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LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 OF" 
 
 <T 
 
 Class 
 
A STUDY 
 
 OF THE 
 
 TWELFTH AMENDMENT 
 
 OF THE 
 
 CONSTITUTION 1 OF THE UNITED STATES. 
 
 PRESENTED TO THE FACULTY OF PHILOSOPHY OF THE 
 UNIVERSITY OF PENNSYLVANIA 
 
 BY 
 
 LOLABEL HOUSE 
 
 IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE 
 DEGREE DOCTOR OF PHILOSOPHY 
 
 PHILADELPHIA: 
 IQOI. 
 

. 
 
 A STUDY 
 
 OF THE 
 
 TWELFTH AMENDMENT 
 
 OF THE 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 The Convention of 1787 had several sources from which it 
 might draw in constructing the executive department of the 
 government. These were, the current political theories, the 
 plans suggested previous to its meeting, the experience under 
 the Confederation and the precedents found in the State consti- 
 tutions. 
 
 As the Confederation dragged on year after year, becoming 
 more hopelessly inadequate on account of the lack of sufficient 
 powers and of an efficient executive, many plans were suggested 
 to remedy the evils so apparent to the most indifferent observer. 
 In each of these the question of the executive was emphasized. 
 One of the first definite plans for a Confederation had been that 
 of Thomas Paine, outlined in " Common Sense." 1 In this, after 
 providing for a Congress, he suggested a President, chosen from 
 the delegates of a Colony which should be selected by lot. In 
 the next Congress the President should be similarly chosen, the 
 Colony which had obtained its turn being omitted from the draw- 
 ing, till the whole thirteen had had their proper rotation. . As 
 early as 1783, Pelatiah Webster pointed out very clearly and 
 succinctly the defects of the Articles of Confederation, and sug- 
 gested an entirely new plan in which there were to be four great 
 Ministers of State, a financier, a Minister of War, a Minister of 
 State and a Minister of Foreign Affairs, all of whom should be 
 1 "Common Sense," pp. 30-31. 
 
 127178 
 
required to give a written opinion on all proposed bills. 1 To- 
 gether with three others, named by Congress, from the New 
 England, Middle and Southern States respectively, they should 
 form the supreme executive body, 2 presided over by one of their 
 number appointed by Congress. They were to superintend all 
 executive business and appoint all executive officers, but how 
 the u great ministers " were themselves to be chosen the plan 
 did not state. 
 
 Noah Webster's plan 3 in 1785 made no change in the method 
 of choosing the President, but suggested that he be u ex-officio 
 supreme magistrate, clothed with authority to execute the laws 
 of Congress in the same manner that the governors of the States 
 are to execute the laws of the States." 
 
 Madison 4 wrote in his notes on Jefferson's " Draught of a 
 Constitution for Virginia :" "An election by the Legislature is 
 liable to insuperable objections. It not only tends to faction, 
 intrigue and corruption, but leaves the Executive under the 
 influence of an improper obligation to that department. An 
 
 election by the people at large, or by electors, as in 
 
 the appointment of the Senate in Maryland, or, indeed, by the 
 people, thro' any other channel than their Legislative represen- 
 tatives, seems to be far preferable." Though this was written 
 in regard to the State Executive it exactly expressed his opinion, 
 as afterwards formulated, in regard to the national head. In 
 common with other statesmen of the day 5 he insisted upon the 
 separation of the functions of government, 6 yet such was the 
 difficulty of the subject that in April, 1787, he wrote to Wash- 
 ington that though a National Executive was a necessity, he 
 had scarcely ventured to form his opinion either of its form or 
 authority. 7 
 
 The Continental Congress had been struggling with the 
 question of executive administration since its organization in 
 1775. The most natural step at first was to appoint committees 
 
 1 "A Dissertation on the Political Union and Constitution of the Thirteen 
 United States of North America," by a citizen of Philadelphia, Pelatiah Webster. 
 First published in 1783 ; republished in " Political Essays," 1791, p. 214. 
 
 2 Ibid, p. 221. 
 
 3 "Sketches of American Policy," Noah Webster, pp. 30-48. 
 
 4 Madison's Works (Edition of 1865), I, 190. 
 
 5 Hamilton's Works (1851), II, 269-275. 
 
 6 Madison's Works, I, 286. 7 Ibid, 290. 
 
to carry out the resolves of Congress, but as the field of opera- 
 tions grew wider the action of committees proved increasingly 
 unsatisfactory. Without giving a detailed account of the de- 
 velopment of the administrative departments of War, State, 
 Treasury and Navy, it may be said that the steady evolution 
 was from committees of Congress, inefficient and desultory in 
 action, through boards, 1 not always composed of members of 
 Congress, more efficient, but still lacking in unity of action, to 
 single officers 2 with subordinates. 3 After the war was over Con- 
 gress passed an Act 4 for carrying out Art. IX of the Articles of 
 Confederation, providing for a committee of one delegate from 
 each State to sit between Congresses. The powers of this com- 
 mittee were much limited by the Act, and only one was ever 
 appointed. It was instructed to prepare an ordinance revising 
 the departments, but the order was not carried out. It met in 
 Annapolis, June 4, 1784,* and adjourned till June 26th, u to 
 rest ;" then it had to adjourn day after day till July 8th, for 
 lack of a quorum. When a sufficient number was finally gotten 
 together no business of importance was transacted. The members 
 quarreled among themselves and animadverted against fate for 
 placing them there in the heat. On August i3th there is the 
 
 1 " Secret Journals of Congress," II, 130. 
 
 2 In 1781. 
 
 3 This development may be traced through the following references to the 
 action of the Continental Congress in regard to the matter : 
 
 State Department. I, 254 (Nov. 29, 17,75); II, 113 (April 17, 1777); VII; 
 ii (Jan. 10, 1781) ; VII, 219 (Feb. 22, 1782). 
 
 War Department. -II, 198 (June 12, 1776; Dec. 1776) ; III, 235 (July 18, 
 1777) ; HI, 349 (Oct. 17, 1777) ; III, 351 (Oct. 17, 1777) ; III, 418 (Nov. 24, 1777) ; 
 
 III, 423 (Nov. 27, 1777) ; IV, 19 (Jan. 12, 1778); IV, 449 (Oct. 29, 1778) ; VII, 
 24 (Feb. 7, 1781) ; VII, 206 (Jan. 17, 1782) , VII, 256 (April 10, 1782) ; X, 28 
 (Jan. 27, 1785). 
 
 Treasury Department. I, 173 (July 29, 1775); I, 191 (Sept. 25, 1775); II, 
 64 (Feb. 17, 1776); II, 274 (July 30, 1776); III, 78 (March 25, 1777); IV, 153 (April 
 15, 1778); IV, 294 (July 15, 1778); IV, 310 (July 30, 1778); IV, 331 (Aug. 12, 1778); 
 
 IV, 403-407 (Sept. 26, 1778); VII, 24 (Feb. 7, 1781); VII, 143 (Sept. 7, 1781); 
 VII, 30, (Feb. 20, 1781); VII, 144 (Sept, 11, 1781); IX, 182 (May 28, 1784). 
 
 Navy Department. -I, 203 (Oct. 13, 1775); I, 242 (Nov. 25, 1775); I, 269 (Dec. 
 n, 1775); I, 273 (Dec. 14, 1775); II, 406 (Oct. 28, 1776); II, 418 (Nov. 6, 1776). 
 
 V, 297 (Oct. 28, 1779); VII, 24 (Feb. 7, 1781); VII, 143 (Sept. 7, 1781). 
 
 Washington's opinions of executive power may be found by reference to his 
 writings. (Putnam edition), VIII, 304 ; IX, 14, 33, 75, 124, 131, 246 ; XI, 186, 257. 
 
 "Journals of Congress," IX, 184, May 29, 1784. 
 5 "Journals of Congress," IX, Appendix, p. i. 
 
6 
 
 plaintive little statement that whereas certain delegates " did on 
 Wednesday, the nth day of the present month of August, leave 
 the city of Annapolis and set out for their respective homes," the 
 Committee was reduced to an insufficient number to do business, 
 so some of the remaining delegates recommended the Secretary 
 of Congress to remove the papers and records to Philadelphia. 1 
 Thus, until the next meeting of Congress, the country was left 
 without a government. Such experiences caused the framers of 
 the new Constitution to regard the question of a Chief Magistrate 
 as one of paramount importance. 
 
 It is hardly possible to follow the tortuous course of the dis- 
 cussion in the Federal Convention, concerning the election of the 
 Executive, without causing the same confusion in the mind of 
 the reader which seems to have existed in that of the Conven- 
 tion itself. The novel part of the plan evolved was the intro- 
 duction of an independent, responsible executive, so fatally 
 lacking in the Articles of Confederation. In the Virginia plan 2 
 introduced into the Convention May aQth by Edmund Randolph, 
 the seventh Article reads : " Resolved, That a national Executive 
 be instituted to be chosen by the national legislature for the term 
 
 of ," etc. Art. VIII provides for a Council of Revision 3 to 
 
 consist of the Executive and a convenient number of the judi- 
 ciary. The plan entered in the debates as that of Pinckney 4 lays 
 down no method of election. 
 
 It was seen, as soon as the discussion began in the Commit- 
 tee of the Whole, that there were two directly opposing concep- 
 tions of the nature and function of the executive, and it was 
 the struggle between these two which caused the prolonged 
 indecision concerning the method of election. The first view 
 was drastically expressed by Roger Sherman, who said he 
 considered the executive as nothing more than an institu- 
 tion for carrying into effect the will of the legislature ; that 
 the person or persons ought to be appointed by and account- 
 able to the legislature only, as it was the depository of the 
 supreme will of society. The chief exponents of the opposite 
 
 1 McMaster : " History of the People of the United States," I, 209-210. 
 
 2 Elliot's "Debates," V, 128. 
 
 3 New York Constitution of 1777, Art. III. Poore's "Charters and Consti- 
 tutions," II, 1332. 
 
 * Elliot, V, 131, Appendix, No. 2. 
 
view were Gotiverneur Morris, who stated later that one great 
 object of the executive is to control the legislature, and James 
 Wilson, who said he was almost unwilling to declare the mode 
 of choice he wished, for fear it might appear chimerical ; stating, 
 however, that, in theory at least, he preferred an election by the 
 people. In favor of this he could cite the experience under 
 some of the State constitutions. When these were first formed 
 there was a reaction against the Colonial executive. The 
 attempt was made to deprive the chief magistracy of the auto- 
 cratic character of the royal governorship without divesting the 
 office entirely of dignity and efficiency. Connecticut and 
 Rhode Island, retaining their charters, retained the election by 
 the people ; and, of the newly constructed plans, New Hamp- 
 shire, New York and Massachusetts provided for such an elec- 
 tion. The other States gave the power to the legislative body. 
 
 The question of number next showed the complete diver- 
 gence of opinion in the Convention. Some were in favor of allow- 
 ing the legislature to appoint one or more persons as experience 
 might dictate, 1 and unity in the executive was characterized as 
 the " foetus of monarchy." 2 On the other hand, it was argued 
 that only a single magistrate could give the necessary energy, 
 dispatch and responsibility, and that such unity was the best 
 safeguard against tyranny. 3 Having decided that it would be 
 necessary to fix the powers of the executive as a guide to the 
 number, the question of term was introduced. A motion for 
 three years, with re-eligibility, was lost ; 4 then Pinckney's 
 motion for seven years was carried. 
 
 On June 2d, Wilson brought in, in a modified form, his idea 
 of popular election by the motion " That the executive magis- 
 tracy shall be elected in the following manner : That the States 
 
 be divided into districts, and that the persons qualified to 
 
 vote in each district for the members of the first branch of the 
 national legislature elect members of their respective dis- 
 tricts to be the electors of the executive magistracy ; that the 
 
 said electors of the executive magistracy meet at , and they, 
 
 or any - - of them, so met, shall proceed to elect by ballot, 
 but not out of their own body, person- in whom the execu- 
 tive authority of the national government shall be vested." 
 
 1 Elliot, V, 140. Sherman. 2 Ibid, V, 141. Randolph. 
 
 3 Ibid. Wilson. * Ibid, V, 142. Wilson. 
 
There was a direct model 1 for this method of election in the 
 Constitution of Maryland* of I776. 2 The provision was that the 
 Senate should be chosen every five years by two electors from 
 each county, elected by those qualified to vote for Delegates, 3 
 which electors should meet at Annapolis ; twenty-four were to 
 form a quorum, and they were to elect fifteen Senators, either 
 out of their own body or from the people at large. A plurality 
 only was required to elect, and if there should be a tie, a second 
 vote should be taken ; if that failed, the election should be 
 determined by lot. 4 This plan was proposed as a part of the 
 Virginia Constitution of 1776, but was rejected. 5 It seems to 
 have been the outgrowth of the rather aristocratic ideas of the 
 Maryland Whigs of the Revolution, 6 and its success was very 
 marked. The most distinguished men of the State were elected 
 Senators, 7 and this wisdom and impartiality of the College 
 undoubtedly had weight in recommending the system 8 both in 
 Maryland itself and in other States. 9 Madison recommended it 
 to Kentucky, 10 and Hamilton cited it in The Federalists having 
 an unrivalled reputation. 11 Nevertheless, the sentiment in favor 
 of it in the Convention needed cultivating, and Wilson's motion 
 was lost, 12 only Pennsylvania and Maryland voting in the affirma- 
 tive. The motion was then carried for an election by the 
 national legislature for the term of seven years. A motion for 
 ineligibility after one term was also carried. 13 ' 
 
 The Convention then went back to the undecided question 
 
 1 Elliot, II, 128. 
 
 2 Poore's "Charters and Constitutions," 1, 822. 
 
 3 Arts. XIV, XV, XVI. 
 
 4 A brief history of the adoption of this system may be found by tracing 
 the action of the Convention framing the Constitution, in "The Convention of 
 Maryland, 1774, 1775, 1776," by reference to pages 222, 228, 233, 251, 258, 259, 
 275, 278, 295, 354. 
 
 5 Madison's Works, I, 177. Aug. 23, 1785. 
 
 6 "The Electoral College for Maryland and the Nineteen Van Buren Elec- 
 tors." B. C. Steiner. Am. Histor. Assoc. Reports, 1895, p. 129. 
 
 I Ramsay's " History of the American Revolution," I, 351, 352. 
 
 8 " Provisional Government of Maryland, 1774-1777." J. A. Silver. Johns 
 Hopkins Un. Studies, XIII, 481, 527. 
 
 9 McMahon's " History of Maryland," (1831), I, 480 
 
 10 Madison's Works, I, 186, 190. 
 
 II Federalist, (Lodge's Ed.), LXIII, 398. 
 
 12 Elliot, V, 144- 
 
 13 Ibid, V, 149- 
 
of number, and it was moved that the blank be filled with " one 
 person." Randolph suggested that there be three members, to 
 be drawn from the different portions of the country. 1 This idea 
 of balancing the sections, Eastern, Middle and Southern, appears 
 repeatedly in the course of the debates. It was urged that the 
 arguments for a plural executive were based on an anticipated 
 unpopularity of the new Constitution rather than on principle ; 2 
 that all thirteen of the States had agreed upon a single execu- 
 tive, and that a plural one would foment uncontrolled, continued 
 and violent animosities. The decision in favor of a single 
 executive was carried by a vote 'of seven States to three. 3 
 
 After some discussion of the veto power, in which an abso- 
 lute veto, a suspensive veto and no veto at all were each advo- 
 cated, a vote was taken on the first and last suggestions, result- 
 ing in their unanimous rejection ; and the revisionary power, 
 subject to overruling by two-thirds of both branches of the 
 legislature, was decided upon. It is interesting that this power 
 should have been given at all, for, in the States, only Massachu- 
 setts had given her Governor a veto. 
 
 The matter now seemed settled ; there was to be a single 
 executive, chosen by the national legislature for a term of seven 
 years and ineligible thereafter, having a revisionary check on 
 legislation. But the leven of dissatisfaction with such a mode 
 was steadily working and produced no less than seventeen dif- 
 ferent suggestions before the Convention finally adopted the 
 principle, in part, of Wilson's motion of June 2d. After a 
 vote for the reconsideration of the mode of election, Gerry 
 moved 4 " that the national executive should be elected by 
 the executives of the States, whose proportion of votes should 
 be the same with that allowed to the States in the elec- 
 tion of the Senate." Showing the danger of corruption and 
 intrigue in an election by the legislature, he drew the analogy to 
 the principle observed in electing the other branches of the 
 government ; the first branch being chosen by the people of the 
 States and the second by the State legislatures, it seemed to him 
 fitting that the executive should be appointed by the State 
 executives. Randolph spoke against the plan, saying that the 
 State executives would neither make a good choice nor feel an 
 1 Ibid. Randolph. 2 Ibid, V, 150. 3 Ibid, V, 151. 4 Ibid, V, 174. 
 
IO 
 
 interest in supporting the national executive ; he made the strik- 
 ing statement: u They will not cherish the great oak which is 
 to reduce them to shrubs." 1 Gerry's motion was negatived by 
 a large majority. 
 
 When the Committee of the Whole rose the section out- 
 lined above was part of the plan reported, 2 but it was postponed 
 in order to give an opportunity for other schemes to be pre- 
 sented. Patterson introduced his plan, 3 which contemplated 
 merely a revision of the Articles of Confederation and provided 
 for a plural executive, elected by Congress for - - term of years, 
 not re-eligible and removable upon application of a majority of 
 the State executives. Again the Convention went into a Com- 
 mittee of the Whole for the discussion of this plan, and during 
 the debates upon it Hamilton read a sketch of a form of govern- 
 ment 4 which he submitted, not for action but to give a correct 
 view of his ideas and to suggest amendments he should prob- 
 ably propose to the plan introduced by Randolph. In Hamil- 
 ton's plan, as given in the Madison Papers, there was to be a 
 Governor, to serve during good behavior, elected by electors 
 chosen by the people in election districts already provided for 
 the election of Senators. In this we have the first mention of a 
 successor, in case of death or disability ; the President of the 
 Senate was to exercise power until a new election. In Hamil- 
 ton's Works 5 there is a short sketch very much like this, but 
 differing in the essential point of the method of election. This 
 provides that it should be by electors chosen by electors chosen 
 by the people ; or by electors chosen by the respective legisla- 
 tures. There is also an elaboration of the plan 6 entitled " First 
 draft by Hamilton, 1787." This proposed that the people of 
 each State, with certain property qualifications, should elect a 
 set of men equal in number to the State's representation in Con- 
 gress, to be called the "first electors." These should meet in 
 their respective States, vote for a president and make two lists 
 of their ballots, which lists should be delivered to two men 
 elected by them as the "second electors," and to Congress. 
 The " second electors " from all the States should then meet at 
 
 1 Ibid, V, 175. 2 Ibid, V, 189. 3 Ibid, V, 192. June 15. 4 Ibid, V, 205. 
 June 18. 
 
 5 Edited by J. C. Hamilton (1851), II, 393. 
 
 6 Ibid, p. 399. 
 
II 
 
 an appointed place and open all the lists. If any one person 
 had a majority of the votes of the first electors he should 
 be President, but if no person had a majority the second 
 electors should vote for one of the three highest. If they could 
 not center a majority on any one person on the first day of their 
 meeting, the one having the greatest number of votes of the 
 first electors should be President. This plan was evidently not 
 presented in the Convention, 1 and as it agrees with the shorter 
 one in providing a double set of electors, it is probable that the 
 draft in the Madison Papers is incorrect. 
 
 Patterson's plan having been rejected, the Committee of the 
 Whole rose and the Convention took the Virginia plan into con- 
 sideration again. July iyth it was agreed without division that 
 there should be a single executive, 2 but the question of the mode 
 of election called forth a speech from Gouverneur Morris, who 
 strongly deprecated the election by the legislature, declaring 
 that it ought to be by the people at large, by the freeholders of 
 the country. He made a motion to that effect, which was lost, 3 
 only Pennsylvania voting for it. Sherman thought that the 
 sense of the nation would be better expressed by the legislature 
 than by the people at large ; Pinckney thought the people 
 would be misled by demagogues ; Williamson conceived that 
 there was the same difference between an election by the people 
 and by the legislature as between an appointment by lot and by 
 choice, while Mason ventured the statement 4 that it would be 
 as unnatural to refer the choice to the people as it would be to 
 refer a trial of colors to a blind man. During the discussion of 
 the motion Wilson mentioned the expedient afterwards adopted, 
 suggesting that if a popular election should not result in a deci- 
 sion they might use the plan of Massachusetts of referring the 
 eventual choice to the legislature. 
 
 This plan was not confined to Massachusetts, as may be seen 
 by a reference to the State Constitutions. The Vermont Consti- 
 tution of 1777 r> referred an undecided vote to the joint ballot of 
 the Council and Assembly ; the Massachusetts Constitution of 
 1780 contained a similar but more elaborate provision; the 
 
 1 Hamilton's Works (Putnam Edition), I, 334. Note. 
 
 12 Elliott, V, 322. 
 
 3 Ibid, V, 324. * Ibid. 
 
 5 Poore's "Charters and Constitutions," II, 1862. Sec. XVII. 
 
 6 Ibid, I, 964-965, Chap II, Sec. I, Art. III. 
 
12 
 
 portion respecting the election of the executive in the New 
 Hampshire Constitution of 1784 l seems to have been modeled on 
 that of Massachusetts. 
 
 As soon as Morris' motion for popular election was rejected, 
 Luther Martin moved that the executive be chosen by electors 
 appointed by the several State legislatures, but this was also lost 
 and the question on the words "to be chosen by the national 
 legislature " passed unanimously in the affirmative. The ques- 
 tion of term was postponed, the duties were passed according to 
 the Resolutions and it was voted to strike out the clause "to be 
 ineligible a second time." 2 
 
 That this unanimous vote on the mode of election was not 
 a settlement of the question was mainly due to the feeling of 
 the majority of the Convention that the executive should be re- 
 eligible, which was obviously undesirable, from the standpoint 
 of executive independence, should he be elected by the legisla- 
 ture. One member moved that since ineligibility had been re- 
 moved, the term be made for good behavior. Four States voted 
 for the motion, as Madison says in a note to his Journal, to alarm 
 those attached to a dependence of the executive on the legisla- 
 ture. An attempt to change the seven year term failed, 3 and the 
 Convention decided to reconsider the vote on the ineligibility 
 clause. 
 
 In the debate which followed we see again the wide diver- 
 gence between the political theories of prominent members. 
 One party urged a strong, independent, re-eligible executive as a 
 check to legislative tyranny and an appointment by the people, 
 or at least by electors chosen by them. The other contended 
 that if he were chosen by the legislature, the only proper mode, 
 he should be ineligible to prevent intrigue. Patterson proposed 
 that the executive should be appointed by electors chosen by the 
 States in a ratio that would allow one elector to the smallest and 
 three to the largest States. Madison spoke in favor of the elec- 
 toral system, as the best substitute for an election by the people 
 at large, which could not be used, as the Southern States had 
 such a large unenfranchised population. Gerry again tried to 
 bring in the State executives by proposing that the election be 
 by electors chosen by them. A formal motion for reconsidering 
 1 Ibid, II, 1287. 2 Eliiot, V, 325. 3 Ibid, V, 327. 
 
the Constitution of the executive having passed unanimously, a 
 motion was made l embodying Patterson's suggestion that the 
 executives u be chosen by electors appointed by the States in 
 the following ratio, to wit : one for each State not exceeding two 
 hundred thousand inhabitants ; two for each above that number 
 and not exceeding three hundred thousand, and three for each 
 State exceeding three hundred thousand." The question was 
 divided, the parts concerning the choice of electors by the State 
 legislatures being carried, that regarding the ratio, postponed. 
 The Convention refused to adopt a suggestion to make the 
 executive ineligible a second time, and changed the term from 
 seven to six years. 
 
 A glance at the State Constitutions will show that the prac- 
 tice had been to give the executive a short term, no State having 
 a longer period than three years, the majority having one. 2 This 
 precedent, together with the desire to make the term short 
 enough for re-eligibility and the dread of anything approaching 
 monarchy, was probably the motive prompting the shortening 
 of the term to the four years it finally reached. 
 
 On July aoth, Gerry proposed that there be twenty-five 
 electors in the following ratio : New Hampshire i, Rhode 
 Island i, Massachusetts 3, Connecticut 2, New York 2, New 
 Jersey 2, Pennsylvania 3, Delaware i, Maryland 2, Virginia 3, 
 North Carolina 2, South Carolina 2, Georgia i. This ratio was 
 objected to as being unjustly rigid, and an amendment was offered 
 that in the future it should be regulated by the respective repre- 
 
 1 Ibid, V, 338. Ellsworth. 
 
 2 Compiled from Poore's "Charters and Constitutions." 
 
 STATE 
 
 DATE OF 
 CONST. 
 
 TERM 
 
 LIMITATIONS 
 
 New Hamp. 
 
 1784 
 
 yr. 
 
 
 Vermont 
 
 1777 
 
 yr. 
 
 
 Massachusetts 
 
 1780 
 
 yr. 
 
 
 Connecticut 
 
 1662 
 
 i yr. 
 
 
 Rhode Island 
 
 I66 3 
 
 yr. 
 
 
 New York 
 
 1777 
 
 3 Y r - 
 
 
 Pennsylvania 
 
 1776 
 
 yr. 
 
 
 New Jersey 
 
 1776 
 
 yr. 
 
 
 Delaware 
 
 1776 
 
 3 Y r - 
 
 Ineligible for 3 years. 
 
 Maryland 
 
 1776 
 
 i yr. 
 
 Ineligible for 4 yrs., after 3 successive terms. 
 
 Virginia 
 
 1776 
 
 i yr. 
 
 Ineligible for 4 yrs., after 3 successive terms. 
 
 North Carolina 
 South Carolina 
 
 1776 
 1778 
 
 i yr. 
 2 yr. 
 
 Ineligible 3 years in 6. 
 Ineligible till 4 years. 
 
 Georgia 
 
 1777 
 
 lyr. 
 
 Ineligible for more than i year out of 3. 
 
sentations in the first branch of Congress. There is no record of 
 the disposition of this motion, and Gerry's ratio was carried. Pro- 
 vision was then made that the electors should neither be members 
 of the national Legislature, United States officers, nor eligible to 
 the chief magistracy, and that they should be paid out of the 
 national treasury. 
 
 A feeling of uncertainty and discontent centered around this 
 last decision, and soon a reconsideration was carried and a motion 
 was made to reinstate the election by the legislature. William- 
 son was for going back to the original ground and reconsidering 
 the number also, and he declared himself in favor of a triple 
 executive taken from the three sections of the country. Gerry 
 moved that the legislatures of the States should vote by ballot 
 for the executive in the same proportions that had been proposed 
 for the choice of electors ; that in case a majority should not 
 center on the same person the first branch of the legislature 
 should choose two of the four candidates having the greatest 
 number of votes, and out of these the second branch should 
 choose the executive. This motion being out of order no vote 
 was taken on it. The motion to leave the election to the na- 
 tional legislature was then carried, 1 making the third time that 
 the Convention had voted in the affirmative for this method. 
 Nevertheless, the question of ineligibility and term again divided 
 the body. After listening to suggestions of eight, eleven and 
 fifteen years, King ironically proposed twenty " as the medium 
 life of princes." 
 
 Wilson, in an effort to compromise, made the suggestion, 2 
 afterwards put into a motion, that the election should be made 
 by a small number, not more than fifteen, to be drawn from the 
 national legislature by lot ; these should immediately retire and 
 make the choice without separating. No vote was taken on 
 this. Gouverneur Morris again denounced the election by the 
 legislature as the worst possible mode. At this point he made 
 the first mention of the probable influence of party division on 
 the executive, who would necessarily u be more connected with 
 one than with the other." Another compromise to secure inde- 
 pendence of the executive was attempted in the motion 3 " that 
 the executive be appointed by the legislature, except when the 
 
 1 Elliot, V, 359, Vote : 7 to 4. 
 
 2 Ibid, V, 360. 3 Ibid, V, 363. Ellsworth. 
 
magistrate last chosen shall have continued in office the whole 
 term for which he was chosen and be re-eligible ; in which case 
 the election shall be made by electors appointed by the legisla- 
 tures of the States for that purpose." This anomalous method 
 was rejected, and Gerry re-introduced his favorite idea of an 
 election by the State executives. It was modified by the pro- 
 posal that they receive the advice of their councils, or, in case 
 there were no councils, by electors chosen by the legislatures, 
 the executives to vote in a fixed ratio. This also failed to come 
 to a vote. 
 
 Madison now took up the question and viewed it from all 
 sides, showing the dangers in the proposed methods, and again 
 declared his preference for direct election by the people, avow- 
 ing his willingness to make the sacrifice such an election would 
 entail upon the South. He was answered by the statement that 
 a popular election would be impossible, as the small States 
 would have no influence in it. Gouverneur Morris spoke 
 strongly against the rotation which an appointment by the 
 legislature, with ineligibility, would make necessary. He 
 seemed to be the only one having any idea of the influence 
 party would have on the question, and he pointed out the fact 
 that " a change of men is ever followed by a change of meas- 
 ures." 
 
 It was suggested that the difficulty in regard to the small 
 States in a popular election might be obviated by each man's 
 voting for three men, two of whom should be from some' other 
 State than his own. Morris suggested that two would be a 
 more convenient number, and this was followed by the " favor- 
 ite son " idea in the proposal 1 that the people of each State 
 choose its best citizen ; and, out of the thirteen names thus 
 selected, an executive might be chosen, either by the national 
 legislature or by electors appointed by it. After recapitulating 
 the various schemes which had been proposed, Mason moved 
 that the original report of the Committee of the Whole be 
 reinstated, and the motion was carried. This vote for the fourth 
 time to adopt what seemed to him so objectionable a provision 
 caused Morris to reiterate his arguments against the whole para- 
 graph. Nevertheless, it was referred to the Committee for 
 1 Ibid, V, 367. 
 
i6 
 
 drafting, and was reported back to the Convention on August 6th, 
 slightly different in form, but the same in substance. In addi- 
 tion, it was provided that the President of the Senate should 
 succeed in case of death or disability. 
 
 An effort was now made to provide a Council, which had 
 not met with general favor in the Convention, though the pre- 
 cedents reached back to the earliest Colonial times. In spite of 
 strong opposition, a committee, to which the subject was referred, 
 brought in a report embodying some of the ideas previously 
 submitted by Gouverneur Morris, 1 recommending a Council, to 
 consist of the President of the Senate, the Speaker of the 
 House, the Chief Justice of the Supreme Court and the princi- 
 pal officer in the respective departments of foreign affairs, 
 domestic affairs, war, marine and finance. This Council was to 
 be merely advisory. No vote was taken on this part of the 
 report, and on August 3ist it was referred to the Committee of 
 Eleven appointed for final drafting. 
 
 In the meantime debate was going on in regard to the ques- 
 tion of a joint ballot in the election of the executive by the 
 legislature. Such a ballot would virtually give the appoint- 
 ment to the House, and so deprive the small States, as such, of 
 their influence. It was moved 2 to insert " people " in the 
 place of u legislature ;" but this was rejected and the joint ballot 
 was finally decided upon. A motion that the legislature vote by 
 States was lost. Again Morris protested against the election by 
 the legislature, dwelling upon the dangers of such a mode and 
 ending by again moving the election by electors chosen by the 
 people of the States. His motion was lost by a vote of five to 
 six. The question of the electoral system was put u as an 
 abstract question " and was lost, the States being equally 
 divided. 3 
 
 Objections were raised to the President of the Senate as the 
 eventual successor, on account of his part in the election of the 
 President. This introduced for the first time the question of a 
 Vice-President ; but the desirability of creating such an office 
 was regarded as undetermined when it was referred to the Com- 
 mittee of Eleven on August 3ist. 
 
 The question of succession in case of death or disability of 
 1 Ibid, V, 446. 2 Ibid, V, 472. Carroll. 3 Ibid, V, 474- 
 
I? 
 
 the executive was such an important one that not a single State 
 Constitution had neglected it. 1 
 
 When the Committee reported on September 4th, to the 
 surprise of many in the Convention the plan for the executive 
 was entirely different from that referred to it, the electoral 
 system as finally adopted being reported, with the provision, 
 however, that the eventual election should be by the Senate. 
 When a particular explanation and discussion of the change 
 was called for, Morris answered categorically : there was danger 
 of intrigue and faction in an appointment by the legislature, 
 inconvenience in the necessary ineligibility and difficulty in 
 establishing a court of impeachment other than the same body 
 which was to elect the executive ; nobody was satisfied with 
 that method ; many wanted immediate choice by the people ; 
 and, finally, there was the all-embracing reason the indispen- 
 sable necessity of making the executive independent of the 
 legislature. The chief objection to the report was made con- 
 cerning the provision in regard to the Senate, which would 
 have a preponderance of power. Objections were also raised to 
 the number, five, from which the Senate had to select in case of 
 a non-election by the electors. Some considered it too large ; 
 others suggested as many as thirteen. A motion was made 2 to 
 
 1 New Jersey, 1776. Lieutenant Governor chosen by the Council. 
 Massachusetts, 1780. Lieutenant Governor chosen by people in same way 
 
 as Governor. 
 
 New Hampshire, 1784. Senior Senator acted in absence of Governor. 
 
 New York, 1777. Deputy Governor chosen by people in same way as Gov- 
 ernor. 
 
 Pennsylvania, 1776. Vice- President chosen by joint ballot of Assembly and 
 Council, from Council. 
 
 Rhode Island, 1663. Deputy Governor chosen as the Governor, by people. 
 
 South Carolina, 1778. Lieutenant Governor chosen by Assembly. 
 
 Vermont, 1777. Lieutenant or Deputy Governor chosen by people in same 
 way as Governor. 
 
 Virginia, 1776. President of the Council to act as Lieutenant Governor. 
 
 Connecticut, 1667. Deputy Governor chosen as Governor, by people. 
 
 Georgia, President of the Executive Council to exercise powers of Gover- 
 nor in his absence. 
 
 Maryland, 1776, The first named of the Council to act till he could call 
 Assembly. 
 
 North Carolina, 1776. Speaker of the Senate and Speaker of the House of 
 Commons to succeed in turn till new election. 
 
 Delaware, 1776. Speaker of the Legislative Council and Speaker of House 
 to succed in turn till new election. 
 
 2 Elliot, V, 512. Rutledge, Sept. 5. 
 
i8 
 
 go back to the plan of appointment by the legislature ; but the 
 arguments against this had caused such a change of sentiment 
 that the motion was lost by a vote of two to eight. The oppo- 
 sition then centered around the eventual election by the Senate, 
 and Wilson attempted, without success, to substitute the word 
 "legislature." Gerry suggested that six Senators and seven 
 Representatives, chosen by joint ballot of both Houses, form the 
 final electing body. This was not taken up, and on the next 
 day he suggested that, in case of no majority, if the President 
 were again a candidate, the second election should be made by 
 the legislature, instead of the Senate. Sherman was of the 
 opinion that, if the legislature had the eventual appointment, 
 it ought, in justice to the small States, to vote by States. 
 Hamilton was in favor of letting the highest number of ballots, 
 whether a majority' or not, elect the President, in order to keep 
 it out of the hands of the Senate, and Madison moved that one- 
 third of the electoral vote should elect. 2 The vote was strongly 
 in favor of referring the eventual election to the Senate ; yet, 
 when it was moved 3 that the House, voting by States, should be 
 substituted, the motion was carried by a vote of ten to one. 
 The principle involved seems to have been the anxiety to pre- 
 serve the weight of the small States. To safeguard this method, 
 it was decided that a quorum for the purpose should consist of a 
 member or members from two-thirds of the States, and that 
 concurrence of a majority of all the States should be necessary 
 to a choice. Unsuccessful attempts were made to lengthen the 
 term and to have all the electors meet at one place. 
 
 The most important part of the question- being finally 
 settled, the remaining discussion hinged upon the Vice-Presi- 
 dent and a Council. The former was opposed as being entirely 
 unnecessary and merely an appendage to a valuable mode of 
 election which required two to be chosen at the same time, in 
 order to allow the small States sufficient influence. Mason 
 thought the office an encroachment on the rights of the Senate, 
 and proposed, as a substitute, a Council chosen by the Senate, 
 of six members, two from the Eastern, Middle and Southern 
 sections of the country respectively. They were to rotate two 
 going out each year. He protested that, in rejecting a Council, 
 1 Ibid, V, 513. 2 Ibid, V, 514. 3 Ibid. 
 

 they were about to try an experiment on which the most des- 
 postic government had never ventured : " Even the Grand 
 Seignior has his Divan." His motion was rejected, although 
 seconded by Franklin and approved by Madison, Wilson, Dick- 
 inson and others. 
 
 The whole matter being referred to the final Committee, the 
 Article as placed in the Constitution resulted : 
 
 " The executive power shall be vested in a President of the 
 United States of America. He shall hold his office during the 
 term of four years, and together with the Vice-President, chosen 
 for the same term, be elected as follows : Bach State shall appoint, 
 in such manner as the Legislature thereof may direct, a number 
 of electors, equal to the whole number of senators and represen- 
 tatives to which the State may be entitled in Congress ; but no 
 senator or representative or person holding any office of trust or 
 profit under the United States, shall be appointed an elector. 
 
 " The electors shall meet in their respective States and vote 
 by ballot for two persons, of whom one at least shall not be an 
 inhabitant of the same State with themselves. And they shall 
 make a list of all the persons voted for, and of the number of 
 votes for each ; which list they shall sign and certify, and trans- 
 mit sealed to the seat of the government of the United States, 
 directed to the president of the Senate. The president of the 
 Senate shall, fti the presence of the Senate and House of Repre- 
 sentatives, open all the certificates, and the votes shall then be 
 counted. The person having the greatest number of votes shall 
 be the President, if such number be a majority of the whole 
 number of electors appointed ; and if there be more than one 
 w r ho have such a majority and have an equal number of votes, 
 then the House of Representatives shall immediately choose, by 
 ballot, one of them for President ; and if no person have a ma- 
 jority, then, from the five highest on the list, the said House 
 shall, in like manner, choose the President. But, in choosing 
 the President the votes shall be taken by States, the representa- 
 tion 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 States shall be necessary to a 
 choice. In every case, after the choice of the President, the 
 the person having the greatest number of votes of the electors 
 
20 
 
 shall be the Vice-President. But if there should remain two or 
 more who have equal votes, the Senate shall choose from them, 
 by ballot, the Vice-President." 
 
 In thus reviewing the work of the Federal Convention in 
 regard to the executive, we are struck with the fact that the 
 method finally evolved was a compromise between those who 
 wished a complete independence of the legistative body and 
 those who desired an entire dependence upon it. In the second 
 place we are impressed with the experimental nature of the plan. 
 The method of choosing the electors was thrown back upon the 
 States from sheer inability to decide upon a general mode ; the 
 reference to different branches of the legislature for the eventual 
 election of President and Vice-President had no precedent and 
 the lack of a designating principle was the result of a happy 
 thought to avoid a difficulty, rather than the logical outcome of 
 any principle. There is also a striking lack of any conception 
 of the inevitableness of party influence and government, which 
 * has proved the most basic fact of our national life. This seems 
 to be at the root of the difficulty in deciding upon some method 
 of election. 
 
 Hamilton said in the Federalist that the mode of choosing 
 the President was about the only part of the Constitution which 
 had escaped censure. Compared with the criticism of the other 
 parts this seems true, yet there were objections raised to this 
 portion, Gerry, Randolph, Mason and Luther Martin, each 
 made public his reasons for condemning the whole plan, and 
 each mentioned some provision regarding the executive. In the 
 Virginia ratifying Convention Monroe 1 objected to the mode of 
 election on the ground that it gave room for combination and 
 intrigue among the electors and for foreign influence in the 
 separate States. He condemned what he believed to be the 
 tendency to result in a dependence upon the State governments 
 rather than a reference to the people at large, and he felt that 
 the power of Congress to appoint the time of elections would 
 give a chance for undue interference. One member made out 
 an elaborate table to show that the President could be constitu- 
 tionally elected by the exceedingly small minority of 17 voices 
 1 Elliot, III, 220, 488. 
 
21 
 
 out of a possible I56. 1 Mason characterized the method as "an 
 ignis fatuus on the American people,-' thrown out to make them 
 believe they were to do the electing. 2 He suggested that the 
 eligible list in the House be limited to two. 
 
 In the North Carolina Convention it was asserted that the 
 power of Congress to determine the time of election would be 
 used by that body, in connection with its power over the army, 
 to control the election. Richard Henry Lee, who was an invet- 
 erate enemy of the plan, laid himself open to severe criticism 3 
 by misstating it, saying that it gave Virginia only one vote. 4 
 Gerry, in a pamphlet entitled " Observations by a Columbian 
 Patriot," 5 said that limiting the vote to the proposed proportion 
 was almost tantamount to an exclusion of the voice of the 
 people, and w r as vesting the choice solely in an " aristocratic 
 junto," which might easily combine in each State to place at 
 the head of the Union the most convenient instrument for 
 despotism. 
 
 In answer to these objections the advocates of the proposed 
 methods repeated the arguments given in the Convention. 
 Pamphlets were written and speeches were made to show that 
 there was absolutely no room for combination, intrigue or cor- 
 ruption among the electors. John Dickinson, in the u Letters 
 of Fabius " G called attention to the fact that undue influence 
 
 1 Table from Elliot, III, 492. 
 
 Number of electors = number of senators and representatives = 9*. 
 Each elector has 2 votes = 182. 
 
 Let 4 candidates get 45 votes apiece and i get 2 votes. 
 The election will be thrown into the House and 5 candidates voted on. 
 Vote by. States : 
 
 N. H. has 3 representatives, giving a majority of 2 votes. 
 . R.I. " i r 
 
 Conn. "5 "3 " 
 
 N.J. " 4 " ' 3 
 
 Del. " i i 
 
 Ga. " 3 " 2 " 
 
 N. C. " 5 " " " 3 " 
 
 Majority of 7 States = 15 votes. 
 Minority of States = 50 votes. 
 
 Total number of votes = 91 electors -f- 65 representatives = 156. 
 Total number of votes for President = 2 electors -f- 15 representatives = 17. 
 
 2 Elliot, III, 493. Pennsylvania Gazette, January 2, 1788. 
 * Elliot, I, 503. 
 
 " Pamphlets on the Constitution," 1787-88, P. L. Ford, p. 12. 
 6 Ibid, pp. 171-172. 
 
22 
 
 was prevented by entrusting the election to no standing body, a 
 point afterwards emphasized by Hamilton. Pinckney repeated 
 these arguments in the Legislature of South Carolina. 1 In the 
 North Carolina Convention 2 Iredell gave it as his opinion that 
 " in all human probability no better mode of election could have 
 been devised, and Davie declared it impossible for human 
 ingenuity to devise any mode of election better calculated to 
 exclude undue influence and combination. Noah Webster 3 
 makes a similar statement in one of his pamphlets. A note, 
 written in 1801, on his own copy, is an interesting admission : 
 " This proves how little dependence can be placed on theory. 
 Twelve years' experience, or four elections, demonstrates the 
 contrary." 
 
 While comparatively little criticism was made of the mode 
 of election, more fault was found with the re-eligibility and 
 powers given the President. 4 While Wilson was trying to 
 prove, in the Pennsylvania Convention, 5 that he would not be 
 the mere tool of the Senate, as was alleged by the opposition 
 in the Convention and in the press, 6 Patrick Henry was crying, 
 " Away with your President ! we shall have a King ! " and 
 " strongly and pathetically expatiating on the probability of the 
 President's enslaving America, and the horrid consequences that 
 must result." 7 The objections, especially those of Mason, to 
 the lack of a Council were answered by " A Landholder," 8 with 
 the statement that the States which had such Councils had 
 found them useless, and complained of them as a dead weight. 
 
 The Vice-President was attacked as being an " unnecessary 
 if not a dangerous " officer, 9 who gave undue prominence to his 
 State by having a casting vote in the Senate, 10 who had no stated 
 qualifications, 11 who simply presided in the Senate for want of 
 other employment 12 and who might be elected by the electors of 
 a single large State, since a majority vote was not requisite. 13 
 A very undesirable person might thus be elevated to a place 
 
 1 Elliot. IV, 304. 2 Ibid, IV, 107. 
 
 3 Ford's " Pamphlets," etc., pp. 35, 64-65. 4 Elliot, I, 491, 493- 
 
 5 McMaster and Stone : " Pennsylvania and the Federal Constitution," p. 398. 
 
 6 Ibid, p. 586. 
 
 1 Elliot, III, 60. 8 Pennsylvania Gazette, Dec. 26, 1787. 
 
 9 McMaster and Stone : "Pennsylvania and the Federal Constitution," p. 530. 
 
 10 Elliot, III, 486, 489. u Ford's " Pamphlets," etc., p. 310. 
 J2 Elliot, I, 495- 13 Elliot, I, 378. 
 
where he might at any time, by the death or disability of the 
 President, become the Chief Magistrate. Some of these points 
 were well taken, but little attempt seems to have been made to 
 answer them beyond a general exposition of the necessity for a 
 settled succession l and an explanation that his casting vote in the 
 Senate was just, since otherwise some State must be deprived of 
 its full representation to furnish a presiding officer. Davie, 2 
 who was a member of the Convention, explained that one of the 
 reasons why the office of Vice-President was introduced was to 
 prevent a deadlock in the Senate on important questions by 
 having some one who would give an impartial vote. Though 
 from some particular State, it was thought that the nature of his 
 office would render the Vice-President impartial. That this does 
 not appear in the debates is doubtless due to the imperfect 
 reports we possess. 
 
 None of the State Conventions proposed any Amendments 
 relating to the method of electing the executive ; three proposed 
 a change in the term. 
 
 When the ratification of the ninth State was laid before 
 Congress, a committee was appointed to report an Act for putting 
 the new Constitution into operation. 3 After much delay, occa- 
 sioned by the difficulty of deciding where the new Congress 
 should meet, it was resolved 4 that the first Wednesday in March 
 of the following year should be the day for inaugurating the 
 new government ; New York was to be the temporary seat. 5 
 
 Little of constitutional import in regard to the Chief 
 Executive can be gathered from the first two elections, because 
 of the personality of Washington. The weakness in the method 
 is to be seen in the intrigues centering around the Vice. 
 Presidency at every election until the designating of votes was 
 introduced by the Twelfth Amendment. From the beginning 
 it was understood that Washington would be called to fill the 
 office of President. It was hinted at in the Convention, the 
 newspapers spoke of it as a matter of course, 7 and no other name 
 
 1 " Ford's Pamphlets," etc., p. 349. ' 2 Elliot, IV, 42. 
 
 3 Journals of Congress, XIII, 36. July 2, 1788. 4 Ibid, XIII, 105. 
 
 5 Ibid, XIII, 36, 48, 57, 60-69, 73-75, 88, 95, 96, 99, 102-105. 
 
 6 Elliot, V. 154. 
 
 1 Pennsylvania Gazette, Sept. 26, 1787, March 5, 1788, July 2, 1788. 
 
2 4 
 
 was seriously considered, although Franklin, Patrick Henry, 
 Samuel Adams and John Hancock were suggested. To gain his 
 support for ratification in the Massachusetts Convention, Han- 
 cock was told that u if Virginia did not unite, which was prob- 
 lematical, he would be considered as the only fair candidate for 
 President," l but he seems to have been the only one to take his 
 candidacy seriously. 2 By the same medium of the press and of 
 private correspondence a Vice-President was called for to repre- 
 sent the other section of the country, and general sentiment 
 centered on John Adams as the most fitting person. 
 
 It was inevitable that the provision of the Constitution 
 which implied an equality of claims on the part of the two 
 candidates should be entirely disregarded, and at no election 
 previous to the passage of the Twelfth Amendment were two 
 men voted for as equals. A person unacquainted with the con- 
 stitutional provision would be unable to infer it from the ac- 
 counts of the electoral votes. An elector from Maryland 3 
 writes : " We all gave our votes for General Washington as 
 President and Colonel Harrison, our Chief Justice, Vice- 
 President." A letter from Virginia 4 says that ten of the twelve 
 electors of that State had " chosen unanimously George Wash- 
 ington, President. For Vice-President the honorable John 
 Adams had five votes, Governor Clinton three votes, the honor- 
 able Mr. Hancock, one vote and the honorable Mr. Jay one 
 vote." A letter from Boston 5 speaks of the ballots of the elec- 
 tors being u unanimously in favor of his Excellency General 
 Washington for President, and Mr. Adams, Vice-President." Of 
 course these were misstatements, as far as the letter of the Con- 
 stitution was concerned, for what each elector really did was to 
 write down the names of two men, not designating which he 
 meant for President. These examples, selected from many, are 
 enough to show how far the popular ideas were from conforming 
 to the constitutional provision. This divergence became con- 
 stantly greater as parties became better organized. 
 
 As soon as it was clearly understood who was to be the 
 Vice-Presidential candidate, intriguing began. The element of 
 
 1 Life and Correspondence of Rufus King (Putnam Ed., 1895), I, 319. 
 
 2 Ibid, I, 343. 
 
 3 Pennsylvania Packet, Feb. 12, 1789. * Ibid, Feb. 14, 1789. 
 5 Ibid, Feb. 16, 1789. 
 

 25 
 
 uncertainty involved in the clause of the Constitution which 
 prevented the electors from specifying their choice for the two 
 offices respectively was used with effect. In the first election it 
 was employed by Hamilton to prevent the elevation to the 
 Presidency of a man not intended by the people for that office. 
 In succeeding elections it was utilized by him to raise to that 
 station a person not designed for- it by his party. The manipu- 
 lation of this uncertain element, by which a man might be 
 brought into the executive office by clever wirepulling, irre- 
 spective of the popular desire, forms the keynote of the history 
 of the first four elections, and gives the struggle centering 
 around the Vice-Presidency, especially in 1796 and 1800, a 
 greater significance than is usually attached to it. Had it not 
 been for the attempts of the Federalists to elect Burr as Presi- 
 dent in 1801, the Constitution might have undergone amend- 
 ment, not by enactment, but by the slower process of public 
 opinion. Before the electors assembled in their respective 
 States on the first Wednesday in February, 1789, Hamilton had 
 busied himself seeing to it that no one should receive as many 
 or more votes than Washington, and the popular will thereby 
 defeated. This was the ostensible object of his advice to the 
 electors of several States. The influence he probably had is 
 shown by a letter from Trumbull to Adams, in which he says 
 an express from Hamilton caused the Connecticut electors to 
 throw away two votes " when they were sure they would do no 
 harm." The result of this interference, combined with the 
 desire of the States to honor their u favorite sons " with a com- 
 plimentary vote, brought down the number cast for Adams to 
 one less than a majority ; but, as the Constitution did not 
 require a majority vote for Vice-President, he was declared 
 elected. That the electors divided their second votes among 
 eleven men is significant ; in the first place, of the light in which 
 the office of Vice-President was regarded, and, in the second, of 
 the lack of party organization. The change in both respects 
 becomes marked in the succeeding elections. 
 
 During Washington's first administration, Congress passed 
 
 an electoral law regulating the time and manner of voting, and 
 
 the succession in case of death, resignation or disability of both 
 
 President and Vice-President. A committee, consisting of 
 
 1 Works of John Adams (1851), VIII, 484. 
 
26 
 
 Rutherford, Sherman and Burr, was appointed in the Senate 1 to 
 draft a bill for this purpose. It passed the Senate and was sent 
 to the House. That body proposed certain amendments, all of 
 which were agreed to except the suggestion that the Secretary 
 of State, instead of the President pro tempore of the Senate, 
 be the eventual successor. The House finally receded from this 
 and on February 21, 1792, passed the bill. The most import- 
 ant section, in view of the events of the election of 1801, was 
 that which provided that, in case of removal, death, resignation 
 or disability of both the President and Vice-President, the 
 President pro tern, of the Senate should act as President until 
 the disability should be removed or a new President elected. 
 In case there was no President of the Senate, the Speaker of 
 the House for the time being should act. 
 
 In the election of 1792 the Presidency was not brought 
 into question, since Washington consented to accept it for a 
 second time. The Vice-Presidency was the more important, 
 however, as its incumbent was the " heir apparent." The two 
 persons who offered themselves to the consideration of the 
 Republicans were Aaron Burr and George Clinton. The merits 
 and demerits of both were discussed by the leaders of the party. 
 Monroe 2 considered Burr impossible, while Jefferson 3 deprecated 
 the effect upon Republicanism which would follow the support 
 of a man who had virtually stolen the Governorship of his 
 State, as Clinton had just done. His conclusion is significant 
 in its bearing upon the political situation: "And for what [is 
 he to be supported]? to draw over the Anti-Federalists, who 
 are not numerous enough to be worth drawing over." Never- 
 theless, the party decided to give him its support. 
 
 Hamilton thought that the appearance of Burr was either a 
 diversion in favor of Clinton 4 or else a plan to divide the North- 
 ern vote and so let in Jefferson by the votes of the South. 5 His 
 recent conflicts with Jefferson caused him to consider him " a 
 man of sublimated and paradoxical imagination, cherishing 
 notions incompatible with regular and firm government ;" <; and 
 
 1 Annals of Congress. Second Congress, 1791-1793. Pp. 25, 30. 36. 
 - Writings of Monroe (Putnam Ed.), I, 242-244. June 10, 1792. 
 
 3 Writings of Jefferson (Putnam Ed.), VI, 90. June 21, 1792. 
 
 4 Works, V, 528. Sept. 23, 1792. 
 
 5 Ibid, V, 533. Oct. 10, 1792. V, 537. Oct. 22, 1792. 
 
 6 Ibid, V, 535. Oct. 15, 1792. 
 
27 
 
 he, therefore, determined for once to support Adams. There 
 were hints that u the degradation of Mr. Adams " would not be 
 unfavorably received in certain quarters ; x but, when the election 
 occurred, the entire Federal vote went for Adams, and all but 
 five of the Republican votes were given to Clinton. Those five 2 
 seem to have partaken of the complimentary nature of the 
 scattering votes of 1789. 
 
 Before the election of 1796, the first real Presidential 
 contest, Hamilton had determined upon his course, which in no 
 way contemplated the succession of Adams to the office of chief 
 magistrate. The Republicans seem to have felt from the 
 beginning that Jefferson was the only one whom they could 
 push w r ith success ; 3 and Burr, having taken the leadership of the 
 New York Republicans from Clinton, was named by the caucus 
 of I796 4 as the candidate for Vice-President. Among the mass 
 of the Federalists, it was taken for granted that Adams would 
 be the candidate for the Presidency, the only question being to 
 get some one for the second place who would cause a diversion 
 of Southern blows. But the leaders of the party had other 
 plans. Jay's prospects having been entirely obscured by the 
 Treaty, early in 1796 Hamilton requested Marshall to make 
 overtures to Patrick Henry to permit his name to be used at the 
 next canvass for the Presidency. Marshall returned his answer 
 through King, 5 who wrote Hamilton that Henry probably would 
 not agree to the arrangement, but that Gen. Thomas Pinckney 
 was about to return home ; to his former stock of popularity he 
 would add the good will of those gratified by the Spanish treaty, 
 and he would, if concurred in, receive as great or greater South- 
 ern and Western support than any other man. This suggestion 
 pleased Hamilton 6 even better than his own. It must be noted 
 that these suggestions are for a Presidential candidate. That 
 the Congressional caucus, held some time in the summer of 
 17967 nominated Adams for the Presidency and Pinckney for 
 
 1 Life, etc., of Rufus King, I, 430. Sept. 30, 1792. 2 Jefferson, 4 ; Burr. i. 
 
 3 Works of John Adams, VI, 544. Madison's Works, II, 83. 
 
 4 Gibbs' Memoirs, II, 488. "An Examination of the Various Charges 
 against Aaron Burr, and a Development of the Character and Views of His 
 Political Opponents." Phila., 1803. By Aristides (Wm. Van Ness). 
 
 5 Life, etc., of Rufus King, II, 46. May 2, 1796. 
 
 6 Hamilton's Works, 1851, VI, 114. May 4, 1796. 
 1 Gibbs' Memoirs, II, 488, 
 
28 
 
 the Vice-Presidency did not interrupt the plan to make use of the 
 lack of a designating principle in the Constitution to bring 
 Pinckney into the first office. 
 
 In June, King went to England as Minister, and in the 
 frank and rather gossipy letters written him by Troup and other 
 friends we get a glimpse of the way matters were progressing. 
 November i6th, Troup wrote him 1 that in New York the electors 
 were all good men, who would vote unanimously for Adams and 
 Pinckney. " I am inclined to think," he added, il and such is 
 the inclination of our friends here, that Mr. Adams will not 
 succeed ; but we have Mr. Pinckney completely in our power if 
 our Eastern friends do not refuse him some of their votes under 
 the idea that if they vote for him unanimously they may injure 
 Mr. Adams. Upon this subject we are writing to all our East- 
 ern friends and endeavoring to make them accord with us in 
 voting unanimously for Mr. Adams and Mr. Pinckney." Another 
 friend wrote to King from Philadelphia, 2 on Nov. 29th that the 
 election of electors were so far closed as to determine with con. 
 siderable accuracy the result. The friends of Adams calculated 
 on a majority in his favor, but so small that it would be risking 
 too much to trust entirely to it. He concluded, " It is therefore 
 deemed expedient to recommend to the Federal electors to give a 
 uniform vote for Mr. Pinckney, which, with those that he will 
 obtain to the Southward, detached from Mr. Adams, will give 
 him a decided majority over the other candidates." Later Hig- 
 ginson 3 wrote to Hamilton from Boston : " Your letter of 28th 
 of last month 4 I received, and communicated its contents to 
 some of our electors ; a majority of them were at first inclined 
 to throw away their votes from Mr. Pinckney, lest he should rise 
 above Mr. Adams, but your information as to Vermont, with 
 some observations made to them, showing the danger of so 
 doing, decided all but three, who were determined, upon inter- 
 ested and personal motives to waste theirs. Several hours were 
 spent in discussion before they voted ; the result was 16 for 
 Adams, 13 for Pinckney, 2 for Governor Johnston and i for Mr. 
 Ellsworth." He further gave his opinion that, by the Southern 
 votes, Pinckney would probably come in first, in which case he 
 
 1 Life, etc., of Rufus King, II, no. Nov. 16, 1796. 
 
 2 Ibid, II, 112. 3 Hamilton's Works, VI, 185-186. Dec. 9, 1796. 
 * Not found in Hamilton's Works. 
 
29 
 
 suggested that Hamilton, Governor Jay and the President should 
 arrange some plan to conciliate and appease Adams or " serious 
 inconveniences " might result. The result of this solicitude for 
 Federal success at the expense of Adams was the defeat of 
 Pinckney, since the New England electors, in a fright, threw 
 away as many as eighteen votes, while the only Southern State 
 which gave Pinckney votes but withheld them from Adams was 
 South Carolina. 
 
 While the exact vote was still uncertain Jefferson wrote 
 Madison 1 that a tie between himself and Adams seemed possible, 
 since it was not likely that the Eastern States would suffer them- 
 selves to be made tools for bringing in Pinckney over Adams. 
 He also thought of the possibility of no majority among the 
 representatives, in case the election went to the House, a diffi- 
 culty for which the Constitution provided no remedy and one 
 which finally occurred in 1801. He requested 2 Madison to declare 
 on every occasion, if a contest arose, that his desire was for Adams 
 to be preferred " to prevent the phenomenon of a pseudo-president 
 at so early a date." Fortunately no such contest arose, and Adams 
 became President with three votes more than Jefferson received. 
 A fact which had an important bearing on the next election was 
 the defection of Virginia and North Carolina from Burr, giving 
 him only seven votes out of a possible thirty-one. 
 
 Soon after his inauguration Adams wrote a letter, which is 
 so characteristic that it deserves to be quoted : 3 " It is a delicate 
 
 thing for me to speak of the late election Had Mr. Jay 
 
 or some others been in question, it might have less mortified my 
 vanity, and infinitely less alarmed my apprehension for the public. 
 But to see such a character as Jefferson, and much more such an 
 unknown being as Pinckney, brought over my head, and tramp- 
 ling on the bellies of hundreds of other men infinitely his superiors 
 in talents, services and reputation, filled me with apprehensions 
 for the safety of us all. It demonstrated to me that, if the pro- 
 ject succeeded, our Constitution could not have lasted four years. 
 
 That must be a sordid people, indeed, a people destitute 
 
 of a sense of honor, equity and character, that could submit to be 
 governed and see hundreds of its most meritorious public men 
 
 1 Jefferson's Works (Putnam Ed.), VII, 91. Dec. 17, 1796. 
 
 2 Ibid, VII, 105. 
 
 Works of John Adams, VIII, 535 ; March 30, 1797, To Knox. 
 
30 
 
 governed by a Pinckney under an elective government .... I 
 mean by this no disrespect to Mr. Pinckney. I believe him to be 
 a worthy man. I speak only by comparison with others." 
 
 By the fall of 1799 the measures of Adams' administration, 
 especially the French Mission, had so exasperated the Hamilton 
 wing of the Federalist party that they were determined to get 
 rid of him, unless pushed to his support by extreme necessity. 1 
 Again they cast about for a presidential candidate of sufficient 
 strength to supplant him, and Gouverneur Morris wrote to Wash- 
 ington 2 on December 9th, setting forth the dissatisfaction with 
 Adams and urging him to come forward for a third term. As 
 Washington died on December I4th, it is probable that he never 
 saw this letter. They discussed Chief Justice Ellsworth and 
 C. C. Pinckney, 3 but in May, 1800, the result of the New York 
 elections showed that division meant defeat. 
 
 In the balanced state of parties it had been seen that 
 Republican success in the New York State elections probably 
 meant national success, 4 that defeat there was certain ruin of 
 national hopes. In this crisis Burr's political sagacity and 
 adroitness were given full play, and to him the victory was 
 ascribed by both friend and foe. 5 By making up a ticket for 
 the Assembly of such men as Clinton, Gates and Brockholst 
 Livingston the Republicans carried the day against the Federal 
 ticket, made up of comparatively unknown men, selected mainly 
 for their pliancy. 6 The New York elections were settled on May 
 2d. On May yth Hamilton wrote to Governor Jay suggesting 
 an extra session of the Legislature to change the electoral law, 
 and so deprive the Republicans of the fruits of the victory just 
 gained at the polls. His father-in-law, General Schuyler, wrote 
 a similar letter, on the same day, saying that the plan was sug- 
 gested by leading Federalists, Marshall among the number, but 
 Jay refused to consider the suggestion. On May loth Hamilton 
 wrote 7 that he would never again be responsible for Adams by 
 
 1 Life, etc., of King, III, 142. Nov. 6, 1799. Ill, 173. Jan. 5, 1799. 
 
 2 Sparks : "Life and Writings of Gouverneur Morris," III, 123. 
 
 3 Life, etc., of King, III, 209. 
 
 * Writings of Jefferson, VII, 432-434. March 4, 1800. 
 
 5 Adams : "Life of Gallatin," pp. 232-240. Adams' Works, X, 125. 
 
 6 Parton : "Life of Aaron Burr," I, 246-252. 
 
 7 Hamilton's Works, VI, 441. To Sedgwick. 
 
his direct support, even though the consequence should be the 
 election of Jefferson, adding that the only way to prevent a 
 fatal schism in the Federal party was to support Pinckney in 
 good earnest. The next day Sedgwick, Speaker of the House, 
 wrote to King * that there had been a meeting of the whole 
 Federal party in Congress, and that they had agreed to support, 
 bona fide, Adams and C. C. Pinckney, that is, to give an equal 
 vote to each as the only way to "escape the fangs of Jefferson." 
 Gore also wrote to King that it was possible they might be so 
 alarmed at the elections in New York as to be true to the agree- 
 ment, but he doubted it. In the meantime Hamilton was de- 
 nouncing Adams 2 and urging that equal votes be obtained for 
 both candidates in New England, so that by extra Southern 
 votes Pinckney might come in first. He consulted various per- 
 sons concerning the advisability of a private publication against 
 Adams, and on October 2 ad the famous " Letter Concerning 
 the Public Conduct and Character of John Adams, Esq., Presi- 
 dent of the United States " was printed, It was a vehement 
 personal as well as political arraignment of Adams, and its 
 boomerang nature was seen when Burr, immediately obtaining 
 possession of it, made parts of it public, thus compelling the 
 publication of the whole. 
 
 In the Republican party the leadership and first place were 
 conceded without question to Jefferson, and it remained only to 
 decide upon the person to be voted for as Vice-President. Gal- 
 latin was at this time the leader of the Republicans in Congress, 
 and as a Congressional caucus would nominate, Matthew L. 
 Davis, Burr's closest friend, kept Gallatin informed of Burr's 
 part in the political affairs in New York, ending a series of 
 letters with a direct query as to the Vice-Presidential candidates. 3 
 He discussed the merits of the three possible candidates, Clin- 
 ton, Livingston and Burr, and urged that the last named be re- 
 warded for his services. Gallatin endeavored to find out the 
 wishes of the New York Republicans through his father-in-law, 
 Commodore Nicholson, prominent in New York politics. He 
 was informed that Livingston was undesirable, that Clinton de- 
 clined to run and that unbounded confidence was reposed in 
 
 1 Life, etc., of King, III, 238. May u, 1800. 
 
 2 Hamilton's Works, VI, 483. 
 
 3 Adams' "Life of Gallatin", pp. 232-240. 
 
32 
 
 Burr, who was considered the only suitable person. 1 Upon 
 receipt of this information a caucus was held, May nth, Galla- 
 tin reported, and it was unanimously agreed to support Burr for 
 Vice-President. 2 Burr, however, had held in mind the Repub- 
 lican votes which he did not get in 1796, aiid he recalled the 
 fact to those who approached him in regard to his candidacy. 
 There is no proof that he was given pledges for an equal vote 
 with Jefferson, as was stated afterwards, 3 but it is certain that he 
 took care to impress the matter upon the Southern leaders, 4 and 
 there are indications that a tie was contemplated by him. So 
 close was the contest sure to be that in November, 1799, Sedg- 
 wick had found consolation 5 in the fact that a "good decision " 
 would be made by the House in case the u Jacobins should be 
 unable to procure for their candidate for the presidency a 
 majority." The tie contemplated by him, however, was prob- 
 ably one between the rival leaders rather than between the two 
 Republican candidates. 
 
 The developments of a year caused Madison to anticipate 
 the tie which occurred, and the suspicions that the Republicans 
 entertained of Burr may be seen in Madison's denial of them. 
 November 10, 1800, he wrote to Monroe" that he could not 
 apprehend any danger of a surprise that would throw Jefferson 
 out of the first place, nor did he believe that a single Republican 
 vote would abandon him. He thought that the worst that 
 could possibly happen would be a tie between Jefferson and 
 Burr, which would, of course, be satisfactorily arranged in the 
 House. As time went on the likelihood of a tie became greater, 
 and when the South Carolina vote became known, Jefferson 7 
 wrote to Burr that it was badly managed not to have arranged 
 with certainty what seemed to have been left to hazard, that is, 
 that some one elector should have been instructed to throw 
 away his vote to prevent a tie, as was done in the Federal party. 
 It seems that Burr's friend, Gelston, had assured Madison 8 that 
 such an arrangement had been made in two or three States. 
 Whether he was preventing any further move on the part of 
 
 1 Ibid, p. 242. May 7, 1800. 2 Ibid, p. 243. May 12, 1800. 
 3 Gibbs' Memoirs, II, 488. 4 Madison's Works, II, 160, 162. 
 5 Life, etc., of King, III, 146, 155. 6 Madison's Works, II, 163. 
 
 7 Writings of Jefferson, VII, 467. Dec. 15, 1800. 
 
 8 Madison's Works, II, 166. Dec. 20, 1800. 
 
33 
 
 Madison or really thought he was telling the truth, cannot be 
 determined. When the full vote became known, it was found 
 that no Republican elector had failed to vote for both candi- 
 dates, and therefore that the election would devolve upon the 
 House of Representatives. It was part of the gossip of the day 
 that the South Carolina vote had been diverted from Pinckney 
 to Burr by young Mr. Alston, afterwards Governor of the State, 
 whom Burr rewarded for his services with the hand of his 
 daughter Theodosia. l 
 
 When it became evident that the House would have to 
 make the final choice, the Federalists, who were in the majority 
 in that body, began to indulge in the wildest schemes to prevent 
 an election and then to pass a new law giving the Presidency 
 to the Chief Justice ; to let the office devolve upon the President 
 pro tern of the Senate or to elect Burr instead of Jefferson. 
 Hillhouse was said to have drafted a bill embodying the first 
 mentioned plan, 2 but it was not brought forward. Gouverneur 
 Morris and the other more farsighted Federalists advised against 
 it, 3 and it was foreseen that no one would be willing to assume 
 the responsibility of such a usurpation. The result was that 
 the last-named scheme was decided upon, and the Federalist 
 Representatives united in the attempt to give Burr the first 
 place, thus making use of the lack of a designating principle in 
 the Constitution to do for their opponents what Hamilton had 
 been trying to do for them. This policy was not definitely de- 
 cided upon until the Republicans had become very much agi- 
 tated over the prospect of having both Jefferson and Burr set 
 aside. As soon as Hamilton heard of their intentions he wrote 
 to Wolcott, deprecating the scheme : u There is no doubt but 
 that, upon every virtuous and prudent calculation, Jefferson is 
 to be preferred. He is by far not so dangerous a man, and he 
 has pretensions to character. As to Burr, there is nothing in 
 
 his favor He is truly the Cataline of America." 
 
 In view of the credit usually given to Hamilton for the defeat 
 of this attempt jof the Federalists, it is interesting to see that 
 his letters 4 plead reasons of Federal expediency and the per- 
 
 " Life of Gallatin," pp. 244-245. Life, etc., of King, III, 459. 
 
 2 Aurora. March 16, 1801. 
 
 3 Life, etc., of Gouverneur Morris, III, 132-133. Dec. 19, 1800. 
 
 4 Hamilton's Works, VI, 419, 495, 497, 499, 500, 502, 517, 520, 521. 
 
34 
 
 sonal uufitness of Burr rather than the political dishonesty of 
 bringing in as President a man whom no one had wished or in- 
 tended for that place. It is doubtful if he ever saw it in that 
 light, so much had his own efforts been directed towards a 
 similar result. 
 
 The day appointed for counting the electoral vote was 
 February n, 1801, and as the Federalists openly discussed their 
 intentions it behooved the Republicans to decide upon a plan of 
 action adequate to the emergency. They declared that should 
 Burr be elected they would acquiesce, though not cheerfully, 
 since that would be within the letter of the Constitution, 1 but 
 that they would not submit to a law to name a President. Cal- 
 culations were made to show that should the Federalists pass a 
 law for a new election they might gain the helm again, 2 since 
 in the five New England States, New Jersey and Delaware, both 
 branches of the Legislature were Federal, in New York, 
 Pennsylvania, Maryland and South Carolina, the Senates were 
 Federal, and those four States would refuse to act ; therefore the 
 49 votes of the New England States, New Jersey and Delaware 
 would outweigh the 44 votes of the Southern States which were 
 Republican. Such discussions called forth the letter from 
 Madison to Jefferson, which has been denounced as a u bitter 
 comment on his political honesty," and a shameful recantation 
 of his principles. 3 He wrote : " On the supposition of either 
 event, whether of an interregnum in the Executive, or of a sur- 
 reptitious intrusion into it, it becomes a question of the first 
 order, what is the course demanded by the crisis? Will it be 
 best to acquiesce in a suspension or usurpation of the Executive 
 aiithority till the meeting of Congress in December next, or for 
 Congress to be summoned by a joint proclamation or recom- 
 mendation of the two characters having a majority of votes for 
 President? My present judgment favors the latter expedient. 
 The prerogative of convening the Legislature must reside in one 
 or other of them, and if both concur, must substantially include 
 the requisite will. The intentions of the people must un- 
 
 1 Writings of Jefferson, VII, 469. Dec. 18, 1800. Aurora. Feb. 9, 1801. 
 Open letter to John Marshall. 
 
 2 " Life of Gallatin," p. 255. 
 
 3 McMaster : " History of the People of the United States," II, 516-517. 
 J. C. Hamilton : " History of the Republic," VII, 431-432. Von Hoist : " Con- 
 stitutional History of the United States," I, 171. 
 
35 
 
 doubtedly be pursued and if, in reference to the Constitution, the 
 proceeding be not strictly regular, the irregularity will be less in 
 form than any other adequate to the emergency, and will lie in 
 form only, rather than in substance ; whereas the other remedies 
 proposed are substantial violations of the will of the people, of 
 the scope of the Constitution and of the public order and 
 interest." 
 
 Not even the Federalists denied that it would be a 
 " stretcli " if not an open violation of the Constitution to hand 
 over the Presidency to the President pro tern, of the Senate or 
 to a person specially designated by law, when there were per- 
 sons, constitutionally elected, to be chosen from. Nor did either 
 party fail to see that the success of such an effort would en- 
 danger the republic. Such a contingency had never been con- 
 templated by the framers of the Constitution and any measure 
 whatever that might be taken to meet it must necessarily be 
 outside the provisions of that document. It seems hardly just, 
 therefore, to accuse Madison, although he was a strict construc- 
 tionist, of being politically dishonest in his attempt to meet by 
 an extra-constitutional measure a violation of the Constitution 
 so unexpected that no remedy had been provided, in State or in 
 Nation, and to acquiesce in which might mean a virtual disso- 
 lution of the Union. 
 
 Madison asked further in his letter if it were possible that 
 Adams would sign such a law as the Federalists were discuss- 
 ing. Jefferson so far deserted his attitude of a spectator as to 
 approach Adams on the subject, 1 but found him intractable, as 
 usual. Adams soon after wrote 2 to Gerry that he saw no more 
 danger of a political convulsion if Congress should make a 
 President than if Jefferson or Burr should be declared such. He 
 thought " the people would be as well satisfied " in one case as 
 in the other. Marshall was said to have expressed a similiar 
 opinion. 3 . 
 
 The Republicans were meeting all over the country and 
 expressing their opinion in quite a different vien. In Philadel- 
 phia they formally asserted 4 that in the original nominations 
 
 1 Writings of Jefferson. Anas, I, 313. 
 
 2 Works of John Adams, IX, 98, Feb. 7, 1801. 
 
 3 Writings of Monroe, III, 256, Jan. 18, 1801. Aurora, Feb. 9, 1801. 
 
 4 Aurora, Jan. 12, 1801. 
 
36 
 
 Jefferson was designed for the Presidency, and in some places it 
 was declared that legislative usurpation would be met by force. 1 
 The Virginia Legislature, in session at the time, manifested a 
 spirit not to submit to such usurpation and adjourned only on 
 the assurance that Governor Monroe would convene them again 
 should such a plan be attempted at Washington. 2 
 
 As the time approached for the decision by the House it 
 became necessary, in the absence of all precedents, to make 
 some rules by which to conduct the election. The committee 
 appointed, consisting of ten Federalists and six Republicans, 3 
 reported a set of rules on February 6th. The Republicans were 
 unsuccessful in the attempt to change the provisions that the 
 House should not adjourn till a choice was made and that the 
 balloting be done with closed doors. The report was adopted as 
 presented. By these rules it was decided that when the House 
 returned from the electoral count, after having provided seats for 
 the members and President of the Senate, it should ballot with 
 closed doors, without interruption and without adjournment, 
 till a choice should be made. The method of balloting was, of 
 course, by States, the delegates of each sitting together. Each 
 delegation was to chose tellers if necessary, and the vote of each 
 State was to be prepared, with a duplicate. The votes and the 
 duplicates, deposited by different persons in separate boxes, 
 were to be taken to separate tables and there counted by a com- 
 mittee of one from each State, who should divide the work. If 
 they agreed in a count the result should be reported, if not, a 
 new ballot was to be taken. When either candidate was -re- 
 ported to have a majority, the Speaker should declare it and 
 give official notice to the President and Senate. All questions 
 incidental to the choice were to be decided by States, without 
 debate, a tie vote being considered as negative. While these 
 rules were being debated some of the Federal newspapers, such 
 as the Boston Centinel, were advocating the election of Burr and 
 comparing him with Jefferson, much to the disadvantage of the 
 latter. An " Essay by Eumenes," which appeared in the Wash- 
 ington Federalist, argued that in case of no election Adams and 
 
 1 Aurora, Feb. 9, 1801. Writings of Jefferson, VII, 491, Feb. 15, 1801. 
 
 2 Writings of Monroe, III, 256, Jan. 18, 1801. Ill, 257, Jan. 27, 1801. 
 
 3 Annals of Congress (6th Congress), 1799-1801, pp. 987, 990, 1006, 1007, 
 1010. 
 
37 
 
 Jefferson should continue in office for the ensuing four years. 
 After the balloting began the Federalists were urged ' not to 
 sacrifice their duty shamefully by handing the Constitution over 
 to the hazardous hands of a foe so dangerous as Jefferson. 
 
 It is hardly necessary to repeat the story of the balloting. 
 It was begun on February i ith and continued six days, through 
 thirty-six ballots, in thirty-five of which the vote stood : eight 
 States for Jefferson, six for Burr and two divided. After the 
 thirtieth ballot a motion was made to postpone the next ballot 
 till March 3rd, but the motion was unanimously rejected. When 
 it was seen that Burr could not be forced to commit himsel/and 
 that the Republican members could not be coerced into voting 
 for him for fear of continuing the deadlock after March 3rd, 
 Bayard of Delaware, who practically held the decision in his 
 hands, determined to settle the contest by allowing Jefferson to 
 be elected. Jefferson regarded the method taken as a declara- 
 tion of war, 2 for instead of actually voting for him some of the 
 Federalists gave in blanks, thus throwing away the votes of 
 Delaware and South Carolina and giving him those of Vermont 
 and Maryland. New Hampshire, Massachusetts, Rhode Island 
 and Connecticut voted for Burr to the end. The main body of 
 the Federalists out of Congress condemned the action of their 
 representatives and felt great relief when the struggle terminated 
 as it did. 
 
 As soon as the election was over the Aurora 3 voiced a very 
 general sentiment when it expressed the hope that some change 
 would be made in the Constitution which would prevent the 
 repetition of such u disgraceful scenes " as had just taken place. 
 Jefferson's correspondence 4 just before the election suggests the 
 need of an amendment. Later, in a letter to Gallatin, he men- 
 tioned an amendment which he said would be proposed to do 
 away with the electors and have a direct vote by the people, the 
 ticket having the plurality of the vote of any State to be con- 
 sidered as receiving thereby the whole vote of the State. This 
 does not mention the designation of votes, and there is no record 
 
 1 Washington Federalist, Feb. 12, 1801. 
 
 2 Writings of Jefferson, VII, 494, 497. 
 
 3 Aurora, Feb. 20, 1801. 
 
 * Writings of Jefferson, VII, 474, 488, 490, 491. 
 5 Ibid, VII, 94. Sep, 18, 1801. 
 
of its having been offered in Congress, but from this time for- 
 ward the subject of an amendment was agitated in the State 
 Legislatures l as well as in Congress. 
 
 As early as 1801 Gallatin discussed 2 the necessity for a 
 designating amendment to avoid embarrassment in the election 
 of a Vice-President in 1804. He had discovered among a large 
 majority of the Republicans a want of confidence in Burr of 
 which he had not been aware when he supported his nomina- 
 tion. He spoke of that nomination as not having been a neces- 
 sity at the time, and as a capital fault if the Republicans were 
 determined not to support him for the eventual succession. 
 There is the evidence of Bayard, who had the whole matter in 
 his hands, 3 that Burr did not give his definite co-operation to the 
 scheme for his election. Nevertheless he trimmed so close to 
 the wind that although the Republican press teemed with com- 
 pliments upon his high stand and his unwillingness to take 
 the place not intended for him, distrust deepened among the 
 Republican leaders. He was practically an isolated man from 
 the time Jefferson's administration began. 
 
 It is worth while to notice just here the part in executive 
 business which had been taken by Adams and Jefferson while in 
 the office of Vice-President. Although Adams complained of 
 his office as wholly insignificant and the only situation in the 
 world where firmness and patience were useless, 4 he was con- 
 sulted by Washington in many of the most important measures 
 of the government, in the same manner as were the Heads of 
 Departments. In 1789 the question of executive etiquette 5 was 
 submitted to his judgment. In 1790 his opinion was asked 6 in 
 regard to an important matter of foreign relations. When 
 Washington went on his Southern tovir in 1791 he sent instruc- 
 tions 7 to his Secretaries to consult Adams on important matters, 
 and this was done, though informally, at a dinner given by 
 Jefferson. In 1794, Washington sent him the papers relating to 
 the Genet affair, 8 asking his advice in regard to the proper 
 
 1 Writings of Monroe, III, 317. Dec. 7, 1801. To General Assembly of 
 Virginia. 
 
 2 Life of Gallatin, p. 287. 
 
 3 Hamilton's Works, VI, 524. March 8, 1801. 
 
 * Works of John Adams, IX, 573, Jan. 22, 1791. 5 Ibid, VIII, 489. 
 
 6 Ibid, VIII, 496. 7 Writings of Jefferson, I, 165. 
 
 8 Works of John Adams, VIII, 515. 
 
39 
 
 policy to pursue. These examples are sufficient to show that 
 Adams was given some place in executive councils, whether his 
 influence was very great there or not. 
 
 One of the reasons Madison advanced ] when urging Jeffer- 
 son to accept the Vice-Presidency in 1796, was the valuable 
 effect his proximity would have upon Adams' councils, especially 
 in regard to foreign affairs. Jefferson replied 2 that, as to duty, 
 the Constitution would know him only as a member of a legis- 
 lative body, its principle being that of a separation of functions, 
 except in cases specified. A little later he distinctly stated 3 that 
 he would take no part whatever in executive consultations even 
 if it were proposed. That such participation would not be urged 
 upon him was natural, in view of the height to which party 
 spirit had risen. Before his inauguration Adams called upon 
 Jefferson and consulted him about relations with France. 4 This 
 was the only time that such a consultation occurred, for after 
 his inauguration and the meeting of his Cabinet, Adams saw 
 the impossibility of including in his councils the leader of the 
 opposition to his administration. 
 
 As early as 1796 the closeness of the race between Adams 
 and Jefferson caused apprehension on the part of the Federalists, 
 and an amendment was offered for the designation of votes by the 
 electors. 5 Similar efforts were made in 1797 and I798 7 and 
 again in i8oo, 8 but they aroused little interest and the subject 
 was dropped. During the session of i8oo, 9 an amendment was 
 proposed for districting the States for electoral purposes. This 
 proposal for districting always appears in close connection with 
 that for the discrimination in electoral votes, but was not acted 
 upon by Congress. In 1802 the New York Legislature recom- 
 mended the adoption of an amendment including both measures. 
 By these resolutions the States were to be the districting 
 
 1 Madison's Works, II, 108. Dec. 19, 1796. 
 
 2 Writings of Jefferson, VII, 108. Jan. 22, 1797. 
 
 3 Ibid, VII, 120. May 13, 1797. 
 
 4 Ibid. I, 272-273. March 2, 1797. 
 
 5 Annals 8th Cong., ist session. 1803-1804. p. 205. 
 
 6 4th Cong., 2d session, p. 1824. 
 
 7 Jefferson's Writings, VII, 193, and sth Cong., Vol. I, 493, 
 
 8 6th Cong., Feb. 4, 1800, p. 510. 
 
 9 6th Cong., March 14, 1800, p. 627. 
 
40 
 
 organs. A curious misunderstanding of this part of the ques- 
 tion seems -to have been in the mind of Hamilton, who heartily 
 approved of the measure, but in letters l on the subject referred 
 to the districting as under the direction of the national Legisla- 
 ture. Such a radical difference is the more inexplicable since 
 Hamilton himself was the author of the New York resolutions 2 
 and must have been aware of so important a change made in 
 his draft. 
 
 A review of the attempts cited show that though the desig- 
 nating amendment was finally passed as a Republican party 
 measure, the earliest advocates of the principle involved were 
 the Federalists. It was recommended first by the Federalist 
 Legislature of New Hampshire, twice by the Federalist Legis- 
 lature of South Carolina, unanimously in New York, where the 
 Senate was Federalist, and at different times by the Legislatures 
 of Vermont, Massachusetts, Tennessee, Ohio, Kentucky and 
 North Carolina, and the indications are that in so far as it was 
 a party measure at first it was Federalist. 
 
 On February 15, 1802, the New York resolutions were pre- 
 sented in the House by the Republicans, and on April I2th in 
 the Senate. The districting portion was dropped and the rest 
 of the question was not taken up again in the House till May 
 ist, when its consideration was objected to on account of the 
 late period of the session, when members were occupied in pre- 
 paring to depart and " in packing up their clothes, with which 
 they had packed up many of their ideas." Huger, of South 
 Carolina, who afterwards opposed the amendment, declared him- 
 self in favor of the principle, but protested against taking such 
 an important step so hastily. He pointed out that there was 
 scarcely a quorum and that were all the Federalists present they 
 would have more than the third necessary to defeat the measure. 
 The question being taken on the amendment, 3 it was lost in 
 Committee of the Whole, but the House refused to concur in 
 the report and on the third reading it was carried 4 and sent to 
 the Senate. 
 
 The lack of argument on the merits of the question, the 
 
 1 Hamilton's Works, VI, 531, to G. Morris ; VI, 536. (To Bayard and not 
 to Morris, as is given in his Works). 
 
 2 Ibid, VII, 836. 3 7th Congress, ist session, p. 1291. 
 4 By vote of 47 yeas to 14 nays. 
 
long postponement from February iQth till May ist, and the 
 haste with which it was pushed through, seem to substantiate 
 Huger's charge that it was a party measure and that the course 
 taken in regard to it was a high-handed method of gaining an 
 end which could not have been gained if an ordinary course 
 had been pursued. From being a Federalist measure it had 
 changed to a Republican one and there was a complete reversal 
 of party action on the subject. This change is further empha- 
 sized by what took place in the Senate. 1 There is no record of 
 any debate. On May 3d, the amendment as sent from the 
 House was taken up, put to vote and lost, the vote 2 not being 
 the necessary two-thirds. That it was lost was due to the vote 
 of Gouverneur Morris, and since he represented New York, 
 which had unanimously recommended it, he felt it necessary to 
 explain his conduct. This he did in a letter to the Senate and 
 Assembly of New York 8 in which he gave these reasons : that 
 he was opposed to amendments on the general ground that they 
 lessened respect for the constitutional compact, that it is better 
 to bear the evils we know than to hazard those we are unac- 
 quainted with and that the existing mode seemed preferable to 
 the change proposed. That such flimsy excuses should, have 
 been offered by a man of Morris' keen mind in the face of the 
 events of 1801 argues a motive other than personal opinion, and 
 this could have been no other than a party motive. In the 
 second session of the Seventh Congress an amendment embody- 
 ing the designating principle was again introduced, 4 and on 
 February 8th it was urgently called for by Bayard (Del.). It 
 was charged that his urgency was due to the absence of Repub- 
 lican members from the Senate by which the amendment could 
 be defeated, even if carried in the House. 
 
 Bayard had formerly expressed his approval of the 
 amendment, 5 but had voted against it with the other Feder- 
 alists the previous May, and now declared his intention to do so 
 again. But the House refused to take up the amendment and 
 voted to postpone it till the first Monday in November. The 
 new Congress would then be in session and it was hoped that 
 the Republicans would have a two-thirds majority. 
 
 Seventh Congress, ist Session, p. 304. 2 15 yeas, 8 nays. 
 
 3 "Life and Writings of Gouverneur Morris," Sparks, III, 173. 
 
 4 Seventh Congress, 2d Session, p. 304. 
 
 5 Hamilton's Works, VI, 539. 
 
42 
 
 When the Eighth Congress met, this was a fact. For the first 
 time in the history of Congress the Republicans had a majority 
 large enough to pass a constitutional amendment should it be 
 treated as a party question and the lines be strictly drawn 
 between Republicans and Federalists. The subject was taken 
 up the very first day, not even waiting till the time agreed upon 
 the previous session. The discussion falls under three heads 
 that in the House on its Resolutions, sent to the Senate but not 
 acted upon by that body, that in the Senate on its own Resolu- 
 tions, and that in the House on concurrence in the Senate Bill. 
 
 October 17, 1803, Dawson (Va.) moved : " That in all future 
 elections of President and Vice-President, the persons shall be 
 particularly designated, by declaring which is voted for as Presi- 
 dent and which as Vice-President." l An amendment was offered 
 to this resolution, 2 that u the person voted for as President 
 having the greatest number of votes shall be President, if such 
 number be a majority of all the electors appointed, and if no 
 person have such a majority, then from the five highest on the 
 list of those voted for as President, the House of . Representa- 
 tives shall immediately choose by ballot one of them as Presi- 
 dent. And in every case the person voted for as Vice-President 
 having the greatest number of votes shall be the Vice-President. 
 But if there should be two or more who have equal votes, the Sen- 
 ate shall choose one of them for Vice-President." A further amend- 
 ment was offered to substitute the number two for five in the list 
 to be submitted to the House. A committee of seventeen, one 
 from each State, was appointed to consider the resolutions, and 
 Huger moved that the other resolutions of the New York 
 Legislature, respecting the electoral districting, be referred to 
 the same committee. When the committee reported 3 this part 
 of the subject had been quietly dropped and does not again 
 directly appear in the debates. The number three had been 
 substituted for five on the eligible list. This introduced one of 
 the three points upon which the chief discussion hinged in the 
 first debate in the House. It was argued by the Federalists that 
 no great danger could ensue from allowing a latitude to the 
 House of Representatives since they, as well as the electors, 
 
 1 Eighth Congress, ist Session (1803-1804), p. 372. 
 
 ' 2 Oct. 19, by Nicholson. 3 Oct. 24. 
 
43 
 
 were chosen by the people. It was even moved that the list be 
 extended to the whole number voted for. 1 
 
 When the question was put the number five was substituted 
 by a vote of 59 to 47. This was due to the fact there was a 
 division of sentiment in the Republican party itself, the repre- 
 sentatives of the small States being so opposed to the reduc- 
 tion that they were willing to sacrifice the amendment rather 
 than allow it to pass with the smaller number. This feeling 
 was due to the fear of a diminution of the influence of the 
 small States which such a reduction in the number would effect. 
 The discriminating principle itself was attacked on this ground 
 by the Federalists, and severely denounced 2 because it would 
 have a tendency to keep the election out of the House, thus 
 destroying one chance which the small States had of influencing 
 the eventual choice. In answer to these arguments, the Repub- 
 licans opposed political theories. The electors were the organs, 
 it was said, 3 who, acting from a certain and unquestioned knowl- 
 edge of the choice of the people, and under immediate responsi- 
 bility to them, selected and announced the particular citizens 
 upon whom the public confidence was bestowed. It was a 
 primary and essential attribute of the government that the will 
 of the people should be done and that the elections should be 
 according to this will. The highest ground was taken in oppo- 
 sition to this democratic, nationalizing tendency by Huger. 
 Although a Federalist, his arguments were a strong defense of 
 State Rights, opposing concrete facts to abstract democratic 
 reasoning. The Republicans wanted to pass an amendment in 
 conformity with what they thought ought to be ; he took the 
 ground of strict construction, standing on the Constitution as 
 presented by the Convention. He regarded the amendment as a 
 question between the States, involving the vital principle upon 
 which the Federal compact was formed, namely, the jarring 
 interests and pretensions of the large and small States. Empha- 
 sizing the federative principle, he deprecated the abstract view, 
 which, going back to a state of nature, seemed to regard it as a 
 radical error in the Constitution that its provisions were not 
 founded on the broad basis of population and numbers. The 
 
 1 Lost by vote of 29 yeas, 77 nays. 
 
 2 Annals 8th Congress, ist Session, p. 517. Griswold (N. Y.). 
 
 3 Ibid, p. 423. Clopton (Va.). 
 
44 
 
 rights of man in a state of nature, the origin of the social com- 
 pact and the " will of the people " as the foundation of all gov- 
 ernment he brushed aside as irrelevant, since the Union was not 
 composed of a people rising for the first time into political 
 existence, but of independent sovereignties with distinct and 
 complicated interests. It therefore appeared to him that the 
 amendment gave a death blow to the portion of sovereignty 
 reserved to the States, and was a monstrous stride towards that 
 very consolidation of the States of which the Republicans had 
 been accustomed so bitterly to complain. 
 
 The other question discussed at this time related to the 
 Vice-Presidency. It was said by the Federalists that it was 
 to prevent intrigue and the absolute power of one party that 
 the office of Vice-President was instituted ; that the proposed 
 amendment would make that officer a useless expense ; that 
 he would have no other duties than such as devolve upon the 
 Speaker of the House, besides being able from his proximity to 
 the Government to cabal with greater effect for the succession. 1 
 Huger regarded this question also in the light of the rights 
 of the small States. He urged that the constitutional mode of 
 election created a moral necessity on the part of the electors to 
 bring forward the most prominent characters as well to fill the 
 office of Vice-President as that of President. This was a bold 
 statement in the face of the recognition of political expediency 
 shown in Burr's nomination, however true it might be theoreti- 
 cally. The indiscriminate mode afforded the small States a great 
 degree of influence over the final choice, especially if the large 
 States, to secure the Presidency, threw away their second votes. 
 His estimate of the value of the office exceeded that generally 
 made and is important as an index to the possibilities of the 
 situation under a strong personality. As will be pointed out 
 later, it is in this connection that the amendment has had one 
 of its most marked effects. That the Vice-Presidency was more 
 than a " respectable situation " was shown by John Adams, who 
 had spoken of it in this ironical way. He had been able to do 
 much by positive acts of individual authority, and by his casting 
 vote had exercised a powerful influence in giving permanent 
 form and character to the government. However, it must be 
 
 1 Ibid, p. 540. 
 
45 
 
 said that at that time parties, strictly -speaking, had not been 
 organized and majorities were not formed by men who might, 
 in their private convictions, be on the other side of the question. 
 When this happened the influence of the Vice-President in the 
 Senate decreased. 
 
 Finally the resolution, as amended in a few minor points, 
 was agreed to l and sent to the Senate for concurrence. Before 
 receiving the House resolution the Senate had taken up the 
 matter. 
 
 October 2ist, Clinton (N. Y.) introduced a resolution for dis- 
 crimination of votes in very nearly the wording eventually 
 adopted. 2 The number on the eligible list was left blank, but 
 no provision was made for non-election in the House. The 
 resolution, as first introduced, was significant of the haste with 
 which it was constructed. It contained a palpable absurdity by 
 providing for the case of two persons having a majority, an im- 
 possibility under the designating principle. 
 
 Realizing that the requisite two-thirds majority would 
 depend upon the careful guarding of every Republican vote, 
 Clinton tried to rush the amendment through, as it would be 
 necessary for him to leave the Senate in a few days. 3 It was 
 brought up on Friday and he proposed to have a second reading 
 on Saturday, so that the third might be had on Monday and 
 final action taken that day. The subject was too keenly in- 
 teresting to allow the method so nearly successful in 1802 to 
 be effective, and on October 25th, Clinton having gone home, 
 it was postponed till November 23d. 4 While postponement 
 was being discussed, an amendment was proposed which was 
 afterwards carried, that a majority of the votes of the electors 
 be requisite for a choice of Vice-President as well as of Presi- 
 dent. Another amendment was offered, 5 to which little notice 
 was given, though lost by a majority of only one, viz : " That 
 at the next election of President no person should be eligible 
 who had served more than eight years, and in all future elec- 
 tions no person should be eligible more than four years in any 
 period of eight years." 
 
 As in the debates in the House the chief discussion was on 
 the number on the eligible list in relation to the influence of 
 
 1 Ibid, p. 544. Vote: 88 yeas, 31 nays. Oct. 28. 2 Ibid, p. 16. 
 
 3 Ibid, p. 19. * Ibid, p. 26. . ' 5 Ibid, p. 19.' Butler (S. C:). 
 
4 6 
 
 the small States and on the Vice-Presidency, though other points 
 were brought out. When the resolutions were again taken up 
 the main interest centered in filling the blank left in regard to 
 the number of persons to be selected from if the choice fell to 
 the House. Five, three, and even two were suggested, and three 
 was finally decided upon. This called forth a storm of remon- 
 strance as a conspiracy against the influence of the smaller 
 States. The danger which seemed to him to threaten South Caro- 
 lina as one of that group overcame the Republicanism and former 
 favorable attitude of Butler. He felt that the amendment would 
 give the choice of President to the four large States to the per- 
 petual exclusion of the others, and he enunciated it as a reason- 
 able principle l that every State should in turn have the choice 
 of the chief magistrate made from among its citizens. If this 
 were carried out at the present day it is an interesting mathe- 
 matical problem how long each State would have to wait its 
 turn, with forty-five States and a term often of eight years. 
 Butler had been a member of the Convention of 1787 and felt 
 himself to be as one who spoke with authority. He referred to 
 the debates there and ended with the warning, " Beware of the 
 
 great States ! Pass this amendment and no man can 
 
 live in the small States but under disparaging circumstances, 
 they will have about as many rights left in society as the Helots 
 of Greece." 2 
 
 John Quincy Adams also disapproved of the alteration from 
 five to three 3 and called upon some champion of the small States 
 to vindicate their rights. He afterwards shifted his position 
 and based his opposition on federative grounds, stating that the 
 principles of the Federal compact were attacked rather than 
 the rights of the small States, following the arguments offered 
 in the House by Huger. He finally stated that his vote on the 
 subject would be governed by the number five, since he approved 
 of the other principle involved. It is interesting to note that 
 had he been successful in extending the list, his own election to 
 the Presidency would have been improbable. Had Clay been on 
 the list in 1825, when the election was thrown into the House, 
 Adams would hardly have been elected. 4 
 
 Other Federalists vociferously protested against being 
 
 1 Ibid, p. 23. a Ibid, p. 207. 3 Ibid, p. 87. 
 
 4 Burgess, "Middle Period," p. 140. 
 
47 
 
 " bound hand and foot and delivered over to four or five of the 
 large States," l which, they affected to believe, were ready to 
 combine and use force to gain their ends. Not only was the 
 decrease in number regarded as an attack on the rights of the 
 small States, but the whole amendment was condemned as hav- 
 ing this effect. It prevented the necessity for throwing away 
 votes on the part of the large States which had enabled the 
 small States to concentrate and put in a Vice-Presiclent. 2 Its 
 tendency to keep the election out of the House was again urged 
 as an argument against it. The Republicans answered the first 
 of these objections by saying that it was not the intention of 
 the Constitution that the majority of the people should be driven 
 by an unforseen state of parties to relinquish their will in the 
 election of either officer nor that the principle of majority, in a 
 function confided to the popular will, should be deprived of half 
 of its rights and be laid under the necessity of violating its duty 
 to preserve the other half. 3 In regard to the eventual election 
 by the House, it was pointed out that the controversy was not 
 between the larger and smaller States, but between the people 
 of every State and the House of Representatives, since the elec- 
 tion by that body was never intended to be converted into the 
 active rule and thus destroy the line of separation between the 
 executive and legislative power. It was stated that such an 
 election by the House exposed the country to the evils Great 
 Britain had suffered through the rotten borough system 4 and 
 the chance of being governed by a minority was lessened by 
 lessening the number on the eligible list. The number three 
 was more in the spirit of the Constitution, since it placed the 
 choice more certainly in the hands of the people. 5 
 
 The league of the large States, conspiring against the small, 
 which was held up by the opposition as a sure and frightful con- 
 sequence, was discussed and it was pointed out very clearly 6 
 that the large States were more jealous of each other than of the 
 small, and it was absurd to think of a combination between 
 Massachusetts and Virginia, for instance, or Massachusetts and 
 New York. The more natural course was indicated later 7 in 
 
 1 Annals 8th Congress, ist session, p. 87. 2 Ibid, p. 139. 
 
 3 Ibid, p. 181. Taylor (Va.). * Ibid, p. 100. 
 
 5 Ibid, p. 103. Nicholas (Va.). 6 Ibid, p. 114. Jackson (Ga.). 
 
 7 Ibid, p. 704. In House by Gregg (Pa.). 
 
4 8 
 
 the statement that the combinations would be of sections 
 Eastern, Middle, and Southern; Pennsylvania might join with 
 New Jersey, Delaware and Maryland, but never with Virginia 
 or Massachusetts. 1 
 
 The narrowing of the number was necessary, it was said, 
 to prevent the House from electing a man evidently not in- 
 tended by the people. As for rotation, the most farsighted 
 statement in regard to party made during the debate was that of 
 Jackson (Ga.), who said he did not consider it a matter of 
 any consequence from what State a President was chosen ; while 
 parties existed there would be a champion chosen by each, irre- 
 spective of the State of which he was a resident. 2 In sharp 
 contrast with this was the prophecy that the insertion of the 
 number three would cause an opposition of one on each side for 
 President and a third between both for Vice-President. 3 
 
 As usual the truth lies between the two extremes. Butler's 
 alarm, so loudly sounded, concerning the degradation of the 
 citizens of the small States to the place of Helots, should the 
 amendment pass, was going too far. But it is a fact that there 
 has never been a Presidential candidate from one of the very 
 small States and it is unlikely that one will ever be put up. 
 The question arises, however, whether this would not have been 
 so anyway. That he was from a State too small to carry any 
 weight was an argument adduced against the candidacy of 
 Bayard of Delaware in 1876, and it is possible that had Ed- 
 munds, of Vermont, been from a larger State his chances for 
 the nomination would have been much greater in 1884. There 
 could be no realization of the prophecy concerning the combina- 
 tion of the large States, as such, for party not State is the 
 controlling factor. In the politics of 1801-1809 the harmony 
 between Pennsylvania and Virginia is not a contradiction but a 
 confirmation of this. 
 
 During the debate on postponement the question of the 
 Vice-Presidency had been brought up by a motion to strike out 
 all the portions concerning that office/ the advantages of which 
 would be destroyed, it was alleged, should the amendment be 
 
 1 It was argued against the number three that a Western section would 
 grow up and it would then be excluded. 
 
 2 Annals 8th Congress, ist Session, p. 113. 
 
 3 Ibid, p. 87. 4 Ibid, p. 21. 
 
49 
 
 adopted. This motion was lost, but the discussion continued at 
 a later date. The charge was made that the eagerness to pass 
 the amendment at this time grew out of a desire to put it into 
 operation before the next election and so prevent a Federal 
 Vice-President from coming in. This was met by the candid 
 avowal of such a purpose l on the part of the leading Republi- 
 cans. After discussing the aim of the Convention in the mode of 
 election, to put a man of worth in both stations, the Federalists 
 argued that if the amendment was carried, character, talents or 
 virtue would not be sought after in the Vice-Presidential candi- 
 date. The question would not be asked " Is he honest ?" "Is 
 he capable?" but "Can he by his name, by his connections, by 
 his wealth, by his local situation, by his influence or by his in- 
 trigues best promote the election of a President?" 2 The office 
 would be sent to market with hardly a chance for an honest pur- 
 chaser. 3 It would be a sinecure. An ambitious candidate for the 
 Presidency would not promote the election of a man who might 
 prove his rival, but would support one of moderate talents, whose 
 influence would aid his own election. 4 They did not seem to 
 realize that what they were predicting for the future under the 
 amendment, had already happened under the old mode of election. 
 Pinckney had been selected by the Federalists in 1796 as a man 
 who would "cause a diversion of Southern blows" 5 and Burr was 
 supported by the Republicans in 1796 and 1800 for the Vice- 
 Presidency, though the Constitution forbade any such discrimi- 
 nation. He was put forward, unscrupulous as they knew him 
 to be, simply to ensure the election of Jefferson by bringing 
 in the vote of New York. Yet the very fact that he might 
 have become President, as the Federalists attempted to make 
 him in the election of 1801, was some check upon such party 
 measures. The amendment took away this danger, and the 
 predictions of the Federalists have come literally true. To 
 be Vice-President is to be politically "shelved," and men of 
 the first class with political aspirations refuse to take the office. 
 Although four times already in our comparatively short history 
 the Vice-President has become President, it seems to be the 
 
 1 Ibid, pp. 22, 128, 178, 186. 2 Ibid, p. 144. 
 
 3 Ibid, p. 173, Tracy (Conn.). * Ibid, p. 155. Plumber (N. H.). 
 
 5 Life and Correspondence of Rufus King (Putman), II, 46. Hamiltons' 
 Works, VI, 114. 
 
5 
 
 custom of National Conventions to make the nominations for 
 that office entirely irrespective of the fact that its incumbent 
 may become the chief magistrate. Ignoring this possibility 
 parties sometimes chose a man for the second place who has 
 radically different opinions on vital points from the person 
 selected for President. In 1888 the Democratic nominee was 
 Allen G. Thurman, a man at that time seventy-five years 
 old, and in 1892 Stevenson held some very different views 
 from his chief on the currency question. 
 
 That the President and Vice-President should be of different 
 parties " to check and preserve in temper the over-heated zeal of 
 party" was advocated by Hillhouse (Conn.) in a speech that should 
 be noted as a glaring example of the utter inability of the Feder- 
 alists to realize the revolution that had already taken place in 
 politics and the immense distance that the politicians of 1803 stood 
 from the framers of the Constitution in 1787. He declared the cal- 
 culation that all the States in the Union would vote for the same 
 persons, or that each of the two parties opposed in politics would 
 have an individual candidate to be visionary. His statement 
 that both candidates could not be chosen from the same State is 
 an error which is still commonly noted. As a matter of fact the 
 provision that the electors shall vote for two men, " one of 
 whom at least shall not be an inhabitant of the same State with 
 themselves," would not prevent the electors from every State 
 except one voting for two men from that State, and thus elect- 
 ing both candidates from it. It is improbable that political 
 expediency will ever demand such a course, the tendency being 
 in the opposite direction, but there is no constitutional obstacle 
 in the way. Hillhouse ended his argument by saying : " For 
 once or twice there may be such an organization of party as 
 will secure for a conspicuous character a majority of votes. 
 But that character cannot live always. The evils of the last 
 election will recur and be greater because the whole field will 
 
 be to range in If we cannot destroy party, 
 
 we ought to place every check upon it." 
 
 This brings us face to face with the great result of the amend- 
 ment in its practical development. The enormous consequence 
 of it has been to make party government constitutional. It has 
 made it imperative that the President and Vice-President be party 
 
representatives and practically impossible that they be chosen at 
 the outset from different parties, unless the election devolves upon 
 the House or Senate. This legalization of party control in the 
 government was a change of the Constitution in one of the most 
 basic principles. The leading idea of the Convention had been 
 to prevent the rule of party. Washington had inaugurated the 
 government by adhering to this idea, and against heavy odds 
 had attempted to keep himself out of and above parties, by- 
 combining in his cabinet representatives of the diverging ten- 
 dencies. But even before he retired from the Presidency this 
 was becoming an impossibility, and he drifted more and more 
 into the the channel of the Federalists. When Adams came in 
 the change to party rule was practically accomplished and a 
 great part of the difficulties he encountered came from the fact 
 that he did not fully realize this. His practice differed so wide- 
 ly from the ever-growing tendency that conflict was inevitable. 
 By the time of the election of 1801 the revolution was com- 
 plete ; parties had become separated into opposing armies, each 
 with its own general and staff of officers. The amendment was 
 simply a legalization of what had become fact. It would have 
 been just as reasonable to advise the armies of two opposing 
 nations to have their generals in common, selecting either this 
 one or that, indiscriminately, to conduct an impending battle, 
 as to urge the impending parties to concentrate their votes upon 
 one man for Vice-President. 
 
 Another question which occupied the attention of the Sen- 
 ate was introduced by an amendment, offered by Pickering 
 (Mass.), to insert, " But if within twenty-four hours no election 
 shall have taken place, 1 then the President shall be chosen by 
 law." W T hen asked what was meant by a person "chosen by 
 law," he replied that the States might choose by lot, or by bal- 
 lots in a box which the President might collect, or a number 
 of names might be put in a box from which the Speaker 
 might draw one. This was defended as having precedent in 
 the Constitution of Kentucky and in the ancient Grecian 
 States, but was ridiculed by the Republicans, who suggested 
 that the question might be settled by the old mode of " grand 
 battaile," or by the champions of both parties, armed with 
 
 1 When the election devolved upon the House. 
 
 2 Annals 8th Congress, ist session, p. 128. 
 
52 
 
 tomahawks. Seriously speaking, this was taking the elec- 
 tion out of the hands of the people and trying to determine an 
 important principle of effective government by a non-effective 
 act. As was said at the time, it was trying to determine an 
 election by holding out a temptation to non-election. The 
 defect having been pointed out, however, several amendments 
 were offered to remedy it. 1 The one which was adopted 2 pro- 
 vided that the Vice-President should succeed as in any other case 
 of disability, if, when the election devolved upon the House, a 
 President should not be chosen before the 4th of March. This 
 made no provision for the non-election of Vice-President also, but 
 no case of the kind has ever arisen, nor is it likely to under the 
 present party system. Amendments to cover such a case were lost. 
 There was a constitutional question raised by Tracy in re- 
 gard to instructions which was not directly discussed, but the 
 subject of which was referred to by various speakers. 3 He 
 drew a sharp distinction between the appropriate duties of the 
 States and of Congress in reference to amendments, and he 
 denied the right of the former to give instructions to members 
 of Congress in regard to them. u As well and with as much 
 propriety might Congress make a law attempting to bind the 
 State Legislatures to ratify. In either case, the check, which, 
 for obviously wise purposes, was introduced into the Constitu- 
 tion, is destroyed," was his conclusion. No attempt was made 
 to refute this argument, but it was said that a recommendation 
 through their State Legislatures is the most dignified method of 
 expressing the sentiments of the people of a State on a subject 
 so important as a constitutional amendment, and such expres- 
 sions should have weight with Congress. The other mode of 
 amendment provided in the Constitution is evidence that the 
 Convention meant the clearly expressed desire of the people to 
 have force. This method has never been formally used, but it 
 is an interesting illustration of extra-constitutional development 
 that its principle of initiation by the States has been repeatedly 
 put into practice. When the State feels the need of an amend- 
 ment its Legislature passes resolutions formulating the desired 
 measure. Copies are sent to the other States and a reply is 
 usually returned. If it is seen that the requisite three-fourths 
 
 1 Ibid, p. 132. J. Q. Adams. 2 Ibid, p. 136. Taylor (Va.). 
 
 3 Ibid, p. 177. 
 
53 
 
 are not in favor of it' the matter is dropped, as it would be use- 
 less to take further steps. If the replies are favorable, an 
 attempt is made to push the amendment through Congress. A 
 good example of this is the attempt of Massachusetts to change 
 the Federal representation in iSozj.. 1 Her resolutions on the 
 matter were answered by all but two States, and as the replies 
 were unanimous in their disapproval, she abandoned the pro- 
 ject. On the other hand, the action of Congress in compelling 
 the States to ratify an amendment was mentioned by Tracy as a 
 reductio ad absurdiim, simply to give point to his remarks. But 
 when we consider the history of the Fourteenth Amendment we 
 find that thing had come to pass which sixty years before had 
 been passed over in silence as a mere rhetorical figure. The 
 ratification of the Fourteenth Amendment was virtually com- 
 pulsory, since the " check " on Congress had been thrown off by 
 that body and the responsibility for constitutional amendments, 
 instead of being divided between national and State Legisla- 
 tures, according to Constitutional provisions, was assumed 
 entirely by the former. 
 
 When the vote was taken, 1 the question was carried 22 
 yeas to 10 nays. Immediately Tracy denied that it was con- 
 stitutionally passed, since two-thirds of those present (22) and 
 not two-thirds of the whole number of Senators (23) had 
 voted in the affirmative. This had been in the mind of Clinton 
 in his effort to rush the amendment through, and Tracy had 
 attempted, in a former speech, to forstall the result, but the 
 President declared the question carried by the necessary majority 
 in conformity with the Constitution and former usage. As thus 
 finally passed by the Senate, the amendment was in the form 
 now in the Constitution. An attempt was made to have it sub- 
 mitted to the President for his approbation, but this was nega- 
 tived by a large majority.' 2 
 
 When the House received the amendment from the Senate 3 
 objections were immediately raised because the Senate had not 
 acted on the House resolutions and because the vote was not by 
 two-thirds of the whole number of Senators. The first objec- 
 
 1 McMaster, III, 45-47. 
 
 2 December 2. 2 Annals 8th Congress, ist session, pp 214-215. Ames: 
 "Proposed Amendments." 
 
 3 Ibid, p. 646, Dec. 6. 
 
54 
 
 tion was quickly overruled and precedents were adduced and 
 arguments offered to show that the second was not a true inter- 
 pretation of the Constitution. The first amendments were 
 passed in 1789 ! with only sixteen out of twenty-six Senators 
 present and less than forty out of fifty-nine Representatives. On 
 May i, 1802, the House, consisting of a hundred and six mem- 
 bers, had passed an amendment by a vote of 47 to 14 and the 
 vote the previous October on the same amendment had been 88 
 to 31, the whole number of Representatives being i4<D. 2 This 
 question has come up a great many times since and has never 
 been settled definitely, though in practice two-thirds of those 
 present has been considered a constitutional majority. The 
 clause relating to the Vice-President's assuming the duties of the 
 President in case of a non-election by the House gave rise to a 
 discussion. Some Republican members 3 who had voted for the 
 amendment as it passed the House now joined the Federalists in 
 pointing out the temptation this clause held out to the Vice- 
 President to prevent an election. The motion was made to 
 strike out everything relating to that officer and the arguments 
 advanced in the Senate were repeated showing that he would 
 no longer be the " heir apparent," 4 but merely a tool to assist in 
 the election of the President. This motion was lost, and the 
 clause in question was retained as being an incentive to careful 
 selection of vice-presidential candidates and a stimulus to the 
 House to make an election and so retain their constitutional 
 privilege. Such a non-election was contemplated as a possibility 
 in i86o. 5 It was hoped by Southern members of the Demo- 
 cratic party that, though it would be an impossibility for either 
 Douglas, Bell or Breckenridge to receive an electoral majority, 
 the election might be thrown into the House. There Brecken- 
 ridge might be chosen, or the House failing to make a choice, 
 Lane could become President through the choice as Vice- 
 President by the Senate. 
 
 The antecedent of the word " three " in the eligible list was 
 long and tediously discussed. It was argued on the one hand 
 that the word referred to the three highest numbers of votes 
 
 1 Aug. 21, 1789, in House. Sept. 9, 1789, in Senate. 
 
 - Annals 8th Congress, ist session, pp. 648, 650. 
 
 3 Elliot (Vt.), Eustis (Mass.) 4 8th Congress, ist session, p. 672. 
 
 1 New York Tribune, ]u\y 16, 1860. 
 
55 
 
 containing an indefinite number of persons, 1 while others inter- 
 preted it to mean the three persons having the highest number 
 of votes. It was on this idea that much of the argument in 
 regard to the small States had been based. The advocates of 
 the amendment were not agreed on the subject, but were willing 
 to grant either interpretation, to please the opposition. The 
 general impression was that it referred to persons rather than to 
 numbers, but no case has arisen to test the question. Should 
 such a case occur it would seem that the word must have refer- 
 ence to numbers. Had Clay and Crawford received an equal 
 number of electoral votes in 1824 ^ is certain that neither 
 would have been excluded from the House. 
 
 Up to this time the designating principle, as such, had 
 hardly been discussed, except as it was incidentally connected 
 with other points. Now it was attacked by the Federalists as 
 destroying the eventual succession of the Vice-President 2 and as 
 equivalent to electing the President for life 3 by tempting him to 
 use his extensive patronage for his re-election. This was only 
 one of the many arguments based on the fear of corruption of 
 officials from the highest to the lowest. The fear of a mon- 
 archy ; the example of George III. in enlarging his royal pre- 
 rogative so enormously, and the example then before their eyes 
 of the seizure of power by Napoleon combined to blind them to 
 the impossibility of such an occurrence in this country. Again, 
 the power of the small States was said to be endangered by this 
 principle. 4 The Republicans answered that it was all important 
 that the process of election be pure and simple, that the discrim- 
 ination in the votes gave a fair expression to public sentiment, 
 and compared with these results, it was of little consequence 
 from what State the President might come. 
 
 December 8th the vote was taken on the Senate resolutions 
 and they were concurred in. 5 Speaker Macon claimed the right 
 to vote as a member, thus securing the necessary two-thirds. 
 One of the most interesting things noted in going over the 
 debates is the completeness with which the parties change sides 
 on the question of State Rights. One Federalist made the dec- 
 laration fi that the Resolution, by impairing the rights of the 
 
 1 Annals 8th Congress, pp. 671, 722. 4 Ibid, p. 672. 
 
 2 Ibid, p. 732. 5 Ibid, p. 748. 
 
 ;J> Vote : 83 yeas, 42 nays. 6 Thatcher (Mass.). 
 
56 
 
 small States in choosing the President, destroyed the basis of the 
 Confederacy, and made the Constitution a nudum pactum. The 
 most extreme grounds on both sides, however, were taken by the 
 Republican, Campbell (Va.) and the Federalist, Dennis (Md.). 
 Campbell argued for government by simple majorities and antici- 
 pated the arguments of Webster on his memorable debate with 
 Hayne. Starting with the words, " We, the people of the United 
 States," he argued that the government was formed by the 
 people of the United States in their capacity as such, by their 
 immediate representatives in the general convention and not by 
 the several States convened in their State capacities. 1 This 
 statement had about as much historical foundation as did the 
 statement of Webster in 1830, that " this government is the 
 independent offspring of the popular will." To this doctrine 
 Dennis replied that in a single State a simple majority ought to 
 prevail, but he denied that to be the theory at the basis of the 
 Union. He declared that the Constitution was not adopted by 
 the people of the United States, but by the people of the several 
 States, as such, voting through the medium of their State Con- 
 ventions, and so far from having been adopted by the. people of 
 the United States, as such, it was doubtful whether it was not 
 adopted by a minority of the people, though ratified by a majority 
 of the States. 3 
 
 Campbell entirely overlooked the Constitution as the supreme 
 of the land and advocated the doctrine that " the will of the 
 people should be supreme." He confounded constitutional with 
 popular majorities. The American principle is that the former 
 shall rule and in many cases they do not at all coincide with the 
 latter. These constitutional majorities differ in different cases. 
 The most striking example of this is in the representation in the 
 Senate, and to a less degree in the House, due to the fact that 
 each State must have at least one representative. Another illus- 
 tration is in the change from a simple majority to a two-third 
 vote necessary to pass a bill over a veto or to pass an amend- 
 ment. Apart from the federative principle, this rule of consti- 
 tutional majorities must be preserved for the protection of the 
 minority. It is an essential principle in the political life of the 
 United States that there be preserved to the minority the nega- 
 
 1 Ibid, p. 718. 
 
 2 Webster's Works (Ed. 1858), III, 333. 3 Ibid, p. 756. 
 
57 
 
 tive power of acting as a brake ; the conservative power by 
 which it keeps itself from being crushed. 
 
 Another question involved in the amendment was that of 
 the independence of the electors. The intention of the Conven- 
 tion had been that men of ability and discretion should be 
 chosen for this duty and that they should exercise this discretion 
 in the choice of President. By 1800 they had begun to feel the 
 pressure of party choice as almost irresistible, but the amend- 
 ment, by making party government constitutional and impera- 
 tive, completed the process of making them " men of straw." 
 Since its adoption they have been, as a usual thing, men upon 
 whom it was desired to confer some honor, but beyond that they 
 might as well be automata. The desire expressed by Brecken- 
 ridge during the debates that the choice of President should be 
 made directly by the people has been realized to an extent that 
 would have gratified James Wilson and Gouverneur Morris, but 
 would have caused other prominent members of the Convention 
 of 1787 to be alarmed at what they denominated the " Monster 
 of Democracy." 
 
 Jefferson expressed the opinion 1 that the indication caused 
 by the efforts of the Federalist members of the House to defeat 
 the well known wishes of the country, in the election of 1801, 
 had a greater effect in one week in bringing the great body of 
 the Federalists into sympsrfryywith his election than could have 
 been effected by years of mild and impartial administration. 
 Whatever the cause, the prompt ratification of the amendment 
 by the States showed their realization of the necessity for such 
 a measure. As soon as the final vote was taken in Congress the 
 amendment' was sent to the Governors of the States. Before 
 the next month brought in the New Year five States had re- 
 sponded. Kentucky had given her assent ; 2 Virginia ratified 
 with only one dissenting voice in the House ; 3 North Carolina 
 had no opposition in the Senate and but eighteen negative votes 
 in the House of Commons. 4 In Maryland there was some oppo- 
 sition from the Federalists in the House, but none in the Senate 
 in the ratification on December 3Oth, r> and Ohio fulfilled by 
 
 1 Jefferson's Writings, VII, 494, 497. 
 
 2 Acts of Kentucky, i2th General Assembly (1803), pp. 109-111. 
 
 3 National Intelligencer, Jan. 13, 1804. * Ibid, Jan. 2, 1804. 
 
 5 Ibid, Jan. n, 1804, and Laws of Maryland, III, ch. LXV (Session Nov. 7, 
 1803, to Jan. 7, 1804). 
 
prompt ratification l the expectation of Governor Tiffin who had 
 recommended the measure in his message. 2 A few days after- 
 wards, January 7, 1804, Pennsylvania followed suit. 3 In Ver- 
 mont there was some heated discussion growing out of the fact 
 that Mr. Elliot, who had been the organ of the House in sub- 
 mitting to Congress their desire to amend the Constitution, 
 offered a letter assigning his reasons for the vote he had given 
 against the measure. This caused a repetition of the arguments 
 pro and con which had been given in Congress. 4 The constitu- 
 tional question of the majority by which it had passed was 
 brought up, but to no purpose. On January ayth the Council 
 unanimously adopted the amendment, and the House passed it 
 by a good majority. 
 
 The first check to this triumphant progress was received a 
 little before this in Delaware. January 6th the amendment was 
 laid before the Legislature by Governor Hall,* with an urgent 
 recommendation. It was rejected and the following resolutions 6 
 passed instead : _" Resolved (etc.), That the amendment to the 
 Constitution of the United States .... be and the same 
 hereby is disapproved by the Legislature of this State for the 
 reasons following : 
 
 1. Because at all times innovations of the Constitution 
 are dangerous, but more especially when the .changes are dic- 
 tated by party spirit, are designed for temporary purposes and 
 calculated to accomplish personal views. 
 
 2. Because as representatives of a small State we are 
 sensible that in the nature of things every chatige in the Con- 
 stitution will be in favor of the large States who will never be 
 disposed to allow and will always have the means to prevent a 
 variation favorable to the interests of the small States. 
 
 3. Because, in fact, the proposed amendment does reduce 
 the power and weight of the small States, in the case provided 
 by the Constitution for the choice of President by the House of 
 Representatives, by limiting the selection to three instead of 
 five candidates having the greatest number of electoral votes. 
 
 1 Laws of Ohio (1803), Ch. II. 
 
 2 National Intelligencer, Jan. 9, 1804. 
 
 3 Laws of Pennsylvania (1802-1805), p. 181, Chap. MMCCCXCII. 
 
 4 National Intelligencer, Feb. loth, Feb. I3th, 1804. 
 
 5 National Intelligencer, Jan. 30, 1804. 
 
 15 Journal of the House of Representatives of Delaware, 1804, Jan. 13, p. 27. 
 
59 
 
 4. Because the present mode of election gives to the small 
 States a control and weight in the election of President which 
 are destroyed by the contemplated amendment. 
 
 5. Because it is the true and permanent interest of a free 
 people among whom the relations of a majority and a minority 
 must ever be fluctuating, to maintain the just weight and 
 respectability of the minority, by every proper provision, not 
 impeaching the principle that the majority ought to govern ; 
 and we consider the present mode of election as calculated to 
 repress the natural intolerance of a majority and to secure some 
 consideration and forebearance in relation to the minority. 
 
 6. Because we view the existing provision in the Consti- 
 tution as among the wisest of its regulations. History furnishes 
 many examples of nations, and particularly of republics, in their 
 delirious devotion to individuals, being ready to sacrifice their 
 liberties and dearest rights to the personal aggrandizement of 
 their idol. The existing regulation furnishes some check to this 
 human infirmity by the occasional power given to a few to neg- 
 ative the will of the majority as to one man, leaving them every 
 other qualified citizen in the country for the range of their 
 selection. 
 
 7. Because we are not satisfied that the said amendment 
 has constitutionally passed the two houses of Congress ; the Con- 
 stitution requiring the concurrence of two-thirds of both houses, 
 which in a case of such magnitude and designed precaution 
 must be considered as two-thirds of the entire number composing 
 the two houses ; whereas, it appears that the said amendment is 
 not supported by the concurrence of two-thirds of the whole 
 number of either house." 
 
 In February, Rhode Island ratified by a unanimous vote in 
 the Senate and a vote of 42 to 18 in the House. 1 In a letter 
 from Senator Butler, of South Carolina, to the Governor of that 
 State, he said that Governor Fenner of Rhode Island was 
 opposed to the amendment, but some Federalists opposing it 
 also, the Republicans said it must be a good thing, so pushed it 
 through. During the same month Governor Clinton laid the 
 amendment before the New York Legislature, 2 and it was agreed 
 to without a division in the Senate and by a large majority in 
 
 1 National Intelligencer, March 12, 1804. 
 
 2 National Intelligencer, Feb. 13, 1804. 
 
6o 
 
 the House. 1 New Jersey, also, in the month of February, sent 
 in her ratification. 2 
 
 The second State to reject the amendment was Massa- 
 chusetts. Governor Strong, in his presentation, neither recom- 
 mended nor condemned it, but the answer of the House gave 
 an indication of what its fate would be. They said they would 
 pursue the discussion of the subject " under impressions of the 
 highest respect and veneration for an instrument so valuable as 
 the Constitution of the United States, the deliberate production 
 of our first and long tried patriots, united with our most enlight- 
 ened and experienced statesmen." 3 It was said during the 
 debates that it was " high time for a * union of all honest men ' 
 to oppose consolidation and appear as champions of the small 
 States." On February ad, the amendment was rejected in the 
 Senate, 4 and the next day by the House. 5 Connecticut followed 
 the example of Massachusetts and rejected it on May 24th, by 
 a strict party vote. 6 
 
 In Georgia, Governor Milledge called a special session of 
 the Legislature, which met at Louisville on May 4th, and ratified 
 it unanimously. 7 A special session seems to have been called in 
 South Carolina also, 8 and Governor Richardson cited the events 
 of the last election as an argument for ratification. He enclosed 
 two letters from Senator Butler, giving his reasons for voting 
 against the amendment, and urging South Carolina to reject it 
 as a question, not of party politics, but of State rights. In spite 
 of this protest the Legislature ratified it. 
 
 In New Hampshire the question had been brought up in Jan- 
 uary but was postponed untill^June. When it was again taken 
 up, it passed the Senate and the House, 9 but the Governor 
 vetoed it as if it had been an ordinary bill. 10 The Legislature 
 
 1 Vote : 74 yeas, 14 nays. Laws of New York (1804), Ch. IV, Vol. Ill, p. 466. 
 
 2 Acts of New Jersey, 28th Assembly, 2<d session, 1803, p. 284. 
 
 3 National Intelligencer, Feb. i, 1804. 
 
 4 Vote : 13 yeas, 19 nays. 
 
 5 Vote : 79 yeas, 132 nays. 
 
 6 Vote : 77 yeas, 115 nays. National Intelligencer, June 6, 1804. O'Neill : 
 "American Electoral System," p. 95. 
 
 " Laws of Georgia (1801-1810), No. 131, p. 176. 
 
 8 National Intelligencer, May 30, 1804. 
 
 9 Vote : 81 yeas, 73 nays. 
 
 10 McMaster : History of the People of the United States, III, 187. Ames : 
 Proposed Amendments, p. 297. 
 
6i 
 
 passed it again, but with the same vote, 5 which was not the two- 
 
 P thirds majority called for by the State Constitution to override 
 
 the Governor's veto. Though the Republicans of the State 
 considered that the Governor had no part in the ratification of 
 an amendment and that the State had given its voice in favor of 
 this one, New Hampshire was not included in the official list of 
 ratifying States. 
 
 The last State to pass upon the question was Tennessee, 
 which, on July 27th, ratified with perfect unanimity in both 
 Houses. 1 Thus of the seventeen States, thirteen, not including 
 New Hampshire, had voted for the amendment, and this being 
 the requisite three-fourths, on September 25, 1804, the Secretary 
 of State issued a proclamation declaring it in force. 2 The elec- 
 tion of 1804-1805 was held in accordance with its provisions. 
 
 5 National Intelligencer, June 29 ; July 6, 1804. 
 
 1 Ibid, Aug. 15, 1804. 
 
 2 For copies of the acts of ratification of the States see "Bulletin of the 
 Bureau of Rolls and Library of the Department of State," No. 7 (1894), pp. 
 408-451. 
 
BIBLIOGRAPHY. 
 
 Journal of Congress. 1775-1788. 
 
 Secret Journals of Congress. 1775-1788. 
 
 Annals of Congress. 1789-1806. 
 
 Elliot : ''Journal and Debates of the Federal Convention." 1836 ; 1845. 
 
 Poore : "The Federal and State Constitutions." Washington, 1877. 
 
 P. L. Ford : " Pamphlets on the Constitution, 1787-88." Brooklyn. 1888. 
 
 McMaster and Stone : "Pennsylvania and the Federal Constitution, 1787- 
 1788." Philadelphia. 1888. 
 
 Acts of Kentucky : i2th General Assembly. 1803. 
 
 Acts of New Jersey : 28th Assembly, 2d Session. 1803. 
 
 Laws of Maryland : Session, Nov. 7, 1803 -Jan. 7, 1804. 
 
 Acts and Resolves of Rhode Island : February, i8o3~October, 1806. 
 
 Laws of Pennsylvania : 1802-1805. 
 
 Laws of Ohio : 1803. 
 
 Laws of New York, III : 1803-1804. 
 
 Laws of Georgia : 1801-1810. 
 
 Journal of House of Representatives of Delaware. 1802-1805. 
 
 Bulletin of the Bureau of Rolls and Library of the Department of State. 
 No. 7. 1894. 
 
 National Intelligencer, Washington. 1803-1805. 
 Washington Federalist, Washington. 1803-1805. 
 Aurora, Philadelphia. 1799-1805. 
 Pennsylvania Gazette, Philadelphia. 1788-1790. 
 Pennsylvania Packet, Philadelphia. 1789-1790. 
 New York Tribune, New York. 1860. 
 
 Paine : " Common Sense." 1792. 
 
 Pelatiah Webster : A Dissertation on the Political Union and Constitution 
 of the Thirteen United States of North America." By a citizen of Philadelphia. 
 1783. Republished in " Political Essays." 1791. 
 
 Noah Webster: "Sketches of American Policy." 1785. 
 Wm. Van Ness : An Examination of the Various Charges against Aaron 
 Burr and a Development of the Character and Views of his Political Oppo- 
 nents." Philadelphia. 1803. By Aristides. 
 
 Henry Adams: " History of the United States during the First Adminis- 
 tration of Jefferson." New York. 1890. 
 
 J. B. McMaster : " History of the People of the United States." 
 J. C. Hamilton : History of the Republic of the United States, as traced in 
 the Writings of Alexander Hamilton and his Cotemporaries." New York. 
 1857-60. * 
 
 Von Hoist : "Constitutional History of the United States." 
 O'Ne'il : "American Electoral System." New York. 1887. 
 Burgess: "Middle Period, 1817-1850." New York. 1897. 
 
 
63 
 
 Gibbs : " Memoirs of the Administrations of Washington and John Adams." 
 New York. 1846. 
 
 Ramsay: " History of the American Revolution." Philadelphia. 1789. 
 
 McMahon : "History of Maryland." Baltimore. 1831. 
 
 American Historical Association Reports. 1895. B. C. Steiner : "The 
 Electoral College for Maryland and the Nineteen Van Buren Electors." Re- 
 ports, 1896, Ames: " Amendments to the Constitution." 
 
 Johns Hopkins University Studies, XIII. J. A. Silver: "Provisional Gov- 
 ernment of Maryland, 1774-1777." 
 
 Writings of Washington. Putnam Ed. 
 
 Writings of Jefferson. Putnam Ed. 
 
 Life and Correspondence of Rufus King. Putnam Ed. 
 
 Writings of Monroe. Putnam Ed. 
 
 Works of John Adams. 1856. 
 
 Works of Hamilton, 1851 ; Works of Hamilton. Putnam Ed. 
 
 Works of Madison. 1865. 
 
 Works of Daniel Webster. 1858. 
 
 Sparks : " Life and Writings of Governeur Morris." Boston. 1832. 
 
 Henry Adams : "Life of Albert Gallatin." Philadelphia. 1879. 
 
 Parton : " Life and Times of Aaron Burr." New York. 1858. 
 
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