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of the English constitution are the separation, on the one hand, of the bodies represented in the government; and on the oth

with a veto on the others. It is solely in this separation of the constituent bodies, and of the several departments of government, each with its veto, that consists the beauty and excellence of the English system; and it is this alone that constitutes the safeguard of English liberty. These divisions, and the veto power attaching to each, are not in themselves, it is true, favorable to the efficiency of administration, nor are they intended to be so; they are intended to serve as checks or restraints on power, to prevent it from becoming despotic, or hostile to the liberty of the subject; and the peculiar merit of this constitutional system is, that they serve this purpose without impairing, in too great a degree, the unity and force of authority.

principle, and incompatible not only with all stable government, but with the very existence of the State [status,] of legal order itself. We must approach every estab-er, of the powers of government itself, each lished constitution with the presumption, as the lawyers say, in its favor, and as bound to accept and sustain it as it is, unless good and sufficient reasons are forthcoming for alteration or amendment. On no other condition can we be distinguished, in principle, from Radicals and Destructives, and consistently profess to be conservatives, and friends of liberty, because friends of order. The presumption is universally in favor of authority-that the constitution, as it is, is right-that the law is just; and before we can have the right even to entertain a proposition to alter it, we must be able to prove beyond a reasonable doubt that it is wrong, that it is unjust. The fact that the veto power exists in the Constitution is to us, therefore, a presumption, at least, that it ought to be there; it is, indeed, a sufficient motive for retaining it, until a valid and sufficient reason is shown for abolishing it. We insist on this view of the case, because we are anxious that the principle we indicate should be well considered. The opposite principle is rapidly gaining ground amongst us, if indeed it has not already become predominant. The fashion is now to presume every man guilty till proved innocent to hold every charge true till it is proved to be false-all government, all law, all authority in the wrong, till the contrary is established. The popular tendency is to arraign government before the bar of anarchy, and compel it to vindicate its own innocence, thus reversing all the maxims of law, of justice, and of logic, hitherto devised and held in respect by the common sense of mankind. It is well, therefore, to remind the public, occasionally, that the presumption is always on the side of the Constitution and of the authorities holding under it.

The value of the veto power is not, however, left to be merely presumed. It is a vital element in our general system of government, which is not so much an original system, as an original and peculiar modification of the English system, well known to be a government of estates, as distinguished from what has received the name of centralism. The characteristic features

This system we inherited with the common law from our English ancestors, and have retained it with simply such modifications as the circumstances of our country and the elements of our society rendered necessary or expedient. In interpreting our institutions, we are always to seek our principle of interpretation in this system, and are never to resort to any of the ancient republican or to any of the modern democratic theories. Our government is republican, in the sense that it is not monarchical; it is democratic in the sense that it recognizes no political aristocracy, and treats all men as equal before the law; but in no other sense is it, or was it ever intended to be, either republican or democratic; save as all governments that are instituted for the public weal, instead of the private benefit of the governors, are republican, whatever their form. The people with us are the motive power, but not the directive or governing power; the government vests in the Constitution rather than in them; for outside of it they have no political existence, and no political authority, except from it, and in and through it. The government, in principle, is the government of law, not the government of mere will, whether of the one, the few, or the many. The Constitution governs the State, or the people in their collective and associated capacity;

the ordinary laws govern the people as individuals.

It is well to bear this fact in mind, especially in these times, when the rage is to abolish law, and introduce, everywhere, governments of mere will. Law is the will of the sovereign regulated by reason, the expression of power united with justice; will without reason is power disjoined from justice, and therefore the essential or the distinctive principle of despotism. Every government which is a government of mere will is despotic, and incompatible with freedom, whether the will be that of the king, of the nobility, or of the democracy; of the minority, or of the majority. Strange as it may seem, there is not the least conceivable difference in principle between Russian autocracy, or oriental despotism, and the pure absolute democracy which is just now the fashion in Italy, in France, in parts of Germany, and, we are sorry to add, in our own country. In each the sovereign authority is absolute, unlimited; and under both the law, or what is to be regarded as law, is the expression of mere arbitrary will. Practically, we should prefer the Russian or oriental despotism to that which our fashionable democrats are laboring to establish here, both in the several States and in the nation, and which the National Assembly have done their best, in the ridiculous constitution they have first promulgated, to fasten upon France; for we would much rather be subject to a single despot, than to a mob of despots. In consequence of mistaking the real character of our government, of overlooking the fact that what its framers most sedulously guarded against was that of making it, or having it to become, a government of mere will, and of seeking to naturalize amongst us a wild and destructive democracy imported from abroad, from the Radicals of Europe, most of whom are born despots, and have not the least imaginable conception either of the nation, or of the constitution of true liberty, our democratic politicians have created, or suffered to be formed in our community, a public opinion which already hinders the regular working of our political system, and threatens, at no distant day, if not soon corrected, its very existence.

The separation of the constituent bod

ies into Kings, Lords and Commons, adopted in England, we have not adopted, and could not have adopted, if we had wished, because there was nothing in our society which rendered it either necessary or practicable. We had no King and no Lords; for, as Mr. Bancroft has well remarked, royalty and nobility did not emigrate. Only the third estate emigrated. Of the three estates represented in the English government, we had only one, the Commons, and, of course, could not represent what we had not. Having but one estate, we necessarily approached nearer to centralism in representation than the English, and their Constitution has an advantage over ours. Nevertheless, in consequence of the division of the country into separate States, we have in some degree been able to escape centralism in the Constitution of the national Senate, and we have also done it to some extent, though not as far as we might and ought to have done, in the several States, by dividing the representives into two chambers, each with a different electoral basis. But in regard to the separation of the powers of government into legislative, executive, and judiciary departments, we have in the general government, and in most of the State governments, conformed to the English model.

This separation of the powers of government into distinct and mutually independent departments, by which we escape the worst form of centralism, is fundamental in our political system, and to change it would destroy the essential character of the system itself, and, by centralizing all the powers of government in one and the same department, would render freedom wholly impracticable. To the maintenance of this separation, and of each department in its independence, the executive veto is indispensable, as every statesman-we say not every politicianmust readily perceive and admit. It was given by the Constitution mainly, though not exclusively, to enable the Executive to maintain its independence in face of legislative encroachments. Without it, there would be no independent, no efficient, and no responsible Executive. All the powers of government would be absorbed by Congress, and the President would cease

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to be the President of the United States, responsible to the public for his acts, and become merely an officer of Congress, with no functions but to execute blindly its mandates. The balance intended between the several powers could not be preserved, and the government would, in principle, and very soon in practice, degenerate into a parliamentary despotism, like that of the Long Parliament in England, that of the Convention in France, and that which the latest French Constitution contemplates, and will secure, if it lasts, without essential alterations.

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ous as it is contemptible; for its resort. is always to low cunning, to corruption. The history of the English Parliament proves to a moral demonstration the tendency of all legislative bodies, and the most serious danger to which the English constitution is now exposed is from the omnipotence of the legislature. The executive lies even now at the mercy of Parliament, and were it not for its patronage and means of influence, by appeals to interest, cupidity, the love of place and emolument, it would have scarcely the shadow of power. Of all despotisms, the legislative is the most intolerable, when the legislature is the tool of an odious oligarchy.

We are as strongly opposed to the one-man power" as any of our contemporaries, and as anxious to guard against every tendency towards monarchy So deeply impressed were the Convenas any body can be; but there is no less tion of 1787 with the tendency of legislato be apprehended from legislative than tive bodies to absorb all the powers of executive encroachment. Perhaps under the State, many of them were for giving our peculiar system the danger of legisla- the Executive even an absolute regulation tive usurpation is even more imminent over all the acts of Congress; and some, than any other, and executive usurpations fearing lest the Executive might want the themselves are chiefly stimulated by them. firmness to interpose its negative as often Against legislative usurpations the people as might be necessary, were for strengthare seldom on their guard; they are always ening and encouraging it, by joining usurpations which receive the support of with it in a council of revision the Suthe majority, and opposition to them is preme Judges themselves. Though it be never raised, except from the minority. well they did not, their proposition to do Experience proves that legislative bodies. so is at least instructive, by showing always seek to absorb in themselves all the how much the Convention distrusted lepowers of government. The failure of the gislative bodies, and how much importance French, during sixty years of experiment- they attached to the veto power, as ening, to establish a free and stable govern- abling the President to maintain his inment has been due to their mad attempts dependence and respectability, and save to concentrate all the powers of govern- himself from becoming the mere tool of ment in the legislature; to their blind Congress, no subsequent experience proves confidence in the wisdom and integrity of them to have judged hastily or unwisely. legislators, and their insane distrust of an We need no argument to prove the imefficient executive. In all their efforts we portance of maintaining the independence see them aiming to make the legislature and respectability of the Executive. If omnipotent, and the executive a nullity. he should cease to be independent, if his Aside from his patronage and means, functions should be reduced from those of through that of exerting an indirect and President of the United States to those of corrupting influence, the present executive a mere executive officer of Congress, he of France has as little power as a Virginia would feel himself relieved of all resgovernor. No government can be stable ponsibility of government; he would take or efficient without a strong and indepen- no oversight of affairs, would make no dent executive. A weak executive, es- efforts to maintain a wise and efficient adpecially in a large State, is a great curse, ministration; but would throw all realike impotent to do good or to prevent sponsibility upon Congress, and either enevil. An administration that wants power joy his ease as a roi faineant, or exert all to protect itself, that trembles every his craft, cunning, and opportunities to moment for its own existence, that has no abuse power to his own purposes. And discretion, no responsibility, is as mischiey-how without the veto power he is to main

tain his independence, and Congress to be prevented from assuming to itself both the legislative and the executive or administrative powers of government, is more than we are able to comprehend.

But the executive veto is necessary, not only to prevent the centralization of the powers of government, and to preserve the independence and respectability of the executive department, but also as a check on hasty and unjust legislation. There is, perhaps, far more need of such a check than the mass of our people now-a-days suspect; at least, the framers of the Constitution believed it to be highly necessary. They were, in the modern sense, no democrats, and had not the slightest tendency to radicalism. They were practical statesmen, who sought not to carry out a theory, but to establish a wise, strong, and durable government, which in its practical operations should secure the blessings of union, liberty, and internal peace-maintain justice, and promote the common weal. They held in horror all absolute governments, whether royal, noble, or popular; and, aware that power, in whatever hands it is lodged, may be abused, if there is an opportunity to abuse it, they sought to guard against the tyranny of the sovereign, at the same time that they secured the obedience of the subject. They had not learned to reject all the lessons of experience, and were far from accepting the doctrine of the impeccability of man, or of the divinity of the people. They believed that the people could err and do wrong, as well as kings and nobles, in their collective as well as in their individual capacity, and that tyranny and oppression are tyranny and oppression when proceeding from a popular, no less than when proceeding from a royal or noble source. They believed, strange as it may sound to the unfledged politicians of the day, that majorities can err and oppress, as well as minorities, and that although the rule that the majority must govern is adopted, it is necessary to subject the majority to such restraints, that to be able to govern at all, it must govern justly. Here we may see their practical wisdom. They did not seek merely to enable the majority to govern, or to organize the government so that no will but the will of the majority should ever prevail, but they went further, and

sought to establish limits to that will itself.

A government in which the will of the majority is unlimited, in which it can always prevail, is just as much an absolute government, and just as despotic in principle, as the most absolute monarchy that ever existed. There is under it no guaranty of the liberty of the subject in the face of power-the essential element in all free governments. Modern democrats are aware of this, and seek to blunt the force of the objection by assuming that the will of the majority is the will of the people, and that the people are always just, and never will abuse their power. But we might as well say that the absolute monarch is always just, and will never abuse his power. If it comes to deifying, we may as well deify the king as the people. Experience no more proves that the people can do no wrong, than it does that the king can do no wrong. There is never any guaranty for liberty, where there is nothing that limits or restrains the exercise of arbitrary will, or sets bounds to the sovereign power; and even if the people were not themselves capable of abusing their power, we know perfectly well that demagogues can usurp and abuse it for them. The Convention properly understood this, and throughout, they were as anxious to provide for a limitation of authority as they were to provide for the supremacy of the law itself; for governing, (if we may so speak,) the government, as for governing the subject. The majority, indeed, must govern, directly or indirectly; but it must govern only under certain conditions, according to certain rules, and within certain bounds.

But the convention did not consider it enough to mark these bounds, and to prescribe those rules and conditions on paper. "Experience," said Mr. Madison, "has taught us a distrust of that security, and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper."* per constitutions are mere cobwebs, unless the organization of powers under them is such as to render it impossible for any power to violate them. Power will be sure to violate them, if able, whenever it

Madison Papers, p. 1167.

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a negative—at least a qualified or conditional negative-on both. The negative of the judiciary answers its purpose as far as it goes; but it is insufficient, because the judiciary cannot take cognizance of the

negative only on the ground that the measure is unconstitutional. The system of checks would, therefore, have been incomplete, without the executive veto, which can negative an act not only for its unconstitutionality, but also for its impolicy.

has a sufficient motive to do so. If power is lodged in the majority, impose on it what paper restraints you please, you are no better off than if you had no constitution at all, unless you have somewhere in the state a force that guaranties them-policy of a measure, and can interpose its that rises up and effectually resists the attempted violation. The Convention, therefore, which drafted the Constitution on parchment, took care to establish it in the effectual organization of the several powers of government. The separation of the powers of government into distinct departments, each provided with means of self-defense, the separation of the legislature into two houses, the peculiar constitution of the Senate, the senatorial term for the long period of six years, and the necessity of the concurrent vote of both houses to an act of Congress, were all designed to operate as so many checks on the will of the majority, and to prevent, by restraining its action, hasty and unjust legislation. It was not enough to write on paper that Congress shall pass no laws hastily, or without a due regard to justice; it was necessary to go farther, and to subject the enacting of laws to such conditions, to so many forms and processes, that it would be difficult, if not impossible, to get a law hastily enacted, or enacted at all, if contrary to justice.

The executive veto is integral in the system of checks on the will of the majority, of restraints imposed on the exercise of sovereign power, which the Convention saw proper to establish. The Convention installed the majority as sovereign, but as a limited, not as an absolute sovereign; and the executive veto is an integral part of the limitation which they imposed. They wished to make legislation not easy, but difficult; and were far more anxious that the laws should be wise and just, than that they should be numerous. Their study was to subject every measure to the most rigid scrutiny, and to render it impossible for any measure to become a law till after it had been thoroughly sifted, and had received the approbation of the best minds and the highest wisdom of the country. To this end they required for the enactment of a law the concurrence of all the branches of the government. They gave to each house a negative on the other, and to the executive and judiciary departments each

That the system of checks established is too effectual, that it has rendered legislation too difficult, no statesman can pretend. Our danger lies, as experience amply proves, in too much legislation—not in too little. The tendency to over-legislate is quite too strong, and we make quite too little of wise and efficient administration. Nothing more distinguishes modern times from antiquity, than our excessive legislation, and our tendency to make legislating, instead of administrating, the chief business of government. The facility with which old laws are repealed or modified, and new statutes are enacted, and not in our country only, is really frightful; and what the end thereof will be, men of stronger nerves than we may well tremble to think. The utmost contempt for law, and the wildest disorder would prevail even now, if it did not happen that our courts preserve the common law, the lex non scripta, which, happily for us, serves as a public conscience, and regulates the greater part of the relations between man and man. If the party among us opposed to the common law should succeed in abolishing it, and in reducing the entire law of the land to the lex scripta, or statute law, we should find ourselves as ill off as if we had no law at all. No man could tell for six months what the law would be. We scarcely, in the State or the nation, enact a law before we modify or repeal it, especially if it is a law likely to prove of some utility in its practical operation. We have no settled policy; we are disputing about the simplest elements of both civil and criminal law, and multiply statutes by steam; a procedure which would throw everything into confusion, if the courts did not now and then go the full length of their prerogative in inter

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