DECEMBER, 1803. Amendment to the Constitution. SENATE. small States; and she with her accustomed sagacity found out the remedy, by proposing a convention, in which your Constitution originated. To whom are you indebted for the Revolution! To the brave State of Massachusetts, the grati. tude of America is due for her valor, her constancy, and her sufferings. But it is to Virginia you owe the instructive spirit and the manful determination of the first resolve and first determination to be free, sovereign, and independent. Why then is this jealousy attempted? Is it because she had given us Washington in our Revolution, and Jefferson now? Is it to the superiority of her patriots and statesmen we must attribute this unworthy envy? It has been asked why we do not resort to a convention, if we wish to amend the Constitution? For his part he was averse to calling conventions, but when no other remedy was provided; bodies of that description are invested with boundless power; the physical and political powers of the we had no ambitious men since seeking to destroy our liberties? Are there none now who would, if they could hope for success, attempt it? Thanks to our better fortune, though we have encountered many a storm, and though bad pilots had nearly foundered us, the vessel of State is still safe, and her liberties are not gone by the board. Thanks to the sound sense of the people, unbounded thanks to the able pilot who now holds the helm, we have escaped a wreck, and are now more prosperous and happy than at any former period. The exalted character who is now at the head of affairs defies the shallow railings and little-minded attacks of his enemies; his character stands too high above their reach to be affected by the insects that crawl beneath him; his conduct is above their censure, and his good deeds have rendered him dear to his fellow-citizens. His countrymen had fixed their eyes upon him, but arts had been employed to frustrate their wishes. The effect, however, had been fortunate; and if it had not been for acci-State are in their hands; and they are therefore dental circumstances, there never would have been room for the alarming contest which took place in the House of Representatives. He had the best reason to know, that it never was intended to make any other man President. He was at that period at the head of the government of Georgia, and happened to be present when a letter was received, directed to some of the Electors, the contents of which were communicated to him. The Electors of Georgia had determined to give two of their votes to Governor Clinton. The letter was from an influential gentleman in South Carolina, pressing them to give all their votes equal, as it was alleged that if they were not given, a character not acceptable to the people would be Vice President. It was therefore to secure for Mr. Burr the Vice Presidency that those two votes were given, which would not have been given if the least suspicion had been entertained of what subsequently happened. But it is asserted that there may be a coalition of the large States, and thus this amendment is intended to depress the small States. These things gentlemen said only because they could say nothing to the purpose. Will any gentleman say that Massachusetts and Virginia have united? Look to their representatives, and ask them if such is the case. Will those States be ever likely to coalesce in party views? Never; there is one point only upon which they could be united-the defence of a common country. Tear a leaf from the Constitution and they will rally together, and the small States will cling around them. But why is this jealousy of Virginia excitedwhen and where has she domineered over her sister States? She is as incapable of the attempt as of submission to an insulting and insidious domination. From whence do you derive your Constitution? From Virginia. When your small States refused to submit to a paltry five per cent. impost on foreign goods, what was then your situation? Who stood forward? Virginia; she saw the situation of their common country, she saw the glories of the Revolution and the liberties of the people endangered by the blind and selfish policy of the more exposed to the zeal and the intrigues of the ardent and ambitious. The Constitution has provided means more simple, and fully adequate; and, even though we might err in our determinations, the check of three-fourths of the Legislatures will be an adequate protection against the invasion of the public rights. We are told we shall give up everything if we pass this amendment. Shall we, really, have more or less power than before; or, has there been any coalition which is under an apprehension of losing everything by its passage? We are told that the candidates, on a former occasion, had an equal claim and equal pretensions to the office of President. He did not wish to make comparisons; but he could not but recollect that the attempt to supersede one of the candidates, and to place the other in his station, had endangered the Government; and, from what he had already said, he believed it would not be questioned that, so far as concerned Georgia, it never was intended to give them an equal chance; and small and obscure as that little corner called Georgia is, had the measure been pursued to consummation, which had been attempted on that occasion, she would have flown to arms, and South Carolina would have joined her to do justice to the interest of the nation. The gentleman from Delaware (Mr. WHITE) had talked of intrigues. The days of intrigue are past, they are gone, and the intriguers with them; the people have got the man of their choice; Mr. Jefferson has no occasion for intrigue were he disposed to employ it; the Administration has none; the policy of the Executive is above all intrigues; the affections of the people are his, and justly, for, under his Administration, they are the happiest people that ever existed. Never will there be a Federal President or Vice President again elected, to the end of time; if there should ever be any other chosen out of the line of the present politics, it must be from some new sect, which, assuming the principles of the republicans, may succeed by carrying their zeal for liberty farther. He did not wish to discuss largely the allusion of the gentleman to a fifth wheel. Were the subject to be confined to our own country, he should go fully into that subject; he wished not to afford any handle for the disrespect of foreign nations towards any part of our institutions. But he would spurn the insinuations of those who would suggest that we shall not choose a man of integrity for the office of Vice President. The people, sir, will solicit a man worthy of their confidence, and honored abroad and at home. The amendinent to the Constitution, he considered necessary and salutary; and he was in hopes, when gentlemen saw the benefits, they would come forward and thank us for it. Mr. TRACY hoped the Senate would now adjourn; on the question being put, it was lost. The motion of Mr. TRACY for an adjournment having been negatived, he then addressed the President. Mr. TRACY moved an adjournment, because he thought a more full and fair discussion was due to this important question than could be had after this late hour. The merits have never, until now, been before us, for, although considerable time has been consumed in debate, it has chiefly been directed to the subordinate amendments, and not to the main resolution. But, since the Senate have refused to adjourn, I will now offer some observations on the merits; in doing which, I will study brevity, as much as the importance of the subject will permit. I shall attempt to prove, sir, that the resolution before us contains principles which have a manifest tendency to deprive the small States of an important right, secured to them by a solemn and Constitutional compact, and to vest an overwhelming power in the great States. And, further, I shall attempt to show that, in many other points, the resolution is objectionable, and, for a variety of causes, ought not to be adopted. As I shall be obliged, in delineating the main features of this resolution, to mention the great States in the Union as objects of jealousy, I wish it to be understood that no special stigma is intended. "Man is man," was the maxim expressed in an early part of this debate, by the gentleman from South Carolina, (Mr. BUTLER,) and in application to the subject of Government, the maxim is worthy to be written in letters of gold. Yes, sir, "man is man," and the melancholy truth that he is always imperfect and frequently wicked, induces us to fear his power, and guard against his rapacity, by the establishment and preservation of laws, and well-regulated constitutions of Government. Man, when connected with very many of his fellow men, in a great State, derives power from the circumstance of this numerous combination; and from every circumstance which clothes him with additional power, he will generally derive some additional force to his passions. Having premised this, I shall not deem it requisite to make any apology, when I attempt to excite the attention, the vigilance, and even the jealousy of the small, in reference to the conduct of the great States. The caution is meant to ap DECEMBER, 1803. ply against the imperfections and passions of man, generally, and not against any State, or description of men, particularly. It may be proper, in this place, to explain my meaning, when I make use of the words "small" and "great," as applicable to States. Massachusetts has been usually called a great State; but, in respect to all the operations of this resolution, she must, I think, be ranked among the small States. The district of Maine is increasing rapidly, and must, in the nature of things, soon become a State. To which event, its location, being divided from what was the ancient Colony of Massachusetts, by the intervention of New Hampshire, will very much contribute. I believe there is a Legislative provision of some years' standing, authorizing a division at the option of Maine. When this event shall occur, Massachusetts, although, in comparison with Connecticut and Rhode Island, will not be a small State; yet, in comparison with many others, must be so considered. I think myself justifiable, then, for my present purposes, in calling Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New Jersey, Delaware, Maryland, and South Carolina, small States. They are limited in point of territory, and cannot reasonably expect any great increase of population for many years, not, indeed, until the other States shall become so populous as to discourage emigration, with agricultural views; which may retain the population of the small States as seamen or manufacturers. This event, if it ever arrives, must be distant. A possible exception only may exist in favor of Maine; but, when we consider its climate, and a variety of other circumstances, it is believed to form no solid exception to this statement. By the same rule of deciding, the residue of the States must be called great; for although Georgia and several others are not sufficiently populous, at this time, to be considered relatively great States, yet their prospect of increase, with other circumstances, fairly bring them within the description, in respect to the operation of the measure now under consideration. It will be recollected that, in the various turns which the debate has taken, gentlemen have repeatedly said that the Constitution was formed for the people; that the good of the whole was its object; that nothing was discernible in it like a contest of States, nothing like jealousy of small States against the great; and although such distinctions and jealousies might have existed under the first Confederation, yet they could have no existence under the last. And one gentleman, (Mr. SMITH, of Maryland,) has said that he has been a member of this Government ten years, and has heard nothing of great and small States, as in the least affecting the operations of Government, or the feelings of those who administer it. Propriety, therefore, requires that we attentively examine the Constitution itself, not only to obtain correct ideas upon these observations, so repeatedly urged, but to place in the proper light the operations and effects of the resolution in de DECEMBER, 1803. Amendment to the Constitution. SENATE. tion with attention, we shall find the small States are perpetually guarding the federative principle, that is, State equality. And this, in every part of it, except in the choice of the House of Representatives, and in their ordinary legislative proceedings. They go so far as to prohibit any amendment which may affect the equality of States in the Senate. gislatures extremely off their guard, if they permit such alterations, which aim at their own existence. But, lest some accident, some unaccountable blindness or perfidy should put in jeopardy the federative principle in the Senate, they totally and forever prohibit all attempts at such a measure. In the choice of President, the mutual caution and concession of the great and small States, is, if possible, more conspicuous than in any other part of the Constitution. bate. If we attend to the Constitution, we shall immediately find evident marks of concession and compromise, and that the parties to these concessions were the great and small States. And the members of the Convention who formed the instrument have, in private information and public communications, united in the declaration, that the Constitution was the result of concession and compromise between the great and small States. This is guarding against almost an impossibilIn this examination of the Constitution it will be ity, because the Senators of small States must be impossible to keep out of view our political rela-criminally remiss in their attendance, and the Letions under the first Confederation. We primarily united upon the footing of complete State equalíty-each State had one, and no State had more than one vote in the Federal Council or Congress. With such a Confederation we successfully waged war, and became an independent nation. When we were relieved from the pressure of war, that Confederation, both in structure and power, was found inadequate to the purposes for which it was established. Under these circumstances, the States, by their Convention, entered into a new agree- He is to be chosen by Electors appointed as the ment, upon principles better adapted to promote State Legislatures shall direct, not according to their mutual security and happiness. But this last numbers entirely, but adding two Electors in each agreement, or Constitution, under which we are State as representatives of State sovereignty. Thus now united, was manifestly carved out of the first Delaware obtains three votes for President, whereConfederation. The small States adhered tena- as she could have but one in right of numbers. ciously to the principles of State equality; and Yet, mixed as this mode of choice is, with both gave up only a part of that federative principle, popular and federative principles, we see the complete State equality, and that, with evident small States watching its motions and circumcaution and reluctance. To this federative prin- scribing it to one attempt only, and, on failure of ciple they were attached by habit; and their an Electoral choice, they instantly seize upon the attachment was sanctioned and corroborated by right of a Federal election, and select from the the example of most if not all the ancient and candidates a President by States and not by numthe modern Confederacies. And when the great bers. In confirmation of my assertion, that this States claimed a weight in the Councils of the part of the Constitution was peculiarly the effect nation proportionate to their numbers and wealth, of compromise between the great and small the novelty of the claim, as well as its obvious States, permit me to quote an authority which tendency to reduce the sovereignty of the small will certainly have great weight, not only in the States, must have produced serious obstacles to Senate, but through the Union, I mean that of its admission. Hence it is, that we find in the the present Secretary of State, (Mr. Madison,) Constitution but one entire departure from the who was a leading member of the Federal ConFederal principle. The House of Representa-vention who formed, and of the Virginia Conventives is established upon the popular principle, and given to numbers and wealth, or to the great States, which, in this view of the subject, are synonymous. It was thought, by the Convention, that a consolidation of the States into one simple "As to the eventual voting by States it has my apRepublic, would be improper. And the local feel-probation. The lesser States and some larger States ings and jealousies of all, but more especially of will be generally pleased by that mode. The Deputies the small States, rendered a consolidation imprac- from the small States argued, and there is some force ticable. in their reasoning, that, when the people voted, the The Senate, who have the power of a legisla-large States evidently had the advantage over the rest, tive check upon the House of Representatives, and many other extensive and important powers, is preserved as an entire federative feature of Government as it was enjoyed by the small States, under the first Confederacy. In the article which obliges the Electors of President to vote for one person not an inhabitant of the same State with themselves, is discovered State jealousy. In the majorities required for many purposes by the Constitution, although there were other motives for the regulations, yet the jealousy of the small States is clearly discernible. Indeed, sir, if we peruse the Constitu8th CoN.-6 tion who adopted the Constitution. In the Debates of the Virginia Convention, volume 3, page 77, Mr. Madison says, speaking of the mode of electing the President: and, without varying the mode, the interests of the little States might be neglected or sacrificed. Here is a compromise. For in the eventual election, the small States will have the advantage.” After this view of the Constitution, let us inquire, what is the direct object of the proposed alteration in the choice of President? To render more practicable and certain the choice by Electors-and for this reason: that the people at large, or in other words, that the great States, ought to have more weight and influence in the choice. That it should be brought nearer to the popular and carried further from the fede SENATE. Amendment to the Constitution. rative principle. This claim we find was made at the formation of the Constitution. The great States naturally wished for a popular choice of First Magistrate. This mode was sanctioned by the example of many of the States in the choice of Governor. The small States claimed a choice on the federative principle, by the Legislatures, and to vote by States; analogies and examples were not wanting to sanction this mode of election. A consideration of the weight and influence of a President of this Union, must have multiplied the difficulties of agreeing upon the mode of choice. But as I have before said, by mutual concession, they agreed upon the present mode, combining both principles and dividing between the two parties, thus mutually jealous, as they could, this important privilege of electing a Chief Magistrate. This mode then became established, and the right of the small States to elect upon the federative principle, or by States, in case of contingency of electoral failure of choice, cannot with reason and fairness be taken from them, without their consent, and on a full understanding of its operation; since it was meant to be secured to them by the Constitution, and was one of the terms upon which they became members of the present Confederacy; and for which privilege they gave an equivalent to the great States, in sacrificing so much of the federative principle, or State equality. The Constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretences they may be presented, should be watched with a jealous eye. Perhaps a fair definition of the Constitutional powers of amending is, that you may upon experiment so modify the Constitution in its practice and operation, as to give it, upon its own principles, a more complete effect. But this is an attack upon a fundamental principle established after a long deliberation, and by mutual concession, a principle of essential importance to the instrument itself, and an attempt to wrest from the small States a vested right, and, by it, to increase the power and influence of the large States. I shall not pretend, sir, that the parties to this Constitutional compact cannot alter its original essential principles, and that such alterations may not be effected under the name of amendment; but, let a proposal of that kind come forward in its own proper and undisguised shape; let it be fairly stated to Congress, to the State Legislatures, to the people at large, that the intention is to change an important federative feature in the Constitution, which change in itself and all its consequences, will tend to a consolidation of this Union into a simple Republic; let it be fairly stated, that the small States have too much agency in the important article of electing a Chief Magistrate, and that the great States claim the choice; and we shall then have a fair decision. If the Senators of the small States, and if their State Legislatures, will then quietly part with the right they have, no person can reasonably complain. DECEMBER, 1803. Nothing can be more obvious, than the intention of the plan adopted by our Constitution for choosing a President. The Electors are to nominate two persons, of whom they cannot know which will be President; this circumstance not only induces them to select both from the best men; but gives a direct advantage into the hands of the small States even in the electoral choice. For they can always select from the two candidates set up by the Electors of large States, by throwing their votes upon their favorite, and of course giving him a majority; or, if the Electors of the large States should, to prevent this effect, scatter their votes, for one candidate, then the Electors of the small States would have it in their power to elect a Vice President. So that, in any event, the small States will have a considerable agency in the election. But if the discriminating or designating principle is carried, as contained in this resolution, the whole, or nearly the whole right and agency of the small States, in the electoral choice of Chief Magistrate, is destroyed, and their chance of obtaining a federative choice by States if not destroyed, is very much diminished. For this indentical purpose is the principle of electoral discrimination and designation introduced into the resolution before you; for the same purpose is the number of candidates reduced from five to three, from whom the House of Representatives may elect, in case of electoral failure of choice; that is, to destroy or diminish the agency of the small States in the choice of President. For what purpose else are we perpetually told, and from all parts of the Senate, that the public will is opposed by the present mode, and public will cannot be gratified, without the introduction of the discriminating principle? By the public will thus mentioned, the gentlemen mean the will of a popular majority, or, the will of the great States, which in this case, I repeat it, are the same. How is it possible for the gentlemen to increase the chances of gratifying this description of the public will, without decreasing the agency of the small States? The whole power of election is now vested in the two parties; numbers and States, or, great and small States; and it is demonstration itself, if you increase the power of the one, in just such proportion you diminish that of the other. Do the gentlemen suppose that the public will, when Constitutionally expressed by a majority of States, in pursuance of the federative principle of our Government, is of less validity, or less binding upon the community at large, than the public will expressed by a popular majority? The framers of your Constitution, the people who adopted it, meant, that the public will, in the choice of a President, should be expressed by Electors, if they could agree, and if not, the public will should be expressed by a majority of the States, acting in their federative capacity, and that in both cases the expression of the public will should be equally binding. It is pretended that the public will can never, properly or Constitutionally, be expressed by a majority of numbers of the people, or of the DECEMBER, 1803. Amendment to the Constitution. SENATE. The conflict could happen in no other way than by an attack from the large States. We had neither the desire nor ability to injure them, and we now ask no favors, but their permission to enjoy, in peace and safety, the rights conceded to us by themselves, and secured by a solemn Constitutional compact. There are some other points of light, in which I wish to place the subject before us. House of Representatives. This may be a pleasing doctrine enough to great States; but it is certainly incorrect. Our Constitution has given the expression of the public will, in a variety of instances, other than that of the choice of Presi dent, into very different hands from either House of Representatives or the people at large. The President and Senate, and in many cases the Pre- We have been told by a gentleman from Virsident alone, can express the public will, in ap-ginia, that it would be impolitic in us to rouse the pointments of high trust and responsibility, and it great States. Ishall, at present, take no further cannot be forgotten that the President sometimes notice of this warning, given to us, no doubt, in expresses the public will by removals. Treaties, the full exercise of benevolence, but to request highly important expressions of the public will, the small States to preserve it in constant recolare made by the President and Senate; and they lection. It may induce them not hastily to part are the supreme law of the land. In the several with Constitutional security. States, many great offices are filled, and even the Chief Magistracy, by various modes of election. The public will is sometimes expressed by pluralities instead of majorities, sometimes by both branches of the Legislatures, and sometimes by one, and in certain contingencies, elections are settled by lot. The people have adopted constitutions containing such regulations, and experience has proved that they are well calculated to preserve their liberties and promote their happiness. From what good or even pardonable motive, then, can it be urged that the present mode of electing our President has a tendency to counteract the public will? Do gentlemen intend to destroy every federal feature in this Constitution? And is this resolution a precursor to a complete consolidation of the Union, and to the establishment of a simple Republic? Or will it suffice to break down every federative feature which secures to one portion of the Union, to the small States, their rights? I am not without my fears, Mr. President, that this is but the beginning of evils, and that this Constitution, the bulwark of the feeble members of the Confederacy; the protection of the weak against the strong; the security of the small against the great; the last, best hope of man, with a view to stability in a free Government, and to the preservation of liberty in a Republic; is destined to undergo changes, and suffer innovations, till there be no residue worth preserving. and nothing left which ambition will condescend to overturn. Time will not permit me to dwell any longer on this part of my argument. But I am deceived, sir, if the view I have now taken of the Constitution does not show most obviously, that in its formation there was a struggle between the great and small States, with respect to many of its principles and leading features; and that the participation in the election of the Chief Magistrate, clearly secured to them by the Constitution, will receive a deadly blow by the adoption of the proposed amendment. It can be no contradiction to my ideas upon the subject, if we have heard nothing of State conflicts, in the administration of this Government. The great States have never, till now, directly attempted to violate the sanctuary of the small, and despoil them of their rights; had this been earlier attempted, we should have heard and seen the same jealousy awakened, and the same opposition exerted. The Constitution is of recent date; it was formed by the mutual concessions of conflicting parties, and balanced with a view to the securing of all. Experience alone can test its utility, and time and practice discover its faults. It is a sound position that you should never attempt an alteration in an instrument so complicated, and calculated to serve so many various and opposite interests, without being able, by the test of experiment, to discern clearly the necessity of alteration, and without a moral certainty that the change shall not only remove an existing evil, but that it shall not produce any itself. The article in the Constitution establishing the mode of electing a Chief Magistrate, and which is now proposed to be altered, was undoubtedly one of the most difficult parts of the whole at its formation. I am convinced, sir, that the public mind is not sufficiently impressed with the difficulty of adopting, not only an unexceptionable but even a tolerable and practicable mode of electing a Chief Magistrate, possessing such important and extensive powers as are Constitutionally vested in the President of the United States. An attempt to detail the number and magnitude of his powers, to this Senate, would be impertinent. But it must and will be acknowledged by all, that the President is vested with powers vastly extensive and important, and that he will bring with him into the Government more or less of State politics and State prejudices, and these facts, to which may be added the proba bility that he will be taken from a large State, must have increased the difficulties of the Convention in fixing on a mode of choice. How often have contests, wars, and bloodshed, the destruction of confederacies, of liberty and of vast portions of the human race, arisen from the election of Chief Magistrates? When we consider that the powers vested in the President of this Union are sufficiently important to excite the avarice and ambition of the human heart, its two most active principles, to gain possession of the office; when we consider the difference of sentiment, habit, and interest, in this country; State pride and State jealousy, which could never be laid asleep; the difficulties of fixing upon a proper mode of election must be also infinitely multiplied. And yet this article is now selected for alteration. All the amendments which have been hitherto |