The Provision For The Support of the Executive, and the Veto Power



From the New York Packet.



Friday, March 21, 1788.



HAMILTON





To the People of the State of New York:



The third ingredient towards constituting the vigor of the executive

authority, is an adequate provision for its support. It is evident

that, without proper attention to this article, the separation of the

executive from the legislative department would be merely nominal and

nugatory. The legislature, with a discretionary power over the salary

and emoluments of the Chief Magistrate, could render him as obsequious

to their will as they might think proper to make him. They might, in

most cases, either reduce him by famine, or tempt him by largesses, to

surrender at discretion his judgment to their inclinations. These

expressions, taken in all the latitude of the terms, would no doubt

convey more than is intended. There are men who could neither be

distressed nor won into a sacrifice of their duty; but this stern

virtue is the growth of few soils; and in the main it will be found

that a power over a man’s support is a power over his will. If it were

necessary to confirm so plain a truth by facts, examples would not be

wanting, even in this country, of the intimidation or seduction of the

Executive by the terrors or allurements of the pecuniary arrangements

of the legislative body.



It is not easy, therefore, to commend too highly the judicious

attention which has been paid to this subject in the proposed

Constitution. It is there provided that “The President of the United

States shall, at stated times, receive for his services a compensation

WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR

WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT

PERIOD ANY OTHER EMOLUMENT from the United States, or any of them.” It

is impossible to imagine any provision which would have been more

eligible than this. The legislature, on the appointment of a President,

is once for all to declare what shall be the compensation for his

services during the time for which he shall have been elected. This

done, they will have no power to alter it, either by increase or

diminution, till a new period of service by a new election commences.

They can neither weaken his fortitude by operating on his necessities,

nor corrupt his integrity by appealing to his avarice. Neither the

Union, nor any of its members, will be at liberty to give, nor will he

be at liberty to receive, any other emolument than that which may have

been determined by the first act. He can, of course, have no pecuniary

inducement to renounce or desert the independence intended for him by

the Constitution.



The last of the requisites to energy, which have been enumerated, are

competent powers. Let us proceed to consider those which are proposed

to be vested in the President of the United States.



The first thing that offers itself to our observation, is the qualified

negative of the President upon the acts or resolutions of the two

houses of the legislature; or, in other words, his power of returning

all bills with objections, to have the effect of preventing their

becoming laws, unless they should afterwards be ratified by two thirds

of each of the component members of the legislative body.



The propensity of the legislative department to intrude upon the

rights, and to absorb the powers, of the other departments, has been

already suggested and repeated; the insufficiency of a mere parchment

delineation of the boundaries of each, has also been remarked upon; and

the necessity of furnishing each with constitutional arms for its own

defense, has been inferred and proved. From these clear and indubitable

principles results the propriety of a negative, either absolute or

qualified, in the Executive, upon the acts of the legislative branches.

Without the one or the other, the former would be absolutely unable to

defend himself against the depredations of the latter. He might

gradually be stripped of his authorities by successive resolutions, or

annihilated by a single vote. And in the one mode or the other, the

legislative and executive powers might speedily come to be blended in

the same hands. If even no propensity had ever discovered itself in the

legislative body to invade the rights of the Executive, the rules of

just reasoning and theoretic propriety would of themselves teach us,

that the one ought not to be left to the mercy of the other, but ought

to possess a constitutional and effectual power of selfdefense.



But the power in question has a further use. It not only serves as a

shield to the Executive, but it furnishes an additional security

against the enaction of improper laws. It establishes a salutary check

upon the legislative body, calculated to guard the community against

the effects of faction, precipitancy, or of any impulse unfriendly to

the public good, which may happen to influence a majority of that body.



The propriety of a negative has, upon some occasions, been combated by

an observation, that it was not to be presumed a single man would

possess more virtue and wisdom than a number of men; and that unless

this presumption should be entertained, it would be improper to give

the executive magistrate any species of control over the legislative

body.



But this observation, when examined, will appear rather specious than

solid. The propriety of the thing does not turn upon the supposition of

superior wisdom or virtue in the Executive, but upon the supposition

that the legislature will not be infallible; that the love of power may

sometimes betray it into a disposition to encroach upon the rights of

other members of the government; that a spirit of faction may sometimes

pervert its deliberations; that impressions of the moment may sometimes

hurry it into measures which itself, on maturer reflexion, would

condemn. The primary inducement to conferring the power in question

upon the Executive is, to enable him to defend himself; the secondary

one is to increase the chances in favor of the community against the

passing of bad laws, through haste, inadvertence, or design. The

oftener the measure is brought under examination, the greater the

diversity in the situations of those who are to examine it, the less

must be the danger of those errors which flow from want of due

deliberation, or of those missteps which proceed from the contagion of

some common passion or interest. It is far less probable, that culpable

views of any kind should infect all the parts of the government at the

same moment and in relation to the same object, than that they should

by turns govern and mislead every one of them.



It may perhaps be said that the power of preventing bad laws includes

that of preventing good ones; and may be used to the one purpose as

well as to the other. But this objection will have little weight with

those who can properly estimate the mischiefs of that inconstancy and

mutability in the laws, which form the greatest blemish in the

character and genius of our governments. They will consider every

institution calculated to restrain the excess of law-making, and to

keep things in the same state in which they happen to be at any given

period, as much more likely to do good than harm; because it is

favorable to greater stability in the system of legislation. The injury

which may possibly be done by defeating a few good laws, will be amply

compensated by the advantage of preventing a number of bad ones.



Nor is this all. 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 there

would oftener be room for a charge of timidity than of rashness in the

exercise of it. 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 resolutions 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 prerogatives, but in a case of manifest propriety,

or extreme necessity. All well-informed men in that kingdom will accede

to the justness of this remark. A very considerable 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 be rarely exercised, 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 defense,

and would listen to the admonitions of duty and responsibility. In the

former supposition, his fortitude would be stimulated by his immediate

interest in the power of his office; in the latter, by the probability

of the sanction of his constituents, who, though they would naturally

incline to the legislative body in a doubtful case, would hardly suffer

their partiality to delude them in a very plain case. I speak now with

an eye to a magistrate possessing only a common share of firmness.

There are men who, under any circumstances, will have the courage to do

their duty at every hazard.



But the convention have pursued a mean in this business, which will

both facilitate the exercise of the power vested in this respect in the

executive magistrate, and make its efficacy to depend on the sense of a

considerable part of the legislative body. Instead of an absolute

negative, it is proposed to give the Executive the qualified negative

already described. This is a power which would be much more readily

exercised than the other. A man who might be afraid to defeat a law by

his single VETO, might not scruple to return it for reconsideration;

subject to being finally rejected only in the event of more than one

third of each house concurring in the sufficiency of his objections. He

would be encouraged by the reflection, that if his opposition should

prevail, it would embark in it a very respectable proportion of the

legislative body, whose influence would be united with his in

supporting the propriety of his conduct in the public opinion. A direct

and categorical negative has something in the appearance of it more

harsh, and more apt to irritate, than the mere suggestion of

argumentative objections to be approved or disapproved by those to whom

they are addressed. In proportion as it would be less apt to offend, it

would be more apt to be exercised; and for this very reason, it may in

practice be found more effectual. It is to be hoped that it will not

often happen that improper views will govern so large a proportion as

two thirds of both branches of the legislature at the same time; and

this, too, in spite of the counterposing weight of the Executive. It is

at any rate far less probable that this should be the case, than that

such views should taint the resolutions and conduct of a bare majority.

A power of this nature in the Executive, will often have a silent and

unperceived, though forcible, operation. When men, engaged in

unjustifiable pursuits, are aware that obstructions may come from a

quarter which they cannot control, they will often be restrained by the

bare apprehension of opposition, from doing what they would with

eagerness rush into, if no such external impediments were to be feared.



This qualified negative, as has been elsewhere remarked, is in this

State vested in a council, consisting of the governor, with the

chancellor and judges of the Supreme Court, or any two of them. It has

been freely employed upon a variety of occasions, and frequently with

success. And its utility has become so apparent, that persons who, in

compiling the Constitution, were violent opposers of it, have from

experience become its declared admirers.[1]



I have in another place remarked, that the convention, in the formation

of this part of their plan, had departed from the model of the

constitution of this State, in favor of that of Massachusetts. Two

strong reasons may be imagined for this preference. One is that the

judges, who are to be the interpreters of the law, might receive an

improper bias, from having given a previous opinion in their

revisionary capacities; the other is that by being often associated

with the Executive, they might be induced to embark too far in the

political views of that magistrate, and thus a dangerous combination

might by degrees be cemented between the executive and judiciary

departments. It is impossible to keep the judges too distinct from

every other avocation than that of expounding the laws. It is

peculiarly dangerous to place them in a situation to be either

corrupted or influenced by the Executive.



PUBLIUS.



 [1] Mr. Abraham Yates, a warm opponent of the plan of the convention

 is of this number.









THE FEDERALIST.