ments to office. Accordingly it was resolved that, in conformity with the presi dent's pleasure, he might make his nominations to the senate either in writing or in person; and it was further provided that for this purpose he might wait on the senate in their own chamber, (in which case he should occupy the chair of the president of the senate,) or might summon the president of the senate and the senators to meet him at such place as he should designate. It was provided, however, that all questions, whether in the presence or absence of the President of the United States, should be put by the president of the senate, and "that the senators should signify their assent or dissent by answering, viva voce, aye or no." On the day following the adoption of this minute, that is on the 22d of August, 1789, it appears from the journal that the President of the United States came into the senate chamber, attended by General Knox, and laid before the senate a statement of facts in reference to the negotiation of certain treaties with various Indian tribes. Desiring to fix certain principles on which the negotiations should be conducted, he reported to the senate a series of questions, to each of which he requested a categorical answer, to guide him in giving instructions to the commissioners appointed to treat with the Indians. The questions were seven in number, and were considered throughout two daily sessions, in the presence of the president, and, as appears from the journal, of General Knox.

How long the relations between the president and the senate remained on this footing we are unable to say with any accuracy, though the practice of his personal attendance during their sessions in executive business seems to have been abandoned after a time; and authentic tradition records that its disuse was hastened by the blunt speeches of certain senators, who intimated that the presence of the president operated as a restraint on them in canvassing the merits of the candidates submitted for their advice and consent. It soon became habitual for the president to communicate all his nominations to the senate in writing.

As has been already stated, the proceedings of the senate, as well legislative as executive, were conducted during the first session with closed doors. During the second session of the first congress, which was begun in New York on the 4th of January, 1790, the same custom was retained, though, as appears from the journal, not without protest and dissent on the part of some senators. For it appears that on the 29th of April following it was moved "that the doors of the senate chamber shall be open when the senate is sitting in their legislative capacity, to the end that such of the citizens of the United States as may choose to hear the debates of this house may have an opportunity of so doing." This resolution, being postponed for consideration on the following day, was then taken up, and, after debate, rejected.

At a third session of the first congress, begun in Philadelphia on the 6th of December, 1790, it was again proposed, on the 23d of February following, "that it be a standing rule that the doors of the senate chamber remain open whilst the senate shall be sitting in a legislative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of congress." And to this end it was proposed "that the secretary of the senate request the commissioners of the city and county of Philadelphia to cause a proper gallery to be erected for the

accommodation of the audience." After debate, extending through two days, the proposition was rejected by a vote of 9 yeas to 17 nays. The names of those voting in the affirmative are Messrs. Butler, Foster, Gunn, Hawkins, King, Lee, Maclay, Monroe, and Schuyler. Those voting in the negative were Messrs. Bassett, Carroll, Dalton, Dickinson, Ellsworth, Elmer, Few, Henry, Johnson, Johnston, Izard, Langdon, Morris, Read, Stanton, Strong, and Wingate.

The first session of the second congress was begun at Philadelphia on the 24th of October, 1791. On the 26th of March following-a few weeks before the adjournment of congress at that session-a resolution identical in terms with that rejected at the last session of the first congress was moved by Mr. Monroe and seconded by Mr. Lee, both of Virginia. The proposition met with the same fate, receiving fewer votes than at the former session. Some days after the rejection of this resolution it was moved "that when the senate are sitting in their legis. lative capacity the members of the house of representatives may be admitted to attend the debates, and each member of the senate may also admit a number not exceeding two persons; provided the operation of this resolution be suspended until the senate chamber is sufficiently enlarged." This proposition also failed to be adopted, receiving only six votes.

We have recited these several and ineffectual attempts to procure the abrogation of this established rule of the senate for the purpose of showing that it did not grow up as an unregarded usage, but was founded on considerations satisfactory to a majority of the senate at that day. Nor does it appear to have been a question of party politics, since we find federalists voting with republicans for its abolition, and republicans voting with federalists for its retention.

The first session of the third congress of the United States, which commenced at Philadelphia on the 2d of December, 1793, was destined to witness the overthrow of the rule which had previously obtained on this point. The senate was called at this session to consider and decide a question which elicited a large share of public interest, because of the political susceptibilities which had been awakened by its discussion. We allude to the contest raised respecting the eligibility of Mr. Albert Gallatin as a member of the senate from the state of Pennsylvania. On the first day of the session of that year a petition was presented by Conrad Laub and others, representing that Mr. G. at the date of his election had not been, as the constitution requires, "nine years a citizen of the United States." The committee to which the whole subject was referred reported adversely to the claims of Mr. Gallatin on the 31st of December, and the report, after being read and ordered to lie over for future consideration, was taken up on the 9th of January following, and discussed through several successive days, when, on the 13th of the same month, the matter was re-committed to a special committee of elections appointed for the purpose of hearing both parties to the contest. Before this committee reported, and on the 16th of January, 1794, Mr. Martin, of North Carolina, moved the adoption of the following formal resolutions against the principles and policy of the existing regulations of the senate in regard to the secrecy of its deliberations:

"Resolved, That in all representative governments, the representatives are responsible for their conduct to their constituents, who are entitled to such information that a discrimination and just estimate be made thereof.

"Resolved, That the senate of the United States, being the representatives of the sovereignties of the individual states, whose basis is the people, owe equal responsibility to the powers by which they are appointed, as if that body were derived immediately from the people, and that all questions and debates arising thereupon in their legislative and judiciary capacity, ought to be public.

"Resolved, That the mode adopted by the senate of publishing their journals, and extracts from them, in newspapers, is not adequate to the purpose of circulating satisfactory information. While the principles and designs of the individual members are withheld from public view, responsibility is destroyed, which, on the publicity of their deliberations, would be restored; the constitutional powers of the senate become more important, in being more influential over the other branch of the legislature; abuse of power, mal-administration of office, more easily detected and corrected; jealousies, rising in the public mind from secret legislation, prevented; and greater confidence placed by our fellow-citizens in the national government, by which their lives, liberties, and properties are to be secured and protected.

"Resolved, therefore, That it be a standing rule that the doors of the senate chamber remain open while the senate shall be sitting in a legislative and judiciary capacity, except on such occasions as in their judgment may require secrecy; and that this rule commence on the

day of

These resolutions, being called up on the morrow, were postponed successively from day to day, when, on the 10th day of February, the committee which had Mr. Gallatin's case in charge made their report to the senate, and a day was fixed for its consideration. Immediately on the presentation of the report, it was moved by a member "that the doors of the senate be opened and continued open during the discussion upon the contested election of Albert Gallatin," which resolution was adopted on the 11th of February, 1794. Meanwhile the series of resolutions abolishing the whole system of secrecy during legislative proceedings was still pending, and came up for consideration on the 19th of February, when each resolution was finally rejected, and a substitute offered in the following

terms:

"Resolved, That after the end of the present session of congress, and so soon as suitable galleries shall be provided for the senate chamber, the said galleries shall be permitted to be opened every morning, so long as the senate shall be engaged in their legislative capacity, unless in such cases as may, in the opinion of the senate, require secrecy, after which the said galleries shall be closed."

This resolution was passed on the following day by a vote of nineteen yeas to eight nays. Those who voted in the affirmative were Messrs. Bradley, Brown, Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. Those who voted in the negative were Messrs. Bradford, Cabot, Frelinghuysen, Izard, Mitchell, Morris, Rutherfurd, and Strong.

So this regulation of the senate was prospectively repealed and declared inoperative "after the present session," as by a previous resolution it had been expressly suspended during the debate on the case of Mr. Gallatin. Yet this step was not taken without reservation and caution, as is apparent from the fact that on the same day with the passage of the prospective resolution, it was unanimously resolved "That, on a motion made and seconded to shut the doors of the senate, on the discussion of any business which may, in the opinion of a member,

require secrecy, the president shall direct the gallery to be cleared; and that during the discussion of such motion the doors shall remain shut."

It only remains for us to add, in conclusion, that on the day following the passage of these resolutions the case of Mr. Gallatin was debated in open senate. The discussion extended through several days, and was conducted in the form of a trial, Mr. Gallatin affirming his right to the character of a citizen of the United States, and Mr. Lewis, a member of the Pennsylvania bar, attended by Mr. Schmyser, a member of the state senate of Pennsylvania, appearing as managers of the prosecution on the part of the petitioners. The pleadings, opened on the 21st of February, were closed on the 28th of the same month, when the senate decided that the election of Mr. Gallatin was void, in consequence of his not having been a citizen of the United States during the term of years required by the constitution as a qualification for membership in the United States senate. This case being settled, the doors of the senate were closed against the public during the residue of the session; but since that period, so far as we can recall, the legislative deliberations of the body have been uniformly conducted in public, without any interruption other than that which has sometimes arisen from the inadvertence of the senate, in resuming its legislative discussions after a secret session, and without thinking for a time to re-open the doors which had been closed during the transaction of executive business.

We need hardly say that it has been frequently proposed to abolish the secrecy of the senate even when called to sit in judgment on the treaties formed or the nominations submitted by the executive branch of the government. But the propriety of such a reservation, made in behalf of diplomatic negotiations not yet brought to a close, is too manifest to need remark, while the freedom and independence which the senator should enjoy in canvassing the propriety and character of the official appointments made with his advice and consent, plead perhaps with equal force in favor of retaining the rule so far as it relates to this other branch of executive business. The injunction of secrecy is from time to time removed by resolution of the senate from all subjects of popular concern whose publication can no longer frustrate the ends of prudent legislation.

CHAPTER XIV.

SUPREMACY OF THE LAW.-TAXATION.-DIVISION OF POWER.

19. THE supremacy of the law, in the sense in which it has already been mentioned, or the protection against the absolutism of one, of several, or the people, (which, practically, and for common transactions, means of course the majority,) requires other guarantees or checks of great importance.

It is necessary that the public funds be under close and efficient popular control, chiefly, therefore, under the supervision of the popular branch of the legislature, which is likewise the most important branch in granting the supplies, and the one in which, according to the English and American fundamental laws, all money bills must originate. The English are so jealous of this principle, that the commons will not even allow the lords to propose amendments affecting money grants or taxation.1 2

While these sheets were passing through the press, (March, 1859,) the house of representatives, at Washington, refused to consider certain amendments, passed in the senate, for the purpose of raising the postage on letters, the house declaring by resolution that these amendments interfered with the constitutional and exclusive right of the house to originate bills affecting the revenue.

[Can the house of lords reject a money bill? In 1671 and 1689 it was admitted that they could. The lords, however, abstained from interfering with bills affecting the supplies, and only now and then rejected or postponed such bills as bore incidentally on supplies and taxation, until 1860, when they postponed the second reading of the Paper Duties Repeal Bill for six months. This led to lively discussion of the privileges of the house of commons; to a search for precedents; and to resolutions of the commons, one of which was that, although the lords had sometimes exercised the power of rejecting bills of various descriptions relating to taxation, yet the exercise of that power was "justly regarded by the commons with peculiar jealousy, as affecting the right to grant supplies, and to provide the ways and means for the service of the year." May, u. s. i. chap. 7, p. 449, whose words we have in part use ]