OCTOBER, 1803.] Amendment to the Constitution. [H. OF R. Mr. NICHOLSON did not know whether his remarks had been correctly understood. He did not know whether the document he alluded to could strictly be called the instrument of cession. He had drawn an amendment to this part of the resolution, which he would propose, if in order, to wit: "Or other instrument showing that the Spanish Government had ordered the province of Louisiana to be delivered to France." The SPEAKER said, the House having agreed to insert the word "instrument," it was not in order to receive a substitute. Mr. HUGER moved to reconsider the vote of the House in favor of the insertion of the word "instrument." Motion lost-ayes 24. comply cheerfully with the request of Congress, or of either branch of it. He owned that in some cases it would be the duty of the House to pursue this mode of inquiry, and equally would it be the duty of the head of the Executive Department to give his aid and countenance. In the present stage of the proceedings respecting the treaty and conventions with France concerning Louisiana, he deemed it improper to embarrass the business by an unseasonable call upon the Executive for papers. The President had already communicated various information on this subject, in his Message on the first day of the session. Additional information was given in his Message of the 21st, wherein he told the House that the ratification". and exchanges had been made. This was accompanied with instruments of cession and The question was then taken on the second covenant concluded at Paris between our min-member, as above stated, and lost-ayes 34. isters and the agents of the French Republic. All this information we had already on our tables. This the President had put the House in possession of from his own sense of duty. This obligation was imposed on him by the constitution, which declares that he shall, from time to time, give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. Mr. M. said he had a firm belief that the President had complied with this constitutional injunction. He had communicated such intelligence as he had received; and if he was possessed of any thing else needful for the deliberation of the House, he was willing to think the Chief Magistrate of the Union would have spontaneously imparted it. The question was taken on agreeing to the first member of the resolution, as follows: Resolved, That the President of the United States be requested to cause to be laid before this House a copy of the treaty between the French Republic and Spain, of the 1st of October, 1800. The House divided-ayes 59, noes 59. The SPEAKER declaring himself in the affirmative, the motion was carried. Mr. RODNEY suggested an alteration in the second member of the resolution, so as to read "instrument," instead of "deed." Mr. GRISWOLD had no objection to the modifieation. The second member, so modified, was read as follows: "Together with a copy of the instrument of cession from Spain, executed in pursuance of the same treaty conveying Louisiana to France, (if any such instrument exists.)" Mr. HUGER confessed his impressions to be favorable to the treaty, though the arguments urged that day, certainly possessed great weight. He was rather of opinion that no such instrument as that referred to in the resolution existed. But if it did exist, its publication would certainly be satisfactory to the people and the House. He declared himself ready to vote for carrying the treaty into effect. member, viz: Government of the United States and the Government And lost-ayes 34. ber of the mction, and lost, without a division, The question was then taken on the last mem viz: "Together with copies of such other documents as may be in the Department of State, or any other dewhether the United States have, in fact, acquired any partment of this Government, tending to ascertain title to the province of Louisiana by the treaties with France of the 30th of April, 1803." The question recurring on the whole of the resolution, as amended, Mr. NICHOLSON moved to amend the second member by adding to the end thereof; "Together with a copy of any instrument in possession of the Executive, showing that the Spanish Government has ordered the province of Louisiana to be delivered to the Commissary or other agent of the French Government.” Agreed to-ayes 64. The question was then taken by yeas and nays on the whole of the original motion, amended as follows: "Resolved, That the President of the United States be requested to cause to be laid before the House a copy of the treaty between the French Republic and Spain, of the 1st October, 1800, together with a copy of any instrument in possession of the Executive, showing that the Spanish Government has ordered the province of Louisiana to be delivered to the Commissary or other agent of the French Government:" And lost-yeas 57, nays 59. Amendment to the Constitution. The House resolved itself into a Committee of the Whole on the report of a select committee on propositions of amendment to the constitution. H. OF R.] Amendment to the Constitution. [ОСТОВЕР, 1803. The report was read, as follows: being a majority of the whole number of Electors apResolved, by the Senate and House of Representatives pointed-than any other person, and two or more persons who have an equal number of votes one with of the United States of America in Congress assembled, the other, then the House of Representatives shall in two-thirds of both Houses concurring, That the follow-like manner, from among such persons having the ing article be proposed to the Legislatures of the different States as an amendment to the Constitution greater number of votes and such other persons having an equality of votes, choose the President." of the United States, which, when ratified by threefourths of the said Legislatures, shall be valid to all intents and purposes as a part of the said constitution, viz : Mr. VAN CORTLANDT thought the amendment liable to objection. Mr. G. W. CAMPBELL was in favor of the "In all future elections of President and Vice Pre-principle contained in the amendment. He consident, the Electors shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same State with themselves. The person having a majority of all the Electors for President shall be the President; and if there shall be no such majority, the President shall be chosen from the highest numbers, not exceeding three, on the list for President, by the House of Representatives, in the manner directed by the constitution. The person having the greatest number of votes as Vice President shall be the Vice President, and in case of an equal number of votes for two or more persons for Vice President, they being the highest on the list, the Senate shall choose the Vice President from those having such equal number, in the manner directed by the constitution." sidered it to be the duty of this House, in introducing an amendment to the constitution on this point, to secure to the people the benefits of choosing the President, so as to prevent a contravention of their will as expressed by Electors chosen by them; resorting to legislative interposition only in extraordinary cases: and when this should be rendered necessary, so guarding the exercise of legislative power, that those only should be capable of legislative election who possessed a strong evidence of enjoying the confidence of the people. This was the true spirit and principle of the constitution, whose object was, through the several organs of the Government, faithfully to express the public opinion. For this reason he was in favor of Mr. DAWSON observed, that at the time of the the proposed amendment. By it we shall make adoption of the constitution, that part of it a less innovation on the spirit of the constituwhich related to the election of a President and tion than by rejecting it, and adopting the reVice President had been objected to; and evils port of the select committee. There were oblikely to occur had been foreseen by some gentle-vious reasons why the persons from whom a men at that day. Experience had shown that they were not mistaken. Every gentleman in that House knew the situation in which the country had been placed by the controverted election of a Chief Magistrate; it was one which he trusted never would return. It had been a subject much reflected on by the people, and by the State Legislatures, several of which had declared their approbation of the principle contained in the resolution reported by the committee. The House had two years since ratified a similar amendment by a constitutional majority of two-thirds. At that time no objections were made to the principle of the amendment. All the objection then made was on account of the lateness of the day and thinness of the House. Mr. D. considered it unnecessary to make any further remarks at that time, as he could not anticipate any objections that might be urged. He moved that the Committee should rise and report the resolution without amendment. Mr. J. CLAY, though in favor of the principle of the amendment, was of opinion that, as to some of its parts, it required alteration. He therefore moved: "But if no person have such majority, then the House of Representatives shall immediately proceed to choose by ballot from the two persons having the greatest number of votes, one of them for President; or if there be three or more persons having an equal number of votes, then the House of Representatives shall in like manner, from the persons having such equality of votes, choose the President; or if there be one person having a greater number of votes-not choice may be made should be fewer in case of a designation of the office than heretofore. At present the whole number of electoral votes is one hundred and seventy-six. As the constitution now stands, four candidates might have an equal number of votes, or three might have a majority, viz: one hundred and seventeen each. According to the proposed amendment, but one can have a majority, and if two persons should be equal and highest, it is not probable that the third candidate will have many votes. Mr. GRISWOLD said it was very difficult to ascertain the precise import of the amendment offered by the gentleman from Pennsylvania by barely hearing it read from the Chair. In the meaning therefore which he gave it, he might perhaps be mistaken. If not mistaken, it involved a principle and implied a change, which he had never before heard suggested on that floor, or in the part of the country from which he came. It is well known to every member, that under the constitution as it at present stands, the votes given for a President in this House are by States, and not according to the majority of the members of the whole body. The amendment, as reported by the select comconstitution by prescribing that the election mittee, preserves this original feature of the shall be proceeded with as pointed out by the constitution. But the present amendment varies this mode, according to which it is to be made without respect to States. Of course a majority of the members are to decide. He submitted it to gentlemen whether they were willing in this way to sacrifice the interests and rights of the smaller States. If this be the intention of gentlemen, we ought to have time to deliberate on the subject before it is pressed to a decision. The gentleman from Pennsylvania will explain whether this is his intention. Mr. J. CLAY begged leave explicitly to state, for the satisfaction of the gentleman from Connecticut, that it was not his intention to change that part of the constitution which prescribed that the votes should be by States; and if it would induce the gentleman to vote for the resolution he had moved, he would add the words of the constitution, viz: "But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice." These words were accordingly added. Mr. DAWSON observed that this proposition had been submitted to the select committee, who had considered it more objectionable than that reported. Their object was to innovate as little as possible on the constitution. A great part of it referred to cases so extremely remote as were not likely to happen. The only material change it made was to reduce the number of persons from whom a choice should be made from three to two. At present the election for a President and Vice President was made from the five highest on the list. As, according to the proposed amendment, a designation of the persons voted for as President and Vice President was to be made, it was considered that by giving the three highest to the House of Representatives, from which to choose a President, and the two highest to the Senate, from which to choose a Vice President, the spirit of the constitution would not be changed. He hoped therefore the report of the committee would be agreed to. He believed it comprehended all cases which were probable; and he further believed that if they spent a month they would not devise an amendment that would provide for all possible cases that may happen. Mr. CLOPTON said he rose to express his approbation of the amendment offered by the gentleman from Pennsylvania (Mr. CLAY.) He said that indeed the amendment could not but be acceptable to him, inasmuch as it corresponded with the ideas he had the honor to express to the committee on this subject the other day. He begged leave now to make a few remarks in addition to those which he had then stated. He said, if any thing is to be lamented as a defect in the fundamental principles of our Government, that defect perhaps consists in a departure from the plain and simple modes of immediate election by the people as to some of the branches of the Government. He did not mean however now to discuss, nor did he know that he ever should discuss, this point. The Constitution of the United States having established a different principle in re [H. OF R. spect to the election of the several departments of the Government, except that branch of the Legislature which this House composes; and the object of the proposed amendment to the constitution not being the transmutation of a fundamental principle, but merely an alteration in the mode heretofore directed of electing one branch of the Government according to the principle already established, his business and his object was to state to this committee those ideas which occurred to him on this occasion as suited to the subject as it now stands before the committee. Mr. C. said that most seriously considering the principles of the Government in such a point of view as he had the honor to state to the committee, he was irresistibly impressed with the opinion that a legislative election of President or Vice President, whenever resorted to, should be restrained to the smallest number above a unit, or to those persons who have equal electoral votes. He considered it as a position clearly and unquestionably true, that if the field of election, when not decided by the voice of the people themselves, should be left too wide, more chances will there always be for the introduction of abuses in determining on a choice, if those whose province it shall be to decide, should be actuated by a spirit adverse to the public sentiment. Results ungrateful to the public feeling might indeed become sources of discontent truly to be lamented. The demon of discord might be called forth, and stalking over our land, might unfortunately produce a state of things very different from that peaceful, tranquil state, which would follow a decision more conformable to the will of the people. Such a decision he believed would be ensured were the election to be confined to those two persons only who had received the most ample testimony of the public confidence, or to those who had been stamped with equal testimonials of that confidence. Mr. SMILIE would wish one principle altered in the report of the select committee, viz: that which confined the election of the President to the three highest persons voted for. It was impossible for human wisdom to provide for all cases that might occur. Their time was not well spent in providing for cases extremely remote. He had but one object in view, the designation of office; and the more simple the proposition, the more likely they were to obtain this object. It should be recollected that the constitution was the act of the people, and ought not to be altered till inconveniences actually arise under it. He believed, though particular parts might be defective in theory, they ought not to be changed till practical inconveniences had been experienced. No such inconvenience had yet been felt from choosing the President from the five highest on the list. Is it, then, prudent to embarrass the great principle, in which they generally concurred, with incidental propositions, when there was no necessity for them? This amendment was to ob tain the assent of thirteen legislative bodies before it would be binding. The simpler, then, the proposition, the more likely it was to succeed. His idea, therefore, was to leave the constitution as it now stood, so far as it related to a choice being made from the five highest, and only so far to change it as related to a designation of the office. Mr. SANFORD said the great object of the amendment ought to be to prevent persons voted for as Vice President from becoming President. If the amendment effected this, it was sufficient. All other innovation upon the constitution was improper; and no danger could arise from extending the right of the House of Representatives to making a choice from the five highest. Mr. RODNEY said that in the select committee he had been in favor of the number stated in the constitution. He was not for innovating on the constitution one tittle more than was absolutely necessary. As to the mere designation of office, the people looked for and expected it; and if that were obtained, they would be satisfied. He well knew that if amendments to this simple proposition were multiplied, objections to the whole would also be increased. Having been originally in favor of five, and thinking the inconveniences apprehended by some gentlemen not likely to occur, he should vote in favor of the amendment of the gentleman from Maryland, principally for the reason assigned by the gentleman from Connecticut, that it would allow to the smaller States a larger scope of choice. Mr. ELLIOT hoped the amendment of the gentleman from Maryland would not prevail; and coming, as he did himself, from a small State, he trusted the House would pardon him for assigning his reasons for that hope. He felt as much confidence in the House of Representatives as the gentleman from Connecticut; but he was of opinion that their discretion ought to be limited. The amendment will give the House of Representatives the unqualified power of electing from the whole number on the list of persons voted for as President, and on that ground he opposed it. It was said to be a question of larger and smaller States, and those who represent the smaller States were called upon to check the usurpation of the larger States. Our system was undoubtedly federative, and there might be danger of a usurpation of the large States if the small ones were not protected by the constitution. His wish was that they might be so guarded. Mr. G. W. CAMPBELL said he, too, represented a small State, and was anxious to preserve the rights of the small States. But in a great constitutional question, while these rights were not lost sight of, principle ought also to be regarded. This he conceived to be his duty, whatever effect it might have upon the State he represented. For this reason he considered it proper to express his opinions on the present occasion. It was a vital principle to preserve [OCTOBER, 1803. the constitution as pure as possible. This rendered it necessary to show that the proposition of the gentleman from Pennsylvania (Mr. CLAY) came nearer to the principle of the constitution than that offered by the gentleman from Maryland. He had already observed that, there being at present no designation, four was the smallest possible number from which a choice could be made: to this number but one was added, making, altogether, five. In future elections there will be one hundred and seventy-six Electors, and if there be a designation of office, but one person can have a majority. To confine the choice to two persons will, therefore, in principle, approach as near as possible to the original principle of the constitution. Mr. C. was in favor of preserving that part of the constitution which directed the election to be made by States, wishing as little innovation as possible on the principles of the constitution. He did not, however, conceive a mere change of words dangerous, but the establishment of a principle that deprived the people of the power of electing those who possessed the largest share of their confidence. He was decidedly in favor of whatever had this effect, as according with the true spirit of the constitution; and he was, therefore, opposed to the amendment of the gentleman from Maryland. His own opinion, too, was that it was best to express in one article whatever related to the election of President and Vice President, than refer to the constitution; by which the provisions on that subject would be rendered much clearer. The question was then taken on Mr. NICHOLSON'S amendment, and lost-ayes, 29, noes 77. Mr. RANDOLPH said he came to the House under the impression that another subject would have occupied their attention on account of its primary importance, not meaning, however, to disparage the importance of an amendment to the constitution. But on a subject which must be discussed in a few days, if at all, it was improper that time should be lost. The proposed amendment to the constitution was not, he believed, so extremely pressing as to require immediate attention. The subject to which Mr. R. had expected the attention of the House would have been first directed, was the Treaty with France. Hoping that the committee would have decided on the amendment at an early hour, he had refrained from any motion. But perceiving that a decision was not likely soon to be made, he would move that the committee should rise, for the purpose of taking up the treaty respecting Louisiana. Mr. DAWSON opposed the rising of the committee. The question was taken on Mr. RANDOLPH'S motion, and carried—yeas 60, nays 55. When the committee rose. And on motion, the House adjourned. OCTOBER, 1803.] TUESDAY, October 25. Louisiana Treaty. The Louisiana Treaty. The House resolved itself into a Committee of the Whole on the Message from the President of the United States, of the twenty-first instant, enclosing a treaty and conventions entered into and ratified by the United States and the French Republic; to which Committee of the whole House was also referred a motion for carrying the same into effect. Mr. G. GRISWOLD said he had hoped that some gentleman, in favor of the resolution under consideration, would have risen to assign his reasons in favor of it. But no gentleman friendly to its adoption having risen, and feeling himself embarrassed, he would take the liberty of suggesting his doubts as to the propriety of the resolution. He hoped the committee would have the candor to believe that, in stating those doubts which hung upon his mind, his object was not to delay the progress of the measures contemplated, but to gain information. [H, OF R. pediency of the treaty proposed to be carried into effect. As it would be needless to repel objections of this last kind, unless those of the first description could be satisfactorily answered, he should first reply to the observations which had been made on the constitutional doctrine. He understood the gentleman from New York as denying that there existed in the United States, as such, a capacity to acquire territory; that, by the constitution, they were restricted to the limits which existed at the time of its adoption. If this position be correct, it undeniably follows that those limits must have been accurately defined and generally known at the time when the Government took effect. Either they have been particularly described in the constitutional compact, or are referred to as settled beyond dispute, and universally acknowledged. But this was not the fact, in either case. The constitution not only did not describe any particular boundary, beyond which the United States could not extend, but our boundary was unsettled on our north-eastern, southern, and north-western frontier, at the time of its adoption. But perhaps we shall be told, that, although our limits were in dispute with our English and Spanish neighbors, still there were certain boundaries specified in the Treaty of Paris, of 1783, which were the actual boundaries of the United States. It was, how In reflecting, for the short time during which the subject had been before him, he had not been able to pursue it in all its bearings, nor to solve all the difficulties it presented. He had first asked himself where was to be found the constitutional power of the Government to incorporate the territory, with the inhabitants thereof, in the Union of the United States, with the privileges of citizens of the United States-ever, a well attested fact-one of which we is there any such power? And if there is, where is it lodged? In giving his opinion on the constitutional right of making treaties, he would say that it was vested in the President and Senate, and that a treaty made by them on a subject constitutionally in their treaty-making power, was valid without the assent of this House. This House had, to be sure, the physical power of refusing the necessary means to carry treaties into effect; but this power was essentially different from that conferred by the constitution. But if the treaty-making power should be exceeded, if it should be undertaken to make it operate upon subjects not constitutionally vested, he had a right to say that it was his duty not to carry it into effect. Even should its provisions be highly beneficial, it was no less their constitutional duty to resist it. He would not undertake to say that his mind was perfectly fixed, but he entertained doubts-serious doubts; and he hoped gentlemen would candidly give them answers. possessed official information from the Executive-that the limits assigned us by that treaty were incapable of being established. A line running west, from the Lake of the Woods, not touching the Mississippi at all-it followed that the United States were without limits beyond the source of the Mississippi. It will not be denied, that, among the powers which the Government possesses under the constitution, there exists that of settling disputes concerning our limits with the neighboring nations. This power was not only necessary in relation to the disputed boundaries on the side of Canada and Florida, but was indispensable to a government over a country of indefinite extent. The existence of this power will not be denied: it has been exercised in ascertaining our north-eastern and southern frontier, and it involves in it the power of extending the limits of the Confederacy. Let us suppose that the Commissioners, under the Treaty of London, had determined the river St. John or St. Lawrence to be the Mr. RANDOLPH rose for the purpose of satis- true St. Croix-would not that part of the fying, so far as was in his power, the doubts ex- province of New Brunswick or Quebec which pressed by the gentleman from New York (Mr. | lies on this side of those rivers at this time have G. GRISWOLD). He had listened with great pleas-been a part of the United States? Suppose the ure to the candid exposition which the gentle- northern boundary of Florida had been fixed, man had given of his objections, and from the under the Treaty of San Lorenzo, to extend temper which he had manifested, Mr. R. relied from the Atlantic Ocean to the Gulf; would not on being able to satisfy some of his scruples on all the country north of this line and east of this subject. The objections which have been the Mississippi-part of the very country conurged to the motion before the committee, re-veyed by the treaty lately negotiated, and which solved themselves into arguments against the gentlemen conceived we could not constitutionconstitutionality, and arguments against the ex- ally hold-would not that country, at this time, |