November 23, 1803

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

" When an amendment to be proposed to the Constitution is under consideration, shall the concurrence of two-thirds of the members present be requisite to de* dde any question for sniendioeDta, or extending to the merits, being short of the Gnsl question 1"

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

Mr. Adams was of opinion that on all questions involving the amendment two-thirds of the votes were requisite, but not on any of the forms of proceedings on the subject.

Mr.DjVTON thought two-thirds necessary on all questions upon which the amendment might ultimately depend ; that the reasoning in the case of treaties would apply here as well in a single principle as on the aggrwale.

Mr. Franklin differed altogether from the last speaker. He considered all the preliminary proceedings, previous to the ultimate vote, subject to the decision of an ordinary majority. The motion here IS a simple proposition, involving the mode of proceeding in that House, and could not affect the final vote on the amendment, which must be carried by two thirds. The amendment will come fairly before the House for discussion by the vote of a simple majority j but subject the House to the control of two-thirds in the first instance, and discussion itself is obstructed — you can neither strike Mr. Wriout supposed that the forms of proceeding in that House hitherto observed would not be departed from. It had never been considered that a preliminary question in proceedings was to be decided upon as a final question of amendment of the Constitution. Such a form of proceeding would leave it in the power of a minority to arrest every proposition on such a subject before it passed the ilireshold ; and it might even put it in the power of the Vice President himself to decide a question, though in the eye of the Constitution fie is not a member of the Senate at all.

Mr. MACI.AV.— This appears to me a verv sim' pie question : it is no other, in fact, than whether the House may or may not determine its rules of proceeding. Now. he was convinced that the Constitution had already settled this question, by declaring that each House shall be competent to establish its own rules. It was in the nature of things necessary, and it was fair to infer that in Legislative proceedings the simplest form was Inosi eligible : who would apply a clumsy apparatus while onesimpleandstimcient was ai hand? 1 The gentleman from North Carolina (Mr. Fhanklim) had made the proper distinction. Treaties bore no analogy to forms of proceeding. We may object to a treaty, in tbe whole or in part, even after It had been negotiated and communicated to us by the proper authority. How we shall proceed upon measures originating with ourselves is a different subject. Mr. Dayton never suggested that we have no right to form rules for our own proceedings; he d not consider the question itself so much a Constitutional one as of expediency. Mr. HiLLHOVSB said, It was a matter of indifference to him how the House proceeded on the question, so that the rules of the Senate may not be embarrassed. The question appeared to him now to be principally the best mode of taking up the object for deliberation.

Mr. Taylor. — The gentleman from New Jersey (Mr. Dayton) has acknowledged, and Ibe gentleman from Connecticut (Mr- Hillhodse) Has concurred in the sentiment, that this amendment is not so much a Constitutional question as one of expediency and form. In this view, the gentlemen must consider that they cannot take ' ~>m the Vice President a right which he possesses a Constitutional equality in tbe election. as the Constitution declares (article 2, section 1) that tbe President "shall hold his office during the term of four years, and, together with the Vice President, be chosen for that term.'- No right of expediency can find room in this place: if there be any, gentlemen will of course show it. The gentleman from Pennsylvania (Mr. Maclav) baa felt D doubt on his mind on the subject. Mr. BoTLKft. — It never was intended by the Coni tution that the Vice President should have a vote in altering the Constitution : whatever of the arguments of gentlemen relate to that point falls to the ground. The question now before the House is, whether, when a general proposition is brought ip, shall the same number of two-thirds be requi- •ite to decide upon its admission, as upon thesubtequent and perfecting vote? In his opinion the same number was necessary. So on a motion formerly made by a gentleman from New Jersey, (Mr. Dayton,) for striking out all that related to the Vice President, he thought two-thirds were necessary to a vote of that kind, as the striking out would go to an alteration of the Constitution. On minute alterations of the letter or phraseology, which did not involve the principle, perhaps a simple majority would be sufficient.

Mr. Cocke considered the House as competent to the formation of its own rules, and was opposed to this new mode of proceeding, evidently calculated only to embarrass.

Mr. HiLLBocsE thought the decision on this question perfectly analogous to the cases which arise on treaties. Suppose that two-thirds of the Senate present concur with the proposition of the bill now before the Senate from the House of Representatives, and a majority agree to strike out a part 1

Mr. Whiout. — Gentlemen cannot or will not keep it in mind that the proposition before the House is not an alteration of the Constitution, but the formation of a proposition upon which two-thirds of the House must ultimately decide, and, aHet which decision, must go to the several States, and depend for its GnafadoptioD upon three-fourths of the States, It does not, as the gentleman from Connecticut (Mr. HiLLBonsB) seems to assume, require two-thirds of the Senate to prepare and propose an amendment to a treaty; it is the principal confirmation or ratification only that requires two-thirds.

Mr. Jackson was not averse to a postponement ; though he did not approve of the idea of the gentleman from New Jersey, (Mr. Dayton.) concerning the abolition of the Vice President's office. If the Senate would posipoDe,aco[nmittee might be appointed who would search for precedents, and report by Monday or on some other day. He moved to postpone, seconded by Mr. Bhadlgt ; lost — ayes 19, noes 16.

Mr. PtCKERIKO.— There appears lo me so close an analogy between the proposed amendment and the case of treaties, that it ought to govern. The striking out of a part of the Constitution must be considered as an amendment, for if apart is struck out it is no longer the same thing ; he did not approve of subjecting a Constitution to repeated alterations.

Mr. Israel Shitb. — This appears to be a very important Constitutional question; and in fixing the principle, care is requisite, though he did not see why it should not be done as early as possible. All our details of bills go through the forms of reading and engrossing; they are read and considered section by section and clause by clause, so that nothing shall be admitted but by a majority. Then, why not, in the debates of an amendment, use the same precautions? ? If you admit amendments to the Constitution by a common majority, it appears that there is not the same precaution.

Mr. Tayloh. — The gentleman's arguments were entitled to an answer ; but a short one would be sufficient. The analogy with treaties is no more perfect than that with relation to ordinary Legislative acts. Treaties originate with the Executive, with a power over which there is always entertained a salutary jealousy. On the other hand, a law must have the consent of the President after it has passed both Houses ; if the President refuses his consent, the whole is inchoate, and two-thirds of both Houses may, rum obtfant, pass the law without that consent ; and here only the cases are analogous. We may proceed to give a law perfection in its preliminary stages, so may we discuss an amendment; but to the ultimate perfection of the thing, two-thirds are required. If the doctrine held by some gentlemen were to prevail, it would be difficult ever to amend the Constitution, be its imperfections ever so great.

Mr. HiLLHODSB was convinced, by the arguments of the gentleman from Vermont, (Mr. I. .Smith,) that this was aquestion of the first magnitude, In the case of a law to which the President denies his concurrence, when it is returned to both Houses, no amendment can be made thereto, it must pass altogetherby two-thirds, or is lost. Again: If you were to move to strike out a part of the amendment, it would appear by the TOie on your journals that the question had not been decided by two-thirds. In the passage of laws it is understood that all parts of a law must have a majority of votes, but it is also well under* stood that different parts of the same law will not obtain the same number of votes, and that some will vote against particular parts who approve of the rest, yet that the whole must have a majority. He never doubted that a proposition for an amendment may be admitted by a majority for discu»- sioQ ; but it was no more a conclusion that twothirds were not necessary on a vote involving the principle during the discussion, because there was to be a final vote, than that two thirds would not be necessary on the last vote here, because it is not final in relation to the other House. " '. Anderson proposed to postpone the subject till

Mr. Tracy also wished to > postpone to next Mr. Nicholas hoped the question would be decided before the House rose ; and as it was a decide the questions of order without debate.

The question to postpone being taken, was lost — ayes 14, noes 16.

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

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

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

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

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

" In all future elections of President and Vice President, the Electors shsU name in their ballots the person voted for as President, and, in distinct ballots, the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same 8tal« with themselves. The person voted for as President, having a majority of the votes of all the Electors appointed, shall be the President ; and if no person have such majority, then from the three highest on the list of those YDled for ■■ President, the House of Sepr^ senlativea shall choose the President in the manner directed by the Constitution. The person having Iho greatest number of votes as Vice President, shall be the Vice President ; and in case of an equal number ot votes for two or more persons for Vice President, they being the highest on the list, the Senate shall diODsa the Vice President from those having such equal number, in the manner directed by the Constitution ; but no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States."

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

Upon the question for striking out being pul,ii was carried u'ilhoul a dissenting voice, and the amendment of Mr. Nicholas adopted in the report, leaving the number blank.

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

Mr. A.tDEBSOH moved to strike out the word " two" in the nineteenth line — ayes 6. Lost.

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

Mr. Adaus suggested an objection to the amendment as it stood, which appeared to arise out of the treaty of cession of Louisiana. His original idea was adverse to the limitation to natural-born citizens, as superfluous ; but, as it stood, the 1 upon which Louisiana was acquired had re

Iher

ID Louisiana as well as those born in the United States to the right of being chosen for President and Vice President.

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

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

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

He had heard it said with confident boldnesi that experience had shown the necessity of amendment, and that the Constitution had already undergone correction. Butgentlemen should show him that healing a wound and cutting off a limb were operations not of a different nature and different degrees of danger. He did not mean, nor did he apprehend that the proposed amendment would cut off any State in the Union, but he was persuaded that it would cut off the weight and the influence of many of the small States.

He had been told that the people of the United States called for this amendment. How had tbi« sense been collected? It was a difficult matter to collect their sense; the great variety of habits, the diversity of climates, the space over which they are spread, the different modes of education and way of thinking, all render it difficult to ascertain the general sentiment, and he who says the people al large wish for this amendment, in my judgment, hazards greatly the respectability of character.

It is urged that the people did feel great indignation at the scenes which were exhibited in the House of Representatives on a former election [ and that the people might be hurried into strong and dangerous measures to prevent the recurrence of scenes so disrejjuiable to republican Govern* menl. But if Ibe people knew and would see all the points tending to one extreme line, they would take care to inquire whether, in endeavoring to avoid a weather shore, tbep had not forgotten the lee one. If the people are to have a master, Mr. President, n is indifferent whether they are to be bowed down by an insolent individual oligarchy, or a proud and haughty aristocracy of States, if, in the change of masters, the only change that is experienced is a change of habits.

But where, sir, is thedanger of letting the choice ultimately go to [be Legislatures 7 If there is danger it is certainly wrong to send it to any Legislature ; yet we find the Constitution admits of considerable Legislative authority in the organization of various Constitutional powers; the fact carries with it some evidence of the principles of that instrument. What is the purport of this amendment but to cut off a part of that solemn compact, the result of four long months' deliberation, where low ambition or the pride of States never found admission, and where disinterested patriotism and the light of virtue only found access 1 But, sir, there are motives operating in this body, and promoting this amendment, which, though not prominent, are powerful ; it is said, if you do not alter the Const iiution, the people called Federalists will send a Vice President into that chair; and this, in truth, is the pivot upon which the whole turns. When we were as Republicans out of power, did we not reprobate such conduct? Shall we then do as they did ? Shall we revive party heat? No, he hoped not; but that, by a just and mild policy, we should evince that we would do as we would be done by.

The question was immediatly taken, on the report and carried — yeas SO, nays 11.

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

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

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

He had moved for the insertion of three instead of five, with this precise and special intention, that the people themselves should have the power of electing the President and Vice President; and that intrigues should be thereby forever frustrated. The intention of the Convention was that the election of the chief officers of the Government should come as immediately from the people as was practicable, and that the Legislature should possess the power only in such an exigency as accident might give birth to, but which they had considered as likely to occur. Had it not been for these considerations, the large States never would have given up the advantages which they held in point of numbers. If the number five were to be continued, and the House of Rep< reseniatives made the last resort, he would undertake to say that four times out of five the choice would devolve upon them. Diminish the number to three, and the compromise of two and two between the opposing parties, which has heretofore prevailed, will be superseded by an opposition of one on each side for President, and a third betweeo both for Vice President. The question of small and large State interests is not at all involved in this question; it is a mere matter of imagination ; and if it were at all real, it would perhaps be found to operate differently from what is supposed. There are many of the States, which are now small in reference to their population, which must already feel the influence, if any exists, of their being very soon likelyto become large States. Georgia, Tennessee, and Kentucky, were of this description; in less than ten years these States will be larger than many now called large States, and their circumstances alone would be a sufficient guard against those dangers apprehended. He would be one of the last to doubt the virtue and the wisdom which framed the present Constitution ; but, like other gentlemen, he was aware of the fallibility of the wisest of mankind ; the founders of that Constitution had taught him the important lesson, for they had provided in that instrument a remedy for their own inexperience or fallibility; and time has in. this instance, as in numerous others, proved their uncommon wisdom, for evils have arisen whch though they could not foresee, they have provided the means to correct them: they could not have foreseen the danger to which the country was exposed at the late election; they could not have believed, that at so short a distance from the foundation of the Constitution, the country escaped from a civil war only from the prevalence of that kind temper, and similar iaagetl Had the gentleman from South Carolina (Mr. Butler) been present at this critical period, he would have felt, as many of his friends felt, a serious and restless anxiety. Two candidates before the House — party spirit high; the one determined to support the candidate upon whom public affection and confidence had unequivocally centered ; the other seeking to place in the Executive Chair, not a candidate of their original choice, but a candidate through whom they wished to retain at least a share of power ; unsuccessful in that effort, bringing forward a Eroposition to create a President; andhow? Bya iw to be passed for the purpose, and in which the person was to be named, leaving the votes and choice of the people out of consideration altogether. Had this been effected, what other result would follow but civil war? Without pretending to be in the counsels of either party on that occasion, he believed that civil war was seriously apprehended, and so much so, that he felt perfectly convinced, that had a choice been made in the way proposed, and a person. could be found to accept It, that his head would not have remained on his shoulders for twenty-four hours afterwards. Dangers of this kind he was solicitous to avoid ; and by that mild and benignant mode provided by the Constitution, that of amendment to the Constitution.

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

He hoped this amendment would not be hastily adopted. The subsisting mode was the result of much deliberation and solemn compromise, after having long agitated the Convention. It is now attacked by party; whatever gentlemen may say to the contrary ; the gentleman from South Carolinia has confessed it. If gentlemen will suffer I themselves to look forward without passion, great | good may come from the present mode ; men of 1 each of the parties may hold the two principal offices of the Government; they will be checks upon each other ; our Government is composed ' of checks; and let us preserve it from party spirit, which has been tyrannical in all ages. These checks take off the fiery edge of persecution. Would not one of a different party placed in that chair tend to check and preserve in temper the over-heated zeal of party? he would conduct himself with firmness because of the minor party ; he would take care that the majority should have justice, but he would also guard the minority from oppression. If we cannot destroy party we ought to place every check upon it. If tne present \ amendment pass, nine out often times the election will go to the other House, and then the only difference will be that you had a comedy the last time, and you'll have a tragedy the next. Though ' it was impossible to prevent party altogether, much more when population and luxury increase, and corruption and vice with them, it was prudent to preserve as many checks against it as was practicable. He had been long in Congress and saw the conflicting interests of large and small States operate ; the time may not be remote when party will adopt new designations; federal and republican parties have had their day. their designations will not last long, and the ground of difference between parties will not be the same that it has been ; new names and new views will be taken ; it has been the course in all nations. There has not yet been a rotation of offices in which the small Slates could look for their share, but the time may, it will come when the small will wrestle with the large States for their rights. Each State has felt that though its limits were not so extensive as others, its rights were not disregarded. Suffer this confidence to be done away, and you may bid adieu to it; three or four large States will take upon them iit rotation 10 nominate the Executive, and the second officer also. -This will be felt. A fanciful difference politics is the bugbear of party now, because other, no real cause of difference has subsisted. I remedy will create a real disease. States e individuals may say we will be of no party, i whenever this shall happen blood will follow Mr. Bradley moved aa adjoatiinieiil. The