of the people.

Under this view of the subject, the amendment ought to be considered. Then the question will be, whether it is calculated or not to cause the popular principle, applied by the constitution in the first instance, to operate perfectly, and to prevent the abuse of an election by a minority? If it is, it corresponds with the intention, diminishes nothing of the rights of the smaller States, and, of course, affords them no cause of jealousy.

Sir, it could never have been the intention of the constitution to produce a state of things by which a majority of the popular principle should be under the necessity of voting against its judgment to secure a President, and by which a minor faction should acquire a power capable of defeating the majority in the election of President, or of electing a Vice President contrary to the will of the electing principle. To permit this abuse would be a fraudulent mode of defeating the operation of the popular principle in this election, in order to transfer it to the federal principle—to disinherit the people for the sake of endowing the House of Representatives; whereas it was an accidental and not an artificial disappointment in the election of a President, against which the constitution intended to provide. A fair and not an unfair attempt to elect was previously to be made by the popular principle, before the election was to go into the House of Representatives. And if the people of all the States, both large and small, should, by an abuse of the real design of the constitution, be bubbled out of the election of executive power, by leaving to them the nominal right of an abortive effort, and transferring to the House of Representatives the substantial right of a real election, nothing will remain but to corrupt the election in that House by some of those abuses of which elections by diets are susceptible, to bestow upon executive power an aspect both formidable and inconsistent with the principles by which the constitution intended to mould it.

The great check imposed upon executive power was a popular mode of election; and the true object of jealousy, which ought to attract the attention of the people of every State, is any circumstance tending to diminish or destroy that check. It was also a primary intention of the constitution to keep executive power independent of legislative; and although a provision was made for its election by the House of Representatives in a possible case, that possible case never was intended to be converted into the active rule, so as to destroy in a degree the line of separation and independency between the executive and legislative power. The controversy is not therefore between larger and smaller States, but between the people of every State and the House of Representatives. Is it better that the people—a fair majority of the popular principle—should elect executive power; or, that a minor faction should be enabled to embarrass and defeat the judgment and will of this majority, and throw the election into the House of Representatives? This is the question. If this amendment should enable the popular principle to elect executive power, and thus keep it separate and distinct from legislation, the intention of the constitution, the interest of the people, and the principles of our policy, will be preserved; and if so, it is as I have often endeavored to prove in this debate, the interest of the smaller States themselves, that the amendment should prevail. For, sir, is an exposure of their Representatives to bribery and corruption (a thing which may possibly happen at some future day, when men lose that public virtue which now governs them) an acquisition more desirable than all those great objects best (if not exclusively) attainable by the election of executive power by the popular principle of the Federal Government, as the constitution itself meditates and prefers?

So far, then, the amendment strictly coincides with the constitution and with the interests of the people of every State in the Union. But suppose by some rare accident the election should still be sent into the House of Representatives, does not the amendment then afford cause of jealousy to the smaller States? Sir, each State has but one vote, whether it is large or small; and the President and Vice President are still to be chosen out of five persons. Such is the constitution in both respects now. To have enlarged the number of nominees, would have increased the occurrence of an election by the House of Representatives; and if, as I have endeavored to prove, it is for the interest of every State, that the election should be made by the popular principle of Government and not by that House, then it follows, that whatever would have a tendency to draw the election into that House, is against the interest of every State in the Union; and that every State in the Union is interested to avoid an enlargement of the nominees, if it would have such a tendency.