ON THE AMENDMENT OF THE CONSTITUTION RESPECTING THE VETO POWER.
IN THE SENATE OF THE UNITED STATES, JANUARY 24, 1842.
[THE frequent use of the veto power, by presidents Jackson and Tyler, by which very important bills passed by congress had been defeated, to the detriment of the public interests, induced Mr. Clay, before resigning his seat in the senate, to propose an amendment of the constitution, limiting the power of the president in this respect, on which subject he addressed the senate as follows. There were also two other resolutions submitted by Mr. Clay, having in view the same object—namely, the reduction of executive power within proper limits; first, that no senator or representative should be appointed to any office under the United States during the term for which he was elected; second, the secretary of the treasury to be chosen by congress.]
WHATEVER, said Mr. Clay, might be the ultimate fate of the amendment which had just been read, or of the two other kindred amendments which he had the honor of offering at the same time with it, he should at least enjoy the consciousness of having discharged his duty in their presentation. He must regret, indeed, that the duty of presenting and of advocating their adoption by the senate, had not devolved upon abler and more skilful hands; still, however, he considered the measure as one he was bound in conscience to present in his place, for the action of this body.
Nor had the performance of this duty been prompted, as some might suppose, and as had been suggested in certain quarters, by any recent exercise of the power to which the resolution has reference; yet, he was free to confess, that although the subject was one which had long been in his mind, and on which he had thought much and deeply for years past, the course of recent events had certainly not tended to weaken, if it had not added much to the strength of his impressions on the general subject. As far back as seven years ago, a worthy and lamented friend of his, from Maryland, now no more, had, in concert with himself, presented a proposition the object of which had been to modify, and further to restrain the exercise by the executive, of this veto power. The drafting of the resolution, its presentation, and even the observations with which it was to be accompanied, all had been subjects of joint consultation and consideration between himself and thatgentleman. He adverted to this fact for no other purpose than to repel the idea, if it were entertained in the mind of any who now heard him, that the amendment now under consideration, and the others which accompanied it, had been suggested by recent occurrences. As far back as June, 1840, on one of the most solemn occasions in which he had ever been called to address a popular assembly—he alluded to the time when he enjoyed the opportunity of addressing the friends of his youth, and the people of his native county of Hanover, on the subject of the duties to be looked for at the hands of the new whig administration, which was expected to come into power, in consequence of the glorious and universal triumph of the whig party at the then approaching election—he had placed emphatically, and in front of them all, that which formed the subject of the present resolution. After speaking of the veto power generally, and more particularly of it’s exercise by a late president of the United States, the speech proceeded to say:
‘The first, and, in my opinion, the most important object which should engage the serious attention of a new administration, is that of circumscribing the executive power, and throwing around it such limitations and safeguards as will render it no longer dangerous to the public liberties.
‘Whatever is the work of man, necessarily partakes of his imperfections; and it was not to be expected, that, with all the acknowledged wisdom and virtues of the framers of our constitution, they could have sent forth a plan of government so free from all defect, and so full of guarantees, that it should not, in the conflict of embittered parties, and of excited passions, be perverted and misinterpreted. Misconceptions, or erroneous constructions of the powers granted in the constitution, would probably have occurred, after the lapse of many years, in seasons of entire calm, and with a regular and temperate administration of the government; but, during the last twelve years, the machine, driven by a reckless charioteer, with frightful impetuosity, has been greatly jarred and jolted, and it needs careful examination, and thorough repair.
‘With this view, therefore, to the fundamental character of the government itself, and especially of the executive branch, it seems to me that, either by amendments of the constitution, when they are necessary, or by remedial legislation, when the object falls within the scope of the powers of congress, there should be,
‘First, a provision to render a person ineligible to the office of president of the United States after a service of one term. Much observation and deliberate reflection have satisfied me, that too much of the time, the thoughts, and the exertions of the incumbent are occupied, during his first term, in securing his reëlection. The public business, consequently, suffers; and measures are proposed or executed with less regard to the general prosperity, than to their influence upon the approaching election. If the limitation to one term existed, the president would be exclusively devoted to the discharge of his public duties; and he would endeavor to signalize his administration by the beneficence and wisdom of its measures.
‘Secondly, that the veto power should be more precisely defined, and be subjected to further limitations and qualifications.’
Thus, it would be perceived by the senate, that whatever truth or soundness there might be in the opinion which he had embodied in the resolution now submitted to the senate, it was an opinion long since deliberately formed and expressed, and one which had often since been considered and reviewed, unprompted by any of those recent occurrences to which it might otherwise have been supposed to owe its origin.
The particular amendment now before the senate, for its consideration,and to which he should speak before he more briefly adverted to the others which accompanied it, was that which related to the veto power. And while on this subject of redeeming the pledge which was, in some sort, given by him as one of the humblest members of that party which had not long since so signally triumphed, he hoped the senate would allow him, in all truth and sincerity, to say, that he desired to see a party, when it came into power, redeem the pledges and fulfil the promises it made when out of power, and not exhibit that disgraceful spectacle so often witnessed in the political history of other nations, of professing one set of principles, and employing them as a means towards getting into power, and then, when successful in obtaining their wishes, turn round, forget all they had said and promised, and go on to administer the government just as their predecessors had done. He could assure gentlemen, that, on the questions of restraining and limiting executive power, on the necessity of an economical administration of the government, on regulating the dismissing power of the president, on securing a fair and just responsibility in all the departments; in a word, on every great question of national policy to which the party to which he considered himself as belonging were pledged to the people, and to the world; they would find him, on all occasions during the short time in which he expected to remain a member of the body, heartily ready to coöperate in carrying out into practice all they had avowed in principle.
It was his purpose to go but very briefly into the history and origin of the veto power. It was known to all to have originated in the institution of the tribunitian power, in ancient Rome; that it was seized upon, and perverted to purposes of ambition, when the empire was established under Augustus; and that it had not been finally abolished until the reign of Constantine. There could be no doubt that it had been introduced from the practice under the empire, into the monarchies of Europe, in most of which, in some form, and under some modification or other, it was now to be found. But, although it existed in the national codes, the power had not, in the case of Great Britain, been exercised for a century and a half past; and, if he was correctly informed on the subject, it had, in the French monarchy, never been exercised at all. During the memorable period of the French revolution, when a new constitution was under consideration, this subject of the veto power had been largely discussed, and had agitated the whole country. Every one must recollect how it had been turned against the unfortunate Louis XIV, who had been held up to the ridicule of the populace, under the title of ‘Monsieur Veto,’ as his wife, the queen, had been called ‘Madame Veto;’ and, although after much difficulty, the power had finally found a place in the constitution, not a solitary instance had occurred of its actual exercise. Underthe colonial state of this country, the power was transplanted, from the experience which had been had of it in Europe, to the laws relating to the colonies, and that in a double form; for there was a veto of the colonial governor, and also a veto of the crown. But what was thought of this power by the inhabitants of these states, when rising to assert their freedom, might be seen in the words of the instrument in which they asserted their independence. At the head of all the grievances stated in that paper, as reasons for our separation from Great Britain, was placed the exercise of this very power of the royal veto. Speaking of the king, the declaration of independence employed this language.
‘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 operations, till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.’
No doubt, the idea of ingrafting this power upon our own constitution, was adopted by the convention, from having always found it as a power recognised in European governments, just as it had been before derived by them from the practice and history of Rome. At all events, the power was inserted as one feature, not only in the general constitution of the federal government, but also in the constitutions of a portion of the states. Fifty years had now elapsed since the federal constitution was formed, and it was no derogation to the wisdom and patriotism of the venerable men who framed it, now to say, that the work of their hands, though as perfect as ever had proceeded from human hands, was, nevertheless, not absolutely so; because that was what nothing that sprung from man had ever been. But now, after the lapse of half a century, it was interesting to pause, to look back, to review the history of that period, and to compare the predictions of those who then looked into the future, with the actual results of subsequent experience. Any one at all acquainted with the contemporaneous history of the constitution, must know, that one great radical error, which possessed the minds of the wise men who drew up that instrument, was, an apprehension that the executive department of the then proposed government would be too feeble to contend successfully in a struggle with the power of the legislature; hence, it was found that various expedients had been proposed in the convention, with the avowed purpose of strengthening the executive arm; one of which went so far as to propose that the president should be chief magistrate for life. All these proposals had their origin in the one prevailing idea—that of the weakness of the executive, and its incompetence to defend itself against the encroachments of legislative domination and dictation.
Now, let any man look at the actual working of the machine they constructed, and see whether the anticipations which hauntedtheir minds on this subject had been realized or falsified by the subsequent political history of this government. Let him see, whether the executive department was the weak spot in the system. Much had been said about the encroachments of the federal government on the governments of the states, from which complaints, had arisen what was called the states-rights party, and its opposite; but an examination of the facts of the case would demonstrate, that no solitary instance had yet occurred of any such encroachment by the general government; but, on the contrary, Mr. Clay could demonstrate, were this the proper time or occasion for doing so, that there had been an abandonment by that government of the exercise of its own just powers, in relation to the states, and this to such an extent, that the existing state of the country presented very much the aspect that the old confederation had once done, with all its weakness and imbecility.
But while there had been no such thing in practice as an encroachment by the federal upon the state governments, there had been, within the federal government itself, a constant encroachment by the executive upon the legislative department.
First, it attacked the treaty-making power. None could now read the language of the constitution, without at once coming to the conclusion, that the intention of the authors of that instrument was, that the senate should be consulted by the president, not merely in the ratification, but in the inception, of all treaties; that, in the commencement of the negotiations, the instructions of the ministers appointed to treat, the character and provisions of the treaty, the senate should be consulted, and should first yield its assent. And such had, in fact, been the interpretation put upon the treaty-making power, in the first and purest years of our government. Every one must recollect the early history of the exercise of the power, and the high sanction for such a usage. The first president had been wont to come to the senate, there to propose a foreign mission, and to consult with his constitutional advisers, the members of the senate, on the instructions to be given to the minister who should be sent. But this practice had since been abandoned. The president now, without a word of consultation with the senate, on his own mere personal sense of propriety, concluded a treaty, and promised to the foreign power its ratification; and then after all this had been done, and the terms of the treaty agreed upon, he, for the first time, submitted it to the senate for ratification. Now, every one must see, that there was a great difference between rejecting what had been already actually done, and refusing to do that thing if asked beforehand. All must feel, that they often gave their official assent to what they never would have sanctioned, but for the consideration that the treaty was already concluded, and that the faith of the nation was in some sort pledged for its ratification. Another consequence of this executive encroachment, was one from whichforeign powers often experienced great inconvenience; he meant the amendments of treaties by the senate, after they were at length submitted. So great had the inconvenience from this source been, that, in more recent treaties, it had come to be the practice to insert, in the body of the treaty itself, a provision against all alteration; so that it must be ratified in its existing form, or not ratified at all.
The next executive encroachment he should notice, was that which occurred in the dismissal from office of persons appointed by and with the consent of the senate. The effect of this practice was virtually to destroy all agency and coöperation of the senate, in such appointments. Of what avail was it that the senate should to-day solemnly ratify and confirm the appointment of an individual to an office under the government, when the president could to-morrow reverse the effect of their act by his mere breath? Every one knew that the power of removal had been grossly perverted. In the early days of the constitution, it had been maintained, that that power could be exercised only in case of malfeasance or misfeasance in office; and that the president who should dare to employ it for any other end, would subject himself to impeachment. But our history and experience has gone to show, that this liability to impeachment was a mere scarecrow, and that it could never have any practical effect in a popular government, constituted as ours was, and in a country politically divided as ours was ever like to be. By the free exercise of this power of removal, the senate had lost its practical influence on the whole subject of appointment to office. Instance after instance had occurred, where an individual had been dismissed by the executive, whom the senate would gladly have replaced in office, but whom they were unable to retain there, and were therefore compelled to sanction the nomination of a successor. The actual result of such a state of things was, he repeated it, that the coöperation of the senate with the president, in the matter of appointments, had been almost completely nullified for years past. Indeed, so perfectly was this understood, that when the senate were deliberating with closed doors, on executive nominations, Mr. Clay frequently walked out of the chamber. Deliberation, in such a case, was one of the idlest things in the world, because every one knew that all resistance must be unavailing. And, even should the objections against the nominee be so gross and undeniable that resistance to his appointment should succeed, they might generally calculate on another nomination, not more to the taste of the senate; and when at length the office was filled, the tenure of the incumbent was not on the joint will of the president and senate acting together, but upon the single will, upon the mere arbitrary breath of one man.
Mr. Clay said, it was not his purpose to go into all the details of these encroachments by the executive, upon the constitutional powers and prerogatives of a single legislative branch of thegovernment. He would now pass to its attacks on the powers of the congress of the United States.
And the first instance of this to which he should refer, was the creation of officers and the designation of their salaries, without the consent of congress, or any consultation with it. Another, and a more formidable instance, was to be found in the assumption within the last few years, of the purse of the nation. He alluded, as every body must understand, to the seizure made by a late executive, of the public deposits placed by law in the bank of the United States—a removal which had been effected under the avowed claim of power to employ the prerogative of removal as a means to compel subordinate executive officers to comply with the will of the president, on the principle that the executive was a unit, and that a single will must control the entire executive department. This seizure of the public deposits had yet been unprovided against; the congressional power to control them had been unresumed, and thus a state of things was permitted to continue, by which the nation was virtually placed at the feet of the executive.
Let not gentlemen mock him, by talking about the impossibility of the president’s drawing money out of the treasury, except under an appropriation by congress. Let them not tell him of the responsibility of public officers; let them look at facts; let them look at what had actually occurred, on the removal of two or three secretaries of the treasury, in order to accomplish this very seizure of the public treasure; and then let them look at the dismissal of a countless host of subordinate officers, because they did not happen to hold the same political opinions that were held by the president. Of what avail were laws? The president had nothing to do but say to his secretary, issue your warrant for such a sum of money, and direct the register and comptroller to sign it, and if they should talk about a regard for their oaths, and boggle at obeying, tell them to do what I command them, and if not, I will find men who will. And he would here say, to all those who professed to be desirous of guarding against such abuses of trust, that unless it were done by an amendment of the constitution, or by a revival and resumption of the power already possessed by congress, under the constitution, they never could effect their purpose. All efforts, all devices, all guards, all guarantees, all attempts of whatever kind, to separate the purse from the sword, would prove in practice utterly vain and ineffectual. There was a third instance of this encroachment, which he was authorized by facts to state, but on which he should not at this time dwell. Not only had the purse of the nation been seized; not only did it still remain in the hands of the president, but the nation had seen armies raised, by executive mandate, not only without authority or shadow of authority of law, but, as in the case of the Florida volunteers, after a law had been asked for, and positively refused. Other instances might be cited, in which a military force had been raised, without the sanction of congress.
Without, therefore, going any further, Mr. Clay said, that he thought a careful review of the operations of this government, down to the present havoc, would fully demonstrate that, while it had made no encroachment on the states, there had been a constant encroachment by the executive on the legislative authority.
And was not this in the nature of things? The executive branch of the government was eternally in action; it was ever awake; it never slept; its action was continuous and unceasing, like the tides of some mighty river, which continued flowing and flowing on, swelling, and deepening, and widening, in its onward progress, till it swept away every impediment, and broke down and removed every frail obstacle which might be set up to impede its course. Let gentlemen look at all history, and they would find that it had ever been so. The legislative branch of government met only periodically; its power lay in its assembling and acting; the moment it adjourned, its power disappeared; it was dissipated, gone; but there stood the president at the head of the executive department, ever ready to enforce the law, and to seize upon every advantage which presented itself, for the extension and augmentation of its power.
And now he would, upon principle, examine for a few moments the motives which might be supposed to have actuated the members of the convention, in conferring upon the executive this veto power. Let us throw ourselves back to the period in which they lived and acted, and then institute a comparison between the expectations in which they had indulged, and the actual facts, as they had since occurred.
On principle, certainly, the executive ought to have no agency in the formation of laws. Laws were the will of the nation authoritatively expressed. The carrying of those laws into effect was the duty which ought to be assigned to the executive, and this ought to be his sole duty, for it was an axiom in all free governments that the three great departments, legislative, executive, and judicial, should ever be kept separate and distinct. And a government was the most perfect when most in conformity with this fundamental principle. To give, then, to the executive, any agency in the ascertainment and expression of the will of the nation, was so far a violation of this great leading principle. But it was said that the framers of our constitution had, nevertheless, been induced to place the veto upon the list of executive powers, by two considerations; the first was a desire to protect the executive against the power of the legislative branch, and the other was a prudent wish to guard the country against the injurious effects of crude and hasty legislation. But where was the necessity to protect the executive against the legislative department? were not both bound by their solemn oaths, to support the constitution? The judiciary had no veto. If the argument was a sound one, why was not the sameprotection extended to the judiciary also? Was there not ample security against the encroachments of the legislative power, in the absence of the veto? First, there was the solemn oath of office; then there was the authority of the judiciary; then there was the responsibility of individual members to the people, and this responsibility continually kept up by a frequent appeal to the people; and, lastly, there was the ultimate conflict of the president and the legislature before the grand tribunal of the nation itself, in case of any attempt, by the legislature, to deprive him of the rightful exercise of his authority. Besides, if a veto be necessary, as a defence against legislative power, why was there no veto against the highest description of all legislation, the fundamental legislation by a convention? There was no veto there; there was no apprehension of hasty action; no necessity was recognised for the controlling will of one man to save the nation from the heedless acts of its own representatives. But in the case of ordinary legislation, why should such apprehensions be indulged? On this subject, experience was our safest guide. Now, Mr. Clay had taken the pains to look into the provisions of twenty-six state constitutions, in relation to this matter of the veto, and the result was highly curious and interesting. The states were in this respect divided, as equally as their number would admit, into three distinct classes. Nine of them gave to the executive the veto power, unless controlled by two thirds of the legislature. Eight other states conferred the veto, but controlled it by a second veto of a majority, as was proposed in the amendment now under consideration. While the nine remaining states had not inserted the veto at all, and at the head of these stood one which had been called the mother of states—Virginia. Now some of these state constitutions were of a date anterior to that of the constitution of the United States itself. If there had been this very great danger of executive encroachment and of hasty legislation, one would suppose it would have been heard of in these nine states. Had any instance yet occurred to show that such a danger did exist? Mr. Clay had heard of none, read of none; and he put it to the advocates of this arbitrary and monarchical power, he put it especially to democrats, who, while they professed themselves, and, he doubted not, honestly and conscientiously professed themselves friends of the people, came out in the contest between monarchical prerogative on the one hand, and civil freedom on the other, as the avowed advocates of prerogative; he put it to all of them to tell, if such dangers both of encroachment and rashness as were pretended as a pretext for the veto did actually exist, how it happened that in the nine states he had named, during so long a period as had elapsed since their constitutions were formed, no instances had occurred, either of encroachment by the legislature on the powers of the executive, or of such rash and hasty legislation as called for the restraint and safeguard of a single sovereign will.
Now, before he proceeded further, he invited gentlemen to form a just estimate of this veto power; to look at it; to see what it was; to ascertain what was its value, what it amounted to in the practical operations of government. He should not pretend to go into any inquiry as to its moral value, or to estimate its influence on the individual who exercised it, or the degree and extent to which, by means of it, in connection with a vast patronage, the president could sway the minds of other men, for that was a power which admitted of no estimate. He should confine himself to what might be called a mere numerical estimate of the amount of the veto power, and he would make this estimate by taking the numbers of the two houses of congress, as those houses now stood. The senate at present consisted of fifty-two members; of that number a majority consisted of twenty-seven; two thirds amounted to thirty-six. Supposing a law to be passed by a bare majority, (and in all great and contested questions bills were wont to be passed by very small majorities,) then there would be in its favor twenty-seven votes. The bill was submitted to the president, and returned by him with his veto. The force of the presidential veto could not be overturned but by thirty-six votes. Here, then, the veto in the hands of the president was equal in its effect, upon legislation to nine senatorial votes. Mr. Clay dismissed all considerations of influence derived from his office, all the glitter and eclat of the president’s high station, and all the persuasion directed to the interests of men by his vast patronage; all this he laid out of view, and looked merely at the numerical fact, that in the senate the veto was equal to nine votes. And now in regard to the other branch. The house of representatives consisted of two hundred and forty-two members; to constitute a majority required one hundred and twenty-two; two thirds amounted to one hundred and sixty-two. By looking at this difference, it would be seen, as in the case of the senate, that the executive veto amounted in effect to forty representative votes.
Now Mr. Clay did not mean to say any thing in the least derogatory to the wisdom, or fairness, or integrity, or patriotism of any president of the United States. It was not necessary, and he was utterly unwilling, without necessity, to injure the feelings of any man. We had had six presidents who had previously been senators. They were able and eminent men; but he wished to inquire, whether any gentleman could show that their wisdom and other distinguished qualities had been so great as to be equal to the wisdom of nine other senators? Could it be shown that their patriotism, and intelligence, and integrity, were equal to those of forty members of the house of representatives? If not, how did it happen that a man who, when in that chamber, and acting with his fellow senators, had been considered upon a par with them, was no sooner transferred to the other end of the avenue, than hiswill became equal to that of nine senators and forty representatives? How, he asked, did this happen, and wherein was it just and right? Was it not sufficient, that this man, after his political apotheosis; should enjoy all the glitter, and distinction, and glory attached to his office? Was it not enough that he wielded so vast and formidable an amount of patronage, and thereby exerted an influence so potent and so extensive? Must there be superadded to all, a legislative force equal to nine senators and forty members of the house of representatives?
Again: let the subject be looked at in another point of view; and that was with reference to the balance of power among the states. Now, gentlemen might reason as they pleased about what a particular president would, or ought to do, but Mr. Clay would answer for it, that he would never forget, amid the splendor of his high station, the state from whence he came, the early associations, the friendly sympathies, the remembrance of honors, and all those other ties which bound every man, especially a public man, to the land and to the people among whom he had spent his youth and attained the honors of his manhood. All these considerations would operate as so many powerful motives to prefer, in the distribution of benefits, his own state before all others. Looking at this in a political view, was it right, was it just, to give to one particular state, in which the president happened to have been born, so great an advantage in the general competition as must be derived from nine senatorial and forty representative votes? Mr. Clay said, he did not mean to illustrate the remarks he had made about the influence of state partiality on the mind of a chief magistrate by reference to any particulars; his appeal was only to the general principles of human nature. The effect, to be sure, would be greater or less, as the mind of the chief magistrate might happen to be constituted. There might be some men who would be induced, by a chivalric sense of honor, even to do injustice to their own state, in the effort to avoid an unjust partiality; but there were other minds, all whose thoughts, and aims, and wishes, would be circumscribed by local interests and local attachments.
Mr. Clay had hitherto viewed the veto power simply in its numerical weight, in the aggregate votes of the two houses; but there was another and far more important point of view in which it ought to be considered. He contended, that practically, and in effect, the veto, armed with such a qualification as now accompanied it in the constitution, was neither more nor less than an absolute power. It was virtually an unqualified negative on the legislation of congress. Not a solitary instance had yet occurred in which the veto once exerted had ever been overruled, nor was such a case likely to happen. In most questions where the veto could be exerted, there was always a considerable difference of opinion both in the country and in congress as to the bill which had been passed.In such circumstances, when all the personal influence, the official patronage, and the reasoning which accompanied the veto, were added to the substantial weight of the veto itself, every man acquainted with human nature would be ready to admit, that if nothing could set it aside but a vote of two thirds in both houses, it might as well have been made absolute at once.
But Mr. Clay was unable to dwell on this part of his subject, being warned by his feelings of a want of physical ability to go at large into the subject.
He now, however, approached another view of it, to which he would ask the serious and undivided attention of the senate. The veto power professed to act only while the legislature acted; then it was to terminate. Its effect was to be, to consummate legislation. The officer of government, in whose hands the constitution placed a power so formidable, was supposed in theory to remain profoundly silent as to the passage of great measures of public policy, until they were presented to him in a finished form for his approbation and sanction.
This was the theory; but Mr. Clay contended, that really and in practice this veto power drew after it the power of initiating laws, and in its effect must ultimately amount to conferring on the executive the entire legislative power of the government. With the power to initiate and the power to consummate legislation, to give vitality and vigor to every law, or to strike it dead at his pleasure, the president must ultimately become the ruler of the nation.
When members, acting in their legislative capacity, knew and remembered that it was in the power of one man to arrest them in their legislative career, what was the natural tendency of such a state of things? On the established principles of our nature, how was this likely to work? Would not legislators, with gradually less and less attention to that delicacy, reserve, and official deference, which were ever due from one department of government towards the other, come at length to consult with the executive as to what law they might pass with the hope of his approbation? Would not this be the natural result? Independently of all those obvious, and glaring considerations, which went to show that it must, Mr. Clay would point to numerous facts illustrative of the position; and if he went into them, it would be not with a view to complain, not with a desire to revive former contests, or to say a word which might rudely wound the feelings of any human being. But did not gentlemen recollect, how often, during the administration of an eminent individual, now in private life, intimations had been given beforehand, that a certain bill would be vetoed, if it were passed? And did they not remember various instances, in which the threat had been fulfilled? Take the experience of the last six mouths. Congress have passed two bills to establish a bank of the United States; bills, in all the provisions of whichneither party concurred, and which would not have had the concurrence of twenty men in either house, had their minds been left uninfluenced by the expected action of the executive. Take, as a special instance, the famous sixteenth section of one of those bills. Mr. Clay was free to declare, that he did not know a solitary man among those who voted for the bill, who would have voted for that section, but as a measure of conciliation, and in the hope that, so modified, the bill would receive the sanction of the president. True, that expectation was not realized; the sacrifice was vainly made, but it had been made with a view to that end, and that alone. And so in regard to the second of those bills. That bill, as he was informed, came to congress, precisely as it had left the president’s hand. So anxious had congress been, to secure the approbation of the president, that, although almost every thing in the bill would either have been omitted, or amended by a majority, they took it as it came from the presidential hand, and passed it, letter for letter, as they received it. Without going further, did not this fact prove, that the possession of the veto power drew after it the power of initiating laws.
Take another case, in the bill now before the judiciary committee. Was there one man to be found, in either house of congress, who would ever have proposed such a measure as the exchequer board provided in that bill? Yet, what had been the feeling? Had it not been this; must we go home without doing something? Had not the feeling been, we are bound by the veto power, we cannot do what we would? Had not the feeling been, we must take what the executive offers, or get nothing? Yes. Already the idea was becoming familiarized to the minds of freemen, to men of only the second generation after the days of the revolution, of submitting to the dictation of the executive, because without his assent they could do nothing. Mr. Clay warned the nation, that if this veto power was not arrested, if it were not either abolished, or at least limited and circumscribed, in process of time, and that before another such period had elapsed as had intervened since the revolution, the whole legislation of this country would come to be prepared at the white house, or in one or other of the executive departments, and would come down to congress in the shape of bills for them to register, and pass through the forms of legislation, just as had once been done in the ancient courts of France.
Then, to enable a nation of freemen to carry out their will, to set congress free to speak that will, to redress the wrongs, and to supply the wants, of those that sent them, Mr. Clay again declared, that the veto power must be modified and restrained. If not, the question which congress would have to decide would be, not what is the proper remedy for the existing grievances of the country, not what will restore the national prosperity—no; but what measure will be sanctioned by the chief magistrate?
Mr. Clay said, that, as he had not the bodily strength to dwell more at large on the general subject, he would now proceed to examine the objections which were urged against any further restrictions on this executive power.
There had gotten up a notion, of late years, that some curb was necessary upon the power of majorities, and that without this the safety of the country must be in danger. Now, on what grounds had the principle been founded, that in a free government the majority must govern? On two grounds. The first was of an intellectual and moral character. It was right, that in a great public, political partnership, the greater number should be satisfied with what was done, and that there was a greater chance of wisdom in complying with the will of the greater number. On the score of chances, some must govern, and who should it be? The minority? Why? Because they possessed more wisdom? Why were they likely to possess more wisdom? The second ground was physical in its aspect. It held, that the majority should be allowed to govern, because they would govern, having the physical force which would enable them to carry out their will. Now this doctrine, that minorities must govern, whether with or without the veto, was advanced by gentlemen who professed and called themselves members of the Jeffersonian school. But what was the doctrine of Mr. Jefferson himself, in regard to majorities, and so declared by him forty years ago? (Here Mr. Clay read an extract from Jefferson’s works, in which it was broadly laid down, that an absolute acquiescence in the will of majorities, was necessary in a free republican government.)
But there were some particular interests, and one especially, in regard to which the south felt great solicitude, which it was supposed would be more safe under the continuance of the veto power, than without it. Now, in the first place, Mr. Clay saw no difference, in respect to safety, between that particular interest, and other interests of the country. If it was true, that any one interest would be more secure under the veto power than without it, then all interests would be more secure; but if no security was produced by the veto, then that particular interest would not be more secure by the veto. Just as well might gentlemen from the north rise up and say, that the navigating interest, (in regard to which they were, perhaps, more interested,) would be more secure under the veto power, or the friends of any interest, northern, southern, or western, might fancy that it would be more secure. But the question came at last to this; is the veto a necessary power, or is it not? If it is necessary, it is necessary to all; if not, it is necessary to none.
What was the security which the south would possess in this veto power? Sooner or later, the president would be in a majority himself. But if a majority of congress should put itself in opposition to the interest of the south, neither presidents, nor vetoes, wouldavail to protect it. Its own resolution, its own valor, its own indomitable determination to maintain its rights against all men, these, and these alone, could in that case uphold southern interests.
Meanwhile the people of the south had all requisite guarantees. First, they had the sacred provisions of the constitution; and then they had the character of our government as a confederacy, the existence of these interests long before the adoption of the constitution, and the rights and duties of the government in regard to them, recognised and laid down by that sacred instrument. That was the security of the south. As one who himself lived where that peculiar interest existed, he possessed no security from the existence of the veto power; none, none whatever. He felt himself secure in that mutual harmony, which it was alike the interest of all to cultivate in the constitutional securities, and in the certainty of the disruption of the union, as the inevitable result, the moment that interest should be assailed; in the capacity and determination of the south to defend herself at all hazards, and against all forms of attack, whether from abroad or at home. There, there, was the security, and not in this miserable despotic veto power of the president of the United States.
Mr. Clay went on to say, that the amendment which he had the honor of proposing to the senate, was encountered by arguments which were directly opposed to each other. He was told by one, that this power was a sacred thing, not lightly to be touched, but to be held in honor and veneration, as the choicest legacy left by our ancestors. He was told, on the other hand, by an honorable friend in his eye, that the amendment was vain, because it was a thing impossible ever to get the constitution amended. He admitted it was a thing extremely difficult, requiring as it did the concurrence of eighteen states. But now, in reply to the first argument, those who regarded the constitution as so worthy of preservation, should be satisfied that no light and trivial amendment to it ever could be carried into effect; but if they were convinced that any amendment would be for the good of the country, it was their duty to put it forth, and submit it to public will. As to the second argument, he admitted, as he said, its full force. It was, indeed, extremely doubtful, whether any gentleman here present would ever live to see the constitution amended; but still it was the duty of every friend of his country to use proper efforts to have it improved. One attempt only had succeeded since those alterations were adopted, which took place immediately after the adoption of the constitution itself. But this subject had been a good deal considered in the country, and if Mr. Clay had been successful in any degree in demonstrating its expediency, neither class of objectors ought to persevere in opposing it.
As to another amendment, which had reference to the appointment of the secretary of the treasury and the treasurer of the UnitedStates, Mr. Clay admitted, that if his friend from Virginia, (Mr. Archer,) could succeed in establishing what Mr. Clay had attempted years ago to demonstrate—that congress did possess the constitutional power to define the tenure of office, and to defend it against the power of dismission—there would, to be sure, be less necessity for making a special provision in regard to these two officers. But still, for greater security, Mr. Clay should prefer to have the appointment of the treasurer and the secretary explicitly placed in the hands of congress.
Mr. Clay observed, that if there was any sentiment in relation to public affairs, on which the people of this country had made up their minds, it was in regard to the necessity of limiting executive power. Its present overgrown character had long been viewed by them with apprehension. The power was not personal, it was mainly official. You might take a mechanic from the avenue and make him president, and he would instantly be surrounded with power and influence, the power and the influence of his office. It was very true, that the personal popularity of an incumbent might add much to his power, but the power itself was official, not personal, and its danger arose from its tendency and ability to accumulate. This was demonstrated by all past history, and was witnessed by all we saw around us. All these considerations called upon senators in the language of patriotism deeply to reflect on the consequences which might ensue, should not a power so great in itself, and so prone to increase, be subjected to some salutary limitation.
Let not gentlemen deceive themselves by names. The unpretending name, president of the United States, was no security against the extent or the abuse of power. The power assigned to a public individual did not depend on the title he might bear. The danger arose not from his name, but from the quantum of power at his command. Whether he were called emperor, dictator, king, liberator, protector, sultan, or president of the United States, was of no consequence at all. Look at his power; that was what we had to guard against. The most tremendous power known to antiquity was the shortest in duration. It was not, then, in duration, any more than in title, that the danger lay, but in the magnitude of the power. This called for every safeguard. The dictatorship of Rome continued but for a brief period; yet, while it lasted, the whole state was in his hands. He did whatever he pleased, whether with life, liberty, or property. We had, then, no security against the power of the president of the United States in the shortness of the term for which he was chosen.
We often found very pathetic reflections in the writings of scholars, on the sad condition of kings; on the isolation of their thrones; on the effect of their station in removing them from the body of society, where no voice could reach them but the voice offlatterers, and where they were perpetually surrounded by the incense of adulation; and the chief ground of sympathy seemed to be, the impossibility that truth should reach their ears. It might be said, that this was true of kings, but did not apply on this side of the water; but let Mr. Clay tell those who thought so, that the actual condition of a president of the United States did not very widely differ from that of the monarchs of the old world. Here, too, the chief magistrate occupied an isolated station, where the voice of his country and the cries of its distress could not reach his ear. He, too, was surrounded by a cordon of favorites, flatterers, and fawns. Isolated in this district, with no embarrassments himself, the echoes of the public distress, if they reached his ear at all, reached it with a faint and feeble sound, being obstructed by those who surrounded his person, and approached him only to flatter. Facts were boldly denied, and all complaints attributed to a factious spirit. Now, he would ask, was a man thus separated, and thus surrounded, more likely to know the real sufferings, wants, and wishes of his countrymen, than the two hundred and forty-two men in the other house, or the fifty-two men in this house, who came up here directly from their bosom, who shared in all their sufferings, who felt their wants, participated in their wishes, and sympathized with all their sorrows? That was the true question of the veto power. Now he thought if these things were duly considered, (and he spoke not of this or of that incumbent of the office, but of the circumstances of every one who filled it,) it must be admitted, by every candid mind, that the responsibility was great of a man who should undertake, on his own private opinion, to resist and suppress the will of the nation, constitutionally expressed. It was a power not merely to annul the national will, as lawfully uttered by its own chosen representatives; but the power to initiate legislation itself, and to substitute for the will of the nation an alien will, neither of the nation, nor of its representatives.
But, he was physically unable to go further into this subject. The question was the old question, whether we should have, in this country, a power tyrannical, despotic, absolute, the exercise of which must, sooner or later, produce an absolute despotism, or a free representative government, with powers clearly defined and carefully separated? That was the true question to be decided.
There were other amendments accompanying this one, on which he wished to say a few words, but was to-day unable to do so. (Several offers had been made by gentlemen near him to move an adjournment, but he had persevered in declining them.)
That in relation to securing to congress the appointment of the secretary and treasurer, was one of those reforms to which he considered the whig party solemnly pledged, as one of the measures proper to be pursued in the process of limiting executive power, but he could not now dwell upon it.
The other, relating to the appointment of members of congress to office, only went, in effect, to carry out the principles already sanctioned by that article of the constitution, which declares, that no member should be appointed to an office which had been created, or the emoluments of which had been increased with his concurrence. This went one step further, and declared, that no member should be appointed to an office which had been created with or without his concurrence, before or after he was a member. Whenever a man accepted an office which he was reasonably expected to hold, for a definite term, he should continue to hold it for that entire period, unless some very strong reason existed to the contrary, and which had not existed prior to his appointment.
There was one concluding remark on the amendment at present before the senate, with which he would close what he had now to say. Although he admitted, that the principles he had laid down would, if carried fairly out, lead to the abolition of the veto altogether, as inconsistent with the fundamental axiom of free government, yet he was of opinion, that this, like other reforms, should be introduced slowly, and with circumspection, without suddenly rushing from one extreme to another. Before the power should be utterly abolished, he deemed it prudent, that an experiment should be made in a modified form; and instead of requiring a majority of two thirds of both houses to supersede the veto of the president, he thought it sufficient to require the concurrence of a majority of the whole number of members elected to each house of Congress.
He asked, whether this would not afford a sufficient security against the dangers of hasty legislation; and, in confirmation of its sufficiency, he would appeal to what had been the experience of all the states, where such a provision had been adopted. If a bill, after having undergone a full investigation and discussion, should pass both houses, and be transmitted to the president for his signature, and he should return it with his veto, and the reasons for that veto, and it should then be again considered and fully discussed, in view of the objections urged against it by the executive, (to say nothing of the whole influence derived from his office, and all that pertained to it,) and still there should be found a clear majority, not of a quorum present, but of the total number of members chosen by the people, was not the presumption irresistible, that the bill ought to become a law? Surely, surely, this was a sufficient evidence of the will of the people, and an abundant safeguard against the hazardous consequences of hasty and ill-advised legislation.