University of Virginia Library

107. ADJOURNMENT, Congress and.

—A bill having passed both houses of Congress,
and being now before the President,
declaring that the seat of the Federal Government
shall be transferred to the Potomac in
the year 1790, that the sessions of Congress
next ensuing the present shall be held in Philadelphia,
to which place the offices shall be
transferred before the 1st of December next,
a writer in a public paper of July 13, has urged
on the consideration of the President, that
the Constitution has given to the two houses
of Congress the exclusive right to adjourn
themselves; that the will of the President
mixed with theirs in a decision of this kind,
would be an inoperative ingredient, repugnant
to the Constitution, and that he ought
not to permit them to part, in a single instance,
with their constitutional rights; consequently,
that he ought to negative the bill.
That is now to be considered.

Every man, and every body of men on
earth, possesses the right of self-government.
They receive it with their being from
the hand of nature. Individuals exercise it
by their single will; collections of men by
that of their majority; for the law of the
majority is the natural law of every society
of men. When a certain description of men
are to transact together a particular business,
the times and places of their meeting and
separating, depend on their own will; they
make a part of the natural right of self-government.
This, like all other natural rights,
may be abridged or modified in its exercise
by their own consent, or by the law of those
who depute them, if they meet in the right of
others; but as far as it is not abridged or
modified, they retain it as a natural right, and
may exercise it in what form they please,
either exclusively by themselves, or in association
with others, or by others altogether,
as they shall agree.

Each house of Congress possesses this natural
right of governing itself, and consequently,
of fixing its own times and places of
meeting, so far as it has not been abridged
by the law of those who employ them, that is
to say, by the Constitution. This act manifestly
considers them as possessing this right
of course, and, therefore, has nowhere given
it to them. In the several different passages
where it touches this right, it treats it as an
existing thing, not as one called into existence
by them. To evince this, every passage
of the Constitution shall be quoted, where
the right of adjournment is touched; and it
will be seen that no one of them pretends to
give that right; that, on the contrary, every
one is evidently introduced either to enlarge
the right where it would be too narrow, to restrain
it where, in its natural and full exercise,
it might be too large, and lead to inconvenience,
to defend it from the latitude of its own
phrases, where these were not meant to comprehend
it, or to provide for its exercise by
others, when they cannot exercise it themselves.

“A majority of each house shall constitute
a quorum to do business; but a smaller number
may adjourn from day to day, and May
be authorized to compel the attendance of
absent members.” Art. 1. Sec. 5. A majority
of every collection of men being naturally
necessary to constitute its will, and it being
frequently to happen that a majority is not
assembled, it was necessary to enlarge the
natural right by giving to “a smaller number
than a majority” a right to compel the
attendance of the absent members, and, in
the meantime, to adjourn from day to day.
This clause, then, does not pretend to give
to a majority a right which it knew that
majority would have of themselves, but to a
number less than a majority, a right to which
it knew that lesser number could not have of
themselves.

“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.” Ibid. Each house exercising
separately its natural right to meet when and
where it should think best, it might happen
that the two houses would separate either in
time or place, which would be inconvenient.
It was necessary, therefore, to keep them together
by restraining their natural right of
deciding on separate times and places, and
by requiring a concurrence of will.

But, as it might happen that obstinacy, or
a difference of object, might prevent this concurrence,
it goes on to take from them, in that
instance, the right of adjournment altogether,
and to transfer it to another, by declaring,
Art. 2. Sec. 3, that “in case of disagreement
between the two houses, with respect to the
time of adjournment, the President may adjourn
them to such time as he shall think
proper.”

These clauses, then, do not import, a gift,
to the two houses, of a general right of adjournment,
which it was known they would
have without that gift, but to restrain or abrogate
the right it was known they would
have, in an instance where, exercised in its
full extent, it might lead to inconvenience,
and to give that right to another, who would
not naturally have had it. It also gives to
the President a right, which he otherwise
would not have had, “to convene both houses,

or either of them, on extraordinary occasions.
” Thus substituting the will of another,
where they are not in a situation to exercise
their own.

“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 for his approbation,
&c., Art. I. Sec. 7. The latitude of the general
words here used would have subjected
the natural right of adjournment of the two
houses to the will of the President, which was
not intended. They, therefore, expressly
“except questions of adjournment” out of
their operation. They do not here give a
right of adjournment, which it was known
would exist without their gift, but they defend
the existing right against the latitude
of their own phrases, in a case where there
was no good reason to abridge it. The exception
admits they will have the right of
adjournment, without pointing out the source
from which they will derive it.

These are all the passages of the Constitution
(one only excepted, which shall be presently
cited,) where the right of adjournment
is touched; and it is evident that none of
these are introduced to give that right; but
every one supposes it to be existing, and provides
some specific modification for cases
where either defeat in the natural right, or a
too full use of it, would occasion inconvenience.

The right of adjournment, then, is not
given by the Constitution, and consequently
it may be modified by law without interfering
with that instrument. It is a natural
right, and, like all other natural rights, May
be abridged or regulated in its exercise by
law and the concurrence of the third branch
in any law regulating its exercise is so efficient
an ingredient in that law, that the
right cannot be otherwise exercised but after
a repeal by a new law. The express terms of
the Constitution itself show that this right
may be modified by law, when, in Art. I.
Sec. 4. (the only remaining passage on the
subject not yet quoted) it says, “The Congress
shall assemble at least once in every
year, and such meeting shall be the first Monday
in December, unless they shall, by law, appoint a different day.” Then another day
may be appointed by law; and the President's
assent is an efficient ingredient in that law.
Nay, further, they cannot adjourn over the
first Monday of December but by a law. This
is another constitutional abridgment of their
natural right of adjournment; and completing
our review of all the clauses in the Constitution
which touch that right, authorizes
us to say no part of that instrument gives it;
and that the houses hold it, not from the Constitution,
but from nature.

A consequence of this is, that the houses
may, by a joint resolution, remove themselves
from place to place, because it is a part of
their right of self-government; but that as
the right of self-government does not comprehend
the government of others, the two
houses cannot, by a joint resolution of their
majorities only, remove the Executive and
Judiciary from place to place. These branches
possessing, also, the rights of self-government
from nature, cannot be controlled in the exercise
of them but by a law, passed in the
forms of the Constitution The clause of the
bill in question, therefore, was necessary to be
put into the form of a law, and to be submitted
to the President, so far as it proposes
to effect the removal of the Executive and
Judiciary to Philadelphia. So far as respects
the removal of the present houses of legislation
thither, it was not necessary to be submitted
to the President; but such a submission
is not repugnant to the Constitution.
On the contrary, if he concurs, it will so far
fix the next session of Congress at Philadelphia
that it cannot be changed but by a regular
law.

The sense of Congress itself is always respectable
authority. It has been given very
remarkably on the present subject. The address
to the President in the paper of the
13th, is a complete digest of all the arguments
urged on the floor of the Representatives
against the constitutionality of the bill now
before the President; and they were overruled
by a majority of that house, comprehending
the delegation of all the States south
of the Hudson, except South Carolina. At
the last session of Congress, when the bill
for remaining a certain term at New York,
and then removing to Susquehanna, or Germantown,
was objected to on the same
ground, the objection was overruled by a majority
comprehending the delegations of the
northern half of the Union with that of
South Carolina. So that the sense of every
State in the Union has been expressed, by
its delegation, against this objection, South
Carolina excepted, and excepting also Rhode
Island, which has never yet had a delegation
in place to vote on the question. In both
these instances, the Senate concurred with the
majority of the Representatives. The sense
of the two houses is stronger authority in this
case, as it is given against their own supposed
privilege.

It would be as tedious, as it is unnecessary,
to take up and discuss one by one, the objects
proposed in the paper of July 13. Every
one of them is founded on the supposition
that the two houses hold their right of adjournment
from the Constitution. This error
being corrected, the objections founded
on it fall of themselves.

It would also be work of mere supererogation
to show that, granting what this writer
takes for granted, (that the President's assent
would be an inoperative ingredient, because
excluded by the Constitution, as he
says.) yet the particular views of the writer
would be frustrated, for on every hypothesis
of what the President may do, Congress must
go to Philadelphia. I. If he assents to the
bill, that assent makes good law of the part
relative to the Potomac; and the part for
holding the next session at Philadelphia is
good, either as an ordinance, or a vote of the
two houses, containing a complete declaration
of their will in a case where it is competent to

the object; so that they must go to Philadelphia
in that case. 2. If he dissents from the
bill, it annuls the part relative to the Potomac;
but as to the clause for adjourning to
Philadelphia, his dissent being as inneficient
as his assent, it remains a good ordinance, or
vote, of the two houses for going thither,
and consequently they must go in this case
also. 3. If the President withholds his will
out of the bill altogether, by a ten day's silence,
then the part relative to the Potomac
becomes a good law without his will, and that
relative to Philadelphia is good also, either
as a law, or an ordinance, or a vote of the
two houses; and consequently in this case
also they go to Philadelphia.—
Opinion on Residence Bill. Washington ed. vii, 495. Ford ed., v, 205.
(July. 1790)