Antifederalist No. 73
DOES THE PRESIDENTIAL VETO POWER INFRINGE ON THE SEPARATION OF
DEPARTMENTS?
"WILLIAM PENN," an anonymous writer appeared in the
[Philadelphia] Independent Gazetteer on January 3, 1788.
. . . I believe that it is universally agreed upon in this
enlightened country, that all power residing originally in the
people, and being derived from them, they ought to be governed by
themselves only, or by their immediate representatives. I shall
not spend any time in explaining a principle so well and so
generally understood, but I shall proceed immediately to that
which I conceive to be the next in order.
The next principle, without which it must be clear that no
free government can ever subsist, is the DIVISION OF POWER among
those who are charged with the execution of it. It has always
been the favorite maxim of princes, to divide the people, in
order to govern them. It is now time that the people should
avail themselves of the same maxim, and divide powers among their
rulers, in order to prevent their abusing it. The application of
this great political truth, has long been unknown to the world,
and yet it is grounded upon a very plain natural principle. If,
says Montesquieu, the same man, or body of men, is possessed both
of the legislative and executive power, there is NO LIBERTY,
because it may be feared that the same monarch, or the same
senate, will enact tyrannical laws, in order to execute them in a
tyrannical manner. Nothing can be clearer, and the natural
disposition of man to ambition and power makes it probable that
such would be the consequence. Suppose for instance, that the
same body, which has the power of raising money by taxes, is also
entrusted with the application of that money, they will very
probably raise large sums, and apply them to their own private
uses. If they are empowered to create offices, and appoint the
officers, they will take that opportunity of providing for
themselves, and their friends, and if they have the power of
inflicting penalties for offenses, and of trying the offenders,
there will be no bounds to their tyranny. Liberty therefore can
only subsist, where the powers of government are properly
divided, and where the different jurisdictions are inviolably
kept distinct and separate.'
(1) I shall illustrate this doctrine by an example. A burgher of
a certain borough of Switzerland was elected Bailiff, or Chief
Magistrate, for one year, according to the constitution of the
place. Shortly after his appointment, he sent for one of his
neighbors, and ordered him to pull off his boots. The honest
neighbor was astonished, and attempted to remonstrate, but the
bailiff was determined to exert his authority, and threatened to
send him to jail, if he did not yield him an immediate obedience.
The poor man was forced to comply, for the bailiff was vested
with power, both legislative and executive. He pulled off his
worship's boots, but said to him, "When I am appointed bailiff in
my turn, you shall pull off my boots and clean them too."
The first and most natural division of the powers of
government are into the legislative and executive branches. These
two should never be suffered to have the least share of each
other's jurisdiction, or to intermeddle with it in any manner.
For whichever of the two divides its power with the other, will
certainly be subordinate to it; and if they both have a share of
each other's authority, they will be in fact but one body. Their
interest as well as their powers will be the same, and they will
combine together against the people.
It is therefore a political error of the greatest magnitude,
to allow the executive power a negative, or in fact any kind of
control over the proceedings of the legislature. The people of
Great Britain have been so sensible of this truth, that since the
days of William III, no king of England has dared to exercise the
negative over the acts of the two houses of parliament, to which
he is clearly entitled by his prerogative.
This doctrine is not novel in America; it seems on the
contrary to be everywhere well understood and admitted beyond
controversy. In the bills of rights or constitutions of New-
Hampshire, Massachusetts, Maryland, Virginia, North-Carolina and
Georgia, it is expressly declared, "That the legislative,
executive and judicial departments, shall be forever separate and
distinct from each other." In Pennsylvania and Delaware, they are
effectually separated without any particular declaration of the
principle. In the other states indeed, the executive branch
possesses more or less of the executive power. And here it must
appear singular that the state of Massachusetts-where the
doctrine of a separate jurisdiction is most positively
established, and in whose bill of rights these remarkable words
are to be found, "The executive shall never exercise the
legislative and judicial powers, or either of them, to the end it
may be a government of laws and not of men" (sect. 30) -yet in
that commonwealth and New-Hampshire, the executive branch, which
consists of a single magistrate, has more control over the
legislature than in any other state. For there, if the governor
refuses his assent to a bill, it cannot be passed into a law,
unless two thirds of the house afterwards concur. In New York
the same power is given to a Council of Revision, consisting of
the Governor, the Chancellor and judges of the Supreme Court, or
any three of them, of which the Governor is to be one. In Rhode-
Island and Connecticut, whose governments were established before
the revolution, the Governor has a single vote as a member of the
upper house, and New Jersey has adopted this part of their
constitution. In Georgia the laws are to be revised by the
Governor and Council, but they can do no more than give their
opinion upon them. In Maryland the bills are to be signed by the
Governor before they can be enacted; and in South-Carolina they
are to be sealed with the great sea], which is in the Governor's
custody. But in the first of these states, the constitution
prescribes that the Governor shall sign the bills; and in the
latter, a joint committee of both houses of legislature is to
wait upon the chief magistrate to receive and return the great
seat, which implies that he is bound to deliver it to them, for
the special purpose of affixing it to the laws of the state.
Pennsylvania has proceeded upon a much more rational ground,
their legislature having a particular seal of their own, and
their laws requiring only to be signed by the speaker. It in
Maryland or South-Carolina a difference should ever arise between
the legislature and the Governor, and the latter should refuse to
sign the laws, or to deliver the great seal, the most fatal
consequences might ensue.
Here then we see the great leading principle of the absolute
division of the legislative from the executive jurisdiction,
admitted in almost every one of the American states as a
fundamental maxim in the politics of a free country. The theory
of this general doctrine is everywhere established, though a few
states have somewhat swerved from it in the practice. From
whence we must conclude, that even the knowledge and full
conviction of a new political truth will not always immediately
conquer inveterate habits and prejudices. The idea of the
negative, which the constitution of England gives to the monarch
over the proceedings of the other branches of parliament,
although it has so long become obsolete, has had an effect upon
timid minds, and upon the minds of those who could not
distinguish between the form and spirit of the British
constitution. They would not grant to the executive branch an
absolute negative over the legislature, but yet they tried every
method to introduce something similar to it. They reprobated the
doctrine in the most express words, and yet they could not bear
to part entirely with it. It is curious to observe how many
different ways they have endeavored to conciliate truth with
prejudice. Of those states who have allowed the executive branch
to intermeddle with the proceedings of the legislature, no two
(New Hampshire and Massachusetts excepted) have done it exactly
in the same manner. They have tried every possible medium, but
having lost sight of the original principle which they had
already established, and which alone could have been their safest
guide, they groped about in the dark, and could not find any
solid ground on which to establish a general rule. Like Noah's
dove, being once out of the ark of truth, they could not find
elsewhere a place to rest their feet.
These facts will no doubt afford an interesting page in the
history of the contradictions of the human mind. Unfortunately,
they do not stand single, and this is not the only instance that
we find in the constitutions of the different states, of a
general principle being expressly declared as a part of the
natural rights of the citizens, and afterwards being as expressly
contradicted in the practice. Thus we find it declared in every
one of our bills of rights, "that there shall be a perfect
liberty of conscience, and that no sect shall ever be entitled to
a preference over the others." Yet in Massachusetts and Maryland,
all the officers of government, and in Pennsylvania the members
of the legislature, are to be of the Christian religion; in New-
Jersey, North-Carolina, and Georgia, the Protestant, and in
Delaware, the trinitarian sects, have an exclusive right to
public employment; and in South-Carolina the constitution goes so
far as to declare the creed of the established church. Virginia
and New-York are the only states where there is a perfect liberty
of conscience. I cannot say any thing as to Connecticut and
Rhode-Island, as their constitutions are silent on the subject,
and I have not been informed of their practice.
Whether these religious restrictions are right or wrong, it
is not my intention, nor is it my object to examine in the course
of these disquisitions. I only meant to show, that in laying
down a political system it is safer to rely on principles than
upon precedents, because the former are -fixed and immutable,
while the latter vary with men, places, times and circumstances.
WILLIAM PENN