US 768.12 THE VETO POWER, AND ITS EXERCISE; IN THE RETURN OF THE BILL TO INCORPORATE THE SUBSCRIBERS TO THE FISCAL BANK OF THE UNITED STATES: AUGUST 16, 1841. NEW-YORK: WILEY AND PUTNAM. - MDCCCXLI. THE VETO POWER, &c. THE return to the Senate by the President, on the 16th inst., of the bill to incorporate the subscribers to the Fiscal Bank of the United States, with his reasons for not signing it, has led us to look very narrowly into the source of so important a power. We have also carefully examined the rules that may be supposed justly to govern its exercise; and, above all, we have critically compared them with the circumstances of the particular instance before us, with a view to ascertain how far the President may or may not be justified on grounds of right and equity, in thus refusing his signature to a bill passed by a majority of both houses. The Constitution, Art. 1, Sec. 7, 2, is as follows: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President: 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," &c. This Constitution is the frame of government under which we live; a government deliberately created by the people themselves, and which, we may assume for the sake of argument, they intend shall be binding and of force, until reversed by the same power that originally called it into existence. The three first articles treat respectively of Legislative, Executive, and Judicial powers; and, as there are no others expressed or implied in it, we may say, that it has divided the government into these three departments. This di vision, simple and obvious in itself, seems naturally to belong to the very idea of the civil fabric. But Government is not a mass of dead materials, -a stone wall, for instance, that when once put together, with proper regard to the vis inertiæ of matter, may be expected to stand indefinitely. On the contrary, it is a breathing machine, a complication of living agents, with vigorous and active powers, intended to live, to act and move in an endless variety of circumstances. It might, perhaps, be compared to the mason-work of a wall, in which each individual block should be instinct with life and motion, perpetually stirring and crowding its neighbours; and with materials of this peculiar kind, every engineer would admit the difficulty of preserving the equipoise and stability of the structure. Hence it is found, that the merit of all government consists in the mode in which these powers, common to every system, are deposited; the skill with which their action is limited and defended; and the certainty, that, while each of these natural forces, so to speak, is made to fill up its proper scope, it shall not go beyond, and thus destroy, the equilibrium of the whole structure. In our own Government, particularly, the highest effort of its framers has been to arrange a system of checks and balances, that shall prevent any one department from exceeding its proper duties, so as to disorder the whole machine, and thereby peril the liberties and welfare of the people, which it is the main office of free institutions to embalm. One of these checks, and not the least important, is contained in the provision just cited. The reasons for giving the President a negative upon all bills passed by Congress, cannot be better explained than in the words of Hamilton: "The propensity of the legislative department to intrude upon the rights, and absorb the powers of the other departments, has been already more than once suggested; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the executive upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authority by successive resolutions, or annihilated by a single vote. And, in one mode or the other, the legislative and executive powers might speedily come to be blended. in the same hands. "But the power in question has a further use. It not only serves as a shield to the executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body."-Works 3v. 106. It is plain, then, from the words of the Constitution, that no bill passed by Congress can become a law, without the assent of the President; and it is equally clear, by the same indisputable authority, that he may withhold his assent from any bill that he does not approve. In this, the President is not made a constituent of the legislative power, but, rather, is invested with a control of that department. His faculty lies in rejecting, not in resolving-like the negative of the Roman tribunes-Sulla tribunis plebis sud sua lege injuriæ faciendæ potestatem ademit, auxilii ferendi reliquit. The text, as well as this exposition of it, show that it was intended to entrust the President with a power of control over the acts of a majority of both houses; thereby directly implying, that the necessity for such control would sometime exist. As to the occasions upon which it is proper for the President to exercise the power, a difference of opinion exists. 'The practice of former Presidents has, perhaps, in no little degree contributed to this. But a more sufficient cause for |