fications, &c. of our members, it then directed an outh, but not the time. As a question of mere right, the whole matter was under our jurisdiction, but as to the expediency of exercising our right and power before full organization, that was a question of expediency merely.

Mr. BARNARD observed that he had listened with the most profound attention to the discussion which had been going on for the last two or three days, without attempting to take any part in it. He had not ventured to express his own views on the subject, nor had he even ventured to make up a final opinion on it before he had heard, and attentively weighed, the opinions of other gentlemen. But, having heard the opinions of others, he was now prepared to make known the conclusions to which his mind had arrived, and he was prepared to act as a member of Congress

House of Representatives according to law and according to usage-not according to usage merely, but also in accordance with parliamentary law. By the rule of convenience merely, he proceeded to call over the roll by States, beginning with the members from the State of Maine, and went on till he came to the State of New Jersey, when his progress was arrested by this means. After the CLERK had called as far as one of the Representatives from New Jersey, he proposed to the House to pass over the names of the remaining members from that State until he had called the rest of the roll over; and for what purpose? Why, sir, as I think was sufficiently explained by the CLERK, to enable us to form a quorum of undisputed members. Now why, I ask, (said Mr. B.) shall we pass by the State of New Jersey with that object in view? And, as he understood the resolution intro

the House, he would now proceed to make known his views on the subject before them, and if they should seem as reasonable to others as they appeared to be to him, he indulged the hope that some mode of relieving the House from the difficulty in which it would seem to be involved, would be adopted. He had but one word to say with regard to the CLERK of that House, and the position he was placed in. That functionary was elected by the last House of Representatives, which expired as an organized body on the 3d of March last. From that day, its being as an organized legislative body ceased; it was dissolved; it was resolved into its original elements; and those elements could never be gathered and compacted again, so as to form a body in form and shape as that was. But if the existence of that body ceased with the termination of the period for which it was created, it was not the same case with the existence of the CLERK. No, sir; that functionary had something more of life in him. He was recognised by the Contitution and the law; an officer of the law, on whom the law imposed certain duties to be performed, as well after the existence of the House as an ors anized body, as while it was in being. That functionary was not only CLERK of the last House of Representatives, but he was still CLERK of this, and would continue so until his successor should be appointed. It was a cardinal principle of the common law, that the public interests shall never be permitted to suffer for want of an incumbent to fill important offices; and in all such cases, by the common law of the country from which we derive most of our institutions, as well the common as the parliamentary law, every functionary holds over-to use a legal phrase till his successor be appointed. Now it was in analogy to the rule of the common law, that the parliamentary rule was adopted that the CLERK of the House of Commons holds over until his successor is appointed. This was the settled parliamentary rule in England as well as in this country. He regarded, therefore, the CLERK, in assuming his seat and calling the House to order, as having done nothing more than he was fully warranted in doing both by law and usage; and further, he regarded the CLERK, in the position he thus occupies, as having his powers necessarily enlarged in consequence of the want of a Speaker: to enlarged that he is competent to enrol members' names, call over the names of members, and to put any question which the House can lawfully decide; to put questions of adjournment, and questions on the election of Speaker, and in short any other questions which the House, in its partially organized state of existence, can entertain. So much for the powers of the CLERK. Now as to his du

les.

We have assembled here, a large number of gentlemen claiming the rights and privileges which belong to representatives of the people in Congress. We have assembled here on the day appointed by law for the meeting of the Twenty-sixth Congress; and we have assembled in this hall, which is the place appointed for our meeting. Every man who has taken his seat on this floor claims to have done so with the character, privileges, and rights of a Representative of the Congress of the United States. Now, having thus assembled, the CLERK assumed his appropriate duties. He, at the proper hour, commenced calling over the roll of the

WISE,] it was precisely in accordance and in affirmance of the position assumed by the CLERK. He would ask gentlemen to pause and reflect if this did not assume certain important things; if it did not assume that questions might arise in the course of the organization of this House, for which it might be necessary to have a quorum of undisputed members to vote?

Now he (Mr. B.) assumed, and he asked gentlemen to listen to him while he explained the grounds of his assumption, that no question had arisen, which the House was called upon to pass, and that no question could arise which it was competent for it to decide. If this assumption was correct, he would ask why were they arrested in the midst of the organization of the House? The CLERK had told them that he wanted a quorum, and gentlemen on that floor had told them the same thing. Why (asked Mr. B.) do you want a quorum? For what purpose? What question was before the House, which it was called on to pass in review; or what question was likely to come before it which it was competent for it to decide? It had been said, in the first place, that when they came to the State of New Jersey, there were certain returns, or, more properly speaking, commissions, which the House would be called upon to review. If so, then was he mistaken in the judg ment he had formed. Did not the CLERK present to the House one of the members from New Jersey, holding a commission precisely similar to those held by the five gentlemen he refused to cali?

Had any gentleman on that floor doubted the validity or authenticity of these commissions? Was it not conceded on all hands that these com. missions were in the proper form? Were they not in conformity with the laws of New Jersey both as to form and substance? And what question, he asked, in regard to these commissions, was to be passed on by the House? Why, sir, (said Mr. B) an honorable member, at an early stage of the debate, called for the reading of the law of New Jersey on the subject of elections. Why read that law? Certainly not for the information of the honorable gentleman who called for it, for he was well acquainted with the law. Certainly not for the information of any gentleman present, for no man had ventured to state that these commissions were not in strict conformity with the law, letter for letter, word for word, and comma for comma. He begged gentlemen to reflect on these things. Then (said Mr. B.) we want no quorum of ascertained members for the purpose of passing upon the validity of these commissions. They were admitted to be what the law required, and that was sufficient, so far as they were concerned. But they had been informed by the CLERK that he was in possession of certain other papers, showing that certain persons other than the five gentlemen who held the commissions of the Governor of New Jersey, claimed seats in the House of Representatives as Representatives from the State of New Jersey. Now, with regard to these papers, whatever they might be, I put (said Mr. B.) this question solemnly to the House-"Is there any question in relation to these papers to be passed upon by the House?" Had any gentleman stated that these papers were in conformity with the laws of New Jersey? The House could admit but six members from New Jersey, and these had presented them

selves with the regular legal commissions from the constituted authorities of the State, which lie on your table. Were there any more? The CLERK had intimated no such thing. No gentleman had stated that he regarded the other set of papers as the regular legal evidence of membership, according to the laws of New Jersey. Then what ques. tion was there here to pass on? He admitted that it would be competent for the House to entertain a question between two conflicting returns from the same State, but he maintained that there were no conflicting returns from the State of New Jersey; for the papers presented by the gentlemen contesting the seats of the gentlemen bearing the Governor's commission were not returns, in the proper sense of the term. He would ask either of the honorable gentlemen who appear. ed here, bringing with them these papers, whether they had ever, for a moment, from the time of their receiving them to this, regarded themselves as existing members of Congress from the State of New Jersey? He would ask them if they had claimed privilege from arrest in virtue of having these papers? If they had done so, then he, Mr. B. had only to say to those gentlemen that they had claimed a character, rights, and privileges which belonged no more to them than to any other citizen of the United States. But could any man doubt for a moment that, with the commissions of the Governor of New Jersey on the CLERK's table, those gentlemen holding them could claim all the rights and privileges which the Constitution gave to members of Congress? Suppose either of these gentlemen had been arrested on his way to the Capitol, did any man doubt that, with the commission of the Governor of New Jersey, attested by the broad seal of the State in his hands, and with the provision of the Constitution requiring that full faith and credit should be given to the public acts, records, and judicial proceedings of every State of this Union, his claims to be considered as a member of Congress would be respected by every court of justice in the Union? Could any question be raised here as to the regularity of these returns, whether they are, or are not, conformable to the laws of New Jersey? Was there a man who had any doubts on this point? The question did not arise on the regularity of either of the conflicting returns; for in the one case the regularity was admitted by universal consent, and in the other case the irregularity was conceded also by universal

consent.

He, Mr. B. did not claim to have much experience on matters of Government or matters of law; but it had struck him with much surprise that gentlemen of legislative experience, should contend that this House, previous to its organization, could undertake to decide how the popular vote of New Jersey was given. The House in its present partially organized State, was incompetent to entertain any question of the kind-nor could it act on the subject at all any further than to ascertain who held the regular and legal commissions from the constituted authorities of the State. The House could not appoint its officers, its Clerk, Sergeant-at-Arms, and door-keepers, nor elect its committees, unt:l after its organization by the election of a Speaker. Neither could it do any act in its judicial character. It could not arrest its members for breach of order, nor entertain an impeachment, nor summon wi nesses; and least of all, could it decide in a case of contested election-the most tremendous power it could exercise. He could not see how the committees can be appointed until after the organization. The House would possess no authority to send for witnesses, nor, in short, in any way exercise the judicial power. He would further ask how they would proceed in the case of a contested elec lion. Would it be under oath? Might gentlemen perform a part of their duties under the Constitution, before taking the oath, and the rest afterwards? He would undertake to say that no gentleman would sit and act in the important part of deciding on elections, before taking the oath. Mr. B. here read an act of Congress, which requires that the members shall take the oath before proceeding to business. The law, then, requiring that the Speaker shall administer the oath, it therefore followed that they could not legally proceed to business until after

the election of Speaker. It was with the views he had offered that he was opposed to the course taken by the CLERK, and to the resolution offered by the gentleman from Virginia. He was opposed to both, because there was no question before the House that it was competent to act upon. To his mind, they had nothing now to do with the question as to who were legally entitled to the seats, by virtue of a majority of the popular vote. No such question could be properly entertained at this time, in the partially organized condition of the House. Mr. B. then went on to argue that there was no good and sufficient reasons for passing by the State of New Jersey, in calling the roll. The reasons which had been offered did not exist in fact; for it mattered not whether New Jersey was called first or last, her members who came with the Governor's commission could not be excluded from taking their part in the organization. It was the duty of the CLERK to proceed in calling the roll, and there was ne difficulty in the way to prevent it. Let the CLERK proceed the House waited for him-the Constitution waited for him-the law waited for him. The wheels of Government were arrested by his pause. In the name of God and the Constitution, let him move on.

Mr. COOPER said, he appeared as a Representativefrom the State of Georgia; and without intending any disparagement to those who may have omitted to do as much, he presented in his hand, for the inspection of the members of the Twentysixth Congress, now assembled from the several States, the evidence of that character, which, until now, had been assumed amongst you. It was a commission to which was affixed the great seal of the State of Georgia.

Sir, said Mr. C. I rise for the purpose of making a few statements, on which may arise several questions pertinent to the position of affairs here existing. From these inferences may be drawn by which we may understand what relation the individuals now present bear to each other, and to the country. Ishall be able thereby to show the views I entertain of the powers of this unorganized mass of individuals.

He felt proud to realize, for the first time, the presence around him of the talented, distinguished, and worthy members, of the most august assemblage of legislators known to the world. It is no other than a meeting of the Representatives of the several States, for the purpose of organizing the Twenty-sixth Congress, convened pursuant to a compact of union entered into between the States. That compact was the Constitution.

He said the members of Congress are here. This statement, though doubtless true, was manifest only in part. What now, he asked, is our true condition? The persons present having called to their aid, by authority of precedent and usage, the CLERK of a former Congress, by common consent, agreed to pursue the course heretofore adopted for organization. By that course, the CLERK was required to call the States severally, beginning with Maine, passing thence South and West, so far as he might be fortified with reasons to believe members were present. He had called the States thus in order, asking the several members so called to respond to their names. Thereupon he enrolled the names called to represent each State, until he arrived at New Jersey. He then sounded the name of one member, and enrolled it. Here he suspended the call, making known to those present that five other names were returned by New Jersey. These five, said Mr. C. bear respectively a commission under the great seal of the State, in like manner and in due form with the first, certifying them to be members elect of the Twenty-sixth Congress. But that the CLERK has also in his possession papers purporting to be credentials, or certificates of election, in favor of other five persons, showing them to be the elect of New Jersey. These certificates are signed and sealed, but not by he great seal of the State. The CLERK, finding in himself no authority to decide which shall be called, asks the advice of those present. Thus far, he said it seemed to him, he has pursued a prudent course.

Under these circumstances, sir, (said Mr. C.) various propositions are made in successive order,

on which has obtained a protracted discussion. During its progress, grave and novel as is the attitude we are in, principles the most grave have been advocated or denied.

It appeared to him that the names already called and enrolled, did not constitute a quorum of a House of Representatives.

The embarrassment was apparent to all, and each one in turn repeats the inquiry, What shall be done? The CLERK could not proceed without advice. Less than a quorum could not advise. None but members elect could advise; and the multitude present, not yet called, he said, were not known as members. The CLERK, he contended, could not pass over New Jersey, without the unanimous consent of the individuals present, forasmuch as by unanimous consent it was agreed she should be called in the order she now stands in. Hence would arise continually the question, What could be done?

Amiast the various propositions submitted, there were two into which all the others ultimately would

run.

One was, to pass New Jersey, by allowing her no Representative, because of the contest. The other was, to admit the members certified by the seal of the State, he said, for want of power, at this period, to question the right of those who bear it.

Mr. C. said that, impelled by a sense of duty to the country, and of respect to those he addressed, he felt bound to repeat uo more of what others had urged than was necessary to the presenting fairly what occurred to him as new. He would also endeavor to bear in mind one other good rule, which was to "quit when he had done."

At this stage of proceeding, he held they could not entertain a question as to the right of the five persons from New Jersey, who came with the great seal of the State, accompanied by a certificate in due form.

Mr. C. said, in the argument here, he was almost superseded by the clear and forcible illustrations of the gentleman from Virginia, [Mr. WISE,] followed by those of the gentleman from New York, [Mr. HOFFMAN.] He did not hope to add weight to what they had urged. Hence, having made the statements he designed to make, he proceeded to ask, Who and what they were that now debated this matter? They were not the House of Representatives, because, though placed together in this hall, they did not yet know each other as such, having exhibited no credentials, nor answered to their names. Until that should be done, they were no more a House, as contemplated by the Constitution, than before they left home. "The House of Representatives shall be composed of members chosen," &c. says the Constitution. This imports a placing together of members recognised by each other in some House.

What, then, said Mr. C. are we, sir? We are the persons "chosen" "by the people of the several States." (This he asserted for his colleagues and himself, and presumed of others, for sake of illustration.) They bad come together, he said, in that House, and were inquiring of each other's membership. Before being satisfied, except as to part, they had come to a pause. Was it true, then, that anterior to being known to each other as members, and even before coming here, they were, in fact, members of this Congress, now being "composed" into a House of Representatives? Such, said he, was the fact; otherwise their coming here, or their meeting together, or this ball, had made them members.

If members of Congress, before they arrived here, when and how became they so? Sir, let the Constitution speak, the compact of union, and by it let every Nullifier abide.

The Constitution says, section 4th: "The times, places, and manner of holding elections for Senaiors and Representatives, shall be prescribed in each State by the Legislature thereof." Thus, it appears, the act of the State determines the how and the when a man becomes a member. But how does she make her act known? Here, too, she was left untrammelled, for they dared not inquire into the mode in which she chose to make it known. Whether her letters patent, with her seal affixed, contain the whole fact, or whether by them she

make known that it is properly evinced by certi ficate of a justice of the peace, was immaterial. When she declared she had done an act, and put her seal to the declaration, she had done the most solemn act she could perform. We, said Mr. C. are bound to respect it; so is every earthly power, unless, to some, she had delegated power to call it in question.

Had she delegated such a power; if so, to whom? By the Constitution, section 5, the House of Representatives "shall be the judge of the elections, returns, and qualifications of its own members." This grant of power is to the "House, composed" and formed as before shown, and to none other, and at no other time. Until that tribunal, pointed out by and with her consent and authority, and that of her sister States, was created or "composed," her most solemn declaration was conclusive, touching the election, binding on them for the time, and all the world besides. So true was this, that between sovereign States, a discrediting one State by another is just cause of war. How then should they escape the conclusion? Should they, an unorganized body, not yet characterized before cach other, "members," "elect," "chosen," but not "composed" into a House, before the grant of power is delivered, assume to set aside an act of sovereignty -nay, drive from their presence the sovereignty itself, in the persons of their Representatives? Yes, sir, he said, the sovereignty; because, although he might, before the proper tribunal, be taught there was a fallacy in it all, still, for the present, he must act on the presumption that an act, having such authenticity, did truly transpire. And whilst he conceded the position of the gentleman from Carolina, [Mr. PiCKENS] that the people in a primary assembly might perform acts paramount to the great seal, the laws, and our Constitution, he still maintained, what he thought a Nullifier ought, that in the absence of any act of a primary assembly to the contrary, the expressed will of a people, evinced by the most solemn act of their superior agent, in form and manner directed by them, was a sovereign act, on the plain principle that what one does by an agent he does by himself.

Here, sir, said Mr. C. permit me to pause for a moment to review the relations of those I have met here, whilst I point to the positions occupied by what I understand to be the two great contending parties that divide the politicians of this country. Not for the purpose of denunciation or acrimony, but hoping to excite none on the part of either, and feeling none, I recur to them to enforce what I say. I appeal to the acts and sayings of both to demonstrate that, in this matter, consonant with what one party now says and does, and that which the other of late said and did. There ought to be found no one objecting to the proposition requiring us to recognise, for the present, without question, the members from New Jersey who bear the great seal of the State.

Before doing this, he asked to be allowed to state that, in coming here a Nullifier, and believing the perpetuity of the Union greatly depended on the preservation of that Republican faith, and being identified with the State Rights party from choice, education, and habit, yet knowing no rule but the faith contained in the creed, he was taught to believe he should find here that party he was used to oppose, more nearly professing and acting out his principles than their opponents. On the point here debated, he found, he said, most, if not all the Opposition, especially the gentleman from Virginia and the one from New York, leading in a way that looks as familiar to his eye, as the road to the mill. If, then, the Democratic Republicans, as they are sometimes called, should be found in the same track, for one time they should all harmonize on a ground, at one period or other maintained by each.

To show, sir, said Mr. C. that my views ought to be sustained, and that, on this point, they and I ought not to differ, I beg to read from an authority they will no doubt recognise.

Mr. C. read from the Globe, of July 17th, 1838, from a document, the caption of which is as fol lows:

"At a meeting of Republican members of the

Senate and House of Representatives, held at the Capitol, July 6th, 1838, the Hon. John M. Niles of Connecticut, and the Hon. Charles E. Haynes of Georgia, being chairmen, and the Hon. George M. Keim of Pennsylvania, and the Hon. H. L. Turney of Tennessee, acting as secretaries, the address to the people of the United States was received, and further considered; whereupon, on motion of the Hon. Hiram Gray of New York, it

was

Resolved, That the address be signed and published by the committee who prepared it, in behalf of the Republicau members of Congress."

From that paper I read the following extracts, to wit:

"Hence the different light in which the two parties viewed the character of the system. The Republican party held it to be federative in its character, and formed by the States in their sovereign capacity, and adopted for their mutual security and happiness, while many of their adversaries regarded it as a great National Republic, formed by the American people in the aggregate, to promote the interest of the majority, instead of the several States composing it.

"We adhere to the constitutional doctrines of the Republican party of 1798 9. We adopt the rule of strict construction they maintained. These are the principles upon which we would have our Government administered; and a reference to our views upon the great and agitating topics of the day will, we trust, show that we are disposed to carry these principles into practice by our public

acts."

These are doctrines (said Mr. C.) familiar to us -sound and good. Now, sir, here is a case to apply them. Let us stand to them through evil report as well as good; take hold of them, and looking nor right nor left, let us see what first arises. I now invoke those who have adopted these principles-I affectionately invite them (for I truly feel affection for all who sincerely take hold of such) to arrest this controversy, and by unanimous consent put an end to debate.

This was a union of States, not of the aggregate mass of the whole people of this Union. Therefore New Jersey properly speaks in this case in her organic capacity, and we, at this time,cannot controvert her, or permit it to be done in a way not appointed. We, said Mr. C. hold to the doctrine of "strict construction" of delegated powers. Therefore we, to whom no power is delegated, cannot inquire to to discredit or overrule New Jersey.

But again, sir, continued Mr. C. remembering still that my appeal is to all who hold this doctrine of strict construction, let me here demonstrate what mainly I rose to prove. It is this: that by the power delegated, no judgment can obtain by us now, or the House hereafter, "of the election, return and qualification," &c. of any one not admitted to be a member. There must be something in possession purporting to be an "election" or "return"-some man, professing and acting, presumed or taken to be a member amongst you. You cannot act on nothing-against no one. How can you judge of "elections" where none appear, or of "returns" where none exist. As well might you attempt to take nothing from nothing.

But, in addition to this reason, from the nature of things, there was a still better reason for a strict constructionist, found in the Constitution.

The power to judge was by the Constitution (sec. 5.) given "of the elections and returns and qualifications of its own members." Here, then, the grant by strict construction was given to judge concerning one who is a "member"-not only one who is a member, and so claims to be, but actually is in his seat exercising his rights. Without this, he is no member.

Further still: he must likewise be a member in whom the House claims an interest, an ownership. He must be the House's "own member." Until then, and of any other, you judge without a delegated power.

Do not say that this is unreasonable; not so: it is just what the compact of union contemplates, to wit, that each State should be represented.

Of representatives, "members chosen by the people of the several States," shall the House be "com

posed." So you perceive, without a violation of principle, assuming the object to be to admit the second five, you can only do it by first recognising the first five.

Seeing, therefore, that having consented to adopt a mode now progressing, but interrupted-not to be changed or departed from but by like consentthat your professed principles require you to respect for the time being, what you may think will ultimately be found to be a pretended claim, and that the Opposition are now occupying ground you were wont to assume; then, in the name of the peace, good order and dignity of this assemblage; by the regard you have to the sovereignty of the States; and the interest you feel for the good of the country, withdraw for the time being all opposition to the Jersey members, who, without your admission or denial, are members, and were so before they, you, or I, assembled here, and who can only be ousted by the action of the constituted authority sitting in judgment on these, "its own members."

Unless, said Mr. C. you shall so consent, there is but one mode to get out of the difficulty orderly. That will be to give to the CLERK, by the respective State delegations, that advice which, as a mass, cannot be asked of us; then, according to that advice, let the CLERK withhold one or other set of credentials.

Mr. STANLY, in a few words, was understood to appeal to appeal to his friend from Virginia [Mr. WISE] to withdraw his resolution.

Mr. WISE said he would comply with the request of his friend from North Carolina. Considerable opposition had been made to the resolution, and if it could only pass by general consent, it must share the fate of all the other propositions that had been made, and be lost. Mr. W. said he still adhered to the position he assumed yesterday, that neither was the CLERK the judge of the Representatives from New Jersey, nor was the House. The tribunal was in New Jersey alone. He agreed with the gentleman from Georgia, whose remarks struck him with much force, that they must either agree to let the gentlemen from New Jersey take their seats, or agree on some mode of ejecting thein. Yesterday, said Mr. W. addressing the CLERK, I appealed to you, sir, to recede from your decision, but you have satisfied me that you could not have taken any other course; and that had you not, when in calling the roll you came to New Jersey, referred the case to the House, some member would have objected to your proceeding with the call of that State, and thus we should have been in the same position we now are. I intended to appeal to you yesterday, and ask you if you would establish a precedent which would result in an appeal to physical force, a resort to which all of us would revolt from. But for referring this matter to the House as you have done, you have satisfied me that it was impossible for you to avoid it.

In reference to the resolution he had submitted, Mr. W. said that if he could consent to call witnesses in relation to his conduct on that floor, there were witnesses enough present who well knew how the resolution originated, and that it was far from him to intend to accomplish any party trick, but that his purpose was to carry it out in good faith. He was now willing to compromise the matter, and would take the pledge of any gentleman of the other party-the rest of that party, by their silence, acquiescing in it-that no advantage should be taken of him and his friends, by organizing the House before settling the question as to who should have the seats for New Jersey, and would then agree that the CLERK should go on calling the roll of undisputed members, till a quorum was formed. His resolution, however, was between Scylla and Charybdis. His honorable colleague [Mr. CRAIG] was for going into the merits of the election. Now he protested against going behind the certificates of the Governor of New Jersey, and gave various reasons why it could not be done before the election of a Speaker. Gentlemen on the other side said that they would not be bound by mere technicalities. It was a common habit of some minds to deride technicalities; but truth could not be arrived at without them. What was law, but technicality? Admit that you can go behind the certificates. I

ask, said Mr. W. if it must not be done by legal evidence? And if you have the evidence, that is legal. It was absurd to say that the people of New Jersey have determined against the five gentlemen who have the commission of the Governor, unless you can bring legal evidence to prove it. It was absurd to say that the people had determined in one way or the other, unless you take their will, as expressed by their constituted authorities.

If he was not considered by many present to be a blind partisan, he would appeal to gentlemen on the other side earnestly and affectionately, as the gentleman from Georgia did, to pause and reflect on the position in which they were placed. He would beg of them, by every consideration of patriotism, of good feeling, of magnanimity, and even of convenience, that they would suffer the call of the roll to go on, without excluding the gentlemen from New Jersey who had the usual and regular commissions, and complete the organization of the House, so as to proceed to the despatch of the public business.

Some gentlemen had told him that if his resolution should be adopted, they must go into the merits of the elections from New Jersey; and it also had been suggested that the resolution might be repealed, and not carried out in good faith. His friends appealed to him to withdraw it, and thus pressed on both sides, he felt it necessary to withdraw it.

Before he sat down, he must read, for the information of the House, a precedent which he found in a newspaper, bearing directly on the case before them, and in which the present President of the United States supported the position occupied by him and his friends. Mr. W. here read a case of a contested election decided in the Legislature of New York in the year 1814.

Mr. HUNT made a few observations in relation to the resolution made by him. The discussion on this subject, he said, had been exhausted, and yet, judging from the past, they were as far from settling the difficulty as ever. Without entering into any argument, he would put it to gen. tlemen, whether it was not their duty to devise some mode by which the organization of the House could be effected-some means by which no one party should have an advantage over the other; and he would seriously submit it to gentlemen whether every consideration of patriotism, of good feeling, and of expediency, did not require them to pursue this course.

We are all, said he, desirous of getting out of this difficulty, and he knew no means of accomplishing this object, more effectual than the resolution he had submitted. If any gentleman would offer a proposition more agreeable to the House, and better calculated to effect the object in view, he would give it his cordial support. But, as he thought his proposition was the fairest for all parties that could be offered, he hoped the House would accede to it. Mr. H. then proceeded 10 give his resolution in detail, and concluded by expressing his belief that it would relieve the CLERK of the House from all embarrassment, and enable them to organize, and proceede to the despatch of the public business, without giving either party the advantage over the other.

Mr. UNDERWOOD rose, and made a few sug. gestions, which he hoped would enable the House to get out of the difficulty in which it was involved. He would advert to a clause in the Constitution, which bore directly on that matter. In the first place, it was there provided, that a majority of members shall constitute a quorum for the transaction of business; and, secondly, that a less number than a quorum should have the power to adjourn from day to day, and to compel the attendance of absent members. The first thing, then, they had to do, was to ascertain if a quorum was present; this was usually done by the CLERK calling over the names of members; and when he called the name of a member, and no one objected, there was a tacit acknowledgment by the House that he was a member. The CLERK thus going on with his call, and no one objecting, as in ordinary cases, a quorum was formed, competent for the transaction of business. Now, how did their present condition vary from this state of

A

26TH CONG.........1ST SESS.

BY BLAIR & RIVES.

WEDNESDAY, DECEMBER 11, 1839.

-WEEKLY

VOLUME 8.........No. 2. PRICE $1 PER SESSION.

(Continued from No. 1.)

the case? The CLERK went on calling the roll until he got to the State of New Jersey, and then the stumbling-block was put in the way by himself. Why did he stop when he came to the State of New Jersey? why did he refer this matter to the House? The CLERK here was clearly wrong; he had no right to take the course he did. In the case of Moore and Letcher, the Clerk called the name of Moore, and the objection was raised by a member of the House; an objection which any member had a right to make, but which the Clerk had not. In the cases of Gholson and Claiborne, and of Allen of Kentucky, the objections were also raised by a member of the House, and not by the Clerk. The CLERK, therefore, had departed as well from the usage of the House as from the precedents established in several similar cases. One means of getting out of the difficulty in which they were involved, had been recommended by the gentleman from Virginia; and that was, going on with calling the names of members whose right to seats was undisputed, until a quorum was formed. This course he at present approved of, though he admitted some other proposition might be made that would meet with more general favor. In the hope that some such proposition would be made, he would suggest an adjournment, in order that gentlemen might think over the matter, and be prepared by the morning to adopt some course that would enable them to go on with the organization of the House.

On motion of Mr. UNDERWOOD,
The House adjourned.

IN SENATE,
THURSDAY, December 5, 1839.

The resolutions submitted to the Senate yesterday, coming up for consideration,

Mr. HUBBARD suggested whether there might not be some impropriety in adopting resolutions of inquiry, to which responses might be made before the Message of the President would be received by the Senate. He therefore suggested to his friend from Missouri whether it would not be proper to postpone acting on them until the reception of the Message.

Mr. BENTON expressing his willingness to acquiesce in whatever course the Senate thought proper to take,

On motion of Mr. HUBBARD, they were ordered to lie on the table.

Mr. NORVELL gave notice that, at the earliest day it would be proper to do so, he would ask leave to introduce a bill making appropriations for the completion of certain roads commenced by the United States in the State of Michigan.

Mr. FULTON gave notice that, at the earliest day in which it would be in order to do so, he would ask leave to introduce the following bills:

1. A bill to provide for the defence of the western borders of the States of Louisiana, Missouri, and Arkansas.

2. A bill for the relief of sundry citizens of Arkansas, who lost their improvements in consequence of a treaty between the United States and Choctaw Indians.

3. A bill making appropriations to complete certain military roads in the State of Arkansas.

4. A bill to settle the title to certain tracts of land in the State of Arkansas.

5. A bill to authorize the inhabitants of townships eight north, range thirty-two west, in the State of Arkansas, to enter a section of land in lieu of the sixteenth section in said township, upon condition that the same is surrendered to the United States for military purposes.

6. A bill to revive an act authorizing certain soldiers in the late war to surrender the bounty

lands drawn by them, and to locate others in lieu thereof, and for other purposes.

7. A bill for the relief of Richard T. Banks, of the State of Arkansas.

Mr. CLAY of Ala. gave notice that, at the earliest day in which it would be in order to do so, he would ask leave to introduce the following bills:

1. A bill supplemental to the act, entitled "An act to grant pre-emption rights to settlers on the public lands," approved June 22, 1838.

2. A bill for the benefit of the Selma and Tennessee Railroad Company.

3. A bill to grant to the States and incorporated companies engaged in the construction of roads or canals the right of way through the public lands of the United States.

Mr. BENTON gave notice that, at the earliest day in which it would be in order to do so, he would ask leave of the Senate to introduce the following bill, viz:

A bill to repeal the act entitled "An act laying a duty on imported salt, granting a bounty on pickled fish exported, and allowances to certain vessels employed in the fisheries," approved July 29, 1813, and to repeal all acts in continuation or amendment of the same. On motion,

The Senate adjourned.

HOUSE OF REPRESENTATIVES,
THURSDAY, December 5, 1839.

At 12 o'clock, the CLERK called the House to order, and stated that at the adjournment on yesterday the gentleman from Kentucky [Mr. UNDERWOOD] was entitled to the floor.

Mr. UNDERWOOD rose to address the House, but gave way to

Mr. HUNT, who made an explanation in relation to the resolution he had submitted on yesterday. Some gentlemen, he said, entertained the idea that, if it was adopted, no action of the House could be had on any other subject than the case of the New Jersey election. He contemplated no such thing by the resolution, as his object was that the House should organize speedily, and go on with the business which had brought them together.

Mr. UNDERWOOD then rose, and commenced by saying that when the House adjourned on yesterday, he was attempting to arrive at the principles upon which they might proceed and organize the House, and examining the peculiar situation in which the Huse had been placed. Some gentlemen contended that if the CLERK had called the names of the five members from New Jersey, it would have settled the case, and relieved the House from the difficulty in which it had been placed. Such, however, was not the fact in his view of the case. Suppose the CLERK had called one of the five members from New Jersey, and any member on the floor had rose and objected to his taking his seat, we would then be in precisely the same position in which we are now. He held that he had the right to object to any one of the members from that State taking their seats, and his objection must be heard, and decided by the House. In the case of Claiborne and Gholson, a gentleman from Virginia [Mr. MERCER] objected to their taking their seats, and called for further testimony in the case, and the House laid the gentleman's motion on the table.

Mr. U. then submitted the following proposition: The Clerk of the late House of Representatives, in calling the roll of members of the Twenty-sixth Congress, began at the State of Maine and proceeded regularly, according to usage, until he came to the State of New Jersey. He called JOSEPH F. RANDOLPH, as a member from that State, and then stated in substance, that there were ten persons besides Mr. RANDOLPH claiming to be Re

presentatives from the State of New Jersey, and insisting on their right to take seats as members, when by law the State was entitled to six Repre. sentatives only; and that he declined calling any of the claimants, believing it to be his duty not to decide who were entitled. A debate thereupon arose, and the members elected have been unable in the usual manner to recognise each other; to ascertain whether there was a quorum in attendance, and to organize the House. For the purpose, therefore, of obviating all further difficulty,

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Resolved, That the CLERK of the late House ought, and he is hereby directed, to proceed in calling the roll, and each person called who answers to his name, and against whom no objection is urged to his taking a seat, shall be counted as a member in ascertaining whether there be a quorum present, and each person called, against whom objection may be made, shall not be counted; but, upon objection being made, the CLERK shall pass by the person objected to and call another. After the roll shall have been called through, if there be a quorum present of persons against whom no objections have been raised, such quorum shail proceed to decide upon the claims of those who have not been called by the CLERK, or who, if called, have been pretermitted in consequence of objections raised against them, and shall determine which of the claimants shall participate in the organization of the House; Provided, however, That nothing herein contained, and no decision which may be made, admitting any one to participate in the organization of the House, shall be construed to bar or preclude the House, after it shall have been duly organized, from investigating, judging, and deciding upon the election returns and qualifications of each of those whose right to a seat is questioned, before the House is organized, and who may be admitted to participate in the organization of the House by a decision in pursuance of this resolution.

Mr. U. contended that this was the only plan by which this matter ever could be brought to a conclusion. It had been suggested to him who should vote on this question. In reply to that, he would say that he thought every one who came there claiming to be a member of the House, might vote upon it. The presumption was, when a set of gentlemen assembled at the seat of Government at the time of the meeting of Congress, as the Representatives of the people, that they were entitled to vote on all preliminary questions of organization; and if they could not do so, it was manifest to him that this question never could be settled. There must be some mode by which this question could be settled, and he knew of none other than the one he had pointed out. Gentlemen had inquired whether we had not the power to go behind the commissions of the Governor of New Jersey, previous to the organization of the House. He contended you could not, and that it would be an outrage on all precedent, law, and usage, to do so. Gentlemen had asked, will you not allow fraud to be exposed-will you not allow us to exhibit a majority of the votes of the people in favor of political liberty, and the great rights of the people? These arguments, however, appeared to him to be more specious than sound. He admitted that you could go behind the returns, but it must be done by organizing a proper tribunal to try the question; and in order that this tribunal might be raised, it was essentially necessary that the House should first be organized, and the oaths be administered to members according to the Constitution and laws. Then the case could be brought up, and evidence might be adduced on both sides. This was his view of the case, but it seemed to be the opinion of some gentlemen, by their arguments and by the course they pursued, that you can decide the case without giving the par.

ties a hearing at all. According to the arguments of some gentlemen, it was only necessary for a gentleman to claim the seat of a member of this House and the CLERK was bound to pass over his name when he arrived at it on the roll. He might put the case of BARTON and LUCAS. He understood from the newspapers that there was a gentleman by the name of BARTON who claimed the seat of Mr. LUCAS, and would gentlemen pretend that he was not entitled to hi, seat merely because this other gentleman claimed it? He contended that the course pointed out by his resolution was the only correct course, and referred to the argument in the case of Moore and Letcher, and to other cases, as evidence in support of his view of the question.

Mr. RANDOLPH next rose to address the House, when

Mr. VANDERPOEL inquired if the gentleman could take the floor, having spoken twice already.

The CLERK said, as there were no rules adopted for the government of the House, he did not feel authorized to prevent the gentleman from speaking.

Mr. RANDOLPH then addressed the House at considerable length. He contended that the laws of the State of New Jersey had been fully complied with, and that his colleagues, as well as himself, had sufficient evidence to entitle them to their seats in the first instance, and that it was not in the power of the CLERK, or the House, to deprive them of that right. The law of the State of New Jersey was paramount to the CLERK, and he was bound to call the names of his colleagues if he performed his duty. It was their right to take their seats in the first instance, and it was not in the power of the House to go into a full investigation of the case until it was properly organized, and then it must be done up n petition. For a long time, in the history of this Government, this House, even after it was organized, would not go behind the certificate and commission of the member. For several Congresses this was the law. In two cases Congress decided that it would not go behind the certificate of a Governor when it was made out in accordance with the laws of the State. In the case of Spalding and Meade, from Georgia, there were three counties which did not reach the Governor until after the time expired by law, in consequence of a storm which interrupted these returns, and when this case was brought before the House upon petition, after its organizaion, the sitting member claimed his seat, because he held the returns which had been made out according to the Jaws of Georgia, and that the House had no right to go behind the return. Mr. R. in support of his position, referred to the case of Moore and Letcher, and the arguments of Messrs. Lane, Beardsley, and Hubbard upon that question. He also referred to the case of Claiborne and Gholson, and various cases which had occurred in the New Jer. sey Legislature, all of which he maintained sup. ported the position that his colleagues were entitled to their seats in the first instance. Mr. R. next replied to the remarks of Mr. VANDERPOEL, and held that his colleagues did not claim their seats upon any technicality of the law, but because they believed they were entitled to them. They wou'd scorn to claim them upon a mere technicality.

Mr. R. next replied to the remarks of the gentleman from South Carolina, who he said had attempted to draw a distinction between the people and the Government of New Jersey. He would ask that gentleman how the people would express their sovereignty, if they did not do it through their. constituted authorities? There was a time when a foreign Prince attempted to draw the same distinction which the gentleman had drawn, and take an appeal from the Government of this country to the people. He would ask that gentleman what his course would be, in case he came here with a commission from the Governor of South Carolina, under the greal seal of the State, and another person came here to prevent him from participating in the organization of the House?

Mr. PICKENS rose to explain. He did not pretend to give an opinion with regard to the great seal. When that question arose, he would be prepared to decide it upon its merits. He meant to

assert that this House was made the supreme tribunal by the Constitution of the United States, and that it might take its own course. He did not pretend to justify this course, or that course. He asserted the power of the House to take what course it thought proper. It might pass by the great seal of the State of New Jersey, if it pleased, as insuffi. cient evidence, and it was accountable to nobody but its constituents. He did not choose to be represented by any gentleman as having assumed a position which he did not take, and thererore he rose to make this explanation.

Mr. RANDOLH resumed, and said if that distinction had not been taken by the gentleman from South Carolina, it had been taken by some other gentleman. Mr. R. said he placed this matter on constitutional grounds, and warned gentlemen to beware how they disregarded their injunctions. Some gentlemen, in the course of their remarks, had spoken of him as being entitled to rights and privileges which his colleagues were not entitled to. But he begged leave to say to gentlemen, that he did not consider himself entitled to any greater privilege than his colleagues. He had always considered himself on an equality with them; and when they had offered a proposition to their opponents to resign, and try the matter again before the people, he had claimed the honor of doing so likewise, and they were only prevented from doing so by the advice of friends. He contended that the certificate of the Secretary of State was wholly void, and of no effect; that that officer had no power whatever to grant a certificate in this case, and that the CLERK had no right to pass over the names of those who had the Governor's certificate.

Mr. ADAMS rose, and addressing himself to the House said:

Fellow-citizens and members elect of the Twenty-sizth Congress: I address myself to you, and not to the CLERK in that chair, under a painful sense of my own duty. The CLERK, in the performance of official duties assigned to him by the laws of the United States, commenced reading the roll of the members here assembled for the purpose of constituting a House of Representatives of the United States in the Twenty-sixth Congress. After calling the roll, commencing with the State of Maine, as far as the State of New Jersey, and the members whose names he called having answered-ascertaining their preser.ce here--he paused after calling the name of one of the members from New Jersey, and stated to the House that the seats of the five other members from New Jersey were contested; that he, deeming himself not authorized to decide which of the two parties of five members were entitled to seats, must refer that decision to the House; and then immediately, or shortly afterwards, a question arose, and the proposition being presented to the House, he again, in the discharge of a solemn duty, declared that he could not put a question to the House till it was organized. Now, fellow-citizens, I am reduced to the necessity of eppealing to you. Your CLERK as decided that he could not proceed; he refers the decision to you, and then he refuses to put the question in order that you may make the decision; and has persisted in the refusal to put a question of any kind until he discovered yesterday that he might put the question of adjournment. Now, fe low-citizens, in what predicament are we placed? We are fixed here as firm and as immoveable as those columns; we can neither go forward nor backward; and the CLERK tells us that he will persist in both these decisions. What, then, can we do? I have waited here four days with a firm determination not to enter into this controversy. It was with a firm determination not to say one word on the subject, that I remained in my seat until now. At the last session of Congress, foreseeing what might happen, I offered a resolution to this House for the purpose of preventing the difficulty in which we are involved; but that resolution was not adopted, and the difficulty that I then foresaw has overtaken us. For many reasons I had determined not to say one word on the subject before us, and I should still persist in that determination if I did not find it impossible for the House to proceed one step until relieved from its present embarrassment. We might stay here until doomsday, and not be one

step nearer to our organization than we now are, unless we adopt some mode of relieving ourselves from the difficulty in which the decision of the CLERK has placed us. Now, all this is very extraordinary. Here is a body of men assembled from the twenty-six States of the Union-a more complete representation than ever was assembled here before and here we are under the solemn convictions of duty, and yet without form or order, and unable to progress one step towards the discharge of the public business. The CLERK has told us that he acted under the solemn convictions of duty, and I concede that he has. I do not even question whether that sense of duty was correctly applied, but I do say that he has placed us in a position in which we also have solemn duties to perform. Now, what are we to do? This complete representation of the people of the United States has assembled here, and the Constitution has enjoined upon it a solemn duty. What is it? To organize itself. If there is any difficulties in effecting this organization, let us do what Mr. Jefferson has told us the General Assembly of the State of Virginia did, when Lord Dunmore dissolved them. They adjourned to a lavern, and there constituted themselves a convention. This might be deemed irregular; but I do think that, on the fourth day of the session, in a state of disorganization, it is rather late to make any objection on the ground of irregularity. I address myself to you, fellow-citizens, and call upon you in the name of the people of the United States, to discharge your duty. Organize yourselves, and when that is done, you can take up and decide questions as you heretofore have done. I call upon the whole House. I call upon the majority which composes it to proceed to its organization. We have recently been told, in the official organ of the present Administration, that there is a majoritysetting aside the members from New Jersey, or counting them-that there is a majority of friends of the Administration elected to the present Congress. And not only has the organ stated that fact, but he mentions the precise number-one hundred and twenty-one members, and every one of them is here present. Now I call upon that one bundred and twenty-one to organize the House. I call upon them in the name of their country-I will not say in the name of the Administration, for I have not a right to invoke it; but I call upon them in the name of the people of the United States to organize the House; and I offer, for that purpose, to this assemblage, the following resolution which lies upon the table of your CLERK, and which, like all other resolutions that have been placed there, lies in the limbo valley, the paradise of fools. We may go on ad infini tum, to the end of time, laying resolutions on the CLERK's table, and he will not put the question on one of them. We cannot control the CLERK. He is, in the position which he has assumed, an absolute despot; and unless you set aside all his decisions, and act for yourselves, you will not be able to advance one step. This resolution which I now offer, was offered yesterday by a gentleman from Kentucky, [Mr. GRAVES.] (and a number of resolutions have been offered since,) but it is in the same condition in which all the rest of them

are.

Mr. A. here read the resolution in the following words:

Resolved, That the Acting Clerk of this House shall proceed with the call of the members from the different States of the Union in the usual way, calling the names of such members from New Jersey as hold the regular and legal commissions from the Executive of that State.

Mr. GRAVES here suggested to the gentlen an from Massachusetts that the resolution would need some modification. Having understood from a friend that the CLERK was willing to proceed with the call of the roll if it was the will of the majority of the House that he should do so, he addressed a letter to him on the subject, which he would now read, with the CLERK's answer:

"HOUSE OF REPRESENTATIVES, "Dec. 5, 1839. "HUGH A. GARLAND, Esq.: If a majority of the members whose seats are uncontroverted signify

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