101

sage, but only at a conference; for this is an interrogatory, not a message. Grey, 151, 181.

When a bill is sent by one House to the other, and is neglected, they may send a message to remind them of it. 3 Hats., 25; 5 Grey, 154. But if it be mere inattention, it is better to have it done informally, by communication between the Speakers or members of the two Houses.

Where the subject of a message is of a nature that can properly be communicated to both houses of Parliament, it is expected that this communication should be made to both on the same day. But where a message was accompanied with an original declaration, signed by the party to which the message referred, its being sent to one house was not noticed by the other, because the declaration, being original, could not possibly be sent to both houses at the same time. 2 Hats., 260, 261, 262.

The King having sent original letters to the commons, afterwards desires they may be returned, that he may communicate them to the lords. 1 Chandler, 303.

SECTION XLVIII.

ASSENT.

The House which has received a bill and passed it, may present it for the King's assent, and ought to do it, though they have not by message notified to the other their passage of it. Yet the notifying by message is a form which ought to be observed between the two houses, from motives of respect and good understanding. 2 Hats., 142. Were the bill to be withheld from being presented to the King, it would be an infringement of the rules of Parliament. Ib.

[When a bill has passed both houses of Congress, the house last acting on it notifies its passage to the other, and delivers the bill to the Joint Committee of Enrollment, who see that it is truly enrolled in parchment.] When the bill is enrolled, it is not to be written in paragraphs, but solidly, and all of a piece, that the blanks between the paragraphs may not give room for forgery. 9 Grey, 143. [It is then put in the hands of the Clerk of the House of Representatives to have it signed by the Speaker. The Clerk then brings it by way of message to the Senate to be signed by their President. The Secretary of the Senate returns it to the Committee of Enrollment, who present it to the President of the United States. If he approve, he signs, and deposits it among the rolls in the office of the Secretary of State, and notifies by message the house in which it originated that he has approved and signed it; of which that house informs the other by message. If the Presi dent disapproves, he is to return it with his objections to that house in which it shall have originated, who are to enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent together with the President's objections to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of that house, it shall become a law. If any bill shall not be retarned by the President within ten days

(Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by its adJournment prevent its return; in which case it shall not be a law. Const. U. 8, 1, 7.]

[Every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment,) shall be presented to the President of the United States, and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. Const. U. S., I, 7.]

SECTION XLIX.

JOURNALS.

[Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require Becrecy. Const., I, 5.]

[The proceedings of the Senate, when not acting as in a Committee of the Whole, shall be entered on the journals as concisely as possible, care being taken to detail a true account of the proceedings. Every vote of the Senate shall be entered on the journals, and a brief statement of the contents of each petition, memorial, or paper presented to the Senate, be also inserted on the journal. Rule 33.]

[The titles of bills. and such parts thereof only, as shall be affected by proposed amendments, shall be inserted on the journals. Rule 32.]

If a question is interrupted by a vote to adjourn, or to proceed to the orders of the day, the original question is never printed in the journal, it never having been a vote, nor introductory to any vote; but when suppressed by the previous question, the first question must be stated, in order to introduce and make intelligible the second. 2 Hats., 83.

So also when a question is postponed, adjourned, or laid on the table, the original question, though not yet a vote, must be expressed in the journals; because it makes part of the vote of postponement, adjourning, or laying it on the table.

Where amendments are made to a question, those amendments are not printed in the journals, separated from the question; but only the question as finally agreed to by the House. The rule of entering in 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 on 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 Com

mons are no records, but only remembrances. But this is not law. Hob., 110, 111; Lex. Parl., 114, 115; Jour. 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. Either may appoint a committee to inspect the journals of the other, and report what has been done by the other in any particular case. 2 Hats., 361; 3 Hats., 27-30. Every member has a right to see the journals, and take and publish votes from them. Being a record, every one may see and publish them. 6 Grey, 118, 119.

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, 5.

SECTION L.

ADJOURNMENT.

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., 332; 1 Blackstone, 186; 5 Grey, 122.

[By the Constitution of the United States a smaller number than a majority may adjourn from day to day. I, 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, etc., 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 pror ounces it. 5 Grey, 137. And from courtesy and respect, no member leaves his place till the Speaker has passed on.

SECTION LI.

A SESSION.

1 rent 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 has 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, etc., 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 commencement, 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. Jac. 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.

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 closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President, "on extraordinary occa sions 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 Speaker to close the session on a fixed day, which is usually in the following form: Resolved by the Senate and House of Representatives, That the President of the Senate and 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. Jac. L. D. Parliament.

[Impeachments stand, in like manner, continued before the Senate of the United States.]

SECTION LII.

TREATIES.

[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. U. S., II., 2.]

[All confidential communications made by the President of the United States to the Senate, shall be by the members thereof kept secret; and that all treaties which may hereafter be laid before the Senate, shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy. Rule 39.]

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 fereign 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. Hayton, 3 Dallas' Rep., 223. It is acknowledged, for instance, that the King of Great Britain cannot by a treaty make a citizen of an alien. Vattel, d., 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 Russel's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature; the 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. 1. It is admitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alios 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 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 excep. tion is denied as unfounded. For examine, e, g. the treaty of commerce with