fp73.txt

THE third ingredient towards constituting the vigor of the executive 
        authority, is an adequate provision for its support. It is evident that, 
        without proper attention to this article, the separation of the executive 
        from the legislative department would be merely nominal and nugatory. 
        The legislature, with a discretionary power over the salary and emoluments 
        of the Chief Magistrate, could render him as obsequious to their will 
        as they might think proper to make him. They might, in most cases, either 
        reduce him by famine, or tempt him by largesses, to surrender at discretion 
        his judgment to their inclinations. These expressions, taken in all the 
        latitude of the terms, would no doubt convey more than is intended. There 
        are men who could neither be distressed nor won into a sacrifice of their 
        duty; but this stern virtue is the growth of few soils; and in the main 
        it will be found that a power over a man's support is a power over his 
        will. If it were necessary to confirm so plain a truth by facts, examples 
        would not be wanting, even in this country, of the intimidation or seduction 
        of the Executive by the terrors or allurements of the pecuniary arrangements 
        of the legislative body. It is not easy, therefore, to commend too highly the judicious attention 
        which has been paid to this subject in the proposed Constitution. It is 
        there provided that "The President of the United States shall, at stated 
        times, receive for his services a compensation WHICH SHALL NEITHER BE 
        INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN 
        ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT 
        from the United States, or any of them." It is impossible to imagine 
        any provision which would have been more eligible than this. The legislature, 
        on the appointment of a President, is once for all to declare what shall 
        be the compensation for his services during the time for which he shall 
        have been elected. This done, they will have no power to alter it, either 
        by increase or diminution, till a new period of service by a new election 
        commences. They can neither weaken his fortitude by operating on his necessities, 
        nor corrupt his integrity by appealing to his avarice. Neither the Union, 
        nor any of its members, will be at liberty to give, nor will he be at 
        liberty to receive, any other emolument than that which may have been 
        determined by the first act. He can, of course, have no pecuniary inducement 
        to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are 
        competent powers. Let us proceed to consider those which are proposed 
        to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified 
        negative of the President upon the acts or resolutions of the two houses 
        of the legislature; or, in other words, his power of returning all bills 
        with objections, to have the effect of preventing their becoming laws, 
        unless they should afterwards be ratified by two thirds of each of the 
        component members of the legislative body. The propensity of the legislative department to intrude upon the rights, 
        and to absorb the powers, of the other departments, has been already suggested 
        and repeated; 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 defense, 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 authorities by successive 
        resolutions, or annihilated by a single vote. And in the one mode or the 
        other, the legislative and executive powers might speedily come to be 
        blended in the same hands. If even no propensity had ever discovered itself 
        in the legislative body to invade the rights of the Executive, the rules 
        of just reasoning and theoretic propriety would of themselves teach us, 
        that the one ought not to be left to the mercy of the other, but ought 
        to possess a constitutional and effectual power of self defense. 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. The propriety of a negative has, upon some occasions, been combated by 
        an observation, that it was not to be presumed a single man would possess 
        more virtue and wisdom than a number of men; and that unless this presumption 
        should be entertained, it would be improper to give the executive magistrate 
        any species of control over the legislative body. But this observation, when examined, will appear rather specious than 
        solid. The propriety of the thing does not turn upon the supposition of 
        superior wisdom or virtue in the Executive, but upon the supposition that 
        the legislature will not be infallible; that the love of power may sometimes 
        betray it into a disposition to encroach upon the rights of other members 
        of the government; that a spirit of faction may sometimes pervert its 
        deliberations; that impressions of the moment may sometimes hurry it into 
        measures which itself, on maturer reflection, would condemn. The primary 
        inducement to conferring the power in question upon the Executive is, 
        to enable him to defend himself; the secondary one is to increase the 
        chances in favor of the community against the passing of bad laws, through 
        haste, inadvertence, or design. The oftener the measure is brought under 
        examination, the greater the diversity in the situations of those who 
        are to examine it, the less must be the danger of those errors which flow 
        from want of due deliberation, or of those missteps which proceed from 
        the contagion of some common passion or interest. It is far less probable, 
        that culpable views of any kind should infect all the parts of the government 
        at the same moment and in relation to the same object, than that they 
        should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes 
        that of preventing good ones; and may be used to the one purpose as well 
        as to the other. But this objection will have little weight with those 
        who can properly estimate the mischiefs of that inconstancy and mutability 
        in the laws, which form the greatest blemish in the character and genius 
        of our governments. They will consider every institution calculated to 
        restrain the excess of law-making, and to keep things in the same state 
        in which they happen to be at any given period, as much more likely to 
        do good than harm; because it is favorable to greater stability in the 
        system of legislation. The injury which may possibly be done by defeating 
        a few good laws, will be amply compensated by the advantage of preventing 
        a number of bad ones. Nor is this all. The superior weight and influence of the legislative 
        body in a free government, and the hazard to the Executive in a trial 
        of strength with that body, afford a satisfactory security that the negative 
        would generally be employed with great caution; and there would oftener 
        be room for a charge of timidity than of rashness in the exercise of it. 
        A king of Great Britain, with all his train of sovereign attributes, and 
        with all the influence he draws from a thousand sources, would, at this 
        day, hesitate to put a negative upon the joint resolutions of the two 
        houses of Parliament. He would not fail to exert the utmost resources 
        of that influence to strangle a measure disagreeable to him, in its progress 
        to the throne, to avoid being reduced to the dilemma of permitting it 
        to take effect, or of risking the displeasure of the nation by an opposition 
        to the sense of the legislative body. Nor is it probable, that he would 
        ultimately venture to exert his prerogatives, but in a case of manifest 
        propriety, or extreme necessity. All well-informed men in that kingdom 
        will accede to the justness of this remark. A very considerable period 
        has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, 
        would have scruples about the exercise of the power under consideration, 
        how much greater caution may be reasonably expected in a President of 
        the United States, clothed for the short period of four years with the 
        executive authority of a government wholly and purely republican? It is evident that there would be greater danger of his not using his 
        power when necessary, than of his using it too often, or too much. An 
        argument, indeed, against its expediency, has been drawn from this very 
        source. It has been represented, on this account, as a power odious in 
        appearance, useless in practice. But it will not follow, that because 
        it might be rarely exercised, it would never be exercised. In the case 
        for which it is chiefly designed, that of an immediate attack upon the 
        constitutional rights of the Executive, or in a case in which the public 
        good was evidently and palpably sacrificed, a man of tolerable firmness 
        would avail himself of his constitutional means of defense, and would 
        listen to the admonitions of duty and responsibility. In the former supposition, 
        his fortitude would be stimulated by his immediate interest in the power 
        of his office; in the latter, by the probability of the sanction of his 
        constituents, who, though they would naturally incline to the legislative 
        body in a doubtful case, would hardly suffer their partiality to delude 
        them in a very plain case. I speak now with an eye to a magistrate possessing 
        only a common share of firmness. There are men who, under any circumstances, 
        will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both 
        facilitate the exercise of the power vested in this respect in the executive 
        magistrate, and make its efficacy to depend on the sense of a considerable 
        part of the legislative body. Instead of an absolute negative, it is proposed 
        to give the Executive the qualified negative already described. This is 
        a power which would be much more readily exercised than the other. A man 
        who might be afraid to defeat a law by his single VETO, might not scruple 
        to return it for reconsideration; subject to being finally rejected only 
        in the event of more than one third of each house concurring in the sufficiency 
        of his objections. He would be encouraged by the reflection, that if his 
        opposition should prevail, it would embark in it a very respectable proportion 
        of the legislative body, whose influence would be united with his in supporting 
        the propriety of his conduct in the public opinion. A direct and categorical 
        negative has something in the appearance of it more harsh, and more apt 
        to irritate, than the mere suggestion of argumentative objections to be 
        approved or disapproved by those to whom they are addressed. In proportion 
        as it would be less apt to offend, it would be more apt to be exercised; 
        and for this very reason, it may in practice be found more effectual. 
        It is to be hoped that it will not often happen that improper views will 
        govern so large a proportion as two thirds of both branches of the legislature 
        at the same time; and this, too, in spite of the counterposing weight 
        of the Executive. It is at any rate far less probable that this should 
        be the case, than that such views should taint the resolutions and conduct 
        of a bare majority. A power of this nature in the Executive, will often 
        have a silent and unperceived, though forcible, operation. When men, engaged 
        in unjustifiable pursuits, are aware that obstructions may come from a 
        quarter which they cannot control, they will often be restrained by the 
        bare apprehension of opposition, from doing what they would with eagerness 
        rush into, if no such external impediments were to be feared. This qualified negative, as has been elsewhere remarked, is in this State 
        vested in a council, consisting of the governor, with the chancellor and 
        judges of the Supreme Court, or any two of them. It has been freely employed 
        upon a variety of occasions, and frequently with success. And its utility 
        has become so apparent, that persons who, in compiling the Constitution, 
        were violent opposers of it, have from experience become its declared 
        admirers. [1] I have in another place remarked, that the convention, in the formation 
        of this part of their plan, had departed from the model of the constitution 
        of this State, in favor of that of Massachusetts. Two strong reasons may 
        be imagined for this preference. One is that the judges, who are to be 
        the interpreters of the law, might receive an improper bias, from having 
        given a previous opinion in their revisionary capacities; the other is 
        that by being often associated with the Executive, they might be induced 
        to embark too far in the political views of that magistrate, and thus 
        a dangerous combination might by degrees be cemented between the executive 
        and judiciary departments. It is impossible to keep the judges too distinct 
        from every other avocation than that of expounding the laws. It is peculiarly 
        dangerous to place them in a situation to be either corrupted or influenced 
        by the Executive.