With esteem for your person, and the sincerest reverence for your high public and private character, I humbly request your candid perusal of the following observations: They have been occasioned by a serious attention to the Bill which has recently passed the two Houses of Congress, and now waits your sanction:1 they spring from an affection for the constitution, and an anxious solicitude to guard it from invasion.

In the fifth section of the bill, is this clause, “at which place the session of Congress, next ensuing the present shall be held:”2 A doubt hath arisen, whether that clause be conformable to the constitution; in which it is declared, by the 3d clause of the 7th sec. art. 1st. that “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.” From this exception it is obvious, that it was intended by the Constitution, to reserve to the two Houses the right of adjourning to such time and place as they should deem proper: To relinquish that right is to betray their own privileges, and is a departure from that line of legislation which the constitution hath wisely chalked out.

An attentive inspection of that instrument, which we have all engaged to support, evinces that there are various modes by which the several component parts of the government are to manifest their will. In matters which relate to each house in its separate capacity, a single vote of each house is alone sufficient to have the force of law; thus by the 5th section, “Each house shall be the judge of the elections, returns and qualifications of its own members, and may punish a member for disorderly behaviour, and even expel him.”

In cases wherein the two branches of the legislature are concerned, a joint vote is prescribed; thus by the 4th clause of the 5th section, “it is inhibited to either house to adjourn, during the session of Congress, for more than three days, without the consent of the other, or to any other place than that in which the two houses shall be sitting:” Where the two houses disagree as to the time of adjournment, it is provided by the 3d sec. of the 2d art. That “the President may adjourn them to such time as he shall think proper;” where they differ as to the place, Congress must re-assemble at the place where they were last sitting: In this case the President has no agency, nor is it intended by the constitution that he should.

Such are the provisions established in matters which concern each house separately and the two houses collectively: in none of them is the President called upon to act, except in the single instance above mentioned, where he performs the part of an umpire, and where his interposition is necessary, because the time of meeting must be fixed; the place is unnecessary, because if none be appointed, they will of course return to the former place.

But in matters of a general nature which concern the public at large, the wisdom of the Constitution requires something more than the act of the two houses; the President must approve them; it is therefore declared that 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.

Here are then three modes of passing orders, resolutions or votes: the first by each house; the second by the two houses; the third by the two houses and the President. The question now occurs, Is it consistent with the constitution to depart from the modes above prescribed?

If it be in one instance, it must be so in all. If it be constitutional to require the assent of the President in cases where the two houses, without such assent, are competent to decide, it must likewise be constitutional to require the assent of the Senate in cases where the House of Representatives are alone capable of determining; it would therefore be a constitutional act for the two houses to decide, by a concurrent resolution, on the privileges of each house. Some of the members of the House of Representatives hold their seats under a resolution of that house alone; did the idea ever suggest itself that there would be no impropriety in sending such resolution to the Senate for their concurrence?—Would not such an idea have been severely reprobated?—Why? Because each house is the judge of the qualifications of its own members; because, to have required the concurrence of the Senate, would have been a violation of the rights of the House of Representatives; and is less respect due to the rights of the two Houses?

If it be an infraction of the constitution to require the concurrence of the two houses where one house can decide, is it less an infraction to demand the approbation of the President, where the two houses can decide? Suppose the President should refuse his assent; the bill will then be lost, unless it be passed by two thirds of both houses, but a majority of the two houses have a constitutional right to adjourn to such place as they shall think proper; either then the two houses will have relinquished a power they possess by the constitution, and a majority will be insufficient to adjourn where they please, or, a bare majority of the two houses will give effect to a measure which has been formally disapproved by the President; whereas the constitution expressly declares in the 2d and 3d clause, 7th sect 1st art. that it shall be repassed by two thirds of the Senate and House of Representatives, before it can take effect.

In what absurdity will Congress be involved when the period of adjournment arrives? If the question respecting the place of adjournment be already determined by the bill, then the two houses have relinquished a right which all legislative bodies possess, of reserving to themselves to the very last day of adjournment, the power of declaring at what place they will re-assemble. When this point is settled by a concurrent vote of the two houses, they may at any time prior to the adjournment, rescind the resolution. At the last session Congress resolved to adjourn on the 22d of September; the vote was not sent to the President, such an absurdity was never thought of: when the 22d arrived, they saw the difficulty of adjourning on that day, and the vote was rescinded;3 had it been approved by the President, they must have had his approbation to the prolongation of the session, which he might have withheld; if there would have been an absurdity in requiring his assent to the time, there would have been a greater absurdity in requiring it to the place, for he has the power of interfering when the two houses disagree as to the time, none as to the place.

If the question be still unsettled, notwithstanding the clause in the bill, and this was admitted by its advocates, then this inconsistency occurs, that a clause is agreed to, knowing it to be inoperative, and that its inefficacy results from its unconstitutionality. To make this more striking, place the argument in the shape of a syllogism; the constitution is violated when any law or part of a law is past, which is repugnant to it, but the friends of the bill admitted that the clause was nugatory, because it was repugnant to it, therefore in passing it they violated the constitution.

It is no answer to the argument to alledge that the clause will do no harm. If it be intended that it should be carried into effect, it controuls the will of the majority of the two houses, against the express words of the constitution; if it be nugatory, and the same thing must hereafter be determined, by a concurrent vote of the two houses, such inconsistency will expose Congress to public censure and derision. It will be asked why do Congress determine by a concurrent vote of the two houses that which they have already decided by law? If the public are told that the law was nugatory, and that Congress were apprized of it when they passed it, they will lose all respect for their proceedings; it will be said, if an act has already passed on the subject, a resolution can neither inforce or repeal it: If the act was void, it was because it deviated from the constitution, and it should not have been passed.

If laws are made which are unconstitutional, because they may do no harm, Congress will soon proceed to those which may and will do harm. The example is a dangerous one, and will be quoted on future occasions. Every law does not undergo the revision of the judiciary; this will certainly not; the President of the United States can alone arrest its progress. Having his sanction, the public will consider every part of the bill as valid, because they know he would not approve any bill that contained a syllable that was unconstitutional; the clause will then be deemed binding, because every part of the bill must have its operation, for words in a law which command a particular act to be done, cannot be viewed as mere surplusage: If the law remains unrepealed or invalidated by the judiciary, the thing commanded to be done must be carried into effect; a bare resolution of the two houses, without the approbation of the executive, cannot repeal a law, which has his approbation, because it requires the same power to repeal a law as to pass it: The two houses will then be precluded from exercising their constitutional privilege.

A gentleman4 who supported an objection to the bill of last session, on the ground that a law fixing the temporary seat of government was unconstitutional, attempted the other day to prove that it is not unconstitutional to fix by law, even the session of Congress. If there was any force in his arguments against fixing by law, the temporary seat of government, the arguments against fixing, by law, the session of Congress, must be conclusive: But he is reconciled to the measure this session, because his objection was overruled in the last by a majority. When a member of his knowledge of, and attachment to the Constitution, suffers himself to be so influenced by a precedent which he must himself acknowledge to be a bad one, it is time to apprehend danger from precedents, and to put a stop to them. No precedent can justify a wrong measure; but the bill of last session did not pass into a law. Where then is the precedent? he has agreed to make one this session. It is remarkable too that the objection last year was totally inapplicable, for it related to fixing the seat of government, which must be done by law, whether it be the permanent or temporary seat.

The constitution provides that a district of territory shall, by the cession of a state and the acceptance of Congress, become the seat of government; that acceptance must be declared by law; for both houses must concur in the measure, and every vote in which they both concur, must be sent to the President, except on a question of adjournment—but the two houses may afterwards adjourn from that place to any other. This is undeniable from the various clauses already quoted. Congress may also declare, by law, prior to their establishing the permanent seat of government, where the temporary seat shall be, that the public officers, foreign ministers, and the judges of the supreme court, may know where to assemble; but it does not follow that the two houses are to sit at that place.

This distinction between the seat of government and the seat of Congress, has been however denied by that gentleman. He contended, that Congress being a part of the government, the seat of government must be wherever they hold their session. It would then follow, either that during the recess of Congress there would be no seat of government, or should they, by concurrent vote, adjourn to any other place than that fixed by law as the seat of government, there would be two seats of government.

The executive and judicial, and the officers of state, are component parts of the government; the judicial is as much a part of the government as the legislative, and yet it is declared by law, that the supreme court shall hold their sessions at the seat of government; the executive is also as much a part of the government as the legislative, and yet the President may reside where he pleases.

This, however, is clear, that the gentleman was persuaded last session that it was an unconstitutional act to fix, by law, the place where Congress should hold their next session; his words were these, “from the constitution it appeared, that the concurrence of the two houses was sufficient to enable them to adjourn from one place to another; nay the legal consent of the President was in some degree prescribed5 in the 7th Sec. of Art. 1. where it is declared that every order, &c. 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, &c. any attempt therefore to adjourn by law, is a violation of that part of the constitution which gives the power exclusively to the two branches of the legislature. By another clause in the constitution it is declared, that 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; from hence he inferred, that the two houses by a concurrence, could adjourn for more than three days, and to any other place which they thought proper; by the other clause he had mentioned, the executive power is restrained from any interference with the legislative on this subject; hence he concluded it would be dangerous to attempt to give to the President a power the constitution expressly denied him. He did not suppose that the attempt to vest the executive with a power over the adjournments of the legislature would absolutely convey the power, but he conceived it wrong to make the experiment. He submitted it to those gentlemen who were attached to the success of the bill, how far an unconstitutional declaration may impede its passage through the other branch of the legislature.”

On the same occasion, another member of the H. of Representatives6 addressed the House in these words, “the Susquehannah being agreeable to the wishes of a great part of my constituents, I felt myself under an obligation to vote for it, and nothing would restrain me from giving my assent to the bill, but that clause which requires the concurrence of the President, respecting the seat of government until Congress meet at their permanent seat. To this clause I have strong constitutional objections. I have endeavoured to remove this conviction from my mind, in order to give my assent to the bill, but as I am under the sacred obligation of an oath to support the constitution, as I cannot efface the conviction from my mind that it is contrary to the constitution, and as we could not succeed in striking out the clause, I feel myself under the disagreeable necessity of giving my dissent to the bill.”

If the clause was unconstitutional last session, is it less so this? If it was an infraction of the Constitution to fix by law the temporary seat of government, is it not a more palpable one to fix by law the place where Congress shall hold their next session: can the vote of last session render the measure constitutional? Admitting that some members had then violated the Constitution, was not a greater obligation imposed on others to resist any further invasion? For what will become of the government if such encroachments are allowed to succeed, and its friends do not step forward and oppose them?

This is the moment when public measures should be narrowly watched; in the cool hour of calm discussion, when the subject is little interesting to the passions, there is no danger; on the slighty7 suggestion of unconstitutionality, a clause would be struck out; but when the mind pursues a favorite object with passionate enthusiasm, men are too apt, in their eager embrace of it, to overlook the means by which it is attained. These are the melancholy occasions when the barriers of the government are broken down, and the boundaries of the Constitution defaced! There is danger in another respect; from the apparent unimportance of the clause objected to. In the eye of the law the offence is equally great; in the eye of reason and prudence it is greater, because the public are more inattentive to the incroachment, and because the success of one step infallibly leads to another. It is a wedge which having entered the gap, makes way for further progression. The Constitution is the rock of our political salvation; it is the palladium of our rights; it is the safeguard of the rights of States as well as individuals; it is our only bond of union; the smallest deviation from it is a mortal blow to those rights, and ought to be opposed by every citizen who wishes the preservation of the Union; nay, every citizen who has taken an oath to support the Constitution, violates that oath if he silently suffers any law to pass which appears to him, in the smallest degree, repugnant to it.

That the clause in question is repugnant to it is admitted, but it is justified on the principle that it will be inoperative; this is however a mistaken idea, for it will have an operation, unless formally annulled by the judiciary, and it is impossible the construction of it can ever go before the federal courts; it can’t be alledged that it will be nugatory, and that a subsequent resolution of the two houses may adjourn to some other place, for then there would exist this solecism in politics, of a smaller power rescinding the act of a larger; there would also exist this absurdity of one place being fixed by law and another by a simple resolution of the two houses; if both the law and the resolution should name the same place, then there would exist another absurdity of a resolution without the President’s approbation enforcing a law which had received his sanction. It cannot be justified on the ground that the two houses may, if they think proper, wave their right of determining for themselves, and request the concurrence of the President, because such a relinquishment of their privileges is not only a departure from the plain words of the Constitution which they have sworn to support, but is a transfer of rights which they enjoy as members of the legislature, not as individuals, as trustees for the public, not as their own property; they therefore betray the trust reposed in them, when they wantonly, and with their eyes open, curtail or alienate those privileges.

The circumstance of the clause being only a small part of the law, does not alter the case; the law ought not to pass, if there be any part of it inconsistent with the constitution; if the President signs it, he approves the whole; if he objects to any part, he must return it with his objections, and the two houses may expunge the exceptionable part, and then the President can give it his sanction. The bill may still pass with the sound part; if the unsound part should not be cut out, it will contaminate the whole, and be perpetually a good cause of repeal. There will always remain on the minds of scrupulous men, conscientious doubts respecting the efficacy of a law, which contains within it an unconstitutional clause, which may considerably tend to defeat its operation. Even the sanguine promoters of it, will look at it with different eyes from what they now do, when their ardent zeal shall have cooled; they reprobated it once themselves, as highly unconstitutional. What will not some men do to attain a favorite object? The reflection is mortifying and degrading!

Can there be a doubt, that, if the law consisted of only this one clause, that there would have been a general clamor at the absurdity of sending it to the President—even had the two houses been so ignorant of the constitution as to pass such a law would not the President have returned it with this answer, that by the constitution he had nothing to do with it. What would have been the consequence of such a measure? Either the two houses would discover what they ought to have known before, that they could do without his assent, or they must have repassed by two thirds, what by the constitution a majority is competent to: and does it make any difference, in point of constitutionality, whether the objectionable clause is a whole law or only part of a law? No man of common understanding will assert it.

Will not the public lose respect for the acts of Congress, when they see them blindly pursuing favorite measures, to the total disregard of the constitution? What appearance will it have to pass laws which are admitted not to be binding? What folly to require the assent of the President, when it would be as effectual without it?

Some of these arguments were stated. It was acknowledged that the clause was nugatory, because it was unconstitutional, but it was retained—why? Because the bill was unalterable: sic volo, sic jubeo;8 these things ought not to be.