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first report of conference committee 1 - Thomas Jefferson, The Works, vol. 2 (1771-1779) 
The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 2.
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first report of conference committee1
Thursday, Dec. 4, 1777.
Mr. Jefferson reported, from the Committee appointed to draw up what is proper to be offered at the conference proposed with the Senate, on the subject matter of their amendments to the resolution of this House for paying to Thomas Johnson the sum of 15£ 5s 6d. that the committee had accordingly drawn up what they think would be proper to be offered at the said conference, which they had directed him to report to the said House; he read the report in his place, and afterwards delivered it in at the clerks table, where the same was read and is as followeth, viz:
The House of Delegates has desired this conference, in order to preserve that harmony and friendly correspondence with the Senate, which is necessary for the discharge of their joint duties of legislation, and to prevent, both now and in future, the delay of public business, and injury which may accrue to individuals, should the two Houses differ in opinion as to the distinct office of each.
Though during the course of the last two, and also of the present session of Assembly, they have acquiesced, under some amendments made by the Senate to votes for allowing public claims and demands, yet they are of opinion that an adherence to fundamental principles is the most likely way to save both time and disagreement; and a departure from them may at some time or other be drawn into precedent for dangerous innovations, and that therefore it is better for both Houses, and for those by whom they are entrusted, to correct the error while new, and before it becomes inveterate by habit and custom.
The constitution having declared that “money bills shall in no instance be altered by the Senate, but wholly approved or rejected,” the delegates are of opinion the Senate had no authority to amend their late vote for allowing to Thomas Johnson the sum of fifteen pounds five shillings and six pence; and should the term “money bills” in the constitution not immediately convey the precise idea which the framers of that act intended to express, it is supposed that its explanation should be sought for in the institutions of that people, among whom alone a distinction between money bills and other acts of legislation is supposed to have been made, and from whom we, and others, emigrating from them, have indisputably copied it.
By the law and usage of their parliament then, all those are understood to be “money bills” which raise money in any way, or which dispose of it, and which regulate those circumstances of matter, method and time, which attend as of consequence on the right of giving and disposing. Again the law and customs of their parliament, which include the usage as to “money bills” are a part of the law of their land; our ancestors adopted their system of law in the general, making from time to time such alterations as local diversities required; but that part of their law which relates to the matter now in question, was never altered by our legislature, in any period of its history; but on the contrary, the two Houses of Assembly, both under our regal and republican governments, have ever done business on the constant admission that the law of parliament was their law. When the delegates, therefore, vote that fifteen pounds five shillings and six pence, whether raised or to be raised on the people shall be disposed of in payment to Thomas Johnson for losses sustained by him on the public behalf, this is a vote for the disposal of money, which the Senate are at liberty to approve or reject in the whole, but cannot amend by altering the sum.
The delegates, therefore, hope that the Senate will concur with them in a strict and mutual observance of those laws by which both houses are bound, and they are well assured, that this subject being properly stated to the Senate, they will forbear in future, to exercise a practice which seems not authorised, but, if there should be found any difference of opinion on this point, the delegates will be ready to join in any regular proposition for defining with precision, the subject of their difference, so as to prevent all doubts and delays in future.
second report of conference committee
Friday, Jan. 9, 1778.
Mr. Jefferson reported from the Committee, appointed to prepare reasons to be offered to the Senate, at the conference to be desired of them on the subject of the last conference; that the committee had accordingly prepared, what they thought would be proper to be offered at the said conference; and he read the same in his place, and afterwards delivered it in at the clerk’s table, where the same was read, and is as followeth, viz:
Reasons, to be offered at the conference to be desired of the Senate, in answer to their reasons delivered at the last conference:
The House of Delegates, not being satisfied with the reasons urged by the Senate, in support of their amendments to the resolution for allowing Thomas Johnson the sum of 15£ 5s. 6d., have desired this second conference to shew the insufficiency of the said reasons, and to propose that some expedient may be adopted by the two Houses, for reconciling their difference of opinion.
The resemblance between the constituent parts of our legislature, and that of Great Britain, is supposed by the Senate, so faint, that no ground remains for those jealousies, which have prompted the Commons of Great Britain against their House of Lords. This might have been, and doubtless was, urged, at the time our constitution was formed, as a reason why the Senate and Delegates should have equal powers of money bills. But the argument having been overruled, and the powers of the Senate, as to this point, being fixed, by the constitution, on the same restricted footing, with those of the Lords in the British legislature, it is conceived not to be the proper question of this day, whether the resemblance between them, in general, be faint or strong, well or ill-grounded, but, whether the constitution has not made them, to resemble in this point.
Had those who framed the constitution, as soon as they had completed that work, been asked, man by man, what a money bill was, it is supposed that man by man, they would have referred for answer to the well known laws and usages of Parliament, or, would have formed their answer, on the Parliamentary idea of that term. Its import, at this day, must be the same as it was then. And it would be unreasonable, now, to send us to seek its definition in the subsequent proceedings of that body, as it would have been for them, at that day, to have referred us to such proceedings before they had come into existence. The meaning of the term, must be supposed complete, at the time they use it; and to be sought for, in those resources only, which existed at the time. Constructions, which do not result from the words of the legislator, but lie hidden in his breast, till called forth, ex post facto, by subsequent occasions, are dangerous, and not to be justified by ordinary emergencies.
Nor do we, by this, set up the Parliament of England, as the expositor of our constitution, but the law of Parliament, as it existed, and was evidenced by usage, at the time the term in question was inserted in our instrument of government; a law coeval with the common law itself, and no more liable, as adopted by us, to subsequent change, from that body, than their common or statute law, which we have in like manner adopted. To suppose this branch of law, not existing in our code, would shake the foundation of our whole legal system; since every legislative proposition which has been passed or rejected since the first establishment of a legislature in this country, has been determined to be law, or not law, by the forms of Parliamentary proceeding.
With as little justice may it be said, that this is referring for the definition of a term, to multiplied disputes, which have for ages agitated the Parliament of England, and which no time will decide; that it is proving what is clear, by what is very obscure; and unsettling what is fixed: since we conceive that researches into Parliamentary history, will decisively shew, that their practice in this matter has been clear, fixed, and ancient; and, that for ages past, it has produced no agitation, unless we call by that name some groundless assertions of the Lords in the course of the last century. Yet, these assertions they departed from in practice, at the very time they advanced them: and at all times after, they stand contradicted by the declarations of the Commons, and the constant usage of both Houses; which, agreeing together, are supposed to form the strongest evidence what the law of Parliament is on this point.
To prove this right, as uniformly claimed and exercised by the Commons, and assented to in practice by the Lords, the Delegates will subjoin some proceedings of Parliament, in addition to the passage cited by the Senate.
That a bill, for raising money by way of taxes, is a money bill, is admitted by the Senate, and need not therefore be proved.
That bills, for raising money by rates, and impositions on merchandise, are also considered as money bills, will appear, on recurring to the Parliamentary proceedings of 1671, in which it is affirmed, “that there is a fundamental right in the House of Commons alone, in bills of rates and impositions on merchandise, as to the matter, the measure, and the time;” and also, by their declaration of 1689, “that the Commons have always taken it for their undoubted privilege (of which they have been tender and jealous) that, in all aids given to the King by the Commons, the rate or tax ought not to be any way altered by the Lords,” which is supposed to be the passage cited by the Senate, as of the year 1671.
That bills, for applying forfeitures in aid of the public revenue are not amendable by the Lords, appears by the proceedings of 1700, on the bill “for applying Irish forfeitures to the use of the public,” to which the Lords were not permitted to make any amendments.
The right of levying money, in whatever way, being thus exercised by the Commons, as their exclusive office, it follows, as a necessary consequence, that they may also exclusively direct its application. “Cujus est dare, ejus est disponere,” is an elementary principle, both of law and of reason: That he who gives, may direct the application of the gift: or, in other words, may dispose of it: that if he may give absolutely, he may also carve out the conditions, limitations, purposes, and measure of the gift, seems as evidently true, as, that the greater power contains the lesser.
Parliamentary usage, has accordingly, approved this reasoning.
In July, 1678, the Commons resolved, “that it is their undoubted and sole right, to direct, limit, and appoint, in all aids and supplies granted to the King, the ends, purposes, considerations, limitations, and qualifications, of such grants; which ought not to be changed by the House of Lords.”
In December of the same year, the Commons having directed the payment of money, and the Lords proposed an amendment thereto, the former declared “that their Lordships never before changed any such disposition made on a supply granted by the Commons.”
In 1701, the Lords having amended a bill, “for stating and examining the public accounts,” by inserting a clause for allowing a particular debt, the Commons disagreed to the amendment; and declared for a reason, “that the disposition, as well as granting, of money by act of Parliament, hath ever been in the House of Commons; and, that the amendment relating to the disposal of money, does entrench upon that right.” And, to a bill of the same nature, the year following, the Lords having proposed an amendment, and declared “That their right in granting, limiting, and disposing public aids, being the main hinge of the controversy, they thought it of the highest concern that it should be cleared and settled.” They then go on to prove the usage, by precedents, and declarations, and, from these conclude, “That the limitation, disposition, and manner of account, belong only to them.”
In reply, the Lords said, “They declined all arguments concerning the rights of the Commons in granting, limiting and disposing public aids; and, therefore, forbore to answer any arguments of that kind”; but proceeded to insist that the business then depending was of quite another nature. And, at some subsequent conferences between the two Houses, during the same session, it was repeatedly declared, “That the Lords could not supply any deficiency, or apply any surplusage of the public money, and in case any should be found.” And this declaration does not appear to have been contradicted by the Lords, either then or at any time after.
The precedents are supposed to prove, not only that the disposal or application of public money is, equally with the raising of it, the exclusive office of the Commons, but also, that it makes no difference whether it be of money then actually in the treasury, or yet to be raised on the people; nor whether the raising and disposing be in the same or in separate bills.
Though the precedents referred to by the Senate, in the proceedings of the Council and House of Burgesses, in the years 1771, 1772, and 1773, (the first of which, however, we suppose to be mistaken for 1772) might perhaps be well accounted for from their particular nature, from the history of the times, or from other causes; and though the delegates might produce, from the same records, proofs, much more decisive in their favor, yet they decline resting the matter on that bottom: because, they are of opinion, that the present determination ought not to be influenced by the practice of those who have themselves only copied from the same original. Their practice, and our opinions, must be proved by the same common rule,—the law and practice of Parliament. Their acknowledgment of the rule, proves their submission to it, and that their practice should be tried by the law, and not the law by their practice.
How dangerous it is to appeal to other authorities from the Parliamentary records, the true text of decision, will appear also by examining the whole passage, of which a part only was cited from the Commentaries of Judge Blackstone; a writer, celebrated indeed; but, whether most for his attachment to the prerogatives of the crown, or to the rights of the people, would be worthy of consideration, where the question is on one of those rights, which have been of the greatest value to the people—the right of giving and disposing of their own money. That writer, after the definition cited from his book by the Senate, goes on to quote a passage from Judge Hale’s treatise on the jurisdiction of Parliament, which is to be found more at large in Broke’s Abridgement, under the title “Parliament, Pl. 4:” there it appears to be a saying of Kerbie, a clerk of the Parliament, who lays down in express terms, or by direct implication, these following positions, as of the law of Parliament:—
1st. That the Lords may amend a bill for granting aids.
2nd. That, if the amendment be by shortening the duration of the grant, they need not return the bill to the Commons for their concurrence.
3rd. That the King may alter a bill.
Broke indeed adds a quere to the case; but that Judge Blackstone, disapproved of it, cannot be inferred from his words. It is therefore submitted to the consideration of the Senate, whether they would set up as an arbiter of Parliamentary law, a writer who can cite or refer to such positions, whether condemning them, in decisive and unequivocal terms; for that part of his book, too, which the Senate quote and rely on, he cites no authority whatever. Are we then to take it upon his affirmation, when contradicted by the uniform current of Parliamentary usage? But, waiving further examination of the legality of his opinion, it suffices to observe, as a full answer to it, that the judges of the common law can take no cognizance of the law of Parliament. It can never come judicially in question before them. Their sayings or opinions on the subject, must be ever extra-judicial; and they have accordingly always disclaimed a right to give judgment on them. Definitions therefore, of Parliamentary law, by any other court, by a member of court, or by a private individual, must be rejected as inauthoritative in a Parliamentary disquisition.
For these reasons, the delegates still think, that the Senate have no authority to amend the vote in question. But open to conviction, if it can be shown they are wrong, and actuated by a strong desire to promote the public service, as well as to preserve the Constitution entire, they propose to the Senate, if they should still adhere to their former opinions, that a select committee may be appointed by each House, to meet together in full conference, and endeavor to define the office of the two Houses in bills, clauses, and votes, relating to money, and that such definition, if approved by both Houses, may be confirmed by act of Assembly.
[1 ]This and the following paper are from the Journal of the House of Delegates.