FEDERALIST No. 73

The Provision For The Support of the Executive, and the Veto Power

From the New York Packet.

Friday, March 21, 1788.

HAMILTON

To the People of the State of New York:

THE third ingredient towards constituting the vigor of the

executive authority, is an adequate provision for its support. It

is evident that, without proper attention to this article, the

separation of the executive from the legislative department would be

merely nominal and nugatory. The legislature, with a discretionary

power over the salary and emoluments of the Chief Magistrate, could

render him as obsequious to their will as they might think proper to

make him. They might, in most cases, either reduce him by famine,

or tempt him by largesses, to surrender at discretion his judgment

to their inclinations. These expressions, taken in all the latitude

of the terms, would no doubt convey more than is intended. There

are men who could neither be distressed nor won into a sacrifice of

their duty; but this stern virtue is the growth of few soils; and

in the main it will be found that a power over a man's support is a

power over his will. If it were necessary to confirm so plain a

truth by facts, examples would not be wanting, even in this country,

of the intimidation or seduction of the Executive by the terrors or

allurements of the pecuniary arrangements of the legislative body.

It is not easy, therefore, to commend too highly the judicious

attention which has been paid to this subject in the proposed

Constitution. It is there provided that ``The President of the

United States shall, at stated times, receive for his services a

compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING

THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT

RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United

States, or any of them.'' It is impossible to imagine any provision

which would have been more eligible than this. The legislature, on

the appointment of a President, is once for all to declare what

shall be the compensation for his services during the time for which

he shall have been elected. This done, they will have no power to

alter it, either by increase or diminution, till a new period of

service by a new election commences. They can neither weaken his

fortitude by operating on his necessities, nor corrupt his integrity

by appealing to his avarice. Neither the Union, nor any of its

members, will be at liberty to give, nor will he be at liberty to

receive, any other emolument than that which may have been

determined by the first act. He can, of course, have no pecuniary

inducement to renounce or desert the independence intended for him

by the Constitution.

The last of the requisites to energy, which have been

enumerated, are competent powers. Let us proceed to consider those

which are proposed to be vested in the President of the United

States.

The first thing that offers itself to our observation, is the

qualified negative of the President upon the acts or resolutions of

the two houses of the legislature; or, in other words, his power of

returning all bills with objections, to have the effect of

preventing their becoming laws, unless they should afterwards be

ratified by two thirds of each of the component members of the

legislative body.

The propensity of the legislative department to intrude upon the

rights, and to absorb the powers, of the other departments, has been

already suggested and repeated; the insufficiency of a mere

parchment delineation of the boundaries of each, has also been

remarked upon; and the necessity of furnishing each with

constitutional arms for its own defense, has been inferred and

proved. From these clear and indubitable principles results the

propriety of a negative, either absolute or qualified, in the

Executive, upon the acts of the legislative branches. Without the

one or the other, the former would be absolutely unable to defend

himself against the depredations of the latter. He might gradually

be stripped of his authorities by successive resolutions, or

annihilated by a single vote. And in the one mode or the other, the

legislative and executive powers might speedily come to be blended

in the same hands. If even no propensity had ever discovered itself

in the legislative body to invade the rights of the Executive, the

rules of just reasoning and theoretic propriety would of themselves

teach us, that the one ought not to be left to the mercy of the

other, but ought to possess a constitutional and effectual power of

selfdefense.

But the power in question has a further use. It not only serves

as a shield to the Executive, but it furnishes an additional

security against the enaction of improper laws. It establishes a

salutary check upon the legislative body, calculated to guard the

community against the effects of faction, precipitancy, or of any

impulse unfriendly to the public good, which may happen to influence

a majority of that body.

The propriety of a negative has, upon some occasions, been

combated by an observation, that it was not to be presumed a single

man would possess more virtue and wisdom than a number of men; and

that unless this presumption should be entertained, it would be

improper to give the executive magistrate any species of control

over the legislative body.

But this observation, when examined, will appear rather specious

than solid. The propriety of the thing does not turn upon the

supposition of superior wisdom or virtue in the Executive, but upon

the supposition that the legislature will not be infallible; that

the love of power may sometimes betray it into a disposition to

encroach upon the rights of other members of the government; that a

spirit of faction may sometimes pervert its deliberations; that

impressions of the moment may sometimes hurry it into measures which

itself, on maturer reflexion, would condemn. The primary inducement

to conferring the power in question upon the Executive is, to enable

him to defend himself; the secondary one is to increase the chances

in favor of the community against the passing of bad laws, through

haste, inadvertence, or design. The oftener the measure is brought

under examination, the greater the diversity in the situations of

those who are to examine it, the less must be the danger of those

errors which flow from want of due deliberation, or of those

missteps which proceed from the contagion of some common passion or

interest. It is far less probable, that culpable views of any kind

should infect all the parts of the government at the same moment and

in relation to the same object, than that they should by turns

govern and mislead every one of them.

It may perhaps be said that the power of preventing bad laws

includes that of preventing good ones; and may be used to the one

purpose as well as to the other. But this objection will have

little weight with those who can properly estimate the mischiefs of

that inconstancy and mutability in the laws, which form the greatest

blemish in the character and genius of our governments. They will

consider every institution calculated to restrain the excess of

law-making, and to keep things in the same state in which they

happen to be at any given period, as much more likely to do good

than harm; because it is favorable to greater stability in the

system of legislation. The injury which may possibly be done by

defeating a few good laws, will be amply compensated by the

advantage of preventing a number of bad ones.

Nor is this all. The superior weight and influence of the

legislative body in a free government, and the hazard to the

Executive in a trial of strength with that body, afford a

satisfactory security that the negative would generally be employed

with great caution; and there would oftener be room for a charge of

timidity than of rashness in the exercise of it. A king of Great

Britain, with all his train of sovereign attributes, and with all

the influence he draws from a thousand sources, would, at this day,

hesitate to put a negative upon the joint resolutions of the two

houses of Parliament. He would not fail to exert the utmost

resources of that influence to strangle a measure disagreeable to

him, in its progress to the throne, to avoid being reduced to the

dilemma of permitting it to take effect, or of risking the

displeasure of the nation by an opposition to the sense of the

legislative body. Nor is it probable, that he would ultimately

venture to exert his prerogatives, but in a case of manifest

propriety, or extreme necessity. All well-informed men in that

kingdom will accede to the justness of this remark. A very

considerable period has elapsed since the negative of the crown has

been exercised.

If a magistrate so powerful and so well fortified as a British

monarch, would have scruples about the exercise of the power under

consideration, how much greater caution may be reasonably expected

in a President of the United States, clothed for the short period of

four years with the executive authority of a government wholly and

purely republican?

It is evident that there would be greater danger of his not

using his power when necessary, than of his using it too often, or

too much. An argument, indeed, against its expediency, has been

drawn from this very source. It has been represented, on this

account, as a power odious in appearance, useless in practice. But

it will not follow, that because it might be rarely exercised, it

would never be exercised. In the case for which it is chiefly

designed, that of an immediate attack upon the constitutional rights

of the Executive, or in a case in which the public good was

evidently and palpably sacrificed, a man of tolerable firmness would

avail himself of his constitutional means of defense, and would

listen to the admonitions of duty and responsibility. In the former

supposition, his fortitude would be stimulated by his immediate

interest in the power of his office; in the latter, by the

probability of the sanction of his constituents, who, though they

would naturally incline to the legislative body in a doubtful case,

would hardly suffer their partiality to delude them in a very plain

case. I speak now with an eye to a magistrate possessing only a

common share of firmness. There are men who, under any

circumstances, will have the courage to do their duty at every

hazard.

But the convention have pursued a mean in this business, which

will both facilitate the exercise of the power vested in this

respect in the executive magistrate, and make its efficacy to depend

on the sense of a considerable part of the legislative body.

Instead of an absolute negative, it is proposed to give the

Executive the qualified negative already described. This is a power

which would be much more readily exercised than the other. A man

who might be afraid to defeat a law by his single VETO, might not

scruple to return it for reconsideration; subject to being finally

rejected only in the event of more than one third of each house

concurring in the sufficiency of his objections. He would be

encouraged by the reflection, that if his opposition should prevail,

it would embark in it a very respectable proportion of the

legislative body, whose influence would be united with his in

supporting the propriety of his conduct in the public opinion. A

direct and categorical negative has something in the appearance of

it more harsh, and more apt to irritate, than the mere suggestion of

argumentative objections to be approved or disapproved by those to

whom they are addressed. In proportion as it would be less apt to

offend, it would be more apt to be exercised; and for this very

reason, it may in practice be found more effectual. It is to be

hoped that it will not often happen that improper views will govern

so large a proportion as two thirds of both branches of the

legislature at the same time; and this, too, in spite of the

counterposing weight of the Executive. It is at any rate far less

probable that this should be the case, than that such views should

taint the resolutions and conduct of a bare majority. A power of

this nature in the Executive, will often have a silent and

unperceived, though forcible, operation. When men, engaged in

unjustifiable pursuits, are aware that obstructions may come from a

quarter which they cannot control, they will often be restrained by

the bare apprehension of opposition, from doing what they would with

eagerness rush into, if no such external impediments were to be

feared.

This qualified negative, as has been elsewhere remarked, is in

this State vested in a council, consisting of the governor, with the

chancellor and judges of the Supreme Court, or any two of them. It

has been freely employed upon a variety of occasions, and frequently

with success. And its utility has become so apparent, that persons

who, in compiling the Constitution, were violent opposers of it,

have from experience become its declared admirers.1

I have in another place remarked, that the convention, in the

formation of this part of their plan, had departed from the model of

the constitution of this State, in favor of that of Massachusetts.

Two strong reasons may be imagined for this preference. One is

that the judges, who are to be the interpreters of the law, might

receive an improper bias, from having given a previous opinion in

their revisionary capacities; the other is that by being often

associated with the Executive, they might be induced to embark too

far in the political views of that magistrate, and thus a dangerous

combination might by degrees be cemented between the executive and

judiciary departments. It is impossible to keep the judges too

distinct from every other avocation than that of expounding the laws.

It is peculiarly dangerous to place them in a situation to be

either corrupted or influenced by the Executive.

PUBLIUS.

1 Mr. Abraham Yates, a warm opponent of the plan of the

convention is of this number.