holding any office of trust or profit under them, or either of them." But we all know that this is not a part of the constitution; that it has not been ratified by a sufficient number of States to make it so. And I see that in the copies of the constitution printed under the superintendence of our Secretary, and furnished to the members of the Senate, it has been, very properly, wholly omitted. Now, suppose that any man should receive and retain a present from a foreign potentate; suppose, for example, my honorable colleague (there is no want of courtesy in making the supposition, since no one can believe the case possible in fact) had, during his embassy to France, received a present from Louis Philippe, and retained it for his own use, and his citizenship and capacity for public office should be drawn in question, and impugned on that ground, and the fact should be proved by incontestable evidence: I ask him to tell me what ought to be thought of the judges who should take and apply to his case the 13th amendment of the constitution, printed in Bioren's edition of the laws, published by authority, and deny him all recourse to the evidence which the journals of the State Legislatures would afford, that this provision is not a part of the constitution?

At the last session of Congress, there was a bill that passed one House, but was not, in fact, passed by the other; yet, through inadvertence, it was enrolled, signed by the President of the Senate and by the Speaker of the other House, and actually approved and signed by the President. The mistake (as I understand) was discovered before the acts of the session were printed and published. But, suppose the discovery had not been so timely made, and the act had been printed and published by authority; this, surely, would not have been of force to make that a law which

had received the assent of only one branch of the Legislature. But the truth could nowise be ascertained but by an examination of the journal. It may be said, indeed, that the truth would equally appear by an inspection of the printed copy as of the manuscript original. And this would be true enough, upon the supposition that the printed journal is an exact copy of the manuscript, and capable of being verified by a comparison with it; but if we shall assert and exercise a right to expunge any entry from our manuscript journal, and thereby to prevent the insertion of it in the printed copy, we shall take away all faith, all confidence, all certainty, from the printed journal; and if we shall establish the doctrine, that the original manuscript need not be preserved for a moment after the printing and publication of it, by what possible means shall the true history of our proceedings be ascertained? If the act I have mentioned, which, though passed by only one House, was enrolled and signed by the presiding officers of both Houses, and approved by the President, should be adduced, with all these evidences of authority upon it, as the foundation of any right claimed under it, and it should be objected that the act never received the assent of the Senate, the answer would be plausible, if not conclusive, that, for aught that appears, the Senate may have expunged the entry of its assent to the act, after it had been perfected by the approbation of the President, and that the act must be regarded as law. The answer certainly could not be refuted by an appeal to any authentic written evidence. I beseech gentlemen to reflect upon the possible consequences of this "avenging" process of expunging; what doubts it may bring upon the evidence of our proceedings; how it may impair the authority of our acts; how it may, perchance, have the effect of giving authority to acts, as laws, which, in truth, have never been passed.

The original manuscript journal is the journal; that journal which the constitution commands us to keep.

[APRIL 4, 1836.

But gentlemen insist that the constitutional provision that each House shall keep a journal," imports only that they shall make one, without requiring that they shall preserve it.

This Anglo-Saxon word to keep is generally used in a strict literal sense, and then always imports to preserve, and nothing else or more. It is used in divers metaphorical senses, which, from frequency, have the appearance, at first view, of being literal; but it always imports the idea of preservation or indefinite continuation, intended, requested, or commanded. It is never used as synonymous with making any thing. Every child of three years old knows, when his mother tells him to keep any thing, that she means he is to take care of it. The very instances stated by the gentleman from Missouri serve to show that to keep does not mean to make, but to preserve, or to continue indefinitely. Take a few of the least obvious of them for specimens. “To keep company" does not mean to make the company one keeps, but to frequent one or more persons, often and habitually; not to pay a single casual visit. "To keep a mill" means not to make the mill, or to make the grain to be ground, or to grind the grain; but to take care of the mill, attend to the working of it, preserve the corn for grinding, and, after it is ground, preserve the meal for use. "To keep a store," or "to keep a bar," most certainly does not mean to make the goods or the liquors, nor (as he supposes) simply to sell them; it means to take care of the goods for sale, sell them, and preserve the proceeds for further use.

But let us resort to better authority than either the gentleman or I can pretend to be. The English translation of the Bible is one of the best authorities we have in the language for the meaning, propriety, and purity of words and phrases. It is "the well of English undefiled." This word keep is very often used in Holy Writ, and always imports the idea of careful preservation, or endless, indefinite continuation. "The Lord's portion is his people; Jacob is the lot of his inheritance. He found him in a desert land, and in the waste howling wilderness. He led him about, he instructed him, he kept him as the apple of his eye." "Except the Lord keep the city, the watchman walketh about in vain." "Holy Father, keep through thine own name those thou hast given me, that they may be one as we are. While I was with them in the world, I kept them in thy name. All thou gavest me I have kept, and none of them is lost but the son of perdition." "Hold fast the form of sound words which thou hast heard from me, in faith and love, which is in Jesus Christ. That good thing which was committed unto thee, keep by the Holy Ghost." So in the catechism of the Protestant Episcopal Church, the child is taught, as part of his duty to his neighbor, "to keep his hands from picking and stealing, and his tongue from evil-speaking, lying, and slandering." No one would be willing that his children should be taught that they are not bound to keep themselves steadily in the practice of honesty, truth, and charity, throughout their lives, and under all temptations; that they may cast them off whenever it may suit their convenience or gratify their passions. One more instance, taken from Locke: "If we would weigh and keep in our minds what we are considering, that would instruct us when we should or should not branch into distinctions."

Our business is to ascertain the meaning of the phrase used in the constitution, which expressly requires us to keep a journal of our proceedings. Gentlemen say this only requires us to make a journal, and to print and publish it; but not, after having made and published it, to preserve it also. To give even a plausible color to this construction, gentlemen should, at least, have shown that there can be no possible use in preserving

the original manuscript journal after the publication of the printed copies. But this they have not attempted, nor (apparently) even thought of. I say that to keep a journal means to make one, and to preserve the very journal made; and I have shown the reason, the use, the necessity, for doing so.

For the meaning of the phrase, in common speech, we may safely confide in Johnson. A journal is "an account kept of daily transactions." And the example is extracted from Hayward on Edward the VI: "Edward kept a most judicious journal of all the principal passages of the affairs of his estate." If that precocious prince only made, and took no care to preserve his journal, how came Hayward to know that he made one, and a most judicious one?

The technical parliamentary meaning of the phrase is ascertainable without difficulty, and beyond all doubt. The kindred phrases-to keep the rolls, to keep the records, keeper of the rolls, keeper of the records-all imply the duty of most careful preservation. But I find a conclusive authority in a passage of the printed speech of the gentleman from Missouri himself: "The Clerk of the English House of Commons was the keeper of the journal; and he took an oath to make true entries, remembrances, and journals, of the things done and passed in the House of Commons. As far back as 1641 the Clerk was moved against for suffering his journals, or papers committed to his trust, to be taken by members of the House from the table; and it was declared that the Clerk, who is the sworn officer, and intrusted with the entries and the custody of the records of the House, ought not to suffer any journal or record to be taken from the table, or out of his custody; and if he shall hereafter do it, after this warning, that at his peril be shall do it." This account is truly taken from Hatsell; and it proves, clearly, that the duty of keeping the journal imposed on the Clerk, was the duty both of making up the journal faithfully and truly, and of preserving the journal so made carefully in his own custody. And Hatsell elsewhere informs us, that, in January, 1661, upon information given to the Commons that the Clerk of the Lords' House permitted the original rolls of acts of Parliament to be carried to the printer, and that they were ripped in pieces, and blotted and abused, and in danger of being embezzled or altered, it was ordered that a message be sent to the Lords to desire them to give orders that these rolls may be kept in the office, and not delivered to the printer; but that true copies, fairly written, and examined and attested, may be delivered to him." I know not what has been the practice here in this particular, but I hope our rolls are never sent to the printer. I presume our acts are printed from the engrossed bills, from which the enrollments have been previously made.

My honorable colleague says that the constitutional requisition to keep a journal of our proceedings is mere matter of inducement to the requisition immediately following in the same sentence, to publish the same from time to time. So that we are bound to keep only for the purpose of publishing; and when we have published, our whole duty is fulfilled. Indeed! He finds two positive injunctions in the constitution, in the same sentence, respecting the same thing, and thinks he may absolve himself from the obligation of the first by complying with the last. This is a novel specimen of that kind of ingenuity by which constitutions and laws have been made to mean any thing, every thing, nothing!

The verbal criticism into which I have entered may have appeared to some gentlemen trivial, and to many superfluous; but I hope it will be remembered that I have entered into it only for the purpose of exposing the fallacy of other verbal criticisms, by which the plain meaning of the plain words of the constitution has been

[SENATE.

offuscated, and the duty it imposes sought to be avoided. If I have ascertained the true meaning of the constitutional provision that "each House shall keep a journal of its proceedings;" if that requires us to make and preserve a journal-a fair and full, not a false journal, garbled, mutilated, or defaced; and if the original manuscript be the journal, the question, one would think, is at end. But no; precedents have been brought to bear upon the subject-forced, indeed, into the service--the authority of which, it is supposed, will outweigh the conclusions of reason.

The precedents of expunging entries from the journals of either House of the English Parliament can, by no violence, be made applicable to the purpose. The journals of the two Houses of Parliament are kept in pursuance of a simple order of each House; and in the expunging of any entry from the journal of either, the House merely disregards its own order; which, as it was ordained by its own several authority, may, by its several authority, too, be suspended, avoided, or contravened, at its discretion. The duty of the two Houses of Congress to keep a journal of their proceedings is imposed by the constitution; by the sovereign authority, whose commands neither branch of the Legislature, nor the whole Legislature, is competent to annul or dispense with. The rules, orders, and usages, by which each House of the British Parliament governs itself, are not law, in the absolute sense of the word, much less constitutional law. But the rules prescribed to the two Houses of Congress by the constitution are part of (what Bacon justly and happily calls) the leges legum-the laws by which the Legislature itself, and the laws it makes, are governed, controlled, and limited. Mr. Jefferson says, in the preface to his Manual, that "the law of proceedings in the Senate is composed of the precepts of the constitution, the regulations of the Senate, and, where these are silent, of the rules of Parliament;" and this is "as a warrant for appealing to parliamentary precedents on a point where the constitution is not silent! where its precept is express, plain, and positive!"

It is true that, in the theory and practice of the British Government, the Parliament is omnipotent. The constitution itself may be changed by the act of the three estates, King, Lords, and Commons, concurring. And gentlemen think they have found an act of Parliament whereby the House of Commons is required to keep a journal of its proceedings; and thence they infer that the precedents of expunging entries from its journal by order of the House are an authority for us to expunge an entry from our journal. The statute they allude to is that of 6 Henry VIII, ch. 16, which recites that many members of the House of Commons left their places before the end of the session, and that many great and weighty matters were usually enacted at the end of the ses sion; and, therefore, enacts that "no member shall depart without license, to be entered of record in the book of the Parliament, appointed, or to be appointed, for the Commons' House," upon pain of forfeiting his wages, payable by his county, &c. Now, it is plain that it was only these leaves of absence that were required by the statute to be recorded in the journal; and the entries of them were in the nature of a record, (in the legal signi fication of the word,) since they contained conclusive evidence of private right--namely, the right of the member absent on leave to his wages. I ask gentlemen whether they really think that it would have been competent to the House of Commons to have expunged from its journal the record of a leave of absence granted, which it was required by statute to enter; and, by so expunging, to have inflicted an ex post facto forfeiture of his wages on the member to whom the leave of absence had been given? These leaves of absence are the only pro

SENATE.]

[APRIL 4, 1836.

der of the House of Commons, (in which he was probably misled by the concise account of the proceeding given by Hume, who had no purpose and no reason to enter into details,) and he represented it as an instance in which the process of cancellation or expunction was applied even to a judicial record. The fullest and most authoritative account of the transaction, that I know of, is to be found in the 3d volume of the State Trials; and the story is this: On the 7th of December, 1640, the Commons voted that the levying of ship-money by the Crown, the extra-judicial opinions of the judges sus

Not to pass over without notice other authorities referred to by gentlemen, to show that the duty of the two Houses of the British Parliament to keep journals of their proceedings rests on a like foundation with our duty to keep a journal of our proceedings, I have to tell the Senate that the passage in Hatsell, referred to by my honorable colleague, (3 Hatsell, 28, 29,) only states that, in March, 1606, the Commons insisted that their House was a court, while at the same time they have always denied that their journals were public records. The Lords denied that the Commons were a court. The Commons referred to the statute of 6 Henry VIII, ch. 16, requiring leaves of absence to be entered of record in their journal, by way of argument to support their claim; but the point was left, and yet remains, undecided. Hutsell further informs us that the great lawyers of those times entertained different opinions on the question; that Coke earnestly maintained that the Commons were a court of record. But it appears from 4 Inst. 23, 24, referred to by the gentleman from Missouri, that Coke only held that the Commons are a court of record in cases were they act judicially.

And now, sir, I repeat, with perfect confidence, that, as the keeping of the journals of the two Houses of the British Parliament is required only by the orders of each House, made by itself, and for itself, severally, no precedents of either House, dispensing with or contravening its own orders, by expunging any part of its journal, can be any authority or any apology to us, who are commanded by the constitution to keep a journal of our proceedings, for expunging any part of our journal. The same reasoning applies with equal force to avoid the authority of any precedent of expunction ordered by any colonial or State Legislature in our own country, before or since the Revolution, whose journals have been kept in virtue of its own orders, and not in pursuance of any constitutional provision.

But the precedents of expunging in the British Parliament, that have been brought to the notice of the Senate by my colleague, are so pregnant with instruction on other topics of this debate, that they cannot be passed over without particular consideration. Really, sir, one that did not know better, might have been apt to imagine that they were collected and referred to for the purpose of confuting some of the leading arguments of the gentleman from Missouri; for they are more apposite to that purpose than to any other.

The first instance he mentioned was that which oc curred in the memorable proceedings of Parliament in the case of ship-money, during the reign of Charles I. The account he gave of the transaction was so different from my recollection of it, that it surprised me not a little.

He supposed that the judgment in the Exche quer against Mr. Hampden, for the twenty shillings of ship-money assessed upon him, was cancelled by an or

in the star chamber, and enrolled in the courts of Westminster, the warrants for levying ship-money, called ship-writs, and the judgment in the Exchequer against. Mr. Hampden, were all contrary to the laws of the realm, the rights of property, the liberty of the subject, former resolutions of Parliament, and the petition of right. And they afterwards delivered these votes to the Lords at a conference of the two Houses; and, at the same time, they gave in articles of impeachment against Sir Robert Berkley, one of the judges of the King's Benchi; in which they accused him (among other things) of delivering an extra-judicial opinion in the star chamber, affirming the prerogative of the Crown to levy ship-money, and concurring in the judgment of the Exchequer against Mr. Hampden, (setting out the opinions and judgment at length;) "all which words,” (they charged,) "opinions, and actions, were so spoken and done by him, traitorously and wickedly, to alienate the hearts of his Majesty's liege people from his Majesty, and to subvert the fundamental laws and established Government of his Majesty's realm of England." After the conference, and while the articles of impeachment were pending against Sir Robert Berkley, and while, too, it was well known that all the other judges who had concurred with him in opinion on the question of ship-money were liable to impeachment on the same grounds, the House of Lords, on the 20th of January, 1640, old style, resolved, nem. con., that the ship-writs, the extra-judicial opinions of the judges therein, and the judgment against Mr. Hampden, were contrary to the laws and statutes of the realm, the rights and prop. erties of the subject, former judgments in Parliament, and the petition of right: that is, the Lords, though they were to sit in judgment upon the articles of im peachment against the judges who had affirmed the prerogative of the Crown to levy ship-money, condemned the act of the judges as strongly as the Commons, who had impeached one judge, and might, and probas bly would, impeach the others. On the 20th of February following the House of Lords ordered that all the rolls containing the opinions of the judges, the judgment against Mr. Hampden, and the records of the proceed. ings, should be brought into the House; that vacals thereof should be entered "by the judgment of the Lords, spiritual and temporal, in the court of Parlas ment;" and that the rolls should be rased across with a pen, and subscribed with the Clerk of Parliament's hand." And this was accordingly done.

Let me pause here, and ask my honorable colleague whether he thinks this proceeding a precedent that we may safely follow throughout? whether, if the Supreme Court should give a judgment ever so plainly illegal and unconstitutional, we could in like manner vacate and cancel it?

[Mr. RIVES explained. He was understood to say that he was not uninformed of the particulars of the proceedings in Parliament on the case of ship-money, as they had been stated by Mr. L, and that he had not referred to them as a precedent for cancelling or expung ing a judicial record, but simply as an instance in which cancellation had been resorted to for the purpose of