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so usual and so important an instrument for the administration of its finances as that of a bank, is to suppose, what does not coincide with the general tenor and complexion of the Constitution, and what is not agreeable to the impressions that any mere spectator would entertain concerning it. Little less than a prohibitory clause can destroy the strong presumptions which result from the general aspect of the government. Nothing but demonstration should exclude the idea that the power exists. The fact that all the principal commercial natious have made use of trading corporations or companies, for the purpose of external commerce, is a satisfactory proof that the establishment of them is an incident to the regulation of commerce. This other fact, that banks are a usual engine in the administration of national finances, and an ordinary and the most effectual instrument of loans, and one which, in this country, has been found essential, pleads strongly against the supposition that a government, clothed with most of the important prerogatives of sovereignty, in relation to its revemues, its debt, its credit, its defence, its trade, its intercourse with foreign nations, is forbidden to make use of that instrument, as an appendage to its own authority. It has been usual, as an auxiliary test of constitutional authority, to try whether it abridges any preëxisting right of any state, or any individual. Each state may still erect as many banks as it pleases; every individual may still carry on the banking business to any extent he pleases.
Surely a bank has more reference to the objects intrusted to the national government than to those left to the care of the state governments. The common defence is decisive in this comparison.
A SHORT HISTORY OF THE VETO.*
Upon the proceedings of the American colonial assemblies, there existed a double negative or veto-one vested in the royal governor, the other in the king. By the royal governors the right was often exercised, and the king frequently signified his disallowance of acts which had not only passed the colonial assemblies, but even been sanctioned by the governor. This feature was one strongly set forth as a prime grievance, in recounting the injuries and usurpations of the British monarch, in the Declaration of Independence, and its exercise was highly repugnant to the interests of America.
Dr. Franklin, in the Debates of the Federal Convention, thus shows the influence of the veto power under the proprietary government of Penn: –
HISTORICAL MEMORANDA OF THE VETO. The veto power originated with the ancient Romans, and was the first essay of the common people of the republic towards the securing of their proper liberties. The Plebeians, having long been oppressed by the Patricians, at the instigation of Sicinius, 200 years after the founding of the city, made secession to a mountain three miles distant from Rome, (ever after termed Mons Sacer,) and would not return to the city until they had received from the Patricians compliance with their demand, and the solemn assurance, that the common people should elect magistrates, whose persons should be sacred and inviolable, to whom they could commit the protection of their rights. These magistrates were called tribunes; a name given by Romulus to the three military officers in chief, selected from the three tribes into which he had divided the city. The civic tribunes were originally chosen from the Plebeians, and no Patrician could hold the office, unless he had been first adopted into a Plebeian family. Their power was at first limited, but at the same time extraordinary. It was predentide, rather than enforcing; it was to interpose and protect the people from the oppressions and tyranny of their superiors; to assist them in redressing their wrongs, and in maintaining their liberties; and consisted in the utterance of but one word, and that one, “VETO,” (I forbid.) These officers could prevent the discussion of any question, the passage of any law, the execution of any sentence, the levying of any taxes, the enlisting of any troops, and almost arrest the entire machinery of govern
* The negative of the governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of salary, or some donation, was always made a condition; till, at last, it became the regular practice to have orders in his favor on the treasury presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got, until it was agreed that his estate should be exempted from taxation; so that the people were to fight for the security of his property, whilst he was to have no share of the burdens of taxation."
At first sight, then, it appears strange that the framers of our Constitution, when they were originating a new government, which should combine the experience of the past, without borrowing any of its defects, should bring in such a power, the operation of which had proved so baneful, and which had already been so strongly reprobated. But such was the fact. The war of the revolution over, the Articles of Confederation alone bound the states together; and the reaction which took place in several places urgently demanded some new form of compact more adequate for the purposes of government, and more consonant with the altered condition of affairs. Upon the 25th May, 1787, the Federal Convention met in the city of Philadelphia. Having organized themselves by the choice of proper officers, and the adoption of necessary rules, Mr.
ment, by standing up and speaking that one word, Veto. No reasons were required of them; no one dared oppose them; their Veto was supreme! As originally designed, it was emphatically the people's measure, for the people's protection; the necessary balance-wheel, to equalize the powers of the government, which had hitherto been engrossed by the rich, and give the people that interposing check, which the alarming tyranny of the Patricians inade necessary. It was the first attempt at a democratic, i. e. a people-ruling institution, and in all its features, save that of unlimited power, showed the humility of its origin. The tribunes must be not only of the Plebeian order, but they had no insignia of office, save a kind of beadle, who went before them; were not allowed to use a carriage, had no tribunal, but sat on benches. Their doors were open night and day for the people to prefer their requests or com. plaints. They were not allowed to enter the senate, and were not even dignified with the name of magistrate. As designed by Sicinius, it was the mere unadorned majesty of the people's voice, assimilated to the lowly pretensions of the people - the visible exponent of their will. These popular traits did not, however, long remain. The grasping ambition of some, the restlessness for change in others, soon abused the power; the tribunes became themselves a greater evil than they remedied, and their authority was more tyrannous than the edicts of those they were created to oppose.
Veto became a word of despotic power. The decrees of the senate, the ordinances of the people, the entire arrangements of government, bowed to its supremacy; and such was the force of the word, that not only could it stop the proceedings of all the magistrates, which Cæsar well calls “extremum jus tribunorum," but whoever, senator or consul, Patrician or Plebeian, dared oppose it, was immediately led to prison to answer for his crime. And so sacred were the persons of the tribunes, that whoever hurt them was held accursed, and his goods were confiscated. Sylla was the first who resisted the gross encroachments of the tribunes; but on his death they regained their influence, and henceforth it became but the tool of ambitious men, who used it almost to the ruin of the state. Such was its abuse, that, as Cicero says, the popular assemblies became the scenes of violence and massacre, in which the most daring and iniquitous always prevailed. The perversion of the original design of the veto was now completed by the arts of the emperor Augustus, who got the tribuneship conferred on himself, which concentrated in his person the entire and uncontrolled disposition of the state. This was the first instance of the combination of royal and veto power, and its assumption was all that was wanting to make the king a tyrant. From this time it was conferred upon the emperors, though the tribunes still continued to be elected, without, however, the exercise of tribunitian power, until the time of Con. stanlıne, when the office was abolished.
The early operation of the veto power in Rome was good, the subsequent disastrous. At first, it protected the people, gave them a voice in the legislative assemblies, and secured their liberties; ultimately, it oppressed the lower orders, excluded them from the councils of the nation, and made them the passive instruments of power-lusting demagogues. The first civil blood shed at Rome was the blood of Tiberius; the tribune battling, imprudently indeed, against the oppressions of the nobility. The
Randolph, of Virginia, opened the business of the Convention by proposing, on the 29th May, a series of resolutions, imbodying bis views as to what the crisis required; and on the same day General Charles Pinckney, of South Carolina, laid before the delegates the draught of a federal governnient, to be agreed upon between the free and independent states of America. The veto power entered into the schemes of both these gentlemen, though centred by them in different points. The 8th resolution of Mr. Randolph says:--
“ Resolved, that the executive and a convenient number of the national judiciary national legislature before ci sia revision with authority to examine every act of the fore a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by of the members of each branch.”
The article embracing this feature, in the draft of Mr. Pinckney, reads thus:
“Every bill which shall have passed the legislature shall be presented to the President of the United States for his revision. If he approve it, he shall sign it; but if he does not approve it, he shall return it, with his objections, to the house it originated in; which house, if two thirds of the members present, notwithstanding the President's objections, agree to pass it, shall send it to the other house, with the President's objections; where, if two thirds of the members present also agree to pass it, the same shall
last but closed the sanguinary series of intestine wars, created, continued, and tragically ended, by the very perversion of that power which was at first designed to give peace and unity to the Roman nation. So true has it ever been, that the delegated power of the people, when abused, has always reverted to their own destruction. "Having traced the veto power, from the simple word of the tribune to the imperial exercise of its rights in Rome, we are prepared to come down to modern times, and cite a few instances of its adoption and influence in European states.
The king of Great Britain possesses the veto right, upon the resolutions of parliament, though no instance of its exercise has occurred since 1692. In fact, constituted as the British government is, the veto is entirely unnecessary. Such is the powerful agency of money and influence, that they will prevent the passage of any law obnos. ious to the crown, and the king can, through his ministers, so trim and shape the proceedings of those bodies, as to accommodate them to his views; while, on the other hand, the taking away responsibility from the monarch, and resting it with the cabinet, which varies with the changes of public sentiment, never creales an emergency for the exercise of the royal negative. The same power is also vested with the king of Norway; but if three successive storthings or diets repeat the resolution or decree, it becomes a law without the king's assent, though he may have negatived it twice before. As the storthing, however, sits only every third year, the veto of the king, though it may not eventually be ratified, has yet a prohibitory operation on any given law for six years. It was thus that nobility was abolished in Norway in 1821. The king had twice vetoed the law, passed by the storthing; against the further continuance of the nobility; but the third diet confirmed the resolutions of the two former, and the law became established, notwithstanding the royal negative.
The constituent assembly of France conferred the veto power on the king in 1789, but the very first exercise of it proved his ruin. It was preposterous for such a body, and at such a time, to make such a provision in the constitution they were then passing, and as affairs then stood, when judicious temporizing, and not royal prerogative, was required. It was equally preposterous in Louis to employ it. It but showed the waywardness of the popular will, which could at one time grant such a right, and at another punish the exercise of it. The negative is, however, held by the present king, though it has never yet been put into requisition.
By the constitution of the cortes, the king of Spain was vested with the same power, and it still forms a provision of the Spanish government. In Poland, the veto power assumed another shape It was centred, not in the king, but in the former republic. Each member of the diet could, by his “ Nie Pozwalam," (I do not permit it,) prevent the passage of any resolution, and defeat the operations of the rest. On the partition of Poland, Russia confirmed this liberum dete to the Polish assembly, with the sinister design of thereby frustrating any effective or independent legislation; well knowing that, in its then distracted state, the continuance of this individual veto, would be, as it proved, destructive to harmony of action and unity of design, and the “ Nie Pozwalam" of the Polish representative has been but an apple of discord to that noble but suffering people.
become a law. And all bills sent to the President, and not returned by him within
days, shall be laws, unless the legislature, by their adjournment, prevent their return, in which case they shall not be laws."
Mr. Randolph's views were evidently based on the suggestions of Mr. Madison; for that gentleman, in a letter to Mr. Randolph, a few weeks previous, urged the same idea of a negative by the national government, "in all cases whatsoever, on the legislative acts of the states, as the king of Great Britain heretofore had."
The resolutions of Mr. Randolph became the basis on which the proceedings of the Convention commenced, and, as Mr. Madison says, “ to the developments, narrations, and modifications of which the plan of government proposed by the Convention may be traced.”
Let us, then, follow out the discussions of this body until the snggested joint revision by the executive and judiciary became altered to the single negative of the President. On the 4th of June, the first clause of Mr. Randolph's eighth resolution was taken up, but Mr. Gerry, from Massachusetts, doubting whether the judiciary ought to have any thing to do with it, moved to postpone the clause, and introduced the following amendment :
“ That the national executive shall have a right to negative any legislative act which shall not afterwards be passed by — parts of each branch of the national legislature.”
Rufus King, from Massachusetts, seconded the motion, and the proposition of Mr. Gerry was taken up. Mr. Wilson, of Pennsylvania, and Alexander Hamilton, of New York, wished to strike out the latter clause, so as to give the executive an absolute negative on the laws; but, though supported by these gentlemen, it was opposed by Dr. Franklin, Roger Sherman, of Connecticut, Madison, Butler, of South Carolina, and Mason, of Virginia; and was therefore negatived.
Mr. Butler and Dr. Franklin then wished to give a suspending instead of a negative power; but this was overruled, and the blank of Mr. Gerry's resolution was filled up, sub silentio, with two thirds ; and the question being taken on the motion, as thus stated, it received the votes of eight states, Connecticut and Maryland voting in the negative. On the 6th June, according to previous notice, Mr. Wilson and Mr.
Madison moved to reconsider the vote excluding the judiciary from a share in the revision and negative of the executive, with the view of reën forcing the latter with the influence of the former. But though Mr. Madison urged the plan of associating the judges in the revisionary function of the executive,
as thereby roubling the advantages and diminishing the dangers, and as enabling the judiciary better to defend itself against legislative encroachments, it was as eloquently opposed by Mr. Gerry, and others, who thought that the executive, while standing alone, would be more impartial than when he could be covered by the sanction and seduced by the sophistry of the judges; and it was finally rejected. Two days after, at the conclusion of an animated debate, the subject of giving the national legislature a negative on the several state laws, which was first suggested to the convention by Mr. Randolph's resolutions, and subsequently brought up for reconsideration by Mr. Pinckney and Mr. Madison, was also voted down, — three states in the affirmative, seven in the negative, Delaware divided.
On the 18th of June, Mr. Hamilton offered to the Convention a plan of government, in the fourth article of which the veto power was unqualifiedly conferred on the executive. The next day, Mr. Gorham, from Massachusetts, reported from the committee appointed to reconsider the various propositions before the Convention, and the tenth resolution of that report says: “ That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two thirds of each branch of the national legislature.” The Convention proceeded to take up the several articles and clauses of this report, and it was not till the 18th July, that the tenth resolution became the order of the day; it was then passed nem. con. On the 21st, bowever, Mr. Wilson, still entertaining his original views, as to the union of the judiciary with the executive on the veto power, moved an amendment to the
resolution, which gave rise to a most interesting debate, in which Mr. Ellsworth, from Connecticut, Mr. Mason, from Virginia, and Mr. Madison and Mr. Gouverneur Morris, of Pennsylvania, sustained the views of Mr. Wilson; and Messrs. Gorham, Gerry, and Strong, of Massachusetts, Mr. Martin, of Maryland, and Mr. Rutledge, of South Carolina, opposed them, and the amendment was lost. The original resolution, therefore, was again passed.
Having gone critically through with the report of the committee, the various resolutions which had been agreed to were, on Thursday, 26th July, referred to a committee of detail, to report on Monday, August 6th, a draft of the Constitution. This committee, of which Mr. Rutledge was chairman, reported on the day assigned, and the veto power was conferred by the 13th section of the sixth article. This paragraph, as reported by the committee, came under discussion on Wednesday, 15th August, when Mr. Madison moved an amendment, which revived the previously agitated question of uniting the judges of the Supreme Court with the President in his revision and rejection of laws passed by Congress. Much debate followed. Mr. Wilson and Mr. Mercer supported Mr. Madison, and Mr. Pinckney opposed. The amendment was lost - three states voting for it, and eight against it. Having thus surveyed the subject in all its bearings, the Constitution, amended, altered, and perfected, was, on the 17th September, 1787, signed by the Convention, and constitutes to this day the basis of our government. "The veto power in this Constitution is thus expressed, article 1, section 7:
“Every bill which shall have passed the House of Representatives shall, before it becomes a law, be presented to the President of the United States. If he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider it.”
The first use of this constitutional power was by Washington, who, on the 5th April, 1792, vetoed the “Representation Bill," which originated in the House of Representatives. As this, from its priority, is an event worthy of extended notice, we give the circumstances of the case, as briefly related by Jefferson, then secretary of state:
“ April 6th. The President called on me before breakfast, and first introduced some other matter, then fell on the Representation Bill, which he had now in his possession for the 10th day. I had before given him my opinion, in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood at the time by the makers of it; that yet it would bear the construction which the bill put; and he observed that the vote for and against the bill was perfectly geographical -- a northern against a southern vote -- and he feared he should be thought to be taking side with a southern party. I admitted the motive of delicacy, but that it should not induce him to do wrong, and urged the dangers to which the scramble for the fractionary members would always lead. He here expressed his fear that there would, ere long, be a separation of the Union; that the public mind seemed dissatisfied, and tending to this. He went home, sent for Randolph, the attorney-general, desired him to get Mr. Madison immediately, and come to me; and if we three concurred in opinion, that he would negative the bill. He desired to hear nothing more about it, but that we would draw up the instrument for him to sign. They came; - our minds had been before made up; -we drew the instrument. Randolph carried it to him, and told him we all concurred in it. He walked with him to the door, and, as if he still wished to get off, he said, “And you say you approve of this yourself?" “ Yes, sir," says Randolph ; " I do, upon my honor." He sent it to the House of Representatives instantly. A few of the hottest friends of the bill expressed passion, but the majority were satisfied, and both in and out of doors it gave pleasure to have at length an instance of the negative being exercised. Written this, the 9th April."
LIST OF THE VETOES. 1. Returned to the House of Representatives, by GEORGE WASHINGTON, April 5, 1792 — "An Act for an apportionment of representatives among the several states, according to the first enumeration."
2. Returned to the House of Representatives, by George WASHINGTON,