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CHAPTER XIII.

MODE OF PASSING LAWS.

PRESIDENT'S NEGATIVE.

$ 873. The seventh section of the first article treats of two important subjects, the right of originating revenue bills, and the nature and extent of the President's negative upon the passing of laws.

$ 874. The first clause declares, “ All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.” This provision, so far as it regards the right to originate what are technically called “money bills," is, beyond all question, borrowed from the British house of commons, of which it is the ancient and indisputable privilege and right that all grants of subsidies and parliamentary aids shall begin in their house, and are first bestowed by them, although their grants are not effectual to all intents and purposes until they have the assent of the other two branches of the legislature.1 The general reason given for this privilege of the house of commons is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. And Mr. Justice Blackstone has very correctly remarked, that this reason would be unanswerable if the commons taxed none but themselves. But it is notorious that a very large share of property is in possession of the lords; that this property is equally taxed, as the property of the commons; and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced, more likely to continue so than the commons, who are a temporary elective body, freely nominated by the people. It would, therefore, be extremely dangerous to give the lords any power of framing new taxes for the subject. It is sufficient that they have a power of rejecting, if they think the commons too lavish or improvident in their grants.

1 1 Black. Comm. 169.

§ 875. This seems a very just account of the matter with reference to the spirit of the British constitution, though a different explanation has been deduced from a historical review of the power. It has been asserted to have arisen from the instructions from time to time given by the constituents of the commons (whether county, city, or borough) as to the rates and assessments which they were respectively willing to bear and assent to, and from the aggregate it was easy for the commons to ascertain the whole amount which the commonalty of the whole kingdom were willing to grant to the king. Be this as it may, so jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting. They will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; and under this appellation are included all bills by which money is directed to be raised upon the subject for any purpose, or in any shape whatsoever, either for the exigencies of the government, and collected from the kingdom in general, as the land tax, or for private benefit, and collected in any particular district, as turnpikes, parish rates, and the like. It is obvious that this power might be capable of great abuse, if other bills were tacked to such money bills; and accordingly it was found that money bills were sometimes tacked to favorite measures of the commons, with a view to insure their passage by the lords. This extraordinary use, or rather perversion of the power would, if suffered to grow into a common practice, have completely destroyed the equilibrium of the British constitution, and subjected both the lords and the king to the power of the commons. Resistance was made from time to time to this unconstitutional encroachment; and at length the lords, with a view to give permanent effect to their own rights, have made it a standing order to reject upon sight all bills that are tacked to money bills. Thus, the privilege is maintained on one side and guarded against undue abuse on the other.

1 1 Black. Comm. 169; De Lolme on Constitution, ch. 4, 8, p. 66, 84, 85, and note. [At the present time it is not conceded that the house of lords may even reject a money bill. See May, Constitutional History, ch. 7.]

2 2 Wilson's Law Lect. 161, 162, 163, citing Millar on Constitution, 398. But see 1 Wilson's Law Lect. 444, 445.

3 i Black. Comm. 170, and Christian's Note (26).
4 De Lolme on the Constitution, ch. 17, p. 381, 382.

§ 876. It will be at once perceived that the same reasons do not exist in the same extent for the same exclusive right in our House of Representatives in regard to money bills, as exist for such right in the British house of commons. It may be fit that it should possess the exclusive right to originate money bills, since it may be presumed to possess more ample means of local information, and it more directly represents the opinions, feelings, and wishes of the people; and, being directly dependent upon them for support, it will be more watchful and cautious in the imposition of taxes than a body which emanates exclusively from the States in their sovereign political capacity 1 But, as the senators are in a just sense equally representatives of the people, and do not hold their offices by a permanent or hereditary title, but periodically return to the common mass of citizens ;2 and above all, as direct taxes are and must be apportioned among the States according to their federal population, and as all the States have a distinct local interest, both as to the amount and nature of all taxes of every sort which are to be levied, there seems a peculiar fitness in giving to the Senate a power to alter and amend, as well as to concur with or reject all money bills. The due influence of all the States is thus preserved, for otherwise it might happen, from the overwhelming representation of some of the large States, that taxes might be levied which would bear with peculiar severity upon the interests, either agricultural, commercial, or manufacturing, of others being the minor States, and thus the equilibrium intended by the Constitution, as well of power as of interest and influence, might be practically subverted.

$ 877. There would also be no small inconvenience in excluding the Senate from the exercise of this power of amendment and alteration, since if any the slightest modification were required in such a bill to make it either palatable or just, the Senate would be compelled to reject it, although an amendment of a single line might make it entirely acceptable to both houses. Such a practical obstruction to the legislation of a free government would far outweigh any supposed theoretical advantages from the possession or exercise of an exclusive power by the House of Representatives. Infinite perplexities and misunderstandings and delays would clog the most wholesome legislation. Even the annual appropriation bills might be in danger of a miscarriage on these accounts, and the most painful dissensions might be introduced.

1 2 Wilson's Law Lect. 163, 164; Rawle on Constitution, ch. 6; 4 Elliot's Debates, 141.

2 1. Tucker's Black. Comm. App. 215; 2 Wilson's Law Lect. 163, 164; Rawle on Constitution, ch. 6; 4 Elliot's Debates, 141.

3 2 Elliot's Debates, 283, 284.

§ 878. Indeed, of so little importance has the exclusive possession of such a power been thought in the State governments, that some of the State constitutions make no difference as to the power of each branch of the legislature to originate money bills. Most of them contain a provision similar to that in the Constitution of the United States; and in those States where the exclusive power formerly existed, as, for instance, in Virginia and South Carolina, it was a constant source of difficulties and contentions. In the revised constitution of South Carolina, (in 1790, the provision was altered so as to conform to the clause in the Constitution of the United States.

$ 879. The clause seems to have met with no serious opposition in any of the State conventions, and indeed could scarcely be expected to meet with any opposition except in Virginia, since the other States were well satisfied with the principle adopted in their own State constitutions, and in Virginia the clause created but little debate.2

§ 880. What bills are properly 6 bills for raising revenue, in the sense of the Constitution, has been matter of some discussion. A learned commentator supposes that every bill which indirectly. or consequentially may raise revenue is, within the sense of the Constitution, a revenue bill. He therefore thinks that the bills for establishing the post-office and the mint, and regulating the value of foreign coin, belong to this class, and ought not to have originated (as in fact they did) in the Senate. But the practical construction of the Constitution has been against his opinion. And, indeed, the history of the origin of the power already suggested abundantly proves that it has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue. No one supposes that a bill to sell any of the public lands, or to sell public stock, is a bill to raise revenue, in the sense of the Constitution. Much less would a bill be so deemed which merely regulated the value of foreign or domestic coins, or authorized a discharge of insolvent debtors upon assignments of their estates to the United States, giving a priority of payment to the United States in cases of insolvency, although all of them might incidentally bring revenue into the treasury.

2 Id.

1 2 Elliot's Debates, 283, 284. 3 i Tucker's Black. Comm. App. 261, and note. 4 See Elliot's Debates, 283, 284. [Bills repealing duties, it has been claimed by the This general subject was somewhat discussed in Congress in the year 1872.

$ 881. The next clause respects the power of the President to approve and negative laws. In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the President a negative on the laws. The principal points of discussion seem to have been, whether the negative should be absolute or qualified; and if the latter, by what number of each house the bill should subsequently be passed, in order to become a law; and whether the negative should in either case be exclusively vested in the President alone, or in him jointly with some other department of the government. The proposition of a qualified negative seems to have obtained general, but not universal support, having been carried by the vote of eight States against two. This being settled, the question as to the number was at first unanimously carried in the affirmative in favor of two thirds of each house ; at a subsequent period it was altered to three fourths by a vote of six States against four, one being divided ; and it was ultimately restored to the two thirds, commons in Parliament, are money bills which the house of lords must not originate, amend, or reject. See May, Constitutional History, ch. 7.

The 42d Congress House passed a bill “ to repeal existing duties on tea and coffee." The Senate substituted for it a bill containing a general revision, reduction, and repeal of laws imposing import duties and internal taxes, and sent the substituted bill to the House for concurrence. The House resolved that this substitution was “in conflict with the true intent and purpose of that clause of the Constitution which requires that all bills for raising revenue shall originate in the House of Representatives,” and therefore ordered it to lie on the table. The Senate thereupon referred the subject to its Committee on Privileges and Elections, who reported that the House bill "was not a bill for raising revenue within the meaning of the Constitution, and therefore, while the Senate might have amended it so as to abolish duties altogether upon other articles, the Senate had no right to ingraft upon it, as it did in substance, an amendment providing that revenue should be collected upon other articles, though at a less rate than previously fixed by law. That amendment would have become a provision in the Act for raising revenue, because revenue at a certain rate would have been collected by the operation of the Act.” This report was adopted by the Senate, but the subject did not again go before the House so as to afford opportunity for ascertaining whether its views and those of the Senate were or were not in all particulars entirely in accord.]

1 Journal of the Convention, 97.

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