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THE VETO POWER: OUR INLAND TRADE. THE Veto of President Polk on the bill making appropriations for rivers and harbors, has renewed the discussion as to the proper extent of the qualified negative upon the proceedings of Congress, granted to the President by the Constitution, and sharpened the interest and desire of the people, that this power, which modern experience has proved to be of such elastic construction, should be more rigidly defined, and abstemiously exercised. The peculiar circumstances under which the President thought it advisable to return the River and Harbor bill, with his objections, have added poignancy to the regret and to the indignation which that act has occasioned, and we cannot, therefore, better appropriate some space in this number of the Review, than to the exposition of what we deem the true limits, in such cases, of the Executive Veto, and the extravagant disregard and overstepping of those limits by Mr. Polk.

To all who have studied the origin of the Constitution, and who are familiar with the discussions, which, in the General Convention, in the Conventions of the several States, and in the public press, preceded, and ultimately secured, its formation-it is well known that an Executive negative upon the acts of the Legislature was vehemently resisted, and it was only in the qualified shape in which it now exists, that it could find

favor at all. It was most especially resisted by those who, even at that early day, claimed to be the special friends of the people, and sticklers for their rights -as of monarchical origin, and as proceeding on the assumption that one man would possess more virtue and wisdom than a number of men collected in Legislative bodies. Dr. Franklin, Mr. Madison, Mr. Mason, of Virginia, and Mr. Bedford, of Delaware, were among the members of the Convention that framed the Constitution, who opposed an unqualified Executive veto-not all indeed for the same nor for analagous reasonsbut Mr. Mason put his opposition expressly on the ground that such a provision did not accord with the genius of the people." The limited or qualified veto was finally adopted with a view mainly to enable the Executive to defend himself against the encroachments of the Legislature. This was avowedly the primary inducement to the grant of this power-that of protecting the country against the chance of bad laws, passed through inadvertence or design, being secondary, and quite subordinate; the presumption naturally being, that the Legislature would not designedly, and were not likely through haste or inadvertence, to pass such laws. But it was nowhere intimated, nor in the primitive and purer days of the republic would it have been tolerated, that on a plea of Expe

diency the Executive might put his negative on any bill passed by Congress.

That the chief motive for investing the President with a qualified negative upon the acts of Congress, was purely with a view to self-defence, is thus explicitly set forth in No. lxxiii. of the Federalist, from the pen of Alexander Hamilton:

"The propensity of the Legislative Department to intrude upon the rights, and to absorb the powers, of other departments, has been already more than once suggested; the insufficiency of a mere parliamentary delineation of 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 authority by successive resolutions, or annihilated by a single vote; and in the one mode or the other, the executive and legislative power 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 at the inercy of the other, but ought to possess a constitutional and effective power of self-defence."

Nothing can be more explicit than this language-nothing more clear than that this exceptional power was granted to the President, under our system, mainly from an apprehension, that in its practical working, the Executive would prove feebler than the Legislative Department, and therefore be subject to injurious encroachments from the latter.

The men who framed the Constitution were pure as they were wise. They were of the race which, through every sort of self-sacrifice and abnegation, had carried the country through the perilous war of the revolution-and who, having founded a free government, were now met to devise a system which should maintain it free, and render it efficient and powerful. But their very purity misled them. They reasoned and acted, as though the men of other days, for whom they were about to prepare the organic law, would be-like themselves pure, patriotic, and self-denying. They little dreamed of the impurities, or of the fruits of "progressive democracy;" and, wise and foreseeing as they were, they did not realize the prodigious growth in

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power and multiplication in number and in territories, of the people, whose lawgivers it was their privilege to be. In their view the executive power, as defined and designed by the Constitution, was, as compared with the legislative power, weak and liable to encroachments. As developed by the "genius of democracy," and sustained by the undreamed of increase of patronage, it has become overshadowingly great, and now gives the law alike to the Legislation of Congress, and the sovereignty of the sepa rate States. The President of the United States, with his enormous appointing power, reaching through every part of the country, and holding out prizes to every sort of ambition or cupidity, with the unrestricted power of peremptory removal from office, and with his qualified veto on the acts of Congress, possesses and exercises more despotic authority than the monarch who occupies the throne of England or of France.

The chief consideration, therefore, upon which the original grant of a qualified negative to the President of the United States was made-that of his comparative helplessness-fails entirely. His authority, on the contrary, like Joseph's sheaf, has erected itself in the midst of all the other powers of the Constitution, and these all bow down and make obeisance to it. Practically, therefore, this provision of the Constitution is proved to be unsound.

But the same eminent expounder of the Constitution, to whom we have already referred for explanation of the chief motives for engrafting upon a republican Executive this kingly prerogative, thus goes on to explain the secondary use of the conceded power:

"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 legis nity against the effects of faction, precipilative body, calculated to guard the commutancy, or of any impulses uufriendly to the public good, which may happen to influence a majority of that body."

Let our readers attentively consider the cases to which Hamilton, himself one of the framers of the Constitution, and who had supported the propriety of this very prerogative, restricts its exercise," faction, precipitancy, or impulses unfriendly to the public good," and then contrast therewith, the pretensions and the sophistry of Mr. Polk's message on returning the Harbor bill.

This enumeration by a contemporaneous expositor, of the cases to which the secondary use of the veto power-the primary use being solely that of self-defence was intended to be confined, is entirely at variance with those assumed in almost all the Executive messages assigning reasons for the exercise of the power. It excludes, among others, the ground of unconstitutionality-and wisely, for the President is not by the Constitution empowered to decide upon the constitutionality of any act of Congress. As sworn to support and uphold the Constitution, he may not indeed put his signature to any bill, plainly and palpably in violation of the Constitution-if be admissible even in the way of argument to assume, that Congress could pass any such but constructive violations he has no right or authority to judge of. When both Houses of Congress pass a bill, which, by the very fact of passing it, they consider constitutional; unless, upon the face of it, it should clearly, obviously, and indisputably, contravene the Constitution-as, for instance, if a bill should be passed, divesting the Executive of the right to appoint foreign ambassadors, or of any other power which the Constitution expressly gives to him-the President is bound to assume that it is constitutionally passed, and may not set up any scruples or abstractions of his own against the declared sense and interpretation of the Legislature. He is not the arbiter, whether bills are or are not constitutional; that high and responsible trust is specially devolved upon another department-the judiciary-which, by its nature, constitution, and duties being removed from the disturbing influences of political parties, can pass with more unsuspected impartialityand greater fitness, upon questions, connected as those which relate to the imputed unconstitutionality of public measures-too often are with party politics. Having thus provided a tribunal by which the conformity of all laws to the standard of the Constitution could and should be tested, it would have been alike unnecessary and unwise for the framers of the Constitution to confer a like power upon the President. The public good being the only legitimate end for which power is conferred, the necessity of the grant for such a purpose is the first point to be decided. As the Supreme Court of the United States is expressly constituted for the purpose,

among others, of determining the constitutionality of the laws of Congress, there was no necessity for reposing a like power elsewhere, and therefore, the only ground upon which the President could be considered as authorized to exercise it-that of its necessity for the public good-being taken away, the assumption of such power by the Executive is without foundation.

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But if the President may not rightfully interpose constitutional scruples against bills-not manifestly unconstitutionalstill less may he who has no charge of the money power or resources of the nation-except as derived from the acts of the Legislature-assume to set up his views of economical or extravagant expenditure in lieu of the decision of Congress. The whole duty and charge of raising revenue, laying and collecting taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and welfare of the United States, to borrow money on the credit of the United States, and to regulate commerce with foreign nations, and among the several States," belong exclusively to Congress, and it is necessarily a usurpation on the part of the Executive, whenever he attempts to interfere with, much more to thwart, the exercise of any of these conceded powers of Congress. When, therefore, Mr. Polk, in his veto message on the Harbor bill, alleges the fact of an existing war, and of its large demands on the Treasury, as a reason against the appropriation of nearly two millions of dollars by that bill, and when he proceeds to say, that if the bill in question become a law, "the principle it establishes would lead to large and annually increasing appropriations, and drains upon the Treasury," and to "increased burdens upon the people by taxation," he travels entirely beyond the record, and impertinently assumes the discharge of functions expressly confided to Congress. To them, and not to the President, it belongs, to decide to what objects within the scope of their authority the public treasure shall be applied; and it is alike inconsistent with the theory of popular institutions, which jealously precludes the executive authority from any management of, or control over, the public Treasury-placed exclusively under the guardianship of the people's representatives and with that of a strict construction of the Constitution, which limits each department to the

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clearly defined circle of his own duties, that the President of the United States, under any circumstance, other than by the way of advice or recommendation, in his messages to Congress, or when there is manifest" precipitancy, faction, or impulses unfriendly to the public good," in the action of Congress, should undertake to say what Congress shall appropriate and what it shall not-how much for one object or how little for anotherand assume to interpose his veto upon their proceedings, unless the same should be in conformity with Executive wishes or prejudices.

Looking at the qualified negative of the President in the light we here present it-a light reflected from the pages of the framers and contemporaneous expounders of the Constitution-we cannot but regard the veto of Mr. Polk, upon which we are commenting, as absolute usurpation, entirely inconsistent with the theory of the power purported to be exercised, and with all well-regulated notions of the rights and duties of the respective departments of our government.

But even if there were not these fundamental objections to the veto, as now habitually exercised, the attempt by argument to justify that on the Harbor bill seems most lame and inconclusive. Even precedent-that lowest of authorities in real value, though often of vast practical weight is against Mr. Polk, for like appropriations to those objected to by him, have been approved of by all, or nearly all his predecessors, and when he assumes as in the following passage, extracted from his message, is done-that "the approved course of the government and the deliberately expressed judgment of the people," have denied the existence of a power under the Constitution, "to construct works of internal improvement within the States, or to appropriate money for the purpose;" he asserts that which is far from proven or admitted, and which facts decidedly contradict.

Mr. Polk holds this language:

"The Constitution has not, in my judgment, conferred upon the federal government the power to construct works of internal improvement within the States, or to appropriate money from the treasury for that purpose. That this bill assumes for the federal government the right to exercise this power, cannot, I think, be doubted. The approved course of the government, and the deliberately expressed judgment of

the people, have denied the existence of such a power under the Constitution. Several of my predecessors have denied its existence in the most solemn forms.

"The general proposition that the federal government does not possess this power is so well settled, and has for a considerable period been so generally acquiesced in, that it is not deemed necessary to reiterate the arguments by which it is sustained."

Certainly it does seem anything but respectful to Congress as it is in palpable violation of the truth-that in a message refusing the Executive signature to a bill, claiming to exercise the power of appropriating money for internal improvements within the States it should in such explicit language be declared, that "the general proposition that the federal government does not possess this power, is so well settled, and has for a considerable period, been so generally acquiesced in." The very bill before the President when he wrote that sentence, is proof positive of its fallacy; and as a matter of fact, it is not doubted, that if the votes of the two Houses on the bill in question, were analyzed, it would appear that a very large numerical majority of the constituencies in the United Statesso far from acquiescing in absurd and mischievous abstractions, which deny to the people the right of using their own money on great public objects, and for the clear and obvious promotion of the general welfare-are decidedly in favor of the power here denied to them by Mr. Polk. But the vote itself of the two Houses on the Harbor bill, is conclusive on this point. For this bill did, undoubtedly, propose to exercise the power in question, and it was originally passed in the House of Representatives by a vote of one hundred and nine to eighty-nine, and in the Senate by thirty-four to sixteen. When returned with the President's ob jections, it still received in the House of Representatives ninety-five ayes, to ninety-one nays, and in the Senate

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It follows from this statement, that almost two-thirds of the two Houses denied, by their first vote on the bill, the construction of the Constitution, which, nevertheless, Mr. Polk says, is in conformity with "the deliberately expressed judgment of the people;" and

even after the bill was returned with objections, and appeal was made to party discipline and personal hopes to coerce members of Congress to see on the question with Presidential eyes, a majority of

each House re-affirmed its original view of the constitutionality and expediency of the bill, and gave the most direct contradiction to the assumption in the President's objection, of the universal acquiescence in such doctrines as that passage propounds. Nor is this a solitary instance; for at almost every session of Congress attempts are made and are almost always successful in one House or the other-to

obtain appropriations for objects falling within what Mr. Polk assumes to be an inhibited exercise of power; thus proving most conclusively that the general acquiescence, of which he speaks, in the views he entertains, is the merest fiction.

But Mr. Polk, in the message before us, takes the ground, that not only is it in violation of the Constitution to attempt to make internal improvements within the limits of any State, but that it is a like violation to make appropriations for such a purpose. This, however, goes far beyond the scruples either of Jackson or Madison, both of whom distinctly conceded the right to appropriate money for public improvements, although they denied to the Federal government, the right of directly making such improvements. Appropriations for the Cumberland road have been made under every administration, and with the approbation of every President, down to John Tyler; and Mr. Madison, in vetoing a bill "setting apart and pledging certain funds for constructing roads and canals, and improving the navigation of our watercourses, in order to promote, facilitate, and give security to internal commerce among the several States, and to render more easy and less expensive, the means and provisions for the common defence," makes this express and significant reservation about the power of appropriating money from the Treasury, that "a restriction of the power to provide for the common defence and general welfare, to cases which are to be provided for by an expenditure of money, would still leave within the legislative power of Congress all the great and most important measures of government, money being the ordinary and necessary means of carry. ing them into execution." General Jack son, in his veto on the Maysville Road bill, accepts this interpretation, and says: "I have not been able to consider these declarations in any other point of view, than as a concession that the right of appropriation is not limited by the power

to carry into effect the measure for which the money is asked, as was formerly contended."

Mr. Monroe and Mr. J. Q. Adams held like opinions, and practiced upon them. The same document (the Maysville veto message), from which the above quotation is taken, has these additional statements:

"The views of Mr. Monroe upon this subject were not left to inference. During his administration a bill was passed through both Houses of Congress, conferring the jurisdiction, and prescribing the mode by which the federal government should exercise it, in the case of the Cumberland road, He returned it with objections to its passage, and in assigning them took occasion to say, that in the early stages of the gov tion, that it had no right to expend money, ernment he had inclined to the construcexcept in the performance of acts authorized by the other specific grants of power, according to a strict construction of them, but that on further reflection and observation, his mind had undergone a change; that his opinion then was, that 'Congress have unlimited power to raise money, and that in its appropriation they have a discretionary power, restricted only by the duty to appropriate it to purposes of common defence, and of general not local, national not state benefit,' and this was avowed to be the governing principle through the residue of his administration. The views of the last administration are of such recent date as to render a particular reference to them unnecessary. It is well known that the appropriating power, to the utmost extent which had been claimed for it, in relation to internal improvements, was fully recognized and exercised by it."

From these extracts it will plainly appear that precedent and authority, not less than common sense and the common good, contradict Mr. Polk's absurd theories and positive assumptions.

But there is another point of view in which Mr. Polk's course in relation to the Harbor bill is even less defensible than his misconstruction of the powers of Congress under the Constitution. He had himself or through the members of his Cabinet--suggested some of the appropriations, which he afterwards vetoed-and, if faith is to be reposed in the express declarations of some of his own partisans and political friends on the floor of Congress, was consulted beforehand about the separate items contained in the appropriation bill-so as to secure it against the possibility of the President's refusal to sign it.

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