A Magnificent Catastrophe

by Edward J. Larson

  When Federalists in Congress passed the Alien and Sedition Acts within weeks of authorizing a larger army during the summer of 1798, Jefferson had begun dreading their next move. “I consider these laws as merely an experiment on the American mind to see how far it will bear an avowed violation of the Constitution,” he wrote. “If this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs and the establishment of the senate for life.”

  Although the course of events Jefferson feared never materialized, an effort seen by some as being in the same spirit was made later. In February 1800, following his defeat in Pennsylvania’s bitter gubernatorial contest, James Ross introduced a bill in the U.S. Senate that could have all but given control over choosing the next President to the Federalist-dominated Congress. As originally drafted, the Ross Bill would have created a thirteen-member “Grand Committee” to rule on the qualifications of presidential electors. Each house of Congress would appoint six of its members to the committee, and the Chief Justice would chair it. As amended in the Senate, the thirteenth member became a senator chosen by the House of Representatives rather than the Chief Justice. “The report of the majority of the said committee shall be final and conclusive determination of the admissibility or inadmissibility of the votes given by the electors for President and Vice President,” the legislation stated. That provision would have authorized a partisan committee, meeting in secret, to nullify any number of electoral votes and thereby to swing the election as it chose.

  Publicly, the bill’s sponsors claimed that it would simply provide a procedure for weeding out invalid electoral votes, such as those cast either by electors never “properly appointed” or for an ineligible presidential candidate. Privately, they acknowledged that it targeted a particular threat posed by Pennsylvania.

  In fact, Ross may not have intended anything more with his bill than to guard against electoral-vote shenanigans by Pennsylvania Governor Thomas McKean, whom he had good reason to distrust. Following McKean’s election, Federalists in control of the Pennsylvania Senate refused to accept Republican proposals to reenact the law providing for the election of presidential electors by a statewide general ticket, which both sides thought would once again award the state’s electoral votes to Jefferson. They wanted electors chosen by districts, which would surely secure at least some votes for Adams. By February, it became apparent that a stalemate might ensue.

  Federalists worried what McKean might do if no election law passed in Pennsylvania. “There being no law in the state,” U.S. House Speaker Theodore Sedgwick noted in a letter to another High Federalist, “the governor had declared, and the Jacobins propagated the report, that he would call on the people, by proclamation, to choose electors and that he would return their votes.” In short, Federalists feared that McKean might order an extralegal statewide election by executive fiat. Treasury Secretary Oliver Wolcott warned darkly, “If this course should be pursued, and the choice of a president should depend on the votes of Pennsylvania, a civil war will not be improbable.” Ross wanted a mechanism in place to exclude any such tainted electoral votes from counting.

  If this represented the full extent of Ross’s intent, however, then his bill overreached its objectives. In fact, since Federalists controlled both houses of Congress, under Ross’s proposal, a committee of their choosing would effectively decide which electors could vote from every state.

  In their growing (and also understandable) paranoia, Republicans read this sweeping purpose into the overbroad bill. Some intemperate Federalists fed Republican fears. “This bill was a sweeper,” the incendiary Federalist printer William Cobbett wrote. “It would…have, in reality, placed the election of the President in the hands of the Senate alone. That it would be much better for the country were the election in the hands of the Senate is certain; but it would have been fairer to pass a law directly to that effect.” The debate over this so-called Ross Bill showed the level of distrust that had descended on national politics by early 1800.

  During the Senate’s contentious debate over the bill, Charles Pinckney of South Carolina took the lead in outlining Republican concerns. “In every state where the election is strongly contested, there will of course be a minority,” he explained. If that losing side was Federalist, then its members could “easily discover the means of raising objections to the validity of the return of electors, insist that they themselves are elected, proceed to the length of meeting and voting, and transmit to Congress a [second] return.” The Federalist-dominated Grand Committee would then decide which return counted. This led Pinckney to ask rhetorically, “Knowing the situation of the Union, how differently some states think from others, [and] how divided Congress have been for some years on certain great and trying subjects,” who can doubt the potential for partisan abuses in vote counting that could “throw almost every state into [violent] scenes which can never arise but from this bill?” Both sides could threaten civil war over this issue. Such objections did not deter the Senate from passing the bill over unified Republican opposition, however, and sending it to the House of Representatives, where moderate Federalists held the balance of power between High Federalists and Republicans.

  The Senate debated the Ross Bill in closed sessions with the text of the legislation kept secret until the Aurora published a pirated copy of it in late February 1800. Then the public storm burst. Republicans charged that the bill would violate states’ rights and undermine popular rule. Virginia Senator Stevens Thomson Mason spoke of its “obnoxious principles.” Republican organizer John Beckley called it “a deadly blow…aimed at us.” Madison declared that it violated the Constitution by giving Congress too much control over choosing the President. Protests flowed from Republican presses. “The bill brought into the Senate by Mr. Ross,” one editorial charged, “was as daring an attempt on the Constitution of the United States as that of Bonaparte on that of France.”

  The Aurora led the Republican outcry with almost daily reports critical of the Senate and its “alarming attempt upon the freedom of this state.” One of its articles compared Ross’s Grand Committee to the aristocratic “Venetian Council” that had long held the power to choose leaders in the Italian republic of Venice. Another asked, “If there was nothing dangerous or hostile to the liberties of the people in this Bill, why has its publication given those who support it so much and such extraordinary alarm?”

  Senate Federalists struck back at the Aurora’s pugnacious editor, William Duane, by taking the unprecedented step of forming a Committee of Privilege to investigate his publication of the pirated bill. Born in colonial America to Irish parents, reared in Ireland, and deported from British India for publishing an antigovernment newspaper in Calcutta, Duane had irritated Federalists ever since he had taken over the Aurora in 1798, following the death of its crusading founding editor, Benjamin Franklin Bache, a grandson of Benjamin Franklin. “Is there any thing evil in the regions of actuality or possibility that the Aurora has not suggested of me?” Adams complained to Pickering in 1799. “The matchless effrontery of this Duane merits the execution of the alien law. I am very willing to try its strength upon him.” Twice indicted for sedition but never under the Alien Act, the wily Duane managed to escape conviction and keep publishing his paper. Now the Senate sought to punish him directly.

  Inevitably, the Aurora’s secondhand reports of closed Senate proceedings on the Ross Bill contained inaccuracies, some of them potentially inflammatory. The Committee of Privilege investigated these false statements as well as Duane’s publication of the bill itself. “The right of self-preservation is vested in the Senate,” High Federalist Senator Uriah Tracy argued in support of pursuing Duane. “If it is admitted that we have the right of protecting ourselves within these walls from attacks made in our presence, it follows of course that we are not to be slandered and questioned elsewhere.” In mid-March, t
he Senate (in a series of bitterly contested, highly partisan votes) accepted the committee’s finding that, by his publications about the Ross Bill, Duane had breached Senate privileges. It ordered him to appear before the Senate for sentencing.

  Instead of presenting himself, Duane went into hiding until Congress adjourned. The Senate responded by ordering Duane’s arrest for contempt, but could only plead for assistance in catching him. No one helped. Duane continued feeding copy to the Aurora on a daily basis, including scathing attacks on the Ross Bill and the proceedings against him. One Republican senator described the scene to Madison: “Although you and all persons in the U.S. (including, no doubt, army and navy) are called on to assist in apprehending him, he is not yet taken.”

  Taunting his hapless and ham-fisted Senate persecutors, a notice in the Aurora stated that written messages delivered to Duane at the newspaper’s office would “be sure to reach him in less than 48 hours.” In so far as public opinion mattered, Marshall thought that the Senate misplayed its hand badly. “Questions of privilege are delicate in their nature,” he commented on the case, “and such as are most apt to interest the public mind against those who exercise the power of punishing for its breach.”

  Even as Republicans publicly bewailed Senate action on the Ross Bill, Jefferson (who watched over the entire affair as Vice President) privately took comfort in the measure’s uncertain prospects in the House of Representatives. Under the Constitution, the House alone chooses the President in case of a tie or the failure of anyone to receive votes from a majority of electors. Given this institutional consideration, Jefferson doubted that House members would go along with a bill giving power over the electoral process to senators. He foresaw a deadlock between the Senate and House on the issue, as did Senator Stevens Thomson Mason of Virginia. Writing to Madison in March, Mason predicted “that the House of Representatives will hardly be induced to accede to an arrangement which will place the Senate on an equal footing with themselves.”

  In the House, John Marshall led the effort by moderate Federalists to rewrite the Ross Bill. He did not believe that Congress should delegate power to rule on the qualification of electors to a committee. First, Marshall raised constitutional concerns. “On this question,” wrote House Speaker Theodore Sedgwick, a High Federalist proponent of the bill, “I had a long conversation with [Marshall], and he finally confessed himself (for there is not a more candid man on earth) to be convinced…. He then resorted to another ground of opposition…. Although the power was not indelegable, yet he thought, in its nature, it was too delicate to be delegated.”

  Marshall agreed with Sedgwick and other High Federalists that Congress should have some means to exclude ineligible electoral votes, but he felt the Ross Bill went too far. The first-term congressman from Virginia stood his ground on principle against the House Speaker, who privately complained that Marshall read the Constitution narrowly like a criminal statute rather than broadly to serve partisan purposes. He offered alternative legislation, which passed the House, to create a special joint committee to advise Congress on the admissibility of disputed electoral ballots, but the Senate wanted more. “Let me do what I will,” Marshall wrote to his brother about the dispute that swirled around him. “I am sure the [Republicans] will abuse me and therefore I need only try to satisfy myself.” Ultimately, Federalists in the House and Senate failed to reach a compromise on the legislation and it died.

  The session of Congress that began in December 1799 by marking Washington’s death and ended in May 1800 remained mired in partisan discord throughout and accomplished little in the end. Abigail Adams saw it coming. “Next week Congress meet,” she wrote at the outset. “Electioneering has already begun. There will be more things aimed at than will be carried by either Jacobins or Federalists—but the Jacobins are always more subtle and industrious than their opponents.” The High Federalist Speaker of the House advised his partisans in December 1799, “In all our measures, we must never lose sight of the next election of President.” Members of Congress on both sides followed this approach, prompting Fisher Ames to comment midway through the session, “Our parties in Congress seem to regard that approaching election as the only object of attention.”

  When the session ended, Jefferson expressed relief that it had not gone too badly for his party. “Congress will rise today,” he wrote to Madison. “On the whole, the Federalists have not been able to carry a single strong measure in the lower house the whole session. When they met, it was believed they had a majority of twenty; but…public opinion sets so strongly against the federal proceedings that this melted off their majority and dismayed the heroes of the party. The Senate alone remained undismayed to the last. Firm to their purpose, regardless of public opinion, and more disposed to coerce than to court it, not a man of their majority gave way in the least.”

  At the time, of course, voters elected members to the House while state legislatures appointed senators. Frustrated by his failure to push through High Federalist measures, House Speaker Sedgwick also attributed what he called “a real feebleness of character in the House” to the influence of public opinion on moderate members, particularly John Marshall. “He is disposed on all popular subjects to feel the public pulse,” Sedgwick wrote. “Doubts suggested by him create in more feeble minds those which are irremovable.” At the time, politicians had to trust their instincts regarding public opinion. No one conducted polls.

  Jefferson could not count Federalist defeats as Republican victories, however. Failure of the Ross Bill did not assure him of Pennsylvania’s crucial electoral votes. A partisan stalemate over adopting a method to choose electors in that state remained possible. In the face of continued intransigence by Federalists in the State Senate, McKean disavowed earlier suggestions that he might order a statewide election by executive fiat. With or without Ross’s Grand Committee, he concluded that Federalists in Congress would find some way to disallow the votes. McKean decided to wait until the October Pennsylvania legislative elections. If the Republicans took control of the State Senate from the Federalists, then he would call an eleventh-hour special session of the legislature to appoint electors. If the Republicans failed to gain the majority, then Pennsylvania might not vote. Nothing in the national Constitution actually required states to cast electoral votes, and no state could do so without enacting a method for choosing electors.

  With nine months to go before the Electoral College met on December 3, Jefferson viewed the political landscape much as other seasoned observers did. “This seems to be the prospect. Keep out Pennsylvania, Jersey, and New York, and the rest of the states are about equally divided,” he wrote to Madison on March 8, 1800. States favorable to the Federalists, which included the five New England states, Delaware, and Maryland, would have 52 electors; the pro-Republican southern and western states of Virginia, the Carolinas, Georgia, Kentucky, and Tennessee would have exactly the same number of electors. In 1796, all but three of the former group had voted for Adams while all but two of the latter had voted for Jefferson. These five rogue electors had been selected in district elections, with the three for Jefferson in Maryland and one each for Adams in Virginia and North Carolina. Most observers, including Jefferson, expected similar returns from these states in 1800. They constituted each candidate’s base. “Then the event depends on the three Middle States before mentioned,” Jefferson concluded in his letter: “If Pennsylvania votes, then either Jersey or New York giving a Republican vote decides the election. If Pennsylvania does not vote, then New York determines the election.” Jefferson naturally assumed that Pennsylvania, with McKean as governor and the Republicans firmly in control of at least one house of the state legislature, would vote for him, if it voted.

  Under this electoral calculus, Jefferson needed to carry either New York (with twelve electors) or New Jersey (with seven) even if he received votes from all fifteen Pennsylvania electors. He needed at least New York if Pennsylvania did not vote. In both New York and New Jersey, state legisl
ators selected the electors and had chosen all Federalists in 1796. The Federalists still controlled the legislatures of both states going into 1800, but elections that year would decide which party held the most seats in each when it came time to choose electors in the fall. In each state, whichever party held the most seats in its legislature would get all of its electors. New Jersey was virtually a lost cause for the Republicans, but New York had a mixed political tradition. Although Federalist icon John Jay had served as New York’s governor since 1795 and Hamilton lived in New York City, Republican stalwart George Clinton served nine terms as governor prior to Jay and had carried New York’s electoral votes for Vice President against Adams in 1792. During the 1790s, one of New York’s U.S. Senate seats had passed back and forth between Hamilton’s Federalist father-in-law, Philip Schuyler, and Republican Aaron Burr as the state legislature twice changed hands between the parties. In 1800, the Republicans could at least hope to retake the New York legislature, but Hamilton and his followers would oppose them.

  All political eyes now turned toward New York, which held its state elections in April. The legislature chosen in that election would name New York’s electors. Considering everything that needed to fall into place for him to gain votes from a majority of the electors, and despite the advances made by Republicans in Pennsylvania and Virginia, Jefferson concluded, “Upon the whole, I consider it as rather more doubtful than the last election.” Without New York, he would again likely fall just shy of a majority. Although he did not express his views so clearly in a letter, Adams apparently viewed the prospects in much the same way as Jefferson did and looked to New York with equal anticipation.