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Benson^ of N York has succeeded as Circuit Judge in place of
your Brother Samuel.

His character and the weight of an unanimous recommendation
from the N York Delegation turned the scale. I know that the
President had resolved in his own mind to appoint Samuel.

I have been much mortified with the result. Your Brother is
informed on the subject.

Mr. Nourse^ promised in a few days to furnish the warrant for
the transfer of the Certif . you sent me.

Bayard to Samuel Bayard.^

Washington, 22 Fehy 1801.
"... You are right in your conjectures as to the office offered
me. I have since been nominated Minister Plenipotentiary, Con-
curred in Nem Con. — Commissioned, and resigned. Under proper
circumstances the acceptance would have been complete gratifica-
tion; but under the existing I thought the resignation most honorable.
To have taken 18,000 dollars out of the public treasury with a
knowledge that no service could be rendered by me, as the French
Government would have waited for a man who represented the
existing feelings and views of this Government, would have been
disgraceful. Another consideration of great weight arose from the
part I took in the Presidential election. By the arrangements I
made I became encircled by all the doubtful votes and made myself
responsible for the issue. When it was perfectly ascertained that
Burr could not be elected I avowed that the only remaining object
was to exclude Jefferson at the expense of the constitution. Ac-

1 Egbert Benson (1746-1833), who was judge of the New York supreme court at this

2 Joseph Nourse, register of the treasury.

» A part of this extract was printed in " Remarks in the Senate ", etc., 24 ; the copy
from which this is printed is among the papers of Mrs. W. S. Hilles.


cording to an arrangement I had made with Maryland I came
forward and avo^Yed my intentions of putting an end to the contest.
The clamour was prodigious. The reproaches vehement. I pro-
cured a meeting — explained myself and declared an inflexible inten-
tion to run no risk of the constitution. I told them that if necessary
I had determined to become the victim of the measure. They might
atempt to direct the vengeance of the Party against me but the
danger of being a sacrifice could not shake my resolution. Some
were appeased: other furious, and we broke up in confusion. A
second meeting was no happier in its effect: In the end however
there was a general acquiesence and the whole Party agreed to vote
alike, except Mr. Esmonds^ of Connecticut. His persisting in vot-
ing for Burr induced the four New England States to do the same
thing. IMorris retired — Vermont in consequence voted for Jefferson —
four meinbers of Maryland voted in blank, — the result of the Mary-
land vote Avas the same with Vert. South Carolina and Delaware
voted in blank. As I had given the turn to the election, it was
impossible for me to accept an office which would be held on the
tenure of Mr. Jeffersons pleasure. My ambition shall never be
gratified at the expense of a suspicion. I shall never lose sight of
the motto of the great Origonal of our name.

Bayard to Bassett.

Washington, 23 Feby. ISOl.
My dear Sir: It is a matter of great importance that Delaware
should have two Senators here the 4th March. Latimer- has
gone home with a determination not to return. I have written to
Him to send you his resignation to take effect immediately. Should
he do so, I pray you to lose no time in making an appointment with
an injunction to the person to come on without loss of time. It is
thought the majority will depend upon a single vote and as all the
heads of Departments are to be filled, you will see the importance
of our State having both her members on the floor. What think
you of Grantham ? ^ To me he appears a very fit man, but at all
events send us some one instantly.

Harper to his Constituents.

Washington, Fehruary ^Jith, ISOl.
The session of Congress, my dear Sir, being about to close, and
with it my political life, I take up the pen for the last time, to give

1 William Edmond (1755-1838), Federalist member of the House, 1797-1801.

= Dr. Henry Lattimer (1752-1819) of Delaware, who after serving in the House from
Fob. 14, 1794, to Feb. 28, 1795, entered the Senate in place .of George Read. His term
expired Mar. 3, 1801.

3 Isaac Grantham, a prominent Delaware lawyer.

LETTERS OF E. G. HARPER, 1801. 133

my constituents an account of my stewardship. I have delayed it
thus long, because nothing very material took place in the early
part of the session ; and I thought it best to bring into one view, all
that seemed to me particularly worthy of their attention.

As the general principles on which I have acted, in the trust con-
fided to me, have heretofore been explained to you, together with
the reasons which governed my conduct in every particular case of
importance, nothing now remains, but to give you an account of the
interesting events which have marked the present period, of the
most important acts of the present session, and of the general state
of our affairs at its close. This will enable you now to judge in
what manner the government has hitherto been conducted ; and here-
after to appreciate justly, the wisdom and ability of those into whose
hands its administration is soon to pass.

I will begin with the election of President, the most important of
those events which have lately occurred.

You need not be told that the candidates on one side in this great
contest, were Mr. Adams and General Pinckney, and on the other
Mr. Jefferson and Colonel Burr of New York. The two first were
supported by those persons who approved the present administra-
tion, and the system of measures adopted by Washington. Their
intention was to give Mr. Adams the preference as President, and
make General Pinckney Vice-President; but to take the chance of
his being made President, if his personal popularity should obtain
for him the votes of some persons who would not vote for Mr.
Adams. The other two gentlemen were supported by those persons
who have always opposed the administration of General Washington
and Mr. Adams, and all the important measures which have been
adopted under them. Their plan was to give Mr. Jefferson the
preference exclusively as President. They supported Colonel Burr
as Vice-President, because his situation and power in New York
rendered it absolutely necessary to admit his pretensions.

In the states, exclusive of South Carolina, the candidates stood
exactly equal; except that one vote was thrown away from General
Pinckney in Rhode Island, to prevent him from being tied with
Mr. Adams. He had 04 votes, and each of the other candidates 65.
It therefore depended on South Carolina to make the President and
Vice-President. Had she voted for Mr. Adams and General Pinck-
ney, the first would have been President and the second Vice-Presi-
dent. Had she voted for Mr. Jefferson and General Pinckney, as
was generally expected, Mr. Jefferson would have been President,
and General Pinckney Vice-President. By voting for General
Pinclmey and throwing away her other vote, she might have made
him President, and left it a tie between Mr. Adams and Mr. Jefferson
for Vice-President; in which case the Senate must have decided on


the choice. By voting for Mr. Jefferson and Colonel Burr, she gave
them 73 votes each; which being a majority of 138, the whole num-
ber of electors, the choice between those two gentlemen devolved,
according to the Constitution, on the House of Kepresentatives ;
which, in such cases, is to chuse by ballot one of the two highest to
be President. The other becomes Vice-President of course.

As it may -be satisfactory to you to know how the several states
acted on this great occasion, I will give you a statement of their

The five New England states, Massachusetts, Connecticut, New
Hampshire, Ehode Island, and Vermont, gave together 39 votes;
all for Mr, Adams, and all except one for General Pinckney. That
one was thrown away. New York gave 12 votes, all for Mr. Jeffer-
son and Colonel Burr. New Jersey 7, and Delaware 3, all for Mr.
Adams and General Pinckney. Pennsylvania 15, of w^hich 8 were
for Mr. Jefferson and Colonel Burr, and 7 for Mr, Adams and Gen-
eral Pinckney, Maryland 10, of which 5 were for Mr. Adams and
General Pinckney, and 5 for Mr. Jefferson and Colonel Burr. Vir-
ginia 21, all for Mr. Jefferson and Colonel Burr. North-Carolina 12,
of which 8 were for Mr. Jefferson and Colonel Burr, and 4 for Mr.
Adams and General Pinckney. South Carolina 8, all for Mr. Jeffer-
son and Colonel Burr. Georgia 4. Tennessee 3, and Kentuclvy 4;
all for Mr. Jefferson and Colonel Burr.

As the supporters of Mr, Jefferson certainly did not intend to
bring Colonel Burr into competition with him, it is difficult to ac-
count for their giving them an equal number of votes. Be that as
it may, the fact was so, and so it appeared on counting the votes;
which took place in presence of both Houses of Congress, on the
11th of this month. They had 73 votes each; which being a ma-
jority of the whole number, they were both elected: but it devolved
on the House of Representatives to declare which of them should be

In discharging this most important duty, I was of opinion that the
two candidates, in a constitutional and legal view, stood precisely
equal, having an equal number of votes from those whom the people
had appointed to act for them in the elections; and that my choice
between them ought to be governed, entirely, by my opinion of then-
respective fitness and qualification for the office. Taking this as
the foundation of my judgment, and I am firmly persuaded that it
is the only solid one, I came to a determination, after deliberating
on the subject as fully as its importance demanded, to vote for •
Colonel Burr; being decidedly of opinion that of the two men he
was the most fit for the office of President.

But although I gave the preference to Colonel Burr, I considered
it as our duty to make a choice, and to accede to the election of Mr.

LETTERS OF E. G. HARPEE, 1801. 135

Jefferson, rather than expose the nation to the mischiefs which might
result from leaving the government without a head,

I therefore resolved, as far as might depend on me, to attempt the
election of Colonel Burr, and to persist in the attempt as long as
there should appear to be any rational prospect of success; but to
relinquish it, and acquiesce in the election of Mr. Jefferson, from the
moment when that prospect should be at an end. All those mem-
bers who had favoured the election of Mr. Adams and General
Pinckney, were known to concur in preferring Colonel Burr to Mr.
Jefferson. Their number was sufficient to divide the votes and pre-
vent an election. In this state of things, a few votes from those who
had supported Mr. Jefferson and Colonel Burr, would turn the scale
in favour of the latter, and make him President ; and it was probable
that motives of personal attachment or political preference, would
obtain for him those votes. Four, or even three, would have been

In choosing a President the House of Representatives votes by
ballot, and each state has a vote. One member may give the vote
of a state, if there be no more present; and to make a choice there
must be a majority of all the states. As their number at present is
sixteen, it requires nine to make a choice. The members from each
state vote by themselves, to determine the vote of their state; and
when it is ascertained, one of them, by the appointment of the rest,
puts it into the ballot-box.

As soon as the votes were counted in presence of both Houses, and
the result declared by the Vice-President, the House of Representa-
tives returned to its own chamber, and proceded to ballot with closed
doors ; having previously resolved not to do any other business, or to
adjourn, till a choice should be made. On the first ballot it appeared
that 8 states were for Mr. Jefferson, 6 for Colonel Burr, and 2
divided. Consequently neither candidate had a majority, and no
choice was made. The ballot was then repeated from time to time
during the whole night, without any change. In the morning the
members, by general consent, but without a regular adjournment,
separated till next day, to take rest and refreshment. The next day,
the ballot was repeated several times, but no change appeared, and
they again separated. This state of things continued for several
days; the members separating by consent, but without an adjourn-
ment, and meeting again at a certain hour, to repeat the ballot. The
utmost harmony and good humour prevailed during the whole period ;
and especially throughout the anxious scene of the first night. Out
of doors too, the utmost order and quiet was observed.

The 8 states which voted for Mr. Jefferson, are known to have been
New- York, New-Jersey, Pennsylvania, Virginia, North-Carolina,
New-York, New-Jersey, Pennsylvania, Virginia, North-Carolina,
Georgia, Tennessee, and Kentucky. Those for Colonel Burr were New-


Hampshire, Massachusetts, Rhode-Island, Connecticut, Delaware, and
South-Carolina. The divided states were Vermont and Maryland.
The individual members are said to have voted as follows: New-
Hampshire 6, all for Colonel Burr. Massachusetts 14; 11 for Col-
onel Burr, and 3 for Mr. Jefferson. Rhode-Island 2, both for
Colonel Burr. Connecticut 7, all for Colonel Burr. Vermont 2;
1 for Mr. Jefferson, and 1 for Colonel Burr. New- York 10; G for
Mr. Jefferson, 4 for Colonel Burr. New- Jersey 5 ; 3 for Mr. Jeffer-
son, 2 for Colonel Burr. Pennsylvania 13; 9 for Mr. Jefferson, 4
for Colonel Burr. Delaware 1, for Colonel Burr. Maryland 8;
4 for Mr. Jefferson, 4 for Colonel Burr. Virginia 19; 14 for Mr.
Jefferson, 5 for Colonel Burr. North-Carolina 10; 6 for Mr. Jeffer-
son, 4 for Colonel Burr. South-Carolina 6; 4 for Colonel Burr,
1 for Mr. Jefferson, 1 sick. Georgia 1, for Mr. Jefferson (the other
member from that state died before the election.) Tennessee 1, for
Mr. Jefferson. Kentucl^ 2, for Mr. Jefferson. From this it ap-
pears that out of 106 members, which is the whole number of the
House of Representatives, 104 voted ; and that 53 of those votes were
for Colonel Burr: who therefore had a majority by heads, though not
by states. I was one of those who voted for Colonel Burr.

It being at length ascertained, after 35 trials, and five days con-
sumed in balloting, that the supporters of Mr. Jefferson had come to
a determination, which was known to have been solemnly made, and
was publicly avowed, to risk the constitution and the union rather
than give him up, and that no probability existed of a change in any
of them ; those who had voted for Colonel Burr, and who preferred
the constitution and the peace of the country to their own wishes,
thought it time to preserve those great and invaluable objects, by
suffering Mr. Jefferson to be chosen: conceiving that union, even
under him, was better than a separation of the states; and that the
government might survive a bad or weak administration, but must
be greatly endangered, if not certainly destroyed, by being left with-
out a head. They therefore gave up their opposition. Part of them
declined voting, and part continued to vote for Colonel Burr. Thus
on the thirty-sixth ballot there appeared 10 states for Mr. Jefferson,
4 for Colonel Burr, and 2 declined voting. The members from Mary-
land and Vermont who had voted for Colonel Burr declined voting,
and suffered the votes of those two states to be given for Mr. Jeffer-
son; which made up the ten. The 4 New England states continued
to vote for Colonel Burr ; and South Carolina and Delaware declined

Thus ended the contest, and Mr. Jefferson was constitutionally
chosen and declared President. I was one of the last to yield to his
election, because I thought him less fit for the office than the other

LETTERS OF E. G. HARPER, 18*01. 137

candidate : Viecause he is President, I shall be one of the last to oppose,
thwart, or embarras his administration.

This statement having run into greater length than I expected, I
shall here close the present letter, and reserve for a subsequent com-
munication the remaining parts of the subject.

Harper to his Constituents.

Washington, February 2Gth^ 1801.

The occurrence, my dear Sir, which I consider as next in impor-
tance, is the treaty with France; which was signed at Paris on the
30th of September last, and arrived here Some time in November.
It is almost wholly of a commercial nature, and places our trade with
that country on a footing as eligible as that whereon it stands with
other nations.

The ratification of this treaty met with some difficulties in the Sen-
ate, but was at length agreed to, under two conditions which are not
considered as being of a nature to create objection on the part of
France. The first is to expunge an article, which we supposed to
imply that we did not intend ever to stipulate; and the second, to
limit the duration of the treaty to eight years: a precaution usual
in commercial treaties, and particularly necessary in the present
varying and uncertain state of the world. Some further objections,
which I thought well founded, were made to the treaty ; but as it has
been accepted by the constitutional authority, no good can result
from stating them.^

Our commercial treaty with Prussia has also been renewed.^ It
is important not only as respects our trade with that nation, but
also with the north of Germany : an extensive and increasing branch
of our commerce.

The most important act of Congress which has passed in the pres-
ent session, is that for regulating the courts of the United States.^
According to the former plan, there was one supreme court, consist-
ing of six judges, and a circuit court in each state. These circuit
courts were held by the judges of the supreme court, one of w^hom at-
tended at each of them for that purpose ; and as they were held twice
a year, the six judges were obliged, in the performance of this duty, to
travel perpetually from one end of the continent to the other. In
such long and frequent journies, accidents would happen to prevent
their attendance ; and then no court could be held. Hence a great delay
of business, and much loss and inconvenience to the suitors jurors and

1 See pp. 120, 121, 122.

2 The Prussian treaty of amity and commerce of Sept. 10, 1785, expired in 1796 ; the
renewal was proclaimed Nov. 4, 1800.

= Approved Feb. 13, 1801; c. 4.


witnesses. As the supreme court, moreover, is the high court of
appeals, and the last resort, in all cases subject to the judicial author-
ity of the United States, which includes matters of the utmost impor-
tance both to the nation and individuals; it is necessary to have in
that court men of great learning and experience, and of that weight
of character which is rarely acquired till an advanced age. Such
men must ever be unable to support, for any length of time, journies
of such frequency and extent as those which the former system
required. If qualified at a middle age for the duties of the office, and
able to support its fatigues, they must gradually become unequal to
the latter, in proportion as they become moi'e fit for the former : and
at length must be driven from the bench, at the time when they had
become its greatest ornaments.

The invariable tendency of siich a system, must have been to de-
grade, ultimately, the supreme tribunal of the nation, by filling it
either with young men of little character and experience, or with
needy old men who would hold their seats for the sake of bread.
Those seats must have been gradually abandoned, by men who could
live without them, and had attained the eminence and age necessary
for filling them as they ought to be filled. Every sound politician
will feel the necessity of changing a system, which must have pro-
duced such effects on the administration of justice.

The new system relieves the judges from this intolerable labour,
reduces their number to five, and assigns them no other duty but
that of holding the supreme court at the seat of government. The
post will now become so eligible, as to be accepted and retained by
the most eminent characters in the nation; which will gradually
render the supreme court of the United States what it ought to be,
and what surely the pride of every American must induce him to
wish that it may be, one of the first tribunals in the world, for the
ability, learning and dignity of its members.

The former system was not only thus inconvenient in practice, but
wholly inadequate to the proper administration of justice. The cir-
cuit courts of the United States have cognizance, not only of civil
actions and suits to a great extent and value, but of all offences
against the laws of the United States. These courts therefore are
of great importance, and indeed of absolute necessity, to the support
of the government; which can never be respected or obeyed, unless
it holds in its own hands the means of punishing infractions of its

There are two states, Tennessee and Kentucky, in which, on ac-
count of their very remote situation, no circuit courts could be held ;
it being impossible for the judges of the supreme court to go into
them for that purpose. The important duties of the circuit court in
those states, were, therefore, delegated, of necessity, to other courts.

LETTERS OF E. G. HARPER, 1801. 139

instituted for a different purpose, and very unfit, from the mode of
their construction, for the discharge of those duties. Tlie district
of Maine, a very important part of the union, was in tlie same pre-
dicament. New settlements and states are perpetually forming in
our frontier territories; and they must all have been in the same
situation with Maine, Kentucky and Tennessee. They must have
been left destitute of circuit courts. In several of the states where
circuit courts were actually held, their great extent rendered one
court wholly inadequate to the business. In Virginia, Pennsylvania
and New York, for instance, in each of which there was but one
circuit court, persons who were obliged to attend it, as parties, jurors
and witnesses, were under the necessity of travelling, in very many
cases, two, three, and even four hundred miles. The inconvenience,
expence and loss of time hence resulting, were so great, as to deprive
individuals of the benefit of the court, in many cases where it might
be highly important to them; and, in a great degree, to deprive the
government of its aid in executing the laws : for persons would sel-
dom inform against offenders, when the information was to lay them
under the necessity of attending as witnesses, at such a distance.

These various inconveniences it was impossible to remove by the
aid of the old system; for the judges of the supreme court could
hardly go through the task of holding the circuit courts already
established. Any increase of their duty was, therefore, out of the

Nothing remained but to adopt a new system, whose principles
might be suitable to the present state of the country, and capable of
extension according to its future circumstances. It was therefore
provided by the new bill, that such of the states as, by their great
extent or peculiar situation, were exposed to the greatest incon-
venience from having but one court, should be divided into two dis-
tricts each; that each of the remaining states should constitute one
THistrict; that all these districts should be classed into circuits, con-
sisting each of three or four districts ; and that in each circuit there
should be three circuit judges, one being commissioned as chief
judge, whose duty it should be to hold a circuit court twice a year, in
and for each of the districts composing the circuit. The states
divided were Massachusetts, New York, Pennsylvania, Virginia, and
Tennessee : Massachusetts partly on account of its extent, and partly
of the detached situation of the district of Maine, which belongs to
it ; New York, Pennsylvania and Virginia on account of their magni-
tude and extent of territory; and Tennessee from the detached situa-
tion of its two principal settlements, which lie on different sides of
a wide and uninhabited range of mountains. The territories of the
United States beyond the Ohio, which do not belong to any state,
were also erected into a district, called the district of Ohio; and the

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