CHAPTER XIII.

MODE OF PASSING LAWS.

PRESIDENT'S NEGATIVE.

444. THE Seventh section of the first article treats of two important subjects, the right of originating revenue bills, and the nature and extent of the president's negative upon the passing of laws.

§ 445. The first clause declares-"All bills for "raising revenue shall originate in the house of repre"sentatives; but the senate may propose, or concur "with amendments, as on other bills." This provision, so far as it regards the right to originate what are technically called "money bills," is, beyond all question, borrowed from the British house of commons, of which it is the ancient and indisputable privilege and right, that all grants of subsidies and parliamentary aids shall begin in their house, and are first bestowed by them, although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason given for this privilege of the house of commons is, that the supplies are raised upon the body of the people; and therefore it is proper, that they alone should have the right of taxing themselves. And Mr. Justice Blackstone has very correctly remarked, that this reason would be unanswerable, if the commons taxed none but themselves. But it is notorious, that a very large share of property is in possession of the lords; that this property is equally taxed, as the property of the commons; and therefore the commons, not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The

true reason seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced, more likely to continue so, than the commons, who are a temporary elective body, freely nominated by the people. It would, therefore, be extremely dangerous to give the lords any power of framing new taxes for the subject. It is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants.

§ 446. It will be at once perceived, that the same reasons do not exist in the same extent, for the same exclusive right in our house of representatives in regard to money bills, as exist for such right in the British house of commons. It may be fit, that it should possess the exclusive right to originate money bills; since it may be presumed to possess more ample means of local information, and it more directly represents the opinions, feelings, and wishes of the people. And, being directly dependent upon them for support, it will be more watchful and cautious in the imposition of taxes, than a body, which emanates exclusively from the states in their sovereign political capacity. But, as the senators are in a just sense equally representatives of the people, and do not hold their offices by a permanent or hereditary title, but periodically return to the common mass of citizens; and above all, as direct taxes are, and must be, apportioned among the states according to their federal population; and as all the states have a distinct local interest, both as to the amount and nature of all taxes of every sort, which are to be levied, there seems a peculiar fitness in giving to the senate a power to alter and amend, as well as to

concur with, or reject all money bills. The due influence of all the states is thus preserved; for otherwise it might happen, from the overwhelming representation of some of the large states, that taxes might be levied, which would bear with peculiar severity upon the interests, either agricultural, commercial, or manufacturing, of others being the minor states; and thus the equilibrium intended by the constitution, as well of power, as of interest, and influence, might be practically subverted.

§ 447. There would also be no small inconvenience in excluding the senate from the exercise of this power of amendment and alteration; since if any, the slightest modification were required in such a bill to make it either palatable or just, the senate would be compelled to reject it, although an amendment of a single line might make it entirely acceptable to both houses. Such a practical obstruction to the legislation of a free government would far outweigh any supposed theoretical advantages from the possession or exercise of an exclusive power by the house of representatives. Infinite perplexities, and misunderstandings, and delays would clog the most wholesome legislation. Even the annual appropriation bills might be in danger of a miscarriage on these accounts; and the most painful dissensions might be introduced.

§448. The next clause respects the power of the president to approve, and negative laws. In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discussion seem to have been, whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should be

subsequently passed, in order to become a law; and whether the negative should in either case be exclusively vested in the president alone, or in him jointly with some other department of the government.

§ 449. Two points may properly arise upon this subject. First, the propriety of vesting the power in the president; and secondly, the extent of the legislative check, to prevent an undue exercise of it. The former also admits of a double aspect, viz. whether the negative should be absolute, or should be qualified. An absolute negative on the legislature appears, at first, to be the natural defence, with which the executive magistrate should be armed. But in a free government, it seems not altogether safe, nor of itself a sufficient defence. On ordinary occasions, it may not be exerted with the requisite firmness; and on extraordinary occasions, it may be perfidiously abused. It is true, that the defect of such an absolute negative has a tendency to weaken the executive department. But this may be obviated, or at least counterpoised, by other arrangements in the government; such as a qualified connexion with the senate in making treaties and appointments, by which the latter, being a stronger department, may be led to support the constitutional rights of the former, without being too much detached from its own legislative functions. And the patronage of the executive has also some tendency to create a counteracting influence in aid of his independence. It is true, that in England an absolute negative is vested in the king, as a branch of the legislative power; and he possesses the absolute power of rejecting, rather than of resolving. And this is thought by Mr. Justice Blackstone and others, to be a most important, and indeed indispensable part of the royal prerogative, to guard it

against the usurpations of the legislative authority. Yet in point of fact this negative of the king has not been once exercised since the year 1692; a fact, which can only be accounted for upon one of two suppositions, either that the influence of the crown has prevented the passage of objectionable measures, or that the exercise of the prerogative has become so odious, that it has not been deemed safe to exercise it, except upon the most pressing emergencies. Probably both motives have alternately prevailed in regard to bills, which were disagreeable to the crown; though, for the last half century, the latter has had the most uniform and decisive operation. As the house of commons becomes more and more the representative of the popular opinion, the crown will have less and less inducement to hazard its own influence by a rejection of any favourite measure of the people. It will be more likely to take the lead, and thus guide and moderate, instead of resisting the commons. And, practically speaking, it is quite problematical, whether a qualified negative may not hereafter in England become a more efficient protection of the crown, than an absolute negative, which makes no appeal to the other legislative bodies, and consequently compels the crown to bear the exclusive odium of a rejection. Be this as it may, the example of England furnishes, on this point, no sufficient authority for America. The whole structure of our government is so entirely different, and the elements, of which it is composed, are so dissimilar from that of England, that no argument can be drawn from the practice of the latter, to assist us in a just arrangement of the executive authority.

§ 450. The reasons, why the president should possess a qualified negative, if they are not quite obvious,