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The Presidential Veto

Brownson's Quarterly Review, April, 1850

Art. V.- The Plan of the American Union, and the Struc­ture of its Government explained and defended. By James A. Williams. Baltimore : Sherwood & Co. 1848. 12mo.    pp. 168.

[This article was originally prepared for the American Review, at the request of the talented and accomplished editor of that highly respectable journal, and in great part appeared in its number for August last. But as the editor omitted certain portions, and as his printers greatly disfigured, by serious typographical errors, the por­tions accepted, the writer of the article wishes us to insert it as it; was originally prepared; which we do without any hesitation, for its views are our own. - Ed. B.Q. Review.
This work appears to have been written with an honest in­tention, and it bears evident marks of talent and serious study. It contains many just views on the Constitution of the United States, clearly, though not very vividly, expressed, but appears to us to err in its general theory of government, by overlooking the fact, that the necessity of government does not grow wholly out of the depravity of human nature, and that government it­self is not restricted in its functions merely to the repression of violence, or the unjust encroachment of one man upon the rights of another. The maintenance of justice, or the repres­sion and redress of injustice, is, no doubt, a chief function of government; but government has beyond this a positive mis­sion to perform, positive benefits to confer or secure, which in no sense grow out of the wickedness of man, and which would be the same whatever the intelligence and virtue of indi­viduals. Man is by his essential nature a social being, and demands society ; and society demands social as well as indi­vidual labors. These labors have for their end, not merely the negative, but the positive, benefit of the whole community, and cannot be performed without government, by which society is made a corporation, capable of acting as an individual per­son.
But our present purpose is not to criticize this little work itself; we have introduced it simply as an occasion for offer­ing some remarks on the subject of the presidential or execu­tive veto,- a subject which we should be happy to see dis­cussed more generally than it has been, in a calm, philosophic spirit, from the point of view of the statesman, rather than from that of the demagogue or the partisan.
There is, and, as long as human nature remains as it is, will be, under popular governments, a strong tendency in the party that has succeeded to exaggerate the intrinsic importance of the constitutional provisions to which it owes its success, and also in the party frequently unsuccessful, to depreciate or unrea­sonably oppose those provisions, which, in their operations, have thwarted its wishes. ,,We like that which aids us ; we are hostile to that which defeats us.    The men who can look beyond the passions of the moment, and judge of the merits of an institution by its average results, are, always and everywhere, comparatively few ; the great majority look neither before nor after ; they fix their eyes on the present ; what favors that is for them good, - good in all times and places, and under all circumstances ; what here and now impedes or thwarts them is bad, - can never be of service to them, must always work against them, and should nowhere, and under no circumstances, be tolerated for a moment. Constitutions are designed to maintain a fixed and permanent rule, and, if they answer their purpose, must not unfrequently control popular wishes and ten­dencies, and often restrain the majority, and prevent them, for a time at least, from adopting measures which they may be per­suaded are for the interests of the country. Hence we must always expect under popular governments a party that will be dissatisfied with the constitution, now with this provision and now with that, and ready to agitate for its amendment, altera­tion, or total suppression.
It can hardly, as yet, have been forgotten, that, under the administration of General Jackson, the constitution of the Sen­ate of the United States was the object of virulent attacks from the Democratic party of the time. That party denounced the Senate, as the aristocratic branch of the government, as repug­nant to the genius of free institutions, and demanded its essen­tial modification, because, just then, it happened not to be in their favor. Yet that party to-day find the Senate a purely democratic institution, and their chief reliance to prevent the administration from adopting a policy to which they are op­posed ; for they happen to have just now a majority of Sen­ators on their side. They no longer denounce it as aristocrat­ic, and no longer demand that its constitution be modified. On the other hand, it is remembered, that, in consequence of the use or abuse of the executive veto by General Jackson and Mr. Tyler, to defeat important measures which had re­ceived the sanction of a majority of Congress, many in the Whig party who were strongly in favor of those measures, be­lieving them really demanded by the industry and business of the country, took up the notion that the veto power is anti-republican, exceedingly liable to be abused, and in its abuse throwing such undue influence into the hands of the executive as to endanger our free institutions, and therefore a constitu­tional provision that should be either abolished or essentially modified.    Yet who is prepared to say that the time may not even soon come when these same politicians will find the exec­utive veto their best, perhaps their only, safeguard against meas­ures which in their judgment would be ruinous to the country ?
The tendency, when we are disappointed or defeated by some constitutional provision, to complain of the constitution it­self, and to propose its amendment to suit our wishes for the mo­ment, is strengthened and apparently justified by certain false notions as to the origin of constitutions and as to the rights of majorities, which have become, or are becoming, quite preva­lent in our country, as well as in some others. It was pretend­ed by some men in the last century, who then passed for phi­losophers, that to make a constitution is the easiest thing in the world ; that nothing is simpler or more feasible than for a peo­ple, without government, or irrespective of it, acting as if in a state of nature, to come together in person or by their delegates in convention, and give themselves any constitution they please, and provide for its wise and beneficent practical operation. They put forth the most extravagant follies on the excellence and perfectibility of human nature, and virtually deified the people. They disdained, indeed, to believe in God, blas­phemously alleging that they " had never seen him at the end of their telescopes "; but they did not hesitate to transfer to the people all the essential attributes of the Deity, and to fall down and worship them as a divinity. The people could remedy all evils ; the people could make no mistake ; the people could do no wrong ; and we had only to clear the way for the free, full, and immediate expression of the popular will, in order to have a perfect civil constitution, and a wise and just administra­tion. Hence there need be no hesitancy to overthrow exist­ing institutions, to break up established order, or to trust to the unchecked will of the people for a wise remodelling of the state, or the reconstruction of society. In consequence of the prevalence of such a pleasant theory, all fear of change was re­moved, all prudence in experimenting or in introducing innova­tions rendered superfluous, and all attachment to old institutions or to a long-existing established order foolish, if not wicked. Nothing in heaven or on earth was to be henceforth sacred or inviolable, but the will of the people, - that is, the will of the demagogues who could contrive to speak for the people, - and we were to surrender ourselves to that will with as much con­fidence, and with as little reserve, as the Saint surrenders him­self to the will of God.
Into this silly and impious doctrine the fathers of our republic did not fall.    They were no vague theorizers, no mad vis­ionaries ; they were plain, practical men, who looked at realities, and dealt with things as they found them.    But this doctrine, which has for the last sixty years convulsed all Europe, over­turned thrones, displaced dynasties, and left few things stand­ing, except despotism on the one side, and the mob on the oth­er, has finally found its way amongst us, and spread far and wide its subtile poison through our community.    Our people, in large numbers, forget that constitutions are generated, not made, and that no convention can draw up and impose a constitution, which shall be really a constitution, unless its essential principles are already, through Providence, established in the wants, the hab­its, the usages, the manners and customs of the people for whom it is intended ; that the constitution can never be arbitra­rily imposed, but must always grow out of the preexisting ele­ments of the national life ; and that when once formed, it is to be henceforth modified only according to its own internal law, through the most urgent necessity, and with the greatest deli­cacy and the most consummate wisdom and prudence.   Hence they cease to regard the constitution as sacred, and look upon it as a thing that may be changed with as much facility, and al­most for as slight reasons, as a gentleman changes the fashion of his coat, or a lady the make of her bonnet.    To change it is not only the easiest, but the safest, thing in the world.    Con­sequently, the thought of submitting to a present inconvenience, of suffering a constitutional provision which restrains their will or thwarts their present wishes, rarely occurs to them ; and whenever things do not go to their mind, they clamor for a change of the constitution.    The danger of this state of the public mind hardly needs to be pointed out to the statesman. It is incompatible with every thing like established order, with every thing permanent or stable in government, and keeps every thing unsettled and fluctuating.
From the fact, that under our political order the greater number of questions are determined by the will of the major­ity, a large class of our politicians-seldom accustomed to look beneath the surface, or to trace facts to their princi­ples - conclude that the majority have a natural right to govern, and that whatever tends to hinder the free and full ex­pression of their will is contrary to natural law, and smells of usurpation and tyranny. They are exceedingly scandalized when they find the constitution opposing a barrier to the will of the majority, and call out with all their force, from the very top of their lungs, for its amendment. Is it not the es­sential principle of all republicanism, say they, that the major­ity must govern ? What, then, can be more anti-republican, more really undemocratic, than to uphold a constitution that hinders the majority from doing whatever they please ? But these sage politicians would do well to remember that the right of the majority to rule is a civil, not a natural, right, and ex­ists only by virtue of positive law. Anterior to civil society, or under the law of nature, all men are equal, respectively in­dependent, and no one has any authority over another. Each is independent of all, and all of each ; and both majorities and minorities are inconceivable. Civil society must be constituted before you can even conceive the existence of a political major­ity or a political minority, and when it is constituted, neither has any rights but those the particular civil constitution confers. Deriving their existence and their rights from the civil consti­tution, it is absurd to pretend that the majority are, or can be, deprived of any of their rights by any constitutional provision whatever. If, then, a given constitutional provision should re­strain the majority, or prevent them from making their will pre­vail, that is no just cause of complaint; for no law is broken, no right is violated ; and where no law is broken, no right vio­lated, no injustice is done.
Setting aside these false notions or pretensions of modern radicals and socialists, which are revolutionary in principle, and incompatible, not only with all stable government, but with the very existence of the state (status), of legal order itself, we must always approach every established 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 its alteration or amendment. : On no other condition can we be distinguished, in principle, from radicals and destructives, and consistently profess to be conservatives, or friends of liberty, because friends of order. s 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 is in the constitution is to us, therefore, a presumption that it ought to be there, and 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 regarded. 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 recognized 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 the authorities hold ing 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 feature of the English Constitution is the separation, on the one. hand, of the bodies represented in the government, and, on the other, of the powers of government itself, each 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 consist the beauty and excel­lence of the English system; and it is this alone that consti­tutes the safeguard of English liberty. These divisions and 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, and to prevent it from becoming despotic, or hostile to the liberty of the subject; and the peculiar merit of the Eng­lish system is, that they serve this purpose without impairing, in too great a degree, the unity and force of authority.
This system we inherited with the Common Law from our English ancestors, and have retained 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, the governing power ; the government vests in the constitution rather than in them ; for outside of it they have no political ex­istence, and they have 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 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. There can be no more true liberty under the one than under the other; in each the sovereign authority is absolute, unlimited, and under both, the law, or what is to be regarded as law, is nothing but 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 just 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 leav­ing 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, who are born despots, and have not the least imaginable conception either of the nature or of the conditions 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 arrested, its very existence.
The separation of the constituent bodies, represented in king, 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 so far their constitution has an advantage over ours. Nevertheless, in consequence of the division of the country into separate States, we have been able, in some degree, 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 representatives 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 exactly 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 politician - must readily perceive and admit. It was given by the Convention, 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 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 between the several pow­ers intended 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.
We are as strongly opposed to the "one-man power" as are any of our contemporaries, and as anxious to guard against every tendency towards monarchy as any body can be ; but there is no less to be apprehended from legislative than from executive encroachment. Perhaps, under our peculiar system, the danger of legislative usurpations is even more imminent than any other, and executive usurpations themselves are chiefly stimulated by them. Against legislative usurpations the people are seldom on their guard ; they are always usurpa­tions which receive the support of the majority, and opposition to them is never raised, except from the minority, who are always impotent to resist, and still more impotent to redress them. Experience proves that legislative bodies always seek to absorb in themselves all the powers of government. The fail­ure of the French during sixty years of experimenting to estab­lish a free and stable government, has been due to their mad attempts to concentrate all the powers of government in the legislature, to their blind confidence in the wisdom and integrity of legislators, and their insane distrust of an efficient executive. In all their efforts we see them aiming to make the legislature omnipotent, and the executive a nullity. Aside from his pat­ronage, and means through that of exerting an indirect and coi'-rupting influence, the present executive of France has as little power as a Virginia governor. No government can be stable or efficient without a strong and independent executive. A weak executive, especially in a large state, is a great curse, alike impotent to do good or to prevent evil. An administration that wants power to protect itself, that trembles every moment for its own existence, that has no discretion, no responsibility, is as mischievous as it is contemptible ; for its resort is always to low cunning, to craft, to corruption. The history of the English Parliament proves- to 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 Revolution of 1688, which consisted in the final triumph of the Parliament over the crown, had it not been for King William's Dutch tvoops, and the Tory influence on the side of the executive in some measure  holding the Whigs in check, and preventing them from realizing the last consequences of their victory, would have been not less disas­trous for Great Britain than the Revolution of 1789 has been for France.    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 or emolument, it would have scarcely the shadow of power. Were we subjects of the English government, we should seek to weak­en the legislative department and to strengthen the executive; for of all despotisms the legislative is the most intolerable, more  especially when the legislature is but  the tool  of an odious oligarchy.
So deeply impressed were the Convention of 1787 with the tendency of legislative bodies to absorb in themselves all the powers of the state, that many of them were for giving the executive even an absolute negative on all the acts of Con­gress ; and some, fearing the executive would want the firmness to interpose his negative as often as it might be necessary, were for strengthening and encouraging him, by joining with him in a council of revision the supreme judges themselves. It is well they did not; but their proposition to do so is instructive, as showing how much the Convention distrusted legislative bodies, and how much importance they attached to the veto power, as enabling the executive to maintain his independence and re­spectability, and save himself from becoming the mere slave of Congress. No subsequent experience proves them to have judged hastily or unwisely. We need no argument to prove the importance of maintaining the independence and respect­ability of the executive. If he should cease to be independent, if his functions should be reduced from those of President of the United States to those of a mere executive officer of Con­gress, he would feel himself relieved of all responsibility of government; he would take no oversight of affairs, would make no efforts to maintain a wise and efficient administration ; but would throw all responsibility upon Congress, and either enjoy his ease, as a roi fainiant, or exert all his craft, cun­ning, and opportunities, to abuse power to his own selfish purposes. And how, without the veto power, he is to maintain his independence, and Congress is to be prevented from combining in 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 a 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, - so to organize the government that no will but the will of the majority should ever prevail, - but they went farther, 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 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, hy 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 perfectly 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, within certain bounds.
But the Convention did not consider it enough to mark these bounds, and to prescribe these 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 guaranty the provisions on paper."*(Footnote: * Madison Papers, p. 1167.) Paper 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 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, that rises up and effectually resists the attempted violation. The Convention, therefore, while they engrossed the Constitution on parchment, took care to register it in the effectual organiza­tion of the several powers of government. The separation of the powers of government into distinct departments, each provided with the means of self-defence, 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 ori 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 proposed to be adopted 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 to the enactment of a law the concurrence of all branches of the government. They gave to each house a negative on the other, and to the executive and judiciary de­partments each a negative, at least a qualified or conditional negative, on both. Tho negative of the judiciary answers its purpose as far it goes ; but it is insufficient, because the judicia­ry cannot take cognizance of the policy of a measure, and can interpose its 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.
That the system of checks established has proved too strong, 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 tendency to make legislating, instead of administering, the chief business of government. The facility with which old laws are repealed or modified, and new statutes 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 whole law of the land to the lex scripta, or statute law, we should soon find ourselves as bad 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, and 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 multiplying statutes by steam, which would throw every thing into confusion, if the courts did not now and then go the full length of their prerogative in interpreting them, so as to get an innocent meaning where the legislature had either no mean­ing, or a meaning subversive of all the legitimate ends of legis­lation. Surely no statesman, especially no lawyer worthy of the name, can wish for greater facility of legislation than we now have, or regard the actual constitution as rendering it too difficult.
It is strange, we remark by the way, that at this late period of the world's history this rage for legislating should obtain, and whole communities should act as if law had now for the first time to be created. Has nothing been settled, and have we ex­isted as a civilized people for these two hundred years without law, or without law adequate to the wants of a free and thriving people ? Do we need to be told that law, as a science, was per­fected even centuries before we were born, and that the modi­fications necessary to adapt it to what there may be novel or peculiar in our condition and circumstances are very few ? Are we aware how many of the evils we are compelled to suffer spring from the rejection of old law science, and from experimenting in legislation as if we had the whole science to build up anew ? Do we need to be told that our foolish legislative experiments are the principal cause of the constant convulsions of our busi­ness world, and that, had it not been for the youth and vigor of our community, our experimental legislation would long ere this, by the insecurity to property it causes, and the frequency with which it makes it pass from its owners to others, have proved our total ruin ? Surely, if we trace the history of our legislation for the last twenty years, we shall not doubt that checks on sovereign power are needed, and all the checks, and more than all the checks, the Constitution provides.
The Convention felt that there would be a tendency to has­ty, unnecessary, and ruinous legislation ; but that tendency has proved to be stronger even than they apprehended.    They had no great confidence in the people or in majorities at best, but they did not foresee how majorities would be manufactured, nor anticipate the introduction of that perfect party discipline and party machinery which we have since introduced, and which render the people either a nullity, or the blind tools of irre­sponsible party managers.   This discipline and machinery, when adopted by one party, has to be adopted by the other in self-de­fence, and we have now arrived at the point when all the affairs of government are managed by party ; and a power, through party, unknown to the Constitution, is installed as sovereign. This power is vested, nobody can say where, or precisely in whom ;   it  is  wielded  by  no  public  law,  by no responsible chiefs, and though all-controlling, you can nowhere lay your fin­ger on it.    it is at once the slave and the master of every body. This power, acting without public recognition, without public responsibility, dictates the policy of the government, and se­lects the candidates for office.    The officers, when chosen, find themselves subject to it, hemmed  in by it, obliged, they can hardly tell why or wherefore, to obey it; and, having no em­ployment for their own judgments, they give themselves up to it, and merge their own responsibility in its irresponsibleness, and never trouble themselves to ascertain whether what they do is for the good of the country or not; it is enough for them that it receives the sanction of their party.    The consequence is, that we do not get in the acts of government an expression of the popular reason, nor the personal convictions or consci­entious judgments of even the men who are nominally clothed with authority ; we get only the wishes or interests of party, or rather of the unnamable and irresponsible managers of party, one-sided and selfish, and rarely compatible with the interests of the country at large.   . Nothing is or can be more important, then, than an organization of restraints which render legislation difficult, and prevent the possessors of power from rushing, in their madness and irresponsibleness, into measures absolutely ruinous to the country. You have some moral hold of a man as long as there is nothing between him and the public, as long as he feels that he must answer directly to the public for his acts ; but when there stands a party between him and the pub­lic, and his reliance is on his party and not on his country, you have none at all. If he does the will of his party, that will up­hold him and vindicate his acts ; and that is all that his inter­est or his reputation requires. Consequently, the more pre­dominant is partyism, the more necessary are constitutional checks on power.
It is true, that the very reasons which render the executive veto the more necessary tend to render it less adequate ; be­cause  the same  doctrine of party operates on the executive with hardly less force than on the members of Congress them­selves, and tends to withhold him from employing it against a favorite measure of his own party, - perhaps the very measure of all others against which he ought to employ it.    This is an evil, a great evil, but not an objection to the veto power it­self.    It is an objection only to its sufficiency, and proves, not that it is injurious, but that it does not do all the good or pre­vent all the mischief it should.    The executive that refuses to employ it when he should is as an executive that has it not, and his refusing to employ it when its employment would do good is, as far as it goes, an argument for it, not against it. This evil, which we admit, will, no doubt, subsist as long as parties continue their present policy of selecting as candidates for the chief magistracy of the republic, not their greatest and best men,-• men well known to be fully qualified for the office, and able to stand of themselves without being held up by party discipline and machinery, - but their most available men,- men who will run the best, because they carry the least weight. This is a bad policy even for the party itself, as well as for the country, though sometimes, perhaps, necessary, in order to avoid the greater evil.    When one party adopts it, such is the feebleness, short-sightedness, and silliness of the mass of every party, that the other is often obliged to do the same. But the consequence is always bad.    The  executive wants self-reliance ; conscious of his own inexperience, perhaps of his own inability, to discharge properly the duties of his high office, he is afraid to act independently, from his own convictions, on his own responsibility, and therefore throws himself back on his party, merges his individuality in it, yields blindly to its dictation, and throws upon it the entire responsibility of his acts, which it must assume, or else go out of power, and let the opposition come in. The consequence is, that he surrenders his independence to his party in Congress, and, if that party is in the majority in both houses, brings about that amalgamation of the executive and legislative functions of government, which the Convention hoped by means of the executive veto to pre­vent. The terrible evil will be remedied only when we have an executive who adopts and acts on the sound principles pro­claimed by our present worthy chief magistrate in his letters before his election, and in his noble Inaugural Address. But it is not easy in the present state of public opinion to act on those high and independent principles, and will not be, till the public mind by means of the press shall be brought more into harmony with those great conservative principles of government which have been so generally neglected for the last twenty years, but without which our liberties exist only in name, and wise and just government is but a dream.
It may be objected to the veto power, that it is seldom likely to be employed, except against such measures as secure a majority in Congress only by a union of some members of the party to which the executive belongs with the opposition, and which, since they combine, in some degree, the support of both parties, are the least likely to be hasty or unjust. That is, the negative will not be employed when it should be, and will be when it should not. Experience does not fully bear out this objection, but we grant that it has some force. In several instances the veto has been applied in the manner here supposed, and it is this fact that has led some of our Whig friends, contrary, as we must believe, to their general princi­ples, to propose its abolition or modification. But we are con­servatives, and we are loath to lay a rude hand on the Constitu­tion. Experiments in amending constitutions, State or national, have not thus far proved very successful; and, in general, we find the amended constitution more in need of amendment than the original constitution itself. In almost every instance that has come under our knowledge, the so-called amendments adopted have proved a serious injury to the constitution, - have impaired its symmetry, rendered it less efficient, and made new alterations necessary ; besides weakening in the pub­lic conscience that sacredness which should always attach to the constitution of the state.    Obvious anomalies which tend to defeat in practice the general design or intent of the constitu­tion, or clauses originally good, but rendered injurious by social changes or revolutions which have subsequently occurred, we would, of course, have removed ; but beyond that we believe it never prudent to venture.     Nothing is more unwise or un-statesmanlike, than to alter a constitution for the sake of har­monizing it with changes which may have taken place in mere public opinion, or of conforming it to the  demands of some newly invented or newly revived political theory.   No constitu­tion constructed in accordance with a political theory ever worked or ever will work well, for the simple reason that every theory is despotic, and no man, much less the mass of men, ever did or ever will act throughout life in accordance with a theory. Every man's life is full of anomalies, and it is far more with the anomalous in life and society than with the normal, or what comes within the rule, that government must deal.    A consti­tution that preserves a systematic  consistency throughout, is necessarily   either   impracticable   or despotic.    Governments are founded in practical reason, not in speculative reason; and good  sense, aided by large experience, must determine their constitution, not speculation.      The English, who have much good sense, but very little speculative genius, and who care little for systematic consistency, maintain a comparatively free government; the French and Germans, who are far their supe­riors in speculative science, and who draw out constitutions perfectly satisfactory to speculative reason, for ever alternate in practice between anarchy and despotism*   No constitution will avert all evil ; for what works evil to-day may work good to­morrow.    By attempting to remove the evils which we occa­sionally suffer, we not seldom lose the good we are in posses­sion of, and open the door to greater evils from which we are as yet free.
There is no question but the executive may employ his negative against measures in themselves wise and just, but if they are measures of great public importance, and such as the country is really prepared for, he can at best only delay them for a short time. The exercise of his negative is on the part of the executive an act of great personal responsibility, and one that he can forego if he chooses. The easiest way for him is to throw the responsibility on Congress, and approve whatever act Congress choose to pass ; and he always will do so, unless' he has some motive to do otherwise.    If he does otherwise, it must be either from a sense of duty, or from the hope of gaining public applause or support. In the first case, the example, in times like ours, of a president of the United States hazarding his popularity, staking his reputation, at the demand of honest conviction, or a conscientious regard to his oath of office, would, of itself, be a moral benefit to the coun­try equal to any injury that could result from the temporary loss of the most important public measure he is likely to negative. Indeed, a few examples of the sort are much needed, to keep alive among us the memory of public virtue, and convince us that it is not entirely the dream of the romancer, or the fiction of the poet.
If we suppose the executive by his veto seeks popularity, we must suppose there is a strong probability, at least, that his act will be sustained by the country, and therefore that there is not a clear, decided, and reliable majority in the country in favor of the measures negatived. If such be the fact, the measures, if of any great importance, ought not to pass; if of no great importance, it is of no great importance that they are defeated, and the matter is not worth quarrelling about. Meas­ures of great importance, such as relate to finance, trade, and industry, and seriously affect the whole business and indus­trial interests of the country, in order to be beneficial must be permanent, and should never be adopted in the face of a minor­ity which may be the majority to-morrow and repeal them. They should never be pressed, unless there is a reasonable prospect that they will so far meet the approbation of the coun­try, that no party, on coming into power, will think of disturb­ing them. All measures of this sort produce an evil on their first adoption of no small magnitude ; for they affect the stand­ard of value, the relation of debtor and creditor, and operate, in some measure, as agrarian laws, though indirectly, and without its being perceived by every one. The oftener they are changed, the more insecure do they render property, and the more frequently do they take money from one man's pocket and put it into another's. We boast of the security of property in this country, and it is secure so far as direct attacks on it are concerned ; but the fluctuations in the policy of the gov­ernment for the last twenty years have really made it more in­secure here than in any other civilized country, as we may see in the immense number of fortunes made, and a nearly equal number lost. The policy of the government will continue to be thus fluctuating as long as there is an attempt to fasten upon the country any policy which has the support of only an acci­dental or   temporary majority, a policy in which, when  once adopted, all parties will not generally acquiesce.    A measure, the repeal of which the opposition shall attempt as  soon  as passed, should never pass at all ; because it can  never work well, and will tend only to exasperate party spirit, to convulse the country, to corrupt the purity of elections, and by heated and violent contests destroy public virtue, and consolidate the despotism of party, as our experience too conclusively proves. To what else is due the party discipline and machinery now so ruinous ?    We say, then, if the executive is right in supposing the country will sustain him, and that the  application of his negative will be popular, the application  of it is not an evil; for it is better for the country that, under such circumstances, the measure, though good in itself, should be defeated, than that it should be suffered to pass.      if the executive is wrong in his supposition, if the country does really demand the measure, or is prepared to sustain it, all the harm done is a little delay. Things are made no worse than they were before, and all that can be said is, that a good hoped to be realized is put off for a short period.    This delay will, after all, be rather a  benefit, for it will give time to consolidate public opinion, and to secure for the measure a greater likelihood of being permanent, when the new elections shall have prepared the way for its adoptiont^. Taking this view of the question, and checking that impatience of our country which needs some checking in regard to legisla­tion, as well as to other matters, we confess that we can see no serious evil that can result from the employment of the execu­tive veto against even  such measures of public policy as, if they could be adopted with the general approbation of the coun­try, and with a reasonable prospect of being permanent, would be of great public utility, - the only case in which it can  ever be pretended that the exercise of the veto power can do harm. It should be borne in mind, that the veto power   is  purely negative.    It gives to the executive no positive power  of leg­islation, enables him to fasten no objectionable policy on the country, but merely gives him a conservative power, - a pow­er to preserve to  some  extent laws already in  force, and to prevent or delay the adoption of new measures and a new line of policy.    It is a power perfectly in accordance with conser­vative  principles of government,  and is repugnant to Demo­cratic, but not to Whig doctrines.     Opposition  to  it could come consistently enough from the Democratic party; from the Whig party, it strikes us, not without some inconsistency. True, it has been used to defeat favorite measures of the Whig party ; but it is no Whig doctrine to seek to carry measures in spite of the Constitution, or to attack the Constitution when it operates against us. We are sworn to the Constitution " for better or for worse," and we trust we are prepared to forego every public good not to be attained under it, and in accordance with its provisions.
It is said by some, that the executive veto cannot be legiti­mately employed except on the ground of the unconstitutionality of the measure negatived. This, we apprehend, is a mistake. No restriction of this sort, or of any sort, is to be found in the Constitution itself. The power to negative extends to all acts of Congress, and nothing is said as to the grounds on which it is to be applied. The executive is left sole arbiter of his rea­sons for applying his negative, save that he is to communicate them to Congress. Congress may judge of their sufficiency ; and if by a majority of two thirds they judge them insufficient, they count, for nothing, and the measure becomes a law in spite of them. It is clear, from the debates of the Convention, that the Convention did not intend to restrict the power to the sim­ple constitutionality of the acts of Congress ; that power is in the judiciary, and the executive veto, if so restricted, would have been superfluous. The Convention believed that acts might be passed, not absolutely unconstitutional, which, never­theless, would tend to impair the independence of the execu­tive, or would be impolitic or unjust, and it was to provide a negative on such acts, which the judiciary could not reach, that they gave the executive his qualified negative. The policy and justice, as well as the constitutionality, of acts of Congress are, then, we must believe, proper subjects for the executive to consider ; and since to confine him to the question of con­stitutionality alone would deprive him of the power to main­tain the independence of the executive department of govern­ment, we must hold that he not only is not, but ought not to be, so confined in the employment of his negative.
Our readers will perceive that we have given ourselves a considerable latitude of discussion. Our object has, indeed, been to defend the veto power, but at the same time to draw attention to those general principles of our Constitution and government, which, in the democratic excitement of the times, and the bustle and confusion created by party struggles, we are in danger of forgetting. "We have wished to point out the place of the executive veto in our plan of government, and inci­dentally to lay open and defend that plan itself. The writer of this is no political theorist; he is an American, and an Ameri­can conservative, both from principle and from inclination, and is opposed alike to innovations in the system of government established, and to the experimental legislation which has be­come so much the rage. He believes that the Constitution is too little studied, and that the real character of our institutions is too little understood and appreciated. If what he has said shall excite any of our gifted and learned young men to a more diligent study of the American Constitution, his purpose will have been answered, and he will not have written in vain.