members. Our body is already full, and contains the whole representative power of the government which belongs to a House of Representatives. How, then, can we admit ten additional persons as members without parting with a portion of the power belonging to us? Have we a right to part with it? Can we give up to others a portion of our delegated power? If so, can we not give up the whole? Can a legislative department of the government act by proxy? It is said that each branch of the Legislature has the right to judge of its organization, and that from the necessity of the case this House has the right to decide whether the new counties are entitled to representation. I deny that this House, either under the constitution or from necessity, has any jurisdiction over this matter. I lay down two propositions, and challenge their refutation:

"First. That where the constitution has given any department of government the jurisdiction over a matter, and that department has, in pursuance of that jurisdiction, acted and finally decided upon such matter, no other department or portion of a department can revise or change such action and decision unless the constitution expressly authorizes such revision.

"Second. One branch of the Legislature of this State has no power to repeal or alter a law constitutionally passed by the whole Legislature.

"Now I assert that the question of the number of this House at th ́s session, as well as the question of what counties members shall come from, has been acted upon and decided by a department of this government to which the constitution has given full and exclusive jurisdiction to decide upon the matter, and that consequently we have no right to meddle with it. I further assert that our action cannot make these gentlemen members unless this House has the power by a simple resolution to repeal an act of the Legislature constitutionally passed.

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"The ninth clause of the third article just read expressly gives to the Legislature the power and the jurisdiction at periods of not less than four nor more than six years of fixing the number of representatives, who shall compose the representative body until the next period of enumeration, and also to apportion such number among the counties, cities, and towns entitled to representation. The Legislature, in December, 1833, did under this clause fix the number of representatives at sixty-four, which number they apportioned among the different counties. Was this law, when passed, constitutional? If so, when did it become unconstitutional? If it is still a constitutional law, what right has this House by a mere resolution to change or repeal it? That act of the Legislature fixed the number of this House for the present session at sixty-four. If we make that number seventy-four, is not this House assuming a power given by the constitution to the whole Legislature only? And is not this House changing by simple resolution a constitutional law? Again, by claiming the right to judge in this matter we deprive the Senate of a portion of their constitutional power. The Senate has as much power under the

constitution to change the number and apportionment of the House of Representatives as the House itself. Yet does any man doubt that a resolution of the Senate increasing our body by the addition of ten members would be a nullity?

"But the constitution has not intrusted to either body the power of judging of how many members it shall consist, or from what districts, counties, cities, or towns they shall come. This power is given to the Legislature, and that, too, with the limitation that it cannot be exercised oftener than once in four years.

"The conclusion to which this reasoning brings my mind is that neither branch of the Legislature has the power to change its organization as fixed by law, either in regard to the number of members which shall constitute the body or the right of representation from any particular territory.

"Our attempt to act alone in this matter is clearly an infringement upon the constitutional right of the Senate to partake in such action, and if that body view the matter as I do they will, upon the passage of this resolution and the increase of our number to seventy-four, be bound not to recognize us as a constitutional body. The Senate, in 1833, assisted in the organization of this IIouse, as did the House in the organization of the Senate, so far as numbers and apportionment are concerned. Each of these bodies is therefore not only presumed but compelled to know what the constitutional organization of the other is in these two respects. It necessarily follows that each body is bound to notice when the other becomes disorganized and unconstitutional.

"There are some matters in relation to the organization of this House of which we are the sole judges, and which, after our decision thereupon, cannot of course be noticed by any other department. Thus the constitution makes each house the judge of the qualification and election of its own members. But it is clear that there must be in the first instance a right of membership before any question can legitimately arise on the subject of qualification or election. The jurisdiction over the subject of qualifications and mode of election is not a jurisdiction over the subject of the right of representation. It seems to me that the conclusion is irresistible that the organization of this House, so far as numbers and apportionment are concerned, belongs constitutionally to the whole Legislature, and the further organization as to questions of qualification and election belongs exclusively to the House. If this conclusion is correct the resolution of the gentleman from Adams is in direct violation of the constitution and law, and if carried into effect will disorganize and destroy this body.

"But the gentlemen say there is in the constitution an express clause giving to each county the moment it is created a right to at least one representative. As this is the only argument in favor of this addition to our numbers which professes to be drawn from the constitution, I will examine and test its force. I believe, however, Mr. Speaker, I am mistaken in saying it is the only argument drawn from that source.

"The gentleman from Adams has commenced one upon what he cails the corner-stone of the constitution, to wit, the first clause of the Bill of Rights, which declares that all men are free and equal.' In what manner the gentleman will bring this to bear on the question under discussion I am at a loss to know. I should imagine, however, that upon so broad a foundation it would require much labor and a long time to erect an argument.

But to return. Even if there was in the constitution an express provision giving to each county the moment it is created a right of immediate representation, still the House has no power to act in the matter without the concurrence of the Senate. It requires a legislative act to change the number previously fixed by law. But I deny there is any such clause in the constitution as the one alluded to. I wish to be distinctly understood. I deny that there is any provision in the constitution which gives always to each county at least one representative.

"The words which have been so often and so triumphantly used in this debate, as giving to each county a right of representation at the moment of its creation, constitutes a small portion of a sentence, and instead of being a substantial provision, asserting a positive right, compose but a 'proviso,' directing and limiting the power of the Legislature in the previous part of the sentence. The words as used in argument are, 'Provided, however, that each county shall be entitled to at least one representative.' Now this is a 'proviso,' and the only way to ascertain its meaning is to look at the previous portion of the clause and see to what it applies.

"A proviso is a limitation of that which precedes it. It is not a substantive provision. It has no force or meaning except when taken in connection with the subject-matter which it limits, and to which it relates. What does this proviso limit and to what does it relate? I answer, unhesitatingly, that it limits and relates to the previous portion of the ninth section of the third article of the constitution, to which it is attached. What, then, is the previous portion of the ninth section? It is composed solely of directions to the Legislature on the subject of enumeration, and the fixing and apportionment of representation. This clause of the constitution does not assert anything of itself to which the proviso can attach; it is entirely directory. If it be not a limitation of the action of the Legislature, which is the subject-matter of the section, to what is it a limitation? To test this, let us throw out of the section all the direction to the Legislature, and see whether there is anything left to support a proviso. There is not a word of the clause left. This proviso, then, is a limitation of the action of the Legislature or it is a limitation on nothing. If, then, it is a limitation of the action of the Legislature, as directed in the previous part of the section, it can only operate as a limitation upon the powers of the Legislature when that body proceeds to perform the acts which this section directs to be performed. The proviso is dormant until the action of the Legislature arouses it. When the Legislature, under this

section, causes an enumeration to be made, it must then proceed to fix the number of representatives, and, having fixed the number, the Legislature is directed to apportion that number among the several counties, cities, or towns entitled to separate representation according to the number of free white inhabitants in each, and the number shall not be less than thirty-six nor more than one hundred.' Here is a limitation of numbers. Is there no limitation of the power of the Legislature in apportioning this number? There is. It is limited by this proviso: 'Provided, however, that each county shall always be entitled (by such apportionment) to at least one representative.' If this view of the subject is correct, then the proviso, which has been the watchword of the friends of the resolution, emblazoned upon the banner under which they have fought, will turn out to be nothing more than limitation of the power of the Legislature, binding that body whenever it makes an apportionment 'always' to each county in such apportionment at least one representative. Great stress has been placed by gentlemen on the word 'always.' I do not perceive the force of the argument on this point. If my construction of this clause is correct, the word 'always' relates to the time when the apportionment takes place be entitled to at least one representative.

The creation or formation of new counties by the Legislature is not directed in that section to which the proviso which I have been discussing is attached. If, then, my previous argument is sound, the creation of a new county does not give it a right of representation until the time for a new apportionment comes round. Since the counties embraced in this resolution were created there has been no enumeration and no new apportionment of representatives,—the constitutional period for that action of the Legislature not having yet arrived. I am therefore forced to the conclusion that these counties are not constitutionally entitled, as counties, to representation on this floor.

"All those who have spoken in favor of the resolution, except the gentleman from Hinds (Mr. Dunlap), have predicated the claim of the new counties to representation at the same session in which they are created upon the proviso to the ninth section of the third article of the constitution. His decision is based upon a different reason, which I shall make bold to notice, not because I deem it of any weight, but because, to my utter astonishment, it seemed to have some influence upon the House. The gentleman from Hinds tells us that no question of constitutional or legal construction has ever embarrassed him so much; that after the most mature deliberation he came to the conclusion that the new counties had not a right of representation in this session of the Legislature. He says that he has expressed this opinion in public and in private, that it is recorded in his letters to his friends, and has been published to the world. The gentleman further told us that if the question had been taken yesterday he should have voted against the resolution, but that to-day he is prepared

to part with the cherished opinions of a year and accede to the claim of the new counties, to which claim he had so long been opposed.

"It seems that since last night a change has come over the spirit of his dream, the scales have fallen from his eyes, and a new light has burst upon his path, which shows him that he has been walking in the ways of errors. But I will not part with him so easily. We have travelled together so long and so lovingly in this matter that I must at least keep some memento of our companionship. Well, then, as I have lost the benefit of the gentleman's vote on the side which I advocate, I will retain his opinion. Though the prophet has been taken from me, I will hold fast his mantle, and thereby, perchance, I may obtain some of the inspiration. The gentleman's opinion against the resolution was deliberately formed, and continued till last night. His opinions in favor of the resolution have been formed in a hurry, and are but a few hours old. On which side, Mr. Speaker, would you consider the weight of the gentleman's opinions to lie? But I should do him injustice not to examine the reasons upon which he has based this sudden change. When the gentleman from Hinds informed the House of his change of opinion, and that he intended to give the reasons, I listened with open ears. I strove in vain to imagine what could be the worms which had thus in a single night eaten away the root of the gourd, the gourd which for a year had grown and flourished and waxed mighty, until many people were refreshed beneath its protecting shelter. Yesterday it was green and beautiful, and the stricken prophet reclined with joy beneath its umbrage. But to-day it is withered, and the hot sun beats unchecked through its leafless branches. The gentleman's reasons were few, but, unlike the sibylline leaves, they did not increase in value as they diminished in number. Indeed, if I understood aright, he gave no reason for his change, but only a precedent; not an argument, but only an analogy. He says he changed his opinion upon this subject within the last twenty-four hours by reflecting upon the State of Arkansas and the admission of her members upon the floor of Congress. He seems to think it is similar to the case before this House, and, if I understand the mode of his argument, it is this: a law passed last winter in Congress making Arkansas a State. A law also passed this Legislature last winter creating the new counties. The Senators and Representatives from Arkansas have taken their seats at the present session of Congress, therefore the new counties are entitled each to an additional member on this floor. I remember but one piece of logic which can equal that of the gentleman from Hinds. It is to be found in the reasoning of the honest Welshman, who attempted to prove that Harry of Monmouth was like Alexander the Great. There is a river in Macedon and there is also a river at Monmouth. It is called Wye at Monmouth, but it is out of my brains what is the name of the other river, but 'tis all one. 'Tis so like as my fingers is to my fingers, and there is salmon in both.'

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"It is a pity that Arkansas came into the Union just at this period.