The so-called Pinckney plan contains a veto clause much as we have it now. The only other scheme of government of any importance which was introduced at this time was the "Jersey Plan”; but as it had no executive, there was no provision for a veto.

The main discussion in regard to the veto power centred around the resolve of Mr. Randolph. On June 4, Mr. Gerry of Massachu setts moved to amend Randolph's resolve so that it should read: "that the national executive shall have a right to negative any legislative act which shall not afterwards be passed by parts of each branch of the National Legislature."2 Hamilton, with his characteristic zeal for a strong central government, moved to strike out the last fifteen words of the Amendment, but the motion was unanimously rejected. At this point Franklin attempted to have a suspensive veto substituted for a negative veto, but the attempt failed. The blank in Gerry's substitute resolve was then filled by the words "two-thirds," and the whole resolution was adopted by a vote of eight states to two.5 The resolution allowed the President to retain bills for seven days, and did not apply to joint resolutions, orders, or votes. Later on, the plan was changed so that the President could retain a bill for ten days, and could veto joint-resolutions, orders, and votes as well as bills.6

On June 18th Hamilton introduced his scheme of government which entrusted the executive with an absolute veto on both state and national legislation. The scheme was too pronounced to have any chance of acceptance in the Convention, and was at once rejected.

On August 15th Madison brought up for the third time the question of including the judges of the Supreme Court with the President in the exercise of the veto power. The plan was one the success of which Madison apparently had very much at heart, but it was defeated. Two reasons seem to have led to this result. In the first place, it was considered that the judges who were to be the interpreters of the law "might receive an improper bias

8 The vote stood: Aye, 3 States — Del., Md., Va.; No, 8 States — N. H., Mass., Conn., N. J., Pa., N. Car., S. Car., Ga. Madison, Papers, III, 1333.

from having given a previous opinion in a revisionary capacity." In the second place, it was deemed wise to keep the judiciary as far removed as possible from any connection with political schemes which the President might wish to bring forward or influence either by his approval or disapproval of legislation. The Convention acted wisely in rejecting Madison's proposal, and the experience of a century has shown how fortunate was their decision. It is certainly a dangerous thing "to place the judges in a position to be either corrupted or influenced by the executive." 2

One of the curious incidents of the discussion of the veto power in the Convention was the fluctuation of opinion regarding the proportion of votes in each branch of Congress which should be necessary to override an executive veto. August 15, on motion. of Mr. Wilson, it was decided by a vote of six states to four, to change it from two-thirds to three-fourths; on September 12th, this decision was exactly reversed by an exactly similar vote of six states to four, made on the motion of Mr. Wilson. The reason which he assigned for his change of front was that the threefourths rule gave the President too much power. Mr. Madison pointed out that when the three-fourths rule was adopted the President was to be elected by the legislature, and for seven years, but that since that time a change had been made, and he was now to be elected by the people, and for four years.5 Partly on account of these circumstances Mr. Madison favored the retention of the three-fourths requirement.6

§ II. The veto clause in the Constitution of the United States. - Such is, in brief, the history of the veto as it appears in the Constitution of the United States. The scope of the present work precludes more than a mere outline of the origin of the power, — a sketch of a growth to which a volume might profitably be devoted. Before passing to the discussion of the veto messages of the Presidents of the United States, which will occupy the body of the work, the result of the deliberations of the Convention should be stated. Article I, section 7, §§ 2 and 3 of the Constitution, reads as follows: "2. Every bill which shall have passed

1 Story, Commentaries, § 886.

3 Elliot, Debates, V, 431

4 Ibid., V, 536.

2

Story, Commentaries, § 886.

5 Elliot, Debates, V, 538.

6 Had the three-fourths ratio been retained, few bills would have been passed over the veto.

See § 116.

the House of Representatives and the Senate shall, before it become 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. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall be likewise reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

'Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill."

CHAPTER II.

VETOES AFFECTING THE FORM OF GOVERNMENT.

§ 12. Executive methods of treating a bill.

§ 13. Classification of the vetoes.

§ 14. Vetoes affecting the form of the national Legislature.

§ 15. Vetoes affecting the form of the national Judiciary.

§ 16. General effect of vetoes considered in this chapter.

§ 12. Executive methods of treating a bill. There are five ways in which a President of the United States may treat a bill which has duly passed both houses of Congress and has been presented to him: 1. In the first place, he may sign it, and in this case, the bill at once becomes a law. 2. Or if he is not satisfied with a bill, but nevertheless considers it inadvisable to veto it, he may sign it, and at the same time send to Congress a protest against those provisions in the measure of which he disapproves. This is a method of treating a bill which is not recognized by the Constitution. 3. Again, if a bill be presented to the President more than ten days before the close of a session of Congress, he may leave it unsigned; in this case in ten days it becomes a law without his signature. 4. If a measure be presented to the executive within ten days of the end of a session of Congress, and he fails to sign it, the bill does not become a law. This method of dealing with bills is the well-known "pocket-veto.' 5. Lastly, a President may veto a bill; that is, may refuse to sign it, and send his reasons for such refusal to Congress.1 Of course, if a bill has been presented within ten days of the end of a session, simple withholding of the President's signature kills it; but in many such cases the President has preferred to return the bill at once with his objections.

In the discussion to follow, and in the Appendices, every formal veto message, and all formal protests have been included, but no attempt has been made to sift out of the mass of abortive legisla

1 Constitution, Art. I, sec. vii, §§ 2 and 3. Quoted, ante, § II.

§§ 12-14. Methods of Treating Bills and Classification.

25

tion the many bills which have failed for want of approval, and have never been referred to by the executive in his communications to Congress.

§ 13. Classification of the vetoes. — Before beginning the examination of the vetoes themselves, a word in explanation of their classification may be proper. All measures of Congress relate either to the form of the government or to the exercise of its powers. All the vetoes may therefore be conveniently divided into two corresponding classes. The classes will be considered in the order mentioned above, partly because it is natural to consider the form of a government before its powers, and partly because the vetoes of the second class are the more numerous and important.

Attempts at radical changes of the form of government have usually appeared in Congress as resolutions to amend the Constitution, and consequently the first class of vetoes is small. For resolutions to submit amendments do not require the assent of the President. The great majority of Congressional measures which have required the assent of the President have had reference to the scope of the powers granted by the Constitution, and it is under this head that we find the greatest number of vetoes. Within the various classes and sub-classes into which the vetoes have been divided the order in the discussion will be chronological.

§ 14. Vetoes affecting the form of the national Legislature. The first bill vetoed under the Constitution was one authorizing a change in the form of the legislative branch of the government. In 1792 a bill passed Congress entitled, "An Act for an Apportionment of Representatives among the several States." April 5, 1792, President Washington vetoed the bill in a message addressed to the "Gentlemen of the House of Representatives," and signed simply "G. Washington." 1

The reasons given for the veto were as follows: "First. The Constitution has prescribed that Representatives shall be apportioned among the several States according to their respective numbers; and there is no proportion or divisor which, applied to the respective numbers of the States, will yield the number and allot

1 See Appendix A, No. I. See also Hildreth, History of the United States, IV, 303; Schouler, History of the United States, I, 189; John C. Hamilton, Life of Alexander Hamilton, IV, 334; Writings of Thomas Jefferson, VII, 594, IX, 115; Writings of James Madison, I, 544-546, 549, 550, 552, 554.