Whereas: Stories from the People’s House

The Apportionment Act of 1842: Legal, When Convenient

Throughout his 17-year career in the House, Representative John Quincy Adams of Massachusetts existed in a state of almost perpetual irritation. From his first election in 1830 until his death in 1848, not a day seemed to pass in which the former President was not in some way disappointed or annoyed or frustrated by his colleagues in Congress or his successors in the White House. Whether it was debate over tariff rates or his fight against slavery, the House’s daily business routinely left Adams exasperated but nevertheless resolute that he was right and everyone else was wrong.

John Quincy Adams/tiles/non-collection/1/10-13-JQA-2002_47.xml Collection of the U.S. House of Representatives
About this object
The sixth United States President remains the only chief executive to serve in the U.S. House of Representatives after his term as President. Called “Old Man Eloquent” for his lengthy speeches against the practice of slavery, John Quincy Adams rarely shirked from making his beliefs known in the Well of the House.
Adams was in no mood then, when on June 25, 1842, a curious decision by President John Tyler stretched Adams’s already short patience to its breaking point. After failing to convince the House to take up his bill providing back payments to the American victims of French privateers, Adams sat in disbelief as John Tyler Jr., the President’s son and aide, delivered a message to the House from his father explaining his decision to begrudgingly sign the Apportionment Act of 1842.

Although Adams had opposed the Apportionment Act—which, remarkably, shrank the size of the House, and mandated the use of single-Member districts during congressional elections—it was not Tyler’s decision to sign the landmark bill that enraged Adams. What left Adams aghast was that Tyler included a personal note with the legislation, which he filed at the State Department, clarifying that he had “deep and strong doubts” about the legality of portions of the law.

In the modern era, bill signing statements are common and often carefully choreographed. But that was not the case before the Civil War, and there was little precedent for Tyler’s message. Adams, who had served as President from 1825 to 1829, believed from his own experience that Presidents had only two options when bills landed on their desk: a signature or a veto. With Tyler’s signing statement, Adams accused the President of issuing “a veto under a mask,” and denounced it as an unsanctioned power grab.

For Adams, the threat created by Tyler’s message went beyond the decision to break with tradition. Tyler’s opposition to the Apportionment Act threatened to undermine the law itself. The debate in Congress over the act had been brutal and foes of the bill remained steadfast in their opposition. If the President could openly criticize the act, would opponents simply ignore the law and hold elections under the old system? Would Representatives elected under that old system be considered legitimate? For 18 months, from Tyler’s statement in the summer of 1842 to the opening of the 28th Congress (1843–1845) in December 1843, the question lingered: Was the Apportionment Act law or merely a suggestion?

“His Accidency”

John Tyler had been an odd choice to join William Henry Harrison’s 1840 Whig presidential ticket. Chosen in part to provide geographic balance to the ticket, Tyler was a slaveholding Virginia patrician whose detractors viewed him as an unabashed “renegade Democrat.” Most Whigs, however, seemed not to care.

In 1840, amid a prolonged economic recession, Whigs rode a wave of public disenchantment with Democrats to win the White House and flip both chambers of Congress. But then, only one month into his term, Harrison died. On April 6, 1841, Tyler, a political chameleon, ascended to the presidency at the dawn of the Whig moment.

President John Tyler/tiles/non-collection/1/10-13-Tyler-LoC.xml Image courtesy of the Library of Congress A political chameleon, President John Tyler previously served in the U.S. House and Senate as, respectively, a Democratic Republican, Jacksonian, and Anti-Jacksonian before joining the Whig ticket as William Henry Harrison's Vice President. Following Harrison's death, Tyler governed very much along Democratic principles to the frustration of his nominal party.
Tyler quickly alienated Whigs in Congress. He vetoed both the formation of a new national bank and a proposal to create a Fiscal Corporation of the United States, causing the cabinet he inherited from Harrison to resign en masse.

It did not help that as the first Vice President to replace a deceased sitting President, Tyler governed under a cloud of perceived illegitimacy. John Quincy Adams and other critics called him an “acting President” and “His Accidency,” and sneered at his eagerness to grasp the chief executive’s reins. By the summer of 1842, some Whigs openly considered impeaching and removing Tyler from office.

Despite Tyler’s itchy veto finger, when the Whig’s Apportionment Act arrived on his desk early in the summer of 1842, the President found himself backed into a corner. During the previous six months, debate in the House over a new apportionment system had roiled an already volatile Congress. The 1840 Census had determined that the country’s population stood at more than 17 million, an addition of more than four million people from the previous decade. In years past, such growth had led to an accompanying growth in the size of the House, from 65 Members in 1790 to more than 200 by 1830. But Congress opted for something different in 1842. After months of contentious negotiations, the House decided to shrink its size: from 242 seats down to 223. Congress also mandated the use of single districts, doing away with general-ticket voting in which voters selected a slate of At-Large House candidates who were usually all from the same party.

According to Democratic Representative James Butler Bowlin of Missouri, Tyler disagreed with the bill but could not veto it because it was too close to the upcoming fall elections and states needed to begin implementing the law’s provisions. Already the political furor over the bill had forced multiple states to delay elections until 1843.

So rather than veto it outright, Tyler attached a statement in which he questioned the constitutionality of the single-district mandate. Because each state established its own election procedures, Tyler doubted Congress could “command the States to make new regulations or alter existing regulations.” It was a state’s prerogative whether it wanted to use single-district or general-ticket voting systems.

Tyler was not the first President to attach written misgivings about a bill to his signature. James Monroe and Andrew Jackson had both done so. But neither of their earlier statements had dismissed the legitimacy of the law itself.

Henry Wise/tiles/non-collection/1/10-13-Henry-Wise-LoC.xml Image courtesy of the Library of Congress In late 1842, Virginia Representative Henry Wise nursed a grudge against Adams for his evasion of censure months earlier while forcing debate on slavery in violation of the infamous “Gag Rule.”

President v. President

Few Members were as concerned about Tyler’s statement as John Quincy Adams. Four days after receiving Tyler’s message, the House approved a measure introduced by Adams to create a select committee to investigate the signing statement but filled it with allies of the Tyler administration. Adams complained bitterly that his rival, Henry Wise of Virginia, a Tyler-supporting Whig, had “browbeaten” Speaker John White into appointing “Tylerites” to the select committee. As a result, Adams was often rebuffed by the other members; they challenged his power to retrieve documents from the State Department or disregarded committee meetings altogether.

After almost a month, Adams delivered his report on Tyler’s signing statement on July 16. Adams objected to both the President’s message and its precedent. “No power is given [the President] to alter, to amend, to comment, or to assign reasons for the performance of his duty,” Adams insisted. “His reasons form no part of the bill, and no instance has occurred, under the Constitution of the United States, of a bill to which the President has objected, becoming a law.” The former President worried that the current President’s signing statement would provide legal reasoning for states to flout the law entirely. At the end of the report Adams offered legislation insisting “this House do hereby solemnly protest against the said act of the President, and against its ever being repeated or adduced as a precedent hereafter.”

The House printed Adams’s report but ignored his resolution.

Industrial and Political Map of Pennsylvania ca. 1840/tiles/non-collection/1/10-13-PA-Map-LOC.xml Image courtesy of the Library of Congress This industrial and political map of Pennsylvania dates to the 1840s and displays its Congressional districts, a practice the Apportionment Act of 1842 encouraged nationwide in place of At-Large delegations elected by general ticket.

The Election of 1842/1843

The Whig Party of the 27th Congress (1841–1843) entered the protracted 1842 and 1843 midterm elections with a comfortable majority of more than 40 seats in the House. But by the time the 28th Congress convened in December 1843, Whigs had lost 70 House seats, and only staved off further catastrophe by maintaining a small majority in the Senate.

Daniel Dewey Barnard/tiles/non-collection/1/10-13-Barnard-LoC.xml Image courtesy of the Library of Congress New York Representative Daniel Dewey Barnard rallied fellow Whigs to oppose the seating of delegations elected by general ticket voting. His efforts proved unsuccessful in the face of a sizable Democratic majority.
Moreover, the confusion and uncertainty over America’s electoral system had remained and the midterm elections realized one of Adams’s primary worries. Georgia, Mississippi, Missouri, and New Hampshire had, in fact, ignored the single-district provision of the new Apportionment Act, and sent At-Large delegations to Congress elected on general tickets. In Georgia, Whig candidates received 48.5 percent of the vote, but won no seats. All four states elected entirely Democratic slates.

During the nineteenth century, new Congresses typically began in December of every odd year, often a full 13 months after many Members were elected. So it was that in late 1843, ahead of the start of the 28th Congress, New York Representative Daniel Dewey Barnard collected the signatures of 50 Whig Members-elect for a petition declaring fraudulent any Speaker chosen in part by Members elected by general ticket.

The petitioners approached a morose Adams, who, in addition to lamenting the “inauspicious composition of the House,” believed the issue went beyond the Speakership. Should the 22 combined Members-elect from Georgia (8), Mississippi (5), Missouri (5), and New Hampshire (4) even be seated? “The question of the admission of the members from four States, elected by general ticket, must arise at the first movement for the organization of the House,” Adams wrote in his diary, “but so overwhelming is the majority of the Democracy in the House that the Whigs are much perplexed to determine how to raise the question.” Adams readied himself for another fight. In a moment of crystalline self-awareness, he confessed that “the most imminent of my dangers” was not the procedural uncertainty surrounding the issue but was instead “the loss of my temper” during the upcoming debate on the legitimacy of the 28th Congress.

The Majority’s Rule

Clerk of the House Matthew St. Clair Clarke had barely begun reading the roll on Opening Day of the new Congress, when John Campbell, a South Carolina Democrat who supported the Apportionment Act, rose with a question for the New Hampshire delegation. Amid cries for “Order!” Campbell pointed to the single-district clause of the Apportionment Act and asked the Members-elect whether they had been chosen in accordance with the law. Clarke gamely attempted to continue the roll until Campbell asserted himself once more to note the New Hampshire delegation’s muted response. He implored the House to address the situation with “a spirit of moderation, and with a determination to support the laws and the Constitution of the country.”

After Clarke finished, Barnard leapt to offer his petition preventing the Georgia, New Hampshire, Mississippi, and Missouri delegations from casting decisive votes for Speaker. Democrats objected, and Henry Wise (now a Democrat) stopped Barnard’s effort by preventing his petition from being read into the House’s official record. As Barnard nursed his wounds he lamented “the utter illegality and unconstitutionality of proceeding to the election of a Speaker with the aid of” Members elected from states which ignored the requirements set forth by the Apportionment Act of 1842.

But Whigs refused to drop the issue, and on December 13, 1843, Kentucky Whig Garrett Davis proposed that the Committee on Elections investigate the seating of the general-ticket delegations.

Stephen Douglas/tiles/non-collection/1/10-13-Douglas-LoC.xml Image courtesy of the Library of Congress Though most famous for the Lincoln-Douglas debates in 1858, Illinois Representative Stephen Douglas first entered the U.S. House in 1843 as an oratorical firebrand fresh off the state supreme court.
The committee tasked first-term Democratic Representative Stephen Douglas of Illinois to write for the majority, while Davis presented the minority’s views. Douglas minced no words: he declared the Apportionment Act unconstitutional and concluded that Congress’s refusal to explicitly instruct states how to draw and enforce the single-Member districts created untenable uncertainty. Congress, therefore, had no legal justification to impose such election requirements upon the states. Writing for the minority, Davis argued that if states could simply bypass an election law they did not support, what other federal statutes would they feel entitled to nullify?

When the committee’s report reached the House Floor, the mood in the chamber became volcanic. Opponents of the apportionment law—especially the Georgia, New Hampshire, Mississippi, and Missouri delegations—warned that denying the representation of four states was tantamount to tyranny. On February 14, 1844, Douglas commandeered the floor for a thunderous conclusion to debate. Adams was horrified by the young Illinois attorney’s vulgar and histrionic display. “His face was convulsed, his gesticulation frantic, and he lashed himself into such a heat that if his body had been made of combustible matter it would have burnt out. In the midst of his roaring, to save himself from choking, he stripped off and cast away his cravat, unbuttoned his waistcoat, and had the air and aspect of a half-naked pugilist.”

Douglas’s antics aside, Democrats won the day because they held the majority and Whigs did not. The Founders had designed the House as a deliberative body where a simple majority of votes determined an issue. Moreover, the Constitution gives each chamber of Congress the power to “be the Judge of the Elections, Returns and Qualifications of its own Members.” In 1844, House Democrats simply combined those two powers to seat the Missouri, New Hampshire, Mississippi, and Georgia delegations, quickly approving a resolution declaring that each Member, including those from general-ticket states, had been “elected in conformity with the constitution.” Nearly every Whig abstained from the vote. With their Members sworn in, Democrats sidestepped the more incendiary part of Douglas’s report that declared the single-district clause of the Apportionment Act null and void.

A Worrisome Precedent

Although the issues surrounding the Apportionment Act had been settled temporarily, they continued to haunt the next few election cycles.

By the 1846 midterm elections, however, the political calculus had changed. With Democrat James K. Polk in the White House, many expected the Whigs to capture the House majority and prevent Democrats elected on general tickets from taking their seats in the 30th Congress (1847–1849). To head off any fight to seat their delegations, Mississippi, Missouri, and New Hampshire did away with At-Large voting and adopted the single-Member district system (Georgia had switched to single districts in 1844). It would be more than a century before Congress swept away the final remnants of general-ticket voting by outlawing At-Large districts for states with more than one Representative.

As John Quincy Adams had feared, the ramifications of Tyler’s signing statement long outlived them both. Today, presidential signing statements detailing objections to or offering interpretations of certain laws are common.

But Adams also saw the fight over the Apportionment Act as a mere prelude to a broader conflict over America’s original sin. The day before the 28th Congress convened in 1843, Adams wrote in his diary “The slavery questions are, in my estimation, more important than that of the admission of general ticket members, and the aspect of the slavery questions is appalling.” If enough people finally questioned the legality and legitimacy of slavery, Adams wondered, what would supporters of the system do to preserve power? In 1861, 13 years after Adams died, America had its answer.

This is the second part in a two-part series. The first part discussed the Congressional debate on shrinking the House and ending the general ticket system.

Sources: House Journal, 27th Cong, 2nd sess. (2 July 1842): 1045–1047; Congressional Globe, Appendix, 28th Cong., 1st sess. (13 February 1844): 188; Congressional Globe, House, 27th Cong., 2nd sess. (25 June 1842): 688–689; Congressional Globe, House, 28th Cong. 1st sess. (4 December 1843): 2-3; Congressional Globe, House, 28th Cong. 1st sess. (14 February 1844): 278-279; Select Committee, Apportionment Bill, 27th Cong., 2nd sess., H. Rept. 909 (1842); Committee on Elections, Relative to the Right of Members to their Seats in the House of Representatives, 28th Cong., 1st sess., H. Rept. 60 (1844); For the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting, Public Law 90-196, 55 Stat. 761 (1967); Whig Standard (Washington, DC), 2 December 1843; John Quincy Adams, Memoirs of John Quincy Adams, vol. 11, ed. Charles Francis Adams (Philadelphia: J.B. Lippincott & Co., 1876); Edward P. Crapol, John Tyler: The Accidental President (Chapel Hill: University of North Carolina Press, 2006); Jay K. Dow, Electing the House: The Adoption and Performance of the US Single-Member District Electoral System (Lawrence, KS: University Press of Kansas, 2017); Michael J. Dubin, U.S. Congressional Elections, 1788–1997 (Jefferson, NC: McFarland & Company, Inc., Publishers, 1998); Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (Ann Arbor, Michigan: University of Michigan Press: 2013); Michael F. Holt, The Rise and Fall of the American Whig Party (Oxford: Oxford University Press, 1999); Fred Kaplan, John Quincy Adams: American Visionary (New York: HarperCollins Publishers, 2014); James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. 5 (New York: Bureau of National Literature, 1908); Martin H. Quitt, “Congressional (Partisan) Constitutionalism: The Apportionment Act Debates of 1842 and 1844,” Journal of the Early Republic 28 (Winter, 2008); Christopher S. Yoo, “Presidential Signing Statements: A New Perspective,” Faculty Scholarship at Penn Law (2016); United States Senate, “Vetoes, 1789 to Present,” accessed 15 June 2020, https://www.senate.gov/reference/Legislation/Vetoes/Presidents/TylerJ.pdf.