[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
that gentleman. 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. Under the 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 haunted their
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 which foreign
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 the government. 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 same protection
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 his will 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 which neither 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, would avail 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 United States,
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 of flatterers, 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.