whole. The same combination in short would result from an apprehension of the federal, as was produced by the dread of a foreign yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other." But he does not speak here of a right of the states, but only mentions the probability of a fact. This is evident from the comparison drawn. The forcible resistance of the states to the general government might be as justifiable as the forcible resistance of the colonies to England; but in law, it would be, in this case as in that, a revolution and not a mode of procedure warranted by the constitution. In the one case as in the other, there would have been but a naked fact presented, the fact, namely, that the question had been taken out of the domain of law and brought before the tribunal which is the ultima ratio of every people and every age. Madison leaves no doubt as to what, in contrast with these actual remedies, were the legal remedies belonging to the states. "In the first instance," he says, "the success of the usurpation will depend on the executive and judiciary departments which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can by the election of more faithful representatives annul the acts of the usurpers." Here there is nothing said of the duty of the states "to interpose." It is conceded that the general government has the exclusive right of decision, and the only way to reverse this decision is to labor to the end that, at the time appointed by law, other persons with different views may be entrusted with it. And how, indeed, could a constitution which accorded to the states other means of defense, be advocated by the man who condensed the knowledge he had learned from history into these words:

'Federalist, XLVI.

2 Ibid, XLIV.

MADISON'S EARLIER VIEWS.

167

"The important truth which it unequivocally pronounces in the present case is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil policy, by sustaining violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy" The saying of John Quincy Adams already quoted, " that the constitution itself had been extorted from the grinding necessity of a reluctant people," will now be better understood.

1 Federalist. XX.

CHAPTER V.

THE PRESIDENTIAL ELECTION OF 1801. THE FALL OF THE FEDERALIST PARTY. JEFFERSON AND THE PURCHASE OF LOUISIANA. THE BURR AND FEDERALIST INTRIGUES.

The Virginia and Kentucky resolutions produced no further immediate consequences. The recognized leaders of the anti-Federalists or Republicans had given their interpretation of the constitution and of the Union created. by it. Their declarations remained a long time unused, but also unrecalled and unforgotten. The internal contests continued and their character remained the same. The revolution in the situation of parties now necessitated a change of front on both sides, and for a time also the battles between them were waged over other points and in part in another way.

The next collision was an actual struggle for supremacy. An inadequate provision of the constitution alone made this battle a possibility to the Federalists; but the struggle over the question of the constitution was after all considered only as a mere accidental collateral circumstance.

The Republicans had won the presidential election by a majority of eight or nine electoral votes. Their two candidates, Jefferson and Aaron Burr, had each received seventy-three votes. They intended that Jefferson should be president and Burr vice-president. Spite of this, however, they gave both the same number of votes, either not to endanger Burr's election, or because he became a candidate. only on that condition.

This was, considering Burr's want

'Wolcott asserted that Burr proposed this condition and that it was accepted by prominent Republicans. Gibbs, Mem. of Wolcott, II., p.

TIE-VOTE FOR THE PRESIDENCY.

169

of principle, and the boldness of his character, a dangerous experiment. Judge Woodworth charged that Burr had won over one of the electors of New York to withhold his vote from Jefferson, and that this was prevented only by the fact that the other electors of the state had discovered it in time.1 If this charge be well-founded, it was by mere accident that the country escaped electing a man president whose name had never yet been connected with the presidency by any party. But be this as it may, the danger that the bankrupt, foolish voluptuary, for whom no means was too low to carry out the adventurous plans of his daring and mad ambition, should be made chief of the republic, was by no means removed.

If an equal number of electoral votes should be cast for two or more candidates, the house of representatives would have to elect one of them to the presidency. In this case, the votes would be cast by states, and it would be necessary that a majority of all the states should vote for one of the candidates in order to have a valid election. The Federalists had a majority in the house of representatives, but voting by states they could control only one-half the votes. This was just sufficient to prevent an election.

No one denied that the majority of the people, as well as the republican electors, desired to make Jefferson president. But party passion had reached such a feverish height that the Federalists resolved, spite of this, to plant themselves on the letter of the constitution, and to hinder

488. Randall, Life of Jefferson, II., p. 573, calls this an absurd statement, but produces no proof therefor, except a letter of Jefferson's dated Dec. 15, 1800, to Burr, in which he intimates that he expects to receive a larger number of votes. J. C. Hamilton, Hist. of the Rep. of the United States, VII, p. 425, gives, however, good grounds for the assumption that Jefferson at this time was aware of the equality of the vote. A letter (Ibid, VII., p. 424) from Madison to Monroe, quoted by Hamil ton, tends rather to prove than to disprove that such a promise had been made in favor of Burr.

J. C. Hamilton, VII., pp. 424, 425.

Jefferson's election. The possibility of electing their own candidates' was completely excluded by the constitution. They could therefore do nothing except to obtain for Burr a majority of the votes of the states, or prevent an election. In case no president was elected by the states, they thought of casting the election on the senate. The senate was to elect a provisional president-from among the senators or not-who then might be declared president of the United States. Such a proceeding could not be justified by any provision of the constitution; the case had not been provided for at all. It is impossible to say whether this is the reason why the plan was soon dropped; certain it is, however, that Gibbs's statement that such a plan never existed is incorrect.1

After some hesitation they resolved to try to elect Burr. Only six states, it is true, voted for him, but it was necessary to win over only four votes in order to guaranty him the legal majority of nine states.

3

'Adams and Pinckney.

They thought, for instance, of chief-justice Marshall.

It is impossible to understand how, spite of this, Adams could write: "I know no more danger of a political convulsion, if a president pro tempore of the senate, or a secretary of state, or speaker of the house, should be made president by congress, than if Mr. Jefferson or Mr. Burr is declared such. The president would be as legal [!] in one case as in either of the others, in my opinion, and the people as well satisfied." Adams, Works, IX., p. 98.

Mem. of Wolcott, II., p. 98.

Bailey and Livingston, of New York, Lynn, of New Jersey, and Dent, of Maryland. New Jersey and Maryland gave him an equally divided vote. Lynn inclined towards the Federalists, and Dent was a decided Federalist. The two representatives from New York named above were not considered very particular friends of Jefferson. The assumption that, under certain circumstances, a majority might be obtained for Burr does not seem to be quite as absurd as Randall represents it in his life of Jefferson. Life of Jeff., II., p. 605. Its probability is indirectly increased by the fact that the Federalists, who alone decided the issue in favor of Jefferson, drew upon themselves the suspicion of corrupt influence. See J. C. Hamilton, Hist. of the Rep. of the U. S. of