The second was agreed to--ayes 75; and

The third was agreed to without a division.

When the committee rose and reported their agreement to the resolutions.

The House immediately considered the report.

On concurring with the Committee of the Whole in their agreement to the

first resolution,

Mr. FISK said he sincerely regretted it was not in his power to vote

for this resolution. He regretted there was no such principle in the

constitution as is prescribed. Such a principle not being in the

constitution, he did not conceive it in the power of the House to make

the provision. It was not, in his opinion, in their power to say a man

should not hold a seat in that House who was not prohibited by the

constitution. It was on this ground only he was against the resolution

under consideration.

Mr. J. RANDOLPH.--I think the gentleman from Vermont may in perfect

consistence with the principle he has laid down, which I do not mean

at present to contest, give his vote in favor of this resolution. He

says that this House has not a right to make a disqualification which

the constitution itself does not attach to the tenure of a seat on this

floor; that the constitution draws a line between the qualification

and disqualification of a member, and that this House has no right to

alter them. What do we propose to do? To add a new disqualification?

No; to do that which the constitution put in our hands, which it not

only authorizes but enjoins upon us. The constitution declares that

each House shall be the judge of the qualification of its members. It

is clearly, then, the duty of the House to expound what is or is not a

disqualification; and we are now only about to declare what is such a

disqualification--merely to expound the constitution on this head. I know

some gentlemen are startled at the idea of expounding the constitution.

But do we not do this every day? Is not the passage of every act a

declaration on the part of this House that a decision upon it is among

their constitutional powers? Or, in other words, is it not an exposition

of the constitution? So, in this instance, I will suppose a man returned

to serve as a member of this House, and that he is declared, for some

reason, to be disqualified from holding a seat. This, according to the

gentleman, would be expounding the constitution. We propose doing no more

than saying, if the Secretary of State, or Chief Justice, should come

here, they cannot hold a seat. We say that an abuse exists under the

constitution, and offer a remedy.

I have heard some quibbling about the meaning of the word “officer.”

What is the meaning of office? Agency; it is the office of a man’s cook

to dress his dinner, of a tailor to supply him with clothes; and it is

the office of a contractor to fatten on the land--to acquire lordships,

demesnes, baronies--extensive territory--by the advantage he derives from

holding the public money, in virtue of his contract. But it is asked, if

a contractor is an officer; and whether he can be impeached? because,

under the constitution, all civil officers are liable to impeachment.

Would you impeach the Marshal of the District of Columbia? It may be

answered that you may impeach him, but that you would not probably do

so, because that would be breaking a butterfly on the wheel. Would you

impeach a deputy postmaster? And yet when the postmaster at New York

accepted his appointment, did he not vacate his seat in the Senate? There

is no doubt a contractor is an officer _pro tempore_--it is not an office

in perpetuity, but created for a time, and for a particular purpose.

And I will ask, if it is not more dangerous to the independence of the

two Houses to admit commissioners and contractors within their walls

than officers with legal salaries and appointments? If we are to admit

either, I say, give me the legal officer, with a determinate salary and

definite powers, rather than the contractor who may gain thousands and

tens of thousands of dollars by a single job. But, if the gentleman from

Vermont is of opinion that a contractor is not an officer, under the

constitution, I hope he will join me in another vote, on an amendment

which I shall beg leave to offer--this goes only to purge these walls,

not those of the other House. I mean an amendment declaring void all

contracts made with members of either House, and on this principle:

between the sessions of the Legislature it is possible for a member to

receive a lucrative job, by which he may put thousands in his pocket,

and which being completed in the recess, and there being nobody to take

cognizance of it, it will be impossible to apply a remedy. But, I hope

this construction, which, so far as relates to our own House, we have

an undoubted right to make, will obtain as the true construction of the

constitution.

But it is said that this House, and Houses which may hereafter meet, may

give the constitution a different construction. No doubt of it; and this

may operate to the end of time. A former House passed a sedition law; a

subsequent House deemed the law unconstitutional. It is true they did not

declare it so, and I am sorry for it; but there is no doubt of the fact.

Now, we may pass a sedition law again to-morrow, and the people rise up

against it, and send different members to represent them. The people may

again slumber; as long as you keep your hands from their pockets, they

will keep their eyes from yours; and, in the same way, this law may be

repealed. I can, therefore, see no force in this objection. The courts of

justice undertake to expound the constitution, and shall not the House

of Representatives be as competent to do this as any court of justice?

I will suppose a case, that of a man condemned under the Sedition law

by a tribunal of justice. Suppose men of different principles come on

the bench, would they hesitate to reverse the preceding decision of the

court? Indisputably not. Here, too, then, we would behold varying and

repugnant decisions.

Mr. EPPES.--I have no doubt that every objection which can be made to

a member of this House holding a civil office during his continuance

as a Representative, applies with equal force to his holding a

lucrative contract. The framers of the constitution in excluding civil

officers from the floor of this House, most certainly intended to

prevent any species of dependence which might influence the conduct

of the Representative--to prevent his looking up for preferment to

the Executive, or being biased in his vote by Executive favor. A

lucrative contract creates the same species of dependence, and every

objection which could be urged against an officer, applies with equal

force against contractors, who are dependent on the Executive will,

and particularly carriers of the mail. While, however, I make this

admission, I do not believe we have power to pass this resolution. The

words of the constitution are: “No person holding an office under the

United States shall be a member of either House during his continuance

in office.” These words are plain and clear. Their obvious intention

was to have excluded officers, and officers only. It would certainly

have been equally wise to have excluded contractors, because the reason

for excluding officers applies to them with equal force. We are not,

however, to inquire what the constitution ought to have been, but what

it is. We cannot legislate on its spirit against the strict letter of

the instrument. Our inquiry must be, is he an officer? If an officer,

under the words of the constitution, he is excluded; if not an officer,

we cannot exclude him by law. It is true, as has been stated, that, by

the constitution, we are made the judges of the qualifications of our

own members. This judgment, however, is confined within very narrow

limits. The constitution prescribes the qualifications of a member. We

can neither narrow nor enlarge them by law. Our inquiry can go no further

than this: has the Representative the qualifications prescribed by the

constitution? An extensive meaning has been given to the word “office.”

How far such a construction of the meaning of this word is warranted, I

leave for others to decide. That all contractors are not officers, I am

certain. A man, for instance, makes a contract with the Government to

furnish supplies. He is certainly not an officer, according to the common

and known acceptation of that word. He is, however, a contractor, and,

under this resolution, excluded from a seat here. A carrier of the mail

approaches very near an officer. The person takes an oath, is subject

to penalties, the remission of which depends on the Executive. His

duties are fixed and prescribed by law. Near, however, as this species

of contract approaches to an office, I do not consider that the word

“office” in the constitution can include even this species of contract.

I consider the word “office” in the constitution ought to be construed

according to the usual import and meaning of that term; and as I do

conscientiously believe that the word “office” and the word “contract”

cannot be tortured to mean the same thing, I shall vote against the

resolution.

Mr. ALSTON.--While I am as much opposed as any man to see any holder of

public money within these walls, I cannot justify myself in declaring

what is or what is not the constitution. If in any case this ought to be

done, this surely should be the last. What is its effect? To deprive a

member of his seat on the vote of a bare majority, when the constitution

has declared that “no seat shall be vacated, but on the vote of

two-thirds of the members.” Let this House say so, and what becomes of a

contractor, if any such there be within these walls? The decision of the

House will be in violation of the constitution. No man who knows me will

imagine that I have any partiality for contractors holding seats within

these walls. I have never held a contract, or received a cent of the

public money but for my wages as a member of this House. I am, therefore,

as disinterested as man can be on this point. If there is a contractor

within the meaning of the constitution, let him be pointed out. I am not

certain how I shall vote upon such a proposition. But I will not declare

beforehand a particular construction of the constitution. If I believe

the case comes within the constitution, of which I am not certain, I will

vote for clearing the House of such a member. But I will not consent to

a majority declaring in this way what they cannot carry into effect.

How can this be done? If you cannot get two-thirds of the members of

this House to vacate the seat, I ask what becomes of the resolution

declaratory of the meaning of the constitution? But it is idle to pass a

declaratory resolution unless it can be carried into effect. One thing

I will say, if the mover will modify his resolution so as to impose

a penalty on any officer who shall make a contract with a member of

Congress, I will give it my consent. For I wish to see no man in these

walls dependent on the Government. I still adhere to the principle which

I set out with, when I entered into public life, for I became a member of

the legislature of the State which I have the honor to represent at the

age of twenty-one; but there was no office in the gift of any government

which I would possess. This is a principle to which I strictly adhere,

and I do not believe I have any relation on earth who holds an office,

numerous as my relatives are.

Mr. R. NELSON said he was sorry that he could not on this occasion,

consistent with the oath he had taken to support the constitution,

advocate the resolution under consideration. He agreed that it was highly

improper for contractors to hold seats in that House, as there were many

cases in which they could not give a free and impartial vote; but in his

opinion there was no power to exclude members from a seat, unless that

power was contained in the constitution. He said he would give his idea

of the spirit and meaning of the constitution on this point. They were

bound by its letter--where the letter and the words of it were plain,

they were bound strictly to adhere to them; where, from the wording,

the meaning was doubtful, or difficult, every member was bound to put

that construction which his judgment dictated. But where there was no

difficulty, where the words were plain and obvious, he would ever raise

his hands against what was called the spirit of the constitution, or, in

other words, giving it a meaning which the words would not bear. If this

power existed in the constitution, it must be found under that section

which declares, that “No Senator or Representative shall, during the

time for which he was elected, be appointed to any civil office under

the authority of the United States, which shall have been created, or

the emoluments of which shall have been increased, during such time;

and no person holding any office under the United States shall be a

member of either House, during his continuance in office.” The question

then comes to the single point: Is a contractor an officer under the

constitution? If he is, there is no doubt he may be excluded from a

seat in this House; but if he is not, he cannot be excluded. What then

is the idea of an officer under the constitution? It either must be

recognized by the constitution, or some law passed in conformity to

it, for no man under the Government has a right without law to create

as many offices as he pleases. The Postmaster-General has a right to

contract for carrying the mail; he may employ for this purpose fifty,

five hundred, or five thousand men. Will any body thence contend that

the Postmaster-General has the right of creating five thousand offices?

Our constitution has been justly extolled as the freest in the world,

and as the best calculated to promote the happiness and security of the

people. It has been called free in contradistinction to those despotic

governments, where all the offices are held up to sale. Is not this the

case with contracts? Are they not uniformly given to the lowest bidder?

What government of principle then is this, which proposes to put a

construction upon the constitution, by which offices under the Government

shall be thus exposed to sale? But are they in truth officers of the

United States, recognized either by the constitution or laws? No, they

are not officers of the United States, they are mere hirelings of the

Postmaster-General; he has not the power of setting up the constitution

to the highest bidder. If so, it is no longer a free constitution; it

does not deserve the eulogiums which have been so justly passed upon it.

Mr. EARLY.--I would not rise to trouble you were not the yeas and

nays to be recorded on this question. I am as fully sensible as the

honorable mover of the resolution, or any other gentleman on this

floor, of the extreme impropriety, to say the least of it, of persons

remaining members of this House who hold a contract under the Government

to which any emolument is attached. With him and them I believe, that

of all descriptions of appointment, this is the most improper to be

blended, where the emoluments are not fixed by law, but rise or fall

with circumstances. I am therefore as willing as any person can be to

adopt any measure to effect a remedy of this evil, which we possess

the constitutional right of doing. My difficulty on this subject is

not the same with that presented to the minds of some gentlemen, that

we are not authorized to pass a resolution putting a construction upon

the constitution. On this subject, by the constitution we are made

judges of the qualifications of the members of this House. If so, we are

necessarily judges of their disqualification also. One power implies

the other. I therefore have no difficulty on this score. The simple

question is, in my mind, whether a contractor is an officer under the

constitution? My own opinion is decidedly in the negative--an opinion

formed after the most mature reflection. I can appeal to you, sir, that I

have sought after truth on this subject with industry; and I can appeal

to other members to attest my having contemplated early in the session

the offering a resolution as the foundation of a law, to give effect to

the object of the gentleman from Virginia, to declare void any contract

made by any officer under this Government with any member of either

House. So far I am prepared to go, if any member shall introduce such a

proposition. The passage of such a law will remove the inconvenience

which might arise from interfering decisions made in this House at

different times, and will prevent the existence of a different rule in

the two branches of the Legislature.

Mr. J. RANDOLPH admitted that this might be, as he was convinced it was

with many gentlemen, and hoped it was with all, a question admitting

of a fair difference of opinion. It was a question that respected the

construction of the Constitution of the United States. The point in

issue, whether a contractor is or is not an officer of the United States,

had been set aside by being begged. Gentlemen argue as if it was proposed

to add a new qualification to holding a seat on this floor, when in

truth, no such question existed; the only question was, whether there

was an existing disqualification. While I am up, said Mr. R., permit

me to say the gentleman from Maryland has, with a peculiar infelicity,

abandoned the ground which he had first taken. He says that a contract

cannot be an office, because the former are put up to sale; and because

no man, under the constitution, can possess the power of creating an

indefinite number of offices. And yet, how are those men who carry

the mail or discharge the duties of postmasters appointed, but on the

mere _dictum_ of the Postmaster-General? And how are foreign Ministers

appointed? They are not appointed by law. The President nominates as many

as he pleases, and is only limited by the money at his disposal. As to

the offices under the Postmaster-General, as has been alleged, being let

to the lowest bidder, I believe it would be difficult to establish the

allegation. I understand that that is not the principle on which they

have been let out. We are told that a contract is nothing but a bargain.

It certainly is a bargain. But suppose the office of Postmaster-General,

as that seems in this debate to have engaged so much of the attention

of gentlemen, should be let to the lowest bidder; would the person that

discharged those duties be less an officer of the United States? There is

one office which I believe is always let to the lowest bidder--a common

executioner. Who is he? The deputy of the sheriff: and _quo ad hoc_, he

is as much an officer as the superior who employs him.

Mr. ELMER said it was perfectly clear to him, that the members of that

House were not at liberty to vote for the resolution under consideration.

Both common sense and the constitution forbade considering a contract in

the light of an office, and he had never before heard it contended that

they were equivalent terms. He would cordially give his vote for any law

which could be constitutionally passed, to get rid of speculation and

corruption of any sort, but the oath which he had taken to support the

constitution limited his power, which he could not transcend.

Mr. KELLY said he would concisely assign the reasons which would induce

him to vote against the resolution. He did not believe an officer and a

contractor meant the same things. With regard to the contractors holding

a seat on that floor, it might happen that a man might be a contractor

without being in the least disqualified from impartially discharging all

the duties of a member, as the contract which he formed might be more

for the good of others than his own benefit. He, however, allowed that

where a person held a seat, and made use of the power it gave him to

make a contract, he was highly censurable. Still he was of opinion that

it was not in the power of the House to declare the two appointments

incompatible, unless the constitution expressly authorized them. In

examining the constitution he found no such provision. Though it had been

attempted to be shown that a contractor and an officer were one and the

same, he believed they were very distinct things. A contractor receives

no authority from Government; his contract was derived from an officer,

and all the power he possessed was derived from him, who was only

amenable for the performance of the duty to the person who appointed him.

A contractor could not, therefore, be considered as an officer under the

constitution, amenable to the United States.

Several allusions, said Mr. K., have been made to cases which have

occurred under the Postmaster-General, but until these shall be

particularly pointed out, it will be impossible for us to decide how

we are to act. I believe that it does not become this House to pass

declaratory acts relative to the constitution. It ought, in my opinion

to stand on its own footing; and every case that is presented ought to

be decided, not by a declaratory act, but by the constitution itself.

My colleague says that the judges of the federal as well as State

courts take an oath as well as we do, to support the constitution; and

that, notwithstanding they are in the daily habit of construing the

constitution. But there is a wide difference between their deciding

particular cases which properly come before them, and this House going

into a general declaration without any such particular case. Would the

judges undertake to declare the meaning of the constitution without the

existence of a particular case calling for their decision? So that the

very thing which the House is about doing, has been invariably avoided by

the judges.

The question was then taken by yeas and nays on agreeing to the

resolution--yeas 25, nays 86.

MONDAY, March 31.

_Yazoo Claims._

A message was received from the Senate informing the House that they had

passed a bill to carry into effect the provisions of the eighth section

of the “Act regulating the grants of land, and providing for the disposal

of the lands of the United States south of the State of Tennessee.”

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