SEC. 17. And be it further enacted, That in case any judge, justice, chancellor, mayor, recorder, or intendant, as aforesaid, to whom the application herein mentioned shall be made shall, by reason of sickness, necessary absence, or unavoidable accident, be rendered unable to attend at the time and place fixed for the examination aforesaid, it shall be lawful for him to certify the matter and the proceedings had by him in that behalf to any other magistrate of any of the descriptions aforesaid, which said magistrate thereupon shall be, and hereby is, authorized to attend, at such time and place, and to proceed touching the said examinations, in all respects, as the magistrate issuing the warrant of summons might have done by virtue of this act. SEC. 18. And be it further enacted, That when no such magistrate as is herein authorized to receive applications as aforesaid and proceed upon, shall reside within any district for which an election about to be contested shall have been held, it shall be lawful to make such application to any two justices of the peace residing within the said district, who are hereby authorized in such case to receive such application, and jointly to proceed upon it in the manner hereinbefore mentioned. SEC. 19. And be it further enacted, That every witness attending by virtue of such warrant of summons as is herein directed to be issued, shall be allowed the sum of seventy-five cents for each day's attendance, and the further sum of five cents for every mile necessarily traveled in going and returning, which allowance shall be ascertained and certified by the magistrate taking the examination, and shall be paid by the party at whose instance such witness was summoned, and such witness shall have an action for the recovery of the said allowance before any court or magistrate having competent jurisdiction according to the laws of the United States, or of any State, in which action the certificate of the magistrate taking the said examination shall be evidence. SEC. 20. And be it further enacted, That each judge, justice, chancellor, mayor, recorder, intendant, and justice of the peace, who shall be necessarily employed, pursuant to the directions of this act, and all sheriffs, constables, or other officers who may be employed to serve any of the warrants of summons, or notifications herein provided for, shall have and receive from the party at whose instance such service shall have been performed such fee or fees as are or may be allowed for similar services in the States wherein such service shall be rendered respectively. Strike out the whole of the title, and insert in lieu thereof the following: "An act prescribing the mode of counting the votes for President and Vice-President of the United States." It was committed to the Committee of the Whole House, Monday next, the 28th. The bill came up on the 29th. Mr. Nicholas saw no use for this committee, whose only business was to examine testimony, which, being next to nothing for them to do, would enable them better to design mischief if they were so inclined; and the great inconvenience that would attend their being empowered to send for testimony, even from the most distant part of the United States, made him think that all the provisions with which this committee were connected should be stricken out. He therefore moved to strike out the first section of the bill. This was negatived-39 to 43. Mr. Gallatin moved to amend a section which provided the means of ascertaining the votes. Mr. Marshall answered. The committee rose without a decision. Next day, April 30, the House resumed the consideration of the bill in the Committee of the Whole. A motion of Mr. Gallatin was under consideration to insert, instead of the principle that in cases of doubt the Houses should divide to their respective Chambers to consider the qualification or disqualification of a vote or votes, from their joint meeting, if such question should arise at counting the votes, the following words: "And the question of the exception shall immediately, and without debate, be taken by yeas and nays, and decided by a majority of the members of both Houses then present." This motion called forth a long debate, and on the division was negatived-44 to 46. The committee rose and reported. May 1, the House proceeded to consider the amendment reported the day before from the Committee of the Whole House. A motion was made to amend the said amendment by striking out in the first section thereof the words following: "That on the next following the day when a President and Vice-President shall have been voted for by electors, it shall be the duty of the Senate and House of Representatives of the United States to choose, by ballot in each Honse, four members thereof; and the persons thus chosen shall form a joint committee, and shall have power to examine into all disputes relative to the election of President and Vice-President of the United States, other than such as may relate to the number of votes by which electors may have been appointed." The motion was negatived-41 to 47-as follows: YEAS-Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorf, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smiley, John Smith, Richard Stanford, David Stone, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. NAYS-George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, William H. Hill, Benjamin Huger, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John C. Thomas, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. A motion was then made to amend the amendment by striking out of the eighth section the following: "And sign his name thereto, and if it be founded on any circumstance appearing in the report of the joint committee, and the exception be seconded by one member of the Senate and one from the House of Representatives, each of whom shall sign the said exception as having seconded the same, then each House shall immediately retire, without question or debate, to its own apartment and shall take the question on the exception, without debate, by ayes and noes. So soon as the question shall be taken in either House, a message shall be sent to the other, informing them that the House sending the message is prepared to resume the count, and when such message shall have been received by both Houses, they shall again assemble in the same apartment as before, and the count shall be resumed. And if the two Houses have concurred in rejecting the vote or votes objected to, such vote or votes shall not be counted. But unless both Houses concur such vote or votes shall be counted. If the objection taken as aforementioned, shall arise on the face of the papers opened by the President of the Senate, in the presence of both Houses, and shall not have been noticed in the report of the joint committee, such objection may be referred to the joint committee, to be examined and reported on by them, in the same manner and on the same principles as their first report was made; but, if both Houses do not concur in referring the same to the committee, then such objection shall be decided on in the like manner as if it had been founded on any circumstances appearing in the report of the committee," and insert, in lieu thereof, the following: "And the question on the exception shall immediately, and without debate, be taken by ayes and noes, and decided by a majority of the members of both Houses then present." The motion was decided in the negative-43 to 46-as follows: YEAS-Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorf, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nichols, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Richard Stanford, David Stone, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. NAYS-George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, William H. Hill, Benjamin Huger, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. The amendment was then amended, in what particular is not stated, and ordered to be read the third time. May 2, the bill was read a third time and passed, 52 to 37, as follows: YEAS-Messrs. George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, Samuel W. Dana, John Davenport, Franklin Davenport, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William H. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, Samuel Smith, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS-Messrs. Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, John Dawson, Joseph Eggleston, Lucas Elmordorf, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Thomas Hartley, Joseph Heister, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, John Randolph, John Smilie, John Smith, Richard Stanford, David Stone, John Thompson, Abram Trigg, John Trigg, and Robert Williams. IN SENATE, May 2, 1800. The Senate took into consideration the amendments of the House of Representatives to the bill for deciding disputed elections of President and Vice-President of the United States, and they were referred to Messrs. Ross, Dexter, and Livermore to report thereon. May 8, 1800. Mr. Ross, from the above committee, reported amendments thereto. The Senate considered the amendments reported by the committee to the House of Representatives on the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States. On motion to agree to the following amendment reported by the committee: Section 8, line 49, strike out the word "rejecting" and insert "admitting,” it passed in the affirmative-yeas 15, nays 11; as follows: YEAS-Messrs. Bingham, Dayton, Dexter, Goodhue, Greene, Gunn, Hillhouse, Latimer, Livermore, Morris, Read, Ross, Schureman, Tracy, and Wells. NAYS-Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Foster, Franklin, Marshall, Mason, Nicholas, and Pinckney. On motion to strike out the following words from the first section of the amendment of the House of Representatives, viz: "Other than such as may merely question the number of votes by which the electors may have been appointed," it passed in the negative-yeas 11, nays 16; as follows: YEAS-Messrs. Dayton, Dexter, Goodhue, Greene, Hillhouse, Latimer, Read, Ross, Schureman, Tracy, and Wells. NAYS-Messrs. Anderson, Baldwin, Bingham, Bloodworth, Brown, Cocke, Foster, Gunn, Laurance, Livermore, Marshall, Mason, Morris, Nicholas, and Pickney. On motion to agree to the amendment of the House of Representatives, with the amendments reported, it passed in the affirmative-yeas 16, nays 11; as follows: YEAS-Messrs. Bingham, Dayton, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse, Latimer, Laurance, Livermore, Morris, Ross, Schureman, Tracy, and Wells. NAYS-Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Marshall, Mason, Nicholas, Pickney, and Read. IN THE HOUSE OF REPRESENTATIVES, May 9, 1800. The House received this bill with amendments, one of which, "respecting the election of President,” was, instead of the word “rejecting" (in the bill) any vote or votes by a concurrent vote of the two Houses, the word "admitting" was proposed by the Senate. Mr. Harper and Mr. Bayard hoped the House would not concur, as this amendment very materially changed the principle of the bill, inasmuch as it would put it in the power of one or two members of either House to require the majority of both Houses to admit a vote or votes in default of which the whole votes of a State might be totally rejected. This was contrary to the former will of the House after mature deliberation. The yeas and nays were called by Mr. Nicholas on the question, "Shall the amendments of the Senate be concurred in?" and decided in the negative-yeas 15, nays 73; as follows: YEAS-Messrs. John Brown, Samuel W. Dana, Franklin Davenport, Dwight Foster, Chauncey Goodrich, Roger Griswold, James H. Imlay, Samuel Lyman, Jonas Platt, James Sheafe, William Shepard, George Thatcher, Robert Waln, Lemuel Williams, and Henry Woods. NAYS-Messrs. Willis Alston, George Baer, Theodorus Bailey, Bailey Bartlett, James A. Bayard, Phanuel Bishop, Jonathan Brace, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, William Cooper, William Craik, John Davenport, Thomas T. Davis, John Dawson, George Dent, Joseph Dickson, Joseph Eggleston, Lucas Elmendorf, Thomas Evans, Abiel Foster, John Fowler, Jonathan Freeman, Albert Gallatin, Henry Glen, Elizur Goodrich, Edwin Gray, Andrew Gregg, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Joseph Heister, William H. Hill, David Holmes, George Jackson, James Jones, Aaron Kitchell, John Wilkes Kittera, Michael Leib, Matthew Lyon, James Linn, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Abraham Nott, Robert Page, Thomas Pinckney, Leven Powell, John Randolph, John Reed, John Rutledge, jr., Samuel Sewall, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, John Chew Thomas, Richard Thomas, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, and Robert Williams. IN SENATE, May 10, 1800. The Senate resumed the consideration of the resolution of the House of Representatives on the amendments to their amendment to the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States; and on motion to recede from the amendments to the amendment it passed in the negativeyeas 11, nays 16; as follows: YEAS-Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Foster, Franklin, Marshall, Mason, Nicholas, and Pinckney. NAYS-Messrs. Bingham, Dayton, Dexter, Greene, Gunn, Hillhouse, Howard, Latimer, IN THE HOUSE OF REPRESENTATIVES, May 10, 1800. The House "adhered to their disagreement to recede," and the bill was lost. PROPOSED AMENDMENT TO THE CONSTITUTION. IN THE HOUSE OF REPRESENTATIVES, January 22, 1801. In the report of Mr. Nicholas, on a proposed amendment to the Constitution, providing a change in the mode of the appointment of electors, so as to elect them from districts, much the same as Congressmen are now elected, appears the following: "The votes of the electors of the several States are next to be rendered by ballot, and when so rendered, they are to be transmitted, in the form of certificates giving the result of the ballot, to certain officers of the Government of the United States. When the period arrives for opening these certificates and counting the votes in the presence of the Senate and House of Representatives of the United States, if error or abuse shall have taken place, no means exist (in case the ballot be in favor of more than two persons as Presidents and Vice-Presidents) for discriminating between the votes of those who shall have been duly appointed and returned and those who shall have been defectively appointed and unduly returned as electors. To set aside votes given by persons not duly appointed, and consequently wanting the competent authority of electors, no course presents itself in such case save that of vacating the whole ballot of which the defective vote or votes may be a component part. Thus to deprive a State of all participation in the election of the President and Vice-President of the United States, on account of the defective appointment of one or a few of its electors, would be a serious and painful duty. To vacate such ballot, and thereby to deprive those candidates for whom the sound votes of such ballot may have been given, of the aid of that ballot in order at the same time to destroy the effect of the unsound votes, might result in giving to others a priority to which, if effect could be given to the really sound votes, those others might not be entitled. This also presents an embarrassing consideration. "The vacation of a ballot composed of sound and defective votes ought to be the result of uniform principle; it ought to take place on all occasions where a discrimination cannot be made or on none. Not to vacate such ballot, but to permit the election of a Chief Magistrate to be carried on any occasion by the aid of one or more defective votes, would be to hazard, in a most eminent degree, the peace of the Union. It is of the last importance to the happiness of the people of the United States that a complete conviction should prevail at all times that the person who may be elected Chief Magistrate of the Union has been really elected by electors duly and really apappointed by those having competent authority for that purpose. It were painful to anticipate the consequences which would too probably attend a disputed election to the Presidency. Those consequences might be more calamitous than can be foreseen." ELECTION FOR THE FOURTH TERM-1801. THOMAS JEFFERSON, President. AARON BURR, Vice-President. IN SENATE, January 23, 1801. A message from the House of Representatives, by Mr. Oswald, their Clerk: Mr. PRESIDENT: The House of Representatives have passed a resolution for the appointment of a committee, on their part, with such as may be appointed on the part of the Senate, to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their election; and to regulate the time, place, and manner of administering the oath of office to the President; in which they desire the concurrence of the Senate. January 27, 1801. The Senate concurred in the foregoing resolution, and appointed Messrs. Morris, Tracy, and Bingham to be the committee on the part of the Senate. February 9, 1801. Mr. Morris, from the joint committee, appointed the 27th of January last to ascertain and report the mode of examining the votes for President and Vice-President of the United States, reported that the committee could come to no agreement. On motion, Resolved, That the Senate will be ready to receive the House of Representatives in the Senate Chamber on Wednesday next, at twelve o'clock, for the purpose of being present at the opening and counting the votes for President of the United States; that one person be appointed a teller on the part of the Senate to make a list of the votes for President of the United States as they shall be declared, and that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered upon the Journals; and if it shall appear that a choice hath been made agreeably to the Constitution, such entry on the Journal shall be deemed a sufficient declaration thereof. Ordered, That the Secretary notify the House of Representatives of this resolution. February, 10, 1801. Ordered, That Mr. Wells be a teller on the part of the Senate for the purpose expressed in the above resolution. February 11, 1801. Ordered, That the Secretary notify the House of Representatives that the Senate is ready to meet them in the Senate Chamber, for the purpose of being present at the opening and counting the votes for President of the United States. The two Houses of Congress accordingly assembled in the Senate Chamber, and the certificates of the electors of sixteen States were, by the Vice-President, opened and delivered to the tellers appointed for that purpose, who, having examined, and ascertained the number of votes, presented a list thereof to the Vice-President; read, as follows: which was Whereupon The Vice-President declared that the result of the votes, as delivered by the tellers, |