of the President a qualified one only, the framers of the Constitution intended that the two houses should take into consideration the objections which may have led the President to withhold his assent, and that his assent should be dispensed with, if, notwithstanding those objections, two thirds of both houses should still approve of the measure. These provisions, therefore, on the one hand, give to the President a real participation in acts of legislation, and impose upon him a real responsibility for the measures to which he gives his official approval, while they give him an important influence over the final action of the legis lature upon those which he refuses to sanction; and, on the other hand, they establish a wide distinction between his negative and that of the King in England. The latter has none but an absolute "veto"; if he refuse to sign a bill, it cannot become a law; and it is well understood, that it is on account of this absolute effect of the refusal, that this prerogative has been wholly disused since the reign of William III., and that the practice has grown up of signifying, through the ministry, the previous opposition of the executive, if any exists, while the measure is under discussion in Parliament. It is not needful to consider here which mode of legislation is theoretically or practically the best. It is sufficient to notice the fact, that the absence from our system of official and responsible advisers of the President, having seats in the legislature, renders it impracticable to signify his views of a measure, while it is under the consideration of either house. For this reason, and because the President himself is responsible to the people for his official acts, and in order to accompany that responsibility with the requisite power both to act upon reasons and to render them, our Constitution has vested in him this peculiar and qualified negative.1 1 A question has been made, whether it is competent to two thirds of the members present in each house to pass a bill notwithstanding the President's objections, or whether the Constitution means that it shall be passed by two thirds of all the members of each branch of the legislature. The history of the "veto" in the Convention seems to me to settle this question. There was a change of phraseology, in the course of the proceedings on this subject, which indicates very clearly a change of intention. The language employed in the resolutions, in all the stages through which they passed, was, that "The national executive shall have a right to negative any legislative act, which shall not be afterwards passed by two third parts of each branch of the national legislature." This was the form of expression contained in the resolutions sent to the committee of detail; and if it had been incorporated into the Constitution, there could have been no question but that its meaning would have been, that the bill must be atterwards passed by two thirds of all the members to which each branch is constitutionally entitled. But the committee of detail changed this expression, and employed one which has a technical meaning, that meaning being made technical by the Constitution itself. Before the committee came to carry out the resolution relating to the President's negative, they had occasion to define what should constitute a "house" in each branch of the legislature; and they did so by "the provision that a majority of each house shall constitute a quorum to do business. This expression, a "house," or "each house," is several times employed in the Constitution, with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the constitutional quorum, assembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the President, should be again brought before the legislative bodies. They directed it to be returned "to that HOUSE in which it shall have origi The remaining topic that demands our inquiries, respecting the legislature, relates to the place of its meeting. The Confederation was a government without a capitol, or a seat; a want which seriously impaired its dignity and its efficiency, and subjected it to great inconveniences; at the same time, it was unable to supply the defect. Its Congress, following the example of their predecessors, had continued to assemble at Philadelphia, until June, 1783; when, as we have already seen, in consequence of a mutiny by some of the federal troops stationed in that neigh nated," that is to say, to a constitutional quorum, a majority of which passed it in the first instance; and they then provided, that, if "two thirds of that HOUSE shall agree to pass the bill, it shall be sent, together with the objections, to the other HOUSE, and if approved by two thirds of that HOUSE, it shall become a law." This change of phraseology, taken in connection with the obvious meaning of the term "house," as used in the Constitution when it speaks of a chamber competent to do business, shows the intention very clearly. It is a very different provision from what would have existed, if the phrase "two third parts of each branch of the national legislature" had been retained. (See Elliot, V. 349, 376, 378, 431 536.) This view will be sustained by an examination of all the instances in which the votes of "two thirds" in either body are required. Thus, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." (Art. I. § 5.) The context of the same article defines what is to constitute a "house," and makes it clear that two thirds of a "house" may expel. That this was the intention is also clear from what took place in the Convention. Mr. Madison objected to the provision as it stood on the report of the committee, by which a mere majority of a quorum was empowered to expel, and, on his motion, the words "with the concurrence of two thirds" were inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of the Constitution empowers Congress, "whenever two thirds of both HOUSES shall deem it necessary," to propose amendments to the Constitution. The term "house" is here used as synonymous with a quorum. It has been suggested, however, that the use of a positive expres borhood, against which the local authorities failed to protect them, they left that city, and reassembled at Princeton, in the State of New Jersey, in the halls of a college.1 There, in the following October, a resolution was passed, directing that buildings for the use of Congress should be erected at some suitable place near the falls of the Delaware; for which the right of soil and an exclusive jurisdiction should be obtained. But this was entirely unsatisfactory to the Southern States. They complained that the place selected was not central, was unfavorable to sion, in relation to the action of the Senate upon treaties, throws some doubt upon the meaning of the term "two thirds," as used in other parts of the Constitution. A treaty requires the concurrence of "two thirds of the senators present"; and it has been argued that the omission of this term in the other cases shows that two thirds of all the members are required in those cases. But it is to be remembered, that the Constitution makes a general provision as to what shall constitute a house for the transaction of business; that when it means that a particular function shall not be performed by such a house, or quorum, it establishes the exception by a particular provision, as when it requires two thirds of all the States to be present in the House of Representatives on the choice of a President, and makes a majority of all the States necessary to a choice; and that whether the function of the Senate in approving treaties is or is not a part of the business which under the general provision is required to be done in a 66 "house" or quorum consisting of a majority of all the members, the Constitution does not speak of this function as being done by a "house," but it speaks of the "advice and consent of the Senate," to be given by two thirds of the senators present." The use of the term "present" was necessary, therefore, in this connection, because no term had preceded it which would guide the construction to the conclusion intended; but in the other cases, the previous use of the term "house," defined to be a majority of all the members, determines the sense in which the term "two thirds" is to be understood, and makes it, as I humbly conceive, two thirds of a constitutional quorum. 1 Ante, Vol. I. 220, note, 226, note. 2 October 6,1783, Journals, VIII. 423. the Union, and unjust to them. They endeavored to procure a reconsideration of the vote, but without success. Several days were then consumed in fruitless efforts to agree on a temporary residence; and at length it became apparent that there was no prospect of a general assent to any one place, either for a temporary or for a permanent seat. The plan of a single residence was then, changed, and a resolution was passed, providing for an alternate residence at two places, by directing that buildings for the use of Congress, and a federal town, should also be erected at or near the lower falls of the Potomac, or Georgetown; and that until both places, that on the Delaware and that on the Potomac, were ready for their reception, Congress should sit alternately, for equal periods of not more than one year and not less than six months, at Trenton, the capital of the State of New Jersey, and at Annapolis, the capital of the State of Maryland. The President was thereupon directed to adjourn the Congress, on the 12th of the following November, to meet at Annapolis on the 26th, for the despatch of business. Thither they accordingly repaired, and there they continued to sit until June 3, 1784. A recess followed, during which a committee of the States sat, until Congress. reassembled at Trenton, on the 30th of the following October. At Trenton, the accommodations appear to have been altogether insufficient, and the States of South Carolina and Pennsylvania proposed to adjourn from 1 October 8. Ibid. 424, 425. |