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resolution, which gave rise to a most interesting debate, in which Mr. Ellsworth, from Connecticut, Mr. Mason, from Virginia, and Mr. Madison and MGouverneur Morris, of Pennsylvania, sustained the views of Mr. Wilson; and Messrs. Gorham, Gerry, and Strong, of Massachusetts, Mr. Martin, of Maryland, and Mr. Rutledge, of South Carolina, opposed them, and the amendment was lost. The original resolution, therefore, was again passed.

Having gone critically through with the report of the committee, the various resolutions which had been agreed to were, on Thursday, 26th July, referred to a committee of detail, to report on Monday, August 6th, a draft of the Constitution. This committee, of which Mr. Rutledge was chairman, reported on the day assigned, and the veto power was conferred by the 13th section of the sixth article. This paragraph, as reported by the committee, came under discussion on Wednesday, 15th August, when Mr. Madison moved an amendment, which revived the previously agitated question of uniting the judges of the Supreme Court with the President in his revision and rejection of laws passed by Congress. Much debate followed. Mr. Wilson and Mr. Mercer supported Mr. Madison, and Mr. Pinckney opposed. The amendment was lost — three states voting for it, and eight against it. Having thus surveyed the subject in all its bearings, the Constitution, amended, altered, and perfected, was, on the 17th September, 1787, signed by the Convention, and constitutes to this day the basis of our government. The veto power in this Constitution is thus expressed, article 1, section 7:

“ Every bill which shall have passed the House of Representatives shall, before it becomes a law, be presented to the President of the United States. If he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider it."

The first use of this constitutional power was by Washington, who, on the 5th April, 1792, vetoed the “Representation Bill,” which originated in the House of Representatives. As this, from its priority, is an event worthy of extended notice, we give the circumstances of the case, as briefly related by Jefferson, then secretary of state:

April 6th. The President called on me before breakfast, and first introduced some other matter, then fell on the Representation Bill, which he had now in his possession for the 10th day. I had before given him my opinion, in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood at the time by the makers of it; that yet it would bear the construction which the bill put; and he observed that the vote for and against the bill was perfectly geographical

– a northern against a southern vote-- and he feared he should be thought to be taking
side with a southern party. I admitted the motive of delicacy, but that it should not
induce him to do wrong, and urged the dangers to which the scramble for the fraction-
ary members would always lead. He here expressed his fear that there would, ere
long, be a separation of the Union; that the public mind seemed dissatisfied, and
tending to this. He went home, sent for Randolph, the attorney-general, desired him
to get Mr. Madison immediately, and come to me; and if we three concurred in opin-
ion, that he would negative the bill. He desired to hear nothing more about it, but
that we would draw up the instrument for him to sign. They came; - our minds
had been before made up; - we drew the instrument. Randolph carried it to him,
and told him we all concurred in it. He walked with him to the door, and, as if he
still wished to get off, he said, “ And you say you approve of this yourself?
sir," says Randolph ; " I do, upon my honor." He sent it to the House of Repre-
sentatives instantly. A few of the hotiest friends of the bill expressed passion, but the
majority were satisfied, and both in and out of doors it gave pleasure to have at length
an instance of the negative being exercised. Written this, the 9th April."

“ Yes,

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LIST OF THE VETOES. 1. Returned to the House of Representatives, by GEORGE WASHINGTON, April 5, 1792 — “ An Act for an apportionment of representatives among the keveral states, according to the first enumeration."

2. Returned to the House of Representatives, by GEORGE WASHINGTON,

March 1, 1797 - "An Act to alter and amend an act, entitled, An Act to ascertain and fix the military establishment of the United States."

3. Returned to the House of Representatives, by JAMES Madison, February 21, 1811 –“ An Act for incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia.”

4. Returned to the House of Representatives, by James Madison, February 28, 1811

— " An Act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem meeting-house, in the Mississippi territory.”

5. Returned to the House of Representatives, by James Madison, April 3, 1812 — “ An Act providing for the trial of causes pending in the respective District Courts of the United States, in case of the absence or disability of the judges thereof."

6. Bill not approved, nor returned with objections, for want of time ; retained, and notice thereof sent to Congress, by JAMES Madison, November 5, 1812 “An Act supplementary to the acts heretofore passed on the subject of a uniform rule of naturalization."

7. Returned to the Senate, by James Madison, January 30, 1815 — “ An Act to incorporate the subscribers to the Bank of the United States of America."

8. Returned to the House of Representatives, by James Madison, March 3, 1817 —" An Act to set apart and pledge certain funds for internal improvement."

9. Returned to the House of Representatives, by JAMES MONROE, May 4, 1822 — " An Act for the preservation and repair of the Cumberland road.”

10. Returned to the House of Represematives, by ANDREW Jackson, May 27, 1830 — “ An Act authorizing a subscription of stock in the Maysville, Washingtou, Paris, and Lexington Turnpike Road Company."

11. Returned to the Senate, by ANDREW Jackson, May 31, 1830 — " An Act authorizing a subscription of stock in the Washington Turnpike Road Company."

12. Returned to the Senate, by ANDREW JACKSON, July 10, 1832 -- -“ An Act to incorporate the subscribers to the Bank of the United States."

13. Returned to the Senate, by Andrew Jackson, December 6, 1832— “ An Act providing for the final settlement of the claims of states for interests on advances to the United States, made during the last war.”

14. Returned to the House of Representatives, by ANDREW Jackson, December 6, 1832 — * An Act for the improvement of certain harbors, and the navigation of certain rivers."

15. Bill not approved, nor returned with objections, for want of time; retained, and notice sent to the Senate, by Andrew JackSON, December 5, 1833 — “An Act to appropriate, for a limited time, the proceeds of the sales of the public lands of the United States, and for granting lands to certain states."

16. Returned to the Senate, by ANDREW Jackson, March 3, 1835 — “An Act to authorize the secretary of the treasury to compromise the claims allowed by the commissioners under the treaty with the king of the Two Sicilies, concluded October 14, 1832."

17. Bill not approved, nor returned with objections, for want of time; retained, and notice thereof sent to Congress, by ANDREW JACKSON, December 2, 1834 — “ An Act to improve the navigation of the Wabash River.”

18. Returned to the Senate, by ANDREW Jackson, June 10, 18:36 - « An Act to appoint a day for the annual meeting of Congress.”

19. Returned to the Senate, by loan TYLER, August 16, 1841 — " An Act to incorporate the subscribers to the s'iscal Bank of the United States."

20. Returned to the House of Representatives, by Joux TYLER, September 9, 1841 – "An Act to provide for the better collection, safe keeping, and disbursenient, of the public revenue, by means of a corporation, to be styled the · Fiscal Corporation of the United States.'

21. Returned to the House of Representatives, by John TYLER, June 29, 1842 —" An Act to extend, for a limited period, the present laws for laying and collecting duties on imports ;” (containing a proviso about distribution of proceeds of lands.) 22. Returned to the House of Representatives, by John TYLER, August 9, VOL. IV




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1842 — “An Act to provide revenue from imports, and to change and modify the existing laws imposing duties on imports, and for other purposes." (This bill was afterwards revived, with alterations and modifications; and, thus amended, finally passed, and received the President's signature.)

Recapitulation of Vetoes.
By George Washington,

• James Madison,

6 " James Monroe,

1 Andrew Jackson,

9 6 John Tyler,

4 Total,

22 Such is a plain history of the veto power. As it respects the several states, the executives in some have the power, in others not. Those which possess the negative power, such as is given to the President, are New York, New Hampshire, Massachusetts, Pennsylvania, Georgia, Louisiana, Mississippi, Missouri, and Maine. The other states do not have it at all, or the bill, when returned by the governor, may be repassed by a mere majority.

Of the ten Presidents, five have made use of the veto power, and five have not.

Number of acts approved, upwards of 6,000.




CONSTITUTIONAL PRINCIPLES. 1. The individual states have a constitutional right to pass naturalization laws, provided they do not contravene the rule established by the authority of the Union. Collett v. Collett, 2 Dall. 294. But see United States v. Villatto, ibid. 370.

2. The 2d section of the 3d article of the Constitution, giving original juris. diction to the Supreme Court in cases affecting consuls, does not preclude the legislature from vesting a concurrent jurisdiction in inferior courts. United States v. Ravara, Dall. 297.

Every act of the legislature repugnant to the Constitution is, ipso facto, void; and it is the duty of the court so to declare it. Vanhorne's Lessee v. Dorrance, 2 Dall. 304.

3. It is contrary to the letter and spirit of the Constitution to divest one citizen of his right, and vest it in another, without full compensation; and if the legislature may do so, upon full indemnification, it cannot of itself constitutionally determine upon the amount of the compensation. Ibid.

4. The constitution of England is at the mercy of Parliament. Every act of Parliament is transcendent, and must be obeyed. Ibid. 308.

5. In America, the case is widely different. Every state of the Union has its constitution, reduced to written exactitude. A constitution is the form of gorernment delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is certain and Sxed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the power that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. The legislatures are creatures of the Constitution; they owe their existence to the Constitution ; they derive their powers from the Constitution. It is their comunission, and

therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the people themselves, in their origival, sovereign, an 1 unlimited capacity. Law is the work or will of the legislature, in their derivv tive and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes limits to the exercise of the legislative authority, and prescribes the orbit in which it must move. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the legislature repugnant to the Constitution is absolutely void. Ibid.

6. The right of trial by jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away. Ibid. 309.

7. Whether the individual states have concurrent authority with the United States to pass naturalization laws, quære? United States v. Villatto, 2 Dall. 370.

See ante, No. 1.

8. Congress cannot by law assign the judicial department any duties but such as are of a judicial character; e. g., appointing the judges of the Circuit Court to receive and determine upon claims of persons to be placed on the pension list. Hayburn's Case, 2 Dall. 409.

9. A tax on carriages is not a direct tax, within the meaning of the Constitution; and the act of Congress of 5th June, 1794, ch. 219, (2 Bior. 414,) laying a tax on carriages, was constitutional and valid. Hylton v. United States, 3 Dall.. 171.

10. A treaty, under the 6th article, sect. 2, of the Constitution, being the supreme law of the land, the treaty of peace, in 1783, operates as a repeal of all state laws, previously created, inconsistent with its provisions. Ware, Adm'r. v. Hylton, 3 Dall. 199.

11. The prohibition, in the Federal Constitution, of er post facto laws, extends to penal statutes only, and does not extend to cases affecting only the civil rights of individuals. Calder et Ur. v. Bull et Ur., 3 Dal). 386.

12. A resolution or law of the legislature of Connecticut, setting aside a decree of a court, and granting a new trial, to be had before the same court, is not void, under the Constitution, as an er post facto law. Ibid.

13. It is a self-evident proposition that the several state legislatures retain all the powers of legislation delegated to them by the state constitutions, which are not expressly taken away by the Constitution of the United States. Per Chase, J. "Ibid.

14. A law that punishes a citizen for an innocent action, or, in other words, for an act which, when done, was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that inakes a man judge in his own cause; or a law that takes property from A, and gives it to B, is contrary to the great first principles of the social compact, and cannot be considered as a rightful exercise of legislative authority. The genius, the nature, the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid thein. Per CHASE, J. Ibid.

15. The words and intent of the probibition embrace, 1st, every law that makes an action done before the framing of the law, and which was invocent when done, criminal, and punishes such action; 2d, every law that aggravates a crime, or makes it greater than it was when committed; 3d, every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed ; 4th, every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. Per CHASE, J. Ibid.

16. If any act of Congress, or of the legislature of a state, violates the constitutional provisions, it is unquestionably void. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. If the legislature pursue the authority delegated to them, their acts are valid ; if they transgress the boundaries of thut authority, their acts are invalid. Per ÍREDELI, J. ibid.

17. An act of a state legislature, banishing the person and confiscating the property of certain individuals therein named as traitors, passed before the establishment of the Federal Constitution, is not void. Cooper v. Telfair, 4 Dall. 14.

18. The words of the Constitution, declaring that "the judicial power shall extend to all cases of admiralty and inaritime jurisdiction," must be taken to refer to the admiralty and maritime jurisdiction of England, United States v. M'Gill, 4 Dall. 426, 429.

19. The Constitution, art. 2, sect. 2, 3, with regard to the appointment and commissioning of officers by the President, seems to contemplate three distinct operations - 1. The nomination: this is the sole act of the President, and is completely voluntary. 2. The appointment: this is also the act of the President, though it can only be performed by and with the advice and consent of the Senate. 3. The commission: to grant a commission to a person appointed, might perbaps be deemed a duty enjoined by the Constitution, Marbury v. Madison, 1 Cranch, 137, 155.

20. The acts of appointing to office, and commissioning the person appointed, are distinct acts. Ibid. 156.

21. The Constitution contemplates cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a dury distinct from the appointment, the performance of which, perhaps, could not be legally refused. Ibid.

22. Where the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled; it has conferred legal rights which cannot be resumed. Ibid. 162.

23. The question whether the legality of the act of the heads of departments be examinable in a court of justice, or not, must always depend on the nature of that act. Ibid. 165. Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act on cases in which the executive possesses a confidential or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend on the performance of that duty, it seems equally clear that the individual who considers himself injured bas a right to resort to the laws of his country for a remedy. Ibid.

24. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden, - as, for example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record, - in such cases, the courts of the country are no further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were performed by a person not at the head of a department. Ibid. 171.

25. The authority given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, is not warranted by the Constitution. Ibid. 176.

26. An act of Congress repugnant to the Constitution cannot become the law of the land. Ibid. 176, 177, 180.

27. An act of Congress cannot invest the Supreme Court with an authority not warranted by the Constitution. Ibid. 175, 176.

28. A contemporary exposition of the Constitution, practised and acquiesced under for a period of years, fixes the construction, and the Court will not shake or control it. Stuart v. Laird, 1 Cranch, 299.

29. An act of Congress giving to the United States a preference over all other creditors, in all cases, is constitutional and valid. United States v. Fisher e Al. 2 Cranch, 358, 395.

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