December 6, 1803

The order of the day for the House lo resolve Mr. R. Geibwold. — The House of Representatives some time since passed a resolution, amendatory of the Constitution, and sent it to the Senate for their concurrence. Of this resolution the Senate have taken no notice, but have sent as ft different resolution on the same subject.' This proceeding is, I think, unprecedented and tin|Hirliamenlary ; and 1 think we ought not to decide upon this resolution until the Senate shall have answered our resolution. I move, therefore, a of the resolution from the Senate, Mr, Elliot hoped the consideration of the resolution from the Senate would not be postponed until to-morrow. How far it was proper to impeach the correctness of the course pursued by that body, it was not for him to say. Should they, on any occasion, invade the rights or the dignity of that House, no member would be found more ready to repel the invasion. In this case the Senate have sent us a proposition, embracing the same principle contained in our amendment, with other principles. He hoped, therefore, the House would immediately proceed to give the subject that attention which its intrinsic merits deserved. Mr. Dawson only rose to correct the gentleman from Connecticut as to precedent. It must be in the recollection of every gentlemen on the floor, that the Senate have frequently sent us bills on the same subject with bills sent by us to them. Mr. R. OftiswoLD wished the gentleman from Virginia would name an instance. He never knew a bill sent to the Senate, which they neglected acting on, and in the room of which sent one of their own.

The question was then taken on Mr. Qribwold's motion, and lost — yeas 32.

Mr. R. Qriswold. — I will submit another motion, to wit ; that the Committee of the Whole be discharged from the further consideration of the resolution of the Senate. My grounds for this motion are these; — that this resolution has not been transmitted to us by a Constitutional number of Senators, and therefore, that the House cannot act upon it.

Mr. Dawson inquired if the motion were in Mr. Speaker said it was in order.

Mr. R. Gbiswold. — The principle, I assume, is that this resolution has not passed the Senate by a Constitutional majority of that branch of the Legislature. By a certificate, obtained from the Secretary of that body, it appears that the resolution was passed by the votes of twenty-two members in favor of it; twenty-two voting in the affirmative, and ten in the negative. It is known to every gentleman that the Senate consists of thirtyfour members, and that it consequently requires twenty-three to constitute two-thirds of its members. The principle, I assume, is, that it requires two-thirds of the members of each House to pui & resolution proposing to alter the Constitution. Theariicle of the Constitution on this point is the fifth. llistbua expressed: the Congress, vheoever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.” ThequesliosiSjWbatiahere meant by a House t Is it merely a majority o( the- Senators or Representatives; oris it the whole and entire number? To decide 'this point, we must refer to other parts of the Constitution where the word House is used. I hope gentlemen will critically attend to the words used, and from that attention form their opinions. The third section of the first article is thus expressed: "The Senate of the United States shall be composed of two Senators from each State." Two Senators then from each State are declared to constitute a Senate. A Senate of the United States cannot, therefore, be composed but of two Senators from each State. One House referred to in the fifth article is the Senate. If then it be necessary that there should be two membersfrom each State to compose a Senate, the House of ibe Senate cannot be composed but of two members from each State. This is corroborated by other parts oftbe Constitution. In the fifth section of ibe first article, it is said, "Each House shall be the judge of the elections, returns, and qualifications of its own members; and a majority of each shall constitute a quorum to do business." A majority of each— Of what7— Of each House shall constitute a quorum to do business. The expression is a fair commentary on the other section which I have read: "A majority of each House shall constitute a quorum to do business." The inference is that the Constitution, when it declares that "the Congress, whenever two tbirdsofboib Houses shall deem it necessary, shall propose amendments to ibis Constitution," requires that Ibe proposing them shall be made by two-thirds of the whole number of members constituting the Senate.

There are cases in the Constitution where the concurrence of two-thirds of each branch of the Legislature is required for the performance of certain acts, which is a further commentary on this article of the Constitution. In the case of impeachments it is provided that tbe Senate shall try all impeachments'; but no person shall be conTicied without the concurrence of two-thirds of the members present. The word present is introduced. For what purpose, if it was not the opinion of the framers of tbe Constitution, that without it, two-thirds of all the members of the body would be necessary to a conviction?

The same expression is used in tbe case of treaties. The President "shall have power, by and with the advice and consent of tbe Senate, to make treaties, provided two-thirds of the Senators present concur." Why use here this expression, "two-thirds of the Senators present," unless it was considered necessary to qualify tbe expression, from the conviction that otherwise it would mean two-thirds of the whole body?

On this ground I apprehend that this resolution baa not come constitutionally before us. It has not passed the Senate with the concurrence of two-thirds of tbe whole body. It has only received the votes of twenty-two Senators, wliieb do not make two-thirds. 1. therefore, move that the Committee of the Whole be discharged from the further consideration of it.

Mr. J. Randolph.— -There are frequent occasions on which it is necessary to answer doctrines advanced, not on account of their intrinsic merit, but on account of theweigbt of character of those by whom they are advanced. This is one of those cases. Had the arguments delivered to-day by the gentleman from Connecticut fallen from a less respectable quarter, I should have deemed them unworthy of reply, and have satisfied myself wilb a silent vote.

The gentleman, with an ingenuity peculiarly unfortunate, has quoted the very clauses and sections of the Constitution which disprove the opinions be has advanced. To these 1 beg the attention of the House for a moment. He has attempted lo sustain the position that two-thirds of both Houses must imply two-thirds of the whole number of each House respectively. Iflbavemissialed the gentleman, I beg to be corrected [Mr. R. here paused.] As there is no disposition to correct my statement, I presume I am correct. If this be the case, are we at this moment a House? If the term House means the whole number of members, can there be a House onless the whole number are present? Can there, therefore, be a House or a Senate so long as a single member is absent?

But it is said that the Constitution, wisely foreseeing this dilemma, has provided that a majority of each House, shall constitute a quorum to do business. Now, I ask, is a majority a quorum or a House? If it is not a House, but merely a quorum, it will be absolutely necessary that we alter our language as well as our journals, and say, not that tbe House, but a quorum met to transact business. Sec.

"Each House may determine the rules of its 'proceedings, punish its members for disorderly 'behaviour,and,withthecoacurrence of two-thirds, ' expel a member." Will the gentleman hold, on this floor, that it requires two-thirds of the whole body to expel a disorderly member? Will he deny ibai two-thirds of those present may expel in such a case, and that they are competent in nil cases mentioned in the Constitution? I will call the attention of the House to a fact. The session before the last, the House passed an amendment to the Constitution, similar in principle to the present, by tbe votes of two-thirds of the members E resent; when, too, there was little more than a aie quorum present. I might answer the doctrine, advanced this day, by saying tbe practice under the Constitution is already settled. I might ask the gentlemen where was this Constitutional objection then? Why was it then permitted to do so unconstitutional an act, when there was but a bare quorum? I should be glad to receive to these questions a satisfactory answer.

"Each House shall keep a journal of its pro- ' proceedings, and from time to time publish the same, 'excepting such parts as may in their judgment ' quite secrecy; and the yeas and nays of the mem- ' bersofeilher House on any questioa,sliall, at the * desire of one-fifth of those present, be entered on 'the Journal." Now, according 10 the doctrine of the gentleman, unless the whole body is present, the yeas and nays cannot be entered, because there it no House unless all the members are present.

The gentleman inquires why the Constitution has so sedulously directed that in certain cases the concurrence of two-thirds of the memberi resent shall be required. For an obvious reason. The Constitution could not ascertain the number of which the two Houses would consist, from their varying numbers, and, therefore, has required, that in certain cases, two-thirds of those present ahaU be required.

The article of the Constitution, on which the gentleman relies, is, that "Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments." When two-thirds aba]l deem it necessary. The sense then in this case is to be determined by the exposition given to the term House. I again ask, have or hare not the House met to-day 1 They have. J ask, are we, so met, the House of Re pre sen ta tires? We undoubtedly are. I ask, whether it is not in order to move to expel a disorderly member, or to adjourn? And I ask if the solemn business on which we are now acting shall be defeated by a mere play upon words, that would much better fit a subordinate court than this body? Believing that no doubt can be entertained of the just meaning of this article of the Constitution, either by the House or br the nation, I hope the Committee of the Whole will not be discharged.

Mr. Lowndes. — lagreewitb (beeentlemaafroiii Virginia that we are a House. The Constitution says, that a majority shall constitute a quorum, for the performance of ordinary business. But it appears to me very doubtful whether less than Iwotnirdt of the whole members of each House can pass an amendment to the Constitution. It is possible that the practice of the House heretofore may settle the point. I hope therefore the House will refer it to a select committee, to obtain its in* Testigation. Until I took my seat I was not aware of the objection ; but, since I have considered the subject, it does appear to me that two-thirds of the whole members are necessary in this case. I will assign my reasons for this opinion. The framersof the Constitution, I havenodpubt, intended to oppose difficulties to the alteration of it, and therefore required the preriousconcurrence of twothirds of the whole members of each House, and three-fourths of the Legislatures of the respective States. And they did this very wisely. Without the existence of such obstacles to a change, not a session of Congress would pass away, without materially altering the national compact. If this construction be adopted, the result will be certain, and it will be in the power of every man to ascertain it. If it is not, the result will be perfectly uncertain. For even less than a majority of the whole body may, in such case, propose amendments. A majority of 34is 18. Eighteen, therefore, is a majority of the Senate to do ordinary business. Two-thirds of eighieeaare twelve, which is less than a majority of all the members of the Senate. If, then, the doctrine of the gentleman from Virginia prevail, less than a majority of all the members of the Senate and House of Representatives may propose amendments. This ii not, in my opinion, the spirit of the Constitution. For these reasons I am in favor the motion, with a view that the subject may be referred to a Mr. EosTts. — If the construction of the gentleman from Connecticut be correct, I will ask how it can be reconciled with the practice under the Constitution, in the case of bills on which the President has put his veto. In the 7th section of first article i,t is provided that "every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United Slates: if he approve, he shall sign it ; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed |Io reconsider it- If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approred by two-thirdi of that House, it shall become a law." I will ask, if, according to the construction of the gentleman from Connecticut, it will be in the power of the two Houses, in any case, to pass a bill, having thus received the President's veto, unless they consist of the full number of members, which! believe will never be the case. It appears to me that a bill under such circumstances can never Eass. But this doctrine does not rest here. For, y the Constitution, amendments shall be proposed whenever two-thirds of both Houses shall deem it necessary. Now, if this doctrine applies to this Legislature, that it must be full, it appears to me that the same requisition will apply to the Legislatures who are finally to adopt the amenilmtnti proposed by Congress. Has it ever been known that either this Legislature, or the Legislatures of the States, were completely full 7 Consequently the doctrine renders it impossible for any ufataOr ment ever to be carried.

Mr. Thomas rose to state, from the Journals of the Senate, in what light they contemplated the doctrine advanced by the gentleman from Connecticut. By the Journal of their proceedings in (he year 17B9, it appears that on amendments, made by the House of Representatives, a concurrence was voted, though there were only sixteen members out of twenty-six present. There did not appear to beany division on the passage of the araeudmenia ; but the entry was in this form : " In SiwiTi, 3^. S, ITSe.

•'Raohed, That theSenate do concur in the resolve of the House of Representatives, on 'Articles to be proposed to the Legislatures of the States, aa amui^ menti to the Constitution of the United Stales,' with the amendments, two-thirds of the Senators prevent concurring therein."

Mr. Smilie.— It is well enough to understand what is meant in the Constitution by the teem House. I believe that ihe general rule prescribed specially excepted. I believe principle that, whenever there is an exception to B general rule, it shall be construed strictly, and not be suffered to contravene ibe general rule but in the case of the exception. By Congress, then, is meant the two Houses in their organized forms, JD which forms they are fully competent to all business, except in cases where more than a majority is required. To this there are two exceptions, viz: in the case of treaties, and ibe election of a President, wherein a quorum is made to eoosiil of a member or members from .two-thirds of the States. There is also another exception in the case of impeachments. What is the reason, if il ta the intention of the Constitution that in proposing amendments there should be two-thirds of the whole number of Senators elected present, it has not told us so, as explicitly as in the case of impeachment, in the case of treaties, and the election of a President, it has provided the rule? Gentlemen should likewise reflect how far this doctrine carries them. They ought to consider that it is possible that, under their construction, no amendment made to the Constitution is valid. If some are, it is pretty certain that others are not. Mr. T BATCH BR. — I have examined the Constitution as carefully as time will permit, in every instance in which the Senate is mentioned as a House. The Senate is defined as "composed of two Senators from each State." In this article there is a complete definition of the Senate. But there are two instances in which the members present are particularly designated. The first is in the last part of the third section, in cases of impeachment: "The Senate shall have the sole power to try all impeachments." "No person shall be convicted without the concurrence of IWO' thirds of the members present." The other instance is in the secona section of the second article; "The President shall have power, by ' and with the advice and consent of the Senate, ' to make treaties, provided two-thirds of the Sen- 'ators present concur." In these two instances the only allusion is to the members present. The Other instances in which the Senate is mentioned as a House are three. The first is in the case of the expulsion of a member: "Each House may, with ine concurrence of two-thirds, expel a member." Another instance is that In which the President puts his veto upon a bill. This part of the Constitution has been already read, and I need not repeat it. The last is the one under consideration: "The Congress, whenever two-thirds of intended by the Constitution that two-thirds of the Senate, composed of two members from each State, should concur; that is, two-thirds of the whole body.

The idea of the gentleman from South Carolina (Mr. LowHOEs) has struck me very forcibly. He says that, under the construction attempted to be put on the Coattiiuttoo, twelve members of lend-. The same doctrine will apply to this House, where forty-eight members may propose amendments, although seventy-two are required to make a common quorum. Gentlemen will see at once that this could not have been the intention of the framers of the Constitution. But my colleague (Mr. Ecbtih) says that, if our construction prevail, whereby the concurrence of twothirds of the whole of the members of each House is required, the same construction will extend to the State Legislatures. Bntthearticlein theConatitntion does not warrant thin conclusion. Its language is, that amendments shall be valid " when ratified by the Legislatures of three-fourths of the several States." There is no idea expressed that the concurrence of two-thirds of the Legislatures shall be necessary. Hence, I see no weight in this remark.

Mr. Eustis explained. He had no idea that two-thirds of the State Legislatures were required ; but he had said that ine House might, with the same propriety, require the sanction of twothirds of all the members of the State Legislatures as of the other branch of Congress.

Mr. Thatcher proceeded. The gentleman from New York (Mr. Thomas) is equally unfortunate. By recurring to the Journals of the Senate for the year 1789, it will be found that several Stales were not then in the Confederacy. Rhode Island. North Carolina, ^aad Vermont, were not then in the Union.

Mr. Thomas explained. He said he bad referred to the Journals of the Senate to show that, by declaring amendments carried by two-thirds of the members present, they had considered twothirds of the members present a Constitutional majority.

Mr. Thatcbeb.— The gentleman from Pennsylvania has cautioned us against going too far. Caution, 1 would myself advocate. Hesays the amendments heretofore adopted are not valid, in case our construction be just, inasmuch as they were passed by less than two-thirds of the whole members of each branch. But he has shown no precedent. Such precedent it is incumbent on gentlemen to advance. There is none within my knowledge,

Mr. J. Randolph.— — 1 rise to adduce the precedents the gentleman calls for. They will be found in the Journal of the House of Representatives, under the date of August 21, 1789. Congress then consisted of the thirteen original States, exc«JtiDK Rhode Island and North Carolina. It will be found that the whole number of members of the House of Representatives at that lime was fiftynine, Of those fifty-nine, forty composed twothirds. Bjr turning to the Journal the gentleman will perceive that some of the most important amendments that now form a part of the Constitution were passed, not by forty members, but by two-thirds of the members present. Among these amendments are the following ;

“Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor sksU tba rights of conscience be infringed.”

■•The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for the redress of grievances shall not be in- "A well-regulated militia, composed of the bedj of " No soldier ahall, in time of peace, be quartered in any house, without the conaent of the owner; nor in time of war, but in a manner to be prescribed bj law." " The right of the people to be secure in their per- ■ODB, hoasea, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue, but upon probable cause, supported by DsLh or affirmation, and particularly the place to be searched, and the persons or things to be seized." " In all criminal prosecutions, the accused shall en- )oy the right to a speedy and public trial ; to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining wilnemi favor; and to have the ' ' of counsel for his defence."

These are by far the greater number of amendmeDts that now exist, and which, according to ihc doctrines of gentlemen, compose no part of the Const i 111 tion. and ought to be expunged from our records. I hope the House is not disposed to countenance such a doctrine.

Mr. G. W. Campbeul.— I do not rise to inquire into the intrinsic merits of the arguments advanced \>Y the gentleman from Connecticut, but to demand by what authority we make the inquiry into the votegi?eD by the Senate on this occasion. We have received a resolution from the Senate in a regular way, by which it appears to have been passed by a Constitutional majority. I am at a loss to know how the gentleman can ascertain that it is not passed by a Constitutional majority. I believe each House is a judge of its own proceedings; and I believe that, whenaresoluiionor bill comes to [bis Huukc under the usual forms, we are bound to consider it as passed conformably to the Constitution.

Mr. C. said he believed, by an examination of the Constitution, it would be found that the word Senate was used barely 10 designate the number of members to which each State was entitled; and that when they came to do business they were called House. In the fifth section, the term House is used in three places. In the first, it is staled that "each House may determine the rules of its proceedings," Here the word House must mean a quorum.— — "Each House shall keep a Journal," &e. The meaning, here, likewise, of House must be a quorum. There is another instance not noticed by gentlemen— "Neither House, dur ing the session of Congress, shall, without the consent of the other, adjourn for more than three days," dtc. I will a:iJt if the sole question is the definition of the word House, whether this single eragraph will not clearly establish iti Can it said with any degree of plausibility, that in this instance, the word House means anything more than h quorum'? Certainly the word in the fifth section means the same thing, unless there is some re-strictive language attached to i(, which is not to be found. I Believe also Iba[ the construe- (ion proper to be given on this, as well as on other occasions, ought to comport with the practical Mr. Dana. — The gentlemen asks by what an- (horliy we examine the manner in which this resolution has passed the Senate. I will endeavor to answer the inquiry. The Constitution says each Houseshall keep a journal of its proceedings. The Senate keeps a journal, which is public, and from that we are enaoled to ascertain the fact how it passed. This is a sufficient authority to inquire. The question, I apprehend, to be decided is, whether two-thirds of a House can be less than a majority'! Frequent reference has been had to the fifth section of the first article of (beCoastttutioD; "A majority of each House shall be a quorum to do business." What then is the majority? A majority of the whole. When the Constitution in another place requires two-thirds, will it be said that two-thirds is less than a majority? In examining the Constitution it will be found that it is not the ordinary business of Congress to amend (he Constitution; it is not a usual Legislative power; it is an unusual power for those with limited authority to change or extend or limit their own power. lu doing this, then, Congress does not act in their Legislative capacity. In all instances in which they do act in such capacity, their eels mustbe submitted to the President for his approbation. Whereas in proposing an amendment to the Constitution this is not necessary. Why? Because the measure does not partake of Legislative character; it is in virtue ofa special grant of power. As then in this case there is a complete deviation from the ordinary authority of Congress, as there is a deviation from the principle of the Constitution which confers limited powers, as there is a deviation from the general principle of agency, ought not to authorize a change but on the agreement of a majority of the whole members composing the confederacy. To the gentleman from Massachusetts (Mr. Eustis) I answer that there is no precedent ofa bill passed, returned by the President with his veto. The question is the same in that case as in (his. There is no precedent for either; that it is undecided; and to settle one case which is undecided, reference is had by gentlemen to a case equally disputed. These are the principal ideas which have occurred to me, in addition to those suggested by others, and which I forbear to Mr. Thatcher said that in (he cases alluded to by the gentleman from Virginia (Mr. Randolph) the yeas and nays were not taken; it, therefore, did not appear what the majority was. He admitted, that from the language of the Journal, the Clerk of the House entertained the idea that the concurrence of two-thirds of the members present was sufficient; but such an opinion wu not binding upon them.

Mr. RoDNET. — Noiwiih standing the respect 1 ■Campbell) are, 1 think, conclusive. That geii' tlemiD asks by what authority we inquire into the proceedings of llie Senate, of which they are -exclusively the Constitutional judges? It is replied that they are obliged to keep a public journal and ibai it appears tbererrom ibat this ameud' meot has not received the votes of a Constitutional majority. Is this a fair answer'? By (he Constitution each House may determine ibe rules ofitsowD proceeding. If the Senate then have a right to decide on their own rules, they are the only competent judges whether the amendment has been approved by the number which the Con- ■tiiuiion requires. On what foundation is this objection taken? Do we know the proceedings of the Senate but through the medium which the Constitution has provided? We have received then this amendment to the Constitution through their legitimate organ, the Clerk. He has in due form notified us of its passage. And to-day we are told, on the evidence of his certificate, that the Senate has not passed it at all, or what is the same thing, that they have not passed it by a Constitutional majority. Now, are we to believe the information we have received from the Senate in the regular and established way, or are we to take their proceedings on a certificate given to a member of this House? Are we to take this information from tbera, or are we to send a committee to watch their proceedings, and are they to send a committee to watch ours? Surely there is a respect due to the Senate when they transmit to Tis a resolution declared to be adopted by them, by which we are bound to give credit to it. If this is not the case, all intercourse between the two Houses must be stopped. For if the Senate are to watch us, to determine by what majority and in what manner our acts are passed and we do the same in relation to their proceedings, we may consume the whole time of the session in discussing these previous questions, without reaching the merits of the measures proposed. These ideas appear to me conclusive. The Constitution iS'predicated on the eiistence of a principle of moral integrity in the two Houses, and without such confidence in them, it cannot exist for a day. But taking the fact, as the gentleman from Connecticut has stated it, I think this resolution has MEsed the Senate by a Constitutional majority. The gentleman contends that it has not, because it has not received the assent of two-thirds of all the Senators elected ; he says that when the Constitution requires the assent of two-thirds only of the members present, we always find it expressly 30 stated, whereas when it requires two-lhirds of either House, it merely calls for two-thirds of the members; and he contends ibal there is here ( wide distinction and essential difference in the meaning. But all this arises from a mere play Upon the term House. That term, according lu the gentleman, is of wonderful import! He has discovered ibalat the first organization of tbe Government, when every sentiment that gave it birth was fresh on the recollection, when we find among others two venerable members from the State of Delaware, members of ibe Senate and visemembers of the Federal Convention, giving their assent to amendmeiitsto the Constitution, all these proceedings were unconstitutional. How was the assent of Ue two Houses la these amendments given? Was it by two-thirds of oil llae members of each House? The Journal proves the reverse to have been the fact. It ecpree4f saysibey were adopted by two thirds of the Senators present concurring. It is said, however, that this IS only the record of the Clerk, and that it shows no more than his opinion. But this is not so. For it is the practice of each House, on the next day, to read the Journal of the proceediugi of the antecedent day, and if there be errors to correct them. Now, if we look to this record, at a period immediately after ibe adoption of the Constitution, we shallfind that in September, 1789, it is declared on the Journal of the Senate that amendments passed, and which are now part of the Constitution, were ratified by two-thirds of the members present.

I have ever understood it to be a sound rule of construction, because a sound rule of reason, that a construction of an instrument once received shall not be changed, even if the construction be not so proper as mignt be given. As then it appears that such was the construction given to the Constitution by many of the members whose labors contributed to its formation, and who may, therefore, be considered as (be most perfect masters of its true meaning, shall we at (his distant dar undertake to give a different construction ? Shall we say that we are wiser than all who have gone befoi;pus,and expungefrom the Constitution those amendments, which have been proposed by iwt>- thirds of the members present oi each House, and have been afterwards ratified by three-fourths of (he States 1

I believe this construction to be the true one. In ihe Conalilulion the term House means merely a majority of all the members ; and an examination of that iosirumeut will show them that House and Quorum are convertible terms. " Each House, 'shall be (he judge of the elections, Te[um^ and ' qualifications ofitsDivn members; a majority ' of each shall constitute a quorum 10 do business; ' but a smaller number may adjourn from day to ' day, and may be authorized to compel (faeattend- ' ance of absent members, in such manner and ' under such penalties as each House may provide." According to the distinction of gentlemen a majority shall be a quorum. Thus a majority, being assembled, may proceed to business. Now let us see how we are to separate. We must, according to (he arguments of gentlemen, work night and day until we get the whole members present. We have, therefore, been iransgreising the Constitution every day we have met. We have made rules, by a great quorum, it is true, but every member was not present; and if every member were not present it wu not a House, and therefore ■we hadnorighi to form rules! And yet every gentleman knows that some rules are indispensably necessary. "The yeas and nays of ihe members of either House on any question, shall, at the desire of one-fifth of those present, be entered on the Journal." Therefore, we cannot have the yeas and nays entered unless every member be present “ " Neither House shall, without the consent of ibe Other, adjourn for more thanthree days." In every clause of this particular section the term House is made use of. The House is to determine its rules, and to keep a journal. Gentlemen then must admit, if they are right in their construction, that, without the presence of every member there can be no rules and no journal, and that though we are obliged to keep working without rule or record, yet we cannot adjonrn. Is this, Mr. Speaker possible? Do gentlemen seriouly contend for such an absurdity 7

Gentlemen have referred to a section of tite Constitution where two-thirds of the members present are required, and to other sections where a different language is used ; and have thence inferred that a different meaning was intended. But I believe we may use different terms and yet mean the same thing, In the case of treaties and impeachments different language is used to convey the same meaning. If then in these cases different language is used to mean the same thing, will not the like liberty be allowed in other cases? 1 do Doi know that theframersof an instrument are bound to use on all occasions the same, words to convey the same idea, more than the m'embers of this House are:

Mr. Dennis.— This, sir, is a motion to discharge the Committee of the Whole from the resolution of the Senate, on the ground that that resolution comes to this House unsupported by such a Constitutional majority, of two-thirds of that body, as is requisite to amend the Constitution. It therefore becomes necessary incidentally to discuss the point, whether a majority of two-thirds of the attending members, or of the whole number of Senators, be necessary, to give validity to the proposed amendment ; for if this resolution is not supported fer the Constitutional majority, it is a nullity in itself, and thesoonerweare discharged from it the better.

But here we are met in the outset by an objection from the gentleman from Delaware, which ties up our hands and precludes us from this inTCMigition. I incline to think that gentleman hazarded the position without that deliberation and caution to which he is accustomed ; for his ai^u- ment would go to the extent, that if (his resolution had passed by a bare majority of the Senate aui was reported by their Secretary as passed by the Constitutional majority, it would be so conclusive upon us, that we should not have a right to assert the negative. Whatever is done by the competent authority, ought to be presumed to be rightfully done, but this presumption ceases when the negative appears. According to our construction of the Constitution, the negative does expressly appear, for we know the resolution was passed by a > number than a majority of two-thirds c^ the members of that body. Notwithstanding the ob- ■ objections made to the evidence, independently of be personal knowledge of the members of this House, we have a transcript from the Journal of the Senate, underlheoSicialsignaiure of their Secretary, which I had thought was as good evidence as could reasonably be required.

In relation to the Constitutional question, perhaps little can be added to the remarks of (be gea- (leman from Connecticut (Mr. GaiswoLD.) because 1 think thepassages cited from the Constitution by that gentleman, and the deductions drawn from those passages, demonstrate the proposition which he contends for i .which is. not that every member of the Legislature should t>e present, as some gentleman suppose, but that there shall be a sufficient numberpreaent, voting in theBffirniBlive,toamouBt to a majority of two-thirds of all the members. If we look into the Constitution we shall find in the first HcctioDj it declares all Legislative power shall be vested m a Congress, consisting of aSenateand House of Representatives. It then says, " that the House of Representatives shall be composed of members chosen every second year by the members of the several States &c. In the third section it says, " the Senate of the United States shall be composed of two Senators from each Blaie,"&c. And in the clause respecting amendments, it says, "the Congress, whenever two-thirds of both Houses shall deem i( necessary, shall propose amendments to the Constitution," &c. It then results from these provisions that unless the House of Representatives or Senate, taken distinctly, are bodies composed of less than all their parts and members; and that Congress, which is composed of a junction of the two, may be composed of a less number (ban all ihe members of each House, that this resolution which is passed majority with the amendatory clause of the Constitution,

But we are told that if this be the construction of the Constitution, we are violating that instrument every day, in passing laws by a majority of the attending members. But. sir, the gentlemen ought to remember that this is in consequence of a positive grant in another part of the Constitution, which says that "a majority of each House shall constitute a quorum to do business," What business? Their ordinary legislative business, where a simple majority is only necessary to effect it. But surely no man can suppose that the clause last cited is to be applied to any case except to the legislative power which that clause precedes; or can torture it to have an application to a provision in the latter part of the instrument, wholly unconnected with It, and where two-thirds are necessary to give validity to an act. For if any doubt could exist on that subject, it will be removed by adverting to the clause respecting the treaty-making power and the power of impeachment; where twothirds must concur and where it is confined to twothirds of the members present. The using of the word predentin these clauses proves, that theConrveatioQ conceived that unless in these cases they had expressly confined it to thealiendiDgnembeTs, two-thirds of the whole number would be requisite to s decision ; and it also proves, that having omitted the word present in the important article of amendment, they did not mean, in that case, ihal less than a majority of two-thirds of the whole should be competent to act. To my mind ii ii impossible that a stronger implication can arise, than what results from these clauses, to prove that wherever they spoke of a majority of two-thirds as being necessary to act, they meant what every person must conclude, that it must be a majority of two-thirds of the whole, unless where they expressed themselves to the contrary. Nor is this of ordinary legislation, except the case cited by a geolli man from New York (Mr. Thomas,) and another W a gentleman from Virginia (Mr. Raki The first proves nothing; because it appears thai there were sixteen members present and nodi vis' on the question, and the whole of them may hL Toted in the affirmative; and as North Carolina and Rhode Island had not come into the Union the time, the whole number of Senators was I twenty-two — so that sixteen was a majority of two-thirds of the whole. The same answer may be given to the other ; for at that time this House consisted of fifty-nine members, and forty-nine members were present and voted on the question, upon which no yeas and nays were taken, and all of whom, from aught that appears to the contrary, may have voted fur it. From this view of the subject, therefore, 1 conceive the resolution before us aas not received the support of a sufficient number of the Senators, and I shall vote to discharge the Committee of the Whole from the further consideration of the subject.

Mr. J. Cliy. — The gentleman last up from Maryland, and the gentleman from Connecticut, have undertaken to draw a distinction between ordinary Legislative business and other business confided to Congress. In the third section of the Constitution, the power to try impeachments is S'reD to the Senate and to the Senate alone. If e construction of the gentleman obtain, it is given only to the whole body, as this power is not conferred upon them in their ordinary Legislative capacity: "The Senate shall have the sole 'power to try impeachments; when tilling for ' that purpose they shall be on oath or affirmation. 'When the President of the United States is tried ' the Chief Justice shall preside, and no person 'shall be convicted without the concurrence of ' two-thirds of the members." There are a great number of formalities which show the intention of the Constitution to draw a distinction between this power and the powers of ordinary legislation. The section concludes by saying that no person shall be convicted without the concurrence of two-thirds of the members present. Now, if the word Senate did not in all cases mean the mf m- beis present, these powers will be exercised in direct contravention of (be Constitution.

The last article of the Constitution is, that ' the latificaiion of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." These conventions are bodies raised oikder the Constitution, by which no quorum is provided, and, under the construction contended for, must mean the whole bodies by which it has not been ratified. If the construction then be correct, the Constitution can be of no effect, unless it baa been ratified by them unanimously, which hu not been done.

When we use such terms as House, people, or quorum, we always mean a majority, otherwise we should run into absurdity; and gentlemen will see, that in all cases where the terms are not restricted, they mean a majority, and that in other cases where a different meaning is intended, restrictive language is used.

In that part of iha Constitution respecting the election of President, if the construction of gentlemen be sound, the words "whole number" are superfluous; it prescribes "that each Stale shall ' appoint, in such manner as the Legislature there- ' of shall direct, a number of Electors equal to the ' whole number of Electors for Senators and Rep- ' resentaiives to which the State may be entitled ' in the Congress." The word State does not here mean all the people, but a majority of them exercising political power through the members of their Legislature.

In the case of the President refusing to approve a law, the words are the same as in the present instance. In such a case I should suppose the Legislative bodies were sitting in their Legislative capacity; and in such case, not wiihsianding, according to the ideas of gentlemen, two-thirds of the attending members would be insufficient to -pass the law.

In the case of the amendments agreed to in 1789, sixteen members were present. The gentleman from Maryland (Mr. Dennis) has stated that the whole body consisted at that time of twenty members; but the fact Is, it consisted of twenty-two, two-thirds of which are fifteen. Sixteen were present. I find the amendments were opposed by some members, and gentlemen will agree with me, that where members are in the habit of opposing measures they will not be likely to vote for them. The inference is that some of the sixteen voted against the amendments on their final passage. I ask if the fair inference be that only one member voted against them 1 If more than one voted against them, according to the doctrine of gentlemen, they were not constitutionally passed, and therefore we are legislating under amendments to the Constitution, wliicb are not part of the Constitution, inasmuch as tbejr were not constitutionally proposed.

Mr. R. GaiawoLD.— Tbe first objection made by gentlemen to the motion which I have had ilie honor to submit is, that this House has no right to inquire into the fact of how the Senate passed the resolution on our table. It is said bf the gentlemen from Tennessee and Delaware, that we had no right to inquire further than into as they appear on the face of the resolution. This doctrine I did not expect. What is the resolatioD? Is it aDjrihiDfi; more than a record of the proceedings ol* ibe Senate? Is not the Journal of ifaat House also a record f And suppose, instead of TeceiviDg ibis resolution, as we have received it, without information of the yeas and nays oo its passage, the Senate had seDl us a record of those yeas and Days, would the geatleman then say that we had not a right to draw an inference for ourselves as to whether it was or was not passed by a Constitutional majority'? The Secretary in this case has only brought us part of the record. When we see the whole, we perceive how it has passed, to wit: twentytwo members voting in the affirmative, and ten voting in the negative; ; and whether the whole record is brought by the Secretary, or whether we receive it ia any other way, is altogether imtuRterial. For from the whole record we must at last decide. This is a sufficient answer to the comments of gentlemen. We have a right to view the whole record, and to determine from it whether this resolution has been regularly passed.

The next objection is, that precedent is against us. But ihe fact is, that when the amendments. alluded to by gentlemen, were passed in (be Senate and House of Represent a lives, all the members W'ere not present; and instead of taking the yeas and nays on them, the Secretary of the Senate and of the House made a record that they were agreed to by two-thirds of the members present. Gentlemen infer from this fact that they were not passed by two-thirds of the whole members, but I do not perceive how they draw the inference. I admit that it was assumed by those who made up the journals, that all that was necessary was the concurrence of two-thirds of the members present; bnt it does not appear whether , two-thirds of (he whole members did or did not concur. This precedent therefore concludes nothing. Hence we are brought back to the Constiprovisions; and I submit it to the House, whether Its language is not clear, plain, and definite. The fifth article requires the concurrence of two-thirds of each House. What is meant by House? It must mean either a quorum to do business, or the whole of the members. To determine what it means we must refer to the Constitution, and see how the term is there used. The first expression of It is the third section, " (be Senate shall be composed of two Senators from each Sta(e." This is perfectly clear and definite ; you cannot compose the Senate in any other form. But gentlemen say that the term Senate is used in a different sense from the term House, and in one the meaning is different from that in the other. If gentlemen will turn to the fifth section of the first article, they will find .this language: "Each House shall be the judge of the elections, returns, and qualifications, of its own members, and a maioiiw of each shall constitute a quorum to do onsiness." What is meant by a majority of each House? Barely a majority of a majority! This ii nonsense; the term House then means every member; it is clear that such was the meaning of the ftunera of the Constitution. I say, therefore, that when these parts are taken altogether, we obtain a clear and definite construction of what they meant by the terms House and Senate.

It is true there are some instances in which House means a quorum, such are the cases in which ordinary business is transacted, in which the House adjourns or expels a disorderly memThe words are there synonymous, yet in its t meaning the word House means the whole number of members, and all cases where it is ia.' tended to have a different meaning are provided for by the Constitution. In the fifth section of the first article it is said, "the yeas and nays of members of either House on any question, shall, at the desire of one-fifth of those present, be entered on the Journal." Why introduce this laa- |UBge ? For the plain reason that without it one fifth of the House, that is of the whole number of members, would be required. This construction comports with the just remark of the gentleman from Pennsylvania (Mr. Suilie) that every exception to a general rule should be construed rigidly— that is, in the present instance, without an exception, one-fifth of the whole of the members will be required. Suin the case of impeachments and treaties, unless the expression were two-thirds of the members present, the concurrence of twothirds of the whole would be necessary. Gentlemen ' men will see in all these cases, as the honorable member from Pennsylvania says, the exception proves the thing. While there is no restriction to two-thirds of the members present, or to a majority, the Constitution it be construed accord-

ing to the general principle.

It is not my wish to detain the House longer I this subject. I have expressed myself in general terms. I add, that it is proper, that in an of such importance, we should proceed with deliberation and caution. The subject is a new , and it can do no harm to discharge the Committee of tbe Whole and take it up seriously. Some gentlemen are of opinion that there are precedents which apply to the elucidation of tfair point; if the committee shall be discharged, they will have time to search for them, the resolution can be referred to a select committee, the journals be examined, and the House enabled to proceed with caution and deliberation.

Mr. Rodney stated two precedents, in his opinion, in point. One of which took place in May, 1802, in the House of Representatives, on an amendment to the Constitution embracing the same principle with the present. The House then consisted of one hundred and six members, two-thirds of whom were seventy-one. By the journals it appeared that an engrossed resolution of an amendment passed — yeas 47, nays 14.

Another precedent fresh in the recollection of gentlemen, had been made this session. An amendment containing the same principle had passed that House; the whole number of memrs of which was 140; of which ninety-five constituted two-thirds; and yet it would be found that it passed by 88 votes for, and 31 against it. Mr. Lowndes replied that the amendment which had passed this Hooae in 1802, had been agreed to in great bute at the close of a tetsloo ; the RCi was ioadvefteDt, and therefore was doI entitled to much weight.

Mr. HuoEB lequired the taking of the yeas and nays; at about 4 o'clock ibe question was accordingly taken — yeas 34, nays 85, as follows

Claggett, M&DUHh Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas Dwight, Calvin Goddard, Gaylord Griswold, Roger Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel Hunt, Joseph Lewia, jun., Thomas Lewis, Henry W. Livingston, Thomas Lowndes, Nahum Mitchell, Thomas Plater, John Cotton Smith, William Stedman, James Stephenson, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Samuel Thatcher, George Tibbits, Peleg Wadsworth, and Lemuel Williams.

N*TS— Willis Alston, jr, Nathaniel Aleiander, Isaac Anderson, John Archer, David Bard, George Michael Bedinger, P. Bishop, William Blackledge, John Boyle, Robert Brown, Joseph Bryant, Wm. Butler, Geo. W. Campbell, Levi Casey, Thomas Claiborne, Joseph Clay, John Clopton, Frederick Conrad. Jacob Crowninshield, Richard Cutts, John Dawson, William Dickson. John B. Earle, Peter Early, James Elliot, John W. Eppes, William Eustis, William Findley, James Gillespie, PatoTBon Goodwyn, Edwin Gray, Andrew Gregg, Samuel Hammond, John A. Hanna. Josiah Hasbrouck, Joseph Heister, William Hoge. David Holmes, John G. Jackson, Walter Jones, William Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord, William McCreery, David Meriwether, Samuel L. Mitchill, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New. Thomas Newton, jun., Gideon Olin, Beriah Palmer. John Patterson, John Randolph, jun., Thomas M, Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Cesar A. Rodney, Erastus Root, TlionrasSammDns, Thomas Sandford, Ebenezer Seaver, Tompaon J. Skinner, John Smilie, John Smith of New York, Richard Stanford, Joseph Stanton, John Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Isaac Van Horne, Joseph B. Varnum, ■Matthew Walton, John WhitehiU, Maimaduke Williama, Ridwid Winn, Joseph Winston, and Thomas Wynns. And then the Houae adjourDed.