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 Massachusettswhere 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.