in a speech from the throne, declares the causes of summoning the parliament. Sometimes the sovereign does not attend in person, but appoints commissioners by whom the causes of summons are declared. When this is done, the commons return to their house and the business of the session proceeds. The first thing usually done in both houses, though this is by no means imperative, is to take into consideration, for the purpose of responding to the sentiments contained in, the royal speech. On the proposed answers in both branches, the members in opposition usually move their amendments, which are discussed and decided on party grounds. Besides. the usual speech, at the commencement of the session, in which the general concerns of the nation are treated of, the sovereign afterwards during the session communicates important matters, to both branches, or either of them, by messages for the purpose. These messages are generally in writing, but are sometimes verbal. The sovereign intervenes also, in the course of the session, for the approval of bills, which is done, in the presence of both branches, by the sovereign in person or by commissioners, in the manner that parliament is first opened. At the end of the session, parliament is prorogued or dissolved in the same manner. This is understood to have been substantially the form of proceeding in all our legislative assemblies previous to the revolution, as it is now in the colonial and provincial legislatures of Great Britain. But very considerable changes have been introduced by our constitutions, and the practice under them, since the period referred to. 448. In this country, the times of holding the legislative assemblies, and the periods for which they are respectively elected, are fixed by constitutional provisions; and, when assembled, they are not subject in any degree or manner to the control of the executive authority; though, in most of the constitutions, power is given to the executive to convene the legislature on extraordinary occasions, and to fix the time of adjournment or prorogation, in case of a disagreement in relation thereto between the two branches. In congress, from its first assembling under the constitution, and during the administrations of Washington and the elder Adams, it was the custom of the president to open each session, in person, by an address to both branches, assembled together for the purpose in the representatives' chamber. This communication was usually shorter and more general in its character, than in more modern times, and was answered in the same manner, by each branch in person. With the advent of Mr. Jefferson to the presidency the modern practice was introduced. The president, instead of a short address, transmitted a more elaborate message in writing to both branches, with his reasons for adopting that form. Answers were dispensed with; but the different subjects treated of in the message were taken into consideration. This practice has ever since continued in congress, and has been adopted in the State governments, in which, however, as well as in congress, it is not imperative but optional. Communications of the executive, to the two branches, or either of them, in the course of a session, are by message. It is scarcely necessary to observe, that these messages are for the information of the bodies to whom they are communicated; who may consider of the matters therein referred to or not at their pleasure; though it is customary to do so out of respect to the executive. 449. It is the invariable practice therefore in all our legislatures, (and made necessary by express provision in some of the constitutions,) for the governor, president, or other executive head, at the commencement of every session, whether regular or special, to make a communication to the two branches, either by message or in person, usually by message, touching the general affairs and condition of the State, or relating to the particular subject for which the legislature is convened, and to recommend to them such measures as he may deem expedient. These communications may or may not be accompanied with other written documents, as the case may be. When other documents are referred to in a verbal address, they are usually sent in afterwards by message. 450. In parliament, in congress, and in all the States of the Union, except, it is believed,1 Rhode Island, Delaware, Maryland, Virginia, North Carolina, South Carolina, Tennessee, and Ohio, the executive is invested with a veto power in matters of legislation; or rather it would be more correct to say, that every act of legislation of the two branches, though drawn up in the form of a law, before it can become such, must be approved and signed by the executive. In parliament the veto is absolute; but, inasmuch as that body is now so constituted, that nothing can pass which is not agreeable to the sovereign, there has been no exercise of the veto power, in its direct form, for many years. In this country the veto power is not absolute, but conditional; the legislative branches being authorized, in certain cases, to pass a law, from which the executive approval is withheld; and the executive being bound to exercise his right of approval or disapproval, within 1 If there are any others, in the thirty-one have escaped the author's notice, in a pretty States, of which the Union is composed, they careful search. a given number of days. The direct interference of the executive, in any other form, would justly be considered as unparliamentary, and unconstitutional. 451. In this country the executive is very generally invested with authority either by constitutional provision, or by statute, on the requisition of the legislative assemblies, to issue writs of election to fill vacancies occurring therein. This function of the executive, and others, with which it is invested, in aid of the legislative, in the matter of adjournment, prorogation, or dissolution, are more appropriately noticed elsewhere. CHAPTER FIFTH. OF VACANCIES, AND ELECTIONS TO FILL THEM. 452. Vacancies may occur in a legislative body, in consequence of the death, removal, refusal to qualify, resignation, expulsion, or disqualification of the members, or of their return or election being vacated by the assembly; and, as it is of the highest importance, both to the immediate constituency, and to the whole State, that the representative body should at all times be complete and entire, it is essential, that there should somewhere exist a power to take the necessary steps for the filling of such vacancies. 453. In England, the house of commons has always regarded the right of determining upon the existence of vacancies among its members, and of taking measures to fill them, as essential to its free and independent existence; and has consequently asserted and maintained it as a most important and undoubted privilege, resting upon the same foundation with the right of determining upon the elections and returns of its members. 454. When, therefore, the house has determined that a vacancy exists, the practice is for the speaker, by the order of the house, to send his warrant to the clerk of the crown in chancery, directing him to issue a writ to the proper officers, requiring them to proceed to a new election, for the county, borough, or city, which, by means of the vacancy, is deprived, either wholly, or in part, of its repre sentation. The writ is accordingly issued, an election takes place, and the person elected is returned, in the manner already described.1 455. This mode of proceeding, being solely in virtue of the authority of the house, cannot of course take place at any other time than during a session. In regard to vacancies occurring in a recess, the speaker is authorized by statute (24 Geo. III. c. 26) to issue his warrant for a new writ of election, upon the existence of the vacancy being certified to him, by two of the members, and notice of it being previously published by him in the London Gazette; and, in order to secure the filling of all such vacancies, the speaker is also authorized by statute to appoint certain members to issue the warrant, in case of his death, vacation of his seat, or his absence from the realm. The vacancies, which may thus be filled, are those only which are occasioned by the death or bankruptcy of members, or from their being elevated to the peerage. 456. In determining upon the existence of a vacancy, the house acts in its judicial capacity; sometimes instituting a previous inquiry, where the law or the fact is doubtful; but proceeding at once if no question is made as to either. If, for example, the death of a member, or his elevation to the peerage, is notorious, the house proceeds at once to order the speaker to issue his warrant for a new writ of election. If upon the motion being made, there appears to be any doubt concerning the fact, supposed to create the vacancy, the order is deferred until the house is in possession of more certain information. If, after the issuing of the writ, it is discovered that the house was misinformed, the course is to direct the speaker to issue his warrant for a supersedeas of the writ. In the case of vacancies occurring in the recess, the proceedings must, of course, be subject to the subsequent revision of the house.2 457. In this country, writs of election to fill vacancies are either issued directly by the assemblies themselves, or, on their authority, by the governor. But there are various constitutional and statu 1 Hatsell, II. 245, note. It is a breach of privilege, and punishable as such, to delay the delivery of such a writ. Hans. (1) IX. 974. 2 In 1765, a new writ of election was ordered, for Devizes, in the room of a member, who was said to be deceased. The next day, further information being received, which made it doubtful, whether the member was dead, the messenger intrusted with the deliv ery 3 It is expressly provided in some of the constitutions, that members elected to fill vacancies shall hold their offices only for the unexpired term; but this can hardly be necessary except as a matter of precaution. LEGISLATIVE ASSEMBLIES. [PART II. tory provisions, relating to the filling of vacancies, which, in some States, supersede, - in others, extend, and, in others again, are subsidiary to,—the principle which has just been stated, namely, that it is the right of a legislative assembly to determine upon the existence of vacancies among its members and to take measures to fill them. Some of these provisions relate to the manner in which vacancies are to be filled; others to the preliminary measures to be taken for the purpose. The most important require to be briefly noticed; so far only, however, as they are found in the various constitutions. 458. In the States of Massachusetts, Maine, and New Hamp. shire, if the full number of senators is not elected at the general election, the vacancies are filled, on the meeting of the legislature, by the joint ballot of the representatives and such senators as are elected, from among the persons voted for and not elected by the electors; and, in the same manner, all vacancies afterwards occurring in the senate are to be filled. In these States, therefore, the principle of parliamentary law, which has just been stated, is so far superseded by constitutional provisions, as relates to filling vacancies in the senate, but not as to the determination of the existence of those vacancies. 459. In all the other States, and in the second branch of the legislature, in the States just mentioned, vacancies are filled in the same manner as the elections are originally made; in some of them in virtue of the principle alluded to; and, in others, in virtue of constitutional or legal regulations touching the existence of vacancies and elections to fill them. 460. Where the constitution is silent on the subject, or where the provision is general, that all intermediate vacancies shall be filled; or where the constitution provides for the regulation by law, in what manner and by whom writs of election shall be issued to fill vacancies; in all these cases, the matter may be regulated by law; but, if not so, the assembly, in which a vacancy occurs, whether before or after the sitting commences, or, in the recess, may, while in session, issue a precept or take the proper order for an election; but whether the electors, if the vacancy occurs before the meeting of the assembly or in a recess, or the assembly refuses to issue a precept, may, of themselves, proceed to an election, when the nature of the constituency will admit of it, is a question not without difficulty. |