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house in which it originated, and that house enters the objections at large on its journal, and proceeds to reconsider the bill. If, after such reconsideration, two thirds of that house should agree to pass the bill, it is sent, together with the objections, to the other house, by which it is likewise reconsidered, and, if approved by two thirds of that house, it becomes a law. (b) But, in all such cases, the votes of both houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered on the journals. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same becomes a law, equally as if he had signed it, unless Congress, by adjournment, in the mean time, prevents its return, and then it does not become a law. (c) 2

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The practice in Congress, and especially in the second or last session of each Congress, of retaining most of their bills until within the last ten days, is attended with the disadvantage of shortening the time allowed to the President for perusal and reflection upon them, and of placing within the power of the President the absolute negative of every bill presented within *240 the last ten days preceding the 4th of March; and this he can effect merely by retaining them, without being obliged to assign any reason whatever; for he is entitled to ten days to deliberate. Most of the bills that are presented to the President in the second session of every Congress were, a few years ago, presented to him within the last ten days, and generally within the last two days; but the rules of Congress have latterly checked the evils and danger of such an accumulation of business on the last days of the session.

This qualified negative of the President upon the formation of

(b) The constitution does not say whether the vote of two thirds of each house on the reconsideration of a bill returned by the President, with objections, shall be two thirds of the members elected, or only two thirds of the members present. It is understood that the latter construction has been adopted in practice.

(c) Art. 1, sec. 7.

2 Under the provision of the Constitution of New York, which is in this respect like that of the United States, it has been decided by the Court of Appeals that a law presented to the Governor for his action, during the last ten days of the session of the legislature, might be approved and signed by the Governor after the end of the session and thereby become a law. People v. Bowen, 21 N. Y. 517.

laws is, theoretically at least, some additional security against the passage of improper laws, through prejudice or want of due reflection; but it was principally intended to give to the President a constitutional weapon to defend the executive department, as well as the just balance of the constitution against the usurpations of the legislative power. To enact laws is a transcendent power; and if the body that possesses it be a full and equal representation of the people, there is danger of its pressing with destructive weight upon all the other parts of the machinery of the government. It has, therefore, been thought necessary, by the most skilful and most experienced artists in the science of civil polity, that strong barriers should be erected for the protection and security of the other necessary powers of the government. Nothing has been deemed more fit and expedient for the purpose than the provision that the head of the executive department should be so constituted as to secure a requisite share of independence, and that he should have a negative upon the passing of laws; and that the judiciary power, resting on a still more permanent basis, should have the right of determining upon the validity of laws by the standard of the constitution. A qualified negative answers all the salutary purposes of an absolute one, for it is not to be presumed that two thirds of both houses of Congress, on reconsideration, with the reasoning of the President in opposition to the bill spread at large upon their journals, will ever concur in any unconstitutional measure. (a) In the English consti- *241 tution, the king has an absolute negative; but it has not

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been necessary to exercise it since the time of William III. The influence of the crown has been exerted in a more gentle manner, to destroy any obnoxious measure in its progress through the two houses of Parliament. Charles I. stood for a long time upon the strict and forbidding rights of his prerogative; but he was compelled, by the spirit and clamor of the nation, to give his assent to bills which cut down that prerogative, and placed the power of government in the hands of the Parliament. The peremptory veto of the Roman tribunes, who were placed at the door of the Senate,

(a) This qualified negative of the President has, in the progress of the administration of the government, since the first publication of these Commentaries, in 1826, become a very grave power, and applied, under the ordinary name of veto, with a familiarity which appears not to have been anticipated by the generation which adopted the constitution.

would not be reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a labored and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some very feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative given to the President of the United States appears to be more wisely digested than any of the examples which have been mentioned. (b)

(b) The organization of the two houses of Congress, and the principles on which it rests, were profoundly discussed in The Federalist, from No. 52 to No. 64, inclusive. There is no work on the subject of the constitution, and on republican and federal government generally, that deserves to be more thoroughly studied. The Federalist appeared originally in a series of numbers, published in the New York daily papers, between October, 1787, and June, 1788. They were read with admiration and enthusiasm as they successively appeared, and by no person more so than the author of this note, who made a fruitless attempt at the time to abridge them for the benefit of a country village print. No constitution of government ever received a more masterly and successful vindication. I know not, indeed, of any work on the principles of free government that is to be compared, in instruction, and intrinsic value, to this small and unpretending volume of The Federalist; not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candor, simplicity, and elegance with which its truths are uttered and recommended. Mr. Justice Story acted wisely in making The Federalist the basis of his Commentary; and as we had the experience of nearly fifty years since The Federalist was written, the work of Judge Story was enriched with the results of that experience, and it is written in the same free and liberal spirit, with equal exactness of research and soundness of doctrine, and with great beauty and elegance of composition.

LECTURE XII.

OF JUDICIAL CONSTRUCTIONS OF THE POWERS OF CONGRESS.

I PROCEED to consider the cases in which the powers of Congress have been made the subject of judicial investigation. (a)

creditor.

(1.) Congress have declared by law that the United States were entitled to priority of payment over private creditors in Priority of cases of insolvency, and in the distribution of the estates U. States as a of deceased debtors. The act of Congress of 31st July, 1789, sec. 21, confined the priority to custom-house bonds. The act of 4th August, 1790, c. 35, sec. 45, limited the priority in the same manner. The act of 2d May, 1792, placed the surety in a custom-house bond, who paid the debt, on the same footing, in respect to priority, as the United States; and it confined the cases of insolvency mentioned in the former law to those of a voluntary assignment, and of attachments against absconding, concealed, or absent debtors. The act of 3d March, 1797, c. 74, sec. 5, went further, and gave the United States a preference in all cases whatsoever, whoever might be the debtor, or however he might be in

(a) Mr. Justice Story, in his Commentaries on the Constitution of the United States, vol. i. pp. 382-442, has given a very rational view of the rules of interpretation applicable to the constitution. I have confined myself in this lecture to those authoritative expositions which have been given to it by the courts of the United States; and I agree entirely with that learned commentator, that we are to look to the instrument itself, "as a constitution of government ordained and established by the people of the United States." The instrument furnishes essentially the means of its own interpretation; and to resort to it was the practice of the late Chief Justice Marshall, in those clear and admirable judicial views of the constitution which, so far as they go, leave us nothing more perfect to expect or desire. It is, at the same time, just and true, that "the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself, in its various departments, upon particular questions discussed, and settled upon their own intrinsic merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic." Story's Comm. vol. i. p. 392. See, also, infra, p. 313, to S. P.

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debted, in case the debtor became insolvent, or the assets in the hands of his representatives, after his death, were insufficient to pay his debts. This priority was declared to extend to cases in which the insolvent debtor had made a voluntary assignment of all his property, or in which his effects had been attached as an absconding, concealed, or absent debtor, or in which an act of legal bankruptcy had been committed. This act applies and gives the preference as against deceased debtors, whether the debt was contracted before or after the passage of the act, provided there be only general creditors, without any specific lien created. (b) The

act of March 2d, 1799, c. 128, sec. 65, provided, that in like * 244 cases * of insolvency, or where any estate in the hands of executors, administrators, or assignees should be insufficient, debts due to the United States, on bonds taken under the collection act, should have preference; and sureties in such bonds, on paying the same, had the same preference as was reserved to the United States. (a)

These were the legislative provisions, giving preference to debts due to the United States; and in Fisher v. Blight, (b) the authority of Congress to pass such laws was drawn in question. The point discussed in that case was, whether the United States, as holders of a protested bill of exchange, negotiated in the ordinary course of trade, were to be preferred to the general creditors, when the debtor becomes bankrupt. The Supreme Court decided that the acts of Congress, giving that general priority to the United States, were constitutional. It was a power founded on the authority to make all laws which should be necessary and proper to carry into effect the powers vested by the constitution in the government of the United States. Where the end was within the lawful powers

(b) Commonwealth v. Lewis, 6 Binney, 266.

(a) Hunter v. United States, 5 Peters U. S. 173. In the case of The United States v. Couch, C. C. U. S. New York, April Term, 1841, it was declared to have been the unvaried construction of the 65th section of the act of March 2d, 1799, that the priority therein given to the United States, to be paid out of the estate of an insolvent debtor, takes effect only when the insolvency is established by an assignment of all his property, either by his own act or by act of law, and when such assignment is carried into execution by the assignees. Hunt's Merchants' Magazine, New York, August, 1841, p. 168; U. S. v. Wood & Ives, Ibid. p. 170, S. P.1

(b) 2 Cranch, 358.

1 S. P. United States v. Howland, 4 Wheaton, 108.

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