MADISON'S EARLIER VIEWS.

167

"The important truth which it unequivocally pronounces in the present case is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil policy, by sustaining violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy"? The saying of John Quincy Adams already quoted, "that the constitution itself had been extorted from the grinding necessity of a reluctant people," will now be better understood.

1 Federalist. XX.

CHAPTER V.

THE PRESIDENTIAL ELECTION OF 1801. THE FALL OF THE FEDERALIST PARTY. JEFFERSON AND THE PURCHASE OF LOUISIANA. THE BURR AND FEDERALIST INTRIGUES.

The Virginia and Kentucky resolutions produced no further immediate consequences. The recognized leaders of the anti-Federalists or Republicans had given their interpretation of the constitution and of the Union created by it. Their declarations remained a long time unused, but also unrecalled and unforgotten. The internal contests continued and their character remained the same. The revolution in the situation of parties now necessitated a change of front on both sides, and for a time also the battles between them were waged over other points and in part in another way.

The next collision was an actual struggle for supremacy. An inadequate provision of the constitution alone made this battle a possibility to the Federalists; but the struggle over the question of the constitution was after all considered only as a mere accidental collateral circumstance.

The Republicans had won the presidential election by a majority of eight or nine electoral votes. Their two candidates, Jefferson and Aaron Burr, had each received seventy-three votes. They intended that Jefferson should be president and Burr vice-president. Spite of this, however, they gave both the same number of votes, either not to endanger Burr's election, or because he became a candidate only on that condition. This was, considering Burr's want

1

1

Wolcott asserted that Burr proposed this condition and that it was accepted by prominent Republicans. Gibbs, Mem. of Wolcott, II., p.

TIE-VOTE FOR THE PRESIDENCY.

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of principle, and the boldness of his character, a dangerous experiment. Judge Woodworth charged that Burr had won over one of the electors of New York to withhold his vote from Jefferson, and that this was prevented only by the fact that the other electors of the state had discovered it in time.1 If this charge be well-founded, it was by mere accident that the country escaped electing a man president whose name had never yet been connected with the presidency by any party. But be this as it may, the danger that the bankrupt, foolish voluptuary, for whom no means was too low to carry out the adventurous plans of his daring and mad ambition, should be made chief of the republic, was by no means removed.

If an equal number of electoral votes should be cast for two or more candidates, the house of representatives would have to elect one of them to the presidency. In this case, the votes would be cast by states, and it would be necessary that a majority of all the states should vote for one of the candidates in order to have a valid election. The Federalists had a majority in the house of representatives, but voting by states they could control only one-half the votes. This was just sufficient to prevent an election.

No one denied that the majority of the people, as well as the republican electors, desired to make Jefferson president. But party passion had reached such a feverish height that the Federalists resolved, spite of this, to plant themselves on the letter of the constitution, and to hinder

488. Randall, Life of Jefferson, II., p. 573, calls this an absurd statement, but produces no proof therefor, except a letter of Jefferson's dated Dec. 15, 1800, to Burr, in which he intimates that he expects to receive a larger number of votes. J. C. Hamilton, Hist. of the Rep. of the United States, VII., p. 425, gives, however, good grounds for the assumption that Jefferson at this time was aware of the equality of the vote. A letter (Ibid, VII., p. 424) from Madison to Monroe, quoted by Hamil ton, tends rather to prove than to disprove that such a promise had been made in favor of Burr.

1J. C. Hamilton, VII., pp. 424, 425.

Jefferson's election. The possibility of electing their own candidates1 was completely excluded by the constitution. They could therefore do nothing except to obtain for Burr a majority of the votes of the states, or prevent an election. In case no president was elected by the states, they thought of casting the election on the senate. The senate was to elect a provisional president-from among the senators or not-who then might be declared president of the United States. Such a proceeding could not be justified by any provision of the constitution; the case had not been provided for at all. It is impossible to say whether this is the reason why the plan was soon dropped; certain it is, however, that Gibbs's statement that such a plan never existed is incorrect.4

3

After some hesitation they resolved to try to elect Burr. Only six states, it is true, voted for him, but it was necessary to win over only four votes in order to guaranty him the legal majority of nine states.

2 They thought, for instance, of chief-justice Marshall.

3 It is impossible to understand how, spite of this, Adams could write: "I know no more danger of a political convulsion, if a president pro tempore of the senate, or a secretary of state, or speaker of the house, should be made president by congress, than if Mr. Jefferson or Mr. Burr is declared such. The president would be as legal [!] in one case as in either of the others, in my opinion, and the people as well satisfied." Adams, Works, IX., p. 98.

* Mem. of Wolcott, II., p. 98.

5

Bailey and Livingston, of New York, Lynn, of New Jersey, and Dent, of Maryland. New Jersey and Maryland gave him an equally divided vote. Lynn inclined towards the Federalists, and Dent was a decided Federalist. The two representatives from New York named above were not considered very particular friends of Jefferson. The assumption that, under certain circumstances, a majority might be obtained for Burr does not seem to be quite as absurd as Randall represents it in his life of Jefferson. Life of Jeff., II., p. 605. Its probability is indirectly increased by the fact that the Federalists, who alone decided the issue in favor of Jefferson, drew upon themselves the suspicion of corrupt influence. See J. C. Hamilton, Hist. of the Rep. of the U. S. of

THREAT OF FORCIBLE RESISTANCE.

1

171

The prospect of the success of both plans was at least great enough to inspire the Republicans with serious fear. Jefferson had written on the 15th of December to Burr that "decency" compelled him to remain “ completely passive" during the campaign. But now he considered the situation so serious that he thought himself no longer bound by "decency." He personally requested Adams to interfere by his veto, if the Federalists should attempt to turn over the government, during an interregnum, to a president pro tem. Although he declared that such a measure would probably excite forcible resistance, Adams refused to be guided by his advice.2

Madison proposed another means of escape. He thought that an interregnum until the meeting of congress in December, 1801, would be too dangerous; Jefferson and Burr should therefore call congress together by a common proclamation or recommendation. This step could no more be justified by any provision of the constitution than an interregnum under a provisional president. Madison himself conceded that it would not be "strictly regular."3 But the literal interpretation was presumably the alpha and omega of the political creed of the Republicans. Spite of this the notion met with Jefferson's approbation.* Between the two parties, or rather above them, stood the founder of the Federalist party himself. Even Hamilton

Am., VII., pp. 464, 465, 467, 468. Benton, in his Abridgment of the Debates of Congress, omits the passage cited by Hamilton from Bayard's speech.

1Jeff., Works, IV., p. 340.

2 The Anas., Jeff.'s Works, IX., p. 210.:

4

3 Madison to Jefferson, Jan. 10, 1801: “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 be in form only, rather than in substance." J. C. Hamilton, Hist. of the Rep. of the U. S. of Am., VII., pp. 431, 432. Compare Ham., Works, VI., p. 509.

4 Jeff., Works, IV., p. 355. Edition of 1854.