338 CONSTITUTION OF THE U. STATES. [BOOK III.
MODE OF PASSING LAWS. PRESIDENT'S NEGATIVE.
§ 870. THE seventh section of the first article treats of two important subjects, the right of originating revenue bills, and the nature and extent of the president's negative upon the passing of laws.
§ 871. The first clause declares -- "All bills for raising revenue shall originate in the house of representatives; but the senate may propose, or concur with amendments, as on other bills." This provision, so far as it regards the right to originate what are technically called "money bills," is, beyond all question, borrowed from the British house of commons, of which it is the ancient and indisputable privilege and right, that all grants of subsidies and parliamentary aids shall begin in their house, and are first bestowed by them, although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature.1 The general reason given for this privilege of the house of commons is, that the supplies are raised upon the body of the people; and therefore it is proper, that they alone should have the right of taxing themselves. And Mr. Justice Blackstone has very correctly remarked, that this reason would be unanswerable, if the commons taxed none but themselves. But it is notorious, that a very large share of property is in possession of the lords; that this property is equally taxed, as the property of the com-
1 1 Black. Comm. 169.
CH. XIII.] MODE OF PASSING LAWS. 339
mons; and therefore the commons, not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced, more likely to continue so, than the commons, who are a temporary elective body, freely nominated by the people. It would, therefore, be extremely dangerous to give thelords any power of framing new taxes for the subject. It is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants.1
§ 872. This seems a very just account of the matter, with reference to the spirit of the British constitution; though a different explanation has been deduced from a historical review of the power. It has been asserted to have arisen from the instructions from time to time given by the constituents of the commons, (whether county, city, or borough,) as to the rates and assessments, which they were respectively willing to bear and assent to; and from the aggregate it was easy for the commons to ascertain the whole amount, which the commonalty of the whole kingdom were willing to grant to the king.2 Be this as it may, so jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power, but that of rejecting. They will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; and under
1 1 Black. Comm. 169; De Lolme on Constitution, ch. 4, 8, p. 66, 84 85,
2 2 Wilson's Law Lect. 161, 162, 163, citing Millar on Constitution 398. But see 1 Wilson's Law Lect. 444, 445.
340 CONSTITUTION OF THE U. STATES. [BOOK III.
this appellation are included all bills, by which money is directed to be raised upon the subject for any purpose, or in any shape whatsoever, either for the exigencies of the government, and collected from the kingdom in general, as the land tax, or for private benefit, and collected in any particular district, as turnpikes, parish rates, and the like.1 It is obvious, that this power might be capable of great abuse, if other bills were tacked to such money bills; and accordingly it was found, that money bills were sometimes tacked to favourite measures of the commons, with a view to ensure their passage by the lords. This extraordinary use, or rather perversion of the power, would, if suffered to grow into a common practice, have completely destroyed the equilibrium of the British constitution, and subjected both the lords and the king to the power of the commons. Resistance was made from time to time to this unconstitutional encroachment; and at length the lords, with a view to give permanent effect to their own rights, hare made it a standing order to reject upon sight all bills, that are tacked to money bills.2 Thus, the privilege is maintained on one side, and guarded against undue abuse on the other.
§ 873. It will be at once perceived, that the same reasons do not exist in the same extent, for the same exclusive right in our house of representatives in regard to money bills, as exist for such right in the British house of commons. It may be fit, that it should possess the exclusive right to originate money bills; since it may be presumed to possess more ample means of local information, and it more directly represents the opinions, feelings, and wishes of the people; and, being
1 1 Black. Comm. 170, and Christian's Note, (26).
2 De Lolme on Constitution, ch. 17, p. 381, 382.
CH. XIII.] MODE OF PASSING LAWS. 341
directly dependent upon them for support, it will be more watchful and cautious in the imposition of taxes, than a body, which emanates exclusively from the states in their sovereign political capacity.1 But, as the senators are in a just sense equally representatives of the people, and do not hold their offices by a permanent or hereditary title, but periodically return to the common mass of citizens;2 and above all, as direct taxes are, and must be, apportioned among the states according to their federal population; and as all the states hare a distinct local interest, both as to the amount and nature of all taxes of every sort, which are to be levied, there seems a peculiar fitness in giving to the senate a power to alter and amend, as well as to concur with, or reject all money bills. The due influence of all the states is thus preserved; for otherwise it might happen, from the overwhelming representation of some of the large states, that taxes might be levied, which would bear with peculiar severity upon the interests, either agricultural, commercial, or manufacturing, of others being the minor states; and thus the equilibrium intended by the constitution, as well of power, as of interest, and influence, might be practically subverted.
§ 874 There would also be no small inconvenience in excluding the senate from the exercise of this power of amendment and alteration; since if any, the slightest modification were required in such a bill to make it either palatable or just, the senate would be compelled to reject it, although an amendment of a single line
1 2 Wilson's Law Lect. 163, 164; Rawle on Constitution, ch 6; 4 Elliot's
2 1 Tucker's Black. Comm. App. 215; 2 Wilson's Law Lect. 163, 164; Rawle on Constitution, ch 6; 4 Elliot's Debates, 141.
342 CONSTITUTION OF THE U. STATES. [BOOK III.
might make it entirely acceptable to both houses.1 Such a practical obstruction to the legislation of a free government would far outweigh any supposed theoretical advantages from the possession or exercise of an exclusive power by the house of representatives. Infinite perplexities, and misunderstandings, and delays would clog the most wholesome legislation. Even the annual appropriation bills might be in danger of a miscarriage on these accounts; and the most painful dissensions might be introduced.
§ 875. Indeed, of so little importance has the exclusive possession of such a power been thought in the state governments, that some of the state constitutions make no difference, as to the power of each branch of the legislature to originate money bills. Most of them contain a provision similar to that in the constitution of the United States; and in those states, where the exclusive power formerly existed, as, for instance, in Virginia and South-Carolina, it was a constant source of difficulties and contentions.2 In the revised constitution of South-Carolina, (in 1790,) the provision was altered, so as to conform to the clause in the constitution of the United States.
§ 876. The clause seems to have met with no serious opposition in any of the state conventions; and indeed could scarcely be expected to meet with any opposition, except in Virginia; since the other states were well satisfied with the principle adopted in their own state constitutions; and in Virginia the clause created but little debate.3
§ 877. What bills are properly "bills for raising revenue," in the sense of the constitution, has been matter
1 2 Elliot's Debates, 283, 284.
CH. XIII.] PRESIDENT'S NEGATIVE. 343
of some discussion. A learned commentator supposes, that every bill, which indirectly or consequentially may raise revenue, is, within the sense of the constitution, a revenue bill. He therefore thinks, that the bills for establishing the post-office, and the mint, and regulating, the value of foreign coin, belong to this class, and ought not to have originated (as in fact they did) in the senate.1 But the practical construction of the constitution has been against his opinion. And, indeed, the history of the origin of the power, already suggested, abundantly proves, that it has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue.2 No one supposes, that a bill to sell any of the public lands, or to sell public stock, is a bill to raise revenue, in the sense of the constitution. Much less would a bill be so deemed, which merely regulated the value of foreign or domestic coins, or authorized a discharge of insolvent debtors upon assignments of their estates to the United States, giving a priority of payment to the United States in cases of insolvency, although all of them might incidentally bring, revenue into the treasury.
§ 878. The next clause respects the power of the president to approve, and negative laws. In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discussion seem to have been, whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should be subsequently passed, in order to become a law; and
1 Tucker's Black. Comm. App. 261, and note.
2 See 2 Elliot's Debates, 283, 284.
344 CONSTITUTION OF THE U. STATES. [BOOK III.
whether the negative should in either case be exclusively vested in the president alone, or in him jointly with some other department of the government. The proposition of a qualified negative seems to have obtained general, but not universal support, having been carried by the vote of eight states against two.1 This being settled, the question, as to the number, was at first unanimously carried in the affirmative in favour of two thirds of each house; at a subsequent period it was altered to three fourths by a vote of six states against four, one being divided; and it was ultimately restored to the two thirds, without any apparent struggle.2 An effort was also made to unite the supreme national judiciary with the executive in revising the laws, and exercising the negative. But it was constantly resisted, being at first overruled by a vote of four states against three, two being divided, and finally rejected by the vote of eight states against three.3
§ 879. Two points may properly arise upon this subject. First, the propriety of vesting the power in the president; and secondly, the extent of the legislative check, to prevent an undue exercise of it. The former also admits of a double aspect, viz. whether the negative should be absolute, or should be qualified. An absolute negative on the legislature appears, at first, to be the natural defence, with which the executive magistrate should be armed. But in a free government, it seems not altogether safe, nor of itself a sufficient defence. On ordinary occasions, it may not be exerted with the requisite firmness; and on extraordinary-occasions, it may be perfidiously abused. It
1 Journal of the Convention, 97.
2 Journal of the Convention, 195, 253, 254, 355.
3 Journal of the Convention, 69, 96, 195, 253.
CH. XIII.] PRESIDENT'S NEGATIVE. 345
is true, that the defect of such an absolute negative has a tendency to weaken the executive department. But this may be obviated, or at least counterpoised, by other arrangements in the government; such as a qualified connexion with the senate in making treaties and appointments, by which the latter, being a stronger department, may be led to support the constitutional rights of the former, without being too much detached from its own legislative functions.1 And the patronage of the executive has also some tendency to create a counteracting influence in aid of his independence. It is true, that in England an absolute negative is vested in the king, as a branch of the legislative power; and he possesses the absolute power of rejecting, rather than of resolving. And this is thought by Mr. Justice Blackstone and others, to be a most important, and indeed indispensable part of the royal prerogative, to guard against the usurpations of the legislative authority.2 Yet in point of fact this negative of the king has not been once exercised since the year 1692;3 a fact, which can only be accounted for upon one of two suppositions, either that the influence of the crown has prevented the passage of objectionable measures, or that the exercise of the prerogative has become so odious, that it has not been deemed safe to exercise it, except upon the most pressing emergencies.4 Probably both
1 The Federalist, No. 51.
2 1 Black. Comm. 154
3 De Lolme on Constitution, ch. 17, p 390, 391; 1 Kent's Comm. Lect. 11, p. 226.
4 1 Wilson's Law Lect. 448, 4149; The Federalist, No 73; Id No 69; 1 Kent's Comm. Lect. 11, p 226 -- Mr. Burke, in his letter to the sheriffs of Brisol,* has treated this subject with his usual masterly power. "The king's negative to bills," says he, "is one of the most undisputed of the royal prerogatives; and it extends to all cases whatsoever. I am
* In 1777.
346 CONSTITUTION OF THE U. STATES. [BOOK III.
motives have alternately prevailed in regard to bills, which were disagreeable to the crown;1 though, for the last half century, the latter has had the most uniform and decisive operation. As the house of commons becomes more and more the representative of the popular opinion, the crown will have less and less inducement to hazard its own influence by a rejection of any favourite measure of the people. It will be more likely to take the lead, and thus guide and moderate, instead of resisting the commons. And, practically speaking, it is quite problematical, whether a qualified negative may not hereafter in England become a more efficient protection of the crown, than an absolute negative, which makes no appeal to the other legislative bodies, and consequently compels the crown to bear the exclusive odium of a rejection.2 Be this as it may, the example of England furnishes, on this point, no sufficient authority for America. The whole structure of our government is so entirely different, and the elements, of which it is composed, are so dissimilar from that of England, that no argument can be drawn from the practice of the latter, to assist us in a just arrangement of the executive authority.
§ 880. It has been observed by Mr. Chancellor Kent, with pithy elegance, that the peremptory veto of the Roman Tribunes, who were placed at the door of the Roman senate, would not be reconcileable with the
far from certain, that if several laws, which I know, had fallen under the
stroke of that sceptre, that the public would have had a very heavy loss.
But it is not the propriety of the exercise, which is in question The
exercise itself is wisely forborne. Its repose may be the preservation of
its existence; and its existence may be the means of saving the
constitution itself, on an occasion worthy of bringing it forth."
1 1 Tuck. Black. Comm. App. 255, 256; 1 Kent's Comm. Lect. 11, p 226.
2 See the reasoning in The Federalist, No 73; Id. No 51; 1 Wilson's Law Lect. 448, 449.
CH. XIII.] PRESIDENT'S NEGATIVE. 347
spirit of deliberation and independence, which distinguishes the councils of modern times. The French constitution of 1791, a laboured and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative, given to the president of the United States, appears to be more wisely digested, than any of the examples, which have been mentioned.1
§ 881. The reasons, why the president should possess a qualified negative, if they are not quite obvious, are, at least, when fairly expounded, entirely satisfactory. In the first place, there is a natural tendency in the legislative department to intrude upon the rights, and to absorb the powers of the other departments of government.2 A mere parchment delineation of the boundaries of each is wholly insufficient for the protection of the weaker branch, as the executive unquestionably is; and hence there arises a constitutional necessity of arming it with powers for its own defence. If the executive did not possess this qualified negative, he would gradually be stripped of all his authority, and become, what it is well known the governors of some states are, a mere pageant and shadow of magistracy.3
1 1 Kent's Comm. Lect. 11, p. 226, 227.
2 1 Kent's Comm. Lect. 11, p. 225, 226; The Federalist, No 73; Id. No. 51.
3 The Federalist, No 51, 73; 1 Tuck. Black. Comm. App. 225, 329; 1
Wilson's Law Lect. 448, 449; 1 Kent's Comm. Lect. 11, p, 225, 226.
348 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 882. In the next place, the power is important, as an additional security against the enactment of rash, immature, and improper laws. It establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility.1 It may, indeed, be said, that a single man, even though he be president, cannot be presumed to possess more wisdom, or virtue, or experience, than what belongs to a number of men. But this furnishes no answer to the reasoning. The question is not, how much wisdom, or virtue, or experience, is possessed by either branch of the government, (though the executive magistrate may well be presumed to be eminently distinguished in all these respects, and therefore the choice of the people;) but whether the legislature may not be misled by a love of power, a spirit of faction, a political impulse, or a persuasive influence, local or sectional, which, at the same time, may not, from the difference in the election and duties of the executive, reach him at all, or not reach him in the same degree. He will always have a primary inducement to defend his own powers; the legislature may well be presumed to have no desire to favour them. He will have an opportunity soberly to examine the acts and resolutions passed by the legislature, not having partaken of the feelings or combinations, which have procured their passage, and thus correct, what shall sometimes be wrong from haste and inadvertence, as well as design.2 His view of them, if not more wise, or more elevated, will, at least, be
1 The Federalist, No. 73; 1 Wilson's Law Lect. 448, 449, 450.
2 The Federalist, No. 73.
CH. XIII.] PRESIDENT'S NEGATIVE. 349
independent, and under an entirely different responsibility to the nation, from what belongs to them. He is the representative of the whole nation in the aggregate; they are the representatives only of distinct parts; and sometimes of little more than sectional or local interests.
§ 883. Nor is there any solid objection to this qualified power.1 If it should be objected, that it may sometimes prevent the passage of good laws, as well as of bad laws, the objection is entitled to but little weight. In the first place, it can never be effectually exercised, if two thirds of both houses are in favour of the law; and if they are not, it is not so easily demonstrable, that the law is either wise or salutary. The presumption would rather be the other way; or, at least, that the utility of it was not unquestionable, or it would receive the requisite support. In the next place, the great evil of all free governments is a tendency to over legislation, and the mischief of inconstancy and mutability in the laws forms a great blemish in the character and genius of all free governments.2 The injury, which may possibly arise from the postponement of a salutary law, is far less, than from the passage of a mischievous one, or from a redundant and vacillating legislation.3 In the next place, there is no practical danger, that this power would be much, if any, abused by the president. The superior weight and influence of the legislative body in a free government, and the hazard to the weight and influence of the executive in a trial of strength, afford a satisfactory security, that the power will generally be employed with great caution; and that there will be more often room for a charge of
1 Tuck. Black. Comm. 225, 324; 1 Kent's Comm. Lect. 11, p. 225, 226.
2 The Federalist, No. 73.
350 CONSTITUTION OF THE U. STATES. [BOOK III.
timidity, than of rashness in its exercise.1 It has been already seen, that the British king, with all his sovereign attributes, has rarely interposed this high prerogative, and that more than a century has elapsed since its actual application. If from the offensive nature of the power a royal hereditary executive thus indulges serious scruples in its actual exercise, surely a republican president, chosen for four years, may be presumed to be still more unwilling to exert it.2
§ 884. The truth is, as has been already hinted, that the real danger is, that the executive will use the power too rarely. He will do it only on extraordinary occasions, when a just regard to the public safety, or public interests, or a constitutional obligation, or a necessity of maintaining the appropriate rights and prerogatives of his office compels him to the step;3 and then it will be a solemn appeal to the people themselves from their own representatives. Even within these narrow limits the power is highly valuable; and it will silently operate as a preventive check, by discouraging attempts to overawe, or to control the executive. Indeed, one of the greatest benefits of such a power is, that its influence is felt, not so much in its actual exercise, as in its silent and secret energy as a preventive. It checks the intention to usurp, before it has ripened into an act.
§ 885. It has this additional recommendation, as a qualified negative, that it does not, like an absolute negative, present a categorical and harsh resistance to the legislative will, which is so apt to engender strife, and nourish hostility. It assumes the character of a mere appeal to the legislature itself, and asks a revision
1 The Federalist, No. 73.
CH. XIII.] PRESIDENT'S NEGATIVE. 351
of its own judgment.1 It is in the nature, then, merely of a rehearing, or a reconsideration, and involves nothing to provoke resentment, or rouse pride. A president, who might hesitate to defeat a law by an absolute veto, might feel little scruple to return it for reconsideration upon reasons and arguments suggested on the return. If these were satisfactory to the legislature, he would have the cheering support of a respectable portion of the body in justification of his conduct. If, on the other hand, they should not be satisfactory, the concurrence of two thirds would secure the ultimate passage of the law, without exposing him to undue censure or reproach. Even in such cases his opposition would not be without some benefit. His observations would be calculated to excite public attention and discussion, to lay bare the grounds, and policy, and constitutionality of measures;2 and to create a continued watchfulness, as to the practical effects of the laws thus passed, so as that it might be ascertained by experience, whether his sagacity and judgment were safer, than that of the legislature.3 Nothing but a gross abuse of the power upon frivolous, or party pretences, to secure a petty triumph, or to defeat a wholesome restraint, would bring it into contempt, or odium; and then, it would soon be followed by that remedial justice from the people, in the exercise of the right of election, which, first or last, will be found to follow with reproof, or cheer with applause, the acts of their rulers, when passion and prejudice have removed the temporary bandages, which have blinded their judgment. Looking back upon the history of the government for the last forty years, it will be
1 The Federalist, No. 73.
2 Rawle on Constitution, ch. 6, p. 61, 62.
3 1 Wilson's Lect. 449, 450; The Federalist, No. 73.
352 CONSTITUTION OF THE U. STATES. [BOOK III.
found, that the president's negative has been rarely exerted; and whenever it has been, no instance (it is believed) has occurred, in which the act has been concurred in by two thirds of both houses. If the public opinion has not, in all cases, sustained this exercise of the veto, it may be affirmed, that it has rarely been found that the disapprobation has been violent, or unqualified.
§ 886. The proposition to unite the Supreme Court with the executive in the revision and qualified rejection of laws, failed, as has been seen, in the convention.1 Two reasons seem to have led to this result, and probably were felt by the people also, as of decisive weight. The one was, that the judges, who, are the interpreters of the law, might receive an improper bias from having given a previous opinion in their revisory capacity. The other was, that the judges, by being often associated with the executive, might be induced to embark too far in the political views of that magistrate; and thus a dangerous combination might, by degress, be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from any other avocation, than that of expounding the laws; and it is peculiarly dangerous to place them in a situation to be either corrupted, or influenced by the executive.2 To these may be added another, which may almost be deemed a corollary from them, that it would have a tendency to take from the judges that public confidence in their impartiality, independence, and integrity, which seem indispensable to the due administration of public justice. Whatever has a tendency to create suspicion, or provoke jealousy, is mischievous to the judicial department.
1 Journal of Convention, 195, 253.
2 The Federalist, No. 73.
CH. XIII.] PRESIDENT'S NEGATIVE. 353
Judges should not only be pure, but be believed to be so. The moral influence of their judgments is weakened, if not destroyed, whenever there is a general, even though it be an unfounded distrust, that they are guided by other motives in the discharge of their duties than the law and the testimony. A free people have no security for their liberties, when an appeal to the judicial department becomes either illusory, or questionable.1
§ 887. The other point of inquiry is, as to the extent of the legislative check upon the negative of the executive. It has been seen, that it was originally proposed, that a concurrence of two thirds of each house should be required; that this was subsequently altered to three fourths; and was finally brought back again to the original number.2 One reason against the three fourths seems to have been, that it would afford little security for any effectual exercise of the power. The larger the number required to overrule the executive negative, the more easy it would be for him to exert a silent and secret influence to detach the requisite number in order to carry his object. Another reason was, that even, supposing no such influence to be exerted, still, in a great variety of cases of a political nature, and especially such, as touched local or sectional interests, the pride or the power of states, it would be easy to defeat the most salutary measures, if a combination of a few states
1 It is a remarkable circumstance in the history of Mr. Jefferson's
opinions, that he would decidedly in favour of associating the judiciary
with the executive in the exercise of the negative on law, or of investing
it separately with a similar power.* At a subsequent period his opinion
respecting the value and importance seems to have undergone extraordinary
2 Journal of the Convention, p. 220, 253, 254, 256.
* 2 Jefferson's Corresp. 274; 2 Pitk. 283.
354 CONSTITUTION OF THE U. STATES. [BOOK III.
could produce such a result. And the executive himself might, from his local attachments or sectional feelings, partake of this common bias. In addition to this, the departure from the general rule, of the right of a majority to govern, ought not to be allowed but upon the most urgent occasions; and an expression of opinion by two thirds of both houses in favour of a measure certainly afforded all the just securities, which any wise, or prudent people ought to demand in the ordinary course of legislation; for all laws thus passed night, at any time, be repealed at the mere will of the majority. It was also no small recommendation of the lesser number, that it offered fewer inducements to improper combinations, either of the great states, or the small states, to accomplish particular objects. There could be but one of two rules adopted in all governments, either, that the majority should govern, or the minority should govern. The president might he chosen by a bare majority of electoral votes, and this majority might be by the combination of a few large states, and by a minority of the whole people. Under such circumstances, if a vote of three fourths were required to pass a law, the voice of two thirds of the states and two thirds of the people might be permanently disregarded during a whole administration. The case put may seem strong; but it is not stronger, than the supposition, that two thirds of both houses would be found ready to betray the solid interests of their constituents by the passage of injurious or unconstitutional laws. The provision, therefore, as it stands, affords all reasonable security; and pressed farther, it would endanger the very objects, for which it is introduced into the constitution.
§ 888. But the president might effectually defeat the wholesome restraint, thus intended, upon his qualified
CH. XIII.] PRESIDENT'S NEGATIVE. 355
negative, if he might silently decline to act after a bill was presented to him for approval or rejection. The constitution, therefore, has wisely provided, that "if any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law, in like manner, as if he had signed it."1 But if this clause stood alone, congress might, in like manner, defeat the due exercise of his qualified negative by a termination of the session, which would render it impossible for the president to return the bill. It is therefore added, "unless the congress, by their adjournment, prevent its return, in which case it shall not be a law."
§ 889. The remaining clause merely applies to orders, resolutions, and votes, to which the concurrence of both houses may be necessary; and as to these, with a single exception, the same rule is applied, as is by the preceding clause applied to bills. If this provision had not been made, congress, by adopting the form of an order or resolution, instead of a bill, might hare effectually defeated the president's qualified negative in all the most important portions of legislation.2
§ 890. It has been remarked by De Lolme, that in most of the ancient free states, the share of the people in the business of legislation was to approve or reject the propositions, which were made to them, and to give the final sanction to the laws. The functions of those persons, or in general, those bodies, who were entrusted with the executive power, was to prepare and frame
1 The original proposition in the convention was, that the bill should he
returned by the president in seven days. It was subsequently altered to ten
days by a vote of nine states against two.
2 Journal of Convention, p. 220, 255.
* Journal of Convention, 290, 224, 225.
356 CONSTITUTION OF THE U. STATES. [BOOK III.
the laws, and then to propose them to the people. In a word, they possessed that branch of the legislative power, which may be called the initiative, that is, the prerogative of putting that power into action. In the first times of the Roman republic, this initiative power was constantly exercised by the Roman senate. Laws were made populi jussu, ex authoritate senati; and, even in elections, the candidates were subject to the previous approbation of the senate. In modern times, in the republics of Venice, Berne, and Geneva, the same power is, in fact, exercised by a select assembly, before it can be acted upon by the larger assembly of the citizens, or their representatives.1 He has added, that this power is very useful, and perhaps even necessary, in states of a republican form, for giving a permanence to the laws, as well as for preventing political disorders and struggles for power. At the same time, he is compelled to admit, that this expedient is attended with inconveniences of little less magnitude, than the evils it is meant to remedy.2 The inconveniences are certainly great, but there are evils of a deeper character belonging to such a system. The natural, nay, necessary tendency of it is, ultimately to concentrate all power in the initiative body, and to leave to the approving body but the shadow of authority. It is in fact, though not in form, an oligarchy. And, so far from its being useful in a republic, it is the surest means of sapping all its best institutions, and overthrowing the public liberties, by corrupting the very fountains of legislation. De Lolme praises it as a peculiar excellence of the British monarchy. America, no less, vindicates it, as a fundamental principle in all her republican constitutions.
1 De Lolme, Eng. Const. B. 2, ch. 4, p. 224, and note.
CH. XIII.] PROCEEDINGS OF CONGRESS. 357
§ 891. We have thus passed through all the clauses of the constitution respecting the structure and organization of the legislative department, and the rights, powers, and privileges of the component branches severally, as well as in the aggregate. The natural order of the constitution next leads us to the consideration of the POWERS, which are vested, by the constitution, in the legislative department. Before, however, entering upon this large and important inquiry, it may be useful to state, in a summary manner, the ordinary course of proceedings at each new session of congress, and the mode, in which laws are usually passed, according to the settled usages in congress, under the rules and orders of the two houses. In substance, it does not differ from the manner of conducting the like business in the British parliament.1
§ 892. On the day appointed for the assembling of a new congress, the members of each house meet in their separate apartments. The house of representatives then proceed to the choice of a speaker and clerk, and any one member is authorized then to administer the oath of office to the speaker, who then administers the like oath to the other members, and to the clerk. The like oath is administered by any member of the senate, to the president of the senate, who then administers a like oath to all the members, and the secretary of the senate; and this proceeding, is had, when, and as often as a new president of the senate, or member, or secretary, is chosen.2 As soon as these preliminaries are gone through, and a quorum of each house is present, notice is given thereof to the president, who signifies
1 1 Tuck. Black. Comm. App. 229, note; 1 Black. Comm. 181; Jefferson's
Manual, passim; 2 Wilson's Law Lect. 171 to 176.
2 Act of 1789, ch. 1.
358 CONSTITUTION OF THE U. STATES. [BOOK III.
his intention to address them. This was formerly done by way of speech; but is now done by a written message, transmitted to each house, containing a general exposition of the affairs of the nation, and a recommendation of such measures, as the president may deem fit for the consideration of congress. When the habit was for the president to make a speech, it was in the presence of both houses, and a written answer was prepared by each house, which, when accepted, was presented by a committee. At present, no answer whatsoever is given to the contents of the message. And this change of proceeding has been thought, by many statesmen, to be a change for the worse, since the answer of each house enabled each party in the legislature to express its own views, as to the matters in the speech, and to propose, by way of amendment to the answer, whatever was deemed more correct and more expressive of public sentiment, than was contained in either. The consequence was, that the whole policy and conduct of the administration came under solemn review; and it was animadverted on, or defended, with equal zeal and independence, according to the different views of the speakers in the debate; and the final vote showed the exact state of public opinion on all leading measures. By the present practice of messages, this facile and concentrated opportunity of attack or defence is completely taken away; and the attack or defence of the administration is perpetually renewed at distant intervals, as an incidental topic in all other discussions, to which it often bears very slight, and perhaps no relation. The result is, that a great deal of time is lost in collateral debates, and that the administration is driven to defend itself, in detail, on every leading motion, or measure of the session.1
1 Under President Washington and President John Adams, the prac-
CH. XIII.] PROCEEDINGS OF CONGRESS. 359
§ 893. A bill may be introduced by motion of a member, and leave of the house; or it may be introduced by order of the house, on the report of a committee; or it may be reported by a committee. In cases of a general nature, one day's notice is given of a motion to bring in a bill. The bill, however introduced, is drawn out on paper, with a multitude of blanks or void spaces, where any thing occurs, that is dubious, or necessary to be settled by the house; such, especially, as dates of times, sums of money, amount of penalties, and limitations of numbers. It is then read a first time for information; and if any opposition is made to it, the question is then put, whether it shall be rejected. If no opposition is made, or if the question to reject is negatived, the bill goes to a second reading without a question, and it is accordingly read a second time at some convenient distance of time. Every bill must receive three readings in the house previous to its passage; and these readings are on different days, unless upon a special order of the house to the contrary. Upon the second reading of a bill, the speaker states it, as ready for commitment, or engrossment. If committed, it is committed either to a select, or a standing committee, or to a committee of the whole house. If to the latter, the house determine on what day. If the bill is ordered to be engrossed, (that is, copied out in a fair, large, round hand,) the house then appoint the day, when it shall be read the third time. Most of the important bills are committed to a committee of the whole house; and every motion or proposition for a tax or charge upon the people, and for a variation in the sum
tice was, to deliver speeches. President Jefferson discontinued this
course, and substituted messages; and this practice has been since in
360 CONSTITUTION OF THE U. STATES. [BOOK III.
or quantum of a tax or duty, and for an appropriation of money, is required first to be discussed in a committee of the whole house. The great object of referring any matter to a committee of the whole house is, to allow a greater freedom of discussion, and more times of speaking, than is generally allowed by the rules of the house. It seems, too, that the yeas and nays are not required to be taken upon votes in committee, as they may be in votes in the house.
§ 894. On going into a committee of the whole house, the speaker leaves the chair, and a chairman is appointed by the speaker to preside in committee. Amendments and other proceedings are had in committee much in the same way, as occur in the regular course of the business of the house. Select and standing committees regulate their own times and modes of proceeding according to their own discretion and pleasure, unless otherwise ordered by the house. They make their reports in the same way from lime to time to the house, and secure the directions of the latter. When a bill is committed to a committee, it is read in sections; paragraph after paragraph is debated; blanks are filled up; and alterations and amendments, both in form and substance, are proposed, and often made.
§ 895. After the committee have gone through with the whole bill, they report it, with all the alterations and amendments made in it, to the house. It is then, or at some suitable time afterwards, considered by the latter, and the question separately put upon every alteration, amendment, and clause. After commitment and report to the house, and at any time before its passage, any bill may be recommitted at the pleasure of the house. When a bill, either upon a report of a committee, or after full discussion and amendment in the house,
CH. XIII.] MODE OF PASSING LAWS. 361
stands for the next stage of its progress, the question then is, whether it shall be engrossed and read a third time. And this is the proper time commonly chosen by those, who are fundamentally opposed to it, to make their attack upon it, it now being as perfect, as its friends can shape it, and as little exceptionable, as its enemies have been able to make it. Attempts are, indeed, sometimes made at previous stages to defeat it, but they are usually disjointed efforts; because many persons, who do not expect to be in favour of the bill ultimately, are willing to let it go on to its most perfect state, to take time to examine it for themselves, and to hear what can be said in its favour.
§ 896. The two last stages of the bill, viz. on the questions, whether it shall have a third reading, and whether it shall pass, are the strong points of resistance, and defence. The first is usually the most interesting contest, because the subject is more new and engaging, and the trial of strength has not been made; so that the struggle for victory is yet wholly doubtful, and the ardour of debate is proportionally warm and earnest. If the bill is ordered to be engrossed for a third reading, it is, when engrossed, put upon its final passage. Amendments are sometimes made to it at this stage, though reluctantly; and any new clause, thus added, is called a rider. If the vote is, that the bill shall pass, the title is then settled, though a title is always reported with the bill; and that being agreed to, the day of its passage is noted at the foot of it by the clerk. It is then signed by the speaker, and transmitted to the other house for concurrence therein.
§ 897. The bill, when thus transmitted to the other house, goes through similar forms. It is either rejected, committed, or concurred in, with, or without amend-
362 CONSTITUTION OF THE U. STATES. [BOOK III.
ments. If a bill is amended by the house, to which it transmitted, it is then returned to the other house, in which it originated, for their assent to the amendment. If the amendment is agreed to, the fact is made known to the other house. If not agreed to, the disagreement is in like manner notified. And the like course is adopted, where the amendment is agreed to with an amendment. In either of these cases, the house proposing the amendment may recede from it; or may adopt it with the amendment proposed by the other house. If neither is done, the house then vote to insist on the amendment, or to adhere to it. A vote to insist keeps the question still open. But a vote to adhere requires the other house either to insist, or to recede; for if, on their part, there is a vote to adhere, the bill usually falls without farther effort. But, upon a disagreement between the two houses, a conference by a committee of each is usually asked; and in this manner the matters in controversy are generally adjusted by adopting the course recommended by the committees, or one of them. When a bill has passed both houses, the house last acting on it makes known its passage to the other, and it is delivered to the joint committee of enrolment, who see, that it is truly enrolled in parchment, and being signed by the speaker of the house, and the president of the senate, it is then sent to the president for his signature. If he approves it, he signs it; and it is then deposited among the rolls in the office of the department of state. If he disapproves of it, he returns it to the house, in which it originated, with his objections. Here they are entered at large on the journal, and afterwards the house proceed to a consideration of them.1
1 This summary is abstracted from 1 Black. Comm. 181, 182; 1 Tucker's
Black. Comm. App. 229, 230, note; 1 Kent. Comm. Lect. 11, p. 223, 224;
CH. XIII.] MODE OF PASSING LAWS. 363
§ 898. This review of the forms and modes of proceeding in the passing of laws cannot fail to impress upon every mind the cautious steps, by which legislation is guarded, and the solicitude to conduct business without precipitancy, rashness, or irregularity. Frequent opportunities are afforded to each house to review their own proceedings; to amend their own errors; to correct their own inadvertencies; to recover from the results of any passionate excitement; and to reconsider the votes, to which persuasive eloquence, or party spirit has occasionally misled their judgments. Under such circumstances, if legislation be unwise, or loose, or inaccurate, it belongs to the infirmity of human nature in general, or to that personal carelessness and indifference, which is sometimes the foible of genius, as well as the accompaniment of ignorance and prejudice.
§ 899. The structure and organization of the several branches, composing the legislature, have also (unless my judgment has misled me) been shown by the past review to be admirably adapted to preserve a wholesome and upright exercise of their powers. All the checks, which human ingenuity has been able to devise, (at least, all which, with reference to our habits, institutions, and local interests, seemed practicable, or desirable,) to give perfect operation to the machinery of government; to adjust all its movements; to prevent its eccentricities; and to balance its forces;--all these have been introduced, with singular skill, ingenuity, and wisdom, into the structure of the constitution.
§ 900. Yet, after all, the fabric may fall; for the
2 Wilson's Law Lect. 171, 172, 173; Rawle on Constitution, ch. 6, p. 60,
&c.; and especially from the rules of both houses, and Jefferson's Manual,
(edition at Washington, 1828.)
364 CONSTITUTION OF THE U. STATES. [BOOK III.
work of man is perishable, and must for ever have inherent elements of decay. Nay, it must perish, if there be not that vital spirit in the people, which alone can nourish, sustain, and direct all its movements. It is in vain, that statesmen shall form plans of government, in which the beauty and harmony of a republic shall be embodied in visible order, shall be built up on solid substructions, and adorned by every useful ornament, if the inhabitants suffer the silent power of time to dilapidate its walls, or crumble its massy supporters into dust; if the assaults from without are never resisted, and the rottenness and mining from within are never guarded against. Who can preserve the rights and liberties of the people, when they shall be abandoned by themselves? Who shall keep watch in the temple, when the watchmen sleep at their posts? Who shall call upon the people to redeem their possessions, and revive the republic, when their own hands have deliberately and corruptly surrendered them to the oppressor, and have built the prisons, or dug the graves of their own friends? Aristotle, in ancient times, upon a large survey of the republics of former days, and of the facile manner, in which they had been made the instruments of their own destruction, felt himself compelled to the melancholy reflection, which has been painfully repeated by one of the greatest statesmen of modern times, that a democracy has many striking points of resemblance with a tyranny. "The ethical character," says he, "is the same; both exercise despotism over the better class of citizens; and the decrees are in the one, what ordinances and arrets are in the other. The demagogue, too, and the court favourite are not unfrequently the same identical men, and always bear a close analogy. And these have the principal power, each in their re-
CH. XIII.] MODE OF PASSING LAWS. 365
spective governments, favourites with the absolute monarch, and demagogues with a people, such as I have described."1
§ 901. This dark picture, it is to be hoped, will never be applicable to the republic of America And yet it affords a warning, which, like all the lessons of past experience, we are not permitted to disregard. America, free, happy, and enlightened, as she is, must rest the preservation of her rights and liberties upon the virtue, independence, justice, and sagacity of the people. If either fail, the republic is gone. Its shadow may remain with all the pomp, and circumstance, and trickery of government, but its vital power will have departed. In America, the demagogue may arise, as well as elsewhere. He is the natural, though spurious growth of republics; and like the courtier he may, by his blandishments, delude the ears, and blind the eyes of the people to their own destruction. If ever the day shall arrive, in which the best talents and the best virtues shall be driven from office by intrigue or corruption, by the ostracism of the press, or the still more unrelenting persecution of party, legislation will cease to be national. It will be wise by accident, and bad by system.
1 Burke on the French Revolution, note; Aristotle Polit. B. 4, ch. 4. See
Montesquieu's spirit of Laws, B. 8, passim.