THE HOUSES DISAGREE.

305

nate the candidates was carried, on the second, by a vote of forty-seven to fourteen, and, on the following day, was read in the Senate. By a vote of fifteen to eight, the Senate refused to concur.1 The House was informed of this action, and Congress adjourned. But the defeated amendment was presented again on the third of January, by Leib, of Pennsylvania, who remarked that his constituents were extremely anxious on the subject. On the eighth of February, Bayard of Delaware, moved that the House go into committee on the subject; Griswold, of Connecticut, renewed the motion on the ninth, but the House finally, without a division, discharged the Committee from any consideration of the two amendments that had been referred to it and no further action was taken during the session.

When, for a long period of time, the same propositions come up before Congress, whether originating among its members, or with State legislatures, or with constituencies, they will at last be heard. On the seventeenth of October, 1803, when the Eighth Congress assembled, it was nearly six years since Smith, of South Carolina, had offered his resolution to the House that the Constitution be amended so as to direct the electors to designate the candidates voted for as President and those voted for as Vice-President. On the first day of the session, John Dawson, of Virginia, renewed this old motion, and on the following day, the House, in Committee of the Whole, set itself seriously to its consideration.2 Dawson's amendment merely directed the designation of the electoral votes; Nicholson, of Maryland, detecting the uncertainty that would prevail if the amendment went no further, as the Constitution provided that after the choice of Presi1 Annals, 304.

2 Annals, 8th Cong., 1st Sess., 372.

306

A QUESTION OF PROCEDURE.

dent, the person having the greatest number of votes should be Vice-President, wished Dawson's amendment changed so that the person receiving the highest number of votes for Vice-President should thereby be elected, unless the vote for two or more was equal, in which case the Senate should choose. Clopton, of Virginia, wished the choice, if to be made by the House, limited to two candidates, instead of five, as the Constitution provided, and this should apply to the election in the Senate, also. On the twentieth, the amendatory propositions on Nicholson's motion, was referred to a Committee of Seventeen,—one from each State,-of which Dawson was chairman. To this committee the amendment for districting the Union for electors was also referred.

A question of procedure arising, the Speaker, Nathaniel Macon, of North Carolina, decided that according to the usages of the House, a simple majority was competent to decide all matters preliminary to the final adoption of amendments.1 Dawson, on the twenty-second, offered a revision of his amendment, embracing Clopton's idea, but limiting the choice to the three highest on the list, in cases when the election went to the House; but to two, when the Vice-President was chosen by the Senate. The Select Committee, two days later, reported Dawson's last amendment, but the limitation of the House to three candidates, instead of five, was at once objected to as a limitation of the rights of the small States. The great object of the amendment, remarked Sanford, of Kentucky, "ought to be to prevent persons voted for as Vice-President from becoming President; other innovation upon the Constitution was improper. No danger could arise from extending the right of the House to making a choice from the five highest." Caesar Rodney, of Delaware, agreed 1 Annals, Id., 381.

THREE OR FIVE CANDIDATES.

307

with Goddard, of Connecticut, that five would allow a larger choice than three, and thus favor the small States.

In defense of the report, Dawson explained, that the committee did not think three a discrimination because when both President and Vice-President were voted for without discrimination, the choice was made from five. Campbell, of Tennessee, had remarked that by limiting the number to three, the choice would nearer approach the will of the people. "What is this will," inquired Goddard, "but the will of the large States, Virginia, New York and Pennsylvania?" When it was known that the election might go to the House, the people would choose their Representatives accordingly. "The fewer the number of candidates," replied Alston, of North Carolina, "the less chance that the House would be called upon to make the choice." On the twenty-sixth, the committee reported a resolution which was agreed to by the House. The candidates should be designated; and in case no person was chosen President by the electors, the House should elect from the three highest on the list. If no Vice-President was chosen, the Senate should elect from those highest on the list and having an equal number of votes. But the friends of the number five made it the issue, on the following day, when, by a vote of fifty-nine to fortyseven, it was inserted; and the amendment, as changed, was ordered engrossed and passed to a third reading.

On the twenty-eighth the debate of the measure began.1 This debate is no less interesting for its bearing upon the immediate question than for the interpretation it gives of the nature of the Constitution, and the light it throws on the scope and operation of that instrument, as understood in the opening years of the new century. In 1803, most

1 Id., 515.

308

THE STATUS OF THE CONSTITUTION.

of the framers of the Constitution were still living, and many of them were in public life. But the men who were proposing and discussing the twelfth amendment were of a later generation, to whom the Constitution came as the heritage of the country from Revolutionary times. To the surprise of many, the Constitution had proved itself well adapted to the needs of America. But no one should think that the Constitution seemed to Congressmen in 1803, as it seems to Congressmen in our day. It was not yet associated with the defeats and triumphs of administration extending over many years. Its makers were still living, and the passions of 1787 were not all allayed by its ratification. Jefferson had spoken of it as a clock that might run down, and many Federalists believed that some of its mechanism had stopped on the day when he was chosen President by the House of Representatives. To many Senators and Congressman of 1803, the Constitution was a law not differing, profoundly, from other laws. Public sentiment has long since come to venerate it as the supreme law of the land. Whatever the word Constitution may mean to the mass of Americans, at least, it stands for power and permanency, and supreme political wisdom, and a supreme law almost impossible to change. The twelfth amendment following its predecessors within five years, and, indeed, proposed before the eleventh had yet been proclaimed to be a part of the Constitution, suggested the thought to many that the nineteenth century might possibly revise the work of the Federal Convention, and that party demands might rewrite the Constitution.

On Friday, the twenty-eighth of October,1 Griswold, of New York, rising, after the manner of Congressmen, to give the reason for his opposition to the proposed amend

1 1803; Annals, 515, 8th Cong. 1st Sess.

EQUALITY OF THE STATES.

309

ment, because it would "materially affect the smaller States in the choice of President," defined the Constitution as "a compact formed by the several States for the general good," a concept of the Constitution which was commonly held at the time, and, indeed, until the nineteenth century was in its last quarter. "In no other place than on this floor," said he, "are the smaller States on an equal footing with the larger in the choice of the President." It followed that the greater the chance of bringing the States to a vote in the House, the more advantageous it would be for the smaller States. For them an election by the House was an exercise of that sovereignty of which they were so jealous. The more the Constitution was examined, the greater the admiration of its principles. The mode originally provided for the election was the least liable to call forth art, intrigue and corruption, because the uncertainty of the result made all evil plans difficult of execution. Adopt the proposed amendment, and the door to corruption was opened. Moreover it was an unhappy time to alter the Constitution, when the public mind was agitated by party rage. By altering it for every trivial pretext, all sacred regard for it would be destroyed.

What is the Constitution, asked Huger, of South Carolina, other than a "compact, a bargain, a perfect compromise of interests, powers, influence and rights:-a federative government agreed upon between thirteen distinct and separate sovereignties, for their mutual defence and protection?" The inhabitants of the United States, in forming the Constitution, did not, he said, act in mass as one people.1 The men who framed it did not, even in the degree of members of the House, immediately represent the people. "They were not selected by the people 1 Annals, Id., 522.