SENATE.]

Senators

Mr. CUTHBERT rejoined: As the gentleman had not given a satisfactory answer to his (Mr. C's) question, he must presume he was unable to give one. differed much as to the meaning of the clause in question-some supposing it to have reference only to the disbursing officers of the Government, while others believed it to apply to all officers. The differences of opinion on this clause were so great, that he thought the bill could not pass without some amendment.

Mr. POINDEXTER then expressed an intention to make some remarks, if the Senate should be disposed to continue the debate to-morrow.

On motion of Mr. CALHOUN, the Senate adjourned.

FRIDAY, FEBRUARY 20.

DUTIES ON IMPORTS.

Mr. WEBSTER, from the Committee on Finance, reported, without amendment, the bill to suspend the ope. ration of portions of the tenth and twelfth clauses of the seventh sections of the act supplementary to the acts imposing duties on imports, of July, 1832.

Mr. W. expressed his hope that a word or two, to show the necessity for the passage of this bill, would induce the Senate to permit it, at this time, to go to its third reading. It would be recollected that, in the law of July, 1832, the tenth and twelfth clauses of the seventh section imposed, in part, duties on hardware. Congress had afterwards found it necessary to pass a law suspending for one year the operation of these clauses. They had repealed that measure of suspension last year, and had directed the Treasury to institute an inquiry for the purpose of obtaining information on the subject. A report had been received from the Treasury, and a bill had been carefully prepared elsewhere. But the slow progress of that measure, and the near termination of the session, rendered it extremely uncertain whether any other than a temporary measure could pass at the present session. The committee, under these circumstances, had instructed him to report in favor of a further suspension of the operation of the clauses referred to, until the close of the next session.

The bill was then considered as in Committee of the Whole; and the bill having been reported without amendment, was ordered to be engrossed for a third reading.

CHARLES J. CATLETT.

[FEB. 20, 1835.

Senate refused to amend the bill, so as to conform it to his views, Mr. P. said he was obliged to vote against it. The petitioner had lost the whole property mentioned in the bill; and, so far as Mr. P's feelings were concerned, he was disposed to compensate the petitioner for the entire amount; but he did not feel himself at liberty to depart from the principles adopted by Congress, and grant to the petitioner what would not be allowed to others in similar circumstances.

At the same time, Mr. P. said, he was unwilling that any injustice should be done to the petitioner. His case was a hard one, and Mr. P. would give him the whole benefit of the principle which had heretofore been acted upon, and carry the principle to its utmost extent in his favor. If it should appear, on a further statement of facts, that the destruction of the property at Nottingham by the enemy could be fairly imputed to the use of the property by the American troops for their defence, he should consider it as coming within the principle established, and should not hesitate to allow a compensasion for it, notwithstanding such use of the property was two months before the destruction of it. Mr. P. said be had no objection, if it was desired, that the motion, for the present, should be laid upon the table. On motion of Mr. SHEPLEY, the motion to reconsider was laid on the table.

AMENDMENT OF THE CONSTITUTION. The following resolution, offered by Mr. KENT some time since, coming up for consideration

"Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, (two-thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States, as an amendment to the constitution of the United States, which, when ratified by three-fourths of the said Legislatures, shall be valid as part of the constitution:

"When a bill, which, having passed the Senate and House of Representatives, shall be returned by the President, with his objections, upon the reconsideration thereof, a majority of all members elected to each House shall again pass such bill, notwithstanding the objections of the President, it shall become a law; and the requisition of two-thirds in such case, according to the exist ing constitution, is revoked"—

Mr. KENT rose and addressed the Chair as follows: Mr. President: I should not, at this late period of the amendment I have submitted, important as I consider it, were it not closely connected with the subject under debate.

Mr. P. said he was induced to move for a reconsideration of the vote given yesterday, in order that the bill might be recommitted to the Committee on Finance. A difference of opinion was understood to exist among Senators in regard to the facts in the case, and Mr. P. desired a recommitment for the purpose of obtaining a more full and distinct report of the facts. Although he could not say that his opinion had as yet undergone any change, he might find occasion to alter it on a further statement of facts:

Mr. P. said he was clearly of opinion that the peti tioner was entitled to compensation for the property destroyed by the public enemy at McGruder's Ferry. Although the American troops did not occupy the building by an actual entrance and possession of it, they sheltered themselves behind it, and used it as an intrenchment for their protection. There was an obvious distinction between the general occupation of a city by troops, and the occupation or use of a particular building in an open country. But the facts in relation to the property destroyed at Nottingham and Cedar point did not bring the claim for that property within the principle which had been established by Congress; and, as the

Cautious and reluctant as I would be, at all times, in any attempt unnecessarily to alter or amend the constitution or frame of government under which we live, which I trust will long be the pride of our country and the admiration of the world, I find myself compelled, notwithstanding, to propose the modification embraced by the resolution, by considerations which, as a public man, I cannot resist.

No one can venerate more than I do that instrument; nor is there one who would more readily render a wil ling homage to the wisdom, virtue, and patriotism, of its illustrious authors; but I owe still greater veneration to the principles which gave existence to the work of their hands, and, while cherishing the constitution, I cherish still more the liberties of the country.

In our endeavors to adjust the delicate springs by which the complicated movements of Government are performed, there was always ground to apprehend that, in avoiding one danger, we might rush upon another, and thereby multiply the evils which we designed to remedy.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled."

Why, then, it may be asked, was the assent of the President required to all acts, except those passed by two-thirds of the legislative body? The answer is ob vious to all who will take the trouble to consult the contemporaneous exposition of the constitution, and the early practice of the Government in reference to the exercise of this power. The power thus granted to the Executive was not intended to be active, but defensive; it was not intended to give him any participation in the legislative power, but merely to preserve the executive department from legislative encroachments, and, as before observed, to guard the country against the effects of inadvertent legislation. It was never supposed that any Executive, in a popular Government, would attempt to restrain the general will of the community, expressed by the representatives of the people, clothed exclusively with power to declare that will upon matters of mere expediency, in which no executive power was impinged, in which no constitutional question was involved.

In the most able contemporaneous defence of the constitution, the qualified negative upon bills passed by Congress was defended solely on the ground of its being a preventive against legislative encroachment upon executive functions.

The first practical exposition of this power will be found in an official opinion given by Mr. Jefferson to President Washington, in less than two years after the Government went into operation; Mr. J. being then Secretary of State. It was given when the first bill was passed granting a charter to the Bank of the United States. I will give only the closing sentence of this opinion. He remarks: "It must be added, however, that, unless the President's mind, on a view of every thing which is urged for and against this bill, is tolerably clear that it is unauthorized by the constitution; if the pro and con. hang so even as to balance his judgment, a just respect for the wisdom of the Legislature would naturally decide the balance in favor of their opinion. It is chiefly for cases where they are clearly misled by error, ambition, or interest, that the constitution has placed a check in the negative of the President."

The opinion of Mr. Jefferson covers the whole ground for which I contend; namely, the supremacy of the legislative department of the Government, as expressive of the will of the community. Let it be remembered that Mr. Jefferson practised upon the principles expressed in this opinion. He approved a supplemental bill to the charter of the Bank of the United States, thereby yielding up his constitutional scruples to the will of the Legislature.

Mr. Jefferson never exercised the veto power during the eight years of his presidential service; neither did the elder nor the younger Adams.

"The primary inducement," says Mr. Madison," in conferring the veto power upon the Executive, is to enable him to defend himself. Indeed, even in England, where the King is considered a part of the Parliament, and, therefore, possessing a share of legislative power, the royal negative would only be permitted in cases where encroachments were attempted upon the royal prerogatives." He therefore infers, "a fortiori," that in the United States, where the President is expressly excluded from any share in the legislative power, the President's negative would never be permitted by a nation of freemen, except in cases where manifest encroachments were attempted upon presidential rights and duties, or where the negative was required to preserve the constitution from violation.

Blackstone, in speaking of the negative power in

[FEB. 20, 1835.

Great Britain, remarks that, "to hinder any encroachment upon the rights and authority vested in the Crown, the King is himself a part of the Parliament; and, as this is the reason of his being so, very properly, therefore, the share of legislation which the constitution bas placed in the Crown consists in the power of rejecting, rather than resolving; for we may apply to the royal negative in this instance what Cicero observes of the negative of the Roman Tribunes, that the Crown has not the power of doing wrong, but merely of preventing wrong being done. In order to guard against his interference, it is a rule, not only that the King could not send them any express proposition about laws or other subjects, but that his name should never be mentioned in their deliberations."

Mr. Hamilton is more in detail upon this subject, and what he says is equally applicable in sustaining my proposition. He remarks that,

"The superior weight and influence of the legislative body in a free Government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and that, in its exercise, there would oftener be room for a charge of timidity than of rashness. A King of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint res olutions of the two Houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable that he would ultimately venture to exert his prerogative, but in a case of manifest propriety, or of extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very consider able period has elapsed since the negative of the Crown has been exercised.

"If a magistrate so powerful, and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed, for the short period of four years, with the executive authority of a Government wholly and purely republican?

"It is evident that there would be greater danger of his not using his power, when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented on this account as a power odious in appearance, useless in practice. But it will not follow that, because it might rarely, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defence, and would listen to the admonitions of duty and responsibility."

Thus, Mr. President, I have given you the opinions entertained of this power by the ablest men, both in England and America, all of which sustain my amend ment. I will now proceed to show you that if there is good reason why this power should originally have existed in the British constitution, from whence it was copied into ours without any effectual modification, we must not look to that country for any countenance whatever either in its use or its abuse in the United States.

That strong reasons may be urged why this veto pow. er should be possessed by a King of England, that do

not, and cannot, apply to the President of the United States, is beyond all doubt.

The King of England is a hereditary monarch; he and his descendants have a deep personal interest in the Government. It behooves them to see that their rights, dignities, powers, and prerogatives, are not modified or lessened to their prejudice. To enable the King to maintain unimpaired those important interests, he is made a component part of the Parliament. No meeting of Parliament can take place without his assent. He convenes and he prorogues them, either in person or by proxy; and, notwithstanding his participation, under the constitution of the realm, in the legislative duties of the Government; notwithstanding the deep individual interest of himself and family in the monarchy; and notwithstanding his possessing an absolute negative upon all laws passed by Parliament, he has had good sense enough to refrain from the exercise of this odious and oppressive power since 1692. The Kings of England, yielding to the influence of liberal principles, and what they believe to be due to the expression of public sentiment, through the representatives in Parliament, have abstained from the use of this power for the space of one hundred and forty-two years; whilst a President of the United States, in this enlightened age, disregarding the influence of those liberal principles, although our institutions are based upon them, and in defiance of public sentiment, has made the exercise of the qualified veto power, obnoxious and despotic as it is, a measure of almost every day's occurrence.

"The prerogative of the King of England embraces large powers, great privileges, and ample revenues, amounting to four or five millions of dollars per annum. He can do no wrong, and in him there is no weakness or folly." Thus able writers describe him; and the absolute negative granted to him was bestowed to enable him to preserve those great immunities unimpaired, but he never finds it necessary to use it.

Very different, sir, is the condition of the President of the United States. He is only the chief executive agent, and, like us, the servant of the people, and not the less so because he occupies a somewhat higher station, elected only for four years; and, when he discharges the duties of his office with fidelity and ability, has an arduous time of it. He possesses under the constitution no inviolability of person; he has no exclusive, no personal interest in the Government; no prerogative to contend for against Lords and Commons. His duties are plainly laid down. He has not a privilege above, or distinct from, the humblest citizen of the country. He is liable to impeachment, trial, condemnation, and punishment, as well as other officers of the Government; and when his period of service has expired, which heretofore on no occasion has exceeded eight years, the incumbent has retired to the walks of private life, to participate with his fellow-men in the good or the evil that might befall the country.

Here, then, is a marked distinction as regards the veto power bestowed upon the executive department of the respective Governments. The King of England, I repeat, has a deep, exclusive, personal interest in the Government, which passes from him to his descendants, and which might require the exercise of the veto power to preserve it; whilst the President of the United States has no interest whatever in the Government, but what he holds in common with the mass of his fellow-citizens. One advantage I admit the veto power to possess, and one only of importance, and that the amendment I propose does not disturb; in truth, there is no proper benefit resulting from it that the proposed amendment does not leave unimpaired, at the same time that it secures to the legislative body its just powers. The veto power, when judiciously exercised, is designed to cause any act VOL. XI.-35

[SENATE.

of Congress obnoxious to the Executive to be re-examined. The reasons assigned by a President for rejecting a bill or resolution would bring in review not only all the arguments pro and con. in relation to the measure that had been previously used in discussing it, but the two Houses would be aided by the new light thrown upon the subject in the argument presented to them by the Chief Magistrate. The oftener a measure is brought under examination, the greater the diversity in the situation of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or which might result from the effects of faction, precipitancy, or of any impulse unfriendly to the public good. But after this review, this re-examination, this investigation for a third time, of the subject, should a majority of all the members elected to either House be decidedly in favor of any measure thus acted on, I cannot consent that the public will, thus expressed through their immediate representatives, should be thwarted, should be placed at the absolute will and control of a single individual. It is admitting that a single man may possess more wisdom, more virtue, more patriotism, than shall be contained in both Houses of Congress. It tends to destroy all confidence in a representative Government, and establishes a preference for dictatorial power; it uproots the representative system, upon which our institutions are

based.

Sir, from what have said, I take it for granted, as an incontestable principle, which no citizen of the United States will be bold enough to deny, that the qualified negative of the President upon the acts of Congress was granted by the constitution only for the purpose of protecting the executive authority from legislative encroachment; that it should be restricted to that object only; and that its application to any other is an abuse of power. Not many years since, Mr. President, I heard an old and experienced member of the House of Representatives declare, upon the floor of that House, that the President of the United States possessed more power than the King of England, and said he was borne out in this opinion by the correspondence of Mr. Jefferson. If I am not prepared to give my full assent to this sentiment at this time, (and I am certainly now more inclined towards the opinion than formerly,) I have no hesitation in believing that there is less danger to be apprehended from an attempt at encroachment by the legislative department of the Government upon the executive, than of a similar attempt by the executive upon the legislative. The Senate will indulge me with a few words upon this point, as it has an important bearing upon the subject before us. Let us consider, then, in the first place, the nature of those bodies to which the legislative and executive powers are confined. The legislative department is composed of many individuals, strangers to each other, with conflicting interests and views, coming from every part of the country, elected for short periods, compelled to bear, in their own persons and through their offspring, the burden of those measures they may sanction; whose personal qualities, known to their constituents, are, in some degree, a pledge for their fidelity; liable to be broken up in fragments of opposing parties by ministerial influence and executive control; who can never be brought to actin concert against the persuasions, the influence, and the patronage of any Executive, except by the weight of some impending danger, sufficient to hush into silence the most discordant elements.

Every one of those features in the composition of the legislative department of the Government forbids the probability that any design inimical to the executive department could ever then be formed. The short period of service for which they are elected renders it