December 1, 1803

The Senate took up the amended report, as amended the preceding day, which was as folaemb&i, two-thirds of both Houmi concurring, That in 1i«u of the third paragraph of the tint section of the second article of the Constitution of the United States, the following be proposed as an amendment to the Con- ■titution of the United States, which, when ratified bj three-fourths of the Legislatures of the eeTeTil States, all bsTaliil.ta all intents and purposes, as part of the ■aid Constitution, to wit : ' The Electors shall meet in their respective States, uid vote by ballot for President and Vice President, one of whom, at leul, shall not be an inhabitant of the same State with themselves. Thej ■hall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President; and they shall make distinct lists of all peraonavoted for aa President, and of all persons voted for as Vice President, and of the number of votes for each ; which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of Ibe Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes for President ■hall be the President, if such number be a majority of the whole number of Electors appointed ; and if no person have such a majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But, in choosing the President, the vote shall be taken by States, the representation from each State having one vote. A quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the Slates must be necessary to a choice.

*> The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of Electors appointed ; and if no person have a majority, then, from the two highest numbers on the list, the Senate ahall choose the Vice President. A quorum for the purpose shall consist of two-thirds of the whole number of Sen- •lora, and a majority of the whole number shall be necessary to a choice. But no person Constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”

Mr. Dayton moved to strike out from the words "aod Vice President," in the twelfth line, and all that concerned tbe Vice President in that paragraph.

The Phesident said it not D order to strike Mr. Dayton then moved to strike out all that related to a Vice President in the forty-third line, and to the end of the paragraph.

The Frebidekt said that it was not in order in that stage of the business to strike out any part. Mr. Dayton. — If there is no way to come at the abolition of that office, when the majority of the Senate have it so much at heart, he must even give it up as a fruitless attempt.

Mr. Tract concurred in the decision of the Chair. The motion, however, arose from not reading the resolution three times, as was the tinge with bills ; in which cases, having amended them on b second reading, you cannot amend on a third without the consent of the whole. Here you have amended, and the resolution is taken up amended; if the Senate is determined it shall have but the one reading, there is no remedy i but the form of proceeding is so different from Parliamentary rules, that some correction of it should take place. He asked what would now be the regular question ?

The President. — Oa inserting the amendments adopted in Committee of the Whole, in the report of the select committee.

Mr. Nicholas said, the object of the gentleman from New Jersey was to abolish the office of Vice President ; but the sense of the Senate had been already expressed on that subject. He hoped the linft of the House would not be lost on a subject already decided.

Mr. Dayton would not ask any favor.

Mr. AoAUa. — If an amendment cannot be inr serted now, he thought the mode of proceedini; inconsistent with order. He understood that, originally, it was decided that nothing should be considered as 6aa\ which had not the sanction of two thirds; and he had held back some amendments under the impression that it was still open. If the rules of the Senate determine that a resolution shall have but one reading, there was a palpable contradiction between them and the rules of the other House.

The PHEBincNT entered into a circumstantial detail of the progress of the proceedings on the amendment; and concluded by stating that the proceedings had been perfectly regular and according to order; that, in the present stage, all that had been adopted must be considered as ready for the final vote; that no amendment could be made inconsistent with what had been already agreed to in the detail; but that it was still open to any amendment not incompatible with what was already adopted.

Mr. PtcKBRiNO offered an amendment in addition, and not incompatible with what had passed. It was to insert after the word " "President," o I," in the thirty-second line, the following words: "But if within twenty-four hours no election shall have taken place, then the President shall be chosen by law." This amendment he offered as a remedy by which we could avoid that civil wat threatened on a former occasion.

Mr. Adams wished the motion to be varied so as to come in after the 37tb line. The motion he considered as embracing an object extremely important, and though the case was an extreme one, of no election being made, it wasnot unprecedented, for it had very recently happened in New Jersey, where no Governor had existed for a whole year. He did not approve of the precipitation with' which, the Senate was carrying this amendment foi^ ward. He considered it as intending to prevent a federal Vice President being chosen. He hoped that the House would proceed with more deliberMr. Pickering consented to the alteration proposed by his colleague,

Mr. Tract thought the amendment offered by the gentleman from Massachusetts like a great many olhers,il would require a dozen more amendments to explain it. How was the choice to be made of a person to be chosen by law 1

Mr. Pickering. — The States might choose by lot, or by ballots ia a box, which the President might collect ; or a Dumherof names might be put ia a box from which the Speaker might draw Mr. Smith admired the ingenuity oCgenilemea, as they left all consideration of what the people would wish or think about such a proceeding out of the question. Suppose they were to throw the dice for the Executive Chair ! It would be equally wise with any of the expedients offered; the gentlemen could serve their friends ; the candidates names might be written,* and the highest throw have it !

Mt. Thaoy.— However gentlemen may ridicule the ballot, it has a precedent. Bv the constitution of Kentucky it is provided that when two candidates are equal in votes, the choice shall be made by lot.

Mr. Breckenridqe. — That practice has been long exploded.

Mr. HiLLHOUBE. — We had been told, some days ago, that a candidate proposed to be chosen by law, was near having his head cut offj such a process would be rather disagreeable to him. He wished to avoid it himself, and to prevent others getting into such a critical situation, and if the amendment were to be adopted, he had no doubt that nineteen times out of twenty, the choice would devolve on the House of Representatives. It was certainly not an unusual practice in elective governments to choose persons for eminent stations by lot. It was very common at Athens, and they were a very wise and prosperous people, and had an ordyly and well regulated Glovernment. It would certainly be a preferable mode to the choice at the point of the bayonet. If he had any conception of the operation of the prop>03ed amendment, it would be to produce no election. 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 i 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 ' 8lh Con. — 5 the consequence ? 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 ibe 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 my 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 i The principle of the Constitution, of electing by electors, 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 We see the practice daily in Congressional elections, when both parties obstinately adhere to their candidate ; a third is set up and carried in [o the rejection of both. By the new mode pro> powd 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 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. PicKERiNO 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 he ; 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 pop- ~ 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. I Mr. Wbioht.— It had been said, that we meant to precipitate this amendment of the CoDsihutioD— lo make the minority swallow it ; he hoped the gentlemen, in their eagerness to render it insipiJ, would not make it totally unpalatalile to us : as they had proceeded, ibe modes they had proposed ■truck him at least by their novelty. Since what was offered was not ijatis factory, and they were willing to commit it to chance, why did they not take up the ancient mode q( grande ballaile? we should have no objection to have it decided by the champions of both parties armed with loroa' hawks ! Gentlemen talk of the danger and of the lights 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 lights to the chance of a lottery 7 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 wiihreason, or with the principles of the Constitution, la 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 7 A few days only have passed, when the same gentlemen were eager for an immediate decision ; they declared their readiness to decide immediately i 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 oriein in other considerations. Mr. AoAMa 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 ne 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 tip 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 E should exceed by a vote those for A. This was B defect in the Constitution; and there was I further on why he was in favor of the designating pri jiple, and that was, that it appeared ilTcd for from all parts of the United States. It had been observed, that si

opposers of the fnt did press for 3 decision ; but he had bi D those dispositions prevail alternately ; but the minority had not so much pressed for a decision i for the discussion of the question.

Mr. PiCKERtNO 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. Pickerino'b motion, was then put and negatived, without a division.

Mr. AoAus then moved the following amendment : In the 37lh line, after the word " choice," insert—

" And in case the House of Representatives shall I not, within daya.eflect the choice in manner afore- ' nid, and there be s Vice President duly elected, the said Vice President shall discharge the powers and duties of the President of the United States. But if the office of Vice President be also vacant, then the said powers and dutiea^af President of the United States I ■haU be discharged by such person as Congress totj by law direct, until a new election shall be had, in man- i manner already prescribed by Ian."

Mr. HiLLBonsE 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 1 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. Wbioht. — 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 makeprovisionsagainst the corruption of a jury.

Mr. HiLLBOtisE. — 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 Ibe 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 In 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 Houseof Representatives ed two years before your Presidential election, may hold sentiments very different from him ; ibe ;>ublic mind may change in the time ; and a party osing power may be led away by passion to conspire and throw every difficulty id the way,

Mr, Bradley thought' the sentiments of the gentleman last up perfectly correct. He was sat' isfied that, if the House made no choice, the Vice President would administer the Government.

Mr. WnroBT 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 madeachoiee: 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. AnAMs) 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. Adahs saw h 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. HiLLBOusE 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, Itgni, 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 „ 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 1 If there should beany 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. Tract rose.

Mr. Cocke called for the question— the quesMr. Tract.— 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 isthequesMr. Dayton hoped the gentleman from Massachusetts (Mr. AnAHe) would withdraw his amendMr. 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, 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 consiiiaeniB — 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 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 Stales. The Constitution, sir, would be preferable as it is, without the odious and a nti- re publican 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 non-election ! He should prefer having the choice open to the Representatives bound by oath, by duty, and by the Constitution, to such an alternative. If men so placed would be so blind to the calls of duty, the public indignation would bring them to their senses before the fourth of March. Honor and their oaths, sir, would bind them. He had too much confidence in the choice of his countrymen, and of the virtue and morality of those who are sent to the important stations of Representatives, to think they disregarded their oaths or their duty. Some gentlemen tell us, indeed, they know of no persons who would raise their hands against an usurper, if he had been set up, and insinuate that it would be « crime ; but they find ready belief for acts ten thousand degrees more base and heinous in themselves ; they can believe their countrymen capable of ihe breach of every lie of honor, of oaths, and of duty. Qentlemea must speak from their own knowledge; for his part, he was happy to say there were no such men among hiaacquamtaoce not in his neighborhood.

The arguments which gentlemen draw from their experience would be with him powerful ones for opposing the measure which ihey are brought forth to sustain. For if men elected to such stations as seats in Congress are capable of the breach of every obligation of honor and oath, the greatest care should be taken to keep the power of election forever out of their hands, by rendering it impossible for the people not to elect; nay, he would prefer carrying the election to the individual vote of every citizen, without the intervention of Electors, to suffering it to go into any body liable to such dishonor.

An observation of the gentleman from Massachusetts (Mr. AoAua) produced a sensation which at once showed that something besides the care of the people's rights had an influence here. He proposes tnal the proper officer, the Vice President, should succeed 10 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 peoplenever contemplated to place there, and who never had a vote 7

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. Thegentleman 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 Pi dent. ' How, then, can it be said which was th« person intended? The gentleman from Maryid (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 caadi' dates as President.

Mr, Taylor.— That matter appears suscepli. Ue 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 welt 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 1

Mr. Dayton was for a postponement of the Mr. Jackson was for postponement also.

Mr. Adams's amendment was postponed, and ordered to be printed.

Mr. Taylor wished to offer an amendment as an addition to ibe report —

" Provided, That whenever the right of choosing ■ President shall devolve upon the House of Representatives, the Vice President shall act u President, in cue they fail to make such choice, in like manner u in case of the death or resignation of the President."

It was moved that this, with the other amendment, be printed ; and the House adjourned.