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Posted on 03/22/2002 8:47:15 PM PST by michigander
The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Elliot's Debates)
A SHORT HISTORY OF THE VETO.[Note *: * Historical Memoranda of the Veto.
The veto power Originated with the ancient Romans, and was the first essay of the common people of the republic towards the securing of their proper liberties. The Plebeians, having long been oppressed by the Patricians, at the instigation of Sicinius, 200 years after the founding of the city, made secession to a mountain three miles distant from Rome, (ever after termed Mons Sacer,) and would not return to the city until they had received from the Patricians compliance with their demand, and the solemn assurance, that the common people should elect magistrates, whose persons should be sacred and inviolable, to whom they could commit the protection of their rights. These magistrates were called tribunes; a name given by Romulus to the three military officers in chief, selected from the three tribes into which be had divided the city. The civic tribunes were originally chosen from the Plebeians, and no Patrician could hold the office, unless he had been first adopted into a Plebeian family. Their power was at first limited, but at the same time extraordinary. It was preventive, rather than enforcing; it was to interpose and protect the people from the oppressions and tyranny of their superiors; to assist them in redressing their wrongs, and in maintaining their liberties; and consisted in the utterance of but one word, and that one, "Veto," (I forbid.) These officers could prevent the discussion of any question, the passage of any law, the execution of any sentence, the levying of any taxes, the enlisting of any troops, and almost arrest the entire machinery of government, by standing up and speaking that one word, Veto. No reasons were required of them; no one dared oppose them; their Veto was supreme! As originally designed, it was emphatically the people's measure, for the people's protection; the necessary balance-wheel, to equalize the powers of the government, which had hitherto been engrossed by the rich, and give the people that interposing check, which the alarming tyranny of the Patricians made necessary. It was the first attempt at a democratic, i. e. a people-ruling institution, and in all its features save that of unlimited power, showed humility of its origin. The tribunes must be not only of the Plebeian order, but they had no insignia of office, save a kind of beadle, who went before them; were not allowed to use a carriage, had no tribunal, but sat on benches. Their doors were open night and day for the people to prefer their requests or complaints. They were not allowed to enter the senate, and were not even dignified with the name of magistrate. As designed by Sicinius, it was the mere unadorned majesty of the people's voice, assimilated to the lowly pretensions of the people--the visible exponent of their will. These popular traits did not, however, long remain. The grasping ambition of some, the restlessness for change in others, soon abused the power; the tribunes became themselves a greater evil than they remedied, and their authority was more tyrannous than the edicts of those they were created to oppose.
Veto became a word of despotic power. The decrees of the senate, the ordinances of the people, the entire arrangements of government, bowed to its supremacy of all the such was the force of the word, that not only could it stop the proceedings of all the magistrates, which Cæesar well calls "extremum jus tribunorum," but whoever, senator or consul, Patrician or Plebeian, dared oppose it, was immediately led to prison to answer for his crime. And so sacred were the persons of the tribunes, that whoever hurt them was held accursed, and his goods were confiscated. Sylla was the first who resisted the gross encroachments of the tribunes; but on his death they regained their influence, and henceforth it became but the tool of ambitious men, who used it almost to the ruin of the state. Such was its abuse, that, as Cicero says, the popular assemblies became the scenes of violence and massacre, in which the most daring and iniquitous always prevailed. The perversion of the original design of the veto was now completed by the arts of the emperor Augustus, who got the tribuneship conferred on himself, which concentrated in his person the entire and uncontrolled disposition of the state. This Was the first instance of the combination of royal and veto power, and its assumption was all that was wanting to make the king a tyrant. From this time it was conferred upon the emperors, though the tribunes still continued to the elected without however the exercise of tribunitian power, until the time of Constantine, when the office was abolished.
The early operation of the veto power in Rome was good, the subsequent disastrous. At first it protected the people, gave them a voice in the legislative assemblies, and secured their liberties; ultimately, it oppressed the lower orders excluded them from the council of the nation and made them the passive instruments of power lusting, demagogues. The first civil blood shed at Rome was the blood of Tiberius; the tribune battling, imprudently indeed, against the oppressions of the nobility. The last but closed the sanguinary series of intestine wars, created, continued, and tragically ended, by the very perversion of that power which was at first designed to give peace and unity to the Roman nation. So true has it ever been, that the delegated power of the people, when abused, has always reverted to their own destruction. Having traced the veto power, from the simple word of the tribune to the imperial exercise of its rights in rome, we are prepared to come down to modern times, and cite a few instances of its adoption and influence in European states.
The king of Great Britain possesses the veto right, upon the resolutions of parliament, though no instance of its exercise has occurred since 1692. In fact, constituted as the British government is, the veto is entirely unnecessary. Such is the powerful agency of money and influence, that they will prevent the passage of any law obnoxious to the crown, and the king can, through his ministers, so trim and shape the proceedings of those bodies, as to accommodate them to his views; while, on the other hand, the taking away responsibility from the monarch, and resting it with the cabinet, which varies with the changes of public sentiment, never creates an emergency for the exercise of the royal negative. The same power is also vested with the king of Norway; but if three successive storthings or diets repeat the resolution or decree, it becomes a law without the king's assent, though he may have negatived it twice before. As the storthing, however, sits only every third year, the veto of the king, though it may not eventually be ratified, has yet a prohibitory operation on any given law for six years. It was thus that nobility was abolished in Norway in 1821. The king had twice vetoed the law, passed by the storthing, against the further continuance of the nobility; but the third diet confirmed the resolutions of the two former, and the law became established, notwithstanding the royal negative.
The constituent assembly of France conferred the veto power on the king in 1789, but the very first exercise of it proved his ruin. It was preposterous for such a body, and at such a time, to make such a provision in the constitution they were then passing, ad as affairs then stood, when judicious temporizing, and not royal prerogative, was required. It was equally preposterous in Louis to employ it. It but showed the waywardness of the popular will, which could at one time grant such a right, and at another punish the exercise of it. The negative is, however, held by the present king, though it has never yet been put into requisition.
By the constitution of the cortes, the king of Spain was vested with the same power, and it still forms a provision of the Spanish government. In Poland, the veto power assumed another shape. It was centred, not in the king, but in the former republic. Each member of the diet could, by his "Nie Pozwalam," (I do not permit it,) prevent the passage of any resolution, and defeat the operations of the rest. On the partition of Poland, Russia confirmed this liberum veto the Polish assembly, with the sinister design of thereby frustrating any effective or independent legislation; well knowing that, in its then distracted state, the continuance of this individual veto, would be, as it proved, destructive to harmony of action and unity of design, and the "Nie Pozwalam" of the Polish representative has been but an apple of discord to that noble but suffering people.]Upon the proceedings of the American colonial assemblies, there existed a double negative or veto--one vested in the royal governor, the other in the king. By the royal governors the right was often exercised, and the king frequently signified his disallowance of acts which had not only passed the colonial assemblies, but even been sanctioned by the governor. This feature was one strongly set forth as a prime grievance, in recounting the injuries and usurpations of the British monarch, in the Declaration of Independence, and its exercise was highly repugnant to the interests of America.
Dr, Franklin, in the Debates of the Federal Convention, thus shows the influence of the veto power trader the proprietary government of Penn: --
"The negative of the governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of salary, or some donation, was always made a condition; till, at last, it became the regular practice to have orders in ins favor on the treasury presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got, until it was agreed that his estate should he exempted from taxation; so that the people were to fight for the security of his property, whilst he was to have no share of the burdens of taxation."
At first sight, then, it appears strange that the framers of our Constitution, when they were originating a new government, which should combine the experience of the past, without borrowing any of its defects, should bring in such a power, the operation of which had proved so baneful, and which had already been so strongly reprobated. But such was the tact. The war of the revolution over, the Articles of Confederation alone bound the states together; and the reaction which took place in several places urgently demanded some new form of compact more adequate for the purposes of government, and more consonant with the altered condition of affairs. Upon the 25th May, 1787, the Federal Convention met in the city of Philadelphia. Having organized themselves by the choice of proper officers, and the adoption of necessary rules, Mr. Randolph, of Virginia, opened the business of Convention by proposing, on the 29th May, a series of resolutions, imbodying his views as to what the crisis required; and on the same day General Charles Pinckney, of South Carolina, laid before the delegates the draught of a federal government, to be agreed upon between the free and independent states of America. The veto power entered into the schemes of both these gentlemen, though centred by them in different points. The 8th resolution of Mr. Randolph says:--
"Resolved, That the executive and a convenient number of the national judiciary ought to compose a council of revision, with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by--of the members of each branch."
The article embracing this feature, in the draft of Mr. Pinckney, reads thus:--
"Every bill which shall have passed the legislature shall be presented to the President of the United States for his revision. If he approve it, he shall sign it; but if he does not approve it, he shall return it, with his objections, to the house it originated in; which house, if two thirds of the members present, notwithstanding the President's objections, agree to pass it, shall send it to the other house, with the President's objections; where, if two thirds of the members present also agree to pass it, the same shall become a law. And all bills sent to the President, and not returned by him within--days, shall be laws, unless the legislature, by their adjournment, prevent their return, in which ease they shall not be laws."
Mr. Randolph's views were evidently based on the suggestions of Mr, Madison; for that gentleman, in a letter to Mr. Randolph, a few weeks previous, urged the same idea of a negative by the national government, "in all cases whatsoever, on the legislative acts of the states, as the king of Great Britain heretofore bad."
The resolutions of Mr. Randolph became the basis on which the proceedings of the Convention commenced, and, as Mr. Madison says, "to the developments, narrations, and modifications of which the plan of government proposed by the Convention may be traced."
Let us, then, follow out the discussions of this body until the suggested joint revision by the executive and judiciary became altered to the single negative of the President. On the 4th of June, the first clause of Mr. Randolph's eighth resolution was taken up; but Mr. Gerry, from Massachusetts, doubting whether the judiciary ought to have any thing to do with it, moved to postpone the clause, and introduced the following amendment:--
"That the national executive shall have a right to negative any legislative act which shall not afterwards be passed by--parts of each branch of the national legislature."
Rufus King, from Massachusetts, seconded the motion, and the proposition of Mr. Gerry was taken up. Mr. Wilson, of Pennsylvania, and Alexander Hamilton, of New York, wished to strike out the latter clause, so as to give the executive an absolute negative on the laws; but, though supported by these gentlemen, it was opposed by Dr. Franklin, Roger Sherman, of Connecticut, Madison, Butler, of South Carolina, and Mason, of Virginia; and was therefore negatived.
Mr. Butler and Dr. Franklin then wished to give a suspending instead of a negative power; but this was overruled, and the blank of Mr. Gerry's resolution was filled up, sub silentio, with two thirds; and the question being taken on the motion, as thus stated, it received the votes of eight states, Connecticut and Maryland voting in the negative. On the 6th June, according to previous notice, Mr. Wilson and Mr. Madison moved to reconsider the vote excluding the judiciary from a share in the revision and negative of the executive, With the view of reënforcing the latter with the influence of the former. But though Mr. Madison urged the plan of associating the judges in the revisionary function of the executive, as thereby doubling the advantages and diminishing the dangers, and as enabling the judiciary better to defend itself against legislative encroachments, it was as eloquently opposed by Mr. Gerry, and others, Who thought that the executive, while standing alone, would be more impartial than when he could be covered by the sanction and seduced by the sophistry of the judges; and it was finally rejected. Two days after, at the conclusion of an animated debate, the subject of giving the national legislature a negative on the several state laws, which was first suggested to the convention by Mr. Randolph's resolutions, and subsequently brought up for reconsideration by Mr. Pinckney and Mr. Madison, was also voted down,--three States in the affirmative, seven in the negative, Delaware divided.
On the 18th of June, Mr. Hamilton offered to the Convention a plan of government, in the fourth article of which the veto power was unqualifiedly conferred on the executive. The next day, Mr. Gorham, from Massachusetts, reported from the committee appointed to reconsider the various propositions before the Convention, and the tenth resolution of that report says: "That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two thirds of each branch of the national legislature." The Convention proceeded to take up the several articles and clauses of this report, and it was not till the 18th July, that the tenth resolution became the order of the day; it was then passed nem. con. On the 21st, however, Mr. Wilson, still entertaining his original views, as to the union of the judiciary with the executive on the veto power, moved an amendment to the resolution, which gave rise tea most interesting debate, in which Mr. Ellsworth, from Connecticut, Mr. Mason, from Virginia, and Mr. Madison and Mr. Gouverneur Morris, of Pennsylvania, sustained the views of Mr. Wilson; and Messrs. Gorham, Gerry, and Strong, of Massachusetts, Mr. Martin, of Maryland, and Mr. Rutledge, of South Carolina, opposed them, and the amendment was lost. The original resolution, therefore, was again passed.
Having gone critically through with the reporter of the committee, the various resolutions which had been agreed to were, on Thursday, 26th July, referred to a committee of detail, to report on Monday, August 6th, a draft of the Constitution. This committee, of which Mr. Rutledge was chairman, reported on the day assigned, and the veto power was conferred by the 13th section of the sixth article. This paragraph, as reported by the committee, came under discussion on Wednesday, 15th August, when Mr. Madison moved an amendment, which revived the previously agitated question of uniting the judges passed Supreme Court With the President in his revision and rejection of laws passed by Congress. Much debate followed. Mr. Wilson and Mr. Mercer supported Mr. Madison, and Mr. Pinckney opposed. The amendment was lost--three states voting for it, and eight against it. Having thus surveyed the subject in all its bearings, the Constitution, amended, altered, and perfected, was, on the 17th September, 1787, signed by the Convention, and constitutes to this day the basis of our government. The veto power in this Constitution is thus expressed, article 1, section 7:--
"Every bill which shall have passed the House of Representatives shall, before it becomes a law, be presented to the President of the United States. If he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated,who shall enter the objections at large on their Journal, and proceed to reconsider it."
The first use of this Constitutional power was by Washington, who, on the 5th April, 1792, vetoed the "Representation Bill," which originated in the House of Representatives. As this, from its priority, is an event worthy of extended notice, we give the circumstances of the case, as briefly related by Jefferson, then secretary of state:--
"April 6th. The President called on me before breakfast, and first introduced some other matter, then fell on the Representation Bill, which he had now in his possession for the 10th day. I had before given him my opinion, in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood bill the time by the makers of it; that yet it would bear the construction which the bill put; and he observed that the vote for and against the bill was perfectly geographical--a northern against a southern vote--and he feared he should be thought to be taking side with a southern party. I admitted the motive of delicacy, but that it should not induce him to do wrong, and urged the dangers to which the scramble for the fractionary members would always lead. He here expressed his fear that there would, ere long, be a separation of the Union; that the public mind seemed dissatisfied, and tending to this. He went home, sent for Randolph, the attorney-general, desired him to get Mr. Madison immediately, and come to me; and if we three concurred in opinion, that he would negative the bill. He desired to hear nothing more about it, but that we would draw up the instrument for him to sign. They came;--our minds had been before made up;--we drew the instrument Randolph carried it to him, and told him we all concurred in it He walked with him to the door, and, as if he still wished to get off, he said, "And you say you approve of this yourself?" "Yes, sir," says Randolph; "I do, upon my honor." He sent it to the House of Representatives instantly. A few of the hottest friends of the bill expressed passion, but the majority were satisfied, and both in and out of doors it gave pleasure to have at length an instance of the negative being exercised. Written this, the 9th April."
LIST OF THE VETOES.
- 1. Returned to the House of Representatives, by George Washington, April 5, 1792--"An Act for an apportionment of representatives among the several states, according to the first enumeration."
- 2. Returned to the House of Representatives, by George Washington, March 1, 1797--"An Act to alter and amend an act, entitled, An Act to ascertain and fix the military establishment of the United States."
- 3. Returned to the House of Representatives, by James Madison, February 21, 1811--"An Act for incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia."
- 4. Returned to the House of Representatives, by James Madison, February 28, 1811--"An Act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem meeting-house, in the Mississippi territory."
- 5. Returned to the House of Representatives, by James Madison, April 3, 1812--"An Act providing for the trial of causes pending in the respective District Courts of the United States, in case of the absence or disability of the judges thereof."
- 6. Bill not approved, nor returned with objections, for want of time; retained, and notice thereof sent to Congress, by James Madison, November 5, 1812--"An Act supplementary to the acts heretofore passed on the subject of a uniform rule of naturalization."
- 7. Returned to the Senate, by James Madison, January 30, 1815--"An Act to incorporate the subscribers to the Bank of the United States of America."
- 8. Returned to the House of Representatives, by James Madison, March 3, 1817--"An Act to set apart and pledge certain funds for internal improvement."
- 9. Returned to the House of Representatives, by James Monroe, May 4, 1822--"An Act for the preservation and repair of the Cumberland road."
- 10. Returned to the House of Representatives, by Andrew Jackson, May 27, 1830--"An Act authorizing a subscription of stock in the Maysville, Washington, Paris, and Lexington Turnpike Road Company."
- 11. Returned to the Senate, by Andrew Jackson, May 31, 1830--"An Act authorizing a subscription of stock in the Washington Turnpike Road Company."
- 12. Returned to the Senate, by Andrew Jackson, July 10, 1832.--"An Act to incorporate the subscribers to the Bank of the United States."
- 13. Returned to the Senate, by Andrew Jackson, December 6, 1832--"An Act providing for the final settlement of the claims of states for interests on advances to the United States, made during the last war."
- 14. Returned to the House of Representatives, by Andrew Jackson, December 6, 1832--"An Act for the improvement of certain harbors, and the navigation of certain rivers."
- 15. Bill not approved, nor returned with objections, for want of time; retained. and notice sent to the Senate, by Andrew Jackson, December 5, 1833--"An Act to appropriate, for a limited time, the proceeds of the sales of the public lands of the United States, and for granting lands to certain states."
- 16. Returned to the Senate by Andrew Jackson, March 3, 1835--"An Act to authorize the secretary of the treasury to compromise the claims allowed by the commissioners under the treaty with the king of the Two Sicilies, concluded October 14, 1832."
- 17. Bill not approved, nor returned with objections, for want of time; retained, and notice thereof sent to Congress, by Andrew Jackson, December 2, 1834--"An Act to improve the navigation of the Wabash River."
- 18. Returned to the Senate, by Andrew Jackson, June 10, 1836--"An Act to appoint a day for the annual meeting of Congress."
- 19. Returned to Senate, by John Tyler, August 16, 1841--"An Act to incorporate the subscribers to the Fiscal Bank of the United States,"
- 20. Returned to the House of Representatives, by John Tyler, September 9, 1841--"An Act to provide for the better collection, safe keeping, and disbursement, of the public revenue, by means of a corporation, to be styled the 'Fiscal Corporation of the United States.'"
- 21. Returned to the House of Representatives, by John Tyler, June 29, 1842--"An Act to extend for a limited period, the present laws for laying and collecting duties on imports;" (containing a proviso about distribution of proceeds of lands.)
- 22. Returned to the House of Representatives, by John Tyler, August 9, 1842--"An Act to provide revenue from imports, and to change and, modify the existing laws imposing duties on imports, and for other purposes," (Thus bill was afterwards revived, with alterations and modifications; and, thus amended, finally passed, and received the President's signature,)
Recapitulation of Vetoes.
- By George Washington, ... 2
- " James Madison, ... 6
- " James Monroe, ... 1
- " Andrew Jackson, ... 9
- " John Tyler, ... 4
- Total, ... 22
Such is a plain history of the veto power. As it respects the several states, the executives in some have the power, in others not. Those which possess the negative power, such as is given to the President, are New York, New Hampshire, Massachusetts, Pennsylvania, Georgia, Louisiana, Mississippi, Missouri, and Maine. The other states do not have it at all, or the bill, when returned by the governor may be repassed by a mere majority.
Of the ten Presidents, five have made use of the veto power, and five have not.
Number of acts approved, upwards of 6,000.
The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Elliot's Debates)
Elliot's Debates--Saturday, July 21.
In Convention.--Mr. WILLIAMSON moved, "that the electors of the executive should be paid out of the national treasury for the service to be performed by them." Justice required this, as it was a national service they were to render. The motion was agreed to, nem. con.
Mr. WILSON moved, as an amendment to the tenth resolution, "that the supreme national judiciary should be associated with the executive in the revisionary power." This proposition had been before made and failed; but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort. The judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as on themselves. It had been said, that the judges, as expositors of the laws, would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. Let them have a share in the revisionary power, and they will have an opportunity of taking notice of those characters of a law, and of counteracting, by the weight of their opinions, the improper views of the legislature. Mr. MADISON seconded the motion.
Mr. GORHAM did not see the advantage of employing the judges in this way. As judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The judges in England have no such additional provision for their defence; yet their jurisdiction is not invaded. He thought it would be best to let the executive alone be responsible, and at most to authorize him to call on the judges for their opinions.
Mr. ELLSWORTH approved heartily of the motion. The aid of the judges will give more wisdom and firmness to the executive. They will possess a systematic and accurate knowledge of the laws, which the executive cannot be expected always to possess. The law of nations, also, will frequently come into question. Of this the judges alone will have competent information.
Mr. MADISON considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the judiciary department by giving it an additional opportunity of defending itself against legislative encroachments. It would be useful to the executive, by inspiring additional confidence and firmness in exerting the revisionary power. It would be useful to the legislature, by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity, and technical propriety in the laws--qualities peculiarly necessary, and yet shamefully wanting in our republican codes. It would, moreover, be useful to the community at large, as an additional check against a pursuit of those unwise and unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged against the motion, it must be on the supposition that it tended to give too much strength, either to the executive, or judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended, that, notwithstanding this coöperation of the two departments, the legislature would still be an overmatch for them. Experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex. This was the real source of danger to the American constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
Mr. MASON said, he had always been a friend to this provision. It would give a confidence to the executive which he would not otherwise have, and without which the revisionary power would be of little avail.
Mr. GERRY did not expect to see this point, which had undergone full discussion, again revived. The object, he conceived, of the revisionary power was merely to secure the executive department against legislative encroachment. The executive, therefore, who will best know and be ready to defend his rights, ought alone to have the defence of them. The motion was liable to strong objections. It was combining and mixing together the legislative and the other departments. It was establishing an improper coalition between the executive and judiciary departments. It was making statesmen of the judges, and setting them up as the guardians of the rights of the people. He relied, for his part, on the representatives of the people, as the guardians of their rights and interests. It was making the expositors of the laws the legislators, which ought never to be done. A better expedient for correcting the laws would be to appoint, as had been done in Pennsylvania, a person or persons of proper skill, to draw bills for the legislature.
Mr. STRONG thought, with Mr. Gerry, that the power of making ought to be kept distinct from that of expounding the laws. No maxim was better established. The judges, in exercising the function of expositors, might be influenced by the part they had taken in passing the laws.
Mr. GOUVERNEUR MORRIS, Some check being necessary on the legislature, the question is, in what hands it should be lodged. On one side, it was contended, that the executive alone ought to exercise it. He did not think that an executive appointed for six years, and impeachable whilst in office, would be a very effectual check. On the other side, it was urged, that he ought to be reënforced by the judiciary department. Against this it was objected, that expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was, that the judges in England had a great share in the legislation. They are consulted in difficult and doubtful cases. They may be, and some of them are, members of the legislature. They are, or may be, members of the privy council, and can there advise the executive, as they will do with us if the motion succeeds. The influence the English judges may have, in the latter capacity, in strengthening the executive check, cannot be ascertained, as the king, by his influence, in a manner dictates the laws. There is one difference in the two cases, however, which disconcerts all reasoning from the British to our proposed Constitution. The British executive has so great an interest in his prerogatives, and such power for means of defending them, that he will never yield any part of them. The interest of our executive is so inconsiderable and so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting encroachments. He was extremely apprehensive that the auxiliary firmness and weight of the judiciary would not supply the deficiency. He concurred in thinking he public liberty in greater danger from legislative usurpations than from any other source. It had been said, that the legislature ought to be relied on, as the proper guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition, no check will be wanted; on the former, a strong check will be necessary. And this is the proper supposition. Emissions of paper money, largesses to the people, a remission of debts, and similar measures, will at some times be popular, and will be pushed for that reason. At other times, such measures will coincide with the interests of the legislature themselves, and that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case; but experience teaches another lesson. The press is indeed a great means of diminishing the evil; yet it is found to be unable to prevent it altogether.
Mr. L. MARTIN considered the association of the judges with the executive as a dangerous innovation, as well as one that could not produce the particular advantage expected from it. A knowledge of mankind, and of legislative affairs, cannot be presumed to belong in a higher degree to the judges than to the legislature. And as to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative. It is necessary that the supreme judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against popular measures of the legislature. Besides, in what mode and proportion are they to vote in the council of revision?
Mr. MADISON could not discover in the proposed association of the judges with the executive, in the revisionary check on the legislature, any violation of the maxim which requires the great departments of power to be kept separate and distinct. On the contrary, he thought it an auxiliary precaution in favor of the maxim. If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security, and that it is necessary to introduce such a balance of powers and interests as will guaranty the provisions on paper. Instead, therefore, of contenting ourselves with laying down the theory, in the Constitution, that each department ought to be separate and distinct, it was proposed to add a defensive power to each, which should maintain the theory in practice. In so doing; we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British constitution. Yet it was not only the practice there to admit the judges to a seat in the legislature, and in the executive councils, and submit to their previous examination all laws of a certain description, but it was a part of their constitution that the executive might negative any law whatever; a part of their constitution, which had been universally regarded as calculated for the preservation of the whole. The objection against a union of the judiciary and executive branches, in the revision of the laws, had either no foundation, or was not carried far enough. If such a union was an improper mixture of powers, or such a judiciary check on the laws was inconsistent with the theory of a free constitution, it was equally so to admit the executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.
Col. MASON observed, that the defence of the executive was not the sole object of the revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the constitution of the legislature, it would still so much resemble that of the individual states, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect, not only of hindering the final passage of such laws, but would discourage demagogues from attempting to get them passed. It has been said, (by Mr. L. Martin,) that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. He would reply, that in this capacity they could impede in one case only the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive, or pernicious, that did not come plainly under this description, they would be under the necessity, as judges, to give it a free course. He wished the further use to be made of the judges of giving aid in preventing every improper law. Their aid will be the more valuable, as they are in the habit and practice of considering laws in their true principles and in all their consequences.
Mr. WILSON. The separation of the departments does not require that they should have separate objects, but that they should act separately, though on the same objects. It is necessary that the two branches of the legislature should be separate and distinct, yet they are both to act precisely on the same object.
Mr. GERRY had rather give the executive an absolute negative for its own defence, than thus to blend together the judiciary and executive departments. It will bind them together in an offensive and defensive alliance against the legislature, and render the latter unwilling to enter into a contest with them.
Mr. GOUVERNEUR MORRIS was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws; would it not be very natural for the two latter, after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that, as a security against legislative acts of the former, which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence; or at least to have an opportunity of stating their objections against acts of encroachment? And would any one pretend, that such a right tended to blend and confound powers that ought to be separately exercised? As well might it be said that if three neighbors had three distinct farms, a right in each to defend his farm against his neighbors, tended to blend the farms together.
Mr. GORHAM. All agree that a cheek on the legislature is necessary. But there are two objections against admitting the judges to share in it, which no observations on the other side seem to obviate. The first is, that the judges ought to carry into the exposition of the laws no prepossessions with regard to them; the second, that, as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and, instead of enabling him to defend himself, would enable the judges to sacrifice him.
Mr. WILSON. The proposition is certainly not liable to all the objections which have been urged against it. According to (Mr. Gerry) it will unite the executive and judiciary in an offensive and defensive alliance against the legislature. According to (Mr. Gorham) it will lead to a subversion of the executive by the judiciary influence. To the first gentleman the answer was obvious--that the joint weight of the two departments was necessary to balance the single weight of the legislature. To the first objection stated by the other gentleman, it might be answered that, supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient; to the second objection, that such a rule of voting might be provided, in the detail, as would guard against it.
Mr. RUTLEDGE thought the judges, of all men, all most unfit to be concerned in the revisionary council. The judges ought never to give their opinion on a law, till it comes before them. He thought it equally unnecessary. the executive could advise with the officers of state, as of war, finance, &c., and avail himself of their information and opinions.
On the question on Mr. Wilson's motion for joining the judiciary in the revision of laws, it passed in the negative.
Connecticut, Maryland, Virginia, ay, 3; Massachusetts, Delaware, North Carolina, South Carolina, no, 4; Pennsylvania, Georgia, divided; New Jersey, not present.
The tenth resolution, giving the executive a qualified veto, requiring two thirds of each branch of the legislature to overrule it, was then agreed to, nem. con.
Antifederalist No. 73
Does the Presidential Veto Power Infringe on the Separation of Departments?
"WILLIAM PENN", an anonymous writer appeared in the [Philadelphia] Independent Gazetteer on January 3, 1788.
. . . I believe that it is universally agreed upon in this enlightened country, that all power residing originally in the people, and being derived from them, they ought to be governed by themselves only, or by their immediate representatives. I shall not spend any time in explaining a principle so well and so generally understood, but I shall proceed immediately to that which I conceive to be the next in order.
The next principle, without which it must be clear that no free government can ever subsist, is the DIVISION OF POWER among those who are charged with the execution of it. It has always been the favorite maxim of princes, to divide the people, in order to govern them. It is now time that the people should avail themselves of the same maxim, and divide powers among their rulers, in order to prevent their abusing it. The application of this great political truth, has long been unknown to the world, and yet it is grounded upon a very plain natural principle. If, says Montesquieu, the same man, or body of men, is possessed both of the legislative and executive power, there is NO LIBERTY, because it may be feared that the same monarch, or the same senate, will enact tyrannical laws, in order to execute them in a tyrannical manner. Nothing can be clearer, and the natural disposition of man to ambition and power makes it probable that such would be the consequence. Suppose for instance, that the same body, which has the power of raising money by taxes, is also entrusted with the application of that money, they will very probably raise large sums, and apply them to their own private uses. If they are empowered to create offices, and appoint the officers, they will take that opportunity of providing for themselves, and their friends, and if they have the power of inflicting penalties for offenses, and of trying the offenders, there will be no bounds to their tyranny. Liberty therefore can only subsist, where the powers of government are properly divided, and where the different jurisdictions are inviolably kept distinct and separate.
(1) I shall illustrate this doctrine by an example. A burgher of a certain borough of Switzerland was elected Bailiff, or Chief Magistrate, for one year, according to the constitution of the place. Shortly after his appointment, he sent for one of his neighbors, and ordered him to pull off his boots. The honest neighbor was astonished, and attempted to remonstrate, but the bailiff was determined to exert his authority, and threatened to send him to jail, if he did not yield him an immediate obedience. The poor man was forced to comply, for the bailiff was vested with power, both legislative and executive. He pulled off his worship's boots, but said to him, "When I am appointed bailiff in my turn, you shall pull off my boots and clean them too."
The first and most natural division of the powers of government are into the legislative and executive branches. These two should never be suffered to have the least share of each other's jurisdiction, or to intermeddle with it in any manner. For whichever of the two divides its power with the other, will certainly be subordinate to it; and if they both have a share of each other's authority, they will be in fact but one body. Their interest as well as their powers will be the same, and they will combine together against the people.
It is therefore a political error of the greatest magnitude, to allow the executive power a negative, or in fact any kind of control over the proceedings of the legislature. The people of Great Britain have been so sensible of this truth, that since the days of William III, no king of England has dared to exercise the negative over the acts of the two houses of parliament, to which he is clearly entitled by his prerogative.
This doctrine is not novel in America; it seems on the contrary to be everywhere well understood and admitted beyond controversy. In the bills of rights or constitutions of New-Hampshire, Massachusetts, Maryland, Virginia, North- Carolina and Georgia, it is expressly declared, "That the legislative, executive and judicial departments, shall be forever separate and distinct from each other." In Pennsylvania and Delaware, they are effectually separated without any particular declaration of the principle. In the other states indeed, the executive branch possesses more or less of the executive power. And here it must appear singular that the state of Massachusetts- where the doctrine of a separate jurisdiction is most positively established, and in whose bill of rights these remarkable words are to be found, "The executive shall never exercise the legislative and judicial powers, or either of them, to the end it may be a government of laws and not of men" (sect. 30) -yet in that commonwealth and New-Hampshire, the executive branch, which consists of a single magistrate, has more control over the legislature than in any other state. For there, if the governor refuses his assent to a bill, it cannot be passed into a law, unless two thirds of the house afterwards concur. In New York the same power is given to a Council of Revision, consisting of the Governor, the Chancellor and judges of the Supreme Court, or any three of them, of which the Governor is to be one. In Rhode-Island and Connecticut, whose governments were established before the revolution, the Governor has a single vote as a member of the upper house, and New Jersey has adopted this part of their constitution. In Georgia the laws are to be revised by the Governor and Council, but they can do no more than give their opinion upon them. In Maryland the bills are to be signed by the Governor before they can be enacted; and in South-Carolina they are to be sealed with the great sea], which is in the Governor's custody. But in the first of these states, the constitution prescribes that the Governor shall sign the bills; and in the latter, a joint committee of both houses of legislature is to wait upon the chief magistrate to receive and return the great seat, which implies that he is bound to deliver it to them, for the special purpose of affixing it to the laws of the state. Pennsylvania has proceeded upon a much more rational ground, their legislature having a particular seal of their own, and their laws requiring only to be signed by the speaker. It in Maryland or South-Carolina a difference should ever arise between the legislature and the Governor, and the latter should refuse to sign the laws, or to deliver the great seal, the most fatal consequences might ensue.
Here then we see the great leading principle of the absolute division of the legislative from the executive jurisdiction, admitted in almost every one of the American states as a fundamental maxim in the politics of a free country. The theory of this general doctrine is everywhere established, though a few states have somewhat swerved from it in the practice. From whence we must conclude, that even the knowledge and full conviction of a new political truth will not always immediately conquer inveterate habits and prejudices. The idea of the negative, which the constitution of England gives to the monarch over the proceedings of the other branches of parliament, although it has so long become obsolete, has had an effect upon timid minds, and upon the minds of those who could not distinguish between the form and spirit of the British constitution. They would not grant to the executive branch an absolute negative over the legislature, but yet they tried every method to introduce something similar to it. They reprobated the doctrine in the most express words, and yet they could not bear to part entirely with it. It is curious to observe how many different ways they have endeavored to conciliate truth with prejudice. Of those states who have allowed the executive branch to intermeddle with the proceedings of the legislature, no two (New Hampshire and Massachusetts excepted) have done it exactly in the same manner. They have tried every possible medium, but having lost sight of the original principle which they had already established, and which alone could have been their safest guide, they groped about in the dark, and could not find any solid ground on which to establish a general rule. Like Noah's dove, being once out of the ark of truth, they could not find elsewhere a place to rest their feet.
These facts will no doubt afford an interesting page in the history of the contradictions of the human mind. Unfortunately, they do not stand single, and this is not the only instance that we find in the constitutions of the different states, of a general principle being expressly declared as a part of the natural rights of the citizens, and afterwards being as expressly contradicted in the practice. Thus we find it declared in every one of our bills of rights, "that there shall be a perfect liberty of conscience, and that no sect shall ever be entitled to a preference over the others." Yet in Massachusetts and Maryland, all the officers of government, and in Pennsylvania the members of the legislature, are to be of the Christian religion; in New-Jersey, North-Carolina, and Georgia, the Protestant, and in Delaware, the trinitarian sects, have an exclusive right to public employment; and in South-Carolina the constitution goes so far as to declare the creed of the established church. Virginia and New-York are the only states where there is a perfect liberty of conscience. I cannot say any thing as to Connecticut and Rhode-Island, as their constitutions are silent on the subject, and I have not been informed of their practice.
Whether these religious restrictions are right or wrong, it is not my intention, nor is it my object to examine in the course of these disquisitions. I only meant to show, that in laying down a political system it is safer to rely on principles than upon precedents, because the former are -fixed and immutable, while the latter vary with men, places, times and circumstances.
WILLIAM PENN
FEDERALIST PAPERS
Federalist No. 73
The Provision For The Support of the Executive, and the Veto Power
From the New York Packet
Friday, March 21, 1788.Author: Alexander Hamilton
To the People of the State of New York:
THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that ``The President of the United States shall, at stated times, receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or any of them.'' It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.
The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States.
The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body.
The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.
But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.
The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.
If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican?
It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard.
But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.
This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers.
I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.
PUBLIUS.
Believe me, I hear ya!!
"April 6th. The President called on me before breakfast, and first introduced some other matter, then fell on the Representation Bill, which he had now in his possession for the 10th day. I had before given him my opinion, in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood bill the time by the makers of it; that yet it would bear the construction which the bill put; and he observed that the vote for and against the bill was perfectly geographical--a northern against a southern vote--and he feared he should be thought to be taking side with a southern party. I admitted the motive of delicacy, but that it should not induce him to do wrong, and urged the dangers to which the scramble for the fractionary members would always lead. He here expressed his fear that there would, ere long, be a separation of the Union; that the public mind seemed dissatisfied, and tending to this. He went home, sent for Randolph, the attorney-general, desired him to get Mr. Madison immediately, and come to me; and if we three concurred in opinion, that he would negative the bill. He desired to hear nothing more about it, but that we would draw up the instrument for him to sign. They came;--our minds had been before made up;--we drew the instrument Randolph carried it to him, and told him we all concurred in it He walked with him to the door, and, as if he still wished to get off, he said, "And you say you approve of this yourself?" "Yes, sir," says Randolph; "I do, upon my honor." He sent it to the House of Representatives instantly. A few of the hottest friends of the bill expressed passion, but the majority were satisfied, and both in and out of doors it gave pleasure to have at length an instance of the negative being exercised. Written this, the 9th April."
The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor.--vol. 32
George Washington to House of Representatives, April 5, 1792
(Veto Message)United States, April 5, 1792.
Gentlemen of the House of Representatives: I have maturely considered the Act passed by the two Houses, intitled, "An Act for an apportionment of Representatives among the several States according to the first enumeration,"44 and I return it to your House, wherein it originated, with the following objections.
[Note 44: On April 6 the "Apportionment Bill," as it was called, was reconsidered in the light of the President's veto and failed to pass over the same. This is recorded in the Annals of Congress of that date. A digest of the opinions of the Secretaries of State, Treasury, and War, and of the Attorney General on the constitutionality of the bill, in the writing of Tobias Lear, is in the Washington Papers filed at the end of April, 1792.]
First: The Constitution has prescribed that Representatives shall be apportioned among the several States, according to their respective Numbers: and there is no one proportion or division which, applied to the respective numbers of the States, will yield the number and allotment of Representatives proposed by the bill.
Second. The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand: which restriction is, by the context, and by fair and obvious construction, to be applied to the seperate and respective numbers of the States: and the bill has allotted to eight of the States more than one for thirty thousand.45
[Note 45: From the "Letter Book" copy in theWashington Papers.]
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