The Online Library of Liberty

A project of Liberty Fund, Inc.

• Debates In the Convention of the State of North Carolina, On the Adoption of the Federal Constitution.
• Debates In the Legislature and In Convention of the State of South Carolina, On the Adoption of the Federal Constitution.
• Delegates to the Congress of 1765.
• Opinions, Selected From Debates In Congress, From 1789 to 1836, Involving Constitutional Principles.
• Virginia Resolutions of 1798, Pronouncing the Alien and Sedition Laws to Be Unconstitutional, and Defining the Rights of the States.
• Answers of the Several State Legislatures.
• Kentucky Resolutions of 1798 and 1799. [the Original Draft Prepared By Thomas Jefferson.]
• Madison’s Report On the Virginia Resolutions.
• President Jackson’s Proclamation, of the 10th December, 1833, Concerning the Ordinance of South Carolina. On the Subject of the Tariff, On the 24th November, 1832.
• Madison On the Tariff.
• Ideas of Mr. Jefferson On Banks; Referred to By Mr. Madison In the Preceding Letter.
• Letter of Mr. Madison to Mr. Stevenson, Dated 27th November, 1830, Examining the Origin and Progress of the Clause of the Constitution “ to Pay the Debts, and Provide For the Common Defence, &c.”
• Hamilton’s Argument On the Constitutionality of a Bank of the United States.
• A Short History of the Veto. *
• Digest of Decisions In the Courts of the Union, Involving Constitutional Principles.

A SHORT HISTORY OF THE VETO.*

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 under the proprietary government of Penn: —

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 fact. 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 the 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: —

The article embracing this feature, in the draft of Mr. Pinckney, reads thus: —

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 had.”

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: —

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 to a 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 report 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 of the 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: —

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: —

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 the 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.” (This bill was afterwards revived, with alterations and modifications; and, thus amended, finally passed, and received the President’s signature.)

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.

[* ]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 he 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 the 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; and such was the force of the word, that not only could it stop the proceedings of all the magistrates, which Cæsar 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 be 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 councils 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, and 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 way wardness 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 to 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.