minute to be treated at length in an elementary survey *of the constitutional polity and general jurisprudence 238 of the United States. The house of representatives choose their own speaker, but the Vice-President of the United States is, ex officio, president of the senate, and gives the casting vote when they are equally divided. The proceedings and discussions in the two houses are public. This affords the community early and authentic information of the progress, reason, and policy of measures pending before congress, and it is likewise a powerful stimulus to industry, to research, and to the cultivation of talent and eloquence in debate. Though these advantages may be acquired at the expense of much useless and protracted discussion, yet the balance of utility is greatly in favor of open deliberation; and it is certain, from the general opposition to the experiment that was made and continued for some years by the senate of the United States, of sitting with closed doors, that such a practice, by any legislative body in this country, would not be endured.

The ordinary mode of passing laws is briefly as follows: (a) One day's notice of a motion for leave to

Mode of

passing laws.

(a) See the standing rules and orders of the house of representatives, printed in 1795, by Francis Childs. The rules and forms of proceeding in legislative bodies are not only essential to orderly and free discussion and deliberation, but those forms become substance; for they operate as safeguards of liberty, and a protection to the minority against the violence and tyranny of the majority. It was an observation of Mr. Onslow, for many years speaker of the English House of Commons, that he had often heard old and experienced members say, that nothing tended more to throw power into the hands of the administration, than a neglect of or departure from the rules of proceeding. Hatsel's Precedents of Proceedings in the House of Commons, and Jefferson's Manual of Parliamentary Practice, and especially May's Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament, London, 1844, and Cushing's Rules of Proceeding and Debate in Deliberative Assemblies, Boston, 1845, ought to be thoroughly studied by all leading and efficient members in the legislative assemblies.

Among the rules of the house of representatives, the establishment of what is termed the previous question, is of great importance. It is understood not to apply when a bill or motion is under discussion in a committee of the whole house, but only when the same is before the house, with the speaker in the chair. The previous question is admitted when demanded by a majority of the members present; and it enables a majority at any time to put an end in the house to all discussion, and to put the minority to silence by a prompt and final vote on the main question. It is whether the question under debate shall now be put; and, until it is decided, it precludes all amendment and debate of the main question, and all motions to amend, commit, or

bring in a bill, in cases of a general nature, is required. Every bill must have three readings previous to its being passed, and these readings must be on different days, and no bill can be committed or amended until it has been twice read. Such little checks in the forms of doing business are prudently intended to guard against surprise or imposition. In the house of repre

*

sentatives, bills, after being twice read, are committed to *239 a committee of the whole house, when the speaker leaves the chair, and takes a part in the debate as an ordinary member, and a chairman is appointed to preside in his stead. When a bill has passed one house, it is transmitted to the other, and goes through a similar form; though, in the senate, there is less formality, and bills are often committed to a select committee, chosen by ballot. If a bill be altered or amended in the house to which it is transmitted, it is then returned to the house in which it originated, and if the two houses cannot agree, they appoint committees to confer together on the subject. (a) When a bill is engrossed, and has passed

postpone the main question. If the previous question be decided affirmatively, the main question is to be put instantaneously, and no member is allowed to amend or discuss it. The previous question has long been in use in the English House of Commons; and if it be carried in the affirmative, no alteration can then take place, no debate is suffered to intervene, and the speaker puts the main question immediately. Dwarris on Statutes, 1830, p. 291. During the period of the continental congress, under the articles of confederation, the previous question was regarded rather as a preliminary inquiry into the propriety of the main question. This was also the case under the present constitution of the United States, for many years. Its object was to avoid decision on delicate questions, as inexpedient; and if it was decided that the main question be put, the main question was open to debate. It was not until 1811 that the previous question attained its present absolute sway. The Hon. William Gaston, a member of the house of representatives from North Carolina, in 1816, made a fruitless effort to expunge the previous question from the rules of the house. His speech was a very able and well-informed discussion of the merits of the rule, and he regarded it as a formidable instrument of tyranny of majorities over minorities, and, to the extent to which it is carried, without a precedent in the annals of any free deliberative assembly.

Legislation was a science cultivated with so much care and refinement among the ancient Romans, that they had laws to instruct them how to make laws. The Lex Licinia and Lex Ebutia, the Lex Cæcilia and Lex Didia, provided checks, that the law should not unintentionally contain any particular personal privileges, or weaken the force of former laws, or be crowded with multifarious matter. Gravina, De Ortu et Progressu Juris Civilis, lib. 1, c. 29.

(a) By the Revised Constitution of New York, of 1846, it is declared that no bill

the sanction of both houses, it is transmitted to the President of the United States for his approbation. If he approves of the bill, he signs it. If he does not, it is returned with his President's objections, to the house in which it originated, and negative. that house enters the objections at large on its journals, and proceeds to reconsider the bill. If, after such reconsideration, two thirds of that house should agree to pass the bill, it is sent, together with the objections, to the other house, by which it is likewise reconsidered, and, if approved by two thirds of that house, it becomes a law. (a) But, in all such cases, the votes of both houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered on the journals. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same becomes a law, equally as if he had signed it, unless congress, by adjournment, in the mean time, prevents its return, and then it does not become a law. (b)

The practice in congress, and especially in the second or last session of each congress, of retaining most of their bills until within the last ten days, is attended with the disadvantage of shortening the time allowed to the President for perusal and reflection upon them, and of placing within the power of the President the absolute negative of every bill presented within the last ten days preceding the 4th of March; *240 and this he can effect merely by retaining them, without being obliged to assign any reason whatever; for he is entitled to ten days to deliberate. Most of the bills that are

shall be passed unless by the assent of a majority of all the members elected to each branch of the legislature; and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal.1

(a) The constitution does not say whether the vote of two thirds of each house, on the reconsideration of a bill returned by the President, with objections, shall be two thirds of the members elected, or only two thirds of the members present. It is understood that the latter construction has been adopted in practice.

(b) Art. 1, sec. 7.

1 By the Revised Statutes of New York, previous notices of certain applications to the legislature must be given by advertisement. 1 R. S. 155, sec. 1. The want of this notice will not, however, affect the validity of an act. Smith v. Helmer, 7 Barb. S. C. R. 416.

presented to the President in the second session of every congress, were, a few years ago, presented to him within the last ten days, and generally within the last two days; but the rules of congress have latterly checked the evils and danger of such an accumulation of business on the last days of the session.

This qualified negative of the President upon the formation of laws, is, theoretically at least, some additional security against the passage of improper laws, through prejudice or want of due reflection; but it was principally intended to give to the President a constitutional weapon to defend the executive department, as well as the just balance of the constitution against the usurpations of the legislative power. To enact laws is a transcendent power; and if the body that possesses it be a full and equal representation of the people, there is danger of its pressing with destructive weight upon all the other parts of the machinery of the government. It has, therefore, been thought necessary, by the most skilful and most experienced artists in the science of civil polity, that strong barriers should be erected for the protection and security of the other necessary powers of the government. Nothing has been deemed more fit and expedient for the purpose than the provision that the head of the executive department should be so constituted as to secure a requisite share of independence, and that he should have a negative upon the passing of laws; and that the judiciary power, resting on a still more permanent basis, should have the right of determining upon the validity of laws by the standard of the constitution. A qualified negative answers all the salutary purposes of an absolute one, for it is not to be presumed that two thirds of both houses of congress, on reconsideration, with the reasoning of the President in opposition to the bill

spread at large upon their journals, will ever concur in *241 any unconstitutional measure. (a) In the English con

stitution, the king has an absolute negative; but it has not been necessary to exercise it since the time of William III.

(a) This qualified negative of the President has, in the progress of the administration of the government, since the first publication of these Commentaries, in 1826, become a very grave power, and applied under the ordinary name of veto, with a familiarity which appears not to have been anticipated by the generation which adopted the constitution.

The influence of the crown has been exerted in a more gentle manner, to destroy any obnoxious measure in its progress through the two houses of parliament. Charles I. stood for a long time upon the strict and forbidding rights of his prerogative; but he was compelled, by the spirit and clamor of the nation, to give his assent to bills which cut down that prerogative, and placed the power of government into the hands of the parliament. The peremptory veto of the Roman tribunes, who were placed at the door of the senate, would not be reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a labored and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some very feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative given to the President of the United States, appears to be more wisely digested than any of the examples which have been mentioned. (a)

(a) The organization of the two houses of congress, and the principles on which it rests, were profoundly discussed in The Federalist, from No. 52 to No. 64, inclusive. There is no work on the subject of the constitution, and on republican and federal government generally, that deserves to be more thoroughly studied. The Federalist appeared originally in a series of numbers, published in the New York daily papers, between October, 1787, and June, 1788. They were read with admiration and enthusiasm as they successively appeared, and by no person more so than the author of this note, who made a fruitless attempt at the time to abridge them for the benefit of a country village print. No constitution of government ever received a more masterly and successful vindication. I know not, indeed, of any work on the principles of free government that is to be compared, in instruction and intrinsic value, to this small and unpretending volume of The Federalist; not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candor, simplicity and elegance with which its truths are uttered and recommended. Mr. Justice Story acted wisely in making The Federalist the basis of his Commentary; and as we had the experience of nearly fifty years since The Federalist was written, the work of Judge Story was enriched with the results of that experience, and it is written in the same free and liberal spirit, with equal exactness of research and soundness of doctrine, and with great beauty and elegance of composition.