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returned as a reply a verbatim copy of the resolutions which the Senate had adopted on the occasion of President Jackson's protest, and for which Tyler, as a Senator, had voted.

In the debate over the veto, members of Congress indulged in the most gloomy forebodings as to the future of the country. The President was charged with crushing out freedom. Mr. Lane of Indiana affirmed that "If the proud eagle of American liberty should ever sink, it would be cloven down by the sword of the executive." The records show that even the most sensible men on the Whig side of the House appeared to share the fear grandiloquently expressed by Mr. Lane. Much of the criticism was of course mere party talk; but one point of more than partizan interest was touched upon in the strife. It was maintained that it was entirely contrary to the spirit of the Constitution for the executive to veto a revenue bill.2 It was indeed true that the Constitution had reserved to the House the exclusive right to originate such bills; but the Senate was not prohibited, either expressly or by implication, from rejecting or amending them; nor was the President precluded from vetoing them. Analogies were drawn from the English procedure in similar cases, but were misleading. We have already seen that the veto power in England had totally disappeared more than one hundred years before the time of President Tyler's administration. Moreover, the English kings were dependent upon Parliamentary votes. for their revenues, and therefore would not have refused their assent to appropriation bills even if they had not lost the veto. It would have been vetoing their own means of support. The error in the argument becomes even more apparent when we consider that, during the time that the English. veto was becoming obsolete, the American veto was growing in strength and scope. In the United States the power had long ceased to be used simply as a check upon unconstitutional measures, and had come to be freely used when a President considered. a bill inexpedient.

If there was nothing in the Constitution condemning these vetoes, was there anything in that document requiring them? There was not. They were, however, directly confirmatory of the act of 1841 already referred to. This act, with its proviso, was con

1 Congressional Globe, 27 Cong., 2 sess., 700.

2 Von Holst, Constitutional History of the United States, II, 460.

3 Art. I, Sec. 7, § I.

sidered an important element of the Compromise of 1833. That compromise, while it was of course not a part of the Constitution, nevertheless bore a peculiar character as a settlement between the sections of the country of a great question of policy. It had, in consequence of this character, been recognized by the Supreme Court of the United States as somewhat above an ordinary act.1 While it is impossible to consider the tariff vetoes a defence of the Constitution, it is equally impossible to call them mere measures of expediency or the exercise of the President's personal whims. They occupy a curious and somewhat anomalous position midway between expediency and constitutionality.

February 22, 1869, President Johnson vetoed a bill increasing the duty on the import of copper and copper ores.2 The bill was passed in the interests of certain mines on Lake Superior which were in a much depressed condition. It was, in short, a bill for the protection of home industries, and was vetoed by the President on the ground that it would diminish the revenue of the government by curtailing imports, would impose an additional tax on an already overburdened people, and would destroy certain manufactories which were much more extensive and important than the industry it was proposed to protect. He also pointed out that the bill could not be called a protective measure in any fair acceptation of the term, since it appeared to assume that the need for which provision was to be made was inherent and permanent.

In the House, a sharp debate arose upon the veto. The question was mainly as to the advisability of a policy of protection in general and in this particular instance. It was argued that other industries had been protected; therefore copper should be. Mr. Schenck took occasion to remark that the veto should only be used to protect the executive and to prevent unconstitutional legislation.1 These two views, together with the natural animosity of Congress toward President Johnson, procured the passage of the bill over the veto.

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§ 54. Refunding the direct tax. Bills affecting the relations between the States and the general government have seldom been called in question by the President. Twice, however, the veto has

1 Aldrige v. Williams, 3 Howard, I.

2 Appendix A, No. 73.

3 Congressional Globe, 40 Cong., 3 sess., 1461-1466.

4 Ibid., 1465.

been interposed, in both cases to prevent undeserved payments of money to the States.

July 14, 1832, a bill was presented to President Jackson entitled, "An act providing for the final settlement of the claims of States for interest on advances made during the war." President Jackson disposed of the bill by a pocket veto,1 and early at the next session of Congress he sent to the Senate his reasons for withholding his approval. It adopted, he said, a principle in regard to the allowance of interest to the States contrary to the rule which had been uniformly followed by the government up to that time.

A more recent and much more important proposition has been that of refunding a tax duly collected from the several States. March 2, 1889, President Cleveland vetoed a bill entitled, “An act to credit and pay to the several States and Territories, and the District of Columbia, all moneys collected under the direct tax levied by the act of Congress approved August fifth, eighteen hundred and sixty-one." 2 The purpose of the bill is sufficiently explained by its title. It was argued in support of the measure that the money due from most of the Southern States never had been paid and could not now be collected, and that therefore it was an act of justice to those States which had paid the tax to refund to them the money they had advanced.

The President objected to the bill first because there was nothing in the Constitution which in his opinion warranted such an appropriation. The original tax was laid and collected in a constitutional manner, and could not be considered in any sense as a debt due by the United States either to the States or to the individuals who had paid the tax. It was, so the President held, a sheer gratuity, and as such was wholly unconstitutional.

But the President objected to the bill on other than constitutional grounds. He considered it most unwise to familiarize the people with the principle that the government might be called upon to repay a tax whose validity and constitutionality were not even questioned, simply because a portion of it had not been collected. He might have added that should this principle be rigidly enforced scarcely one of the multitude of taxes levied by the United States government could remain unrefunded. The last and most practical of the President's objections was that the method of dis

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tribution adopted by the bill was extremely unjust, and that in fact distribution on a just basis was an impossibility. The bill provided that in certain cases the money was to go unconditionally into the State treasuries, while in other cases it was to be returned to those who had paid the tax, or to their legal representatives. The President maintained that the tax had been collected from individuals and should in justice be returned to individuals. But in many cases the original tax-payers were neither alive nor represented, while in other cases those alive could not be found. In short it would be impossible to return the money to those who had paid it, or to their representatives, and to return it to any one else, or even to the State, would be wholly unjustifiable.

The bill was passed over the President's veto in the Senate, and in the debate incident to that passage the doctrine was laid down by Senators Sherman and Stewart that bills should be vetoed only upon constitutional grounds,1 a doctrine which is without foundation, and which sounds strange at the present day.2

§ 55. Bank charter vetoes. Turning now from the vetoes relating to the raising of revenue, we come to those which relate to what for lack of a better title may be called the care of the reveThe place of deposit of government funds has always been a subject of solicitude ever since the government had funds to deposit. Three different Presidents have so far recognized this solicitude as to veto bills granting charters to banks.

nue.

§ 56. Madison's Bank veto. January 30, 1815, President Madison vetoed a bill for the charter of the Second Bank of the United States of America. In this message the President passed over the constitutional arguments against the charter of the bank on the ground that the constitutionality of the question had been settled by the repeated recognition of the validity of a national bank. Madison's objection to the charter was based wholly on its inefficiency. The avowed objects of the bill were to strengthen the public credit, to furnish a currency, and to make loans to the government during the existing war. These objects the President thought could not be attained under the present measure, and he therefore vetoed it. This veto was interesting as marking a gradual

1 Congressional Record, 50 Cong., 2 sess., 2612.

2 A more elaborate discussion of the right of the President to veto bills for reasons of expediency will be found in §§ 121-123.

3 Appendix A, No. 7.

change in the ground upon which veto messages were based. Most of the earlier vetoes of importance had been founded wholly on constitutional principles; occasionally the argument of expediency was added. In the present case it was upon expediency alone that the President made objections. The veto is one of the first of the long series in which the President has asserted a difference of judgment between himself and Congress as the only reason for refusing assent to a bill.

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$ 57. Jackson's Bank veto. In 1816, however, another bank bill was presented to Madison, who signed it; and under the act the second United States Bank was organized. In 1832 an attempt was made to recharter the bank, and Jackson interposed his veto.1 In this case the question of constitutionality, which President Madison had considered as irrevocably settled in the affirmative, was revived by President Jackson, who insisted that the general question was still open, and further, that the charter contained in the present bill was unconstitutional in details.

In a previous chapter President Jackson's bank veto has been considered in its bearing on the contest between the legislative and the executive branches of the government.2 It has also an important bearing on the exercise of the financial powers of the government, which must be considered here. The President affirmed that he had as much right as the Supreme Court to declare an act unconstitutional. He then proceeded to justify the veto on constitutional grounds, and quoted the Supreme Court in support of his position. His principle seems to be that the decision of the Supreme Court was good law so far as he agreed with it, but of no effect where he disagreed. The decision to which President Jackson appealed had declared that a bank was a "necessary" means for carrying into effect the powers of government, and that it was therefore constitutional; that Congress might employ this means at its discretion, and that the question of the degree of necessity must be left to Congress. President Jackson then goes on to say that the decision acknowledges the right of Congress to decide whether a bank and the details of its organization are necessary and proper; that the President, as part of Congress, may decide for himself whether the provisions of the act are necessary and proper; and that if the provisions are not in his opinion necessary and proper then the act is unconstitutional. The court declared 2 Ante, § 19.

1 Appendix A, No. 14.

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