of eight States against two.1 This being settled, the question as to the number was at first unanimously carried in the affirmative in favor 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 twothirds, without any apparent struggle. 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.

§ 882. 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, namely, 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 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 connection 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. And the patronage of the executive has also some tendency to create a counteracting influence in aid of its 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

1 Journal of the Convention, 97.

2 Journal of the Convention, 195, 253, 254, 355.

3 Journal of the Convention, 69, 96, 195, 253.

The Federalist, No. 51.

prerogative, to guard against the usurpations of the legislative authority. Yet in point of fact this negative of the king has not been once exercised since the year 1692,2 (a) 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. Probably both motives have alternately prevailed in regard to bills which were disagreeable to the crown; 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 favorite 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

1 1 Black. Comm. 154.

2 De Lolme on Constitution, ch. 17, pp. 390, 391; 1 Kent's Comm. Lect. 11, p. 226.

8 1 Wilson's Law Lect. 448, 449; The Federalist, No. 73; Id. No. 69 1 Kent's Comm. Lect. 11, p. 226. Mr. Burke, in his letter to the sheriffs of Bristol (in 1777), 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 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 reposo 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." (b)

1 Tuck. Black. Comm. App. 255, 256; (a) It was once exercised by Queen Anne in 1707. C.

(b) It may be accounted for perhaps in another way. By the theory of the British constitution, as now settled, the ministry under whose advice the king acts must be in accord with the majority in the House of Commons, and possess its confidence; and whenever its votes demonstrate that they have lost that confidence,

1 Kent's Comm. Lect. 11, p. 226.

they must either resign or be dismissed, or they must advise a dissolution of the Parliament with a view to an appeal to the people. To attempt to retain power against adverse votes in the Commons would of itself be regarded as unconstitutional; still more must it be so to attempt to control that majority through the royal veto. See Todd, Parl. Gov. I. 40; Cooley's Blackstone, I. 246, note.

compels the crown to bear the exclusive odium of a rejection.1 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.

§ 883. 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 reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a labored 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. 2

§ 884. 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. 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, it might gradually be stripped of all its authority, and become, what it is well known the governors of some States are, a mere pageant and shadow of magistracy.

1 See the reasoning in The Federalist, No. 73; Id. No. 51; 1 Wilson's Law Lect. 448, 449.

21 Kent's Comm. Lect. 11, pp. 226, 227.

• 1 Kent's Comm. Lect. 11, pp. 225, 226; The Federalist, No. 73; Id. No. 51.

4 The Federalist, Nos. 51, 73; 1 Tuck. Black. Comm. App. 225, 329; 1 Wilson's

Law Lect. 448, 449; 1 Kent's Comm. Lect. 11, pp. 225, 226.

§ 885. 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, unconsitutional legislation, and temporary excitements, as well as political hostility. 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 magistracy 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 scctional, 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 favor 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. His view of them, if not more wise or more elevated, will at least be 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.

§ 886. Nor is there any solid objection to this qualified power.3 If it should be objected that it may sometimes provent 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 favor of the law, and if they are not it is not so easily demonstrable that

1 The Federalist, No. 73; 1 Wilson's Law Lect. 448, 449, 450.

2 The Federalist, No. 73.

81 Tuck. Black. Comm. 225, 324; 1 Kent's Comm. Lect. 11, pp. 225, 226.

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. 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.2 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 timidity than of rashness in its exercise. 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 clapsed 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. 4

§ 887. The truth is, as has been already hinted, that the real danger is that the exccutive 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; 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 preventivo 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.