A history of the presidency
Stanwood, Edward, 1841-1923
f £ a § to 1 1 | fc 9 i 8 1 1 •* (5 M <! s O * 4 ,3 0 <] ^ « ^ ffi W I 1 i i 9 1 £ £ i g 9 | 1 £ H ^ •"> • o 0 *•» •-> o • % 0 4 4 Massachusetts ....  _ n _ _ i _ _ n North Carolina .... 1 11 1 6 _ _ 3 i _ _ 1 South Carolina .... - 8 8 — - — - -  11 7 5 3 2 2 2 1 The proceedings in preparation for the count of the elect- oral votes were in all respects similar to those of four years previous, except that the proposition for a joint committee originated this time in the Senate. The count itself is in- 52 A HISTORY OF THE PRESIDENCY .•— • teresting on account of the fact that Mr. Adams himself pre- sided, opened, and read the certificates, and declared himself elected, when the rejection of four votes which had been , called in question would have defeated him and elected his opponent. The legislature of Vermont had appointed elect- ors, but had not previously passed a law directing how they should be appointed. It was contended privately, by some persons, that the appointment was invalid. But the ques- tion was not raised in Congress, or at the joint meeting for the count of the votes. Mr. Adams's opponents did not feel sure of their ground, and probably did not know how to pro- ceed to make their objections effective. Mr. Madison wrote to Jefferson, January 8, 1797, " If the Vermont votes be valid, as is now generally supposed, Mr. Adams will have seventy- one and you sixty-eight, Pinckney being in the rear of both." ( ~ Mr. Adams himself could certainly not raise the question of the validity of the Vermont votes ; but he seems to have 1 given an opportunity for objections if anyone should see fit Up raise them. The record shows this. When the tellers had reported the result, Mr. Adams thus addressed the as- sembled senators and representatives : — Gentlemen of the Senate and House of Representatives, — By the report which has been made to me by the tellers appointed by the two Houses to examine the votes, there are 71 votes for John Adams, 68 for Thomas Jefferson [and so on to the end of the list]. The whole number of votes are 138 ; 70 therefore make a majority ; so that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice-President. At this point Mr. Adams sat down for a moment. After an interval of silence, he arose again and said : — In obedience to the Constitution and laws of the United States, and to the commands of both Houses of Congress, expressed in their resolution passed in the present session, I declare that John Adams is elected President of the United States for four years, to commence with the fourth day of March next ; and that Thomas Jefferson is elected Vice-President of the United States for four years, to commence on the fourth day of March next. And may the Sovereign of the Universe, the Ordainer of civil government on earth, for the preservation of liberty, justice and peace among men, enable both to discharge the duties of these offices conformably to the Constitution of the United States, with conscientious diligence, punctuality, and perseverance. JOHN ADAMS 53 The inauguration took place in the chamber of the House of Representatives, which was crowded to its utmost capacity. The oath was administered by Chief Justice Ellsworth. General Washington was present, with a " countenance as serene and unclouded as the day," so Adams reports in a let- ter to his wife, descriptive of the ceremony, which he closes by saying, " All agree that, taken altogether, it was the sub- limest thing ever exhibited in America." V THE JEFFERSON-BURR CONTEST THE administration of John Adams witnessed the total wreck of the Federalist party, a result of divided leadership. Although Mr. Adams had become President by an extremely narrow majority of votes, yet his party was stronger in both branches of Congress than it had been during Washington's second administration. Of the sixth Congress, during the latter half of Adams's term, the Republicans formed but a small minority. The strength which the dominant party might wisely have used in consolidating its own power, through the adoption of a policy in harmony with its prin- ciples, was wasted in internal conflict. The blame, in a political sense, rested upon both the Federalist factions. Hamilton had becom_e__accustQmed to exeilL.a great, almost a controlling influence over Washington. He was consulted by the general quite as freely after his retirement from the cabinet as before. He was the leader of his own party in the same sense that Jefferson was the leader of the Republi- cans. That is to say, the chief men of the party sought his advice ; he frequently volunteered counsel to them, upon the public questions that arose ; and his opinion was usually fol- lowed. Mr. Adams was not one of Hamilton's coterie, nor was he a man either to seek advice as to his course of action, or to accept it with equanimity. From this situation arose all the bad feeling and secret intrigue that make this admin- istration a period of political scandal. Adams continued in office all the members of Washington's cabinet"; Pickering, Secretary of State ; Wdieott~Secretary"of the Treasury ; McHenry, Secretary of War ; and Lee, At- torney-General. These men were in frequent correspondence with Hamilton. Before the first month of Adams's admin- istration had closed, Hamilton wrote to Wolcott advocating strongly the sending of three ministers to France. Wolcott replied the next day ; and in his letter revealed to Hamilton, THE JEFFERSON-BURR CONTEST 55 " in the most perfect confidence," the fact that the President had already proposed to him the formation of such a com- mission to negotiate with France. In this incident is to be found the key of the whole situation within the administra- tion during the ensuing four years. Hamilton could not, or would not, — at any rate, did not, — throw off the habit of advising the government and endeavoring to control its ac- tion. Since he had not the same influence over Adams as he had exercised over Washington, he operated through the secretaries who were already accustomed to receive and act upon his counsel. The secretaries, habituated to this influ- ence, which had been so potent over the first President, whom they revered more than they did the second, dropped insen- sibly into the way of listening to iiamiltoh rather than to their chief, and — what wrought all the mischief — of mea- suring the intelligence and political sagacity of the President by the degree of deference he paid to Hamilton's judgment. It is not necessary to hold them base or even treacherous on this account, as does John Adams's grandson and biographer, and as all the anti-Federalist historians do. But the situation created was intolerable ; and a much more even-tempered man than Mr. Adams might well be excused for losing control over himself when he discovered that his own subordinates were executing not his will, but that of another. In the very case under consideration, Mr. Wolcott had been approached by the President on the subject of a mission to France, and had shown a decided opposition to the measure. But in replying to Hamilton he wrote : " You know that I am accustomed to respect your opinions ; and at any rate I am not so ignorant of the extent of your influence with the friends of government as not to be sensible that if you are known to favor the send- ing a commission, either nothing will be done or your opinion will prevail." Mr. Wolcott did not quite give up his opposi- tion to the mission, but he was less strenuous after learning what Hamilton thought. As time went on, the secretaries, particularly Pickering and Wolcott, besprinkled their correspondence with phrases indi- cating their contempt for their chief. That he was vain, in- discreet, opinionated, jealous, distrustful of many prominent men in his own party, yet guilelessly trustful toward some of the most artful of his political opponents, — all this must be admitted. Yet it might have been prevented from causing the 56 A HISTORY OF THE PRESIDENCY confusion and disaster that followed, had the members of the cabinet themselves been discreet and wise politicians. When they found that they were unable to bend the President to Hamilton's will, because he was headstrong and they were his intellectual inferiors, they should have become the agents of the President's will, or retired from office. The foregoing review of the situation is necessary, because in the relations between the President and the prominent men of the Federalist party is to be found the sole immediate cause of the political overturn in the year 1800. Adams's inaugural address was well received, even by those who had opposed his election. The popularity which he thus achieved increased and continued during the greater part of his term ; although the dissatisfaction of the politicians of his own party grew more intense as the prejudice against him on the part of the people at large vanished. There was, all the time, an alert opposi- tion, presided over by its ablest leader, whom circumstances had placed in the most favorable position for observation and for taking advantage of every mistake of the administration, and yet relieved of all responsibility for the course of public affairs. The question which overshadowed all others during the administration was the relations with France. The insulting rejection of Gen. C. C. Pinckney as minister, and his expul- sion from French territory, became known officially to the government on the 21st of March, 1797, before the administra- tion had been three weeks in office. The appointment of Elbridge Gerry, John Marshall, and General Pinckney as a special embassy ; the contemptuous treatment they received from the French directory ; the corrupt proposals made to them by Talleyrand, acting through an agent ; the X. Y. Z. letters ; Adams's manly refusal to send another minister until assurance should be given that he would be received ; his nomination of Murray as minister on the receipt of a vague in- timation indirectly conveyed, that a minister would be received, without consultation with any member of the cabinet ; the substitution of a commission for a single minister ; the opposi- tion of the secretaries to the step, and Pickering's studied delay in making ready for the departure of the envoys ; and Adams's petulant order that they should sail before a specified day; this is a mere catalogue of the chief events in the history of the French negotiation. There were many echoes of the THE JEFFERSON-BURR CONTEST 57 affair in home politics : the resolution to organize an army, and the ensuing difficulty relating to Hamilton's rank as a general officer, ending with a victory for Hamilton, through the help of Washington ; the establishment of a navy, a measure most strenuously opposed by the whole Republican party, but heart- ily supported by Federalists of both factions ; the Alien laws and the Sedition act ; and the Virginia and Kentucky resolu- tions of 1798 and 1799. Of all these matters, as political issues between parties, the last mentioned only survived the administration. An exami- nation of other pages in this book will show that every Demo- cratic national platform from 1844 until 1856 declared that " every attempt . . . ought to be resisted with the same spirit which swept the Alien and Sedition laws from our statute- book." The resolutions of 1798 and 1799 also appear in the Democratic platforms of 1848 and 1852 as embodying princi- ples to which the party still adhered. There were two " Alien " laws. One of them authorized the President to " order such aliens as he should judge dangerous to the peace and safety of the United States, or should have reasonable grounds to sus- pect were concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States." The other act. empowered the Presi- dent, upon a declaration of war, to cause the subjects of the hostile government " to be apprehended, restrained, secured, and removed, as alien enemies." The Sedition act declared it an offence, and prescribed the punishment and its mode, to combine or conspire, with intent to oppose the government, when directed by the proper authority, to intimidate an officer from the performance of his duty, to incite riots or insurrec- tions against the laws of Congress, or to publish false, scandal- ous, and malicious writings against the government, either House of Congress, or the President, with intent to bring them into contempt, to stir up sedition, or to aid or abet a foreign nation in hostile designs against the United States. Since the Alien laws were by their own terms limited in their operation to two years, and had expired before the election of 1800 ; and since the Sedition act was never repealed, but stands to-day substantially unchanged, a commendation of the " spirit which swept " them from the statute-book involves a historical blun- der. The resolutions of 1798 and 1799 were the first expres- sions of the doctrine which subsequently became known as nullification. 58 A HISTORY OF THE PRESIDENCY The canvass of 1800 opened early. The first step, perhaps, was an attempt to draw General Washington from his retire- ment and induce him to stand again for the presidency. A suggestion to that effect was made, probably after a consulta- tion among the Hamiltonians ; but Washington refused to com- ply. Later, Gouverneur Morris wrote to him, December 9, 1799 : " During a late visit to New York I learnt that the leading characters, even in Massachusetts, consider Mr. Adams as unfit for the office he now holds ; " and he proceeded to urge him to become a candidate. It is probable that Wash- ington never read the letter. He was taken ill on the 13th of December and died on the 14th. The scheme failed, and the leaders, seeing that it would be impossible to supplant Mr. Adams with any candidate of less authority than Washington, resigned themselves to the inevitable. Early in March articles began to appear in the Republican papers, giving " dispassionate " reasons why Mr. Adams should not be elected. The articles were answered at length by cor- respondents of the Federalist newspapers. The discussion was extremely bitter, and unfounded charges were made on both sides. Probably the Federal ticket had been agreed upon at that time, although it was not authoritatively announced until June. General Charles Cotesworth Pinckney, a brother of Thomas Pinckney, who had been the candidate most voted for with Mr. Adams in 1796, was associated with Adams on the Federal ticket. The manner in which the ticket was formed is involved in much obscurity. Mr. Hezekiah Niles, whose " Weekly Eegister " is a treasury of facts for students of our early political history, tried to clear it up, but acknowledged his failure. Early in the year_1800 a meeting of a few Feder- alist members of Congress, for the purpose, as was said at the time, of influencing the Presidential election, was held in the Senate Chamber. So far as is known, no account of its pro- ceedings was ever printed, but it was probably called for the purpose of strengthening Mr. Adams's cause ; for Mr. Niles says in another place ("Eegister," Vol. 24, p. 277) that "it was well understood that many of the Federalists were opposed to the taking up of Mr. Adams for the presidency, — that they had nearly fixed on another person." Perhaps the nam- ing a candidate for Vice-President may also have been one of the objects of the meeting. But it is all a matter of conjec- ture and uncertainty. Whatever may have been the purposes THE JEFFERSON-BURR CONTEST 59 in view, the meeting excited the wrath of the Republicans, and was denounced in the Philadelphia "Aurora" as a "Jaco- binical conclave," — for which and other insulting remarks the editor of the paper was arraigned at the bar of the Senate. The^JRepublican members themselves, held a caucus some- what later, — probably in February or March, 1800. It also was a secret meeting. It was attended by a small number of members only. It was called not sojnuch^or the purpose of nominating Mr. Jefferson, who was designated by the unani- mous voice of his party as the natural candidate, as with the idea of causing a union upon Burr, as well as xtpon Jefferson. The situation and the course of events are explained in a let- ter, already cited in the preceding chapter, from Oliver Wolcott to Henry W. Edwards, printed in Gibbs's History, based on Wolcott's correspondence (Vol. ii., p. 488). Wolcott wrote that the division of the votes of Virginia in 1796 " gave great offence to Mr. Burr, who complained of bad faith. At the next conference, or caucus, of the Republican members of Congress, Mr. Burr required as a condition of his consent to be_their candidate, that highly respectable members of the Republican party should write letters, stating that their honor was pledged to endeavor to procure for him an equal vote with Mr. Jefferson. I have no doubt, from information which I received (though I have never seen a letter to that effect), that this condition was complied with ; at any rate, an equal vote for Mr. Jefferson and Colonel Burr was in fact obtained." Both parties entered upon the canvass with full confidence ; but the Federalists soon suffered a severe rebuff, when the New York election took place in May. Later their hopes revived and the Republicans became anxious. So well as- sured were the Federalists of success that the " Columbian Cen- tinel," of Boston, on December 13, after the electors had actually voted, asserted that " there cannot be a doubt " of the election of Adams and Pinckney. One weeE later the " Cen- tinel " was forced to " concede " the " bad news " that Jefferson and Burr were chosen. The result had finally been determined by the vote of South Carolina, on which the Federalists had counted as safe for their candidates. In New York, the Republican assemblymen were successful in New York city. In a fit of faintheartedness the Phila- delphia " Gazette " declared that the result " ascertains the election of Mr. Jefferson to the presidency," using the verb in 60 A HISTORY OF THE PRESIDENCY a sense now obsolete. The suggestion filled other Federalists with indignant horror. " I trust," wrote one of them, " this country is not yet so abandoned of God." The disaster led Hamilton to write to Governor Jay, requesting him to call together the old legislature, which was Federalist, to pass a law giving the choice of electors to the people, by districts. Another letter, evidently inspired by Hamilton, was also sent to Jay urging the same step. The Governor replied to nei- ther letter. He endorsed one of them, " proposing a measure for party purposes which I think it would not become me to adopt." The politicians in other States were not so rigid in their fThorality as he. Virginia, where the district system of popular election had previously prevailed, and where the Federalists had made some inroads since 1796, amended its law and instituted the practice of election on a general ticket, thus ensuring its twenty-one votes for Jefferson. In Massachusetts ~~a situation the reverse of that in Virginia existed. Several of its members of Congress were Republicans ; a bye-election of a congressman in the spring of 18J30 resulted in a Jeffersonian success ; and when the State election took place, two or three weeks afterward, Governor Strong had a clear majority of only two hundred, and a plurality over Gerry of but 2611. pji order to save the whole vote of the Commonwealth for I Adams and Pinckney, it was necessary for the General Court \_to assume to itself the appointment of the electors. A special session was summoned, and a resolution changing the system was passed. The situation in Pennsylvania was peculiar. It had been the practice in that State to pass a law regulating the mode of appointing electors just before each election, to be operative for that election only. At each prior election the people had enjoyed the privilege of choosing the electors by popular vote. In the year 1796, fourteen Jefferson electors had been chosen, and one Adams man. But in the time of Mr. Adams's popular- ity the Federalists had carried the State once or twice ; and, as the senators were elected by classes, for four years, it happened that, in the year 1800, although the Governor and the House of Representatives were strongly Republican, the Senate was still [Federalist by 13 to 11. As no law had been passed providing for a popular election in time to enable the people to make a 'choice, it became the duty of the legislature itself to choose THE JEFFERSON-BURR CONTEST 61 the electors. The House passed a law providing for an elec- \ tion by joint ballot, the only way in which the legislature of/ that State ever elected officers. The Senate rejected the bill and proposed, instead, an election by concurrent vote. The House refused to adopt that method. At last the Senate pro- posed that each House should name eight electors, and that the two Houses should vote together for the combined list, or for fifteen of the sixteen. The House was forced to yield, and the result was that eight Jefferson and seven Adams electors were chosen. The Federal senators — " the Federal thirteen," as they were proudly termed by their admirers — were loudly praised for this act by the party organs. The editor of the " United States Gazette," of Philadelphia, wrote on Decem- ber 3, 1800, to his paper : — The Federal thirteen deserve the praises and the blessings of all America. They have checked the mad enthusiasm of a deluded populace and the wicked speculation of designing demagogues. On reviewing the recent aspect of our political affairs, it may be figuratively said, They have saved a falling world! It will be seen, from a consideration of what has been pre- sented, that the Federalists had good reason to anticipate suc- cess. There were to be 139 electoral votes, of which 70 were necessary for a choice. The solid vote of New England, together with that of New Jersey and Delaware, gave them 49 votes ; Maryland, Pennsylvania, and North Carolina con- tributed 16 more ; and the eight votes of South Carolina, which the people of that State promised to them, again and again, would make up the majority. Reserving until a little later the story of the loss of those votes, let us say that it was only political chicanery, — or if that is too strong a word, exceedingly good play of the game of politics, that brought them so near to victory. New York told the story of the popular sentiment. Votes were saved to Adams in Pennsyl- vania and Massachusetts by taking advantage of earlier elec- tions. On the other hand, not more than two or three votes were gained by the Republicans in Virginia by the adoption of the district system. On the surface it appears as if the Federalists were almost as strong as ever. In reality they were saved from a much more crushing defeat than they expe- rienced by measures which the political morality of our time would condemn. The progress of the canvass developed the usual number of 62 A HISTORY OF THE PRESIDENCY " campaign lies " and misrepresentations. When the overturn in Adams's cabinet occurred, the Trenton " Federalist " asserted its knowledge that the step was the outcome of an agreement between Adams and Jefferson. Adams was to be re-elected, and so was Jefferson ; the President was to arrange the offices to the satisfaction of the Vice-President, who was to give his firm support to the measures of the administration. The statement was absurd, and might have been taken as a joke, had not the New Jersey paper been a serious organ of the party. Of the same category was the report circulated by the Federalist papers that Jefferson had discarded the Sabbath, together with the Christian division of time into weeks, and adopted in his household the French decade. In May the Federalists expected to win by seventy-two votes against sixty-six. They counted on five votes in North Carolina, six in Pennsylvania, and four in Maryland, beside the eight of South Carolina. In June they claimed seventy- nine to fifty-nine. At about this time began to appear argu- ments to show that it was most necessary for all Federalist electors to give an equal vote to both candidates. For the most part the internal discussions of the Federalists were kept out of the newspapers. But occasionally something of the dis- trust between Adams's friends and the adherents of Hamilton appeared on the surface. It was not denied, because it was evident to the dullest apprehension that only by the most loyal adherence to the party programme could Jefferson be defeated. Yet when Hamilton made a tour of New England, extended as far" as Maine, urging the equal support of both candidates, there was some criticism of his action in the Boston newspaper most devoted to Adams's fortunes. TheTFedefallslis of South Carolina, the ^tate~which had given its votes for Jefferson and Thomas Pinckney in 1796, now promised loyal support of Adams and C. C. Pinckney. Toward the close of the canvass a distinct offer was made to them to repeat the division of votes they had made at the former election, that is, to give an equal vote to Pinckney and Jefferson. General Pinckney refused to sanction the coalition, and gave it to be understood that he wished for no votes that were not given also to Adams. The expectation was that Adams and Pinckney, under the bonds of the agreement, would receive the same number of votes ; where- upon the House of Representatives would elect Adams. It was in the warmest period of the canvass that Aaron Burr, in THE JEFFERSON-BURR CONTEST 63 some way unknown, obtained possession of a part of Hamilton's letter on the character of John Adams, and gave it to the press. Hamilton then published the letter in full. An extract from it has been given already, in the account of the election of 1796. Two sentences only will be quoted here. They fol- low Hamilton's severe arraignment of the President : " Yet, with this opinion of Mr. Adams, I have finally resolved not to advise the withholding from him a single vote. The body of Federalists, for want of a sufficient knowledge of facts, are not convinced of the expediency of relinquishing him." As had been the case in 1796, sixteen States took part in the election. New Hampshire, Massachusetts, and Pennsyl- vania took away from the people the appointment of electors. Rhode Island conferred the right upon them. There were, therefore, four States only in which electors were chosen by popular vote : Rhode Island, Maryland, Virginia, and North Carolina. The electors of both parties, with a single excep- tion, voted equally for both candidates. One Rhode Island elector withheld his vote from Pin ckneyr_and. gaye,it to Jay. The result, by States, was as follows : — STATES. Thomas Jefferson, Va. Aaron Burr, N. T. John Adams, Mass. d on £ j I d d H *i 1 I New Hampshire 6 6 Vermont 4 4 _ Massachusetts 16 16 Rhode Island 4 3 1 9 9 New York 12 12 7 7 _ Pennsylvania 8 8 7 7 _ 3 3 _ Maryland * 5 5 5 5 _ Virginia 21 21 _ North Carolina 8 8 4 4 _ 8 8 _ Georgia 4 4 _ _ Kentucky 4 4 _ _ _ Tennessee 3 3 _ _ Total 73 73 65 64 1 * One Maryland elector did not attend. 64 A HISTORY OF THE PRESIDENCY Before entering upon a narrative of the exciting events that arose out of the equal vote for Jefferson and Burr, we must record a most promising attempt to remedy by law the defi- ciencies of the Constitution in the matter of the electoral count. Inasmuch as the legislation then proposed subsequently formed the basis of the " twenty-second joint rule," so famous in the counts of 1869 and 1873, and of the electoral commission law of 1877, it will be well to notice the proceedings at some Jength. A resolution introduced in the Senate January 23, 1800, by Mr. Roiss of Pennsylvania, directed the appointment of a committee " to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice-President of the United States, and for determining the legality or the illegality of the votes given for those officers in the different States." The committee reported a bill, February 14, of which the provisions were, in brief, as follows : — - On the day before the second Wednesday in February of any year when there was to be a count of electoral votes, each House of Congress was to choose by ballot six of its own members, who, with the Chief Justice of the United States, or, in case of his disability from any cause, the next senior i justice, would form a " grand committee," with " power to I examine, and finally to decide, all disputes relating to the ^election." Each House was next to elect two tellers, to whom the cer- tificates of the electors, after they had been opened and read, were to be delivered ; and the tellers were to note the dates of l the certificates, the names of the electors, the time and place of their meeting, and the governors' certificates accompanying, — these minutes to be read to the two Houses and entered on the two Journals. After the certificates had been opened, read, and minuted, the President of the Senate was to administer to the members of the grand committee an oath to examine the certificates im- partially, " together with the exceptions and petitions against them, and a true judgment give thereon, according to the evi- dence." All the certificates, papers, petitions, and testimony were then to be delivered to the chairman of the grand com- mittee, which was to meet every day, sit with closed doors, have ample power to send for persons and papers, compel at- tendance of witnesses, and punish contempts. The powers of the grand committee were stated in the following section : — THE JEFFERSON-BURR CONTEST 65 SEC. 8. That the grand committee shall have power to inquire, examine, decide, and report upon the constitutional qualifications of the persons voted for as President and Vice-President of the United States ; upon the constitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the state legislature or not ; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes ; or against the truth of their returns, or the time, place, or manner of giving their votes : Provided always, that no petition or ex- ception shall be granted, allowed, or considered by the sitting grand committee, which has for its object to dispute, draw into question the number of votes given for an elector, or the fact whether an elector was chosen by a majority of the votes in his State or dis- trict. The committee was to make a final report on the 1st of March, stating the number of legal votes for each person, the number rejected, and the reason for rejection ; such reasons to be signed by those who agreed to them. A majority of the committee was to decide finally all questions submitted, and on the day after the report was made the two Houses were to meet again in joint convention, when the result was to be declared, and, if no person had been chosen President, the House was to proceed immediately to make a choice according to the Constitution. When the bill came under discussion, a motion was made to strike from it the first ten sections, — being all which contained any reference to a grand committee, — and to insert instead of them a single section, providing that when the two Houses should be assembled for the purpose of having the certificates of electors opened and counted, the names of the States should be drawn in order by lot ; that all petitions and exceptions should be read as well as the certificates themselves ; that, if no objection should be made, the votes should be counted ; but that " if the votes, or any of them, shall be objected to, the members present shall on the question propounded by the President of the Senate decide, without debate, by yea or nay, whether such votes are constitutional or not ; " and so on, each question being decided before the name of another State was drawn. This proposition was rejected. Various other amend- ments were offered, some of which were adopted, and the bill was passed substantially as it was reported, except that the constitution of the grand committee was changed so as to relieve 66 A HISTORY OF THE PRESIDENCY the Supreme Court from duty in connection with the electoral count. Each House of Congress was to choose six of its mem- bers for this service, and the Senate was also to select three others of its members, of whom the House was to choose one by ballot as the thirteenth member of the grand committee. The whole subject was considered with extreme care by the House of Representatives. After much debate upon it in Com- mittee of the Whole, the bill was referred to a select committee, of which John Marshall, afterwards Chief Justice, was chair- man. The committee reported back the bill, in a wholly new draft, on the 25th of April. It provided for a joint committee of four members from each House, with " power to examine into all disputes relative to the election of President and Vice- President of the United States, other than such as might relate to the number of votes by which the electors may have been appointed." To this committee all petitions, exceptions, and memorials against either the electors or the persons for whom they had voted, were to be delivered. The committee was to meet daily from the time of its appointment until it should make its report ; it was to have the powers for reaching witnesses and compelling the production of papers which the Senate had given to the grand committee. The report of the committee was to contain all the facts ascertained in the investigation, but no opinion. The count was to be made in presence of the two Houses immediately after this report was made — tellers having been previously appointed in the manner already estab- lished by precedent — in the following method : — The names of the several States shall then be written under the inspection of the Speaker of the House of Representatives, on separate and similar pieces of paper, and folded up as nearly alike as may be, and put into a ballot-box, and taken by a member of the House of Representatives, to be named by the Speaker thereof ; out of which box shall be drawn the paper on which the names of the States are written, one at a time, by a member of the Senate, to be named by the President thereof, and so soon as one is drawn the packet containing the certificates from the electors of that State shall be opened by the President of the Senate, and then shall be read also the petitions, depositions, and other papers concerning the same, and if no exceptions are taken thereto, all the votes con- tained in such certificates shall be counted ; but if any exception be taken, the person taking the same shall state it directly and not argumentatively, and sign his name thereto ; and, if it be founded on any circumstance appearing in the report of the joint commit- THE JEFFERSON-BURR CONTEST 67 tee, and the exception be seconded by one member from 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 of the excep- tion, 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. The bill was carefully considered, and various amendments were proposed and negatived. It was passed on the 2d of May by a vote of 52 to 37. On being returned to the Senate, the bill was referred to a committee which reported several amendments, of which only one was adopted, but that was one of the greatest importance. The word " admitting " was substituted for " rejecting," in the passage quoted above, and the phraseology of the rest of the clause was changed to con- form to the amendment ; thus providing that, unless the two Houses concurred in admitting any disputed vote, it should not be counted. This was precisely the principle of the twenty- second joint rule of 1865, and the Senate adopted it in 1800 by a vote of 16 to 11. The House non-concurred, and a vote in each branch to adhere to the disagreement defeated the bill* The proceedings preliminary to the count, and the count itself, were in all respects similar to those in former years 68 A HISTORY OF THE PRESIDENCY up to the declaration of the result, which was in these words : — That the whole number of electors who had voted was one hundred and thirty-eight, of which number Thomas Jefferson and Aaron Burr had a majority ; but, the number of those voting for them being equal, no choice was made by the people ; and that, consequently, the remaining duties devolve upon the House of Representatives. Already a committee had been appointed to prepare a set of rules for the House, in case the count should show that it was the duty of the House to elect a President ; and the rules, having been discussed in committee of the whole, were adopted as follows : — First. In the event of its appearing, \ipon the counting and ascertaining of the votes given for President and Vice-President, according to the mode prescribed by the Constitution, that no per- son has a constitutional majority, and the same shall have been duly declared and entered on the Journals of this House, the Speaker, accompanied by the members of the House, shall return to their Chamber. Second. Seats shall be provided in this House for the President and members of the Senate, and notification of the same shall be made to the Senate. Third. The House, on their return from the Senate Chamber, it being ascertained that the constitutional number of States are present, shall immediately proceed to choose one of the persons from whom the choice is to be made for President ; and in case upon the first ballot there shall not appear to be a majority of the States in favor of one of them, in such case the House shall con- tinue to ballot for a President, without interruption by other busi- ness, until it shall appear that a President is duly chosen. Fourth. After commencing the balloting for President, the House shall not adjourn until a choice is made. Fifth. The doors of the House shall be closed during the bal- loting, except against the officers of the House. Sixth. In balloting the following mode shall be observed, to wit : The representatives of the respective States shall be so seated that the delegation of each State shall be together. The representatives of each State shall, in the first instance, ballot among themselves, in order to ascertain the vote of that State ; and it shall be allowed, where deemed necessary by the delegation, to name one or more persons of the representation to be tellers of the ballots. After the vote of each State is ascertained, duplicates thereof shall be made ; and in case the vote of the State be for one person, then THE JEFFERSON-BURR CONTEST 69 the name of that person shall be written on each of the dupli- cates ; and in case the ballots of the State be equally divided, then the word " divided " shall be written on each duplicate, and the said duplicates shall be deposited, in manner hereafter pre- scribed, in boxes to be provided. That for the conveniently tak- ing the ballots of the several representatives of the respective States, there be sixteen ballot-boxes provided ; and that there be, additionally, two boxes provided for receiving the votes of the States ; that after the delegation of each State shall have ascer- tained the vote of the State, the Sergeant-at-Arms shall carry to the respective delegations the two ballot-boxes, and the delegation of each State, in the presence and subject to the examination of all the members of the delegation, shall deposit a duplicate of the vote of the State in each ballot-box ; and where there is more than one representative of a State, the duplicates shall not both be de- posited by the same person. When the votes of the States are all thus taken in, the Sergeant-at-Arms shall carry one of the general ballot-boxes to one table, and the other to a second and separate table. Sixteen members shall then be appointed as tellers of the ballots, one of whom shall be taken from each State, and be nominated by the delegation of the State from which he was taken. 