Commentaries on American Law (1826-30)
Chancellor James Kent
THE power of making laws is the supreme rower in a state, and the department in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision.
The constitution of the United States has effected this purpose with great felicity of execution, and in a way well calculated to preserve the equal balance of the government, and the harmony of its operations. It has not only made a general delegation of the legislative power to one branch of the government, of the executive to another, and of the judicial to the third, but it has specially defined the general powers and duties of each of those departments. This was essential to peace and safety in a government clothed only with specific powers for national purposes, and erected in the midst of numerous state governments retaining the exclusive control of their local concerns. It will he the object of this lecture to review the legislative department; and I shall consider this great title in our national polity under the following heads: (1.) The constituent parts of Congress, and the mode of their appointment: (2.) Their joint and separate powers and privilege: (3.) Their method of enacting laws, with the qualified negative of their President.
(1.) By the constitution,1 all the legislative powers therein granted, are vested in a congress, consisting of a senate land house of representatives.
The division of the legislature into two separate and independent branches, is founded on such obvious principles of good policy, and is so strongly recommended by the unequivocal language of experience, that it has obtained the general approbation of the people of this country. The great object of this separation of the legislature into two houses, acting separately, and with coordinate powers, is to destroy the evil effects of sudden and strong excitement and of precipitate measures springing from passion, caprice, prejudice, personal influence, and party intrigue, and which, have been found, by sad experience, to exercise a potent and dangerous sway in single assemblies. A hasty decision is not so likely to arrive to the solemnities of a law, when it is to be arrested in its course, and made to under go the deliberation, and probably the jealous and critical revision, of another, and a rival body of men, sitting in a different place, and under better advantages to avoid the prepossessions, and correct the errors of the other branch. The legislatures of Pennsylvania and Georgia consisted originally of a single house. The instability and passion which marked their proceedings were visible at the time, and the subject of much public animadversion; and in the subsequent reform of their constitutions, the people were so sensible of this defect, and of the inconvenience they had suffered from it, that in both states a senate was introduced. No portion of the political history of mankind is more full of instructive lessons on this subject, or contains more striking proof of the faction, instability, and misery of states, under the dominion of a single unchecked assembly, than that of the Italian republics of the middle ages; and which arose in great numbers, and with dazzling but transient splendor, in the interval between the fall of the Western and the Eastern empire of the Romans. They were all alike ill-constituted, with a single unbalanced assembly; they were all alike miserable, and all ended in similar disgrace.2
Many speculative writers and theoretical politicians, about the time of the commencement of the French revolution, were struck with the simplicity of a legislature with a single assembly, and concluded that more than one house was useless and expensive. This led the elder President Adams to write and publish his great work, entitled, “A Defense of the Constitutions of Government of the United States,” in which he vindicates, with much learning and ability, the value and necessity of the division of the legislature into two branches, and of the distribution of the different powers of the government into distinct departments. He reviewed the history, and examined the construction of all mixed and free governments which had ever existed, from the earliest records of time, in order to deduce with more certainty and force, his great practical truth, that single assemblies, without check or balance, or a government with all authority collected into one center, according to the notion of M. Turgot, were visionary, violent, intriguing, corrupt, and tyrannical dominations of majorities over minorities, and uniformly and rapidly terminating their career in a profligate despotism.
This visionary notion of a single house of the legislature was carried into the constitution which the French national assembly adopted in 1791. The very nature of things, said the intemperate and crude politicians of that assembly, was adverse to every division of the legislative body; and that, as the nation which was represented was one, so the representative body ought to be one also. The will of the nation was indivisible, and so ought to be the voice which pronounced it. If there were two chambers, with a veto upon the acts of each other, in some cases they would be reduced to perfect inaction. By such reasoning, the national assembly of France, consisting of upwards of one thousand members, after a short and tumultuous debate, almost unanimously voted to reject the proposition of an upper house.3 The same false and vicious principle continued for some time longer to prevail with the theorists of that country; and a single house was likewise established in the plan of government published by the French convention in 1793. The instability and violent measures of that convention, which continued for some years to fill all Europe with astonishment and horror, tended to display in a most forcible and affecting light, the miseries of a single unchecked body of men, clothed with all the legislative powers of the state. It is very possible that the French nation might have been hurried into the excesses of a revolution even under a better organization of their government; but if the proposition of M. Lally Tolendal to constitute a senate, or upper house, to be composed of members chosen for life, had prevailed, the constitution would have had much more stability, and would probably have beer. much better able to preserve the nation in order and tranquillity. Their own sufferings taught the French people to listen to that oracle of wisdom, the experience of other countries and ages, and which for some years they had utterly disregarded, amidst the hurry and the violence of those passions by which they were inflamed. No people, said M. Boissy d’Angles in 1795, can testify to the world with more truth and sincerity than Frenchmen can do, the dangers inherent in a single legislative assembly, and the point to which factions may mislead an assembly without reins or counterpoise. We accordingly find that in the next constitution, which arose in 1797, there was a division of the legislature, and a council of ancients was introduced to give stability and moderation to the government; and this idea of two houses was never afterwards abandoned.
The senate of the United States is composed4 of two senators from each state, chosen by the legislature thereof for six years, and each senator has one vote. The senate at present consists of forty-eight members, representing the twenty-four states of the union. In this part of the constitution we readily perceive the features of the old confederation. Each state has its equal voice and equal weight in the senate, without any regard to disparity of population, wealth, or dimensions. This arrangement must have been the result of that spirit of amity and mutual concession, which was rendered indispensable by the peculiarity of our political condition. It is grounded on the idea of sovereignty in the states; and every independent community, as we have already seen,5 is equal by the law of nations, and has a perfect right to dictate its own terms before it enters into a social compact. On the principle of consolidation of the states, this organization would have been inadmissible, for in that case each state would have been merged in one single and entire government. At the time the articles of confederation were preparing, it was attempted to allow the states an influence and power in congress in a ratio to their numbers and wealth, but the idea of separate and independent states was at that day so strongly cherished, that the proposition met with no success.6
The election of the senate by the states legislatures, is also a recognition of their separate and independent existence, and renders them absolutely essential to the operation of the national government. There were difficulties some years ago as to the true construction of the constitution in the choice of senators. They were to be chosen by the legislatures, and the legislature was to prescribe the times, places, and manner, of holding elections for senators, and Congress are authorized to make and alter such regulations, except as to the place.7 As the legislature may prescribe the manner, it has been considered and settled in this state, that the legislature may prescribe that they shall be chosen by joint vote or ballot of the two houses, in case the two houses cannot separately concur in a choice, and then the weight of the senate is dissipated and lost in the more numerous vote of the assembly. This construction has become too convenient, and has been too long settled by the recognition of senators so elected, to be now disturbed; though I should think, if the question was a new one, that when the constitution directed that the senators should be chosen by the legislature, it meant not to the members of the legislature per capita, but the legislature in the true technical sense, being the two houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other’s proceedings. This was a contemporary exposition of the clause in question, and was particularly maintained in the well known letters of the Federal Farmer,8 who surveyed the constitution with a jealous and scrutinizing eye.
The small number, and long duration of the Senate, were intended to render them a safeguard against. the influence of those paroxysms of heat and passion, which prevail occasionally in the most enlightened communities, and enter into the deliberation of popular assemblies. In this point of view, a firm and independent senate is justly regarded as an anchor of safety amidst the storms of political faction; and for the want of such a stable body, the republics of Athens and Florence were overturned by the fury of commotions, which the senates of Sparta and Rome might have been able to withstand. The characteristic qualities of the senate, in the intendment of the constitution, are wisdom and stability. The legal presumption is, that the senate will entertain more enlarged views of public policy, will feel a higher and juster sense of national character, and a greater regard for stability in the administration of the government. These qualities, it is true, may, in most cases, be equally found in the other branch of the legislature, but the constitutional structure of the house is not equally calculated to produce them; for, as the house of representatives comes more immediately from the people, and the members hold their seats for a much shorter time, they are presumed to partake, with a quicker sensibility, of the prevailing temper and irritable disposition of the times, and to be in much more danger of adopting measures with precipitation, and of changing them with levity. A mutable legislation is attended with a formidable train of mischiefs to the community. It weakens the force, and increases the intricacy of the laws, hurts credit, lessens the value of property, and it is an infirmity very incident to republican establishments, and has been a constant source of anxiety and concern to their most enlightened admirers.9 A disposition to multiply, and to change laws, upon the spur of the occasion, and to be making constant sand restless experiments with the statute code, seems to be the natural disease of popular assemblies. In order, therefore, to counteract such a dangerous propensity, and to maintain a due portion of confidence in the government, and to insure its safety and character at home and abroad, it is requisite that another body of men, coming likewise from the people, and equally responsible for their conduct, but resting on a more permanent basis, and constituted with stronger inducements to moderation in debate, and to tenacity of purpose, should be placed as a check upon the intemperance of the more popular department.
The senate have been, from the first formation of the government, divided into three classes; and the rotation of the classes was originally determined by lot, and the seats of one class are vacated at the expiration of every second year, and one third of the senate are chosen every second year.10 This provision was borrowed from a similar one in some of the state constitutions, of which Virginia gave the first example; and it is admirably calculated, on the one hand, to infuse into the senate biennially, renewed public confidence and vigor; and, on the other, to retain a large portion of experienced members, duly initiated into the general principles of national policy, and the forms and course of business in the house.
The superior weight and delicacy of the trust confided to the senate, and which will be shown more fully hereafter, is a reason why the constitution11 requires that a senator should be thirty years of age, and nine years a citizen of the United States, and, at the time of his election, an inhabitant of the state for which he is chosen. The same age was also requisite for a Roman senator, though, in their executive officers, no qualification of age was required. Ne aetas quidem distinguebatur quin prima juventa consulatum ac dictaturas inirent.12 It has also been deemed fit and proper, in a country which was colonized originally from several parts of Europe, and has been disposed to adopt the most liberal policy towards the rest of mankind, that a period of citizenship sufficient to create an attachment to our government, and a knowledge of its principles, should render an emigrant eligible to office. The English policy is not quite so enlarged. No alien born can become a member of parliament. This disability was imposed by the act of settlement of 12 Wm. III c. 2.; and no bill of naturalization can be received in either house of parliament, without such disabling clause in it.
The house of representatives is composed of members chosen every second year by the people of the several states, who are qualified electors of the most numerous branch of the legislature of the state to which they belong. No person can be a representative until he has attained the age of twenty five years, and has been seven years a citizen of the United States, and is, at the time of his election, an inhabitant of the state in which he is chosen.13
The general qualifications of electors of the assembly, or most numerous branch of the legislature in the several state governments, are, that they be of the age of twenty-one years and upwards, and free resident citizens of the state in which they vote, and have paid taxes; and in some of the states they are required to possess property, and to be white as well as free citizens. The description is almost every where so large, as to include all persons who are of competent discretion, and are interested in the welfare of the government, and liable to bear any of its duties or burdens. The house of representatives may, therefore, very fairly be said to represent the whole body of the American people. Several of the state constitutions have prescribed the same, or higher qualifications, as to property in the elected, than the electors, and some of them have required a religious test. But the constitution of the United States requires no evidence of property in the representative, nor any declaration of religious belief. He is only required to be a citizen of the competent age, and free front any undue bias or dependence by not holding any office under the United States.14
The term for which a representative is to serve ought not to be so short as to prevent him from obtaining a comprehensive acquaintance with the business to which he is deputed; nor so long as to make him forget the transitory nature of his seat, and his state of dependence on the approbation of his constituents. It ought also to be considered as a fact deeply interesting to the character and utility of representative republics, that very frequent elections have a tendency to render the office less important than it ought to be deemed, and the people inattentive in the exercise of their right; whilst, on the other hand, long intervals between the elections are apt to make them produce too much excitement, and consequently to render the periods of their return a time of too much competition and conflict for the public tranquillity. The constitution has certainly not deviated in this respect to the latter extreme, in the establishment of biennial elections. It has probably selected a medium, which, considering the situation and extent of our country, combines as many advantages, and avoids as many inconveniences, as any other term which might have been inserted.
The representatives are directed to be apportioned among the states, according to numbers, which is determined by adding to the whole number of free persons, exclusive of Indians not taxed, three fifths of all other persons.15 The number of representatives cannot exceed one for every thirty thousand, but each state is entitled to have at least one representative. By the act of 7th March, 18:22, the representatives were apportioned among the several states according to the fourth census, and to a ratio of one representative for every forty thousand persons in each state, making in the whole two hundred and thirteen members, the number of which the present house of representatives is composed, besides delegates from three of the territories belonging to the United States, and which have a right to debate, but not to vote.
The rule of apportionment established by the constitution is exposed to the objection, that three fifths of the slaves in the southern states are computed in establishing the apportionment of the representation. But this article was the result of necessity, and grew out of the fact of the existence of domestic slavery in a portion of our country. The evil has been of too long standing, and is too extensive and too deeply rooted to be speedily eradicated, or even to be discussed without great judgment and discretion. But the same rule which apportions the representatives, extends to direct taxes; and the slaves in the southern states, while they give those states an increased number of representatives, contribute, on the other hand, when that mode of taxation is resorted to, equally to increase the measure of their contributions.16
The number of the house of representatives would seem to be quite large enough on its present computation, and unless the ratio be hereafter enlarged beyond one to every forty thousand persons, the house will be in danger of increasing too rapidly, and it will probably become, in time, much too unwieldy a body for convenience of debate and joint consultation. A due acquaintance with the local interest of every part of the union ought to be carried into the house, and a sufficient number collected for all the purposes of information, discussion, and diffusive sympathy with the wants and wishes of the people. When these objects are obtained, any further increase neither promotes deliberation, nor increases the public safety. All numerous bodies of men, although selected with the greatest care, are too much swayed by passion, aud too impatient of protracted deliberation.
The United States, in their improvements upon the exercise of the right of representation, may certainly claim pre-eminence overall other governments, ancient and modern. Our elections are held at stated seasons established by law. The people vote by ballot in small districts, and public officers preside over the elections, receive the votes, and maintain order and fairness. Though the competition between candidates is generally active, and the zeal of rival parties sufficiently excited, the elections are everywhere conducted with tranquillity. The legislature of each state prescribes the times, places, and manner of holding elections, subject, however, to the interference and control of congress, which is permitted them for the sake of their own preservation, and which it is to be presumed they will never be disposed to exercise, except when any state shall neglect or refuse to make adequate provision for the purpose. The privilege of voting, as we have already seen, is conferred upon all persons who are of sufficient competency by their age, and of sufficient ability to take care of themselves. The ancient Greeks and Romans had not only very imperfect notions of the value of representation, but the number and power of their popular assemblies were so great, and they were so liable to disorder, as to render it a very provident measure with them to be guarded in diffusing the privileges of free citizens. Not a tenth part of the people of Athens were admitted to the privilege of voting in the assemblies of the people; and indeed nine-tenths of the inhabitants throughout all Greece were slaves.17 In Sparta, the number of votes was fixed at ten thousand. In Rome this privilege was for many ages confined to the Pomaeria of the city, and it continued to be so confined, and to be tolerable in its operation,18 until the memorable social war extended it to all the inhabitants of Italy. As no test of property or character was required, and as the people assembled within the walls of Rome in immense masses, and not merely to vote, but to make laws, this great innovation produced the utmost anarchy and corruption, and has justly been regarded as precipitating the fall of that commonwealth.19
The English nation, in common with the other feudal governments of Europe, very anciently enjoyed the blessings of popular representation, and the knights, citizens, and burgesses, were intended to represent the farmers, merchants, and manufacturers, being the several orders and classes of people of which the nation was composed.20 But the mutations of time, and commerce, and manufacturing establishments, in depopulating ancient boroughs, and in establishing new cities, have insensibly changed the structure of the house of commons, and rendered it, in theory at least, a very inadequate and imperfect organ of the will of the nation. Archdeacon Paley observed, forty years ago,21 that about one half of the commons were elected by the people, and the other half came in by purchase, or by the nomination of single proprietors of great estates. So extremely unequal is the popular vote at elections in England, that less than seven thousand voters return nearly one half of the house of commons. But, notwithstanding the great imperfection of the constitution of the English house of commons, if it were to be tested by the arithmetical accuracy of our own political standards, it has, nevertheless, in all periods of English history, felt strongly the vigor of the popular principle. While on the continent of Europe the degeneracy of the feudal system, the influence of the papal hierarchy, the political maxims of the imperial or civil law, and the force of standing armies, extinguished the bold and irregular freedom of the Gothic governments, and abolished the representation of the people, the English house of commons continued to be the asylum of European liberty; and it maintained its station against all the violence of the Plantagenet line of princes, the haughty race of the Tudors, and the unceasing spirit of despotism in the house of Stuart. And when we take into consideration the admirable plan of their judicial polity, and. those two distinguished guardians of civil liberty, trial by jury, and the freedom of the press, it is no longer a matter of astonishment, that the nation in full possession of those inestimable blessings, should enjoy greater security of person and property, than ever was enjoyed in Athens or Sparta., Carthage or Rome, or in any of the commonwealths of Italy, during the period of the middle ages.
I proceed next to consider the privileges and powers of the two Houses of Congress, both aggregately and separately.
Each house is made the sole judge of the election, return, and qualifications of its members.22 The same power is vested in the British house of commons, and in the legislatures of the several states; and there is no other body known to the constitution to which such a power might safely be trusted. It is requisite to preserve a pure and genuine representation, and to control the evils of irregular, corrupt, and tumultuous electrons; and as each house acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to, for the sake of uniformity and certainty. A majority of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner, and under such penalties, as each house may provide Each house, likewise; determines the rules of its proceedings, and can punish its members for disorderly behavior; and with the concurrence of two thirds, expel a member. Each house is likewise bound to keep a journal of its proceedings, and from time to time publish such parts as do not require secrecy, and to enter the yeas and nays on the journal, on any question, when desired by one fifth of the members present.23 The members of both houses are likewise privileged from arrest during their attendance on congress, and in going to and returning from the same, except in cases of treason, felony, and breach of the peace.24 These privileges of the two houses are obviously necessary for their preservation and character; and what is still more important to the freedom of deliberation, no member can be questioned out of the house for any speech or debate therein.25
There is no power expressly given to either house of congress to punish for contempts, except when committed by their own members; but in the case of Anderson, who was committed by order of the house of representatives, for a contempt of the house, and taken into custody by the Sergeant at Arms, an action of trespass was brought against the officer, and the question on the power of the house to commit for a contempt, was carried by writ of error to the supreme court of the United States.26 The court decided, that the house had that power, and that it was an implied power, and of vital importance to the safety, character, and dignity of the house. The necessity of its existence and exercise was founded on the principle of self preservation; and the power to punish extends no further than imprisonment, and that will continue no longer than the duration of the power that imprisons. The imprisonment will terminate with the adjournment or dissolution of congress.
The house of representatives has the exclusive right of originating all bills for raising revenue, and this is the only privilege that house enjoys in its legislative character, which is not shared equally by the other, and even these bills are amenable by the senate in its discretion.27 The two houses are an entire and perfect check upon each other in all business appertaining to legislation: and one of them cannot even adjourn, during the session of congress, for more than three days, without the consent of the other, nor to any other place than that in which the two houses shall be sitting.
The powers of congress extend generally to all subjects of a national nature. Many of those powers will hereafter become the subject of particular observation and criticism. At present it will be sufficient to observe, generally, that congress are authorized to provide fort he common defense and general welfare, and for that purpose, among other express grants, they are authorized to lay and collect taxes, duties, imposts and excises; to borrow money on the credit of the United States; to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; to declare war, and define and punish offenses against the law of nations; to raise, maintain and govern armies, and a navy; to organize:, arm and discipline the militia; and to give full efficacy to all the powers contained in the constitution.28 Some of these powers, as the levying taxes, duties, and excises, are concurrent with similar powers in the several states; but in most cases, these powers are exclusive, because the concurrent exercise of them by the states separately would disturb the general harmony and peace, and because they would be apt to be repugnant to each other in practice, and lead to dangerous collisions. The powers which are conferred upon congress, and the prohibitions which are imposed upon the states, would seem, upon a fair and just construction of them, to be indispensable to secure to this country the inestimable blessings of union. The articles of confederation digested during the American war, intended to confer upon congress powers nearly equal to those with which they are now invested; but that compact gave them none of the means requisite to carry those powers into effect. And if the sentiment which has uniformly pervaded the minds of the people of this country be a just one, that the consolidated union of these states is indispensable to our national prosperity and happiness and if we do not wish to be once more guilty of the great absurdity of proposing an end, and denying the means to attain it then we must conclude, that the powers conferred upon congress are not disproportionate to the magnitude of the trust confided to the union, and which the union alone is competent to fulfill.
The rules of proceeding in each House are substantially the same; and though they are essential to the transaction of business with order and safety, they are too minute to be treated at length in an elementary survey of the constitutional polity and general jurisprudence of the United States. The house of representatives choose their own speaker, but the Vice President of the United States is ex officio president of the senate, and gives the casting vote when they are equally divided. The proceedings and discussions in the two houses are public. This affords the community early and authentic information of the progress, reason, and policy of measures pending before congress, and it is likewise a powerful stimulus to industry, to research, and to the cultivation of talent and eloquence in debate. Though these advantages may be acquired at the expense of much useless and protracted discussion, yet the balance of utility is greatly in favor of open deliberation; and it is certain, from the general opposition to the experiment that was made and continued for some years by the senate of the United States, of sitting with closed doors, that such a practice, by any legislative body in this country, would not be endured.
The ordinary mode of passing laws is briefly as follows:29 One day’s notice of a motion for leave to bring in a bill in cases of a general nature, is required. Every bill must have three readings previous to its being passed, and these readings must be on different days, and no bill can be committed or amended until it has been twice read. Such little checks in the forms of doing business, are prudently intended to guard against surprise or imposition. In the house of representatives, bills, after being twice read, are committed to a committee of the whole house, when the speaker leaves the chair, and takes a part in the debate as an ordinary member, and a chairman is appointed to preside in his stead. When a bill has passed one house, it is transmitted to the other, and goes through a similar form; though, in the senate, there is less formality, and bills are often committed to a select committee chosen by ballot. If a bill be altered or amended in the house to which it is transmitted, it is then returned to the house in which it originated, and if the two houses cannot agree, they appoint committees to confer together on the subject. When a bill is engrossed, and has passed the sanction of both houses, it is transmitted to the President of the United States for his approbation. If he approves of the bill, he signs it. If he does not, it is returned, with his objections, to the house in which it originated, and that house enters the objections at large on their journals, and proceeds to reconsider the bill. If, after suck reconsideration, two thirds of that house should agree to pass the bill, it is sent, together with the objections, to the other house, by which it is likewise reconsidered, and if approved by two thirds of that house it becomes a law. But, in all such cases, the votes of both houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered on the journals. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same becomes a law equally as if he had signed it, unless congress, by adjournment, in the mean time, prevents its return, and then it does not become a law.30
The practice in congress, and especially in the second or last session of each congress, of retaining most of their bills until within the last ten days, is attended with the disadvantage of shortening the time allowed to the president for perusal and reflection upon them, and of placing within the power of the president, the absolute negative of every bill presented within the last ten days preceding the 4th of March; and this he can effect merely by retaining them, without being obliged to assign any reason whatever, for he is entitled to ten days to deliberate. Most of the bills that are presented to the president in the second session of congress were, a few years ago, presented to him within the last ten days, and generally within the last two days; but the rules of congress have latterally checked the evils and danger of such an accumulation of business on the last ten days of the session.
The qualified negative of the president upon the formation of laws, is, theoretically at least, some additional security against a passage of improper laws, through prejudice or want of due reflection; but it was principally intended to give to the president a constitutional weapon to defend the executive department, as well as the just balance of the constitution, against the usurpations of the legislative power. To enact laws is a transcendent power; and if the body that possesses it be a full and equal representation of the people, there is danger of its pressing with destructive weight upon all the other parts of the machinery of the government. It has, therefore been thought necessary, by the most skillful and the most experienced artists in the science of civil polity, that strong barriers should be erected for the protection and security of the other necessary powers of the government. Nothing has been deemed more fit and expedient for the purpose, than the provision that the head of the executive department should be so constituted as to secure a requisite share of independence, and that he should have a negative upon the passing of laws, and that the judiciary power, resting on a still more permanent basis, should have the right of determining upon the validity of laws by the standard of the constitution. A qualified negative answers all the salutary purposes of an absolute one, for it is not to be presumed that two thirds of both houses of congress, on reconsideration, with the reasoning of the president in opposition to the bill spread at large upon their journals, will ever concur in any unconstitutional measure. In the English constitution, the king has an absolute negative; but it has not been necessary to exercise it since the time of William III. The influence of the crown has been exerted in a more gentle manner, to destroy any obnoxious measure in its progress through the two houses of parliament. Charles I. stood for a long time upon the strict and forbidding rights of his prerogative; but he was compelled, by the spirit and clamor of the nation, to give his assent to bills which cut down that prerogative, and placed the powers of government in the hands of the parliament. The peremptory veto of the Roman tribunes, who were placed at the door of the senate, would not be reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a labored and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some very feeble limitations. E very bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative given to the President of the United States, appears to be more wisely digested than any of the examples which have been mentioned.
1. Art. 1. sec. I.
2. Adams’ Defense of the American Constitutions, vol. 3, 502.
3. N. A. Reg. for 1791. Hist. p. 49.
4. Art. 1. sec. 3.
5. Lecture 2, p. 21.
6. Journals of Congress, vol. 3, 416.
7. Art. 1. sec. 4.
8. Letter 12.
9. Federalist, vol. 2. No. 62.
10. Art. 1. sec. 3.
11. Art. 1. sec. 3.
12. Tac. Ann. lib. 11. 22.
13. Art. 1. sec. 2.
14. Art. I. sec. 6.
15. Art. l. sec. 2.
16. Federalist, vol. 2. No. 54.
17. Mitford’s Greece, vol. 1. 354, 357.
18. The Roman mode of passing laws, and voting in their comitia, was orderly, and under great checks, during the best periods of the government. When a law was proposed and discussed, and the religious rites duly performed, and no intercession made, the people proceeded to vote, and every citizen was ordered to repair to his century. The method of voting was originally viva voce; but afterwards by ballot by the leges tabellariae, which applied equally to the election of magistrates, to public trials, and to making and repealing laws. The people were made to pass in order over some narrow planks, called pontes into the septa or enclosures, where certain officers delivered to every voter two tablets, one for and one against the proposition, and each person threw into a chest which of them he pleased, and they were pointed off, and the greatest number of points either way determined the sense of the century, and the greatest number of centuries passed for the voice of the whole people, who either passed or rejected the law. See Heineccius’ Antiquit Rom. Jur. lib. 1. tit. 2. sec. 3-11. Opera, tom. 4. where the ancient learning on the subject is collected; and see Hooke’s Rom. Hist. b. 1. c. 7. sec. 4 note.
19. Montesquieu’s Esprit des Loix, tom, 1. 1. 2. c. 2. Grand. et Decad. des Rmn. ch. 9.
20. 1 Black. Com. 174. Millar on the English Constitution, b. 2. c. 6. Sec. 1.
21. Moral Philosophy, p. 369.
22. Art. 1. sec. 5.
23. Art. 1. sec. 5.
24. Art. 1. sec. 6.
25. Art. 1. sec. 8.
26. Anderson v. Dun, 6 Wheaton, 204.
27. Art. 1. sec. 7.
28. Art. 1. sec. 8.
29. See the standing rules and orders of the house of representatives, printed into 1795 by Francis Childs. Legislation was a science cultivated with so much care and refinement among the ancient Romans, that they had laws to instruct them how to make laws. The Lex Licinia, and Lex Ebutia, the Lex Coecilia, and Lex Didia, provided checks, that the law should not unintentionally contain any particular personal privileges, or weaken the force of former laws, or be crowded with multifarious matter. Gravina, De Ortu et Progressu Juris Civilis, lib. 1. ch. 29.
30. Art. 1. sec. 7.