The daily Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1841-1845, 1842-08-06
REMARKS OF MIR. CUSHING,
On the Apportionmem Blu
HOUSE, OF REPRESENTATIVES, jury 6, 1912.

lect Committee the reasons given by the President
for axing his signature to the bill for apportoning
Representatives among the several States
Mr. CUSHING said that the letter of the Secretary
OF State and the exposition OF the Presidents rea
sons which 1t communicated to the House, suggested
important question relative to the func ions OF The
Executive. The question was whether by the Con-
sttuton Of the United States the President was pro
hbi'ed from filing his reasons for signing oil after
it had been passed by the two Houses OF Congress
Does the Constitution give to the members oil the
House any right to explain their reasons Tor voting
for or against bill, There no express pro-
vision to this effect. The right existed by I'M
pication. Would it be a grievance to members
not to be permitted to make Speeches? Certainly
nothing was more common among members OF the
House than complaints of being debarred the privilege
of speech, an of being sienced by the previous
question: and other motions which preclude debate
Why do they complaint They wish to act upon the
public mind by their speeches here, and they wish To
Justify their in the eyes of the world and OF pos
terity WE'LL not the President as much right
to act on the public mind they And may i, not be
just as important to the President OF the Uuiied
States that the grounds of his action on particL-
lar measure shall be communicated TO posteIity and
the world as 1t is important to members OF Congress
But there was still more material question IN
yolved IN this matter, and that waswhat is The ma
ture OF the function performed by the President OF
the United Sates' Is this legislative act, or is II
executive act' 1t was, in another form, precisely
the same question that which the House had been
discussing the last week, upon the message of the
President returning to the House the bill making tenn
porary provision for continuing the present revenue
laws Upon that the inquiry was,what is the nature
Of the functions of the President in the act of re-
fising to sign bill? Whether he signs bill with
exposition of his reasons, refuses to sign with
an exposition of his reasons, these are both the
two categorIes of the same power and duty, devov-
ed by the Constitution upon the President. There
fore the question must be stated in broader form
than before, and it is, What is the precise nature OF
of law Is il legislative, or is 1t an executive
function?
Unquestionably it was an act of the Executive,
but it did not by any follow that it there
fore executive, not legislative act
Try The question in the first place of verbal
criticism and definition. There is point the history
of bill, when the legislative nature of the opera
ton ceases, and the executive operation begins
What is the legislative operation The answer to
this must be- that it everything that goes make the
bill law. What is the executive operations That
must be the execution of the law after it becomes
such Suppose, for instance that it should be APP
preparation The execution OF it, that is, the eXpen
diture of the money it approprates, cannot com
mence until after ii becomes law, whilst the sigma
ture is act performed in the process of converting
the bill into law and therefore cannot be the execu-
ton Of the law Mr.. C. held, therefore, that, ac-
cording to the strict and logical of the words
all the proceeding BILL from It's inception to its
contamination, were legislative acts.
lie relied upon this conclusion the more confident
ly for the that by the express letter of the
Constitution, no bill could become law withou,
passing into the hands of the President lie must, OF
necessity participate IN the enactment OF every law.
lie might sign it, and it then becomes law, or he
might efuse or neglect to sign it, and it then become
law but in either case, there must have been particpa-
ton OF his Besides which, these acts of the Presi-
dent provided for in that article Of the Consttu-
tiOn which defines the power and the duty of the Le
gslature and they not referred to in that part of
the Constitution which defines the power and the du
x.Ntf haE ~. A.
President in the enactment of law seems to be
considered by the Constitution itself as Legislative
function.
But, says the gentleman from Michigan, by the
Constitution All legislative powers herein granted
shall be vested in Congress of the United States
which shall consist of a Senate and House of Repre-
sentatives."-Art. l. From which he iniers that the
President cannot possess any legislative functions
To this it might be obvious to reply, that another
part of the Constitution says, "The executive power
shall he vested in q p.e-;L.., Un,tru STATES
America'-Art. 2 Would the gentleman conclude
from this expression that executive power is
vested in the Senate But this point deserves more
complete analysis.
The act Of the Senate is necessary to the compile
ton of most appointments it has to confirm nom-
nations The act Of the Senate is necessary also to
The conclusion of treaties with foreign Governments
In these two particulars it participates in the eXec-
tive functions of the President its functions there
fore are, IN this respect, not purely legislative.
But the Senate has Judicial functions also, for it
tries impeachments in which it acts professedIy
court of justice.
The House finds impeachments, and in doing this
performs functions which purely judicia for an
impeachment is in a law-making or legsla-
tive act Suppose, for instance, the gentleman from
Virginia, (Nlr. Botts,D should move an impeachment
OF the President Mr.. G. presumed that Mr.. b.
would not consider this an impossible supposition.
MIR. Boris said that Mr.. G. certainly excused
for his supposition. 1t did no violence to the truth
1t was not only a supposeabe, but certain case.
HIS mind was made up on that subject.
Well then, Mr. Z. continued, suppose the Of
an impeachment II would be the commencement
of Judicial, not legislative operation.
In other respects both Houses perform acts which
are judicial rather than legislative. Each House,
says the Constitution, shall be the Judge" of the
elections, returns, and qualifications of its
bers. Besides which each House may "punish" its
members for disorderly behavior. To Judge at d to
punish are Judicial, not legislative acts.
Now, since the two houses of Congress exercise
functions other than legislative, functions executive,
and functions Judicial, there be nothing strange
in supposng that the Constitution should give to the
President functions other than executive
In the first place he frequently performs judicial
acts, Tor he has to pass final judgment upon, and APP
prove or disapprove the proceedings of courts mar
tial
And so IN the present question. Ii absolutely
necessary that bill, before it could become law,
should undergo the action Of the Executive. He
must approve or disapprove He must perform an
operation, affirmative negative decide not to act
and the operation thus performed by the President,
he, Mr.. c., had been accustomed to consider as a le
gislative operation.
But other gentlemen denied this, and number of
them, IN commenting on the expression of such
idea by him. the other day, had magnifed this little
point OF verbal criticism into matter of grave accu-
sation and argument.
Gentlemen had several times, in the debate Of
last week, assumed that he, Mr. c., had spoken of
the President as coordinate branch of the Legisa-
ture. lie did not use this expression he did not
think 1t a proper one but if he had done So
there would have been nothing portentous in it ;
for one of the numbers of the Federast writ
ten by Mr. Madison, in speaking of the English
Parliament uses this remarkably opposite expression
The Executive Magistrate forns integral part of
The legislative authority" Nor is it to the English