Senate, Amendment to the Constitution1--2 Dec. 1803Annals 13:129--53, 155--56, 159--75, 180--84
Mr. Hillhouse.-- . . . The complex mode provided by the Constitution was conceived in great wisdom. It was necessary, when the country was agitated, to operate as a check upon party and irregular passions. Parties will always have their champions, and they will be always well known; to attack another champion is to restrain the passions by some degree of uncertainty during the contest. But, by the new amendment, it would be every man to his own book, and every demagogue would be a leader and a champion, and, in the contest, parties would be divided between the two principal champions, and a third would come in and win the race.
If every man were to act correctly, no party passions would prevail on an occasion so important; but carry the champions of two opposite parties to the House of Representatives, and instead of voting thirty-seven times before they decide, as on the last occasion, they will vote thirty hundred times. You are told that, at the last election, one was intended by the people for President, and the other for Vice President; but the Constitution knows no vote for Vice President. Alter it as you now propose, and let two candidates be equal, and then you will be told that they were both intended for President. What will be the consequences? On the third day of March neither party will give out, and it will end in the choice of a third man, who will not be the choice of the people, but one who will, by artful contrivances, bring himself to that place with the sole intention of getting in between them. Choice by lot would certainly be better than this. Would not any man prefer a choice by lot rather than such a course, as it would break up the Constitution, and leave the people without a President in whom they would confide?
The principle of the Constitution, of electing by electors, [Volume 5, Page 453] is certainly preferable to all others. One of the greatest evils that can happen is the throwing of the election into the House of Representatives. There, Pennsylvania, Virginia, Massachusetts, and New York, may combine; they may say to the other States, we will not vote for your man; for either of those States giving their whole votes to a third character may bring him in. We see the practice daily in Congressional elections, when both parties obstinately adhere to their candidate; a third is set up and carried in to the rejection of both. By the new mode proposed every man will have an interest to intrigue for himself to obtain the eminent station. Gentlemen may suppose that such is the predominancy of their party, they may carry in any President. But no party can long hold an ascendancy in power; they will ill treat each other--or some of them will disagree, and from the fragments new parties will arise, who will gain power and forget themselves, and again disagree, to make way for new parties. The Constitution was predicated upon the existence of parties; they will always exist, and names will not be wanting to rally under, and difference of interests will not be wanting for pretexts: the agricultural will be arrayed against the mercantile; the South against the East; the seaboard against the inland. As to what he had heard about cutting off heads, he supposed that could not have been meant as a threat; in his part of the country such a crime could not take place. The gentleman, however, must be supposed to know his neighbors better than he did, but he could not suspect such danger from a valiant people.
Mr. Pickering said the amendment he had offered was suggested to him by the alarming picture of danger drawn by the gentleman from Maryland. He thought the dangers indeed exaggerated, though possibly they might not be; but he thought it proper to provide how elections should be conducted, and to determine between tumult or civil war and law.
Mr. Smith did say that, at the last Presidential election, the party opposed to the present Chief Magistrate did contemplate laying aside the popular choice and electing a President by a law to be passed for the occasion, at the time: he had also said, that had the measure been carried into effect, the person, whoever he might have been, would have met the fate of an usurper, and his head would not have remained on his shoulders twenty-four hours.
Mr. Wright.--It had been said, that we meant to precipitate this amendment of the Constitution--to make the minority swallow it; he hoped the gentlemen, in their eagerness to render it insipid, would not make it totally unpalatable to us: as they had proceeded, the modes they had proposed struck him at least by their novelty. Since what was offered was not satisfactory, and they were willing to commit it to chance, why did they not take up the ancient mode of grande battaile? we should have no objection to have it decided by the champions of both parties armed with tomahawks! Gentlemen talk of the danger and of the rights of the small States, do they expect that any man can think their professions serious, when they are, at the same time, willing to commit their rights to the chance of a lottery? The rights of freemen are not to be gambled away, or committed to chance, or sorcery, or witchcraft; we look to reason and experience for our guides; we seek for the means most conducive to the general happiness; to this, reason conducts us. By experience, we correct what may have escaped our sagacity at first, or may have been defective or erroneous in practice. It is upon these principles our Constitution is founded; it is for these words that the provision is made in the Constitution itself for its own amendment; and it is not compatible with reason, or with the principles of the Constitution, to commit anything to capricious fortune, in which reason and human rights are concerned. Gentlemen charge us now with a wish to press this amendment forward with precipitation; what do gentlemen mean by this? A few days only have passed, when the same gentlemen were eager for an immediate decision; they declared their readiness to decide immediately; that the subject was as well understood then as ever it would be; and that we delayed the decision to the exhaustion of their patience. The subject has, nevertheless, undergone a long discussion, and the time has only served to prove that the gentlemen were at first mistaken, or that the numerous amendments which they have brought forward have their origin in other considerations.
Mr. Adams had declared that he was ready to give his vote upon the amendment in the first stage; but it did not therefore follow, that when his opinion on the whole was not likely to prevail, that he should endeavor to render it as palatable as possible. He was totally adverse to any decision by lot, and agreed perfectly with the gentleman from Maryland, that it was not a mode suited to the principles of our Government. But gentlemen say there is a defect, and wish to provide a remedy. He had drawn up an amendment which he should offer to the House, if that of his colleague should not be approved. He confessed he did approve of the designating principle, and for one among other reasons, that the present mode is too much like choice by lot. For instance, A may be intended by a large majority of the people for President, and B as Vice President; yet the votes might be so disposed, or chance might operate so contrary to intention, that the votes for B should exceed by a vote those for A. This was a defect in the Constitution; and there was a further reason why he was in favor of the designating principle, and that was, that it appeared to be called for from all parts of the United States. It was very true, as had been observed, that some time ago the opposers of the amendment did press for a decision; but he had seen those dispositions prevail alternately; but the minority had not so much pressed for a decision as for the discussion of the question.
Mr. Pickering suggested his wish to substitute forty-eight hours for twenty-four, in his amendment; and if the election should not then take place, a choice to be made in such manner as the House should direct.
The question, on Mr. Pickering's motion, was then put and negatived, without a division.
Mr. Adams then moved the following amendment: In the 37th line, after the word "choice," insert--
Mr. Hillhouse thought that there should be provision made for the choice so made, to remain only until such period as the Electors could be called again.
Mr. Dayton hoped the gentleman did not mean to lay a larger patch upon the Constitution than the hole they make in it required. Had gentlemen considered, that when there is a Vice President, that in case of death or inability, he alone can exercise the powers of the Executive, and that you cannot place any person over his head?
Mr. Adams.--The gentleman is certainly right; he had offered his proposition hastily. The observations which arise in this discussion evidently prove that we have not as full a consideration of the subject as it is susceptible of.
Mr. Wright.--Gentlemen did not perceive that the House of Representatives are Constitutionally bound and impelled to choose when it devolves upon them: they are sworn to do their duty. The amendments offered are wholly founded on the presumed corruption of the House of Representatives. You may as well make provisions against the corruption of a jury.
Mr. Hillhouse.--There is another point which gentlemen appear not to have taken into view: how the objections of their oaths are to operate or be enforced, when the functions themselves expire on the third of March. There is another view of the subject, which ought not to be passed over: The members are sworn, to be sure, but one half of the House may sincerely believe that A is the popular choice; while the other half may as sincerely believe that the wishes of the majority are with B; and how are we to compel them by moral obligations, when the obligation rests wholly on the consciences of the individuals? The true principle, then, would be to make provision for the appointment of a person who should carry on the functions of Government till the Electors may again meet and choose a President. A provision vesting in the Senate the right of choice, even for one year, may be a motive for the other House to perform their duty promptly. It was not pleasant to discuss some topics, but we must discuss them, if we mean to avoid evil. We must suppose the existence of faction, of party, and even corruption, for we know that evil passions do and will exist, and that, by discussing, we guard against them. A House of Representatives elected two years before your Presidential election, may hold sentiments very different from him; the public mind may change in the time; and a party losing power may be led away by passion to conspire and throw every difficulty in the way.
Mr. Bradley thought the sentiments of the gentleman last up perfectly correct. He was satisfied that, if the House made no choice, the Vice President would administer the Government.
Mr. Wright said that although the functions of the House of Representatives would expire with the third of March, yet there was, assuredly, time enough between the second Wednesday in February, and the third of March, to make a proper choice; nothing but obstinacy, or worse, would prevent an election; he would shut them up, like a jury, until they had made a choice: he could not conceive a case wherein any number of men in Congress would dare to set themselves up against the country, and put its happiness and their own lives at hazard, in such a way as the gentleman supposed.
Mr. S. Smith.--The gentleman from Massachusetts (Mr. Adams) appears not to be perfectly satisfied with his own amendment; and certainly the gentleman from Connecticut had shown that the amendment was defective; the candor of that gentleman he must acknowledge, he had taken the strongest hold possible of the subject; he had laid the fruits of experience before you, and pointed out the weakness which you had to protect. He would recommend it to the gentleman from Massachusetts to alter his amendment, so as to make it, that, in case the House should fail to choose, then, in four days after, the Vice President shall be President.
Mr. Adams saw a new difficulty there also, for there may not be a majority for both, and provision will be necessary for the vacancy of the Vice Presidency.
Mr. Hillhouse thought there would be no danger of the Senate omitting to elect their President, who is, on a vacancy, the Vice President in fact. As to shutting the House up like a jury in a dark room, depriving them of fire, light, and food, he thought the measure too strong; he did not wish to see them at the mercy of the sheriff, who upon their laches might call in the posse comitatus, and trundle them out of the District, or send them to Coventry. If the House of Representatives should not make a choice, he saw no reason why the Government should not go on until an election should take place.
Mr. Cocke was astonished to see gentlemen going over so much unnecessary ground. Could they suppose the people so indifferent to their own rights as not to make an election? Or, do gentlemen mean all these cavillings as amusement--to display their ingenuity at finding fault? If there should be any failure of choice, why could not the Secretary of State arrange and carry on the Executive business until an election should again take place?
Mr. Tracy rose.
Mr. Cocke called for the question--the question!
Mr. Tracy.--Does the gentleman mean to call for the question while I am on the floor? I will not sit down upon such a call. What is the question, sir?
Mr. Dayton hoped the gentleman from Massachusetts (Mr. Adams) would withdraw his amendment.
Mr. Adams thought the deliberation of one or two hours could not be thrown away.
Mr. Wright hoped the decision on the amendment would not be pressed upon the House. What! is it proposed to take the choice of President out of the hands of the Electors and place it wholly in the House of Representatives, [Volume 5, Page 455] and tell them, hold out only four days, and you will then have the whole power in your hands; you may set aside all consideration for the wishes of your constituents--set popular opinion at defiance, and please yourselves by choosing a President of whom the people never thought? Gentlemen should avoid this dangerous path which they wish to prepare; the people will not bear to be frowned upon by those whom their breath has made, and can unmake.
Sir, it is our wish to prevent all these dangerous or fatal courses and consequences; and we should keep in mind, that whatever we may conclude upon here, is completely guarded, not alone by the necessary consent of the other House, but that of three-fourths of the States. The Constitution, sir, would be preferable as it is, without the odious and anti-republican forms which gentlemen propose to engross upon it. What, sir, determine a most important principle of effective government by a non-effective act--determine an election by holding out a temptation to nonelection! He should prefer having the choice open to the Representatives bound by oath, by duty, and by the Constitution, to such an alternative.
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An observation of the gentleman from Massachusetts (Mr. Adams) produced a sensation which at once showed that something besides the care of the people's rights had an influence here. He proposes that the proper officer, the Vice President, should succeed to the Presidential chair upon a failure of election or vacancy after a few short months. Whence arose the agitation and interest excited by this proposition? Is it because we wish not to see a man seated in the Executive chair whom the people never contemplated to place there, and who never had a vote?
Mr. Dayton.--You are about to designate who shall be President and who Vice President; and some gentlemen have gone so far as to favor the choice of one who had not a vote for either office. The gentleman from Massachusetts, (Mr. Adams,) indeed, professes to have in view the succession of the Vice President to the Executive Chair when vacant. But gentlemen should perceive, that if you designate, the principle will be totally changed. He could not assent to the conclusion of some gentlemen on another point. If anything could be understood from the Constitution more clearly than another, it was that the votes are given to two persons for President, and that, as has been observed before, the Constitution never notices a vote for the office of Vice President. How, then, can it be said which was the person intended? The gentleman from Maryland (Mr. Wright) had said that one of the candidates at the late election had not a single vote for President, while the official returns show that each and every vote was the same for both candidates as President.
Mr. Taylor.--That matter appears susceptible of a very simple explanation. There can be no question that in form, the votes for each candidate were equal; but that is not the question; the quo animo must be taken into view. Would any gentleman say no preference was intended? It is very true that such was the form, but looking to the well known intention, have you not in the very fact stated an evidence that the principle of designation is essential, were it only to prevent the consummation of an act never contemplated or expected?
Mr. Taylor, of Virginia, desired to withdraw his motion of the preceding day in order to accommodate the terms of his proposition to the wishes of gentlemen. His only object was to obtain the principle, and provided that was obtained in such a manner as to promise an accomplishment of the good intended thereby, he should consider the words in which the provision was to be couched of inferior moment. In lieu of the addition which he offered before, he now proposed to insert after the word choice, in the 37th line, the following words:
"And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the 4th day of March next following, then the Vice President shall act as President, as in case of the death or other Constitutional disability of the President."
Mr. Adams had no sort of objection to this addition to the paragraph; it reached his ideas as far as it went; but he conceived that though this made a very necessary provision for the case of the President, it did not go far enough, inasmuch as no provision was made in case there should be no Vice President. He would submit this case to gentlemen, that if there was no Vice President existing nor any more than a President chosen, in the event of a high state of party spirit, would it be difficult to foresee that there would be much room left for contention and evil? Unless provision should be made against the contingency, therefore, the amendment would be imperfect, in his mind. Like the gentleman from Virginia, he was not tied to words, but he thought it worth while to employ two lines to provide against the danger.
Mr. Pickering objected to the length of time allowed for the House of Representatives to decide. We have been told that the small States, from the smaller number of votes, are exposed to corruption; he wished no time to be left for corruption to operate, and he therefore desired that the period for the House of Representatives to decide should be limited to forty-eight hours or three days. . . .
The amendment was agreed to--. . . .
Mr. Adams offered another amendment, of the following effect, to be added to the provisions concerning the election of Vice President:
"And if there shall be no Vice President duly elected within ten days after the fourth of March, then the power and duties of the President of the United States shall be discharged by such person as shall be by law invested with that power, until such time as a new election by Electors shall take place.". . .
Mr. Hillhouse was not disposed to concur with the proposed amendment; he did not think a period of agitation a proper one to make choice of an officer of so much power; he would prefer making provision by law before the happening of the event; for, in a high state of party he could see no likelihood of an agreement, and out of [Volume 5, Page 456] disagreement confusion might arise. His wish was to have some person designated who should discharge the Executive duties until an election should take place, and that this officer should be previously fixed upon, so that party spirit should have no room for agitation.
Mr. Jackson could not discern the necessity of the proposition now offered; the case proposed to be provided against, he thought so extreme as likely never to happen. Besides, the mover appeared not to have taken it into consideration that one-third of the Senate go out at the close of the second session of every Congress by rotation, and would he have only two-thirds to make the law which was to provide for this choice? Upon the principle of the general amendment, he had not at first made up his convictions, but the amendment adopted had removed his doubts, and he thought this addition to this amendment unnecessary. He hoped the Senate would abide by that they had already agreed to, and preserve the right of choice to the people.
Mr. Wright.--There was another difficulty which the gentleman from Massachusetts appears not to have foreseen. To make a law it is not enough that the Senate are present even if complete; the House of Representatives is necessary to an act of legislation, and that body can have no existence after the fourth day of March, nor within the ten days suggested, for they could not, if all elected, be called even by proclamation within that time; and further, if there should be no election of President, there would be no power to convene Congress; so that the proposed addition is improper altogether.
Mr. Adams did not feel extremely solicitous for the proposition; when the Constitution is proposed to be amended, however, he was disposed to offer every suggestion which might appear to him calculated to render it more perfect. The objections offered by the gentleman from Georgia, highly as he respected his opinion, did not appear to him conclusive; for his calculations of time and circumstances do not entirely correspond with experience past. The President has at all times heretofore been inaugurated after the House of Representatives had closed its session by limitation, and the Senate had been uniformly assembled for the purpose of the inauguration. Here then is a body in session, and if there shall not be a Vice President chosen, they can and must proceed to choose one, and that choice would of course fall, as proposed, upon one of the candidates. The gentleman from Connecticut (Mr. Hillhouse) had mistaken his view, concerning the choice of a person by law; his intention certainly was to provide for the future contingency by a previous law.
Mr. Jackson still conceived the gentleman's proposition founded in mistake; for it would be impracticable for the Senate to act, since, according to the rules of the Senate, two-thirds of the whole are necessary to form a quorum; one third must Constitutionally go out of that body at the time, and the absence of a single member would disable the Senate from business.
Mr. Adams.--There would remain still two-thirds of the Senate, and it would be the duty of the Executive to call them together, as had been done in some cases; and as to the deduction of the third by rotation, there are several of the small States that elected their Senators several months before the period. To argue that they would neglect it, would be to argue that the States are indifferent to their representation on this floor.
Mr. Jackson--We know that vacancies do occur from other causes than indifference or neglect of States; we know that at this moment New York has but one Representative on this floor, and that New Jersey had but very lately been so much embarrassed by a faction as to leave her for sometime without more than one Senator.
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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 [Volume 5, Page 457] 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. What appears specious in theory, may prove very inconvenient and embarrassing in practice, and my objections go to any alteration of the Constitution at this time; we have not given it a fair experiment, and it augurs not well to the peace and happiness of the United States to see so much increasing discontent upon this subject, so many projected alterations to the great charter of our Union and our liberties; not less than four are now upon our tables, and which, if adopted, will materially change the most valuable features of the Constitution. The first alters the mode of electing the President and Vice President; the second changes the ground upon which the Vice President is to be appointed by the Senate, in case one is not elected by the Electors, according to the Constitution; the third extends the powers of the Senate in the choice of this latter officer beyond what was ever contemplated by the people of this country; and the fourth, which is not now immediately before us, goes to incapacitate any citizen from being eligible to the office of President more than a certain number of years. All these important changes we are about to introduce into the Constitution at once; and, indeed, were attempted to be forced into a final vote upon them, in little more than the space of one day from the moment they were submitted to us. Are we aware of what we are about? Is this the way in which the Constitution was formed? Was it put together with as much facility and as little reflection as we are tearing it to pieces? No, Mr. President, it was constructed after much thought, after long and mature deliberation, by the collected wisdom and patriotism of America, by such a set of men as I fear this country will never again see assembled; and we should be cautious how we touch it. The fewer changes we make in it, the longer it remains; the older it grows the higher veneration will every American entertain for it; the man born to its blessings, will respect it more than him who saw its birth; he will regard it not only as the great bulwark of his liberties, but as the price of the blood of his ancestors--as a sacred legacy from his father, deposited with him for the benefit of himself, and in trust for his posterity. But if, in this way, every succeeding Congress, every party enjoying the short-lived triumph of a day, shall be mutilating it with alterations, from whatever motives, either to thwart their political opponents, or to answer particular purposes, ere long no trace of the original instrument will remain; it will be kept in a state of tottering infancy, until some Gallic Caesar, turning to his advantage an unhappy moment of popular phrenzy, may make the last change, by trampling upon its ruins, and substituting the strong arm of power in its place.
What, sir, let me ask, are the objects of these proposed amendments? The first, we are told, will so mark, so designate the man to be President, as to close forever the doors upon that subject! Could this be the effect, the adoption of it would indeed be wise and provident; but I fear a directly contrary tendency, that will open a new and immense field for intrigue.
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. The present attempt, to say the [Volume 5, Page 458] least of it, as has been well observed by my honorable friend from Jersey, (Mr. Dayton,) is taking advantage of a casualty to alter the Constitution that astonished every one when it happened, and that no man can imagine, in the ordinary course of events, will ever arise again. Sir, every hour that is added to the age of our Government, every day's increasing population of our country, every State admitted into the Union, renders still more remote even this improbable contingency. Gentlemen have urged, with exulting confidence, and particularly the honorable gentleman from Maryland, (Mr. Smith,) that the people have long thought on this subject, and prepared for the amendment, and expect its adoption. I respect the sentiments of the people as highly as any man when they are well digested and clearly expressed; but in my mind this is a dangerous ground to advance far upon, without examining it well for ourselves; it is an argument that will apply alike to almost every question of importance, and goes to preclude debate upon them; for it is well known that there are few such submitted to us that have not been previously the subject of thought and speculative conversation out of doors. Ours is a country of politicians, and from the nature of our Government must continue so; every member of society feels such a portion of interest in the affairs of the nation as to excite inquiry; be his lot humble or exalted, be his sentiments right or wrong, he expresses them, as he is entitled to do, with freedom; but is it abroad in the country that the most important measures of the Government are to be matured and decided upon? Is it in private circles, in caucuses, in clubs, in coffee-houses, streets, and bar-rooms, that great Constitutional questions are to be settled? And are we convened here but to register the crude decrees of such assemblages, or only for the humble purpose of answering to the call of our Secretary with a yea or nay? If the argument proves anything, it amounts to this. Would the gentleman from Maryland, or any other honorable member, be content to hold his seat upon such terms? If so, he may indulge himself in one consolation, that no private citizen would envy him the place; but for myself I claim the exercise of higher and more responsible privileges of thinking and acting for myself, holding it my duty, so far as I am capable, to assign to my constituents the reasons that govern my public conduct.
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 cypher 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 [Volume 5, Page 459] 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, everything will be made to bend, in order to subserve the ambitious views of the candidates and their friends. In this angry conflict of parties, against 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 connexions, by his wealth, by his local situation, by his influence, or his intrigues, best promote the election of a President? He will be made the 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. Again, sir, if this amendment succeeds, if you designate the person voted for as President, and the person voted for as Vice President, you hold out an irresistible temptation to contracts and compromises among the larger States for these offices; it will be placing the choice of the two highest officers in the Government so completely in their power, that the five largest States, viz: Massachusetts, New York, Pennsylvania, Virginia, and North Carolina, may not only act in every previous arrangement relative to the appointment of these officers without the necessity of consulting the other twelve, but may totally exclude them from any participation in the election. The whole number of Electors, according to the present representation in Congress, will be one hundred and seventy-seven; these five States will have ninety-six of them, a clear majority of eight, and should they agree among themselves they can say absolutely who shall be the President. The other twelve States will not have even the humble privilege of choosing between their candidates; for their whole number of votes being but eighty-one given to the candidate for the Vice Presidency as President, would be but thrown away, since the other would still have his designated majority of eight for that place. Should it be said that such a coalition is improbable, I answer that my opinion is different, and it is enough for me that it is possible. Again, sir, counting only the States of Massachusetts, New York, Pennsylvania, and Virginia, these four will be found to be entitled to eighty-two Electors, wanting seven of a majority of the whole number; so that, leaving North Carolina among the smaller States, if they unite, and can by any species of influence, by promises of offices, bribery, or corruption, gain over to their interest but seven of the Electors belonging to the other States, they can in like manner appoint who they please. I might go on to show that lopping even Massachusetts from the list, the other four, viz: New York, Pennsylvania, Virginia, and North Carolina, could with very little difficulty effect the same object, since they are entitled to seventy-seven Electors. And now let me ask gentlemen representing the twelve smaller States, if they are prepared to yield up not only the high and honorable ground upon which the Constitution has placed them in the House of Representatives in case of an election for a President to be had there, but to vest in the five larger States, or even in a smaller number of them, whenever they shall be pleased to exercise it, the exclusive power of appointing the President and Vice President of the United States?
Again, Mr. President, admitting these coalitions of the larger States, of which I have been speaking, for the purpose of appointing a President and Vice President by themselves, may none of them ever take place under this amendment, if adopted, notwithstanding its strong and natural tendency to such an effect, (and this is certainly admitting much more than gentlemen on the other side of the House could in argument have any right to demand of me,) yet there is one other which I am sure, in candor, they must grant me, is not only possible, but very probable, indeed, upon a subject of this kind--I mean the States of Virginia, North and South Carolina, Georgia, Kentucky, and Tennessee, together with the Territories upon the waters of the Mississippi, that are every day growing into States. And such is the rapidly increasing population of that country, that, after the next census, it will be forever in their power, upon this designating plan of election, to appoint the President and Vice President of the United States. The other ten Middle and Eastern States will have only to acquiesce in the choice, without, as I before observed, the power even of electing between the candidates, and much less the right of being consulted, in the first instance, as to the suitable and proper characters. Gentlemen will, I hope, do me the justice to believe that I mention these coalitions as likely to be entered into, only in relation to this particular object. I have no doubt but that these States are as well disposed, and as much attached to the Union, as any that belong to it; but who does not know the indissoluble bonds that will bind together the citizens of that Southern and Western country, in the pursuit of an object of this kind? Their similarity of manners, of habits, of laws, of civil institutions, of local interests, added to their native prejudices and ties of consanguinity, unite them inseparably, and make their views the same. Yet gentlemen, to my utter astonishment, tell us that this amendment is intended to preclude intrigue. Sir, no other measure could be adopted that would so effectually produce it. It will create ill blood between the smaller and the larger States--between one part of the Union and another. [Volume 5, Page 460] It will give rise to local prejudices, to envious territorial distinctions, to State schisms; and I should not wonder if, in the end, it were to be the means of plunging this country into a civil war, and of producing a separation.
As to the second and third alterations proposed in this resolution, that of enlarging the ground upon which the Vice President may be appointed by the Senate, by giving them authority to elect from the two highest, whenever no person has a majority of the whole number of votes, whereas now they can choose but in the case of two persons being upon a vote, and thus extending the powers of the Senate in the election of this officer, they would, at first view, seem to be mere matters of speculation, introduced for the sake of change only, or for the want of something else to employ ourselves about. No inconvenience is even pretended to have been experienced under those provisions of the Constitution, as they now stand; yet we, in the plenitude of our wisdom, are about to recommend to the several State Legislatures an alteration of them; and so every successive Congress, which will no doubt in the same ratio as the present be more wise, more learned, more enlightened, and more patriotic, than their predecessors, will improve upon our example, until the Constitution shall be entirely regenerated. But the gentleman from Vermont (Mr. Bradley) now tells us--and I believe correctly--that these amendments, though not before contemplated, result necessarily from the introduction of the designating principle into the Constitution. Does not this show us, most clearly, the danger of meddling with the Constitution at all? Out of the single amendment proposed by the gentleman from New York, (Mr. Clinton,) that of designating the person voted for as President, and the person voted for as Vice President, these two other very important changes have already grown--have forced themselves upon our consideration; and another of still greater importance immediately presents itself, which gentlemen on all sides seem to think must shortly follow--that of abolishing entirely the office of Vice President. Several honorable members have told us that their minds have long been made up on this subject; that they had long since seen the necessity of introducing this change in the mode of electing a President and Vice President; but never before saw its operation upon other parts of the Constitution, or that any other alterations must be the necessary consequence of its adoption. The honorable mover of this subject, from New York, who, according to his own account, had been two years maturing it in his mind, and who pressed the immediate adoption of it, with even more than his usual eloquence, had never before seen the bearing of his own resolution upon the Constitution, and was himself one of the first to vote for striking out part, and to second a motion of a gentleman from Vermont, (Mr. Bradley,) who I do not now see in his place, for a very important amendment to another part, of it. Indeed, sir, after all the deep deliberation bestowed upon it by the learned mover, the resolution, as at first introduced, provided very carefully for an impossible case, that in the nature of things could never happen--that of two candidates, upon the designating plan of election, having each a majority of the whole number of votes for President. Added to all this, sir, recollect the awkward and embarrassed situation of the Senate for a week past on this subject. Every step we have taken has involved us in new difficulties. We have several times been so completely lost in the mazes of our own amendments as to be under the necessity of adjourning, in order to have them printed, that we might see what we had done; and no sooner were they laid before us, than they directed our eyes to some other part of the Constitution where an unexpected injury had been sustained; and all this has arisen from the attempt to introduce the designating principle into the Constitution. The favorers of the amendments have been alternately at variance with themselves and with each other, and sometimes so scattered that no two of them could agree; at other times, all were entirely lost. These are the most irresistible arguments, the strongest circumstances, to show how dangerous it is to attempt any alteration in the Constitution; and that, as has been urged on a former occasion, every comma has its meaning. You cannot strike out a word from one section without inflicting a wound upon some other. So nicely has it been woven together, that no thread can be spared. Every principle it contains is a keystone, and no one of them can be removed without endangering the edifice. No man can tell how these amendments may operate--how they enfeeble and shackle other parts of the Constitution--or what other alterations they may render necessary. Look at this paper now, and recollect what it has been. At different times it has assumed different shapes--at one time proposing but one alteration; at another, four or five. Thus one alteration will beget the necessity for another and so we shall have to go on in this work ad infinitum, as the regular series of cause and effect. It may be said that this second amendment, so far as it goes to extend the powers of the Senate in the election of the Vice President, if adopted, may prove advantageous to the smaller States. I grant the possibility, but such advantage is too casual, too remote and unimportant, to induce me, as a Representative from one of the smaller States, to vote for any alteration in the Constitution. It is the true interest of the smaller States, especially, to preserve sacred and untouched the Constitution and not be weakening it by alterations--expecting temporary advantages that may or may never arise; and which, if attained, would be little--would be less than insignificant--compared with the infinite importance of this instrument to those States, as it stands at present. Their independence, nay, their very existence, as States, hangs upon their preservation of it. They could never get such another, and they should be the last to tamper with it: when they do so, they risk their only stake. And now let me entreat gentlemen representing the twelve smaller States in the Senate (for it is here, and here only, they are felt in the Government) to weigh well their amendments before, by their affirmative votes, they do an act that may encroach upon the Constitutional rights of those States. I know well that, with some of the States, it is the highest source of mortification that the Constitution has placed the larger and smaller ones so nearly upon an equality in certain respects. The pride of some of the larger States will, for instance, never submit that, by any possible contingency, [Volume 5, Page 461] the State of Delaware, of Rhode Island, of Vermont, or New Hampshire, should have an equal voice with them in the choice of a President, as in case of an election by the House of Representatives. This is an evil that must be cured; and if alterations shall prove insufficient, a more effectual remedy, I fear, will be prescribed, the moment that the national pulse can be prepared for the application.
So far, Mr. President, as human wisdom, or rather human frailty, might be permitted to judge of the future from the past and the present, I should think it no act of rashness to foretell that the next alteration attempted, will be to destroy the influence of the smaller States in this branch of the Legislature, not directly by expunging that provisions of the Constitution which gives to each State an equal representation upon this floor, for that cannot be done with the consent of every State, but indirectly in conformity with the idea of the gentleman from Kentucky, (Mr. Breckenridge,) expressed the other day, by shortening the period for which Senators shall be elected, and which, in effect, will amount to the same thing. I know too well the weight and influence of the gentleman from Kentucky in this Government at present, to treat lightly what he says upon a subject of such magnitude, and must consider the charge of aristocracy, which he has been pleased to bring against the Senate as the denunciation of this body. Indeed, sir, I shall not be surprised to hear at the next session, that the people are prepared for the change, or even that some of the smaller States have recommended it, for such is at present the infatuated confidence of many of them in those who, I fear, are encompassing their ruin, that they seem to be constantly acting under instructions, and to have resigned both themselves and the Constitution to the guardianship of others. The gentleman from Virginia, (Mr. Taylor,) in order to lull our fears and divert our attention from the threat uttered by him to the smaller States, has very artfully called the alarm sounded on that subject by my honorable friend from New Jersey, (Mr. Dayton,) at one time a stratagem, and at another an ambuscade; and asked, how he, as a general, could lay an ambuscade so unconcealed, so exposed to the enemy? Sir, we resort to no stratagems or ambuscades, our opposition is public, and our movements undisguised; and it was on the part of my friend only a prompt attack upon an ambuscade laid by the gentleman from Virginia himself, who has been entrusted with the chief command in this campaign, and which by him had been incautiously too soon uncovered; whilst gentler means succeed so well, threats are unnecessary, and might be dangerous. I was not a little surprised, Mr. President, to hear an honorable member from Maryland, (Mr. Smith,) after reminding us that he belonged to a small State, come out on this occasion the mighty champion of the large ones, and whilst exhibiting himself to the greatest possible advantage in this new and enviable character, calling upon my friend from Massachusetts before me, (Mr. Adams,) to know why he, representing a large State, had been pleased to give himself any concern about the interests of the small States, intimating that such conduct concealed views not intended to be discovered, or, in the courtly language of the day, that it was stratagem; I wonder it had not been an ambuscade too. The honorable member from Virginia (Mr. Taylor) has prudently attempted to conceal again the ambuscade that had been so much annoyed by the fire of my friend from New Jersey, endeavoring to soften down and explain away an expression used by him, and which, by a very natural construction, was considered a threat to the smaller States; the gentleman has indeed told us since that he intended no threat, and we are bound to accept his explanation. I mean not to scrutinize his meaning, especially after what the honorable member has said; but let us see how far the gentleman from Maryland was correct, when he declared that his friend from Virginia had used no language that could amount to a threat to the smaller States. If, sir, the language, I will say the menacing language of the gentleman from Virginia used on this subject, taken according to its common import, was not sufficient to rally and unite the smaller States, then the rancor of party has stifled more noble sentiments, we are a house divided against itself, and our day has passed.
After reproaching us with our weakness, the gentleman proclaimed in the language of triumph, (for I will give his very words as noted down by myself and others at the time,) "Let the smaller States beware how they rouse the resentment of the larger ones. What," asked he, "must become of them in such a collison?" And is this no threat? Sir, I answer, we might sink; but it is to avoid this very collision that I resist, with my feeble efforts, the present measure. We are now safely entrenched behind the barriers of the Constitution, and shall we ourselves demolish this great bulwark of our defence? Shall we not rather make our stand here, whilst the means of protection and resistance are within our power? Ambition is insatiable; the more we give up the more will be demanded of us, and every inch of ground we yield, the less tenable does the rest become. The honorable member from Virginia has told us, that the present mode of electing the President and Vice President was the road to Monarchy. I have often, sir, heard it intimated, that the Government of the United States had a tendency to Monarchy, a doctrine I could never accede to, (I mean as the Government is at present organized.) I speak and judge from things as they now present themselves; what effect these many speculative changes that are at present taking place in the Constitution may have, I know not, I presume not to foretell. but one thing was, years since, foretold and denied, and I now call it up to the recollection of gentlemen on the other side of the House, not to upbraid or offend them--but short-sighted man feels a kind of pleasure, (it is indeed though, Mr. President, on this occasion a melancholy one,) in having foretold truly the events of futurity. It was foretold that the Constitution would not suit those who were coming into power; that it was obnoxious to them, or to their leaders, which is in effect the same, and that the moment they should lay their hands upon it, if they could not get rid of it entirely under the pretence of amending and altering, they would fritter it away, until the shadow, the empty shadow, should remain. How far the proceedings of this session, which is the first that the present majority ever consisted of two-thirds of both branches of the Legislature, [Volume 5, Page 462] will go to justify this prediction, I will leave the world and the consciences of those honorable gentlemen on the other side of the House to judge. But such was the anxiety on this subject, that scarcely had we convened before the long wished for, hallowed work, was commenced, and the order of almost every day since has been a resolution to alter the Constitution. If, sir, the Constitution was suffered to remain as it is, I have no idea, from my acquaintance with the people of this country, and from the nature of our civil institutions, that any set of men, entrusted with the management of our public affairs, could ever, by a system of measures tending to such an end, succeed in the subversion of our rights and liberties. The people watch their servants with a jealous eye. If they err at all, it is on this side, and this is the safe side. No, Mr. President, what we have most to fear to our Government, and our liberties, must come from another and a very different source, from the licentiousness of democracy. This is what Republican Governments have forever to guard against; this is the vortex in which they are most likely to be swallowed up. God grant it may never be the case with ours, and I fear nothing else. By the licentiousness of democracy, I mean no imputation or offence to any portion of this community; I refer not to the political sentiments of any honorable gentlemen, or to the sentiments of their constituents--but to that wild infuriated spirit that we have seen in France, under the prostituted name of liberty, anarchizing the world, and rioting in the destruction of everything dear and valuable to society; and after having sported itself in all the wantonness of excess with the terrors, the crimes, the miseries and the murders of mankind, has seated a Corsican adventurer upon the high and dignified throne of the Bourbons--has riveted the manacles of tyranny upon a great, a brave, but a deluded people, and is now reclining in the shade of a military despotism.
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Mr. Cocke.--The gentleman from Delaware thinks the minority should govern--that is his argument, however he may disguise it. I think the majority should govern; I like to speak out--I do not wish to have a man put upon us contrary to our wishes. What! shall the majority abandon the right of choosing a man whose opinions are conformable to theirs, and suffer a man of principles hostile to theirs to be put upon them? I am, sir, for a government of the people, whether well born or born by accident; I am for a government not of checks and balances, but one that will not suffer a bad check upon good principles.
But we are once more told of a Gallic Caesar, and our fears are to be provoked this way too--but this more than the rest of alarms will not do; we fear no Caesar, foreign or domestic. We have indeed seen the day when we were near getting a President not of our choice; but because we have escaped from the danger and the intrigue of that day, are we to take no precaution against such measures again. It is to guard against such danger we wish to amend this Constitution. But gentlemen tell us we have not given it a fair trial. I think we have, and found it defective. Here we have been a week and upwards, laboring and bewildered in every kind of discussion, and what have we come to? exactly where we set out. Not one of us has altered our opinions--we have argued and listened and done nothing. Why? Because gentlemen have been attempting impossibilities; there is no such thing as moving either side from their principles. One side thinks the minority should give the law; we think with the Constitution the right is in the majority, and we will submit to no other law. I am for the amendment, and for a discrimination.
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It has been said, the people require this amendment; but of this fact we have no evidence.
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?
This amendment is designed to prevent the evils that occurred at the last Presidential election. That was an extraordinary event; it was a casualty that can seldom happen. Two men had a majority of all the electoral votes, but [Volume 5, Page 463] neither of them was chosen. But what was the consequence? Why, the House of Representatives in a peaceable manner completed the choice, and that, fourteen days before the President could enter upon the duties of his office. It may be desirable to prevent the choice being carried into the House of Representatives, but this amendment will not do it. It expressly provides for such an event. And if two or more candidates of different parties are carried there, (and if the state's parties should be nearly equal it will happen,) the House must then decide between candidates of different parties.
Mr. P. said that the amendment appeared calculated to give power to the strong; enfeeble and weaken the small States; to lessen the respectability of the Vice President, and not to prevent the evil it was designed to remedy; and therefore that he should vote against it.
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Mr. Tracy. . . . The merits have never, until now, been before us, for, although considerable time has been consumed in debate, it has chiefly been directed to the subordinate amendments, and not to the main resolution. But, since the Senate have refused to adjourn, I will now offer some observations on the merits; in doing which, I will study brevity, as much as the importance of the subject will permit.
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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 jealously 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 forever 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 [Volume 5, Page 464] 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 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 principal 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.
For this identical purpose is the principle of electoral discrimination and designation introduced into the resolution before you; for the same purpose is the number of candidates reduced from five to three, from whom the House of Representatives may elect, in case of electoral failure of choice; that is, to destroy or diminish the agency of the small States in the choice of President.
For what purpose else are we perpetually told and from all parts of the Senate, that the public will is opposed by the present mode, and public will cannot be gratified, without the introduction of the discriminating principle?
By the public will thus mentioned, the gentlemen mean the will of a popular majority, or, the will of the great States, which in this case, I repeat it, are the same. How is [Volume 5, Page 465] it possible for the gentlemen to increase the chances of gratifying this description of the public will, without decreasing the agency of the small States?
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 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 but 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 apointments 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?
. . . . .
The Constitution is of recent date; it was formed by the mutual concessions of conflicting parties, and balanced with a view to the securing of all. Experience alone can test its utility, and time and practice discover its faults. It is a sound position that you should never attempt an alteration in an instrument so complicated, and calculated to serve so many various and opposite interests, without being able, by the test of experiment, to discern clearly the necessity of alteration, and without a moral certainty that the change shall not only remove an existing evil, but that it shall not produce any itself. The article in the Constitution establishing the mode of electing a Chief Magistrate, and which is now proposed to be altered, was undoubtedly one of the most difficult parts of the whole at its formation. I am convinced, sir, that the public mind is not sufficiently impressed with the difficulty of adopting, not only an unexceptionable but even a tolerable and practicable mode of electing a Chief Magistrate, possessing such important and extensive powers as are Constitutionally vested in the President of the United States. An attempt to detail the number and magnitude of his powers, to this Senate, would be impertinent. But it must and will be acknowledged by all, that the President is vested with powers vastly extensive and important, and that he will bring with him into the Government more or less of State politics and State prejudices, and these facts, to which may be added the probability that he will be taken from a large State, must have increased the difficulties of the Convention in fixing on a mode of choice.
How often have contests, wars, and bloodshed, the destruction of confederacies, of liberty and of vast portions of the human race, arisen from the election of Chief Magistrates? When we consider that the powers vested in the President of this Union are sufficiently important to excite the avarice and ambition of the human heart, its two most active principles, to gain possession of the office; when we consider the difference of sentiment, habit, and interest, in this country; State pride and State jealousy, which could never be laid asleep; the difficulties of fixing upon a proper mode of election must be also infinitely multiplied. And yet this article is now selected for alteration. All the amendments which have been hitherto adopted, went to some general explanation upon very general principles, not changing but rather expounding the Constitution.
This, as I have before said, is taking up the most difficult and most important article in the Constitution, both in relation to rights and principles. But it is said that experience has shown us the necessity of an alteration in this article; that an evil has been found in practice to grow out of the Constitutional provision, which calls imperiously for remedy.
At the last election of President two persons had an equal number of votes, and that number was a majority of the votes of all the Electors appointed, which circumstance gave the House of Representatives a Constitutional right to select one of them for President. In exercising this Constitutional right, they voted by States, and there was at first a division, no choice being made until the sixth day; when an election was effected, of the very man whom the great States, and the advocates of this resolution, wished.
It ought to be noted here, that although they voted by States, yet it happened, in this division, that a majority, in point of numbers, voted for the person as President who eventually became Vice President. As to intrigue, by either of the candidates, or by their friends, I know of none; the [Volume 5, Page 466] sentiments and conduct of the Vice President, as published, were perfectly fair and honorable, containing a declaration of his wishes not to stand in the way of the other candidate.
After the view of the Constitution which we have taken, and comparing this fact, or set of facts, with the provisions for electing a President, we shall really be at a loss to find out the mighty evil, which the experience of this election has discovered, and which is said to call so imperiously for a remedy. But the advocates of this resolution have had the goodness to put their finger on the spot. They say, that in the certificates of the Electors, Mr. Jefferson's name stood first; this is called a sort of record testimony, and, in addition, some, if not all the Electors said they meant to elect Mr. Jefferson President, and Mr. Burr Vice President; and this is declared to be the public will, expressed by the Constitutional organ, the Electors. Notwithstanding this expression of the public will, say the gentlemen, a large portion of the House of Representatives withstood and opposed the public will for the space of six days, and wilfully voted for the man to be President, who, they knew by the evidence just mentioned, was meant to be Vice President. One gentleman (Mr. Wright) has said, that if he had been a member of that House, possessing such sentiments upon the subject as he now does, such voting would in him have amounted to the crime of perjury, or words to the same effect. I mean to quote his ideas, as expressed, and believe I have given nearly his very words. And, it is added, that thus there was imminent danger of a person being imposed upon the United States as Chief Magistrate, who was not originally intended for that high office, and that civil war must have been the consequence; and, as is common in such cases, the picture is filled--in the back ground, with brother raising his murderous hand against brother, father against son, and with an afflicting group of et ceteras; and to avoid a repetition of this tremendous crisis, as it is called, the present resolution, it is said, must pass.
Let this statement of facts be kept in view while we examine the duties assigned by the Constitution to the several agents concerned. The duty of the Electors is precisely defined. They are each to bring forward two candidates fully qualified for President, because they cannot know at the time of giving their ballots upon which the choice will fall. The circumstance of two having a majority, and both being equal in number of votes, is an expression of the public will, through the only Constitutional organ, by which, in this case, the public will can be expressed, that both had the requisite qualifications. The public will, then, was in this instance clearly and unequivocally expressed, by a Constitutional and numerous majority, that both candidates were worthy of the office; but here the expression of the public will ceased, and which of these two should be President was now to be decided by another Constitutional organ, that is, by the House of Representatives, voting by States.
The framers of the Constitution so intended, and the people who adopted it have so ordained, that their will in this case should be expressed by a majority of the States, acting by their representation in the House of Representatives. The right of selection is a right complete in itself, to be exercised by these second Electors, uninfluenced by any extraneous consideration, and governed only by their own sense of propriety and rectitude. The opinion of the people had been expressed by the Electors, but it only reached a certain point, and then was totally silent as to which of the two should be President, and their sense upon this point could only be collected through their Constitutional organ, the House of Representatives, voting by States. Any interference of the first Electors, or of an individual or individuals, must be informal and improper. The advice of sensible and candid men, as in every other case, might be useful; but could have no binding force whatever. The first Electors had no right to choose a Vice President. To claim it was overstepping their duty, and arrogating to themselves a power not given to them by the Constitution.
If there is anything in this whole transaction which has the most distant appearance of a breach of duty, it was in the Electors, by attempting to designate, and by exercising the important office of an Elector under the influence of improper motives; that is, by officiously attempting to decide the question, which of the two persons was proper for Vice President, which they were constitutionally incompetent to decide. By this conduct they attempted to break down an important guard provided by the Constitution, and improperly to release themselves from its obligations, which made it their duty to select two men qualified to be President. But if there can be a shadow of reason in this claim of the Electors to designate under the present Constitutional regulations, of which, to doubt, seems to be so heinous, what necessity can there be for this amendment? The object of the amendment, or certainly its chief object, is to establish the designating principle; but why this, if it can already be effected by the simple mode of placing one name first on the ballot, which is so easy to be done that it can scarcely be avoided? And if done, by the doctrine of gentlemen, it is so far binding on the House of Representatives, that if they even doubt, they are damned?
The fact certainly was, that at the last election, the great States brought forward the two candidates. They were both of the same political sentiments. This they had a Constitutional right to do. But it now seems that their language to the small States was: "because you will not give up your Constitutional rights to us, and let us go on and designate, we will stir up a civil war, and lay the blame to you; and of this improper conduct of ours we will take the advantage, and obtain an alteration of the Constitution, which will hereafter gratify us in every respect." A gentleman from Maryland (Mr. Smith) had said, that he heard, though he could not prove it, that the Federal majority, at the time of the last election, contemplated making a law authorizing or appointing some person as President, in case no choice had been made by the House of Representatives. I was then, sir, a member of the Government, and knew nothing of such a project; it might have been so; but supposing it was, what then? Why, says the gentleman, the person thus appointed could not have kept his head on his shoulders twenty-four hours; and this would have made a civil war. If the majority now should contemplate a measure [Volume 5, Page 467] which the Constitution does not authorize--as it clearly did not authorize the measure suspected by the gentleman, though he cannot prove it--the best thing in the world for them to do would be to give up, without any attempt to effect it, as it seems the Federal majority did. But what argument all this can afford in favor of the amendment, or why it was mentioned in this debate, is beyond my comprehension. In the result of the last election, the great States and the ruling political party were certainly gratified, and there does not appear the least reasonable ground of complaint against the small States, in the use of their Constitutional rights on the occasion. All support, therefore, to the amendment, drawn from that transaction, must fail.
I have said that the article fixing the mode of electing a Chief Magistrate was, from its nature, attended with many difficulties. A more strict inquiry into the Constitutional mode, and a comparison of it in some other and more particular points with the proposed alteration, will be useful in forming an opinion of their relative merits.
As the Constitution stands each Elector is to write the names of two persons on a piece of paper called a ballot. Either of the two persons thus voted for may be President, and the Elector cannot know which. This affords the most powerful inducement to vote for two, both of whom are qualified for the very important office. For it is not only uncertain upon whom the choice will fall at first, but the one remaining will certainly be President upon any contingency which shall remove or incapacitate the first. The Convention seem to have selected a mode of proceeding the most simple, the least liable to accident, and the best calculated to insure the main object, that is, that both should be really worthy of the trust. If one candidate wishes to make interest with the Electors, as each must vote for two, it will be impossible for bribery or intrigue to succeed; for, without corrupting the whole, or certainly many more than half, he may be defeated by the other candidate on the ballot. This is, perhaps, the most effectual bar to intrigue that was ever contrived; for, unless all, or a great proportion of the Electors are corrupted, an extreme case of depravity not probable in any country, intrigue can have no assurance of success. The danger and difficulty which must always attend such an important election as that of Chief Magistrate of the United States, was meant to be avoided by diminishing the chances of its frequent recurrence. So, two persons are placed in condition to act as President in succession, to prevent both the evils of vacancy and a recurrence of choice more frequently than once in four years: and it seems merely incidental to this second person to be called Vice President, and neither the first nor second description of Electors can have any right to vote for him as such. Indeed, he can have no existence till the first character is designated, and then seems to be discovered, not elected. The Senate, in case of an equal number of votes for two or more remaining persons, after the President is elected, are vested with authority to choose a Vice President, for as such he is to preside over this body, and this body therefore seems to be the only Constitutional organ to designate him. Both the other descriptions of Electors have nothing to do with such a character or office, but are confined to act with a single reference to the character and office of President, and are trusted with no power to give any opinion of the character or qualifications of a Vice President; and it is remarkable that there are no appropriate qualifications made necessary by the Constitution for a Vice President; but every qualification has reference to President. There is another important feature in this part of the Constitution. It was known by the Convention that in this country, in common with all others where there is freedom of opinion and of speech, there would be parties. They likewise knew, that the intolerance of the major or ruling sect and political party, was frequently exercised upon the minor party, and that the rights of the minority ought to be protected to them.
As well then to secure the rights of the minority, as to check the intolerance of the majority, they placed the majority in jeopardy, if they should attempt at grasping all the benefits of a President and Vice President within themselves, to the total exclusion of the minority. This very case which happened at the last session was contemplated, in which the majority attempted totally to exclude the minority from any participation. The language of the Constitution to such majorities is, "take care that you aim not at too much, for if you do, it is put into the power of the minority to check you, and, by a judicious disposition of their few votes, determine the choice of President." To avoid this event the majority will probably be cautious in the exercise of power; and thus the rights, the proper weight and influence of a minority, are secured against the conduct of the majority, which is certainly liable to be intolerant and oppressive. In this respect the spirit of the Constitution is, political moderation. And it is clear to my mind, that the experience of the last election has taught a lesson to all majorities, which will in future completely secure them from again incurring a similar risk. I recollect well that it was thought probable, when the electoral votes were given, that Mr. Burr would have a vote or two in some of the Eastern States. If he had received but one, he would have been by an electoral choice the Constitutional President. If the majority in future have powers of recollection, they will undoubtedly avoid the evil, if it is one, which happened at the last election, with such unfailing certainty, that there will be no need of the remedy proposed by the amendment. But the majority say, if their votes are so scattered for one candidate as to avoid this danger, that another will be incurred; and that is, the minority will elect a Vice President. The language of the Constitution to them is, again, "that this was meant as a security for the minority against the majority." But the majority exclaim against both these provisions as very unreasonable indeed. "What!" say they, "are minorities to govern majorities?" The answer of the Constitution is, "no, but their due weight and influence shall be secured to them, and the danger of your intolerance guarded against." For the security of small States and minorities, there is in the Constitution a mixture of the federative with the popular principles. And as it is well known that when popular majorities alone prevail, and exercise power uncontrolled by Constitutional checks, the minorities, who [Volume 5, Page 468] generally possess their proportion of integrity and virtue, are overwhelmed, and liberty itself, by the same means, destroyed; so it is in kindness to both parties, to the country and to humanity, that these wholesome checks are Constitutionally provided. Had the majority or the great States been willing fairly to have submitted to the Constitutional checks in the last election, no evil could have happened. And it is remarkable that the Constitution completely protects them, as long as they obey its precepts, in the creation of which they had an agency, and to which they have solemnly agreed. To prove that I am correct in these ideas, I not only refer to the Constitution but to the Secretary of State, (Mr. Madison.) In the Virginia Debates, volume 1, page 96, he says:
"But on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions which, in Republics, have more frequently than any other cause produced despotism. If we go over the whole history of ancient and modern Republics, we shall find their destructions to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the resources of that diversity of sentiments which pervades its inhabitants, we shall find great danger that the same causes may terminate here in the same fatal effects which they produced in those Republics. This danger ought to be wisely guarded against. Perhaps, in the progress of this discussion, it will appear that the only possible remedy for those evils, and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression."
Mr. President, it has been often said by the discerning and judicious of this and other countries, that our Constitution, for its brevity, its comprehensiveness, its perspicuity, and the political skill contained in it, was the best State paper extant. I believe all this and even more is a tribute justly due to its merits; and I am persuaded that the article which fixes a mode for the choice of a Chief Magistrate stands most prominent among its excellencies.
Let us now, sir, examine and compare the merits of the amendment with a special reference to this last view we have taken of the Constitutional provision.
The amendment authorizes the Electors to vote for a President and Vice President by a specific designation. Is ambition in your country? Here is a direct and inviting object for its operation.--Is the integrity of your Electors assailable? You place it here in the most encouraging attitude for an assault. A fear of detection, and a sense of shame, upon the exposure of an improper action, has been, perhaps, a better security against political errors or crimes, than all the moral virtues united, when the temptation has been attended with an impossibility of detection. An intrigue with an Elector can be carried on without much danger of detection; but when your election is carried into the House of Representatives, besides the ordinary weight of character in favor of the members of that House, a detection of an intrigue with a candidate is almost certain. It will be recollected that at the last election two or three members held the choice perfectly in their own hands. If I mistake not, three gentlemen, that is, a member from New Jersey, a member from Vermont, and one from either Maryland, Delaware, or Tennessee, could have given a President to the United States. The particular gentlemen mentioned were above suspicion of bribery; but, in addition to this circumstance, if they had in the contest gone over from improper motives, or under the influence of bribery, a detection was certain.
This will remain forever the criterion, as it respects the relative danger of intrigue and bribery, in the two modes of choice. And the amendment is avowedly intended to secure a choice by Electors, and to prevent a resort to the House; because, says the gentleman from Virginia, (Mr. Taylor.) "if you permit the election to go into the House, there are small States, and minorities, and all the evils of a diet election;" meaning that corruption must be the consequence. But, he says, "let there be a divided election by the Electors, meeting by States separately, and you lessen the tendency to corruption." This may look plausible in theory, but I think practice will show its fallacy.
It may be better for the Electors to meet by States than for all to be together, but this can never prove that they are less liable to corruption than the House of Representatives; which is the only point in question.
The manner of electing the Vice President, as proposed by the amendment, not only invites ambition to an unchecked operation, but exposes us to the selection of a less important and more unfit person than the Constitutional provision. In addition to his importance in the Government, arising from his incidental succession to the Chief Magistracy, the Vice President is ex officio President of the Senate, and gives a direct influence to the State from which he is chosen, of a third vote in this body, in all cases of equal division, which are usually the cases of most importance. Besides, his influence as presiding officer is, perhaps, more than equal to the right of a vote. It becomes therefore peculiarly important to the small States, and to minorities, whose security rests in this body, not only that their influence in the election of Vice President should not be diminished, but that no measure be adopted which may tend to bestow the office upon an unworthy character. By the proposed amendment, this character must necessarily become a sort of make-weight and stepping-stone for the Presidency. As in recruiting for an army, a man, active, and of a particular cast of character, but not very proper for a Commander-in-Chief, is employed to obtain recruits, and, upon condition that he obtains a given number, is to be rewarded with a sergeant's warrant; so, in this case, the man who can procure a given number of votes for President will be encouraged to hope for the Vice Presidency; and where will such characters be sought after? In Delaware or Rhode Island? No, sir, but in the great States; there the recruiting talents will be put in operation, because the number of recruits, or votes, will be sufficient to [Volume 5, Page 469] test his active and recruiting merits. And thus the office of Vice President will be sent to market with hardly a possible chance to meet an honest purchaser.
I have already remarked upon the alteration made by the Senate in the resolution passed by the House of Representatives, changing the number five to three. But, one addition, made this morning, deserves attention. I mean that which authorizes the Vice President to administer the Government in case neither the first nor the second Constitutional Electors effect a choice of President. This is a new principle, and its operation is more uncertain than that of any other part of the proposed amendment. Viewing it in one point of light, it may be thought to confer a new power upon the Senate, that of giving a President to the Union. And, it is said, that this part will recompense the small States, who have the ascendency in the Senate, for the injury inflicted by the other parts of the amendment. If it be true that the last part restores all which the former parts have taken away from us, it is inconceivable why any man can wish to pass a resolution the parts of which thus mutually destroy each other. It is possible that, by the force of intrigue and faction, the Electors may be induced to scatter their votes for both President and Vice President, in such manner as to present several candidates to the House for President, and two or more to the Senate for Vice President; in which case the senate might immediately choose or select a Vice President. In this state of things, there is an opportunity afforded for intrigue of a very extensive and alarming nature. The Senate, I mean a majority of them, might wish that the man whom they had elected Vice President should administer the Government, and if the House could be prevented from agreeing, their wishes would be gratified. The facility of preventing over that of producing a choice is very obvious.
A bold address may be made to any member of the House, without wounding his pride or offending his morality, to adhere to his candidate, and not change his vote so as to effect a choice. He can be told that there is no danger of leaving the United States without a President, as there is one already chosen to his hand by the Senate; and this person may be more the object of his wishes than any of the other candidates, his favorite excepted. In this process the Senate may give a President to the United States. But if the probability of such a process and such an event is increased by the amendment of this morning, it cannot certainly greatly recommend it. For myself I wish for no alteration in the Constitution, not even if its operations were directly in favor of the small States, more especially if such a favor is to be derived through a sort of double conspiracy of intrigue; in the first place, to operate on the Electors, and then on the House of Representatives. It seems to me, that the small States had better be contented to enjoy the rights now secured to them by the Constitution, which they can honestly do, rather than submit to a deprivation of their rights for the sake of dishonestly obtaining a restoration of them. We may charitably and safely conclude that the majority do not intend, by this part of the amendment, to expose the country to such a scene of iniquity. And the uncertainty of its operations alone, is, in my mind, a sufficient ground for rejection. However the operation of this part of the amendment may appear in theory, as to other points, it seems to me that, in one point, all must agree: and that is, when the House of Representatives know that the United States will be left without an Executive Magistrate, in case they do not agree. This awful responsibility will speak in a voice too loud for the hardihood of party entirely to disregard. And may I not suggest, without giving offence, that the operation of this very responsibility has been proved, at least in some degree, in the proceedings of the last Presidential election?
If this last-mentioned security be worth preserving, it follows, of course, that the part of the amendment alluded to ought not to pass.
There is another view of the Constitution which has a reference to the general subject before us; and that is, the caution exhibited with respect to the introduction of amendments. In an instrument so important, and containing many features new, if not to the world, at least to ourselves, although we might approve of its principles, yet experience might discover errors as to the mode devised for carrying those principles into effect. Hence it was the part of wisdom and caution to provide for such alterations in practice as would give the fairest operation to principles, without incurring the confusion and agitation incidental to a general Convention. But, lest the daring and restive spirit of innovation should injure or destroy, under the specious name of amendment, that same wisdom and caution hath provided salutary checks.
"Two-thirds of both Houses of the Congress shall deem it necessary" to propose amendments; and three-fourths of the State Legislatures shall ratify such amendments, before they acquire validity. I speak now, sir, of the mode which has always been, and probably will be, put in practice to obtain amendments. The other Constitutional mode is equally guarded as to numbers, but, as it has no relation to the subject now in debate, may be laid aside. "Two-thirds of both Houses," must, I think, on every fair principle of construction, mean two-thirds of all the members. The number of Senators is thirty-four, two-thirds being twenty-three. And as there is no representation from New Jersey, the number of Representatives is one hundred thirty-six, two-thirds being ninety-one.
My impressions are, sir, that this amendment cannot constitutionally be proposed to the State Legislatures unless it is agreed to in the two Houses by those numbers twenty-three and ninety-one, respectively. This is a Constitutional point, which, I am told, has never been agitated, but is certainly worthy of attention. If the construction should prevail that two-thirds of the members present, at any time, might propose amendments, the consequence is that twelve Senators, being two-thirds of a quorum, and forty-eight Representatives, being a similar two-thirds, might propose any and the most important amendments. I am aware sir, that it may be said such propositions are not final, they may yet be ratified or rejected by the State Legislatures. But the spirit of the Constitution seems to require two-thirds of the nation, acting by its proper organs, to propose amendments; and that, in so interesting [Volume 5, Page 470] a subject as a Constitutional alteration a less number should have no authority.
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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
------"Trifles light as air,
Are, to the jealous, confirmation strong
As proofs of holy writ?"
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 [Volume 5, Page 471] admitted that in an election of a President and Vice President by Electors, that 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 to 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.
Sir, the endeavor to excite a national jealousy against the idea of amending the Constitution, is in my view infinitely more dangerous and alarming than even the attempt to marshal States against States. The gentleman from Connecticut (Mr. Tracy) has twice pronounced with great emphasis, "man is man," and attempted to make inferences against all attempts to amend our Constitution from the evil moral qualities with which human nature is afflicted! Sir, he has forgotten that Governments as well as nations are constituted of men, and that if the vices of governed man ought to alarm us for the safety of liberty, the vices of governing man are not calculated to assuage our apprehensions. Sir, it is this latter species of depravity which has suggested to the people of America a new idea, enforced by constitutions. Permit me to illustrate this new idea by [Volume 5, Page 472] the terms political law and municipal law. The former is that law, called Constitutional, contrived and enacted in the United States, to control those evil moral qualities to which this creature "man" is liable when invested with power. The latter is that law enacted to control the vices of man in his private capacity. If the former species of law should be suffered to remain unchanged, the effects would be the same as if the latter should remain unchanged. Both, unaltered, would be evaded by the ingenuity, avarice, and ambition of public man, as well as private man. And, therefore, it is as necessary for the preservation of liberty, that constitutions or political law should be amended from time to time, in order to preserve liberty against the avarice and ambition of men in power, by meeting and controlling their artifices, as it is occasionally to amend municipal law, for the preservation of property against the vicious practices of men not in power.
The Founders' Constitution
Volume 5, Amendment XII, Document 5
The University of Chicago Press
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.