Chapter IX (3)

The two important differences between the negative thus vested in the President of the United States and that which belongs to the King of England are, that the former is a qualified, while the latter is an absolute, power to arrest the passage of a law; and that the one is required to render to the legislature the reasons for his refusal to approve a bill, while the latter renders no reasons, but simply answers that he will advise of the matter, which is the parliamentary form of signifying a refusal to approve. The provision in our Constitution which requires the President to communicate to the legislature his objections to a bill, was rendered necessary by the power conferred upon two thirds of both houses to make it a law, notwithstanding his refusal to sign it. By this power, which makes the negative 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 legislature 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.[199]

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 neighborhood, 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.[200] 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.[201] But this was entirely unsatisfactory to the Southern States. They complained that the place selected was not central, was unfavorable to the Union, and unjust to them. They endeavored to procure a reconsideration of the vote, but without success.[202] 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 that place.[203] The plan of two capitols in different places was then rescinded,[204] and an ordinance was passed, for the appointment of commissioners to establish a seat of government on the banks of the Delaware, at some point within eight miles above or below the lower falls of that river. Until the necessary buildings should be ready for their reception, the ordinance provided that Congress should sit at the city of New York.[205] When assembled there in January, 1785, they received and accepted from the corporation an offer of the use of the City Hall; and in that building they continued to hold their sessions until after the adoption of the Constitution.[206]

It does not appear that any steps were taken under the ordinance of 1784, or under any of the previous resolutions, for the establishment of a federal town and a seat of government at any of the places designated. Whether the Congress felt the want of constitutional power to carry out their project, or whether the want of means, or a difficulty in obtaining a suitable grant of the soil and jurisdiction, was the real impediment, there are now no means of determining. It seems quite probable, however, that, after their removal to the city of New York, they found themselves much better placed than they or their predecessors had ever been elsewhere; and as the discussions respecting a total revision of the federal system soon afterwards began to agitate the public mind, the plan of establishing a seat for the accommodation of the old government was naturally postponed.

The plan itself, on paper, was a bold and magnificent one. It contemplated a district not less than two and not more than three miles square, with a "federal house" for the use of Congress; suitable buildings for the executive departments; official residences for the president and secretary of Congress, and the secretaries of foreign affairs, of war, of the marine, and the officers of the treasury; besides hotels to be erected and owned by the States as residences for their delegates. But, for this fine scheme of a federal metropolis, an appropriation was made, which, even in those days, one might suppose, would scarcely have paid for the land required. The commissioners who were to purchase the site, lay out the town, and contract for the erection and completion of all the public edifices,--excepting those which were to belong to the States,--"in an elegant manner," were authorized to draw on the federal treasury for a sum not exceeding one hundred thousand dollars, for the whole of these purposes. If we are to understand it to have been really expected and intended that this sum should defray the cost of this undertaking, we must either be amused by the modest requirements of the Union at that day, or stand amazed at the strides it has since taken in its onward career of prosperity and power. From the porticos of that magnificent Capitol whose domes overhang the Potomac, the eye now looks down upon a city, in which, at a cost of many millions, provision has been made for the central functions of a government, whose daily expenditure exceeds the entire sum appropriated for the establishment of the necessary public buildings and official residences seventy years ago.

In truth, however, there is not much reason to suppose that the Congress of the Confederation seriously contemplated the establishment of a federal city. They were too feeble for such an undertaking. They could pass resolutions and ordinances for the purpose, and send them to the authorities of the States;--and if a more decent attention to the wants and dignity of the federal body was excited, it was well, and was probably the effect principally intended. If they had actually proceeded to do what their resolution of 1783 proposed,--to acquire the jurisdiction, as well as the right of soil, over a tract of land,--they must have encountered a serious obstacle in the want of constitutional power. This difficulty seems to have been felt at a later period; for the ordinance of 1784 only directs a purchase of the land, and is silent upon the subject of municipal jurisdiction. It is fortunate, too, on all accounts, that the design was never executed, if it was seriously entertained. The presence of Congress in the city of New York, where the legislature of the State was also sitting, in the winter of 1787, enabled Hamilton to carry those measures in both bodies, which led immediately to the summoning of the national Convention.[207] And it was especially fortunate that this whole subject came before the Convention unembarrassed with a previous choice of place by the old Congress, or with any steps concerning municipal jurisdiction which they might have taken, or omitted.

For it was no easy matter, in the temper of the public mind existing from 1783 to 1788, to determine where the seat of the federal, or that of the national government, ought to be placed. The Convention found this an unsettled question, and they wisely determined to leave it so. The cities of New York and Philadelphia had wishes and expectations, and it was quite expedient that the Constitution should neither decide between them, nor decide against both of them. It was equally important that it should not direct whether the seat of the national government should be placed at any of the other commercial cities, or at the capital or within the jurisdiction of any State, or in a district to be exclusively under the jurisdiction of the United States. These were grave questions, which involved the general interests of the Union; but however settled, they would cost the Constitution, in some quarter or other, a great deal of the support that it required, if determined before it went into operation.[208] Temporarily, however, the new government must be placed somewhere within the limits of a State, and at one of the principal cities; and as the Congress then sitting at New York would probably invite their successors to assemble there, it became necessary to provide for a future removal, when the time should arrive for a general agreement on the various and delicate questions involved. The difference of structure, however, between the two branches of the proposed Congress, and the difference of interests that might predominate in each, made a disagreement on these questions probable, if not inevitable; and a disagreement on the place of their future sessions, if accompanied by power to sit in separate places, would be fatal to the peace of the Union and the operation of the government.

The committee of detail, therefore, inserted in their draft a clause prohibiting either house, without the consent of the other, from adjourning for more than three days, or to any other place than that at which the Congress might be sitting. Mr. King expressed an apprehension that this implied an authority in both houses to adjourn to any place; and as a frequent change of place had dishonored the federal government, he thought that a law, at least, should be made necessary for a removal. Mr. Madison considered a central position would be so necessary, and that it would be so strongly demanded by the House of Representatives, that a removal from the place of their first session would be extorted, even if a law were required for it. But there was a fear that, if the government were once established at the city of New York, it would never be removed if a law were made necessary. The provision reported by the committee was therefore retained, and it was left in the power of the two houses alone, during a session of Congress, to adjourn to any place, or to any time, on which they might agree.[209]

Still it was needful that the Constitution should empower the legislature to establish a seat of government out of the jurisdiction of any of the States, and away from any of their cities. The time might come when this question could be satisfactorily met. The time would certainly come, when the people of the whole Union could see that the dignity, the independence, and the purity of the government would require that it should be under no local influences; when every citizen of the United States, called to take part in the functions of that government, ought to be able to feel that he and his would owe their protection to no power, save that of the Union itself. Some disadvantage, doubtless, might be experienced, in placing the government away from the great centres of commerce. But neither of the principal seats of wealth and refinement was very near to the centre of the Union; and if either of them had been, the necessity for an exclusive local jurisdiction would probably be found, after the adoption of the Constitution, to outweigh all other considerations. Accordingly, when the Constitution was revised for the purpose of supplying the needful provisions omitted in its preparation, it was determined that no peremptory direction on the subject of a seat of government should be given to the legislature; but that power should be conferred on Congress to exercise an exclusive legislation, in all cases, over such district, not exceeding ten miles square, as might, by cession of particular States and the acceptance of Congress, become the seat of government of the United States. This provision has made the Congress of the United States the exclusive sovereign of the District of Columbia, which it governs in its capacity of the legislature of the Union. It enabled Washington to found the city which bears his name; towards which, whatever may be the claims of local attachment, every American who can discern the connection between the honor, the renown, and the welfare of his country, and the dignity, convenience, and safety of its government, must turn with affection and pride.

With respect to a regular time of meeting, no instructions had been given to the committee of detail; but they inserted in their draft of the Constitution a clause which required the legislature to assemble on the first Monday of December in every year. There was, however, a great difference of opinion as to the expediency of designating any time in the Constitution, and as to the particular period adopted in the report. But as it was generally agreed that Congress ought to assemble annually, the provision which now stands in the Constitution, which requires annual sessions, and establishes the first Monday in December as the time of their commencement, unless a different day shall be appointed by law, was adopted as a compromise of different views.[210]

FOOTNOTES:

[130] The first draft of the Constitution, reported by the committee of detail, will be found in the Appendix.

[131] A general instruction had been given to report "certain qualifications of property and citizenship," for the executive, the judiciary, and the members of both houses of Congress.

[132] It is only necessary to mention the names of Hamilton, Wilson, Robert Morris, and Fitzsimmons, to show the entire impracticability of a rule that would have excluded all persons of _foreign birth_ from being electors, or from being elected to office.

[133] I have called the naturalization power a _practical_ control upon the States in the matter of suffrage. It is indirect, but it is effectual; for I believe that no State has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not naturalized citizens of the United States.

[134] Art. VI. Sect. 2 of the reported draft.

[135] Art. IV. Sect. 2 of the reported draft.

[136] New Hampshire, Massachusetts, and Georgia alone voted to retain it. Elliot, V. 404.

[137] The Constitution of Pennsylvania had given to foreigners, after two years' residence, all the rights of citizens. There were similar provisions in nearly all of the States.

[138] The members who advocated the exemption were G. Morris, Mercer, Gorham, Madison, and Wilson; those who opposed it were Rutledge, Sherman, General Pinckney, Mason, and Baldwin. The States voting for it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5; the States voting against it were New Hampshire, Massachusetts, Delaware, North Carolina, South Carolina, Georgia, 6. The question elicited a good deal of feeling, and was debated with some warmth.

[139] _Ante_, Chap. VII.

[140] See _ante_, Chap. VIII.

[141] See _post_, as to the compromise on this subject.

[142] September 8.

[143] Elliot, V. 530.

[144] By a majority of one State. Ibid.

[145] That is to say, Congress were authorized to apportion one representative to thirty thousand inhabitants, but not to exceed that number. Constitution, Art. I. § 2.

[146] Let the reader consult Mr. Hallam's acute and learned discussion of this exclusive privilege of the House of Commons, (Const. Hist., III. 37-46,) and he will probably be satisfied, that, whatever theoretical reasons different writers may have assigned for it, its origin is so obscure, and its precise limits and purposes, deduced from the precedents, are so uncertain, that it can now be said to rest on no positive principles. Its basis is custom; which, having no definite beginning, is now necessarily immemorial. It would not be quite safe, therefore, to reason upon the well-defined provision of our Constitution, as if there were a close analogy between the situation of the two houses of Congress and the two branches of the British legislature. The English example certainly had an influence, in suggesting the plan of such a restriction; but care must be taken not to overlook the peculiar arrangements which made it so highly expedient, that it may be said to have been a necessity, even if there had been no British example.

[147] C. Pinckney. Elliot, V. 189. June 13.

[148] On the question for restraining the Senate from originating money bills, New York, Delaware, Virginia, _ay_, 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, _no_, 7. Ibid.

[149] Elliot, V. 285. _Ante_, Chap. VIII.

[150] August 8. For striking out, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hampshire, Massachusetts, Connecticut, North Carolina, _no_, 4.

[151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V. 395-397.) It would be endless to cite the observations of different members, to show the purposes which they entertained. The reader, who desires to test the accuracy of my inferences in any of these descriptions, must study the debates, and compare, as I have done, the different _phases_ which the subject assumed from time to time.

[152] Moved by Randolph, August 13. Elliot, V. 414.

[153] Ibid. 420.

[154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought forward as an amendment to the article (Art. VI. § 12) which was to define the powers of the two houses.

[155] August 31. Elliot, V. 503.

[156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from this committee, was confined to "bills for raising revenue"; and these were made subject to "alterations and amendments by the Senate."

[157] Ibid. 519.

[158] The history of this provision shows clearly that a bill for appropriating money may originate in the Senate.

[159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut, Pennsylvania, and Maryland voted in the negative, and the vote of North Carolina was divided.

[160] May 31. Elliot, V. 133.

[161] Dickinson, Gerry, Mason.

[162] Sherman, Luther Martin, Ellsworth. On the naked proposition, moved by Ellsworth, July 2, to allow each State one vote in the Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_, 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided.

[163] Maryland alone voted against it.

[164] This suggestion was made by Hamilton. Elliot, V. 517.

[165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June 26.

[166] Ibid.

[167] In Horace Walpole's Memoirs of the Reign of George II., there is an amusing parallel--gravely drawn, however--between the mode in which his father, Sir Robert, "traded for members," and the manner in which Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir Robert Walpole "the patron and parent of parliamentary corruption." (Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say that it originated under Charles II., and both admit that it was practised down to the close of the American war. (Hallam's Const. Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III. 541-549.) The latter, in a very masterly analysis of its origin and history, treats it as a local disease, incident to the growth of the English constitution. It must be confessed, that it had become _chronic_.

[168] I am quite aware of the danger of reasoning from the circumstances of one country to those of another, even in the case of England and the United States. But I avail myself, in support of the text, of the authority of a writer, whose high moral tone, and whose profound knowledge of the constitution on which he has written, unite to make it unnecessary that its history should be written again;--I mean, of course, Mr. Hallam. He pronounces it an extreme supposition, and not to be pretended, that Parliament was ever "absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience." "But," he adds, "as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, _the degree of influence which ought to be permitted_, or which has at any time existed, _becomes one of the most important subjects in our constitutional policy_." (Const. Hist., III. 351.)

[169] The position and functions of the judiciary, after proper measures have been taken to secure individual capacity and integrity, do admit and require what may be called absolute confidence. That is to say, their action is not only final and conclusive, but it is never legitimately open to the influence of any other department. The reason is, that their action does not proceed from individual discretion, but is regulated by the principles of a moral science, whose existence is wholly independent of the will of the particular judge. Whereas the action of both the executive and the legislative departments, within the limits prescribed to it by the fundamental law, involves the exercise, to a wide extent, of mere individual discretion. The remedy for a failure in the judge to justify the confidence reposed in him is, therefore, only by impeachment.

[170] The legislature of Massachusetts had, before Congress recommended the national Convention, instructed its delegates in Congress not to agree to any modification of the fifth Article of the Confederation, which prohibited the members of Congress from _holding_ any office under the United States, for which they or any other person for their benefit could receive any salary, fee, or emolument. This instruction was repealed, by the unqualified manner in which the State accepted the recommendation for a national Convention. But it shows the sentiment of the State on this point, and it also shows the jealousy that was felt.

[171] See the assertion by Mr. Mason, and the admission by Mr. Madison, Elliot, V. 230, 232.

[172] Butler, Mason, and Rutledge.

[173] Two States only, Connecticut and New Jersey, voted for Madison's amendment. June 23. Elliot, V. 230-233.

[174] The disqualification, as applied to members of both houses, was incorporated into one clause. Art. VI. § 9 of the draft of the committee of detail. Elliot, V. 377.

[175] See the debate, August 14. Elliot, V. 420-425.

[176] There was a majority of only one State in favor of this principle. Elliot, V. 506.

[177] This provision received a unanimous vote. Ibid.

[178] For the history of what have been called place-bills, see Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339, 341, 342, 479, 480, 528.

[179] Mr. Justice Story has suggested, that, "if it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the House of Representatives, where they might freely debate without a title to vote." (Commentaries on the Constitution, I. § 869.) An officer of an executive department, thus admitted to a seat in Congress, must have been placed there merely in virtue of his office, by a special provision. He could have represented no real constituency, and must therefore have had an anomalous position. A territorial delegate is admitted as the representative of a dependency, somewhat colonial in its nature, whose inhabitants are not on an equal footing with the constituencies of the States. He has therefore no vote. When speaking for the interests of those whom he represents, he is in somewhat the same attitude as counsel admitted to be heard at the bar of the House. Whether the head of an executive department could with dignity and convenience be placed in a similar position, admits at least of grave doubt.

[180] Art. I. § 4 of the Constitution.

[181] Art. VI. § 1 of the first draft.

[182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309.

[183] Elliot, V. 402.

[184] Elliot, V. 247.

[185] Art. VI. § 10 of the first draft. Elliot, V. 378.

[186] Massachusetts and South Carolina in the negative.

[187] See the discussion on Art. VI. § 10 of the first draft. Elliot, V. 425-427.

[188] Pennsylvania and Virginia.

[189] See Elliot, V. 507, 528, 529.

[190] As to the other provisions of the Constitution on this subject, see the Index, _verb._ Impeachment.

[191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution.

[192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6.

[193] Elliot, V. 407. Constitution, Art. I. § 5.

[194] Elliot, V. 407. Constitution, Art. I. § 5.

[195] Elliot, V. 507, 520. Constitution, Art. I. § 3.

[196] Ibid.

[197] Art. I. § 2.

[198] Constitution, Art. I. § 7.

[199] 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 afterwards 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 originated_,"--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 expression, 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 "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.

[200] _Ante_, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Passed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made.

[207] See _ante_, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See _post_, as to the power of the President to assemble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (§ 829), that this clause came into the Constitution in the _revised_ draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385.