pose, it is not even connected with it. The right of preserving order depends on the right of enforcing it, or the right of punishment for breaches of order, always possessed by the body, but never, either by delegation or otherwise, by the chair. It is notorious that the chair cannot enforce its calls to order. The body alone can, and that only on its decisions, and not on that of the presiding officer. It is thus manifest, the high right of preserving order, to which you make the right of calling to order incidental, belongs especially to the Senate, and not to the Vice-president; and, if your argument be correct, the incident must follow the right; and, consequently, it is the right and duty of a senator to call to order for disorderly conduct. So clear is the proposition, that, if the member called to order by the chair for disorderly conduct chooses to persist, the presiding officer has no other remedy but to repeat his call, or throw himself, for the enforcement of it, on the Senate. This feebleness of the chair, in questions of order, explains why there has always been such indisposition to call to order, even when it is made the express duty by rule, as in the House of Representatives, and the House of Commons in England. Thousands of instances might be cited to establish the truth of this remark, both there and here: instances in which all that has been said and uttered by Mr. Randolph is nothing, but in which the speaker waited for the interference of some of the members, in order to preserve order. Such was the case in the recent occurrence in the House of Commons, when Mr. Hume made an attack on the Bishop of London and the lord-chancellor, both of whom, as members of the House of Lords, were under the protection of positive rules; yet no one, even there, had the assurance to throw the responsibility on the presiding officer. The partisans of power in our country have the honour of leading in these new and dangerous attacks on the freedom of debate.

*

Some men, of honest intention, have fallen into the error about the right of the Vice-president to preserve order independently of the Senate, because the judges, or, as they express it, the presiding officer in the courts of justice possess the right. A moment's reflection will show the fallacy. There is not the least analogy between the rights and duties of a judge and those of a presiding officer in a deliberative assembly. The analogy is altogether the other way. It is between the court and the house. In fact, the latter is often called a court, and there is a very strict resemblance, in the point under consideration, between what may be called a parliamentary court and a court of justice. They both have the right of causing their decision to be respected, and order and decorum to be observed in their presence, by punishing those who offend. But who ever heard of the speaker or Vice-president punishing for disorderly conduct? The atmost power they can exercise over disorderly conduct, even in the lobby or gallery, is to cause it to be suppressed, for the time, by the sergeant-at-arms.

Enough has been said, though the subject is far from being exhausted, to demonstrate that your views of the relative powers and duties of the Vice-president and the Senate, in relation to the point in question, are wholly erroneous. It remains to be shown that your opinions (for arguments they cannot be called) are dangerous to our liberty, and that they are in conflict with the first principles of our government. I do not attribute to you, or those with whom you are associated, any deep-laid design against public liberty. Such an attempt, as flagitious as it may be, requires a sagacity and boldness quite beyond what we have now to apprehend from those in power. But that there exists, at the present time, a selfish and greedy appetite to get and to hold office, and that, to effect their grovelling objects, doctrines slavish and dangerous are daily propagated, cannot be doubted by even careless observers. The freedom of debate is instinctively dreaded by the whole corps, high and low, of those who make a speculation of politics; and well they may for it is the great and only effectual means of detecting and holding up to public scorn every machi

nation against the liberty of the country. It ranks first, even before the liberty of the press, the trial by jury, the rights of conscience, and the writ of habeas corpus, in the estimation of those who are capable of forming a correct estimate of the value of freedom, and the best means of preserving it. Against this palladium of liberty your blows are aimed; and, to do you justice, it must be acknowledged, if the energy be not great, the direction is not destitute of skill. If you could succeed in establishing the points which you labour, that the Vicepresident holds a power over the freedom of debate, under the right of preserving order, beyond the will or control of the Senate; and that, consequently, he alone is responsible for what might be considered an undue exercise of the freedom of speech in debate, a solid foundation would be laid, from which, in time, this great barrier against despotic power would be battered down. It is easy to see that the scheme takes the power of protecting this, the first of its rights, wholly out of the hands of the Senate, and places its custody in the hands of a single individual, and he in no degree responsible to the body over which this high power is to be exercised: thus effectually destroying the keystone of freedom, responsibility, and introducing into a vital part of our system uncontrolled, or, what is the same thing, despotic power; which, being derived, by your theory, from the Constitution, and being applicable to all points of order, necessarily would vest in the Vice-president alone an independent and absolute power, that would draw into the vortex of his authority an unlimited control over the freedom of debate.

Mark the consequences! If the Vice-president should belong to the same party or interest which brought the President into power, or if he be dependant on him for his political standing or advancement, you will virtually place the control over the freedom of debate in the hands of the executive.

You thus introduce the President, as it were, into the chamber of the Senate, and place him virtually over the deliberation of the body, with powers to restrain discussion, and shield his conduct from investigation. Let us, for instance, suppose that the present chief magistrate should be re-elected, and that the party which supports him should succeed, as, in all probability, they would in that event, in electing also their Vice-president, can it be doubted that the rules for the restraint of the freedom of debate in the Senate, which have been insisted on openly by the party during the last winter, would be reduced to practice, through a subservient Vice-president? And what are those rules? One of the leading ones, to advert to no other, is, that the conduct of the executive, as a co-ordinate branch of that government, cannot be called in question by a senator in debate, at least so far as it relates to impeachable offences; and, of course, an attempt to discuss the conduct of the President, in such cases, would be disorderly, and render the senator liable to be punished, even to expulsion. What would be the consequence? The Senate would speedily sink into a body to register the decrees of the President and sing hosannas in his praise, and be as degraded as the Roman Senate under Nero.

Pre

But let us suppose the opposite state of things, in which the Vice-president chooses to pursue a course independent of the will of the executive, and, instead of assuming so dangerous an exercise of power, he should indulge (for indulgence it must be called, if allowed by his courtesy) that freedom of debate which exists in other deliberative assemblies. What will then follow? cisely that which occurred last winter. Most exaggerated and false accounts would everywhere be propagated, by hirelings of power, of the slightest occurrence in the Senate. The public indignation would be roused at the supposed disorder and indecorum, and the whole would be artfully directed against the Vice-president, in order to prostrate his reputation; and thus an officer, without patronage or power, or even the right of defending himself, would be the target against which the whole force and patronage of the Government would be directed. Few men would have the firinness to encounter danger so tremendous ;

and the practical result, in the long run, must be a subservient yielding to the executive will.

No. 2.

Having now established, I may venture to say beyond the possibility of reasonable controversy, that the idea of an inherent right in the Vice-president, independent of, and beyond the will of the Senate, to control the freedom of debate, is neither sanctioned by the Constitution, nor justified by the relation between the body and its presiding officer, and that it is subversive of the right of free discussion, and, consequently, dangerous to liberty, I might here fairly rest the question. To you, at least, who treat with scorn the rules and usages of the Senate, as the source of the power of the Vice-president, all farther inquiry is fairly closed. But as many, who may agree with you in the conclusion, may treat with contempt your high-strained conception of the origin of the power under investigation, it will not be improper to ascertain whether it has been conferred on the Vice-president by any act of the Senate, express or implied, the only source whence the power can be fairly derived. In this view of the subject, the simple inquiry is, Has the Senate conferred the power? It has been fully established that they alone possess it, and, consequently, from the Senate only can it be derived. We, then, affirm that the Senate has not conferred the power. The assertion of the negative, in such cases, is sufficient to throw the burden of proof on those who hold the affirmative. I call on you, then, or any of your associates, to point out the rule or the usage of the Senate by which the power has been conferred. None such has, or can be designated. If a similar question be asked as to the power of the Speaker of the House of Representatives, how easy would be the reply? The 19th rule, which expressly gives the power to him, would be immediately quoted; and, if that were supposed to be doubtful, the journals of the house would be held up as containing innumerable instances of the actual exercise of the power. No such answer can be given when we turn to the power of the Vice-president. The rules are mute, and the journals of the Senate silent. What means this striking difference, but that, on this point, there is a difference, in fact, between the power of the speaker and of the Vice-president? a difference which has been always understood and acted on; and when to this we add, that the rules of the two houses in regard to the power are strikingly different; that, while those of the Representatives expressly delegate the power to the speaker, those of the Senate, by strong implication, withhold it from the Vice-president, little room can be left for doubt. Compare, in this view, the 19th rule of the house and the 7th of the Senate. The former says, "If any member, by speaking or otherwise, transgress the rules of the house, the speaker shall, or any member may, call to order in which case the member so called to order shall immediately sit down, unless permitted to explain; and the house shall, if appealed to, decide on the case without debate; if there be no appeal, the decision of the chair shall be submitted to. If the decision be in favour of the member called to order, he shall be at liberty to proceed; if otherwise, he will not be permitted to proceed without leave of the house; and if the case require it, he shall be liable to the censure of the house." The rule of the Senate, on the contrary, provides," If the member shall be called to order for words spoken, the exceptionable words shall immediately be taken down in writing, that the presi dent may be better enabled to judge of the matter." These are the corresponding rules of the two houses and can any impartial mind contend that similar powers are intended to be conferred by them on the speaker and Vice-president? Or will it be insisted on that the difference in the phraseology is accidental, when it is known that they have often been revised on the reports of commit

tees, who would not fail to compare the rules of the two houses on corresponding subjects? Under such circumstances, it is impossible that it could be intended to confer the same power by such difference of phraseology, or that the withholding of the power in question from the Vice-president was unintentional. This rational construction is greatly strengthened, when we advert to the different relations which the two officers bear to their respective houses. The speaker is chosen by the House of Representatives, and is, consequently, directly responsible to the body; and his decision, by the rules, may be appealed from to the house. The Vice-president, on the contrary, is placed in the chair by the Constitution, is not responsible to the Senate, and his decision is without appeal. Need we look farther for the reason of so essential a variation in the rules conferring power on their respective presiding officers? It is a remarkable fact, that the same difference exists in the relation between the presiding officers of the two houses of the British Parliament, and the bodies over which they respectively preside. In the Commons, the speaker is chosen as in our House of Representatives, and is, consequently, in like manner responsible; on the contrary, in the House of Lords the chancellor presides ex-officio, in like manner as the Vice-president in the Senate, and is, in like manner, irresponsible to the body. Now it is no less remarkable that the speaker possesses the power in question, while it is perfectly certain that the lord-chancellor does not. Like cause, like effect; dissimilar cause, dissimilar effect. You, sir, have, it is true, made a puny effort to draw a distinction between the mode in which the Vice-president and the lord-chancellor are appointed, and have also feebly denied that the latter has not the power of calling to order. Both of these efforts show the desperation of your cause. What does it signify by whom an ex-officio officer is appointed, if not by the body? There can be but one material point, and that without reference to the mode of appointment-is he, or is he not, responsible to the house? If the former, there is good cause for the delegation of the power; for power exercised by responsible agents is substantially exercised by the principal; while by irresponsible agents it is the power of him by whom it is exercised. Nor is your effort to show that the chancellor has the power less unhappy. You have cited but one instance, and that really renders you ridiculous. The lord-chancellor, as is well known, has the right of speaking; and you most absurdly cite the commencement of a speech of one of the chancellors, in which he states that he would call back the attention of the Lords to the question at issue, as an instance of exercising the power of calling to order as presiding officer, for departure from the question! Though you have signally failed to prove your position, you have not less completely established the fact, that your integrity is not above a resort to trick, where argument fails. Nor is this the only instance of subterfuge. You made a similar effort to do away the authority of the venerable Jefferson. He has left on record, that he considered his power as presiding officer of the Senate as the power of umpirage, or, what is the same thing, an appellate power. In order to break the force of this authority, you have denied the plain and invariable meaning of the word, and attempted to affix one to it which it never bears. You say that its usual meaning is synonymous with "office," "authority," or "the act of determining," and that it is only in its technical sense that it conveys the idea of an appellate power! Can it be unknown to you that no word in the language more invariably has attached to it the idea of decision by appeal, and that there is not an instance of its being used by any respectable authority in the sense which you state to be its usual meaning?

It only remains to consider the cases that you have cited from the Manual, to prove that the Speaker of the House of Commons possesses the power in question; by which you would infer that it belongs also to the Vice-president. A very strange deduction by one who believes that the power originates in the Constitution, and that it neither can be given or taken away by the authority of the

Senate itself. After asserting that it has "deeper and holier foundations than the rules and usages of the Senate," there is something more than ridiculous, that you at last seek for the power in the rules and usages of the House of Commons! But let such inconsistency pass. You have, indeed, established the fact that the speaker has the power, but you have overlooked the material circumstance, as I have shown from your own cases, that he possesses it by positive rules of the house. You might as well have shown that the Speaker of the House of Representatives possesses it, and then inferred that the Vicepresident does also; for he, too, holds the power by positive rules of the body, which makes the analogy as strong in the one case as the other.

But you would have it understood that the rules of Parliament have been adopted by the Senate. No such thing. I challenge you to cite a single rule or act of the Senate that gives countenance to it. Finally, you tell us that Mr. Jefferson has cited these rules as being part of the rules and usages of the Senate. Admitting, for a moment, that Mr. Jefferson had cited them as such, still a very important question would arise, How came they to be the rules of the Senate? The Constitution provides that the Senate shall determine the rules of its proceedings; now, if that body has not, by any rule, adopted the rules of the British Parliament, by what process of reason could they be construed to be the rules of the Senate? That the Senate has not adopted the rules of Parliament, is certain; and I confess I am not a little curious to see the process of reasoning by which they are made the rules of the Senate, without adoption. Is there not a striking analogy between this and the question, whether the common law is a part of the laws of the Union? We know that they have been decided by the highest judicial authority not to be; and, it seems to me, the arguments which would be applicable to the one would be equally so to the other question. That the rules and usages of Parliament may be referred to to illustrate the rules of either house of Congress, is quite a distinct proposition, and may be readily admitted. Arguments may be drawn from any source calculated to illustrate, but that is wholly different from giving to the rules of another body a binding force on the Senate, without ever having been recognised as its rules. This is a subject of deep and grave importance; but as it is not necessary to my purpose, I decline entering on it. It is sufficient, at present, to deny that Mr. Jefferson has cited the rules of the Parliament, referred to by you, as those of the Senate. On the contrary, they are expressly cited as the rules of the British House of Commons, without stating them to be obligatory on the Senate. He has notoriously cited many of the rules of that body which are wholly dissimilar from the usages of the Senate. But you cite Mr. Jefferson's opinion, in which he says, "The Senate have, accordingly, formed some rules for its government" (they have been much enlarged since); "but these going only to a few cases, they have referred to the decision of the president, without debate or appeal, all questions of order arising under their own rules, or where there is none. This places under the discretion of the president a very extensive field of decision." If your object in quoting the above passage was to show that, where the Senate has adopted no rules of its own, the rules of Parliament are those of the Senate, it completely fails. Not the slightest countenance is given to such an idea. Mr. Jefferson, on the contrary, says that, in cases of omission, the sound discretion of the president is the rule ;* and such has been the practice, and from which it has followed that usages of the Senate are very different from the Parliament, which could not be, if the latter were adopted, where there were no positive rules by the Senate.

If this view of the subject be correct, which is certainly Mr. Jefferson's, the * This opinion of Mr. Jefferson's is probably founded on the latter part of the 6th rule, which strongly supports it. The rule is as follows: "When a member shall be called to order, he shall sit down until the president shall have determined whether he is in order or not; and every question of order shall be decided by the president, without debate; but if there be a doubt in his mind, he. may call for the sense of the Senate."