The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Third Edition.
• On Civil Liberty and Self-government.
• Chapter I.: Introductory.
• Chapter II.: Definitions of Liberty.
• Chapter III.: The Meaning of Civil Liberty.
• Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
• Chapter V.: Anglican Liberty.
• Chapter VI.: National Independence—Personal Liberty.
• Chapter VII.: Bail.—Penal Trial.
• Chapter VIII.: High Treason.
• Chapter IX.: Communion.—Locomotion, Emigration.
• Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
• Chapter XI.: Quartering Soldiers.—The Army.
• Chapter XII.: Petition.—Association.
• Chapter XIII.: Publicity.
• Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
• Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
• Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
• Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
• Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
• Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
• Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
• Chapter XXI.: Self—Government.
• Chapter XXII.: American Liberty.
• Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
• Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
• Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
• Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
• Chapter XXVII.: Effects and Uses of Institutional Self-government.
• Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
• Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
• Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
• Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
• Chapter XXXII.: Imperatorial Sovereignty.
• Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
• Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
• Chapter XXXV.: Vox Populi Vox Dei.
• Appendix.
• Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
• Appendix II.: A Paper On the Abuse of the Pardoning Power.
• Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
• Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
• Appendix V.: The Petition of Right. 1
• Appendix VI.: An Act For the Better Securing the Liberty of the Subject, and For Prevention of Imprisonments Beyond the Seas, Commonly Called “the Habeas Corpus Act.” 1
• Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
• Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
• Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
• Appendix X.: Constitution of the United States of America.
• Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
• Declarations of the Rights of Man and of Citizens.
• Constitution of the Twenty-fourth of June, 1793.
• Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
• Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
• Appendix XIV.: The Present Constitution of France.
• Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
• Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.

chapter xiii.

publicity.

18.We now approach those guarantees of liberty which relate more especially to the government of a free country, and the character of its polity. The first of all we have to mention under this head is publicity of public business. This implies the publicity of legislatures and judicial courts, as well as of all minor transactions that can in their nature be transacted publicly, and also the publication of all important documents and reports, treaties, and whatever else can interest the people at large. It further implies the perfect freedom with which reporters may publish the transactions of public bodies.1 Without the latter, the admission of the public would hardly amount in our days to any publicity at all. We do not assemble in the markets as the people of antiquity did. The millions depending upon public information, in our national states, could not meet in the assembly, as was possible in the ancient city-states, even if we had not a representative government. The public journals are in some respects to modern freemen what the agora was to the Athenian, the forum to the Roman. A modern free city-state can be imagined without a public press; a modern free country cannot; although we must never forget the gigantic, and therefore dangerous, power which, under certain circumstances, a single public journal may obtain, and, consequently, ought to be counteracted by the means which lie in the publicity and freedom of the press itself.

Publicity, in connection with civil liberty, means publicity in the transaction of the business of the public, in all branches—publicity in the great process by which public opinion passes over into public will, which is legislation; and publicity in the elaboration of the opinion of the public, as well as in the process of ascertaining or enouncing it by elections. Hence the radical error of secret political societies in free countries. They are intrinsically, hostile to liberty.

Important as the printing of transactions, reports, and documents is, it is nevertheless true that oral discussions are a most important feature of Anglican publicity of legislative, judicial, and of many of the common administrative transactions. Modern centralized absolutism has developed a system of writing and secrecy, and consequent formalism, abhorrent to free citizens who exist and feed upon the living word of liberty.1 Bureaucracy is founded upon writing, liberty on the breathing; word. Extensive writing, pervading the minutest branches of the administration, is the most active assistant of modern centralization. It systematizes a police government in a degree which no one can conceive of that does not know it from personal observation and experience, and forms one of the greatest obstacles, perhaps the most serious difficulty, when nations, long accustomed to this all-penetrative agent of centralism, desire to establish liberty. I do not hesitate to point out orality, especially in the administration of justice, in legislation and local self-government, as an important element of our civil liberty. I do not believe that a high degree of liberty can be imagined without widely pervading orality; but oral transaction alone is no indication of liberty. The patriarchal and tribal governments of Asia, the chieftain government of our Indians, indeed all primitive governments, are carried on by oral transaction without any civil liberty.

Publicus, originally Populicus, meant that which relates to the Populus, to the state, and it is significant that the term gradually acquired the meaning of public, as we take it—as significant as it is that a great French philosopher, honored throughout our whole country, lately wrote to a friend: “Political matters here are no longer public matters.”1

In free countries political matters relate to the people, and therefore ought to be public. Publicity informs of public matters; it teaches, and educates, and it binds together. There is no patriotism without publicity, and though publicity cannot always prevent mischief, it is at all events an alarm-bell, which calls the public attention to the spot of danger. In former times secrecy was considered indispensable in public matters; it is still so where cabinet policy is pursued, or monarchical absolutism sways; but these governments, also, have been obliged somewhat to yield to a better spirit, and the Russian government now publishes occasionally government reports.

That there are certain transactions which the public service requires to be withdrawn for a time from publicity is evident. We need point only to diplomatic transactions when not yet brought to a close. But even with reference to these it will be observed that a great change has been wrought in modern times, and comparatively a great degree of publicity now prevails in the foreign intercourse of nations—a change of which the United States have set the example. A state secret was formerly a potent word; while one of our first statesmen wrote to the author, many years ago, “I would not give a dime for all the secrets that people may imagine to be locked up in the United States archives.”

It is a remarkable fact that no law insures the publicity of the courts of justice, either in England or the United States. Our constitution secures neither the publicity of courts nor that of congress, and in England the admission of the public to the commons or the lords is merely by sufferance. The public may at any time be excluded merely by a member observing to the presiding officer that strangers are present, while we all know that the candid publication of the debates was not permitted in the time of Dr. Johnson. Yet so thoroughly is publicity now ingrained in the American and Englishman that a suppression of this precious principle cannot even be conceived of. If any serious attempt should be made to carry out the existing law in England, and the public were really excluded from the house of commons, a revolution would be unquestionably the consequence, and publicity would be added to the declaration of rights. We can no more imagine England or the United States without the reporting newspapers, than nature without the principle of vegetation.

Publicity pervaded the system of American politics so generally, that the framers of our constitution probably never thought of it, or, if they did, they did not think it worth while to provide for it in the constitution, since no one had doubted it. It is part and parcel of our common law of political existence. They did not trouble themselves with unnecessaries, or things which would have had a value only as possibly completing a certain symmetry of theory.

It is, however, interesting to note that the first distinctly authorized publicity of a legislative body in modern times was that of the Massachusetts house of representatives, which adopted it in 1766.1

Publicity of speaking has its dangers, and occasionally exposes to grave inconveniences, as all guarantees do, and necessarily in a greater degree as they are of a more elementary character. It is the price at which we enjoy all excellence in this world. The science of politics and political ethics must point out the dangers as well as the formal and moral checks which may avert or migitate the evils arising from publicity in general, and public oral transaction of affairs in particular. It is not our business here. We treat of it in this place as a guarantee of liberty, and have to show its indispensableness. Those who know liberty as a practical and traditional reality and as a true business of life, as we do, know that the question is not whether it be better to have publicity or not, but, being obliged to have it, how we can best manage to avoid its dangers while we enjoy its fullest benefit and blessing It is the same as with the air we breathe. The question is not whether we ought to dispense with a free respiration of all-surrounding air, but how, with free inhalation, we may best guard ourselves against colds and other distempers caused by the elementary requisite of physical life, that we must live in the atmosphere.1

Liberty, I said, is coupled with the public word, and however frequently the public word may be abused, it is nevertheless true that out of it arises oratory—the æsthetics of liberty. What would Greece and Rome be to us without their Demosthenes and Cicero? And what would their other writers have been, had not their languages been coined out by the orator? What would England be without her host of manly and masterly speakers? Who of us could wish to see the treasures of our own civilization robbed of the words contributed by our speakers, from Patrick Henry to Webster? The speeches of great orators are a fund of wealth for a free people, from which the school-boy begins to draw when he declaims from his Reader, and which enriches, elevates, and nourishes the souls of the old.

Publicity is indispensable to eloquence. No one speaks well in secret before a few. Orators are in this respect like poets—their kin, of whom Goethe, “one of the craft,” says that they cannot sing unless they are heard.

The abuse of public speaking has been alluded to. It is a frequent theme of blame and ridicule, frequently dwelt upon by those who disrelish “parliamentarism,” but it is necessary to observe that if civil liberty demands representative legislative bodies, which it assuredly does, these bodies have no meaning without exchange and mutual modification of ideas, without debate, and actual debate requires the spoken word. I consider it an evil hour not only for eloquence, but for liberty itself, when our senate first permitted one of its members to read his speeches, on account of some infirmity. The true principle has now been abandoned, and written speeches are almost as common in congress as they were in the former house of representatives of France, where, however, I may state on authority, they became rarer as constitutional liberty increased and developed its energy.

All governments hostile to liberty are hostile to publicity, and parliamentary eloquence is odious to them, because it is a great power which the executive can neither create nor control. There is in imperial France a positive hatred against the “tribune.” Mr. Cousin, desirous of leading his readers to compare the imperial system with that of the past governments since the restoration, says of the Bourbons that, whatever it may be the fashion to say of them, “they gave us at any rate the tribune,”(the public word,) while Mr. de Morny, brother of Napoleon III., issued a circular to the prefects, when minister of the interior, in 1852, in which the publicity of parliamentary government is called theatricals It is remarkable that this declaration should have come from a government which, above all others, seems, in a great measure to rely on military and other shows.

Publicity begets confidence, and confidence is indispensable for the government of free countries—it is the soul of loyalty in jealous freemen. This necessary influence is twofold—confidence in the government, and confidence of society in itself. It is with reference to the latter that secret political societies in free countries are essentially injurious to all liberty, in addition to their preventing the growth and development of manly character, and promoting vanity; that they are, as all secret societies must inherently be, submissive to secret superior will and decision,—a great danger in politics,—and unjust to the rest of the citizens, by deciding on public measures and men without the trial of public discussion, and by bringing the influence of a secretly united body to bear on the decision or election. Secret societies in free countries are cancers against which history teaches us that men who value their freedom ought to guard themselves most attentively. It would lead us too far from our topic were we to discuss the important fact that mysterious and secret societies belong to paganism rather than to Christianity, and we conclude these remarks by observing that those societies which may be called doubly secret, that is to say, societies which not only foster certain secrets and have secret transactions, but the members of which are bound to deny either the existence of the society or their membership, are schools of untruth; and that parents as well as teachers, in the United States, would do no more than perform a solemn duty, if they should use every means in their power to exhibit to those whose welfare is entrusted to them, the despicable character of the thousand juvenile secret societies which flourish in our land, and which are the preparatory schools for secret political societies.1

[1.]In the year 1857 the following case was decided in the court of common pleas at Columbia, S. C., in favor of the plaintiff The city council held, in 1855, a public meeting. The editor of one of the city papers, being present, was asked by the mayor whether he had come to take notes. The mayor, being answered in the affirmative, ordered the chief police officer to turn the editor out of the room, declaring at the time that he acted on the strength of a resolution of the city council. At a later period this procedure was defended on the ground that the city appoints a paper to give, officially, all the transactions of the board. Robert W. Gibbes us. Edward J. Arthur and John Burdell. This novel case was reported with great care, and published with all the arguments, at Columbia, S. C., in 1857, under the title, Rights of Corporations and Reporters. The public owes thanks to the plaintiff for having perseveringly pursued this surprising case, the first of the kind, it would appear. The pamphlet contains letters of nearly thirty American mayors, testifying that reporters cannot be denied admission to the deliberations of the councils of their cities, although there be an appointed printer to the board.

[1.]The following passage is given here for a twofold purpose. Everything in it applies to the government of the pen on the continent of Europe, and it shows how similar causes have produced similar results in India and under Englishmen, who at home are so adverse to government writing and to bureaucracy. In the Notes on the Northwestern Province of India, by Charles Raikes, Magistrate and Collector of Mynpoorie, London, 1853, we find this passage:

“Action, however, and energy, are what we now lay most stress upon, because in days of peace and outward tranquillity these qualities are not always valued at their true price, and their absence is not so palpably mischievous as in more stirring times. There is more danger now of men becoming plodding, methodical, mere office functionaries, than of their stepping with too hasty a zeal beyond the limits of the law. There is truth, too, in Jacquemont's sneer—India is governed by stationery, to a more than sufficient extent; and one of the commonest errors of our magistrates, which they imbibe from constant and early Indian associations, is to mistake writing for action; to fancy that dictation will supply the place of exertion. In no other country are so many written orders issued with so much confidence, received with such respect, and broken with such complacency. In fact, as for writing, we believe the infection of the ‘cacoethes scribendi’ must first have grown up in the East. It pervades everything, but is more lampant and more out of place in a police office than anywhere else It was not the magistrates who originated this passion for scribbling; but they have never succeeded in repressing it, nor, while the law requires that every discontented old woman's story shall be taken down in writing, is it to be expected they ever will. The Khayeths worship their pen and ink on certain festivals, and there is a sort of ‘religio’ attaching to written forms and statements, which is not confined to official life, but pervades the whole social polity of the writing tribes. An Indian scribe, whose domestic expenditure may average a sixpence a day, will keep an account-book with as many columns, headings, and totals as would serve for the budget of a chancellor of the exchequer. To Tudor Mul and such worthies we owe, no doubt, a great deal for the method and order which they infused into public records; but we have also to thank these knights of the pen for the plaguiest long-figured statements, and the greatest number of such statements, which the world ever saw.” Well may the continental European, reading this, exclaim, C’est tout comme chez nous! In 1858, one of the most distinguished statesmen of France, universally known as a publicist, a former member, cabinet minister, and orator in the house of representatives, wrote from Germany, “I observe that the writing which I have always considered so injurious to our affairs in France is carried, if possible, to a still greater degree in this country.”

[1.]This observation followed a request to write henceforth with caution, because, said he, choses politiques ne sont plus ici choses publiques.

[1.]I follow the opinion of Mr. Robert C. Winthrop, late Speaker of the house of representatives of the United States, and believe him to be correct, when in an address before the Maine Historical Society (Boston, 1849) he says: “The earliest instance of authorized publicity being given to the deliberations of a legislative body in modern days, was in this same house of representatives of Massachusetts, on the 3d day of June, 1766, when, upon motion of James Otis, and during the debates which arose on the question of the repeal of the stamp act, and of compensation to the sufferers by the riots in Boston to which that act had given occasion, a resolution was carried ‘for opening a gallery for such as wished to hear the debates.’ The influence of this measure in preparing the public mind for the great revolutionary events which were soon to follow, can hardly be exaggerated.” The American reader is referred to the note at the end of this chapter for an account of the introduction of publicity into the senate of the United States.

[1.]Great as the inconvenience is which arises from the abuse of public speaking, and of that sort of prolixity which in our country is familiarly called by a term understood by every one, Speaking for Buncombe, yet it must be remembered that the freest possible, and therefore often abused, latitude of speaking, is frequently a safety-valve, in times of public danger, for which nothing else can be substituted. The debates in congress, when lately the Union itself was in danger, lasted for entire months, and words seemed fairly to weary out the nation when every one called for action. There was no citizen capable of following closely all those lengthy and occasionally empty debates, with all their lateral issues. Still, now that the whole is over, it may well be asked whether there is a single attentive and experienced American who doubts that, had it not been for that flood of debate, we must have been exposed to civil disturbances, perhaps to the rending of the Union.

Nevertheless, it is a fact that the more popular an assembly is, the more liable it is to suffer from verbose discussions, and thus to see its action impeded. This is especially the case in a country in which, as in ours, a personal facility of public speaking is almost universal, and where an elocutional laxity coexists with a patient tenacity of hearing and a love of listening which can never be surfeited. It has its ruinous effect upon oratory, literature, the standard of thought, upon vigorous action, on public business, and gives a wide field to dull mediocrity. This anti-Pythagorean evil has led to the adoption of the “one-hour rule” in the house of representatives, in congress, and (in 1847) in the supreme court of the United States. The one-hour rule was first proposed by Mr. Holmes, of Charleston, in imitation of the Athenian one-hour clepsydra—yes, the prince of orators had that dropping monitor by his side!—and is now renewed by every new house. The English have begun to feel the same evil, and the adoption of the same rule was proposed in the commons in February, 1849. But the debate concluded adversely to it, after Sir Robert Peel had adverted to Burke's glorious eloquence. Our one-hour rule, however, is not entirely new in modern times. In the year 1562 (on the 21st of July) the Council of Trent adopted the rule that the fathers in delivering their opinions should be restricted to half an hour, which having elapsed, the master of ceremonies was to give them a sign to leave off. Yet, on the same day, an exception was made in favor of Salmeron, the pope's first divine, who occupied the whole sitting, (History of the Life of Reginald Pole, by T. Phillips, Oxford, 1764, p. 397,) very much as in February, 1849, the whole American house called “go on” when Governor McDowell had spoken an hour. He continued for several hours.

Having mentioned the inconvenience of prolix speaking, it may not be improper to add another passage of the address of Mr. Winthrop, already mentioned. It will be recollected that this gentleman has been Speaker. He knows, therefore, the inconvenience in its whole magnitude. “Doubtless,” he says “when debates were conducted with closed doors, there were no speeches for Buncombe, no clap-trap for the galleries, no flourishes for the ladies, and it required no hour rule, perhaps, to keep men within some bounds of relevancy. But one of the grea sources of instruction and information, in regard both to the general measures of government and to the particular conduct of their own representatives, was then shut out from the people, and words which might have roused them to the vindication of justice, or to the overthrow of tyranny, were lost in the utterance. The perfect publicity of legislative proceedings is hardly second to the freedom of the press, in its influence upon the progress and perpetuity of human liberty, though, like the freedom of the press, it may be attended with inconveniences and abuses.”

[1.]The following note consists of an article by Mr. James C Welling, of the National Intelligencer, Washington City. It appeared on the 30th of October, 1858, in consequence of some questions I had put regarding a previous article on my remarks on Publicity in the United States. Mr. Welling had doubtless free access to the ample stores of personal recollections possessed by the founders of that public journal. The student of history will find it an instructive document, and I have preferred to give the whole, even with the introduction on the early intercourse between congress and the President of the United States, partly on account of its antiquarian interest, partly because it is not unconnected with the publicity of debate in the senate.

Mr. Welling says that it has been remarked that the principle of publicity seems to have so thoroughly pervaded all the politics of the United States that the framers of our constitution never thought of it, or, if they did, they thought it hardly worth while to make special provision for it, since none doubted its observance. While this statement has a deep foundation in much of our civil history during the period of the revolution and the formation of our present constitution, it should not be forgotten that the sessions of our continental congress were held in secret, and even after the formation of our present constitution, one branch of the national legislature, for more than five years, sat with closed doors. We allude to the senate, whose deliberations, unlike those of the house of representatives, were conducted in secret during the whole of the first and second congresses, and also during a part of the third. As the particulars connected with this fact in our parliamentary history are perhaps not familiarly known to every reader, we have thought it might not be without interest to recall some of the reminiscences corroborative of a statement which at the present day, and with our established notions, must seem not a little extraordinary and anomalous. In doing so, we may take occasion to allude incidentally, by way of preface, to a few subsidiary topics relating to the forms of official intercourse existing between the executive and legislative departments of the government during the earlier days of the republic.

The first session of the first congress of the United States held under the constitution framed and submitted by the federal convention in Philadelphia was begun in the city of New York on the 4th of March, 1789. Neither house, however, could at once proceed to the transaction of business, from the want of a quorum, which was seemed in the popular branch only on the 1st of April following, and in the senate on the 6th of the same month. On that day the latter body, having elected a president pro tem., proceeded, in the presence of the house of representatives, assembled in the senate chamber by invitation, to count the votes of the electors of the several states for President and Vice-President of the United States, when it was found that George Washington was unanimously elected to the former office by the voice of the eleven states then composing the Union, (Rhode Island and North Carolina not having yet adopted the constitution,) and that John Adams was chosen Vice-President by a majority of the votes cast for that office. The senate thereupon appointed Mr. Charles Thomson (long the clerk of the continental congress) to notify Gen. Washington, and Mr. Sylvanus Bourne to notify John Adams, of their election to the offices for which they had been respectively designated.

Mr. Adams took his chair as president of the senate on the 21st of the same month, and on the 30th Gen. Washington received the oath of office, as President of the United States, in the senate chamber, in the presence of both houses of congress, assembled on the occasion to witness the ceremonial. The oath was administered by the chancellor of the State of New York, who proclaimed, as the same was accepted by the president, “Long live George Washington, President of the United States.” The president then resumed the seat from which he had risen to take the oath, and, after a short pause, rose and delivered before the senate and house of representatives his inaugural address. On its conclusion, the president, the vice-president, the senate, and the house of representatives proceeded to St. Paul's Chapel, in New York, where divine service was performed by the chaplain of congress, after which the president was reconducted to his house by a committee appointed for that purpose.

After the celebration of these religious exercises the senate reassembled and appointed a committee to prepare an “answer to the president's speech.” In the house of representatives a similar committee was appointed on the following day. The reply of the senate was read and adopted in that body on the 7th of May, and agreeably to previous arrangement was delivered to the president at his own house on the 18th following, the senate waiting upon the president for this purpose, with the vice-president, their presiding officer, at then head. The president, on receiving the address, made a brief and appropriate response. The reply of the house of representatives was read and adopted on the 5th of May, and, by a similar preconcert, was delivered to the president on the 8th of the same month, in a room adjoining the representatives' chamber, where the speaker, attended by the members of the house, placed in the president's hands, a copy of the address, for which the president returned his thanks in a few appropriate remarks.

Such was the nature of the ceremonial observed in the official communications interchanged between the president and the two houses of congress at the opening of every session of congress during the administration of Washington and John Adams. On the accession of Mr. Jefferson, the practice of delivering he annual presidential speech in person before both houses of congress at its opening was superseded by the present custom of sending a written message. And with this change the habit of preparing a formal reply on the part of both houses to the recommendations of the president fell into similar desuetude. Mr. Jefferson, it is well known, was subsequently accustomed to point to this change as one of the “reforms” he had effected in what he called the “Anglican tendencies” and “royal usages” of our government under the administration of the federalists.*

To resume the principal topic of remark in the present article, we repeat that the senate, in the earlier days of the government, sat with closed doors, as well during its legislative as in its executive sessions. Its debates, therefore, unlike those of the house of representatives, were for a time held in secret; but it was provided by a resolution passed on the 19th of May, 1789, that one hundred and twenty copies of the journal of the legislative proceedings of the senate should be printed once a month for distribution among the members of the body, and, we suppose, for partial dissemination among the public, since it was provided that each member should be furnished with but a single copy on his own account.

At this distance of time we may not perhaps be able to understand or state the reasons which determined the senate to sit with closed doors in all their deliberations, as still in those which pertain to executive business. It is probable that the habit grew out of the fact that the senate, in the original theory of its constitution, was regarded primarily as a confidential and advisory council to the executive; and, as is well known, its earlier sessions were pre-eminently occupied in executive business. In relation to measures of legislation it seems to have been conceived that its function was mainly revisory and deliberative; and hence the greater prominence of the house in initiating and debating not only “revenue bills,” which it was provided by the constitution should be originated only by the representatives, but also other measures of federal legislation. In evidence of this fact we may state that the senate was wholly without standing committees until the year 1816, when during the second session of the fourteenth congress it was determined to provide for their appointment. In the house they had been raised by a standing rule as early as the year 1799, although at first their number was restricted to five—a committee respectively on elections, claims, commerce, ways and means, and on revisal and on unfinished business.

The first executive business of the senate was transacted on the 25th of May, 1789, when the president communicated for the advice and consent of the senate certain treaties made with the northern and northwestern Indians. At subsequent sessions he sent in by letter his nominations for various offices appointed to be filled with the advice and consent of the same body. The senate having refused to ratify the nomination of Mr. Benjamin Fishbourn as naval officer for the port of Savannah, President Washington, on the 7th of August, addressed a message to the body vindicating his reasons for nominating that gentleman, and suggesting to the senate the expediency of communicating to him their views on occasions where the propriety of his nominations appeared questionable to them.

Moved by this intimation of the president, the senate appointed a committee to wait on him for the purpose of concerting a mode of communication proper to be pursued between both parties in the formation of treaties and making appointments to office. Accordingly it was resolved that, in conformity with the president'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 tubes. 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 legislative 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 thud 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 he 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 then 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 year to eight nays. Those who voted in the affirmative were Messrs. Bindley, 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, Frelinghnysen, Izard, Mitchell, Morris, Rutherford, 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.

[1.]The following note consists of an article by Mr. James C Welling, of the National Intelligencer, Washington City. It appeared on the 30th of October, 1858, in consequence of some questions I had put regarding a previous article on my remarks on Publicity in the United States. Mr. Welling had doubtless free access to the ample stores of personal recollections possessed by the founders of that public journal. The student of history will find it an instructive document, and I have preferred to give the whole, even with the introduction on the early intercourse between congress and the President of the United States, partly on account of its antiquarian interest, partly because it is not unconnected with the publicity of debate in the senate.

Mr. Welling says that it has been remarked that the principle of publicity seems to have so thoroughly pervaded all the politics of the United States that the framers of our constitution never thought of it, or, if they did, they thought it hardly worth while to make special provision for it, since none doubted its observance. While this statement has a deep foundation in much of our civil history during the period of the revolution and the formation of our present constitution, it should not be forgotten that the sessions of our continental congress were held in secret, and even after the formation of our present constitution, one branch of the national legislature, for more than five years, sat with closed doors. We allude to the senate, whose deliberations, unlike those of the house of representatives, were conducted in secret during the whole of the first and second congresses, and also during a part of the third. As the particulars connected with this fact in our parliamentary history are perhaps not familiarly known to every reader, we have thought it might not be without interest to recall some of the reminiscences corroborative of a statement which at the present day, and with our established notions, must seem not a little extraordinary and anomalous. In doing so, we may take occasion to allude incidentally, by way of preface, to a few subsidiary topics relating to the forms of official intercourse existing between the executive and legislative departments of the government during the earlier days of the republic.

The first session of the first congress of the United States held under the constitution framed and submitted by the federal convention in Philadelphia was begun in the city of New York on the 4th of March, 1789. Neither house, however, could at once proceed to the transaction of business, from the want of a quorum, which was seemed in the popular branch only on the 1st of April following, and in the senate on the 6th of the same month. On that day the latter body, having elected a president pro tem., proceeded, in the presence of the house of representatives, assembled in the senate chamber by invitation, to count the votes of the electors of the several states for President and Vice-President of the United States, when it was found that George Washington was unanimously elected to the former office by the voice of the eleven states then composing the Union, (Rhode Island and North Carolina not having yet adopted the constitution,) and that John Adams was chosen Vice-President by a majority of the votes cast for that office. The senate thereupon appointed Mr. Charles Thomson (long the clerk of the continental congress) to notify Gen. Washington, and Mr. Sylvanus Bourne to notify John Adams, of their election to the offices for which they had been respectively designated.

Mr. Adams took his chair as president of the senate on the 21st of the same month, and on the 30th Gen. Washington received the oath of office, as President of the United States, in the senate chamber, in the presence of both houses of congress, assembled on the occasion to witness the ceremonial. The oath was administered by the chancellor of the State of New York, who proclaimed, as the same was accepted by the president, “Long live George Washington, President of the United States.” The president then resumed the seat from which he had risen to take the oath, and, after a short pause, rose and delivered before the senate and house of representatives his inaugural address. On its conclusion, the president, the vice-president, the senate, and the house of representatives proceeded to St. Paul's Chapel, in New York, where divine service was performed by the chaplain of congress, after which the president was reconducted to his house by a committee appointed for that purpose.

After the celebration of these religious exercises the senate reassembled and appointed a committee to prepare an “answer to the president's speech.” In the house of representatives a similar committee was appointed on the following day. The reply of the senate was read and adopted in that body on the 7th of May, and agreeably to previous arrangement was delivered to the president at his own house on the 18th following, the senate waiting upon the president for this purpose, with the vice-president, their presiding officer, at then head. The president, on receiving the address, made a brief and appropriate response. The reply of the house of representatives was read and adopted on the 5th of May, and, by a similar preconcert, was delivered to the president on the 8th of the same month, in a room adjoining the representatives' chamber, where the speaker, attended by the members of the house, placed in the president's hands, a copy of the address, for which the president returned his thanks in a few appropriate remarks.

Such was the nature of the ceremonial observed in the official communications interchanged between the president and the two houses of congress at the opening of every session of congress during the administration of Washington and John Adams. On the accession of Mr. Jefferson, the practice of delivering he annual presidential speech in person before both houses of congress at its opening was superseded by the present custom of sending a written message. And with this change the habit of preparing a formal reply on the part of both houses to the recommendations of the president fell into similar desuetude. Mr. Jefferson, it is well known, was subsequently accustomed to point to this change as one of the “reforms” he had effected in what he called the “Anglican tendencies” and “royal usages” of our government under the administration of the federalists.*

To resume the principal topic of remark in the present article, we repeat that the senate, in the earlier days of the government, sat with closed doors, as well during its legislative as in its executive sessions. Its debates, therefore, unlike those of the house of representatives, were for a time held in secret; but it was provided by a resolution passed on the 19th of May, 1789, that one hundred and twenty copies of the journal of the legislative proceedings of the senate should be printed once a month for distribution among the members of the body, and, we suppose, for partial dissemination among the public, since it was provided that each member should be furnished with but a single copy on his own account.

At this distance of time we may not perhaps be able to understand or state the reasons which determined the senate to sit with closed doors in all their deliberations, as still in those which pertain to executive business. It is probable that the habit grew out of the fact that the senate, in the original theory of its constitution, was regarded primarily as a confidential and advisory council to the executive; and, as is well known, its earlier sessions were pre-eminently occupied in executive business. In relation to measures of legislation it seems to have been conceived that its function was mainly revisory and deliberative; and hence the greater prominence of the house in initiating and debating not only “revenue bills,” which it was provided by the constitution should be originated only by the representatives, but also other measures of federal legislation. In evidence of this fact we may state that the senate was wholly without standing committees until the year 1816, when during the second session of the fourteenth congress it was determined to provide for their appointment. In the house they had been raised by a standing rule as early as the year 1799, although at first their number was restricted to five—a committee respectively on elections, claims, commerce, ways and means, and on revisal and on unfinished business.

The first executive business of the senate was transacted on the 25th of May, 1789, when the president communicated for the advice and consent of the senate certain treaties made with the northern and northwestern Indians. At subsequent sessions he sent in by letter his nominations for various offices appointed to be filled with the advice and consent of the same body. The senate having refused to ratify the nomination of Mr. Benjamin Fishbourn as naval officer for the port of Savannah, President Washington, on the 7th of August, addressed a message to the body vindicating his reasons for nominating that gentleman, and suggesting to the senate the expediency of communicating to him their views on occasions where the propriety of his nominations appeared questionable to them.

Moved by this intimation of the president, the senate appointed a committee to wait on him for the purpose of concerting a mode of communication proper to be pursued between both parties in the formation of treaties and making appointments to office. Accordingly it was resolved that, in conformity with the president'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 tubes. 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 legislative 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 thud 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 he 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 then 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 year to eight nays. Those who voted in the affirmative were Messrs. Bindley, 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, Frelinghnysen, Izard, Mitchell, Morris, Rutherford, 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.

[*]It may not be uninteresting to add that President Jefferson, at the time when this change was made, attributed it to other causes. His first annual address to both houses of congress was sent in on the 8th of December, 1801, and was accompanied with the subjoined letter, addressed to the presiding officer of each body:

The circumstances under which we find ourselves at this place [Washington] rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the legislative and executive branches, I have adopted that by message, as used on all subsequent occasions through the session. In doing this I have had principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. Trusting that a procedure founded in these motives will meet their approbation, I beg leave, through you, sir, to communicate the enclosed message, with the documents accompanying it, to the honorable the senate, and pray you to accept, for yourself and them, the homage of my high respect and consideration.

The Hon. the President of the senate.

Th. Jefferson.