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the journals only what the House has agreed to, is founded in great prudence and good sense; as there may be many questions proposed, which it may be improper to publish to the world in the form in which they are made. 2 Hats., 85.
In both Houses of Congress, all questions whereon the yeas and nays are desired by one-fifth of the members present, whether decided affirmatively or negatively, must be entered in the journals. Const., I, 5.
The first order for printing the votes of the House of Commons was October 30, 1685. 1 Chandler, 387.
Some judges have been of opinion that the journals of the House of Commons are no records, but only remembrances. But this is not law. Hob., 110, 111; Lex. Parl., 114, 115; Four. H. C., Mar. 17, 1592; Hale, Parl., 105. For the Lords in their House have power of judicature, the Commons in their House have power of judicature, and both Houses together have power of judicature; and the book of the Clerk of the House of Commons is a record, as is affirmed by act of Parl., 6 H. 8, c. 16; 4 Inst., 23, 24; and every member of the House of Commons hath a judicial place. 4 Inst., 15. As records they are open to every person, and a printed vote of either House is sufficient ground for the other to notice it. committee to inspect the journals of the other, and report what has been done by the other in any particular case. 2 Hats., 261; 3 Hats., 27-30. Every member has a right to see the journals and to take and publish votes from them. Being a record, every one may see and publish them. 6 Grey, 118, 119.
Either may appoint a
On information of a mis-entry or omission of an entry in the journal, a committee may be appointed to examine and rectify it, and report it to the House. 2 Hats., 194, 195.
The two Houses of Parliament have the sole, separate, and independent power of adjourning each their respective Houses. The King has no authority to adjourn them; he can only signify his desire, and it is in the wisdom and prudence of either House to comply with his requisition, or not, as they see fitting. 2 Hats., 232; 1 Blackst., 186; 5 Grey, 122.
By the Constitution of the United States, a smaller number than a majority may adjourn from day to day. 1, 5. But "neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting." I, 5. And in case of disagreement between them, with respect to the time of adjournment, the President may adjourn them to such time as he shall think proper. Const., II, 3.
A motion to adjourn, simply, cannot be amended, as by adding "to a particular day;" but must be put simply "that this House do now adjourn;" and if carried in the affirmative, it is adjourned to the next sitting day, unless it has come to a previous resolution, "that at its rising it will adjourn to a particular day," and then the House is adjourned to that day. 2 Hats., 82.
Where it is convenient that the business of the House be suspended for a short time, as for a conference presently to be held, &c., it adjourns during pleasure; 2 Hats., 305; or for a quarter of an hour. 5 Grey, 331.
If a question be put for adjournment, it is no adjournment till the Speaker pronounces it. 5 Grey, 137. And from courtesy and respect, no member leaves his place till the Speaker has passed on.
SEC. LI.-A SESSION.
Parliament have three modes of separation, to wit: by adjournment, by prorogation or dissolution by the King, or by the efflux of the term for which they were elected. Prorogation or dissolution constitutes there what is called a session; provided some act was passed. In this case all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. 1 Blackst., 186. Adjournment, which is by themselves, is no more than a continuance of the session from one day to another, or for a fortnight, a month, &c., ad libitum. All matters depending remain in statu quo, and when they meet again, be the term ever so distant, are resumed, without any fresh commence ment, at the point at which they were left. 1 Lev., 165; Lex. Parl., c. 2; 1 Ro. Rep., 29; 4 Inst, 7, 27, 28; Hutt., 61; 1 Mod., 252;
Ruffh. Fac., L. Dict. Parliament; 1 Blackst., 186. Their whole session is considered in law but as one day, and has relation to the first day thereof. Bro. Abr. Parliament, 86.
At the second or any subsequent session of a Congress, the legislative business of the Senate which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place; and all papers referred to committees and not reported upon at the close of a session of Congress shall be returned to the office of the Secretary of the Senate, and be retained by him until the next succeeding session of that Congress, when they shall be returned to the several committees to which they had previously been referred.
Committees may be appointed to sit during a recess by adjournment, but not by prorogation. 5 Grey, 374; 9 Grey, 350; 1 Chandler, 50. Neither House can continue any portion of itself in any parliamentary function beyond the end of the session, without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose.
Congress separate in two ways only, to wit, by adjournment, or dissolution by the efflux of their time. What, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President "on extraordinary occasions, to convene both Houses, or either of them." I, 3. If convened by the President's proclamation, this must begin a new session, and of course determine the preceding one to have been a session. So if it meets under the clause of the Constitution, which says, "the Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." I, 4. This must begin a new session; for even if the last adjournment was to this day, the act of adjournment is merged in the higher authority of the Constitution, and the meeting will be under that, and not under their adjournment. So far we have fixed landmarks for determining sessions. In other cases it is declared by the joint vote. authorizing the President of the Senate and the Speaker to close the session on a fixed day, which is usually in the following form: "Re
solved by the Senate and House of Representatives, that the President of the Senate and the Speaker of the House of Representatives be authorized to close the present session by adjourning their respectIve Houses on the day of ―."
When it was said above that all matters depending before Parliament were discontinued by the determination of the session, it was not meant for judiciary cases depending before the House of Lords, such as impeachments, appeals, and writs of error. These stand continued, of course, to the next session. Raym., 120, 381; Ruffh. Fac., L. D. Parliament.
Impeachments stand, in like manner, continued before the Senate of the United States.
The President of the United States has power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. Const., II, 2.
3. All confidential communications made by the President of the United States to the Senate shall be by the Senators and the officers of the Senate kept secret; and all treaties which may be laid before the Senate, and all remarks,votes, and proceedings thereon shall also be kept secret until the Senate shall, by their resolution, take off the injunction of secrecy.
Rule XXXVII-Clause 3.
3. All treaties concluded with Indian tribes shall be considered and acted upon by the Senate in its open or legislative session, unless the same shall be transmitted by the President to the Senate in confidence; in which case they shall be acted upon with closed doors.
Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legislative power; and there, also, if they touch the laws of the land, they must be approved by Parliament. Ware v. Hylton, 3 Dallas's Rep., 223. It is acknowledged, for instance, that the King of Great Britain cannot by a treaty make a citizen of an alien. Vattel, b. 1, c. 19, sec. 214.
An act of Parliament was necessary to validate the American treaty of 1783. And abundant examples of such acts can be cited. In the case of the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament; but a bill brought in for that purpose was rejected. France, the other contracting party, suffered these articles, in practice, to be not insisted on, and adhered to the rest of the treaty. 4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 42, 246.
By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislaturethe President originating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution; nor are we entirely agreed among ourselves. It is admitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alias acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation is no more inconvenient than to the Senate. But the ground of this exception is denied as unfounded. For examine, e. g., the treaty of commerce with France, and it will be found that, out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions.