Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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VETO

III.291.1

VETO (IN U. S. HISTORY). I. BEFORE THE CONSTITUTION. The power in the executive to apply some check to the absolute power of the legislative, is an evident necessity in a national government. Franklin long ago noted that absolute power, if it must be granted at all, had better be granted to the executive than to the legislative. "A single man may be afraid or ashamed of doing injustice; a body is never either one or the other, if it is strong enough. It can not apprehend assassination, and by dividing the shame among them, it is so little apiece that no one minds it." The only question is whether the executive should possess a power of absolute, final prohibition of legislation, or a qualified and limited check. The veto. "I forbid," of the Roman tribunes, was absolute; the American veto is qualified.

III.291.2

—By the theory of the British constitution the crown has an absolute veto on all legislation; no bill can become a law without the royal signature. Since 1692 the power has never been exercised, and its exercise now would probably provoke a revolution. Instead of it, an adverse vote of the house of lords has been used as a sort of veto upon the action of the house of commons; but its exercise, in matters on which the commons are obstinately bent, is now qualified by the tacit understanding, that "it is well enough once, by way of a joke, but it must not be repeated." Sometimes the way toward the final capitulation of the lords is smoothed by admitting unimportant amendments; sometimes a small majority is swamped by the creation of new peers. In 1871, when the lords obstinately resisted the bill for the abolition of the purchase of military commissions, the Gladstone ministry took the unusual step of putting the principle of the bill in force by royal warrant, as an act of prerogative. The lords, thus pressed, passed the bill with a spiteful vote of censure on the ministry. In any event, the veto of the lords is a very limited one.

III.291.3

—But in the colonies, before the American revolution, the veto power of the crown was enforced with double rigor. In Connecticut and Rhode Island the governors were chosen by the colonies, and had no veto power. In other colonies the governor, whether appointed by proprietors or by the crown, had an absolute veto on the colonial legislature; and the crown had an absolute veto on the action of the governor and legislature. The veto was constantly used by governors to extort money or favors. In Pennsylvania, says Franklin, "it became at last the regular practice to have orders on the treasury in his favor presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter." In many of the colonies, as in South Carolina, the persistent veto of the governor led to his expulsion before hostilities fairly broke out. In others, as in Virginia, the persistent veto of acts to check the slave trade formed one of the most prominent of revolutionary grievances. All of them agreed, in the declaration of independence, on the following, as the first of the reasons for a separation: "He has refused his assent to laws the most wholesome and necessary for the public good; he has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained, and when so suspended he has utterly neglected to attend to them; he has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only; he has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures; he has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people; he has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers." With such an experience of the veto power it is not strange that only one of the original state constitutions (Massachusetts, in 1780) gave its governor even a qualified veto power, and that in the articles of confederation there was no executive veto. Indeed, the articles went to the other extreme. By requiring the assent of nine states to important acts of legislation, they really gave an absolute veto to any minority of five states; and, by requiring the assent of every state to amendments, they gave a veto power to each state. In these respects they more resembled the constitution of the Polish diet, with its liberum veto, its power reserved to each member to veto absolutely any bill introduced into the house. Nullification (see that title) was a subsequent effort to revive and strengthen this state veto, in the interest of slavery and a section.

III.291.4

—II. IN THE FEDERAL CONVENTION. The introduction of an executive power into the new scheme of government necessarily brought with it a veto power. Randolph's "Virginia plan" gave the veto power to the executive "and a convenient number of the national judiciary," to be final, unless overridden "by—of the members of each branch." Pinckney's plan contains a veto provision so like that which was finally adopted that it must have been altered after its first introduction. The "Jersey plan," as it had no executive, had no veto provision. June 4, Gerry proposed as a substitute for Randolph's veto provision, "that the national executive shall have a right to negative any legislative act which shall not afterward be passed by—parts of each branch of the national legislature." Hamilton moved to strike out the last fifteen words, so as to make the negative absolute; this was rejected unanimously. Butler moved that the executive have power to suspend any law for—days; and this was rejected unanimously. The blank in Gerry's motion was then filled by "two-thirds"; and the whole was adopted by a vote of eight states to two. In this form it was reported from the committee, June 19; was sent to the committee of revision July 26, and reported by them almost in its final shape, except that the time for retaining bills was "seven days," instead of "ten days, Sundays excepted," and that it applied only to bills, and not to joint resolutions, orders and votes also, as the final revision made. Aug. 15, "two-thirds" was changed to "three-fourths," by a vote of six states to four, and one divided; but the change was reconsidered and reversed, Sept. 12, by an exactly similar vote. The whole was then made a part of article I., section 7. (See CONSTITUTION.)

III.291.5

—But during these deliberations other questions had been under consideration. Randolph's plan of uniting the judiciary with the president, as a "council of revision," was again offered by Wilson, June 6 and July 21, and voted down. Aug. 15, Madison proposed to give the veto power to either the president or a majority of the supreme court judges, to be overridden by two-thirds of each house, if either the president or the court should veto a bill, or by three-fourths of each house, if both should veto it; but this was also rejected, and this plan was dropped. Another provision, that of a veto upon the state legislatures, was warmly urged from first to last. The sixth resolution of the "Virginia plan" gave Congress power "to negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaty subsisting under the authority of the Union, and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof"; but, by the eighth resolution, the council of revision was to have a veto on the congressional veto, unless the latter should be repeated by the requisite majority. May 31, the first part of the scheme was agreed to, "without debate or dissent." Madison, June 8, wished to extend the national veto to inadvisable as well as unconstitutional laws. He "could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the states to encroach on the federal authority. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them." This extension of the veto was voted down, three states to seven, and one divided. The original provision of the sixth resolution was retained in the report of the committee of the whole, June 13. July 17, the veto on state laws came up for consideration, and Madison again urged it strongly. Gouverneur Morris "was more and more opposed to it. It would disgust all the states and a law that ought to be negatived will be set aside in the judiciary department." This excellent suggestion was at once heeded. The exceedingly dangerous veto power over state laws was dropped forever, and instead of it the "supreme law clause" of the constitution was adopted. Under this, the federal judiciary has exercised, with little notice or danger, a veto power over state laws which congress could hardly have attempted without civil war. (See JUDICIARY.) Aug. 23, after the senate had been made a part of the constitution, Charles Pinckney moved that power be given to two-thirds of each house to negative state laws; but six states to five refused to send the proposition to the committee. In a single case, that of state impost laws, a power of "revision and control" was reserved to congress, Sept. 15. (See INTERNAL IMPROVEMENTS.)

III.291.6

—Hamilton's plan, as read June 18, and still more as finally elaborated for preservation by Madison, would have made the executive veto power a tremendous instrument. It provided that "the governor or president of each state shall be appointed under the authority of the United States, and shall have a right to negative all laws about to be passed in the state of which he shall be governor or president, subject to such qualifications as the legislature of the United States shall prescribe"; and that "no bill, resolution or act of the [national] senate and assembly shall have the force of a law until it shall have received the assent of the president, or of the vice-president when exercising the powers of the president; and if such assent shall not have been given within ten days after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law; and no bill, resolution or other act, not assented to, shall be revived in the same session of the legislature." This proposition was never formally offered, and could never have been passed; but it is an instructive example of a "high-toned government," according to federalist ideas.

III.291.7

—As finally adopted, the veto provision gives the president power to return, with his objections, to the house in which it originated, any bill or joint order resolution or vote, of the two houses. If the vetoed bill is then passed again by two-thirds of each house, it becomes a law; if not, it is a nullity. If the president does not return the bill, with objections, within ten days (Sundays excepted), it becomes a law, unless congress adjourns within the ten days, in which case it shall not be a law. This last stipulation gives the president an absolute veto on all bills, etc., passed during the last ten days of a session of congress: he has only to retain them, as it were, in his pocket, and they are a nullity, even though nine-tenths of both houses should desire to pass them over the veto. This potent executive weapon, angrily called a "pocket veto" at the time, was first employed by Jackson at the close of the session of 1829-;30. He had vetoed the Maysville road bill (see INTERNAL IMPROVEMENTS), but many of his supporters in congress were in favor of internal improvements, and he chose to employ the pocket veto on two similar bills passed afterward. When, in 1833, he disposed of Clay's distribution bill in the same manner, the whigs evolved the ingenious theory that the "adjournment" mentioned in the constitution, which made a pocket veto possible, meant only a voluntary adjournment by congress; that the close of a two-years term of service was not an adjournment in this sense, since the constitution, not congress, prevented the return of bills; and that bills retained by the president at the end of a congress became law without his signature. This notion was never vigorously pressed, however. Evidently, it would put the president at the mercy of a mere majority in congress, which would only need to time the final passage of a bill so late on March 3 of their last year as to make it physically impossible for the president to use his veto power.

III.291.8

—It has also been questioned whether the "two-thirds of each house," requisite to pass bills over the veto, is two-thirds of the number elected, or of the number present. The latter was undoubtedly the intention; for the constitution provides that a majority of each house shall be a quorum to do business, and refers repeatedly to this quorum as "a house." In but one case, the power of the senate to advise and consent to treaties, does it use expressly the words "two-thirds of the senators present"; but the treaty power is rather executive than legislative, and this provision can hardly have any bearing on the plain intent of the constitution in matters of simple legislation.

III.291.9

—The American veto system seems to have struck the safest middle line, and attempts to modify it elsewhere have generally proved injurious. The French constitution of 1789 gave the king a veto power, with a provision that the passage of a law three years in succession should override the veto; but this was a failure, for the impatience of the people could not wait three years for a compliance with their will. The Mexican constitution of 1824, in addition to the presidential veto of the United States, gave each house a qualified veto on the other, as follows: if a bill, passed by one house and rejected by the other, should again be passed by the first house by a two-thirds vote, it could only be rejected by a two-thirds vote of the other house. But this had only its natural effect of hurrying on a revolution by a powerless majority. One modification, the power to veto single clauses, given by the confederate constitution of 1861, fairly deserves consideration. (See RIDERS, I.)

III.291.10

—III. UNDER THE CONSTITUTION. The first exercise of the veto power was by Washington, April 5, 1792. (See APPORTIONMENT.) Until 1830 there were but nine vetoes, two by Washington, none by Adams or Jefferson, six by Madison, and one by Monroe. The most important of these were Madison's veto of the bill to establish a United States bank, Jan. 30, 1815 (see BANK CONTROVERSIES, III.), his veto of the internal improvement bill, March 3, 1817, and Monroe's Cumberland road veto, May 4, 1822. (See INTERNAL IMPROVEMENTS, II.) Jackson vetoed nine bills, including Clay's distribution bill, which he formally vetoed, Dec. 5, 1833, after giving it a pocket veto at the preceding session. Most of these vetoes were put on internal improvement bills; but one, July 10, 1832, was upon a new United States bank bill, and another, June 10, 1836, was upon a bill fixing a day for the meeting of congress. This frequent use of the veto power by Jackson furnished the bond which united a great number of elements into the whig party, and gave it a name. (See WHIG PARTY, II.) The whig animosity to the veto power was revived by its exercise during Tyler's administration. He vetoed two United States bank bills, Aug. 16 and Sept. 9, 1841 (see BANK CONTROVERSIES, IV.); two tariff bills, June 29 and Aug. 9, 1842; a bill for harbor improvements in eastern states, June 11, 1844; and a bill for building two revenue cutters, Feb. 20, 1845, on account of ambiguity in the language. Polk vetoed two bills, a river and harbor bill, Aug. 3, 1846, and a bill for the settlement of French spoliation claims, Aug. 8, 1846; but an internal improvement bill, passed March 3, 1847, which had been disposed of by a pocket veto, was formally vetoed at the following session, Dec. 15, 1847. Pierce used the veto nine times, on a bill appropriating lands for insane poor, May 3, 1854; an internal improvement bill, Aug. 4, 1854; a French spoliation claims bill, Feb. 17, 1855; an appropriation for the Collins ocean mail steamers, March 3, 1855; two special internal improvement bills, May 19, 1856, another May 22, and two others, Aug. 11 and Aug. 14. Buchanan vetoed a homestead bill, June 22, 1860, in which the price of lands had been reduced by southern senators to so low a figure (25 cents an acre) as to provoke a veto. Lincoln regularly stated any minor objections which he held to any bill in the message approving it; and congress usually obviated the objections by supplementary legislation. June 23, 1862, he vetoed a bill to allow the circulation of bank notes of less than $5 value in the District of Columbia. July 12, 1862, while approving a confiscation bill, he transmitted a veto message already prepared, the necessity for which had been removed by a subsequent explanatory resolution of congress. Up to this time the veto power on legislation had been final, since the two-thirds majority necessary to override it had not been obtained.

III.291.11

—The accession of Andrew Johnson, a southern democrat, to the presidency, with a congress in which the republicans had a strong majority, but would not have a two-thirds majority if all the insurrectionary states should be allowed to send democrats to the senate and house of representatives, made a conflict inevitable. Congress was determined to secure, while it had the power to secure, the right of negroes to suffrage; and the president was as determined to obstruct reconstruction, unless the southern delegations were admitted at once, when the republican two-thirds majority would be at an end, the veto would be as potent as it had always been, and the president could control the course of reconstruction. From February, 1866, until March, 1869, there was an almost continuous storm of vetoes, most of them upon reconstruction bills, or bills extending the principles of negro suffrage in various directions. During 1866 there were the vetoes of the first freedman's bureau bill, Feb. 19; of the civil rights bill, March 27; of the Colorado bill, May 15; and of the second freedmen's bureau bill, July 16; and, on the adoption of the 14th amendment, a message was sent to congress, June 22, suggesting that there were "grave doubts" as to the power of congress to frame an amendment while eleven states were refused representation. In 1867 there were the vetoes of the bill regulating suffrage in the District of Columbia, Jan. 5; of the second Colorado bill, Jan. 29; of the Nebraska bill, Jan. 30; of the tenure of office bill, March 2; of the reconstruction bill, March 2; and of the supplementary reconstruction bills of March 23 and July 19. In 1868 there were the vetoes of the bill regulating appeals on habeas corpus, March 25; of the bills for the re-admission of Arkansas, June 20, and North Carolina, South Carolina, Florida, Georgia, Alabama and Louisiana, June 25; and of the joint resolution denying validity to the electoral votes of unreconstructed states. (See, for further particulars, RECONSTRUCTION, and titles of bills mentioned.) Many other bills, which the president neither wished to sign nor cared to veto, were left ten days, and became law without his signature. Congress left him little opportunity for "pocket vetoes," but on his retirement from office, March 3, 1869, he had such an opportunity, and used it, in the case of three bills, which were immediately afterward passed again, and signed by President Grant.

III.291.12

—President Grant's two vetoes were those upon the bill to increase the amount of "greenbacks" to $400,000,000, and to authorize the issue of $46,000,000 in national bank notes, April 22, 1874, and the bill to repeal the increase of the president's salary to $50,000, April 19, 1876. Various circumstances made President Hayes' term of office more prolific in vetoes. In addition to a distinct group of vetoes (see RIDERS, II.), were those upon the bill to authorize the coinage of silver dollars, February 28, 1878; the bill to restrict Chinese immigration, March 1, 1879; and the bill to fund $700,000,000 of the national debt at 3 per cent., March 3, 1881. President Arthur vetoed a bill to restrict Chinese immigration, also a river and harbor bill of about $20,000,000, in 1882.

III.291.13

—IV. IN THE STATES. Four of the states, Delaware, North Carolina, Ohio and Rhode Island, have never given their governors the veto power. In eight others a very limited veto power has been given, which may be overridden by a majority of the whole number elected to each house. These are as follows, the year in which the veto was granted being added: Alabama, 1819; Arkansas, 1836; Connecticut, 1818; Indiana, 1816; Kentucky, 1799; New Jersey, 1844; Vermont, 1836; West Virginia, 1872. In twenty-four others, a two-thirds vote is required to override the veto: California, 1849; Colorado, 1876; Florida, 1865; Georgia, 1789; Illinois, 1870; Iowa, 1846; Kansas, 1859; Louisiana, 1812; Maine, 1820; Massachusetts, 1780; Michigan, 1835; Minnesota, 1857; Mississippi, 1817; Missouri, 1875; Nevada, 1864; New Hampshire, 1792; New York, 1821; Oregon, 1857; Pennsylvania, 1790; South Carolina, 1865; Tennessee, 1870; Texas, 1836 (republic), 1845 (state); Virginia, 1870; Wisconsin, 1848. In Maryland (1867) and Nebraska (1875) a three-fifths vote is requisite. But one state, Kentucky, has changed from a two-thirds vote (1792) to a majority vote (1799). The following states, now requiring a two-thirds vote, as above, required only a majority vote at first: Florida, 1838; Illinois, 1848; Missouri, 1820. Connecticut, Maryland, South Carolina, Tennessee, Virginia and West Virginia were without the veto power until it was granted in the years mentioned above. In Nebraska a two-thirds vote only was needed from 1866 until 1875. In Illinois, 1818-;48, the veto power was given to the governor and supreme court judges, to be reversed by a majority vote; and in New York, 1777-;1821, to the governor, chancellor and supreme court judges, to be reversed by a two-thirds vote. In Vermont, 1786-;1836, a suspensory power until the following session was given to the governor and council. In the states the tendency generally has been to increase the strength of the veto power by making the votes of two-thirds of all the members elected requisite to override it, and, further, by giving the power to veto single sections of appropriation bills. (See RIDERS, III.)

III.291.14

—The veto messages until 1858 are in the Statesman's Manual: since that time they must be sought under their dates in the Congressional Globe and Congressional Record. See also 4 Franklin's Works, 283; 4 Elliot's Debates, 620; 5 ib., 108, 130, 151, 190, 205, 385, 534, 560, 588-;9: 2 Curtis' History of the Constitution, 57, 264; 4 Whig Review, 325; 9 ib., 16; 10 ib., 111; 14 Benton's Debates of Congress, 494; 3 Webster's Works, 416; 1 ib., 267; 1 Colton's Life and Times of Clay, 496; 1 Kent's Commentaries, 226; Federalist, LI., LXXIII.; Story's Commentaries, § 878, and note to § 1566 (Madison's letter of June 25, 1831, on the veto); Poore's Federal and State Constitutions.

ALEXANDER JOHNSTON.

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