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principle, and incompatible not only with of the English constitution are the separaall stable government, but with the very tion, on the one hand, of the bodies repreexistence of the State [status,] of legal or- sented in the government; and on the othder itself. We must approach every estab- er, of the powers of government itself, each lished constitution with the presumption, as with a veto on the others. It is solely in the lawyers say, in its favor, and as bound to this separation of the constituent bodies, accept and sustain it as it is, unless good and of the several departments of govand suficient reasons are forthcoming for ernment, each with its veto, that consists alteration or amendment. On no other con- the beauty and excellence of the English dition can we be distinguished, in princi- system; and it is this alone that constiple, from Radicals and Destructives, and tutes the safeguard of English liberty. consistently profess to be conservatives, These divisions, and the veto power attachand friends of liberty, because friends of ing to each, are not in themselves, it is true, order. The presumption is universally in favorable to the efficiency of administration, favor of authority—that the constitution, nor are they intended to be so; they are as it is, is right—that the law is just; and intended to serve as checks or restraints before we can have the right even to en- on power, to prevent it from becoming tertain a proposition to alter it, we must despotic, or hostile to the liberty of the be able to prove beyond a reasonable subject; and the peculiar merit of this condoubt that it is wrong, that it is unjust. stitutional system is, that they serve this The fact that the veto power exists in the purpose without impairing, in too great Constitution is to us, therefore, a presump- a degree, the unity and force of authotion, at least, that it ought to be there; rity. it is, indeed, a sufficient motive for re- This system we inherited with the comtaining it, until a valid and sufficient mon law from our English ancestors, and reason is shown for abolishing it. We in- have retained it with simply such modifisist on this view of the case, because we cations as the circumstances of our counare anxious that the principle we indicate try and the elements of our society renshould be well considered. The oppo- dered necessary or expedient. In intersite principle is rapidly gaining ground preting our institutions, we are always to amongst us, if indeed it has not already seek our principle of interpretation in this become predominant. The fashion is now system, and are never to resort to any of to presume every man guilty till proved the ancient republican or to any of the innocent—to hold every charge true till it modern democratic theories.
Our governo is proved to be false—all government, all ment is republican, in the sense that it is law, all authority in the wrong, till the not monarchical; it is democratic in the contrary is established. The popular ten- sense that it recognizes no political arisdency is to arraign government before the tocracy, and treats all men as equal before bar of anarchy, and compel it to vindicate the law; but in no other sense is it, or its own innocence, thus reversing all the was it ever intended to be, either repubmaxims of law, of justice, and of logic, lican or democratic ; save as all governhitherto devised and held in respect by the ments that are instituted for the public
sense of mankind. It is well, weal, instead of the private benefit of the therefore, to remind the public, occasion- governors, are republican, whatever their ally, that the presumption is always on form. The people with us are the motive the side of the Constitution and of the au- power, but not the directive or governthorities holding under it.
ing power; the government vests in the The value of the veto power is not, how- Constitution rather than in them; for outever, lest to be merely presumed. It is a side of it they have no political existence, vital element in our general system of gov- and no political authority, except from it, ernment, which is not so much an original and in and through it. The government, system, as an original and peculiar moditi. in principle, is the government of law, not cation of the English system, well known the government of mere will, whether of to be a government of estates, as distin- the one, the few, or the many. The Conguished from what has received the name stitution governs the State, or the people of centralism. The characteristic features in their collective and associated capacity;
the ordinary laws govern the people as | ies into Kings, Lords and Commons, individuals.
adopted in England, we have not adoptIt is well to bear this fact in mind, es- ed, and could not have adopted, if we pecially in these times, when the rage is to had wished, because there was nothing abolish law, and introduce, everywhere, in our society which rendered it either governments of mere will. Law is the necessary or practicable. We had no will of the sovereign regulated by reason, King and no Lords; for, as Mr. Bancroft the expression of power united with jus- has well remarked, royalty and nobility tice; will without reason is power dis- did not emigrate. Only the third estate joined from justice, and therefore the es- emigrated. Of the three estates representsential or the distinctive principle of des- ed in the English government, we had potism. Every government which is a only one, the Commons, and, of course, government of mere will is despotic, and could not represent what we had not. incompatible with freedom, whether the Having but one estate, we necessarily apwill be that of the king, of the nobility, or proached nearer to centralism in repof the democracy; of the minority, or of resentation than the English, and their the majority. Strange as it may seem,
Constitution has an advantage over ours. there is not the least conceivable differ- Nevertheless, in consequence of the dience in principle between Russian autocra- vision of the country into separate States, cy, or oriental despotism, and the pure we have in some degree been able to absolute democracy which is just now the escape centralism in the Constitntion of fashion in Italy, in France, in parts of
the national Senate, and we have also Germany, and, we are sorry to add, in our done it to some extent, though not as far own country. In each the sovereign au- as we might and ought to have done, in thority is absolute, unlimited; and under the several States, by dividing the reboth the law, or what is to be regarded as presentives into two chambers, each with law, is the expression of mere arbitrary will. a different electoral basis. But in regard Practically, we should prefer the Russian to the separation of the powers of govor oriental despotism to that which our ernment into legislative, executive, and fashionable democrats are laboring to es judiciary departments, we have in the tablish here, both in the several States and general government, and in most of the in the nation, and which the National As- State governments, conformed to the Eng. sembly have done their best, in the ridicu- lish model. lous constitution they have first promul- This separation of the powers of govgated, to fasten upon France ; for we ernment into distinct and mutually inwould much rather be subject to a single dependent departments, by which we despot, than to a mob of despots. In con- escape the worst form of centralism, is sequence of mistaking the real character fundamental in our political system, and of our government, of overlooking the fact to change it would destroy the essential that what its framers most sedulously character of the system itself
, and, by guarded against was that of making it, or centralizing all the powers of government having it to become, a government of mere in one and the same department, would will, and of seeking to naturalize amongst render freedom wholly impracticable. To us a wild and destructive democracy im- the maintenance of this separation, and of ported from abroad, from the Radicals of each department in its independence, the Europe, most of whom are born despots, executive veto is indispensable, as every and have not the least imaginable concep- statesman—we say not every politiciantion either of the nation, or of the constitu- must readily perceive and admit. It was tion of true liberty, our democratic politi- given by the Constitution mainly, though cians have created, or suffered to be formed not exclusively, to enable the Executive to in our community, a public opinion which maintain its independence in face of legislaalready hinders the regular working of our tive encroachments. Without it, there political system, and threatens, at no dis- would be no independent, no efficient, and tant day, if not soon corrected, its very no responsible Executive. All the powers existence.
of government would be 'absorbed by The separation of the constituent bod Congress, and the President would cease
to be the President of the United States, ous as it is contemptible ; for its resort responsible to the public for his acts, and is always to low cunning, to corrupbecome merely an officer of Congress, with tion. The history of the English Parliano functions but to execute blindly its ment proves to a moral demonstration the mandates. The balance intended between tendency of all legislative bodies, and the the several powers could not be preserv- most serious danger to which the English ed, and the government would, in prin- constitution is now exposed is from the ciple, and very soon in practice, degenerate omnipotence of the legislature. The exinto a parliamentary despotism, like that ecutive lies even now at the mercy of Parof the Long Parliament in England, that liament, and were it not for its patronage of the Convention in France, and that and means of influence, by appeals to inwhich the latest French Constitution con- terest, cupidity, the love of place and templates, and will secure, if it lasts, emolument, it would have scarcely the without essential alterations.
shadow of power. Of all despotisms, the We are as strongly opposed to the legislative is the most intolerable, when one-man power” as any of our con- the legislature is the tool of an odious temporaries, and as anxious to guard oligarchy. 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 imeflicient 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 en-. evil. 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 sought to establish limits to that will be prevented from assuming to itself both itself. the legislative and the executive or ad- A government in which the will of the ministrative powers of government, is more majority is unlimited, in which it can althan we are able to comprehend.
ways prevail, is just as much an absolute But the executive veto is necessary, not government, and just as despotic in prinonly to prevent the centralization of the ciple, as the most absolute monarchy that powers of government, and to preserve ever existed. There is under it no guarthe independence and respectability of the anty of the liberty of the subject in the face executive department, but also as a check of power—the essential element in all on hasty and unjust legislation. There is, free governments. Modern democrats are perhaps, far more need of such a check aware of this, and seek to blunt the force than the mass of our people now-a-days of the objection by assuming that the will suspect; at least, the framers of the Con- of the majority is the will of the people, stitution believed it to be highly necessary. and that the people are always just, and They were, in the modern sense, no demo- never will abuse their power. But we crats, and had not the slightest tendency might as well say that the absolute monto radicalism. They were practical states- arch is always just, and will never abuse men, who sought not to carry out a theory, his power. If it comes to deifying, we
' but to establish a wise, strong, and durable may as well deify the king as the people. government, which in its practical opera- Experience no more proves that the people tions should secure the blessings of union, can do no wrong, than it does that the liberty, and internal peace—maintain jus- king 'can do no wrong. There is never tice, and promote the common weal. They any guaranty for liberty, where there is held in horror all absolute governments, nothing that limits or restrains the exercise whether royal, noble, or popular; and, of arbitrary will, or sets bounds to the aware that power, in whatever hands it is sovereign power; and even if the people lodged, may be abused, if there is an op- were not themselves capable of abusing portunity to abuse it, they sought to their power, we know perfectly well that guard against the tyranny of the sove- demagogues can usurp and abuse it for reign, at the same time that they secured them. The Convention properly underthe obedience of the subject. They had stood this, and throughout, they were as not learned to reject all the lessons of anxious to provide for a limitation of auexperience, and were far from accepting thority as they were to provide for the the doctrine of the impeccability of man, supremacy of the law itself; for governor of the divinity of the people. They ing, (if we may so speak,) the government, believed that the people could err and do as for governing the subject. The majorwrong, as well as kings and nobles, in ity, indeed, must govern, directly or inditheir collective as well as in their individual rectly; but it must govern only under capacity, and that tyranny and oppression certain conditions, according to certain are tyranny and oppression when proceed rules, and within certain bounds. ing from a popular, no less than when But the convention did not consider it proceeding from a royal or noble source. enough to mark these bounds, and to preThey believed, strange as it may sound to scribe those rules and conditions on paper. the unfledged politicians of the day, that Experience," said Mr. Madison, "has majorities can err and oppress, as well as taught us a distrust of that security, and minorities, and that although the rule that that it is necessary to introduce such a the majority must govern is adopted, it is balance of powers and interests as will necessary to subject the majority to such guarantee the provisions on paper. Parestraints, that to be able to govern at all, per constitutions are mere cobwebs, unless it must govern justly. Here we may see the organization of powers under them is their practical wisdom. They did not such as to render it impossible for any seek merely to enable the majority to gov- power to violate them. Power will be ern, or to organize the government so that sure to violate them, if able, whenever it no will but the will of the majority should ever prevail, but they went further, and
* Madison Papers, p. 1167.
has a sufficient motive to do so. If power | a negative—at least a qualified or condiis lodged in the majority, impose on it tional negative-on both. The negative what paper restraints you please, you are of the judiciary answers its purpose as far no better off than if
goes; but it is insufficient, because the tion at all, unless you have somewhere in judiciary cannot take cognizance of the the state a force that guaranties them- policy of a measure, and can interpose its that rises up and effectually resists negative only on the ground that the the attempted violation. The Convention, measure is unconstitutional. The system therefore, which drafted the Constitution of checks would, therefore, have been inon parchment, took care to establish it in complete, without the executive veto, the effectual organization of the several which can negative an act not only for its powers of government. The separation unconstitutionality, but also for its imof the powers of government into distinct policy. departments, each provided with means of That the system of checks established self-defense, the separation of the legis- is too effectual, that it has rendered lature into two houses, the peculiar consti- legislation too difficult, no statesman can tution of the Senate, the senatorial term pretend. Our danger lies, as experience for the long period of six years, and the amply proves, in too much legislation—not necessity of the concurrent vote of both in too little. The tendency to over-legishouses to an act of Congress, were all de- late is quite too strong, and we make quite signed to operate as so many checks on too little of wise and efficient administrathe will of the majority, and to prevent, tion. Nothing more distinguishes modern by restraining its action, hasty and unjust times from antiquity, than our excessive legislation. It was not enough to write on legislation, and our tendency to make legispaper that Congress shall pass no laws lating, instead of administrating, the chief hastily, or without a due regard to justice; business of government. The facility with it was necessary to go farther, and to sub- which old laws are repealed or modified, ject the enacting of laws to such condi- and new statutes are enacted, and not in tions, to so many forms and processes, that our country only, is really frightful; and it would be difficult, if not impossible, to what the end thereof will be, men of get a law hastily enacted, or enacted at stronger nerves than we may well tremble all, if contrary to justice.
to think. The utmost contempt for law, The executive veto is integral in the and the wildest disorder would prevail system of checks on the will of the ma- even now, if it did not happen that our jority, of restraints imposed on the exercise courts preserve the common law, the ler of sovereign power, which the Convention non scripla, which, happily for us, serves saw proper to establish. The Convention as a public conscience, and regulates the installed the majority as sovereign, but as greater part of the relations between man a limited, not as an absolute sovereign; and man. If the party among us opposed and the executive veto is an integral part to the common law should succeed in of the limitation which they imposed. abolishing it, and in reducing the entire
They wished to make legislation not easy, law of the land to the lex scripta, or statbut difficult; and were far more anxious ute law, we should find ourselves as ill that the laws should be wise and just, off as if we had no law at all. No man than that they should be numerous. Their could tell for six months what the law study was to subject every measure to the would be. We scarcely, in the State or most rigid scrutiny, and to render it impos- | the nation, enact a law before we modify sible for any measure to become a law till or repeal it, especially if it is a law after it had been thoroughly sifted, and had likely to prove of some utility in its pracreceived the approbation of the best minds tical operation. We have no settled po
| and the highest wisdom of the country. licy; we are disputing about the simplest To this end they required for the enactment elements of both civil and criminal law, and of a law the concurrence of all the branch- multiply statutes by steam ; a procedure es of the government. They gave to each which would throw everything into confuhouse a negative on the other, and to the sion, if the courts did not now and then go executive and judiciary departments each the full length of their prerogative in inter