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 to 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 defence, 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-defence.
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
lawmaking, 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 it 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 defence, 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 so 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. (footnote 1.)
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.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 1. Mr. Abraham Yates, a warm opponent of the plan of
the convention, is of this number.
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