CHAPTER VIII.

IN the year 1836, during the recess of the Legislature, the eleven so-called Chickasaw counties were duly organized under the act of February 9, 1836, before alluded to. The question was at once mooted among them as to their right of representation in the lower house. The clauses that bore on the subject

were,

First. The ninth section of the third article, which prescribed that the Legislature, at its first session, should cause an enumeration to be made, and every four or six years thereafter up to 1845, and after that at not less than four nor more than eight years, of all the free white inhabitants of the State; and the whole number of representatives shall at the several periods of enumeration be fixed by the Legislature, and apportioned among the several counties, cities, or towns (entitled to separate representation) according to the number of free white in each, and shall not be less than thirty-six nor more than one hundred. "Provided, however, that each county shall always be entitled to one representative."

Second. The sixth and twenty-ninth sections of same article fixed the first Monday of November, 1833, and the day following, and triennially thereafter, as the day of the general election.

Third. The fifth section of same article declares the members of the House shall be chosen by the qualified electors, to serve for two years from the day of the commencement of the general election.

Fourth. The eighteenth section of same article declares that when vacancies happen in either house "the governor, or person exercising his powers, shall issue writs of election."

Sixth. Section 14, Article 5. All vacancies not provided for in the constitution may be filled as the Legislature may prescribe. Twenty-eighth section, same article. County officers may be indicted for malfeasance.

From the above synopsis it is apparent that to entitle a county to a representative two "conditions precedent" were prescribed: first, an enumeration of the free white inhabitants; and, second, an apportionment of the number of representatives. And if a vacancy was to be filled the governor was to issue the writs of election. Bearing the above synopsis in mind the reader can better appreciate the subsequent debate.

Whether the counties had applied to Governor Lynch to issue writs of election to supply the vacancies, as they contended, we cannot say, but the presumption is that he was inquired of, and that he had concluded that he could not do so, as there was really no vacancy; and the proviso of the ninth section prescribing that each county should have one representative did. not cover their case. The governor's message alludes to the question. Be this as it may, the new counties were determined not to be foiled, and accordingly, after they were organized, the boards of police issued writs of election; the election was duly held, and ten representatives were returned as elected.

The adjourned Legislature again convened on the first Monday of January, 1837. Speaker Irwin took the chair, the members appeared and took their seats, and those members who were elected to fill unquestioned vacancies also appeared and were sworn in.

On its being announced that the House was ready for business, Bingaman, of Adams, moved "that the members elect from the counties organized at the session of this Legislature" (naming the twelve Chickasaw counties, including the county. of Newton, which was not a Chickasaw chicken, but had been carved out of the counties of Scott and Lauderdale) "be invited to present their credentials and take the oath of qualification." This motion fell like a bomb-shell in the House; it exploded, and at once raised a storm of discussion, which lasted till past one o'clock, when the House took a recess until three o'clock. On meeting, after some routine business was disposed of, the subject was again called up, and the fires of debate waxed yet hotter. No conclusion was reached, and, after a stormy discussion, the House adjourned till next morning.

Prentiss at once saw the danger of such a precedent, and

immediately denounced the measure as utterly unconstitutional. When the Legislature met on the second day he showed his knightly courtesy by moving, "That the gentlemen claiming seats be invited to take seats within the bar of the House during the discussion of the question as to whether or not they be entitled to seats as members." This motion was unanimously

adopted.

The debate on the question was again resumed, and occupied the House till the adjournment at twelve o'clock, and again from three o'clock to the rest of the day. It was resumed on the following day, and raged fiercely for five days. It was during this five days' discussion that Prentiss made the great speech, which we copy from the "Memoirs":

"I had hoped, Mr. Speaker, when the gentleman from Adams introduced the resolution which has just been read, that the task of opposing it would have been assumed by some one more able than myself. Had this been the case, I might have been contented with a mere vote. But viewing this resolution in the light I do, I should violate every sense of duty were I to remain silent because others will not speak. Sir, the gentleman from Adams seems to think that the resolution is a matter of course, and ought to pass sub silentio. I differ from the gentleman. He cannot so easily introduce this Trojan horse within these walls; I, for one, will hurl a spear against its hollow sides. Sir, I look upon this resolution as a bomb-shell thrown into this House. The gentleman from Adams has lighted the match, and if this House do not extinguish it—if the heel of the majority be not placed upon it-there will be left by its explosion no vestige of the constitution or law. It may appear to the common eye as a little cloud no bigger than a man's hand,' but the political prophet will behold in it the ingredients of a tempest.

"I know I labor under many difficulties in opposing it. Popular opinion is in favor of it. The gentleman has the wind full in his sails, while I must row against an adverse current. I trust, however, that the very fact that the course I am taking is one upon which the public eye will scowl may afford a guarantee of the honesty of my motives. I know it will be said that I am an enemy of the new counties; that I am hostile to the rights of the people; that I am opposed to democratic principles, and other similar aspersions by which demagogues answer arguments. Sir, I throw down in advance my denial to such charges. No man in this State feels a livelier interest in the prosperity of the new counties than I do. No man has watched with greater pleasure their rapid increase in wealth, population, and power, and did not my oath to support the constitution stand in my way, no man would welcome their delegation with a

warmer greeting. But, sir, I have high constitutional duty before me, from the performance of which I will not be deterred by either fear or favor, by what has been said of others or what may be said of myself.

“I am opposed to the resolution of the gentleman from Adams on two grounds: First. That under the constitution the counties embraced in the resolution have not a right as counties to representation in this House at this session. Secondly. That even if they have a representation, the persons claiming seats have not been constitutionally elected.

"We will proceed, then, in the first place, to examine the right of the new counties to representation at this session of the Legislature. I start with this proposition: that the right of representation must be derived from the constitution and the laws made in pursuance thereof. Gentlemen have talked of the natural right of representation as if it were something existing beyond and independent of the constitution. Will gentlemen be so good as to explain to me what they mean by the term? I understand the right of representation to be merely a conventional right. It has its origin solely in the constitution. It is entirely the creature of compact. By the constitution of some States it is based upon a combination of property and population combined, in others upon population alone. A natural right of representation is an absurdity.

"Let us look, then, into the constitution of this State and see what are its provisions in relation to representation. The first great principle is that it is based upon population alone; property, by our constitution, cannot be represented. The next provision relates to the mode in which this general right of representation shall be exercised. If the right existed only in general terms, without any mode pointing out how it should be apportioned or exercised, it would be perfectly nugatory. How could a general provision giving the right of representation to all the free white population of the State be carried into effect unless there was also a provision parcelling it out to different portions of the community, and directing the mode of its exercise? A constitution having no such provision would be still-born. It would have no vitality; no government could be set agoing under it. Our constitution, however, is not obnoxious to these remarks. It contains within itself ample provisions for enabling the people to avail themselves of their general right of representation. The convention which framed the instrument provided in the fifth section of the schedule for the first legislative or representative body specifically, directing how the election should be conducted; and, mark you, Mr. Speaker, especially directing that writs of election should be issued by the president of the convention. The sixth clause of the same schedule says, 'Until the first enumeration shall be made as directed by this constitution the apportionment of senators and representatives among the several districts and counties in the State shall remain as at present fixed by law.'

"Let us examine for a moment what limitations there were to the

powers of the first Legislature in relation to its organization, for it will throw some light upon the main question in controversy. Could that Legislature before an enumeration, even by a joint action of both houses, have increased at that session the number of senators or representatives beyond the number and apportionment which by law then existed? Has not the sixth section of the schedule above cited positively fixed the number of senators and representatives in the first Legislature, and apportioned them according to the then existing law? Is not the sixth section a constitutional organization of the first Legislature as to numbers and apportionment? Would not the admission of an additional number of persons into either branch, before an enumeration had taken place, have been a violation of that section of the schedule and a disorganization of the body? In other words, is not a change of constitutional organization disorganization?

"Now let us advance a step further, and see how the present Legislature came into existence, and what are the powers of its respective branches. Every Legislature after the first must claim its constitutional origin from the ninth and tenth sections of the third article of the constitution, which are as follows:

"Section 9. The Legislature shall at their first session, and at periods of not less than every four years, nor more than every six years, until the year 1845, and thereafter at periods of not less than four nor more than every eight years, cause an enumeration to be made of all the free white inhabitants of this State; and the whole number of representatives shall, at the several periods of making such enumeration, be fixed by the Legislature, and apportioned among the several counties, cities, or towns entitled to separate representation according to the number of free white inhabitants in each, and shall not be less than thirty-six nor more than one hundred. Provided, however, that each county shall always be entitled to at least one representative.

"Section 4. The whole number of senators shall, at the several periods of making the enumeration before mentioned, be fixed by the Legislature, and apportioned among the several districts to be established by law according to the number of free white inhabitants in each, and shall never be less than one-fourth nor more than one-third of the whole number of representatives."

"Here are two sections of the constitution under which the present Legislature was organized, so far as the number of the senators and representatives is concerned.

"When this session of the Legislature commenced on the 1st of January. 1836, each senator came from a district to which the right of senatorial representation had been previously apportioned by law, and every representative took his seat by virtue of a law of apportionment giving to that portion of the country which he claimed to represent a right to that amount or portion of the representation. Did not the Legislature of the